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ew Petition No. 29 of 1969. Application for review of this Court 's Judgment dated July 17, 1969 in Civil Appeal No. 1878 of 1967 arising out of the judgmentand order dated July 18, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 722 of 1965. N. section Bindra and section P. Nayar,for the petitioner/appellants. A. G. Ratnaparkhi, for the respondent. 47 The, Judgment of the Court was delivered by Shah, J. Appeal No. 1878 of 1967 was ordered to be dismissed by this Court on July 17, 1969. The Court held that the sale of standing trees is not sale of goods chargeable to sales tax under the Bombay Sales Tax Act, 1959. A petition for review of Judgment has been filed by the State contending that after the judgment of the High Court and before the appeal was heard, the Bombay Sales Tax Act, 1959 was amended by the Maharashtra Act 15 of 1967 with retrospective operation, and by the amendment standing timber was included 'in the definition of timber, but counsel for the State failed to invite the attention of the Court to that Act. Since the judgment of this Court it is claimed suffers from an error apparent on the face of the record, we have granted review of judgment. The expression "goods" was defined in section 2(13) of the Bombay Sales Tax Act, 1959. By Maharashtra Act 15 of 1967 by section 2 the definition of "goods" was altered by providing that "In section 2 of the Bombay Sales Tax Act, 1959 . in clause (13), after the words 'and commodities ' the following shall be, and shall be deemed always to have been, added, namely: 'and all standing timber which is agreed to be severed before sale or under the contract of sale '. " The definition was retrospective in operation and the expression " goods" included at all relevant times standing timber agreed to be severed before sale or under the contract of sale. The expression "sale of goods" in Entry 54 List 11 of Sch. VII of the Constitution has the same connotation as it has in the . This Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd.(1) observed that the expression "sale of goods" was, at the time when the Government Of India Act, 1935, was enacted, a term of well recognised legal import in the general law relating to sale of goods and in the legislative practice relating to that topic and must be interpreted in Entry 48 in List 11 in Sch. VII of the Act as having the same meaning as in the : see also Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh (2). The expression " sale of goods" in Entry 54 in List II of Sch. VII of the Consti tution has also the same meaning as that expression had in Entry 48 in List II of the Government of India Act, 1935. The State Legislature may not therefore extend the import of the expression (1) ; (2) ; 48 " sale of goods" so as to impose, liability for tax on transactions which are not sales of goods within the meaning of the . By article 366(12) of the Constitution the expression "goods" is defined as inclusive of "all materials, commodities and articles". That is, however an inclusive definition and does not throw much light on the meaning of the expression "goods". But the definition of "goods" in the , as meaning "every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale". Standing timber may ordinarily not be regarded as "goods", but by the, in clusive definition given in section 2(7) of the things which are attached to the land may be the subject matter of contract of sale provided that under the terms of the contract they are to be severed before sale or under the contract of sale. In the present case it was expressly provided that the timber agreed to be sold shall be severed under the contract of sale. The timber was therefore "goods" within the meaning of section 2(7) of the and the expression "sale of goods" in the Constitution in Entry 54 List 11 having the same meaning as that expression has in the , sale of timber agreed to be severed under the terms of the contract may be regarded as sale of goods. The appeal is allowed and the petition filed by the respondent must be dismissed. Since the State succeeds in this appeal, relying upon a statute which was passed after the judgment of the High Court, there will be no order as to costs throughout. V.P.S. Appeal allowed.

The appellant 's house was set on fire and burnt down. As a result of a report filed by his son the police arrested Respondents 1 and 2 and submitted a charge sheet against them. The appellant was dissatisfied that the police had not prosecuted Respondent No. 3 also and he filed a complaint against him, in the same Court. The Magistrate inquired into the two cases together and committed separately the first two respondents and the third respondent separately to the Court of Sessions. After the Sessions Judge had held all the three respondents not guilty and acquitted them, the appellant applied under section 417(3) Cr. P.C., for special leave to appeal against the acquittal of the three respondents; but this petition was dismissed by the High Court on the ground that the petitioner had no locus standi to prefer an appeal when the State had pro secuted the respondents in the Sessions Court. A revision application filed by the appellant was also rejected. On appeal to this Court, HELD : The appellant was entitled to have a hearing of his petition for special leave under section 417(3) and the case must therefore be remitted to the High Court for this purpose. The answer to the question whether the appellant had a right to move the High Court for special leave under section 417(3) depended upon whether there was a case instituted by him upon a complaint in which an acquittal was recorded, for this is the requirement of the special section and also the condition precedent to the right. [4 B]. On the facts, there could be no doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant. There could be no question of merger because the identity of the two cases was maintained right upto the end of the Sessions Trial. The case of the appellant proceeded on its own number and although evidence was led in both cases together, the acquittal was recorded separately in each of the two cases. The appellant was therefore entitled to move the High Court for special leave in his own case. [6 G] The fact that the appellant had also applied for revision which was rejected and had applied for special leave against that order which was refused by this Court, did not mean that that must conclude the matter. The appellant 's statutory right to move the High Court could not be lost by reason of the revision and the result of the revision, had no bearing upon the matter.

iminal Appeal No. 82 of 1953. Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 16th August, 1953, of the High Court of Judicature at Hyderabad in Criminal Appeal No. 1557/6 of 1950, arising out of the Judgment and Order dated the 16th October, 1950, of the Court of Special Judge, Warangal, in Case No. 28/2 of 1950. A. A. Peerbhoy, J. B. Dadachanji and Rajinder Narain for the appellant. Porus A. Mehta and P. G. Gokhale for the respondent. 590 1954. May 6. The Judgment of the Court was delivered by GHULAM HASAN J. The appellant was tried and convicted by the Special Judge, Warangal, for various offences under the Hyderabad Penal Code. These correspond to sections 302, 307, 347 and 384 of the Indian Penal Code, the sentences awarded under the first two sections respectively being death and life imprisonment, and separate sentences 'of two years ' rigorous imprisonment under the latter two. two learned Judges of the High Court, who heard the appeal, differed, Manohar Pershad J. upholding the convictions, and the sentences and M. section Ali Khan J. acquitting the appellant. The third learned Judge, A. Srinivasachari J., on reference which was Occasioned by the difference of opinion agreed with Manohar Pershad J. Leave to appeal to this Court was granted by the two agreeing Judges. The occurrence which led to the prosecution of the appellant took place on September 13,1948, which was the beginning of the first day of Police action in Hyderabad. The appellant, who was Reserve Inspector of Police stationed at Mahbubabad at the material time, according to the prosecution story, visited two villages Rajole and Korivi accompanied by a number of Razakars and the Police. He arrested Janaki Ramiah (P.W. 5) and Nerella Ramulu (P.W. 9) at Rajole and took them to Korivi. Outside this village in the waste land he spotted four men going to their fields and shot at them with his gun. The deceased Mura Muthiah and Somanaboyanna Muthandu (P.W. 2) were injured in the knee, while the other two Kotta Ramiah (P.W. 3) and Kancham Latchiah (P.W. 4) were uninjured. The latter two hid themselves behind the babul trees. P.W. 2 also ran away and hid himself in the bajra fields a few yards away but the deceased remained where he fell. The appellant searched for the three persons who had run away. He caught P.W. 3 and P.W. 4 and brought them to the spot where the deceased was lying but he could not trace P.W. 2. The appellant seeing that Mora Muthiah was not dead, shot him in the chest and killed him. The whole party 591 consisting of P.W. 3, P.W. 4, P.W. 5 and P.W. 9 then went to Korivi village. The appellant stayed at the house of one Maikaldari in the village and spent the night there. Maikaldari and one Berda Agiah (P.W. 8) both asked the appellant why he had arrested P.W. 3 and P.W. 4, for they were not Congress men. Upon this the appellant released them. The prosecution story proceeds that the father (P.W. 1) of the deceased saw the appellant in the night of the 13th September and asked him why he had killed his son. The appellant without saying more advised him to cremate the dead body. P.W. I borrowed wood from the people and cremated the body. Four months later the appellant went and ,stayed at the Government bungalow Korivi, sent for P.W. I and offered him Rs. 200/ as hush money for not disclosing the offence. The offer was refused. P.W. 3 and P.W. 4 who had been released told the father of P.W. 2 next morning that his son was lying injured in the bajra field. He went and had P.W. 2 removed to the hospital where his injuries were attended to. On the same morning the appellant, who had detained P.W. 5 and P.W. 9 in custody, asked them to pay Rs. 200/ when they would be released. P.W. 5 went with a constable to the house of P.W. 6 and P.W. 7 and borrowed Rs. 100/ from each of them. On this being paid he was released. P.W. 9 was unable to pay any money and he was let off. The defence was a denial of the offence. The appellant denied having zone to the village in question or having committed any of the offences attributed to him. He stated that he was posted at Mahbubabad in order to stop the subversive activities of the communists and that the witnesses being communists had falsely implicated him. He produced witnesses in defence. The First Information Report was lodged on April 14,1949. This delay was due to the disturbed conditions prevailing at the time and does not affect the truth of the story. The appellant was prosecuted and the charge sheet submitted against him on October 30, 1949. The charge was framed by a Munsiff Magistrate who committed the appellant to the Sessions. As already ,stated, the learned Special Judge convicted and 592 sentenced the appellant and his convictions and sentences were upheld by a majority of two Judges. It has been argued by Mr. Peerbhoy, learned counsel on behalf of the appellant, that his client had no fair trial and has detailed a number of circumstances as supporting his contention. We think it unnecessary to deal with each and every one of these circumstances as in our opinion they do not affect the substance of the matter and are too trifling to justify the conclusion that the appellant suffered any prejudice or that any miscarriage of justice had resulted. We shall confine ourselves only to a few of them which need examination. It was complained that the appellant was not furnished with copies of the statements of prosecution Witnesses recorded by the Police and this hampered the appellant in cross examining the witnesses with reference to their previous statements. It appears that the appellant filed an application through counsel on August 28, 1950, asking for copies of such statements under section 162 of the Code of Criminal Procedure. The corresponding section of the Hyderabad Penal Code is 166 which is not the same as section 162. While under section 162 it is the duty of the Court to direct a copy of the statement of a witness recorded by the Police in the course of investigation to be furnished to the accused with a view to enable him to cross examine such a witness with reference to his previous statement, no such duty is imposed by section 166 and the matter is left entirely to the discretion of the Court. This application was made for re cross examination of witnesses which obviously refers to the last stage of the prosecution evidence. The order passed on the application as translated is unintelligible and does not convey the real intention of the Court. The original which was shown to us, however, leaves no doubt whatever that the Court ordered that the case diaries and the statements were in Court and the appellant 's counsel could look into them with a view to help him in the re cross examination of the witnesses but if the Court later felt the necessity of furnishing copies, the matter would be considered. No complaint was made before the Special Judge about any prejudice having been caused to the 593 appellant by this order, nor was this point taken before the High Court. Had the appellant any legitimate ground for grievance on this score, he would no doubt have raised it before the High Court. We think, therefore, that there is no substance in this point. It was also contended that the prosecution should have produced the duty register of the appellant who was a Government servant in order to put the matter beyond doubt whether,the accused had left the Headquarters on the crucial date. We do .lot think that it was any part of the duty of the prosecution to produce such evidence, particularly in view of the fact that direct evidence of the offence was produced in the case. It appears, however, that the appellant himself summoned the Sub Inspector of Police with the attendance register for 1358 Fasli, corresponding to October, 1948. The Deputy Superintendent of Police in his letter had stated that the entries for October were made in the register for 1357 Fasli and that register was destroyed during the Police action. The appellant 's counsel inspected the register and on noticing that the entry for October did not find a place therein and had been made in the previous register for 1357 Fasli, which was destroyed during the Police action, he withdrew the witness. The appellant satisfied himself from the inspection of this register that the desired entries were not to be found. Since the register containing the material entries was destroyed, it was impossible for the prosecution to discharge the alleged burden of proving the entries in the duty register on the material date. It was also faintly contended that there was no evidence to show that Mura Muthiah had actually died. The father of the deceased gave evidence that the dead body of his son was cremated by him and in this he was supported by other witnesses. There is no force in this point. Upon the whole we are satisfied that the appellant has not been able to substantiate his contention that he did not have a fair trial. The next contention advanced by the appellant 's learned counsel is that there was a misjoinder of 76 594 charges, that though the charges of murder and attempt to murder could be joined and tried together, the charges of extortion and wrongful confinement were distinct offences for which the appellant should have been charged and tried separately as required by the mandatory provisions of section 233 of the Code. The first two offences took place on September 13, 1948, in the night, while the act of extortion took place next morning on the 14th and the latter charge had nothing whatever to do with the offences committed on the previous night. Learned counsel contends that where, as here, there is disobedience to an express provision as to the mode of trial contained in section 233, the trial is wholly vitiated and the accused is not bound to show that the misjoinder has caused any prejudice to him. The contention is based on the case of Subramania Ayyar vs King Emperor(1) showing that the misjoinder of distinct offences being prohibited by the express provision of the Code renders the trial illegal and does not amount to a mere irregularity curable by section 537. This was a case in which the accused was charged with 41 acts extending over a period of two years which was plainly against the provisions of section 234 which permitted trial only for three offences of the same kind if committed within a period of twelve months. The decision of Lord Halsbury, Lord Chancellor, in this case was distinguished in the case of Abdul Rahman vs The King Emperor (1) by the Privy Council. That was a case of conviction on a charge of abetment of forgery in which the depositions of some witnesses were not read over to the witnesses but were handed over to them to read themselves. It was held that though the course pursued was in violation of the provisions of section 360, it was a mere irregularity within section 537 and that as no failure of justice had been occasioned, the trial was not vitiated. Both the above cases were referred to by the Privy Council in Babulal Chaukani vs King Emperor(1). The question in that case arose as to the true effect of section 239(d), which provides that persons who are (1) 28 I.A. 257. (2) 541.A. 96, (3) A.I.R. 1938 P.C. 130, 595 accused of different offences committed in the course of the same transaction may be charged and tried together. The question was whether the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation or by looking at the result of the trial. It was held that the relevant point of time is the time of accusation and not that of the eventual result. The charges in this case were conspiracy to steal electricity and theft of electricity both under the Electricity Act and under the Penal Code. The Privy Council referred to the fact that the parties had treated an infringement of section 239(d) as an illegality vitiating the trial under the rule stated in Subramania Ayyar vs King Emperor(1) as contrasted with the result of irregularity as held in Abdul Rahman vs The King,, Emperor (2) . The Privy Council merely assumed it to be so without thinking it necessary to discuss the precise scope of the decision in Subramania 's case, because in their view the question did not arise. Again in Pulukuri Kottaya and Others vs Emperor (3) the Privy Council treated a breach of the provisions of section 162 of the Code as a mere irregularity curable under section 537 and as no prejudice was caused in the particular circumstances of that case, the trial was held valid. Reference was made to Subramania Ayyar vs King Emperor(1) as one dealing with the mode of trial in which no question of curing any irregularity arises but if there is some error or irregularity in the conduct of the trial, even though it may amount to a breach of one or more of the provisions of the Code, it was a mere irregularity and in support of this reference was made to Abdul Rahman vs The King Emperor(1). Several decisions of the High Courts were referred to in course of the arguments with a view to showing what is the true state of the law in view of the Privy Council decisions referred to above but we do not think that that question arises in the present case. We are of opinion that the present is not a case under section 233 of the Code and it is, therefore, unnecessary to consider whether the violation of its provisions amounts to an illegality vitiating the trial altogether (1) 28 I.A. 257. (2) 54 I.A. 96. (3) A.I.R. 1947 P.C. 67. 596 or it is a mere irregularity which can be condoned under section 537. Section 233 embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every: such charge should be tried separately. There is no doubt that the object of section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235, 236 and 239. Having regard to the facts and the circumstances of this case, we are of opinion that the present case falls under section 235. It provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. The prosecution story as disclosed in the evidence clearly shows that the offence of extortion committed on the 14th September was one of a series of acts connected with the offence of murder and attempt to murder committed on the previous day in such a way as to form the same transaction. The prosecution case was that when the appellant accompanied by his party came, he caught hold of two persons (P.W. 5 and P.W. 9) at Rajole and proceeded to Korivi. He took them into custody without any rhyme or reason. Then outside the village seeing the deceased, P.W. 2, P.W. 3 and P. W. 4 he shot at them. The deceased fell down while the others ran away. He pursued them and brought two of them back to the spot where the deceased was lying but was yet alive. He shot him in the chest and killed him. Then he proceeded to the village itself where he stayed for the night. He released P. W. 3 and P. W. 4 on the intercession of certain persons but kept P. W. 5 and P. W. 9 in wrongful confinement and released them only next morning after extorting Rs. 200 from P. W. 5. These incidents related in the evidence leave no manner of doubt that from the moment the appellant started from the Police Station, he committed a series of acts involving killing, injuring people, unlawfully confining others and 597 extorting money from one of them. We are satisfied that the series of acts attributed to the appellant constitute one transaction in which the two offences which are alleged to be distinct were committed. The case falls squarely within the purview of section 235 of the Code and we are, therefore, of opinion that such misjoinder was permitted by the exception. No question of contravention of any express provision of the Code such as section 233 arises and in the circumstances it is not necessary for us to consider how far the violation of any express provisions of the Code relating to the mode of a trial or otherwise constitutes an illegality which vitiates the trial as distinguished. from an irregularity which is curable under section 537. This conclusion in our opinion disposes of the contention about misjoinder of the charges. The fact that the offence of extortion was committed at a different place and at a different time does not any the less make the act as one committed in the course of the same transaction. Turning to the merits of the matter, we are not satisfied that any prejudice was caused to the appellant in fact. It is not possible to say that the Court being influenced by the evidence on the question of extortion was easily led into the error of believing the evidence on the question of murder. The witnesses on the point of extortion are P.W. 5 and P.W. 9. These are the two persons who were taken away from village Rajole and were wrongfully confined, P.W. 5 being released on payment of Rs. 200 and the other let off without payment. These two witnesses are also witnesses to the fact of murder, in addition to the other three witnesses, P.W. 2, P.W. 3 and P.W. 4. P.W. 5 was injured by the gun shot but survived. The other two were scared on hearing the gun shot and ran away taking protection under the babul tree. It is not possible to contend that the Sessions Judge having believed the evidence of extortion from P.W. 5 must have been persuaded into believing that the story of murder deposed to by him must be correct, for there is not only the evidence of P. W. 5, but three other inde pendent witnesses. Lastly it was contended that the judgment of one of the agreeing Judges Manohar Pershad J. is purely 598 mechanical and does not show that he has applied his mind to the facts of the case. No such complaint is made about the judgment of the other agreeing Judge Srinivasachari J. It is true that the learned Judge has made copious quotations verbatim from the evidence of the witnesses and his comment upon the evidence is not as full and detailed as might be expected but this practice of writing judgments in this way seems fairly general in Hyderabad though we cannot help saying that it is not to be commended. It is the obvious duty of the Court to give a summary of the evidence of material witnesses and to appraise the evidence with a view to arriving at the conclusion whether the testimony of the witness should be believed. We do not think, however, that the criticism that the judgment is mechanical and does not show a proper appreciation of the evidence is well founded. The prosecution evidence was believed by the trial Judge and the defence evidence to the effect that the deceased was killed by the Military and that the appellant was not present at the time of the occurrence was disbelieved. This finding was accepted by both the learned agreeing Judges. This Court cannot interfere with the finding arrived at, on an appreciation of the evidence. We are satisfied that there is no good ground for disturbing the conviction of the appellant. The only question which remains for consideration is whether the sentence of death is the appropriate sentence in the present case. No doubt there are no special circumstances which justify the imposition of any other but the normal sentence for the offence of murder. We think, however, that where the two Judges of the High Court on appeal are divided in their opinion as to the guilt of the accused and the third Judge to whom reference is made agrees with one of them who is upholding the conviction and sentence, it seems to us desirable as a matter of convention though ,not as a matter of strict law that ordinarily the extreme penalty should not be imposed. We accordingly, while maintaining the conviction of the appellant, reduce his sentence to one of transportation for life. In other respects the appeal stands dismissed. All the sentences will run concurrently.

Maganlal executed a mortgage in favour of M.P. State Financial Corporation as security for a loan. The amount of loan not having been paid, the Corporation initiated pro ceedings before the District Judge under section 31 of the for attachment and sale of the mortgaged property, which was ultimately auc tioned and purchased by M/s Jaiswal Industries, the first purchaser Maganlal made an application under Order 21 Rule 90 of the Code of Civil Procedure with the result that the sale was set aside by the Additional District Judge. The first purchaser preferred an appeal against the order set ting aside the sale and also sought stay of further proceed ings for re sale. The High Court did not grant stay but only ordered that the fresh sale shall not be confirmed till the disposal of the appeal. Fresh auction was held and sale was knocked down in favour of Ramnarayan, the second purchaser. The appeal of the first purchaser was subsequently allowed by the High Court and the first sale in his favour was confirmed. Both Maganlal and Ramnarayan have filed two separate appeals in this Court challenging the order of the High Court. Maganlal made an application before this Court under Order 34 Rule 5 of the Code, being C.M.P. No. 9940 of 1982, for redemption of the mortgage, and has urged that in case C.M.P No. 9940 of 1982 is allowed, it would not be neces sary for him to press the merits of the appeal. This conten tion has not been seriously disputed by the first and the second purchasers. They have however opposed this applica tion on the ground that: (i) an order of sale of the mort gaged property passed 697 by the District Judge under section 32 of the Act after affecting an attachment under section 31 thereof will not come within the purview of a final decree for sale of mort gaged property contemplated by Order 34 Rule 5 of the ' Code and as such the benefit of that provision could not be extended to Maganlal; (ii) the High Court having confirmed the sale in first purchaser 's favour, an application under Order 34 Rule 5 of the Code is not maintainable inasmuch as the said provision contemplates payment 'on or before the day fixed or at any time before the confirmation of a sale '; and (iii) section 32(8) of the State Finance Corporation Act makes the manner provided in the Code applicable only "as far as practicable" and there was neither a decree nor was the Financial Corporation a decree holder in a suit for sale it was only deemed to be a decree holder by legal fiction because of the expression "in execution of a decree as if the Financial Corporation were the decree holder". On the other hand, it is contended on behalf of Maganlal that (i) Order 34 Rule 5 of the Code is attracted even to an order of sale of mortgaged property passed under section 32 of the Act and since the right of redemption which vests in Maganlal has not yet extinguished in view of the pendency of these appeals, there is no impediment in the relief contem plated by Order 34 Rule 5 of the Code being granted. and (ii) in view of sub section (8) of section 32 of the Act the applicability of the provisions of Order 34 Rule 5 of the Code cannot be denied to the facts of the instant case. Allowing the CMP and the appeal filed by Maganlal and granting consequential reliefs to the first and the second purchasers, this Court. HELD: (1) In case the provisions of Order 34 Rule 5 of the Code are held to be applicable to the facts of the instant case, appropriate relief can be granted thereunder as the order of confirmation of the sale passed by the High Court in favour of the first purchaser has not become abso lute due to the pendency of these appeals against that order nor has the right of redemption of Maganlal yet extin guished. [707F G] Chandra Mani vs Anarjan Bibi, A.I.R. 1934 P.C. 134; Nilayam Ramkrishan Rao vs Kandokari Chellayamma & Anr., ; ; S.V. Ramalingam & Ors. vs K.E. Rajagopa lan & Ors., ; M. Sevugan Chettiar vs V.A. Narayana Raja, A.I.R. 1984 Mad 334; Raghunath Singh & Ors. vs Pt. Hansraj Kunwar & 698 Ors., A.I.R. 1934 P.C. 205 and Mhadagonda Ramgonda Patil & Ors. vs Shripal Balwant Rainade & Ors., , referred to. (2) An application under section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property. On the other hand, the substantive relief in an application under section.31(1) is something akin to an application for at tachment of property in execution of a decree at a stage posterior to the passing of the decree. [710E F] Gujarat State Financial Corporation vs M/s Natson Manu facturing Co. (P) Ltd.; , and M/s Everest Industrial Corporation & Ors. vs Gujarat State Financial Corporation, ; , referred to. (3) The purpose of enacting sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recov ery of the dues of the Financial Corporation. This purpose however was, in cases covered by clause (a) of sub section (1) of section 31, confined to the stage of obtaining an order asking to a decree in a suit, in execution whereof "the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance" could be sold. Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (a) of sub section (1) of section 31 could he sold. After this stage was reached, sale in execution of an order under section 32 of the Act was for purposes of execution put at par with sale in execution of a decree obtained in a suit, by enacting sub section (8) of section 32 of the Act. [711H 7 12B] (4) If in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the Code for execution of a decree for sale of such properties as are referred to in clause (a) of sub section (1) of section 31 of the Act, it would have made some provi sion analogous to provisions contained in the enactments for revenue recovery. But that was not done. Instead, sub sec tion (8) was incorporated in section 32 of the Act. [712F] (5) As is apparent from the plain language of section 32(8) of the 699 Act, the legal fiction was created for the purpose of exe cuting an order under section 32 of the Act Tim ' sale of attached property as if such order was a decree in a suit for sale and the financial Corporation was the decree holder whereas the debtor was the judgment debtor. [714B] It is settled law that a legal fiction is to he limited to the purpose for which it was created and should not he extended beyond the legitimate field. [713H] The Bengal Immunity Company Ltd. vs The State of Bihar & Ors., ; East End Dwellings Company Ltd. vs Finsbury Borough Council, [1952] Appeal Cames 109; The Commissioner of Income tax, Bombay vs Amarchand N. Shroff, [1963] Supp. 1 S.C.R. 699; Commissioner of Income Tax, Gujarat vs Vedilal Lallubhai, ; and Nation al Sewing Thread Co. Ltd. vs Jamesh Chadwick & Bros. Ltd., ; , referred to. (6) The provisions of the Code of Civil Procedure with regard to execution of a decree for sale of mortgaged property contained in Order 21 of the Code including the right to file an appeal against Such orders passed during the course of execution which are appealable shall apply mutasis mutandis to provisions of an order under section 32 of the Act unless such provision is not practicable to he applied. [714C] (7) Since, in the instant case, the equity of redemption has not extinguished, there is no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under section 32 of the Act, the provision contained in Order 34 Rule 5 of the Code shall not apply. Nothing has been brought to the notice of the Court as to how and why it is not practicable to apply the said provision. [7 14F]

Appeal No. 431 of 1965. Appeal from the judgment and decree dated August 22, 1963 of the Andhra Pradesh High Court in Appeal No. 554 of 1959. H. R. Gokhale and K. R. Chaudhuri, for the appellant. D. Narsa Raju, section T. Desai, A. Vedavalli and A. V. Rangam for the respondents. 474 The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate on be half of the plaintiff from the judgment of the High Court of Andhra Pradesh in Appeal Suit No. 554 of 1959 dated August 22, 1963. One Gorantla Tathiah, as the, sole plaintiff, filed O.S. No. 2 ,of 1957 in the Court of the Subordinate Judge '. Bapatla for possession of certain properties which had been left by Gorantla Veeriah when he died issueless on June 24, 1939. Originally, there were ten defendants in the suit. Defendant No. 1 is the maternal uncle of Veeriah and Defendant No. 2 and Defendant .no. 3 are, the sons of Defendant No. 1. Defendants nos. 4 to 8 were the alienees from Defendant No. 1 's family. Defendants nos. 7, 9 and 10 did not contest the suit. Defendant No. 8 died in the ,course of the suit and his legal representatives were added as Defendants I I to 14. Defendants 1 to 3 contested the suit on the ,ground that Defendant No. 1 became entitled to the properties of Veeriah under the will, exhibit B 4 dated June, 17, 1939 which Veeriah executed in his favour. It was contended in the alternative that at the time when the reversion opened on the death of Veeriah 's mother, Rattamma on October 1, 1956, Defendant No. 1 was the nearest heir and not the plaintiff, under the Hindu Succession Act (XXX of 1956) which had come into force on October 17, 1956. The Additional Subordinate Judge, Bapatla held ' that the will was true and genuine but it was not legally valid as it was executed by Veeeriah at a time when he had no testamentary capacity. It was also held that the Hindu Succession Act did not apply to the facts of the case. The Additional Subordinate Judge accordingly granted a decree for possession of properties except item No. 4 in favour of. the plaintiff as against Defendants nos. I to 3, 6, 7 and I I to 14. Defendants I to 3, 7, 1 1 and 1 3 took the matter in appeal to the High Court of Andhra Pradesh. The plaintiff also Preferred a Memorandum of Cross Objections to the ,extent the trial Court 's decree was against him. By its judgment dated August 22, 1963, the High Court allowed the appeal, holding that the will, exhibit B 4 was executed by Veeriah in a sound and disposing state of mind and that the will was not only true but was valid and binding upon the, plaintiff. The High Court accordingly dismissed the suit. The Memorandum of Cross Objections was also dismissed. The first question to be considered in this appeal is whether the will, exhibit B 4 was true and genuine and was executed by Veeriah in a sound and disposing state of mind. It is not disputed that one Gangiah died leaving his widow Rattamma and his only son through her called Veeriah and a young daughter. The girl died without leaving any issue in the year 1932. Veeriah was a little boy and it is not disputed that 475 he was below average, in intelligence and understanding. Rattamma alongwith her son took up residence with her brother, Defendant No. I who was a man of great wealth and influence in the. village, owning fifty acres of land and outstanding credits to the extent of Rs. 20,600/ . Rattamma 's husband had left properties to the extent of 13 acres of land. In spite of owning so much property Veeriah was engaged as a cow boy in tending cattle. In June 1939, he had an attack of typhoid, became bed ridden and ulti mately died of the disease on June 24, 1939. The case of the contesting defendants was that Veeriah executed the will, exhibit B 4 on June 17, 1939, that D.W. 4 wrote it and nine witnesses attested it but the will was not registered in Veeriah 's life time. On October 15, 1939, defendant No. 1. and Raittamma presented the will, exhibit B 4 before the Sub Registrar, Chirala for registration. The Sub Registrar, however, refused to register the, will by his order, exhibit A 45 in W.C. 4 of 1939. Defendant No. 1 preferred an appeal before the District Registrar, Guntur but the appeal was dismissed. Defendant No. I then filed O.S. No. III of 1940 in the court of District Munsif, Bapatla against Ramayya (father of defendants 9 and 10), the plaintiff and Rattamma for a direction for registration of the will. The District Munsif returned the will to defendant No. I for want of pecuniary ,jurisdiction. Defendant No. 1 presented it to the Subordinate Judge, Bapatla and got it numbered as O.S. No. 6 of 1941. The suit was ultimately dismissed by the Subordinate Judge on the question of limitation. Defen dant No. 1 and Rattamma filed O.S. No. 13 of 1942 in the Subordinate Judge 's court, Bapatla for a declaration that the will was genume and valid. Ramayya filed a written statement and the suit was ultimately decreed in favour of Defendant No. I and Rattamma. The present plaintiff, Gorantla Tathaiah was, however, not a party to that suit. In the will, exhibit B 4 it is stated by the testator as follows ". Typhoid condition has set in. As no treatment has been effective in curing this condition I have lost confidence that I will survive. Therefore I have wholeheartedly made the following disposition regarding my movable and immovable properties in order that there may be no obstruction in future from any source whatsoever. That my mother Rattamma should be maintained comfortably for her life time and.that in case there is disagreement between her and I material uncle. Venkatasubbayya and they decide to live separately, my mother, Rattamma, should enjoy the income of the property mentioned in 'B ' Schedule for her life time without exercising any powers of disposition by way of gift, sale etc., over the property and that after her life. L7 Sup. C.I./68 6 476 time. the entire property mentioned in 'B ' schedule should devolve in my maternal uncle, Venkatasubbayya. My maternal uncle, Venkatasubbayya shall enjoy the entire properties mentioned in 'A ' and 'B ' Schedules with absolute powers of disposition by way of gift, sale etc. " In the will it is mentioned that Veeriah had sold his land on May 30, 1939 to defendant No. 4 and received an advance of Rs. 165/with the stipulation that the balance of sale price should be paid at the time of registration. Veeriahl also said that in case he did not live long enough, defendant No. 1 should complete the sale transaction and receive the balance of price from defendant No. 4. The will was written by one Ammanamanch Sambiah, D.W. 4 the karnam of the village. There are 9 attesting witnesses of whom three are dead. On behalf of the plaintiff two of the; attestors P.Ws. 8 and 9 were examined and two attesting witnesses were examined as Court witnesses I and 2. On behalf of defendants two attesting witnesses D.v. I and 6 besides the scribe D.W. 4 gave evidence. P.W. 8 deposed that the testator did not give any instructions or particulars for drafting the will. The testator was very weak and in a delirious state and he was not in a position to put his thumb impression to the will. P.W. 9 is stone deaf and he could not give proper evidence. He did not remember if Veeriah was raving and was tearing his clothes. D.Ws. 1, 4, 6 and 14 and C.Ws. 1 and 2 say that the testator was in a sound and disposing state of mind. It was the testator who gave instructions regarding the disposition of the properties. D.W. 4 wrote the will and read it over to Veeriah who approved of it and put his thumb impression thereon. The evidence of P.Ws. 8 and 9 is therefore clearly in conflict with the evidence of C.Ws. I and 2 and D.Ws. 1, 4, 6 and 14. The evidence of C.Ws. I and 2 is interested. It is admitted that C.W. I is related to defendant No. 1 and C.W. 2 is indebted to the first defendant to the extent of Rs. 1,400/ . As regards D.Ws. 1, 4 and 6, the trial court has remarked that their testimony is not impartial and we see no reason to take a different view as regards the effect of their testimony. So far as D.W. 1 is concerned, he appears to have khatha dealings with the first defendant. D.W. 4 admitted that he and Venkata swamy were good friends and worked as karnam and Village Munsif for 30 years. There was a case of misappropriation against Venkataswamy and D.W. 4 deposed in his favour in that case. It is in evidence that D.W. 6 is related to Ambati Veeriah who is married to the, first defendant 's niece. With regard to P.Ws. 8 and 9 the High Court has remarked that they had attested the will without any protest or adding any note Of protest though the testator, Veeriah was not in a sound state of mind at the time of the execution of the will. In our opinion, this circumstance is of no consequence and the High Court was not justified in reject 477 ing the evidence of P.Ws. 8 and 9 on this ground alone. On the other hand, there are two important features in the present case which throw a great deal of doubt as to whether the testator was in a sound and disposing state of mind at the time of the execution of the will. It is the admitted position that, the first defendant took a prominent role at the time of the execution of the will by summoning the scribe and the attesting witnesses. It is stated by D.W. 1 that the first defendant, also procured the writing materials and the black ink for affixing the thumb impressions of the witnesses. It is also admitted that the will preferred the first defendant to the mother. Normally, the testator would have bequeathed all )us property to the mother and would have also given her power to adopt a boy to perpetuate the lineage of the family. Instead the mother was given, in the will, a life interest in items 1 and 6 and the rest of the properties were given absolutely to defendant No. 1. It is undisputed that the testator was 24 years of age at the time of the execution of the will and that he was far below the average level of intelligence and understanding and nobody was prepared to offer a girl in marriage to him. There is evidence that Veeriah was "lacking in wits" and that he was employed for tending cattle. Further more, the testator was suffering from typhoid fever at the time of the execution of the will and he died a week thereafter i.e., on June 24, 1939. In exhibit B 4 it is recited that the testator was ailing for about 15 days and had become delirious. According to D.W. 4 when he arrived Veeriah was lying on a cot and he was not in a position to sit up by himself. Both D.Ws. I and 4 admit that the attesting witnesses and the scribe had all bled and waited for nearly an hour, Both P.Ws. 8 and 9 say that at the time of the execution of the will. Veeriah was in a delirious state. D.Ws, 1, 4, 6, 14 and C.W. I all admit that the testator was delirious on the day previous to the execution of the will and also subsequent to the day of the execution of the will. These witnesses, however, state that the testator, was quite all right and in normal condition on the date of the execution of the will. It is difficult to accept this part of the defence evidence. Considering that the condition of the testator became, worse and he died a week thereafter it is difficult to accept the, evidence of defence witnesses and of CW. I that the testator was, in a sound state of mind on the date of the execution of the win but he was in a delirious 'state the day before and the day after the execution of the will. In our opinion, the Subordinate Judge was right in his conclusion that the testator was physically weak and in a delirious mental state at the time of the execution of the will. We think the High Court had no justification for reversing the view taken by the Subordinate Judge on this point. It is well established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who pro 478 pound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending 7 the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner. It is observed in Williams on "Executors and Administrators", Vol. I, 13th Ed., p. 92: "Although the rule of Rom an Law that 'Qui se scripsit haeredem ' could take no benefit under a will does not prevail in the law ' of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased. " According to the decision in Fulton vs Andrew( '), "those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing, the righteousness of the transaction ". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well known observations of Baron Parke in the case of Barry vs Butlin (2). The two rules of law set out by Baron Parke are : "first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party *rites or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. " In Sarat Kumari Bibi vs Sakhi Chand & Ors., (3) the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the (1) (1875) L.R.7H.L.448. (2) (1838) 2 Moo. P.C.480,482. (3) 56 I.A. 62. 479 execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator. " This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell vs Painton(1): "The rule in Barry vs Butline (2 Moo. P.C. 480); Fulton vs Andrew [(1875) L.R. 7,H.L. 448]; and Brown vs Fisher [(1890) is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large bene fits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirma tively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will." (Lindley, L.J.). "It must not be supposed the principle in Barry v Butlin ; is confined to cases where the person who prepares the will is the person who takes the benefit under it that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed." (Davey, L.J.). It is in the light of these principles that the evidence adduced in this case will have to be considered. As we have already pointed out, there is abundant testimony in this case which proves 'beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will. It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and in procuring the writing materials for the execution of the will. There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiah 's death the first defendant brought Rattamma and Veeriah to his house and was looking after them. , The first defendant had therefore considerable influence over Veeriah and his mother Rattamma. (1) ,157,159. 480 There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding. Having regard to the cumulative effect of all the circumstances we are of opinion that the will, exhibit B 4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. We accordingly set aside the finding of the High Court on this issue. It is, however, not possible for us to finally dispose of this appeal because the High Court has not examined the second question arising in this case, namely, whether the Hindu Succession Act (Act XXX of 1956) is applicable to the case and whether defendant No. 1 was the nearest heir to succeed to the estate of the deceased Veeriah in preference to all others including the appellant, defendants 9 and 10. We therefore consider it necessary that the case should go back to the High Court for hearing the parties afresh and recording a finding on this question and to submit it to this Court within three months from the date of receipt of the record by the High Court. The parties will not be allowed to give additional evidence in the case and the High Court will submit a finding on the evidence already adduced by the parties. The appeal will be placed for further hearing before this Court after the finding is submitted by the High Court in accordance with the directions we have given. V.P.S. Appeal remanded.

It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. Where a compromise is found, not to be vitiated by fraud, Misrepresentation, 100 misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. Where the plaintiff confines his claim to account for a period up to a certain date only, he relinquishes his claim implicitly if not explicitly to the account for the subsequent period because Order II, rule 2 (3) of the Code of Civil Procedure lays down that if a person omits, except with the leave of the Court, to he sue for all reliefs to which he is entitled, he shall not afterwards sue for any reliefs so omitted.

minal Appeal Nos. 102404 of 1961, 90 Appeals by special leave from the judgment and order dated December 21, 1960 of the Allahabad High Court in Criminal Appeals Nos. 737,738 and 744 of 1960. Frank Anthony and P.C. Agarwala, for the appellant. G.C.Mathur and C.P. Lal, for the respondent. April 17. The Judgment of the Court was delivered by WANCHOO J. These are three appeals by special leave against the judgment of the Allahabad High Court. It will be convenient to dispose them of together, though they arise out of three different trials before the Special Judge, Saharanpur under section 5 (2) of the Prevention of Corruption Act, No. 2 of 1947, (hereinafter referred to as the Act), as the appellant is the same in all the appeals. The brief facts necessary for present purposes are these. Munnalal was the cashier of the Municipal Board of Hardwar and had been working as such since 1932. He was in charge of the cash and it was his duty to see that whenever the funds in his possession exceeded Rs. 4,000/ they were deposited in the treasury or the Imperial Bank at Roorkee. In 1949 there was an audit of the accounts of the Board and on May 24, 1949, the auditor found that the money received by the Board from April 20, 1949, to May 23, 1949, totalling Rs. 52,144/ had not been deposited in the treasury or the Imperial Bank at Roorkee. The matter was then reported to the Chairman of the Board, who called Munnalal and took his explanation as to the alleged embezzlement. It is said that the appellant admitted that he had spent some of the money in the .marriage of his daughter and some was used in his shop and Rs. 10,000/to 'Rs. 11,000/ had been given to the Executive Officer and the remainder was at his house. The appellant 91 was asked to make good the loss immediately but failed to do so. Thereupon the appellant was suspended and the matter was handed over to the police for investigation. The police registered a case under section 409 of the Indian Penal 'Code and after investigation prosecuted the Executive Officer as well as the appellant and his brother who was the Assistant Cashier at the relevant time. The case was transferred by the High Court to a magistrate in Meerut; but that case was not proceeded with as an application was made to withdraw it on the ground that the case was covered by section 5 (2) of the Act. So the magistrate discharged the three accused of that case. Thereafter necessary sanction was given for prosecution under section 5 (2) of the Act and four prosecutions were launched against the appellant and his brother. The Special Judge, however, took the view that the joint trial of the appellant and his brothers was not possible with respect to some of the moneys said to have been embezzled. He therefore ordered that there should be three separate trials of the appellant alone with respect to certain moneys in addition to the four trials of the appellant and his brother with respect to the remainder. That is how seven trials took place. In the present appeals we are not concerned with the other accused, namely, the brother of the appellant, as he was acquitted. We arc also notconcerned with four of the trials; we arc only concerned with three trials with respect to three sums of money in these three appeals. Appeal No. 102 is concerned with a sum of Rs. 1623/4/ , received between April 14, 1949 and May 23, 1949 and not accounted for; appeal No. 103 is concerned with a sum of Rs. 9611 9 6 received between April 20, 1949 and May 24, 1949 and not accounted for; and appeal No. 104 is concerned with a sum of Rs. 43087/ /3 received between April 20, 1949 and May 24, 1949 and not accounted for. 92 The case of the prosecution was that these sums were received by the appellant during the period mentioned above and had not been deposited either in the treasury or in the Imperial Bank at Roorkee as required by the rules. The appellant practically admitted the receipt of the money except a few items which were also found by the Special Judge to have been received by him. He also admitted that his duty was to deposit any sums above Rs. 4,000/ in the Imperial Bank or the treasury at Roorkee. He was however inconsistent in his defence as to what he did with the moneys which he had undoubtedly received. He first tried to prove that he had deposited the amounts. , In the alternative his case was that a practice had been prevailing for many years in the office of the Board under which the Executive Officer and other employees of the Board used to take advances from the cashier from time to time by sending slips and the cashier was utilised as a banker for all officers and servants of the Board, including the Executive Officer. Though these sums were supposed to be returned to the cashier (appellant) in the beginning of the next month when pay was drawn by those who had taken these unauthorised advances, in actual fact this did not always happen. The result of these advances which were sometimes of large amounts was that the money could not be deposited in the treasury according to the rules as these advances were being constantly made to the officers and servants of the Board. The appellant therefore contended that he had not converted the money to his own use and had advanced the same to the officers and servants of the Board according to the practice prevalent for a number of years and that such advances were even made to the highest officer of the Board, namely, the Executive Officer, and that the officers all knew of this practice and also knew that moneys were not being deposited in the Bank or the treasury at Roorkee as required by rules. 93 The Special Judge held on the evidence that it was proved that the moneys which were the subject matter of the charge (except for two items) had been received by the appellant. He also held that except for certain items, the appellant had dishonestly or fraudulently misappropriated or otherwise converted to his own use the property entrusted to him or under his control as a public servant or allowed any other person so 'to do. He therefore found the appellant guilty under section 5 (2) of the Act read with section 5 (1) (c) thereof. The Special Judge sentenced the appellant to five years ' rigorous imprisonment in the cases from which appeals Nos. 102 and 103 arise but ordered the sentences to run concurrently. He also sentenced the appellant in the case from which appeal No. 104 arises to five years ' rigorous imprisonment and a fine of Rs. 42,000/ . The sentence in this case was apparently not made concurrent. The appellant filed three appeals before the High Court which were heard together. The High Court agreed with the conclusions of the Special .Judge and upheld the conviction of the appellant in the three cases. In view however of the practice to which reference has been made above and which was proved to the hilt and in view also of the fact that these cases had taken almost 11 years to be disposed of, the High Court reduced the sentences in the three cases to two years ' rigorous imprisonment and made them all concurrent. It also set aside the sentence of fine as it was of the view that though the appellant was guilty he had not converted the money to his own use but had advanced most of it to the officers and servants of the Board. The present appeals by special leave are against these judgments of the High Court in the three appeals. ' Two points have been urged on behalf of the appellant and it is said that in view of those points the trial was illegal and should be .quashed. In the first place it is urged that the investigation was 94 irregular and not in accordance with section 5A of the Act. Section 5A lays down that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under the Act outside the presidency towns without the.order of a magistrate of the first class. What happened in this case was that originally the entire investigation was done by a sub inspector of police and therearter the case under sections 409/406 of the Indian Penal Code was instituted against the appellant, his brother and the Executive Officer. That case was later withdrawn and it was thereafter that sanction was granted for the prosecution of the appellant and his brother under section 5 (2) of the Act and investigation was made as required by section 5 A. But the evidence shows that this investigation merely consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file four prosecutions as already indicated on the basis of the earlier investigation. It does appears from these facts that though the letter of section 5A of the Act was complied with its spirit was not, for in reality there was no investigation by the officer authorised under that section and the real investigation was by a sub inspector of police who was never authorised. In H.N. Rishbud & Inder Singh vs The State of Delhi (1), this Court held that "section 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal". This Court further held that "if cognizance is in fact taken on a police reporting breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice". It was further held that "an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to ; 95 termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby". In view of this decision, even if there was irregularity in the investigation and section 5A was not complied with in substance, the trials cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of the illegal investigation. Learned counsel for the appellant has been unable to show us how there was any miscarriage of justice in these cases at all due to the irregular investigation. As a matter of fact on the alternative case put forward by the appellant, the substance of the prosecution case was practically admitted by him and he merely pleaded certain mitigating circumstances. Learned counsel for the appellant however drew our attention to the State of Madhya Pradesh vs Mubarak Ali. (1) In that case an objection was taken before the trial began before the Special Judge that the investigation had been carried on in breach of section 5A of the Act. The matter went before the High Court and it directed that in order to rectify the defect and cure the illegality in the investigation, the Special Judge should have ordered the Duputy Superintendent of Police to carry on the investigation himself while the case remained pending in the court of the Special Judge. That order of the High Court was brought in appeal to this Court, and the appeal was dismissed. This case in our opinion is of no assistance to the appellant, for there the objection was taken at the earliest stage before the trial began and it was in those circumstances that the trial was stayed till proper investigation was completed and a proper report made thereafter for the prosecution of the accused of that case. In the present cases no objection was taken at the trial when it began and it was allowed to come to an end. In these circumstances the ratio of Mubarakali 's case (1) cannot apply and the decision in Rishbud 's case (2) would apply. The appellant therefore cannot say that the trial was (1) [1959] supp. 2 S.C.R. 201. (2) [L955] 1 section C.R. 1150 96 vitiated unless he can show that an. V, prejudice was caused to him on account of the illegal or irregular investigation. We have already remarked that no such thing has been shown in this case; nor was it possible 10 show any such thing in view of the alternative defence taken by the appellant. We therefore reject this contention. The next contention that has been urged is that there was no proper sanction in these cases and this is based on the fact that only four cases were filed before the Special Judge with of course proper sanction; but these cases were split up into seven and the argument is that there was no sanction for the remaining three cases, and two of the present appeals namely Nos. 102 and 103 are out of these split up cases. It is also urged that the sanction was not with respect to section 5 (1) (c) of the Act though it was under section 5 (2) of the Act and therefore it was insufficient to confer jurisdiction on the Special Judge to try the appellant under section 5(1)(c) read with section 5 (2). We are of opinion that there is no force in either of these contentions. It is true that the Special Judge split up the four cases before him into seven; but it is not disputed that the amounts involved in the three new cases which the Special Judge had directed for splitting up due to the difficulty of joint trial were with respect to amounts which were included in the four cases filed before him and with respect to which there was sanction. The mere fact that in view of the provisions of section 239 of the Code of Criminal Procedure the Special Judge thought it necessary to separate the trial of Munnalal with respect to certain items for which there was sanction would not mean that these cases which were directed by the Special Judge to be split up for that reason had no sanction behind it. The sanction of the original four cases would cover these three cases also which were split out of the original four cases. 97 As to the argument that there was no sanction for prosecution under section 5 (1) (c), it is clear that there is no force in it. The sanction says that the appellant had received money and misappropriated it by not crediting the same into the treasury and embezzled it and was therefore guilty of criminal misconduct and liable to prosecution under sections 409/406 and s 5 (2)of the Act. The allegations made clearly show that the sanctioning authority had section 5 (1) (e) in mind because the sanction speaks of misappropriation and embezzlement of the moneys of the Board and misappropriation and embezzlement is only to be found in section 5 (1) (c). It is argued however that section 5 (1) (c)speaks of misappropriation or otherwise conversion to his own use any property entrusted to him or under his control by a public servant for himself. It also speaks of a public servant allowing any other person to do so. But the sanction seems to show as if the appellant was to be prosecuted for converting the property to his own use. There is in our opinion no substance in this argument, for the sanction speaks of misappropriation and embezzlement and there is nothing in the words to imply that this was only with reference to conversion by the appellant to his own use. As the words of the sanction stand they would cover a case of misappropriation or conversion to his own use by the appellant himself or by allowing others to do so. We are therefore of opinion that the sanction was sufficient for the purpose of giving jurisdiction to ' the Special Judge to take cognizance of the cases out of which these appeals have arisen. This brings us to the merits of the three appeals. So far as this is concerned, learned counsel for the appellant has not urged and, in our opinion, rightly that the convictions are unjustified. The only question that he has urged is that in view of the established facts that the appellant was using the Board 's money in order to advance it to the officers 98 and servants of the Board beginning with the highest officer of the Board, namely, the Executive Officer and that the evidence as found by the High Court does not seem to establish that there was any conversion of the moneys by the appellant to his own use, this is a case in which the appellant was more sinned against than sinning. It is conceded that as the appellant was the cashier it was his duty in law to follow the rules with respect to the custody of the cash of the Board entrusted to him and if he did not do so he would be guilty. But it is urged that when the highest officer of the Board, namely, the Executive Officer was himself taking out money from the funds of the Board by sending slips to the cashier and other officers and servants of the Board were doing the same thing and this was well known, presumably also to the Chairman of the Board, it is not just that the appellant should be made to suffer when he was obliging the officers and servants of the Board and might even have felt compelled to grant the demands of the Executive Officer and other officers and servants of the Board, for he was serving under some of them. We must say that the evidence discloses, a scandalous state of affairs which was allowed to go on and even the highest officer of the Board, namely, the Executive Officer, was cognizant of this state of affairs and was himself a party to it. The appellant 's case further was that even the Chairman knew about it and was at times party to it and this may also be not incorrect. In these circumstances there is force in the contention on behalf of the appellant that he was more sinned against than stoning and that the misappropriation took place because he had to oblige these officers and servants of the Board or otherwise incur their displeasure which he could hardly do. So it is urged on behalf of the appellant that as he has already been in jail for more than ten months in the circumstances that punishment along with the fact that the trial had been prolonged for eleven years since 1949 should 99 be sufficient punishment for him. Ordinarily this Court does not interfere in the matter of sentence in appeals under article 136 but we think in the circumstances disclosed in the present appeals when the officers and servants of the Board including the highest officer were behaving as if the moneys of the Board were their private property and the misappropriation took place mainly because the appellant was obliging these officers and servants of the Board, that the sentence already undergone by the appellant would meet the ends of justice. We ought to add that Mr. Mathur who appeared for the respondent State did not feel justified and we think rightly in pressing for the confirmation of the reduced sentence passed by the High Court in appeal. We therefore dismiss the appeals with the modification that the sentence m each case is reduced to the period already undergone. The appellant, if on bail, shall be discharged from his bail bonds in respect of these appeals. Appeals dismissed. Sentence reduced.

The appellant was the cashier of the Municipal Board Hardwar. He was in charge of the cash and it was his duty to see that funds above Rs. 4,000/ were deposited 'in the treasury or the Imperial Bank. On audit it was found that money received by the Board totalling Rs. 52,144/ was not deposited as required by the rules. On complaint by the Chairman of the Board, a Sub Inspector of Police investigated the case and a case was registered under section 409 of the Indian Penal Code, But this case was withdrawn and the accused discharged on the ground that it was covered .by section 5 (2) of the Prevention of Corruption Act. Thereafter investigation was conducted by an officer as required by section 5A of the Act. But this investigation consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file a fresh prosecution on the basis of the earlier investigation. Sanction was obtained for (2) of the Act. Subsequently the four cases, in which the appellant and his brother were jointly charged were split up into 7 cases. In the three new cases only the appellant was tried. The Trial Judge found the appellant guilty unders 5 (2) read with section 5 (1) of the Act and sentenced him to undergo imprisonment and to pay fine. On appeal to the High Court, it upheld the conviction but reduced the sentence and. set aside the sentence of fine. The appellant appealed to this Court with special leave. The following points were urged in the appeal before this Court. Firstly, it was urged that the investigation 89 irregular and not in accordance. ,with section 5A of the Act in as much as the investigation was not conducted by a person authorised by that section. Secondly, it was contended that sanction was obtained only for the first four cases and no sanction was obtained for the three new cases (after splitting up the four) out of which the present appeals have arisen. It was further contended that the sanction was not with respect to section 5 (1) (C) or ' the Act though it was under section 5 (2)of the Act and therefore it was insufficient to confer ,jurisdiction on.the Special Judge to try the appellant under section 5 (1) (c) read with section 5 (2) of the Act. Held that section 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal. But this illegality wilt not vitiate the results of the trial unless it is shown that it has brought about a miscarriage of justice; neither does it affect the competence or jurisdiction of the court to try the case. In the present appeals it is not shown that there has been miscarriage of justice as a result of the illegal investigation. H.N. Rishbud & Inder Singh vs State of Delhi, [1955] I S.C.R. 1150 followed State of Madhya Pradesh vs Mubarak All [1959] Supp. 2 S.C.R. 201 distinguished. The mere fact that in view of the provisions of section 239 of the Code of Criminal Procedure, 1898, the Special Judge thought it necessary to separate the trial of the appellant with respect to certain items for which there was sanction would not mean that these cases had no sanction behind it. The sanction of the original four cases would cover these three cases also. The allegations made in the sanction show that the sanctioning authority had section 5 (1) (c) in mind because the sanction speaks of misappropriation and embezzlement of the 'money of the ' Board and misappropriation and embezzlement is only to be found in section 5 (1) (c). As the words of the sanction stand they would cover a case of misappropriation or conversion to Ins own case by the appellant himself or by allowing others to do so. The sanction is sufficient for the purpose of giving jurisdiction to the Special Judge to take cognizance of the cases out of which the present appeals have arisen.

Appeal Nos. 507375/1985 From the Judgment and Order dated 9.9.1985 of the Kerala High Court in T.R.C. Nos. 29, 30 and 31 of 1985. A.S. Nambiar, Mrs. Shanta Vasudevan, P.K. Manohar and C.N. Sreekumar for the Appellants. B.P. JEEVAN REDDY, J. Civil Appeal Nos. 5073 75185. These appeals arise from a common judgment of the Kerala High Court in a batch of three tax revision cases. The question relates to the interpretation of Section 8(2A) of the . 658 In exercise of the power conferred upon it by Section 10 of the Kerala Sales Tax Act, the State of Kerala issued a notification RS0415 of 1971 providing for "an exemption in respect of the tax payable under the said Act in regard to the turn over of the sales of newsprint by the newsprint plant in the State for the period of two years from the date of starting production of the newsprint by the said plant. ' The appellant Hindustan Paper Corporation Limited entered into an agreement with the Government of Kerala in the year, 1974 reiterating the said exemption. The relevant portion of the agreement reads thus: "The Government of Kerala, with a view to help the project to tide over the difficulties in the initial stages and to establish itself, agree to exempt the turnover relating to the sale, of the products by the corporation from the payment of sales tax for a period of two years from the date of starting of production of the newsprint. " A major portion of the newsprint manufactured at the factory located within Kerala is sold in the course of inter state trade and commerce. During the assessment years relevant to the period of the two years from the date of commencement of production at the Kerala Factory, the appellant claimed exemption not only from the State sales tax by virtue of the aforesaid notification and agreement but also from Central Sales Tax under and by virtue of sub section (2A) of Section 8 of the . The Sales Tax Officer accepted the claim under the State Sales Tax Act but rejected the claim under the . The appeals preferred by the appellant to the Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal were dismissed whereupon it approached the High Court by way of revisions under Section 41 of the State Sales Tax Act. The High Court too disagreed with the contentions urged by the appellant and dismissed the tax revision cases. Hence, these appeals. The dispute between the parties, in brief, is thus: the appellant says that exemption granted to it by the aforesaid notification issued under the Kerala Sales Tax is a general exemption within the meaning of Section 8(2A) and, therefore, the inter state sales effected by it are equally exempt from Central Sales Tax by virtue of Section 8(2A). On the other hand, the 659 case of the Government of Kerala is that the exemption granted to the appellant under the State Sales Tax Act is not a general exemption but a conditional one; further the exemption operates only in certain specified circumstances. Accordingly, they say, the provision contained in Section 8(2A) does not go to exempt the inter state sales of the appellant. The inter state sales effected by the appellant are those failing under Section 3(A) of the . The liability to pay Central Sales Tax on inter state sales arises by virtue of sub section (1) of Section 6. Sub section (1A) of Sec. 6 says that a dealer shall be liable to pay tax under the Central Act on sale of goods effected by him in the course of inter state trade or commerce notwithstanding that no tax would have been leviable under the Sales Tax law of the appropriate State if such sale had taken place inside the State. Sub section (1) of Section 8 prescribes the rate at which the Central Sales Tax is chargeable where the goods are sold to persons and authorities mentioned therein while sub section (2) prescribes the rate in cases other than those falling under sub section (1). Sub section (2A) of Section 8, which is material for our purpose reads thus: "(2A) Notwithstanding anything contained in sub section (lA) of Section 6 or sub section (1) or clause (b) of sub section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent. (Whether called a tax or fee or by any other name), shall be nill or, as the case may be, shall be calculated at the lower rate. Explanation: For the purpose of this sub section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in special circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods. " 660. What does sub section (2A) says? It opens with a non obstante clause which gives it an overriding effect over the provisions contained in Sections (lA) and over sub section (1) as well as clause (b) of sub section (2) of section 8. b section seeks to provide exemption to a dealer with expect to his turnover in so far as his turnover or any part thereof relates (a) sale of any goods, the sale or, as the case may be, the purchase of which is under the sales tax law of the appropriate State, exempt from tax generally or (b) where his turnover or any part thereof relates to the sale of any goods the sale or purchase of which is subject to tax generally at a rate which is lower than four per cent. In a case covered by (a) the Central Sales Tax will be nil while in a case falling under (b), Central Sales Tax shall he chargeable at the same lower rate at which the State sales tax is charge able. The explanation appended to sub section seeks to define the words "exempt from tax generally. " The explanation is couched in negative terms. It says that for the purposes of the said sub section, a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the State Sales Tax law if (i) under the State law the sale or purchase of such goods is exempt only in specified circumstances or (ii) if under the ' State law the sale or purchase of such goods is exempt only under specified conditions or (iii) if under the State law the tax is levied on the sale or purchase of such goods at specified stages or (iv) where under the State law the tax is levied otherwise than with reference to the turnover of the goods. The sole question in this case is whether the exemption granted under the aforesaid notification exempting the produce of a factory manufacturing newsprint from the State sales tax for a period of two years from the date of commencement of production in the factory can be called an exemption from tax generally. To put it differently, the question is whether the said exemption is one operative only in specified circumstances or whether the exemption is one which is operative only under specified conditions in which case it cannot be said to be an exemption "generally. The learned counsel for the appellant relies upon the decision of this Court in Pine Chemicals Limited vs Assessing Authority; , , a decision rendered by section Ranganathan, V. Ramaswami and N.D. Ojha, )J. According to him, the said decision is conclusive on the question. 661 The counsel for the State of Kerala, on the other hand, seeks to distinguish the said decision. According to him, the said decision does not consider the precise question and aspect which really, arises in these .appeals. The learned counsel for the State of Kerala, Sri G. Vishwanath lyer, puts his case thus: if one is asked whether the exemption granted under the aforesaid notification is a general exemption, his obvious answer would be, No. It is not an exemption which operates generally but an exemption limited to two years from the date of commencement of the production of newsprint in the factory. Similarly, if a person is asked whether newsprint is exempt generally from the State sales tax in Kerala, none would answer in the affirmative. He would say that the sale of newsprint in Kerala is exempt only in certain circumstances or subject only to a condition viz., that newsprint is produced within two years of the commencement of the production in the factory located in Kerala. It is, therefore, idle to contend, says Sri lyer, that the sale of newsprint within Kerala is exempt generally from the State sales tax. In such a case, says the counsel, the provision contained in sub section (2A) does not come into operation and the inter state sales of such newsprint cannot be said to be exempt from the Central Sales Tax. Mr. lyer further says that the exemption notification issued by the Government of Kerala under Section 10 of the State Act does not exempt newsprint from the State sales tax al together. It grants exemption only in a specified situation viz., in respect of the newsprint produced within the period of two years from the date of commencement of production by a factory manufacturing newsprint in the State of Kerala. The exemption would thus operate for different periods in the case of different assessees inasmuch as the date of commencement of production by all the manufacturers of newsprint may not be the same. Moreover, the benefit of the said notification is available only where a factory goes into production after the commencement of the said notifica tion, says Sri lyer, He elaborates his submission saying that the exemption granted by the said notification is only in favour of certain dealers or a class of dealers, in certain circumstances and is not in the nature of a general exemption. An exemption given under Section 10 of the State Act with reference to dealers or a class of dealers i.e., referable to clause (ii) of sub section (1), says the counsel, can never be called a general exemption nor can it be characterised as an exemption operating 'generally '. A general exemption, according to the learned counsel, means a general, unqualified/unconditional exemption. Counsel says that the decisions of 662 this Court in Indian Aluminum Cables vs State of Haryana 38 S.T.C. 108 and in Industrial Cables Corporation V. Commercial Tax Officer 35 S.T.C. 1 support his contention. The learned counsel places strong reliance upon the object and reasons appended to the bill proposing the substitution of sub section (2A) in the year 1972. The objects and reasons relied upon by the learned counsel read thus: "Clause 5 Sub Clause (a) of this clause seeks to substitute a new sub section for the existing sub section (2A) of Section 8 of the Principal Act. The new sub section seeks to bring out more clearly that an exemption or lower rate of levy under the local sales tax law of the appropriate State would be available in respect of an inter state sale of goods only if such exemption or lower levy is available generally with reference. to such goods or such class of goods under the local sales tax law. " According to Sri Iyer the said statement of objects and reasons puts the meaning, purpose and object of the sub section beyond any doubt. On the other hand, Sri A.S. Nambiar, learned counsel for the appellant corporation submits, adopting the reasoning in Pine Chemicals that the circumstances or conditions contemplated by the explanation to sub section must be the circumstances and conditions attaching to the sale and not to the dealer. The exemption notification merely serves to identify the dealer and the goods entitled to exemption but it does not lay down any circumstances or conditions attaching to the sale of goods (Newsprint). Sri Nambiar says that once the goods are identified viz., that it is a newsprint manufactured by a factory within two years of its commencing production, there is no further condition attaching to the exemption; the goods are exempt generally. It is not a case where the exemption is hedged in by certain conditions nor is it a case where the exemption operates only in certain circumstances. The learned counsel submits that the decisions of this court in Indian Aluminum and Industrial Cables have been considered and explained by this Court in Pine Chemicals and, therefore, the principle of those decisions cannot be read as supporting the State 's submissions. While we see the force in the submissions of Sri Iyer, learned counsel for the State of Kerala, we cannot give effect to the same in the light of 663 the binding decision in Pine Chemicals which deals with an almost similar exemption notification. The Government of Jammu & Kashmir had issued orders providing for exemption "from the State sales tax both on raw materials and finished products for a period of five years from the date the unit goes into production." Question had arisen whether the said exemption attracts the exemption contained in Section 8(2A) of the Central Act? The said question was answered in the affirmative by V., Ramaswami, J. speaking for the Bench. The learned Judge examined the scheme of sub section (1) and (lA) of Section 6 as well as of sub sections (1), (2) and (2A) of Section 8 and then observed: "On a plain reading of Section 8(2 A) of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intrastate sale or purchase of a commodity by the dealer is exempt from tax generally or subject to tax generally at a rate which is lower than 4 per cent than his liability to tax under the when such commodity is sold on inter state trade would be either nil or as the case may be shall be calculated at a lower rate. Explanation states as to when the sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of 'a dealer ' which term would include 'any dealer ' or 'any class of dealers ' The existence or otherwise of the three Limitations under the 664 explanation above referred to on claiming exemption under Section 8(2 A) of the will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods. Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8(2 A) of the . The learned Advocate General for the State contended that the conditions that the industr y should have been set up and commissioned subsequent to the Government Orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under Section 8(2 A) of the . We are unable to agree with this submission of the learned counsel for the State. The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of the exemption is claimed. These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. We have already held that not only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy, even the sub 665 sequent sales would be covered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at 'specified stage" does not arise for consideration. This is not also a case where the exemption is with reference to something other than the turnover of the goods." (emphasis added) The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption concerned in those cases was clearly a conditional one. The learned Judge pointed out that the exemption concerned therein was with respect to "sales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the (9 of 1910), of goods for use by it in generation or distribution of such energy." The learned Judge pointed out that the two conditions mentioned in the said notification related to purchaser company being a licensed undertaking supplying electrical energy to the public and further that the goods sold to it are for use by the said undertaking in generation or distribution of such energy. Following the decision in Pine Chemicals, we must and accordingly we do allow these appeals. No orders as to costs. N.V.K. Appeals allowed.

The State of Kerala issued Notification RSO 415 of 1971 under Section 10 of the Kerala General Sales Tax Act providing for an exemption in respect of tax in regard to the turn over of the sales of newsprint for a period of two years from the date of starting production of the newsprint plant. The appellant entered into an agreement with the State Government in 1974 giving the said exemption. A major portion of the newsprint manufactured at the factory located within the State was sold in the course of inter state trade and commerce, and during the assessment years relevant to the period of the two years from the date of the commencement of the production, the appellant claimed exemption not only from the State Sales Tax, by virtue of the 1971 Notification and the 1974 agreement but also from the Central Sales Tax under and by virtue of sub section (2A) of Section 8 of the . The Sales Tax Officer accepted the claim under the State Sales Tax Act but rejected the claim under the . Appeals preferred by the appellant to the Appellant Assistant Commissioner and the Sales Tax Appellant Tribunal were dismissed, and when the appellant approached the High Court by way of revision under Section 41 of the State Sales Tax Act the High Court also dismissed the revisions petitions. 656 In the appeals to this Court it was contended on behalf of the appellant relying on Pine Chemicals Limited vs Assessing Authority, [199] 2 S.C.C. 683 that the exemption granted to It by the 1971 State Government notification Issued under the Kerala Sales Tax Act Is a general exemption within the meaning of Section 8(2A) and, therefore, the inter state sales effected by it are equally exempt from Central Sales Tax by virtue of Section 8(2A). The State contested the appeals by contending that the exemption granted to the appellant under the State Sales Tax is not a general exemption but a conditional one, and that the exemption operates only in certain specified circumstances, and that the provision contained in Section 8(2A) does not go to exempt the inter state sales of the appellant. On the question whether the exemption granted under the 1971 State notification exempting the produce of the appellant factory manufacturing newsprint from the State Sales Tax for a period of two years from the date of commencement of production in the factory can be called An exemption from tax 'generally '. Allowing the appeals, this Court, HELD:1. The inter state sales effected by the appellant are those failing under Section 3(a) of the Central Sales Tax Act. The liability to pay Central Sales Tax on inter state sales arises by virtue of sub section (1) of Section 6. Sub section (2A) of section 8 seeks to provide exemption to a dealer with respect to his turnover. The explanation appended to the sub section is couched in negative terms and seeks to define the words 'exempt from tax generally", and indicates when a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the State Sales Tax Law. [659 B, 660 B C] 2.An inter state sale or purchase of a commodity shall not be deemed as exempt from State Tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are with reference to the transaction of sale or purchase. [663 F G] 657 3.The existence or otherwise of the aforesaid three limitations on claiming exemption the explanation under Section S(2 A) of the will have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods. [663 H, 664 A] 4.The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of Section 8(2 A). [664 E] 5.The conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. [664 G] Pine Chemicals Limited vs Assessing Authority, ; , explained and followed. [660 H] Indian Aluminum Cables vs State of Haryana, 38 S.T.C. 108, Industrial Cables Corporation vs Commercial Tax Officer 35 S.T.C. 1, distinguished. [662 A]

N: Criminal Appeal No. 273 of 1979. Appeal by Special Leave from the Judgment and Order dated 14 8 1978 of the Punjab and Haryana High Court in Crl. A. No. 234/78 and Murder Reference No. 3/78. H. K. Puri, Amicus Curiae for the Appellant. R. section Sodhi and Hardev Singh for the Respondent. The following Judgments were delivered: SARKARIA, J. While reserving my own opinion on the various question raised in this case including the one with regard to the scope, amplification and application of Section 354(3) of the Code of Criminal Procedure, 1973, I would, in agreement with my learned brother, direct that the records of this case be submitted to the Hon 'ble the Chief Justice, for constituting a larger Bench which would resolve the doubts, difficulties and inconsistencies pointed out by my learned brother in his order, particularly, in its last paragraph. KAILASAM, J. This special leave petition is filed by Bachan Singh son of Saudagar Singh from jail against the conviction and sentence imposed on him by the High Court of Punjab and Haryana. This Court ordered notice to the State and heard the counsel for the petitioner and the State and granted special leave. The appellant was tried by the Sessions Judge, Ferozepur, on three charges of causing the death of three persons Desa Singh the son and Durga Bai and Veeran Bai daughter of Hukam Singh and causing grievous injuries to Vidya Bai, another daughter of Hukam Singh, at about 12 midnight between the 4th and 5th July, 1977, in the courtyard of the house of Hukam Singh. The learned Judge found the appellant guilty of the three charges under section 302, I.P.C. and sentenced him to death on each count. He also found him guilty under section 326, I.P.C., for causing grievous hurt with a sharp cutting weapon to Vidya Bai and sentenced him to three years ' rigorous imprisonment and a fine of Rs. 500/ . Against the convictions and sentences passed the appellant preferred Criminal Appeal No. 234 of 1978 to the High Court. The appeal along with the Reference No. 3 of 1978 made by the trial Judge for confirmation of sentence of death were heard together by the High Court. The High Court rejected the appeal and confirmed the convictions and sentences passed on the appellant. The case for the prosecution briefly is that the appellant Bachan Singh was convicted under section 302 I.P.C. for the murder of his wife 1197 and sentenced to imprisonment for life. After undergoing the term of imprisonment he was released. After the release he lived with his cousin(?) Hukam Singh P. VV. 5 for about six months. Hukam Singh 's wife and son objected to the appellant living in their house. A few days prior to the occurrence Hukam Singh and his wife went to Nainital in connection with the marriage of their son Desa Singh. On the night of the occurrence 4th July, 1977 Desa Singh son of Hukam Singh, Durga Bai, Veeran Bai and Vidya Bai the daughters of Hukam Singh were in the house. After taking their meals the, three daughters slept in the inner courtyard, Durgabai in one cot and Veeran Bai and Vidya Bai in another cot near each other. Desa Singh, the son of Hukam Singh, and the appellant slept in the outer courtyard on two separate cots near each other. At about midnight Vidya Bai P.W. 2 was awakened by the alarm and saw the appellant inflicting Kulhari (axe) blow on the face of her sister Veeran Bai. When Vidya Bai tried to get up the appellant gave Kulhari blow on her face and ear. She was unable to speak and fell unconscious. Diwan Singh P.W. 12 who was sleeping at a distance of 3/4 Karms from the cots of Desa Singh and the appellant also woke up on hearing a shriek. He saw the appellant striking Desa Singh with a Kulhari. He raised an alarm and Gulab Singh P.W. 3 who was sleeping at a distance of SO feet from the cot of Desa Singh woke up and saw the appellant hitting Desa Singh on the neck with a Kulhari. On an alarm being raised by the witnesses the appellant threw the Kulhari in the courtyard and ran, away. Gulab Singh and Diwan Singh P.Ws. 3 and 12 gave a chase to the appellant but could not apprehend him. Soon after Kanshi Singh P.W. 4 and others arrived at the place of occurrence and heard from the witnesses the detail, of the occurrence. A tractor was brought in which Durga Bai, Veeran Bai and Vidya were taken to the hospital at Fazilka. The Doctor who examined the dead bodies and the injured person gave the necessary certificates. He also sent information to the A.S.I. P.W. 13 who went to, the hospital and recorded the statement from P.W. 12 on the basis of which the F.I.R. was recorded at the police station at 4 20 a.m. On 5th July, 1977. The police officer conducted the inquest and preceded with his investigation. The courts below found that the medical evidence fully corroborated the testimony of the injured eye witness P.W. 2 and two other eye witnesses P.Ws. 3 and 12 and found that the prosecution had established its case beyond reasonable doubt. The trial court and the High Court on a consideration of the evidence found that P.W. 2 Vidya Bai the daughter of Hukam Singh 1198 who was sleeping along with her sisters in the house and suffered serious injuries, saw the attack by the appellant when she woke up. There is evidence that it was a moonlit night and there was sufficient light by which the assailant would have been identified. The trial court accepted the evidence of P.W. 2. The High Court also found that the evidence of P.W. 2 is trustworthy. Both the courts below also relied on the testimony of the other two eye witnesses P.Ws. 3 and 12. P.W. 3 Gulab Singh was sleeping at a distance of 50 Karmas and got up after hearing the alarm and rushed to the scene. P.W. 12 was sleeping at a distance of 15 feet of Desa Singh. The trial court as well as the High Court accepted the testimony of the two eye witnesses S P.Ws. 3 and 12. On a consideration of the evidence of the eye witnesses the High Court observed that the "evidence provided by the eye witnesses is of very high order in the case and was rightly accepted by the learned trial Judge. " We have no hesitation in agreeing with the concurrent findings of the courts below and holding that the prosecution has proved beyond all reasonable doubt that the appellant caused the death of the three deceased Desa Singh, Durga Bai and Veeran Bai and grievous hurt to Vidya Bai P.W. 2. Regarding the sentence, the High Court observed "The objection by Desa Singh, his mother and other family members was of a triffing nature on which the appellant acted in a very cruel manner. The victims had no cause to suspect ' the intentions of the appellant and went to sleep. Taking advantages of the situation, when the victims could not defend, the appellant killed three and seriously wounded the fourth. It was by sheer luck that Vidya Bai survived. The manner in which the appellant perpetrated these crimes by killing these persons in their sleep is heinous. Under these circumstances, the case of the appellant for reduction of the sentence cannot be considered and in our view the sentence awarded by the learned trial Judge was the only appropriate sentence. " The crime is diabolic and very cruel. Hukam Singh, a cousin, accommodated the appellant in spite of the protests of his wife and son. While enjoying the hospitality at the dead of night when nobody had any suspicion the appellant committed in the most dastardly manner the crime. Desa Singh was sleeping in a cot by the side of the appellant. The appellant at the dead of night while the others were sleeping unsuspectedly hacked three persons to death. It is only providential that the third daughter Vidya Bai escaped. The crime in our view is one of the foulest that could be imagined and we are in entire agreement with the courts below about their assessment of the gravity of the crime the only question for consideration is whether 1199 the facts found would be special reasons for awarding the death sentence as required under sec. 354(3) of the Code of Criminal Procedure 1973. Section 302 I.P.C. and sub sec. (3) of section 354 of the Cr. P.G 1973 deal with the imposition of death sentence. Section 302 I.P.C. provides: "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. " Sub sec. (3) of sec. 354 of the Code of Cr. Procedure, 1973, enacts. "When the conviction is for an offence punishable With death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the Judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. " Before the amendment of sec. 367(S) Cr. P.C. by the Criminal Procedure Code (Amendment) Act, 1955 (Act XXVI of 1955) which came into force on 1st January, 1965, on a conviction for an offence punishable with death if the Court sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. Section 367(5) of the Code of Criminal Procedure before its amendment by Act 26 of 1955 provided that "if the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall, in its judgment state the reasons why sentence of death was not passed. " This sub section was construed before the Amendment Act, Act 26 of 1955 as meaning that the extreme sentence is the normal sentence and the mitigated sentence is the exception. In Dalip Singh vs State of Punjab,(1) it was held that in a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty. In Vadivelu Thevar vs The State of Madras,(2) this Court expressed its view that the question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate (1) A.I.R.1953 S.C.364 (2) A.I.R.1957 S.C.6I4. 1200 the enormity of the crime. If the Court is satisfied that there are such mitigating, circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law. These two cases were rendered in relation to offences which were committed before the Criminal Procedure Code Amendment Act 26 of 1955 was enacted. The law therefore prior to the amendment was that unless there are extenuating circumstances the punishment for murder should be death and not imprisonment for life. By the Amendment Act 26 of 1955 a new sub section, sub section (5), was substituted for the former sub section (S) by Act 26 of 1955 which does not contain the provision making it incumbent for a Judge to record his reasons for imposing a lesser penalty. After the amendment which omitted the provision requiring the recording of reasons for imposing the lesser penalty, the Court is not under a statutory duty to record the reasons. Still as the Courts have to impose one of the two penalties, namely death or imprisonment for life, the Courts will have to exercise their judicial discretion in deciding which of the two penalties should be imposed. The result is that after the amendment though the Court is not required to record the reasons for imposing the lesser penalty it was bound to exercise its discretion judicially. To show that the discretion has been judicially exercised, reasons are given for imposing the particular sentence. This makes it necessary for the court to give its reasons for imposing the particular sentence though by the Amending Act the court was not required to` give reasons for not imposing any punishment other than death. The effect of the amendment has been stated by this Court in Raghubir Singh vs State of U.P.,( ') that after the amendment of section 367(S), Criminal Procedure Code, by Act 26 of 1955 the discretion of the court in deciding whether to impose the sentence of death or of imprisonment for life has become wider. By the Code of Criminal Procedure, 1973 (Act 2 of 1974) subsection (3) to section 354 was introduced regarding the contents of the judgment relating to imposition of a sentence of death or imprisonment for life or imprisonment for a term of years. Sub sec. (3) which deals with the conviction for an offence punishable with death or in the alternative with imprisonment for life or for a term of years in sentencing a person on conviction for such an offence the judgment is required to state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence. When the court in its discretion imposes either a sentence (1) [1972] 3 S.C.C.79 1201 of death or imprisonment for life or for imprisonment for a term of years, the Court is required to record reasons for imposing one or the other sentence which it can legally impose. As the Court has a discretion to award a sentence of death or imprisonment for life or imprisonment for a term of years and as the discretion is very wide the law requires that reasons shall be stated for awarding one or other of the sentences. In the case of an offence under sec. 132, I.P.C., the punishment provided for is death or imprisonment for life or imprisonment for 10 years and fine. There are other offences like the one under section 131 I.P.C. which is punishable with imprisonment for life or imprisonment for 10 years and fine. Sections 121(a), 122, 125, 128, 130, 131 IPC and other sections provide for the punishment of imprisonment for life or imprisonment for a term of years. In such cases under section 354(3) the Court is required to state reasons why one or other of the sentences is imposed. In the case of offences punishable with death the sub section requires that special reasons for imposing such sentence, should be given. This requirement makes it clear that where the punishment provided for is death or imprisonment for life the sentence that should be imposed as of rule should be one cf imprisonment for life. But if the offence is of such a grave nature that the court thinks the higher of the penalties, namely the death sentence, should be imposed special reasons should be given. Thus while the legislature retained the imposition of death sentence it laid down that if the court awarded the death sentence it should Furnish special reasons. In Chapter 27 which relates to 'Judgments ' there are other sections which require that reasons should be given for imposing or not imposing a particular sentence. Sub section (4) to section 354 requires that when the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence. Such reasons need not be recorded if the sentence is one of imprisonment till the rising of the court or unless the case was tried summarily under the provision of Cr. P.C. Section 361 requires that when the court could have dealt with (a) an accused person under section 360 or under the provisions of the Probation of offenders Act, 1958, or (b) a youthful offender under the . Or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so. This section also requires special reasons to be given if the court has not dealt 1 with the accused under the provisions mentioned The object of requiring the reasons to be given regarding the sentence could be 1202 found in the Law Commission 's Report and the Report of the Joint Parliamentary Committee. The Law Commission in Vol. I, 35th Report on the Capital Punishment expressed that a considerable body of opinion is in favour of a provision requiring tile Court to state its reasons for imposing the punishment either of death or imprisonment for life. The Commission was of the view that this would be a safeguard to ensure that the lower courts examine the case as elaborately from the point of view of sentence as from the point of view of guilt and that it would provide good material at the time when a recommendation for mercy is to be made by the court or a petition for mercy is considered and that it would increase the confidence of the people in courts by showing that the discretion is judicially exercised. It would also facilitate the task of High Court in appeal or in proceedings for confirmation in respect of the sentence (where the sentence awarded is that of death), or in proceedings in revision for enhancement of the sentence (where the sentence awarded is one of imprisonment for life). In its 41st Report on the Cr. P.C. the Law Commission recommending the amendment also observed that there were certain offences for which the Penal Code prescribes the punishment as death or in the alternative life imprisonment or imprisonment for a term of years and therefore the amendment recommended should cover these cases also. The Joint Committee of Parliament added that a sentence of death is the extreme penalty of law and it is but fair that when a court awards, that sentence in a case where the alternative sentence of imprisonment for life is also available, it should give special reasons in support of the sentence. For giving effect to the recommendation of the Law Commission and the Joint Committee of Parliament sub section (3) to section 354 was amended in the present form. The object the amendment therefore is to insist on the lower courts to examine the case as elaborately from the point of view of sentence as from the point cf view of guilt and state its reasons for imposing the sentence which would help the High Court in discharging its functions particularly in confirming a sentence of death or enhancing a sentence of imprisonment for life to death. This object is further sought to be achieved by the introduction of sub section 2 to section 235 which provides an opportunity of hearing the accused on the question of sentence. The provision requiring special reasons for awarding death sentence makes it also clear that the normal sentence when punishment of death or imprisonment for life could be awarded is only imprisonment for life and if the court imposes death sentence it should give special reasons. 1203 The development of law regarding the imposition of death sentence call be summarised as follows. While before the Amending Act 26 of 1955 was introduced the normal sentence for an offence of murder was death and that the lesser sentence is the exception, after the introduction of sub section (5) to section 367 by Act 26 of 1955 it was not obligatory for the Court to state the reasons as to why the sentence of death was not passed. By the amendment the discretion of the Court in deciding whether to impose a sentence of death or imprisonment for life became wider. The court was bound to exercise its judicial discretion in awarding one or the other of the sentences. By the introduction of section 354(3) the normal sentence is the lesser sentence of imprisonment for life and if the sentence of death is to be awarded special reasons will have to be recorded. In other words, the court before imposing a sentence of death should be satisfied that the offence is of such a nature that the extreme penalty is called for. The decisions rendered by this Court after the introduction of the amendment to S.354(3) by Act 2 of 1974 have reiterated this position. In Balwant Singh vs State of Punjab(1) this Court summing up the position observed that under section 354(3) of the Cr. P.C., 1973, the Court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. This view was reiterated by this Court in Ambaram vs The State of Madhya Pradesh.(2) In Sarveshwar Prasad Sharma vs State of Madhya Pradesh(3) it was observed that this Court has in several cases indicated guidelines in this problem area of life and death as a result of judicial verdict but none of these guidelines can be cut and dry nor exhaustive and each case will depend upon the totality of the facts and circumstances and other matters revealed. The validity of imposition of death sentence was challenged in the ground that the sentence puts an end to all Fundamental Rights guaranteed by clauses (a) to (g) of sub clause (1) of article 19 of the Constitution and therefore the law with regard to capital sentence is unreasonable and not in the interest of the general public. It was further contended that the discretion invested in the Judges to impose capital punishment is not based on any standard or policy required by the Legislature for imposing capital punishment in preference to (1) [1976]2 S.C.R. 684 (2) [1976]4 S.C.C. 298 (3) [1978]1 S.C.R. 560 1204 imprisonment for life. Further it was submitted that the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by article 14 of the Constitution. Lastly, it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life and therefore article 21 is violated. A Constitution Bench of this Court in Jagmohan Singh vs The State of U.P.( ') rejected all these contentions. It was held that the deprivation of life is constitutionally permissible if that is done according to procedure established by law and that it cannot be held that capital sentence is per se unreasonable or not in the public interest. It was further held that the impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter cf sentence is liable to be corrected by superior Courts. The exercise of judicial discretion on well recognised principles is, in the final: analysis, the safest possible safeguard for the accused. The challenge under article 14 was also negatived on the ground that the facts and circumstances of a crime are widely different, and, since a decision of the court as regards punishment is dependent upon a consideration of all the facts and circumstances, there is hardly any ground for a challenge under article 14. The Court also negatived the plea that the provisions of law do not provide a procedure for trial of factors which are crucial for making the choice between the capital penalty and imprisonment for life. The Court rejected all the challenges against the award of death sentence on the ground of violation of the provisions of the Constitution. It also upheld the investment of wide discretion in the matter of fixing the degree of punishment on the Judges as the exercise of judicial discretion on well recognised principles is the safest possible safeguard for the accused. The Constitution Bench delivered its judgment on the 3rd October, 1972. Subsequently amendment to the Code of Criminal Procedure, 1973, (Act 2 of 1974) came into force on 1st April, 1974. The only change by the new Act is the introduction of section 367 (S) of the Criminal Procedure Code which provides that the judgement shall state the special reasons where a sentence of death is awarded for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years. The requirement that the courts should state the special reasons for awarding the death sentence would indicate that the normal sentence for an offence punishable either with death or with imprisonment for life is imprisonment for life and that if the court considered (1) ; 1205 that sentence of death is appropriate on the particular facts of the case It should give special reasons. Apart from the emphasis that the normal sentence is imprisonment for life and that special reasons should be given for awarding the death sentence there is no further alteration in the law relating to awarding of the death penalty. As already noticed the effect of the amendment was considered by this Court in , and ; (supra) and it was held that the awarding of sentence other than the sentence of death is the general rule now only special reasons, that is to say, special facts and circumstances in a given case will warrant the passing of the death sentence. A recent decision of this Court Rajendra Prasad 's case in Cr. Nos. 512, 511 and 513 of 1978 was delivered on 9th February, 1979.(1) The decision by the majority was delivered by Krishna Iyer J. held that "special reasons" necessary for imposing the death penalty must relate not to the crime as such but to the criminal. It further held that death sentence can be awarded only in certain restricted categories The tests that are prescribed are to find out whether the murderer holds out a terrible and continuing threat to social security in the setting of a developing country and poses a grave peril to society 's survival. The other circumstances which would justify imposition of death sentence are when an economic offender intentionally mixes poison in drugs, professionally or wilfully adulterates intoxicating substances injuriously, and knowingly or intentionally causes death for the sake of private profit or when a murderous band of armed dacoits intentionally derail a train and large number of people die in consequence or when the style of violence and systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death. Likewise when a murderer is so hardened and so blood thirsty that within the prison and without, he makes no bones about killing others or carries on a prosperous business in cadavers, then he becomes a candidate for death sentence. I have read through the judgment of the Court with utmost care. The decision is in many respects contrary to the law laid down by the Constitution Bench of this Court in Jagmohan Singh 's case. The Court has proceeded to make law as regards the conditions that are necessary for imposition of a sentence of death under section 302 I.P.C. It has proceeded to canalisation of sentencing discretion and has embarked on evolving working rules on punishment bearing in mind the enlightened flexibility of social sensibility. In doing so I feel the court has exceeded its powers conferred on it by law. (1) ; 1206 To substantiate my statement, I proceed to give a few extracts from the judgment. At the outset of the judgment it is stated that the precise issue before it was "the canalisation of the sentencing discretion in a competing situation. .Therefore this jurisprudential exploration, within the framework of section 302 I.P.C., has become necessitous, both because the awesome 'either/or ' of the Section spells out no specific indicators and law in this fatal area cannot afford to be conjectural". "The flame of life cannot flicker uncertain; and so section 302 I.P.C. must be invested with pragmatic concreteness that inhibits ad hominem responses of individual judges and is in penal conformance with constitutional norms and world conscience." "Within the dichotomous frame work of section 302 I.P.C., upheld in Jagmohan Singh, we have to evolve working rules of punishment bearing the markings of enlightened flexibility and societal sensibility.". . "Therefore, it is no heresay to imbibe and inject the social philosophy of the Constitution into the Penal Code to resolve the tension between the Past and the Present.". . "That is the essay we undertake here". "But if legislative undertaking is not in sight judges who have to implement the code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to possess the flavour of law making". "This Court 's tryst with the Constitution obligates it to lay down general rules, not a complete directory, which will lend predictability to the law vis a vis the community and guide the judiciary in such a grim verdict as choice between life and death.". . "Therefore, until Parliament speaks, the court cannot be silent.". . "This Court must extricate, until Parliament legislates, the death sentence sector from judicial subjectivism and consequent uncertainty.". "Having stated the area and object of investigation we address ourselves to this grave penological issue purely as judges deciding a legal problem, putting aside vie vs, philosophical or criminological, one holds. But law, in this area, cannot go it alone; and cross fertilisation from sociology, history, cultural anthropology and current national perils and developmental goals and, above all constitutional currents, cannot be eschewed. " The above are few of the passages in the "prolix and diffuse" judgment as the learned Judge has chosen to call it. The passages clearly indicate that the Court in the absence of legislative undertaking has embarked on law making as in its view the Judges cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to possess the flavour of law making, and that until Parliament speaks the Court 1207 cannot be silent. With utmost respect I feel that the courts have no such power to legislate and to frame rules to guide the infliction of death penalty. The duty of the court so far as enacted law is concerned, is to interpret and construe the provisions of the enactment. By interpretation or construction is meant the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed. The courts must take it absolutely for granted that the legislature has said what is meant alld meant what it has said. Judges are not at liberty to add or to take FRS or modify the letter of the law simply because they have Cr reason to believe the true sentence legis is not completely or correctly expressed by it. (Salmod on Jurisprudence, 11th Ed. by Glanville Williams, p. 153). The Constitution and the laws bind every court in India and that though the courts are free to interpret they are not free to overlook or disregard the Constitution and the laws. As held in Young vs Bristol Aeroplane Co. Ltd.(l) the Court is not entitled to disregard the statutory provisions and to follow a decision of its own when that provision was not present in its mind. It is equally beyond the functions of a Court to evolve working rules for imposition of death sentence bearing the markings of enlightened flexibility and social sensibility or to make law by cross fertilisation from sociology, history, cultural anthropology and current national perils and developmental goals and, above all, constitutional currents. I am of the view that it is the function of the Parliament to frame laws consistent with the needs of the society. If the grounds for award of a sentence of death has to be more specifically stated than that it is found in the Indian Penal Code and the Cr. P.C., it is for the Parliament to do so. Various legislative measures were introduced but were withdrawn from time to time. At present there is a Bill before the Parliament. It is for the Parliament to clarify the circumstances under which a sentence of death could be awarded. It is for the court to administer the law as it stands. In awarding sentence of death, the Court has to take into consideration the various aspects regarding the crime and the person that committed the crime and pass an appropriate sentence and if it is death sentence to give special reasons as required by the Cr. If in deciding a case on particular facts a principle is stated it may be binding as a precedent. If the Courts resort to rule making it will not be binding as precedent. If the Courts are to embark on rule making the question arises whether [1] [1947] 1 K.B.718, 1208 the responsibility can be undertaken by a bench of 3 Judges with a majority of 2 to 1. Is it permissible for another bench to proceed to make laws and prescribe an entirely different sets of rules ? There is no machinery by which the Court could ascertain the views of the various cross sections of the society which is a prerequisite before any law making is resorted to. The Court has embarked on framing rules prescribing conditions for imposition of death sentence taking into account "cross fertilisation from sociology, history, cultural anthropology and current national perils and developmental goals, and above all, constitutional currents". So far as constitutional currents are concerned the Constitution Bench has upheld the validity of awarding of the death sentence. The Court has proceeded on the basis that the earlier decisions of this Court have taken into account only the crime and not the criminal. The emphasis according to the judgment should be on the criminal and not on the crime. The mode of sentencing as envisaged in the Penal Code and the Cr. P.C. requires that every fact that is relevant to the determination of the sentence including the crime, the criminal and other environmental circumstances will have to be taken into account. The view of the learned Judge that in awarding a sentence the criminal is more important than the crime is not warranted by the law as it stands today. I will now refer to various points dealt with in the judgment which are contrary to the decision of the constitutional Bench. Justice Krishna Iyer says: "The main focus of our judgment is on this poignant gap in 'human rights jurisprudence ' within the limits of the Penal Code, impregnated by the Constitution. To put it pithily, a world order voicing the worth of the human person, a cultural legacy charged with compassion, an interpretative liberation from colonial callousness lo life and liberty, a concern for social justice as setting the sights of individual justice, interest with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19 and 21. " The challenge to the award of the death sentence as violative of Articles 19, 14 and 21 was repelled by the Constitution Bench by holding that the death sentence is a permissible punishment and that deprivation of life is constitutionally permissible if that is according to procedure established by law. Regarding laying down standards in imposing the punishment the Court observed that the impossibility of laying down standards is at the very core of criminal law as administered in India which invests the Judges with a very wide diseretion in the matter of fixing the degree of punishment and that 1209 this discretion in the matter of sentence is liable to be corrected by superior Courts. It was held that the exercise of judicial discretion on well recognised principles is in the final analysis, the safest possible safeguard for the accused. Justice Krishna Iyer would comment on the observations of the Constitution Bench above quoted as follows: "The acceptance of the invulnerability of discretionary power does not end the` journey: it inaugurates the search for those `well recognised principles ' Palekar, J. speaks of in the Jagmohan case. Incidental observations without concentration on the sentencing criteria are not the ratio of the decision. Judgments are not Bible for every line to be venerated," with respect I am unable to agree with the characterization of Palekar J 's judgment as "incidental observations without concentration on the sentencing criteria". At p. 559 of the Reports Palekar J. Observes: In India this onerous duty is cast upon Judges and for more than a century the judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion m the matter of sentence is, as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. " After disapproving laying down of standards the learned Judge proceeded "The exercise of judicial discretion on well recognised, principles is, in the final analysis, the safest possible safeguard for the accused." (Emphasis supplied) The learned Judge quoted with approval the view of this Court in Budhan Chowdhary vs State of Bihar(1) which is as follows: "The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection unless there is shown to be present in it an element of intentional and purposeful discrimination. Further, the discretion of judicial officers is not arbitrary and the law pro vides for revision by superior courts of orders passed by the subordinate courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial tribunals. " Palekar, J. continued "Crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely (1) ; 21 409SCI/79 1210 different and since a decision of the court as regards punishment is dependent upon a consideration of all the facts, and circumstances, there is hardly any ground for challenge under Article 14. " At page 560 of the reports, Palekar, J, explains the procedure that is followed by the Courts which enables to bring into focus all the circumstances that are relevant to be taken into account in awarding the sentence. On a reading of the judgment of the Constitution Bench I regard my inability to share the view of Krishna Iyer J. that Palekar J 's observations are incidental and without concentration. It may be noted that the laying down of the standards which was deprecated is being attempted in this decision. Krishna Iyer J. would state "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in article 19(2) to (6)". This view again is inconsistent with the law laid down by the Constitution Bench which has held that deprivation of life is constitutionally permissible if that is done according to procedure established by law. Krishna Iyer J. has observed that "no Code can rise higher than the Constitution and the Penal Code can survive only if it pays homage to the suprema lex. The only correct approach is to read into section 302 I.P.C. and section 354(3) Cr. P.C., the human rights and human trends in the Constitution. So examined, the right to life and to fundamental freedoms is deprived when he is hanged to death, his dignity is defiled when his neck is noosed and strangled," the only change after the Constitution Bench delivered its judgment is the introduction of section 354(3) which requires special reasons to be given if the court is to award the death sentence. If without the restriction of stating sufficient reasons death sentence could be constitutionally awarded under the I.P.C. and Cr. P.C. as it stood before the amendment, it is difficult to perceive how by requiring special reasons to be given the amended section would be unconstitutional unless the "sentencing sector is made most restrictive and least vagarious". Krishna lyer J. has held that "such extra ordinary grounds alone constitutionally qualify as 'special reasons ' as leave no option to the court but to execute the offender if State and society are to survive. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing or pathetic the situation, unless the inherent testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic arid deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer, like a blood thirsty tiger, he has to quit his terrestrial tenancy. " The Constitution Bench dealing with the 1211 award of death sentence observed. "But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country, society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social mal adjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society. " After referring to the Law Commission 's Report the Court observed: "A very responsible body has come to the conclusion after considering all the relevant factors. On the conclusions thus offered to us, it will be difficult to hold that capital punishment as such is unreasonable or not required in the public interest. " I find it difficult to reconcile the law stated by the Constitution Bench with the view expressed by Krishna Iyer J. The judgment delivered by Krishna Iyer J. for the Court and the minority judgment of Justice A. P. Sen have dealt at considerable length with various aspects and desirability or otherwise of imposing a sentence of death. Tile controversy over capital punishment is not new. For several centuries the debate is going on. I am conscious that it is a highly controversial subject on which much can be said on both sides. Fortunately, for the Judges it is neither necessary nor desirable to subscribe to one of the two views. All that the Judges are expected to do is to administer the law as it stands. In fact, if I am strong believer of abolition of death sentence or supporter of 'life fol. life ' and 'tooth for tooth ' doctrine I would have excused myself from deciding a case involving confirmation of death sentence. Justice Krishna Iyer has not concealed his abhorrence at the infliction of death sentence. He pleads that death sentence should be abolished. He has expressed his view in unmistakable terms: "Every sombre dawn a human being is hanged by the legal process, the flag of human justice shall be hung half mast". Again "The right to life and to fundamental freedoms is deprived when he is hanged to death, his dignity is defiled when his neck is noosed and strangled". . "The Indian cultural current also counts and so does our spiritual chemistry, based on divinity in everyone, catalysed by the Budha Gandhi compassion". "This axiom is a vote against 'death ' and hope in 'life '. " I have great respect for the views of the learned Judge. He is strongly espousing a cause but I feel embarrassed when I am required to follow his views for I consider it is my solemn duty to administer the law of the land as it stands. According to my conception my duty is to administer the law as it stands. It is not for me lo say what the law should be. If I am satisfied that the trial Judge and the 1212 High Court have given special reasons as required under the law it is my duty to confirm the sentence of death. Vide observations of this Court in Ram Narain and ors. vs State of U.P.(1) quoted with approval in Jagmohan 's case. I do not feel it necessary to refer to the various points dealt With by Krishna Iyer J. in his long and learned 'essay '. I have quoted in extenso from his judgment and also from the judgment of the Constitution Bench in order to show that the two views are irreconcilable and that I am bound to follow the law laid down by the Constitution Bench. With respect I find myself in complete agreement with the views expressed by the Constitution Bench. I am therefore unable to follow the decision of the Bench. I have discussed the general principles laid down in Rajendra Prasad 's case regarding the circumstances that are necessary for the imposition of the death sentence. Apart from being unable to agree with the guidelines prescribed, I am of the view that the general principles laid down are not the ratio decidendi of the case. The courts are not bound to follow them. Halsbury 's Laws of England (3rd Ed. 22 at p. 796) explains what ratio decidendi is. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand have no binding authority on another court, though they may have some merely persuasive efficacy. Decisions upon matters of fact are not binding on any other court. This Court has held that precedents which enunciate rules of law form the foundation of administration of justice under our system. (Tribhuvandas vs Ratilal).(2) It has also been held in Amritsar Municipality vs Hazara Singh(3) that the decisions of even the highest court on questions of fact cannot be cited as precedents. Lord Halsbury in Quinn vs Leathem(4) said that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in (1) A. I. R. (2) ; Bom. L. R. 73. (3) A. 1. R. (4) 1901 A. at p. 506 1213 which such expressions arc to be found. The learned Judge proceeds To observe ". a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. The courts are not bound by the observations in decisions beyond the point actually decided. The courts can say "We cannot know that the House of Lords would carry this determination further than they have carried it". (per Best C.J. in Fletcher vs Lord Sondes.(l) Applying the principles above quoted, I will now proceed to find out what are the points decided in the case and to what extent it will be binding on courts. In Rajendra Prasad 's case the three appeals in which death sentences were imposed came up before the Court for consideration of the question whether the death sentence awarded should be confirmed or not. After appreciation of the facts of the case the Court came to the unanimous conclusion that the concerned accused have been found guilty of the offence of murder and confirmed the conviction. Regarding the imposition of the death sentence the majority was of the view that there were no sufficient reasons for imposing the extreme penalty while the minority differed from that conclusion. The principle that can be derived in the case is that on the facts and circumstances established in the case there are not 'sufficient reasons ' for imposing the death sentence. Only to this limited extent if at all is the decision binding on the courts. It is common knowledge that the facts are rarely similar in two cases. The root of the doctrine of precedent is that alike cases must be decided alike. Only then it is possible to ensure that the court bound by a previous case decides the new case in the same way as the other court would have decided it. It is all a question of probabilities, but the probability that a court will decide a new case in the same way as would the court which decided one of the cases cited becomes less and less as the differences between the facts of the two cases increase. As every judgment will have to be read as applicable to the particular facts proved will refer to the facts found in Rajendra Prasad 's case. The accused in Rajendra Prasad 's case a youngman after some years served in prison, was released on Gandhi Jayanti Day. Some minor incident ignited his latent feud and he stabbed Ram Bharosey and his friend Mansukh several times and the latter succumbed. He was sentenced to death by the Sessions Court which was confirmed by the High Court. This Court applying the canons which it had laid down came to the conclusion that as nothing on record suggested that Rajendra Prasad was beyond redemption and the record does not (1) [1826] 3 Bing. 501 at p. 560 1214 hint that such an attempt was made inside the prison they did not see any special reason to hang him out of corporeal existence. As pointed out earlier I am unable to subscribe to the canons laid down in the case. The utmost to which this case can be considered as an authority is that if in similar circumstances when a person 's latent feud gets ignited and stabs two persons several times it would not furnish special reasons for inflicting the extreme penalty. In the second case relating to Kunjukunju the accused cut to death the innocent wife and the immaculate kids in the secrecy of night. The trial court as well as the High Court found it was a deliberate and cold blooded act performed with considerable brutality. The majority expressed its opinion that if the crime alone was the criterion the sentence was proper but if the criminal was the target it was not proper. The Cr. P.C. requires the courts to take into account the circumstances in which the crime was committed, the particulars about the criminal and all relevant circumstances relating to the commission of the crime by the criminal. The trial court is required to give reasons and they are to be scrutinised by the High Court on a reference to it for confirmation of the death sentence. The High Court also has to satisfy itself that there arc special reasons for inflicting the extreme penalty. The view of the majority that the test should be whether Janardanan is a social security risk, altogether beyond salvage by therapeutic life sentence is neither in accordance with the requirements of the Cr. P.C. nor law laid down by this Court. The decisions of this Court insist not only on a consideration of the criminal but also the nature of the crime and all other relevant circumstances. As the view expressed in the case is not in conformity with the decisions of this court it cannot be followed as a precedent. At the most the decision may be taken as authority that in similar circumstances the cutting to death of the innocent wife and the immaculate kids in the secrecy of the night may not amount to special reasons as required under the Cr. In the third appeal the appellant flung the vessels over the division of which the wrangle arose, went inside the house, emerged armed, picked up all altercation eventuating the young man (whose age was around 18 or 20) stabbing to death three members of the other branch of the family. He chased and killed, excited by the perverted sense of injustice at the partition. The majority was of the view that it is illegal to award capital punishment without considering the correctional possibilities inside the prison. The court was of the view that although the crime was attended with extraordinary cruelty, the accused being young and malleable are and their reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual 1215 murderer or given to chronic violence these catena of circumstances bearing on the offender call for the lesser sentence. Here again it is difficult to agree with the test applied for it is not in conformity with the decisions of this Court or the requirements of the law. If at all it may be an authority only for the proposition that under identical circumstances the stabbing of three persons by a young man in an altercation when he was excited by a perverted sense of injustice would not be special reasons for awarding the extreme penalty. In the case before us the facts are not identical with any of the cases in the appeals. The appellant was released after undergoing a term of imprisonment for the murder of his wife. After release he lived with his cousin Hukam Singh for about six months. The wife and son objected. On the night of the occurrence when he was sleeping with Desa Singh son of Hukam Singh in the outer courtyard and three daughters of Hukam Singh in the inner courtyard at about midnight the petitioner got up, inflicted fatal injuries on the son Desa Singh and the two daughters Durga Bai and Veeran Bai and caused grievous injuries to Vidya Bai while they were sleeping. 'the trial court as well as the High Court on a consideration of the entire facts regarding the crime and the criminal came to the conclusion that the appellant acted in a very cruel manner. The victims had no cause to suspect the intentions of the petitioner and went to sleep. Taking advantage of the situation, when the victims could not defend, the appellant killed three and seriously wounded the fourth. The courts below rightly characterised the offence as heinous and in the circumstances of the case they were of the view that the only appropriate sentence is the extreme penalty. I have no hesitation in agreeing with that conclusion. The facts of the case may have some resemblance to Kunjukunju case in that the accused in that case cut his innocent wife and the kids under the secrecy of the night. But the other circumstances namely his cold calculated and deliberate murder of innocent children of Hukam Singh who had given shelter to him when they were sleeping discloses that the crime is an extremely brutal and heinous one calling for imposition of death sentence I agree with the trial Court and the High Court and find 'special reasons ' required for imposition of death has been clearly made out.

The detenu under the COFEPOSA challenged the orders detaining him as violative of article 22(5) of the Constitution on the ground that his representation was neither considered nor disposed of by the Secretary to the Government of Maharashtra, though the latter intimated by his letter dated 22nd December 1978, that the issue of copies of relevant documents and statement to him was under consideration of the Government and after that issue was decided the petitioner 's representation would be considered and a suitable reply would be given. The admitted fact was that the State Government confirmed the order of detention solely on the basis of the report of the Advisory Board. ALLOWING the Writ Petition, the Court, ^ HELD: 1. The power to preventively detain a person cannot be exercised except in accordance with the constitutional safeguards provided, in clauses (4) and (5) of Article 22 AND if an order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated in the law authorising preventive detention because even if they are not, they would be deemed to be part of law as a super imposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention. [IOlOB D]. The constitutional imperative enacted in clause (5) of Article 22 requiring the earliest opportunity to be afforded to the detenu to make a representation carries with it by necessary implication a constitutional obligation on the detaining authority to consider the representation as early as possible before making an order confirming the detention. The detaining authority must consider the representation of the detenu and come to its own conclusion whether it is necessary to detain him. If the detaining authority takes the view, on considering the representation of the detenu, that it is not necessary to detain him, it would be wholly unnecessary for it to place the case of the detenu before the Advisory Board. The requirement of obtaining opinion of the Advisory Board is an additional safeguard over and above the safeguard afforded to the detenu of making a representation against the order of detention. The opinion of the Advisory Board even if given after consideration of the representation of the detenu need not necessarily be binding on the detaining authority. [1011C E] 1008 There are thus two distinct safeguards provided to a detenu: one is that his case must be referred to an Advisory Board for its opinion if it is sought to detain him for a longer period than three months and the other is that he should be afforded the earliest opportunity of making a representation against the ord of detention and such representation should be considered by the detaining authority as early as possible before any order is made confirming the detention. Neither safeguard is dependent on the other and both have to be observed by the detaining authority. The detaining authority is therefore, bound to consider The representation of the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu. The subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. [1012C G, 10131E]. Khudiram Das vs State of West Bengal, ; ; Khairul Haque vs The Slate of West Bengal, W.P. 246/69 decided on lO 9 69; referred to.

Appeals Nos.253 to 255 of 1955. Appeals from the judgment and decree dated November 30, 1954, of the former Nagpur High Court in Misc. Petitions Nos. 245, 279 and 308 of 1954. N. C. Chatterjee and G. C. Mathur, for the appellant in C. A. No. 253 of 1955. G. C. Mathur, for the appellant in C. A. Nos. 254 and 255 of 1955. B. Sen, section B. Sen and 1. N. Shroff, for the respondents in C. A. Nos. 253 and 254 of 1950 and for the State of Madhya Pradesh (Intervener). C. K. Daphtary, Solicitor General of India and R. H. Dhebar, for the respondents in C. A. No. 255 of 1955 and for the State of Bombay (Intervener). N. section Bindra and T. M. Sen, for the State of Punjab (Intervener). April 3. The judgment of section R. Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar JJ. was delivered by Venkatarama Aiyar J. Bose J. delivered a separate judgment. VENKATARAMA AIYAR J. These are appeals against the judgment of the High Court of Nagpur in writ applications filed by the appellants impugning the validity of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947 (C. P. & Berar 21 of 1947), hereinafter referred to as the Act, imposing sales tax on materials used in construction works. It will be convenient to refer to these provisions at this stage. Section 2(b) of the Act defines " contract " as including " any agreement for carrying out for cash or deferred payment or other valuable consideration the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machinery 430 affixed to a building or other immovable property ". Section 2(c) of the Act defines " dealer " as including a person who carries on the business of supplying goods. In section 2 (d), " goods " are defined as including " all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property ". Section 2(g) defines sale " as follows: " " Sale " with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; and the word 'purchase ' shall be construed accordingly. " Section 2(h) defines " sale price " as including the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials, used in carrying out such contract, as may be prescribed. " Turnover " is defined in section 2(j) as including the aggregate amount of the sale price received or receivable by a dealer in respect of the supply of goods in the carrying out of any contract. The charging section is section 4(a), and it provides that dealers whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement of the Act. Rule 4 of the Sales Tax Rules, 1947, provides that " in calculating the sale price for the purpose of sub cl. (ii) of cl. (h) of section 2, a dealer may be permitted to deduct from the amounts payable to him as valuable consideration for carrying out a contract, a sum not exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages ", and then follows a scale of percentages to be allowed in respect of different classes of contracts. Acting on these provisions, the authorities constituted under the Act called upon the contractors within the State to furnish returns in respect of their receipts 431 from contract works for the purpose of assessment of sales tax, to which the appellants replied by instituting the proceedings, out of which the present appeals arise. The appellant in Civil Appeal No. 253 of 1955 is a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, and he filed M. P. No. 245 of 1954 challenging the validity of the assessment which the respondents proposed to make, on two grounds. He contended firstly that the Provincial Legislature had authority under Entry 48 of List 11, Sch. VII of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works contracts was not a sale within that Entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires; and secondly that he was entitled to exemption under item 33 in Sch. 11 to the Act as enacted by Act XVI of 1949, and that the notification of the Government dated September 18, 1950, withdrawing that exemption was unconstitutional and void. To appreciate this contention, it is necessary to refer to section 6 of the Act, which is as follows: 6 (1) " No tax shall be payable under this Act on the sale of goods specified in the second column of Schedule 11, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof. (2) The State Government may, after giving by notification not less than one month 's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule, and thereupon such Schedule shall be deemed to be amended accordingly. " Item 33 in Sch. 11 as originally enacted was " Goods sold by the Crown ". This was amended by Act XVI of 1949 by substituting for the above words " Goods sold to or by the Crown ". By an Adaptation Order of 1950, the words "State Government" were substituted for "Crown", and item 33 became "Goods sold to or by the State Government " In exercise of 432 the power conferred by section 6 (2) of the Act, the State issued a notification on September 18, 1950, amending item 33 by substituting for the words " Goods sold to or by the State Government " the words " Goods sold by the State Government ". The resultant position is that the appellant who was entitled to exemption under Act XVI of 1949 in respect of goods sold to the Government could no longer claim it by reason of the notification aforesaid. Now, the ground of his attack was that it was not open to the Government in exercise of the authority delegated to it under section 6 (2) of the Act to modify or alter what the Legislature had enacted. The appellant accordingly claimed that the proceedings which the respondents proposed to take for assessment of sales tax were incompetent, and prayed that an appropriate writ might be issued restraining them from proceeding with the same. In Civil Appeal No. 254 of 1955, the appellants are the Jabalpur Contractors ' Association, which is a registered body and certain contractors, and they filed M. P. No. 279 of 1954 questioning the validity of the proposed assessment on the same grounds as in M. P. No. 245 of 1954. The appellant in Civil Appeal No. 255 of 1955, is the Madhya Pradesh Contractors ' Association, Nagpur, which is again a registered body, and it filed M. P. No. 305 of 1954, challenging the legality of the proceedings for assessment on the same grounds as in M. P. No. 245 of 1954. All these three petitions were heard together, and by their judgment dated November 30, 1954, the learned Judges held that the expression " sale of goods" in Entry 48 was wide enough to coverall transactions in which property in the moveables passed from one person to another for money, and that, accordingly, in a building contract there was a sale within Entry 48 of the materials used therein, and that the provisions of the Act imposing tax thereon were valid. But the learned Judges also held that the tax could be levied only on the actual value of the materials to be determined on an enquiry into the matter, and that the definition of " price " in section 2 (h) (ii) and r. 4 framed pursuant thereto were ultra vires 433 in that they laid down artificial rules for fixing the same by deducting certain percentages from out of the total receipts on account of labour. As regards the notification dated September 18, 1950, the learned Judges held that it was within the authority conferred by the statute and was valid. In the result, the impugned provisions of the Act were held to be valid except as to the definition of " price " in section 2 (h) (ii) and r. 4 of the Sales Tax Rules, 1947. It is against this judgment that the above appeals have been preferred on a certificate granted by the High Court under article 132(1) of the Constitution. Two contentions have been urged in support of the appeals : (1) that the Provincial Legislature has no authority in exercise of its power under Entry 48 to impose a tax on the supply of materials in works contracts as such supply cannot be said to be also of those materials within that Entry ; and (2) that the notification dated September 18, 1950, is bad as being an constitutional delegation of legislative authority. As regards the first contention, the question is now concluded by the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) in which it has been held that the expression " sale of goods " in Entry 48 has the same meaning which it has in the Indian , that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials. Mr. B. Sen appearing for the respondents has argued that even if the expression " sale of goods " in Entry 48 is construed in the sense which it has in the , that might render the impugned provisions of the Act ultra vires only in respect of a building contract which is one and indivisible, that there might be contracts which might consist of two distinct agreements, one for the sale of materials and another, for work and labour, and that in such a case, it would be competent to the State to impose tax on the sale of materials even construing that word in its (1) ; 55 434 narrow sense, and that these are matters which must be left to be investigated by the appropriate authorities. That undoubtedly is the correct legal position as observed in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), and accordingly, when a question arises as to whether a particular works contract could be charged to sales tax, it will be for the authorities under the Act to determine whether the agreement in question is, on its true construction, a combination of an agreement to sell and an agreement to work, and if they come to the conclusion that such is its character, then it will be open to them to pro ceed against that part of it which is a contract for the sale of goods, and impose tax thereon. (2) We have next to consider the contention that the notification dated September 18, 1950, is bad as constituting an unconstitutional delegation of legislative power. In the view which we have expressed above that there is in a works contract no sale of materials as such, it might seem academic to enter into a discussion of this question ; but as there may be building contracts in which it is possible to spell out agreements for the sale of materials as distinct from contracts for work and labour, it becomes necessary to express our decision thereon. Mr. Chatterjee appearing for the appellant in Civil Appeal No. 253 of 1955 contends that the notification in question is ultra vires because it is a matter of policy whether exemption should be granted under the Act or not, and a decision on that question must be taken only by the Legis lature, and cannot be left to the determination of an outside authority. While a power to execute a law, it was argued, could be delegated to the executive, the power to make it must be exercised by the Legislature itself, and reliance was placed on the observations in Hampton J R & Co. vs United States (2), Panama Refining Co. vs Ryan (3), and Schechter vs United States (4), as supporting this position. It was also contended that the grant of a power to an outside authority to (1) ; (2) ; ; , 629. (3) ; ; , 458. (4) ; ; 435 repeal or modify a provision in a statute passed by the legislature was unconstitutional, and that, in consequence, the impugned notification was bad in that, in reversal of the policy laid down by the legislature in Act XVI of 1949 that sales to Government should be excluded from the operation of the Act, it withdrew the exemption which had been granted thereunder, and the observations in re The etc. (1), and the decision in Rajnarain Singh vs The Chairman, Patna Administration Committee, Patna and another (2), were strongly relied on as establishing this contention. Mr. N. C. Chatterjee particularly relied on the following observations of Bose J. at p. 301 in Rajnarain Singh 's case (2) : " In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above; it cannot include a change of policy. " On these observations, the point for determination is whether the impugned notification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy. Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. In Powell vs Appollo Candle Company Limited the question arose as to whether section 133 of the Customs Regulation Act of 1879 of New South Wales which conferred a power on the Governor to impose tax on certain articles of import was an unconstitutional delegation of legislative powers. In holding that it was not, the Privy Council observed: "It is argued that the tax in question has been (1) ; , 787, 982, 984 (3) (2) ; 436 imposed by the Governor and not by the Legislature who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the Order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. In these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature. " In Syed Mohamed & Co. vs The State of Madras (1), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act. Section 5 (vi) of that Act had left it to the rule making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules was attacked on the ground that it was only the legislature that "as competent to decide who shall be taxed, and that the determination of that question by the rule making authorities was ultra vires. The Madras High Court rejected this conntetion, and held on a review of the authorities that the delegation of authority under section 5 (vi) war, within permissible constitutional limits. In Hampton J. R. & Co. vs United States (2), which was cited on behalf of the appellant, the question arose whether section 315(b) of the Tariff Act, 1922, under which the President had been empowered to make such increases and decreases in the rates of duty as were found necessary for carrying out the policies declared in the statute was an unconstitutional delegation, and the decision was that such delegation was not unconstitutional. We are therefore of the opinion that the power conferred on the State Government by section 6(2) to amend the schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional. (1) (1952) 3 S.T.C. 367 (2) ; ; , 629. 437 The contention of the appellant that the notification in question is ultra vires must, in our opinion, fail on another ground. The basic assumption on which the argument of the appellant proceeds is that the power to amend the schedule conferred on the Government under section 6(2) is wholly independent of the grant of exemption under section 6(1) of the Act, and that, in consequence, while an exemption under section 6(1) would stand, an amendment thereof by a notification under section 6(2) might be bad. But that, in our opinion, is not the correct interpretation of the section. The two sub sections together form integral parts of a single enactment, the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government. Section 6(1), therefore, cannot have an operation independent of section 6(2), and an exemption granted thereunder is conditional and sub ject to any modification that might be issued under section 6(2). In this view, the impugned notification is intra vires and not open to challenge. But on our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List 11 in the seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on construction works. It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the sales tax authorities from deciding "whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category. The parties will bear their own costs throughout, 438 BOSE J. I agree except that I prefer not to express an opinion about the validity of the power conferred on the State Government by section 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, to amend the schedule in the way in which it has been amended here. I would leave that open for future decision. Appeals allowed.

The Respondents, manufacturers of refrigerators, give one year warranty for the complete refrigerator and all parts thereof. During this warranty period, they provide free repair and replacement for defects in material and workmanship under normal use and service. They include the cost of this one year warranty in the sale price as well as assessable value of the refrigerator. After the free warranty period of one year, the respondents offer a four year service contract only for the sealed system or parts thereof. This contract is on payment which may vary from Rs.300 and Rs.400 per refrigerator. The dealers enter into contract with the Respondents, and the consumer in turn enters into contract with the dealer from whom he buys his refrigerator. The service is rendered by the Respondents and the entire contract money accrues to them. Though the contract is optional, 91% of Customers did enter into this contract, and only 9% did not. The Assistant Collector held that the four year service charge is includible in the value of the refrigerator for the purpose of Central Excise dub under section 4 of the Act. The Appellate Collector upheld the said decision. On appeal the Tribunal held that the said optional service charge was not includible in the assessable value. These appeals by Revenue under Section 35L(b) of the Act are against the Tribunal 's decision. Dismissing the appeals, this Court, ^ HELD: 1. The contract for four years warranty service was optional which was entered into later on. This is clearly after sale 657 facility and cannot be includible in the assessable value of the refrigerator. [661G] 1.2 The Tribunal was right in the view it took that the optional service charge after the expiry of the first year warranty period was not includible in the assessable value. It rightly observed that if any consumer did not like to have the service, there was no compulsion on him to go in for it and once the conclusion is reached that post warranty service activity could not be subjected to excise, it ceases to be material that 91% of the customers had opted for the service contract. The Tribunal also observed that the respondents offered the four year service by a stamped endorsement on their sale invoice itself, but it did not mean that the subsequent exercise of option by the buyer related back to the date of purchase itself and that there was no evidence to conclude that the service contract was a facade to split the true value of refrigerators into taxable and non taxable components. [658H;661D F] Union of India and Others etc. vs Bombay Tyre Interna tional Ltd.; , and Assistant Collector of Central Excise and others vs Madras Rubber Factory Ltd. and others, , referred to.

N: Criminal Appeal No. 175 of 1974. Appeal by special leave from the judgment and order dated the 18th October, 1973 of the Allahabad High Court in Crl. Appeal Nos. 1307 and 1966 of 1973. AND Criminal Appeal Nos. 367 369 of 1974. Appeals by special leave from the judgment and order dated the 18th October, 1973 of the Allahabad High Court in Criminal Appeal No. 1307 of 1973 connected with Crl. Appeal Nos. 1287 and 1566 of 1973. 47 Rajendra Singh, R.K. Garg B.P. Singh and Ranjit Kumar for the Appellant. O.P. Rana and M.V. Goswami for the Complainant. Dalveer Bhandari for the Respondent. The Judgment of the Court was delivered by BAHARUL ISLAM, J. These four Criminal Appeals are by special leave. Criminal Appeal No. 175 of 1974 is by the four appellants Maqsoodan, Madan Mohan, Prayagnath and Nando who have been convicted under Sections 302/34 and 307/34 Penal Code. The material facts may be briefly stated as follows: On 8 6.1972 at about 5.45 or 600 a.m, when Sulley (P.W. 1) along with his brother, Jadon (deceased), his son, Rajendra (C.W. 1) and his nephew Vijay Kumar (P.W. 3) were going from their house in Neem Gali, Mathura, to their Dharamshala in Mohalla Bengali Ghat, via Vishram Ghat and reached the area called Shyam Ghat, they were waylaid by the twelve persons accused in the case and were assaulted. According to the prosecution, the accused persons were variously armed with Ballams, phrases and lathis. Another group of twelve or thirteen persons who were associates of the accused was standing at Vishram Ghat and some one was constantly inciting the accused persons with the expression, "kill, kill" whereupon the accused persons attacked and assaulted Jadon, Vijay Kumar, Rajendra and Sulley. Jadon and P.W. 3 were severely injured. The condition of Jadon was very precarious. After the assault, the miscreants left. P.W. 1 arranged for a lorry belonging to one Vishnu Chaubey and carried the injured persons to the District Hospital. The driver of the lorry was one Than Singh. Jadon and P.W. 3 were removed to the operation theatre. Thereafter, P.W. 1 proceeded to the Police Station, Kotwali at Mathura and submitted a written First Information Report (FIR) about the incident. The FIR was written by his nephew, Prakash Chandra Chaturvedi (P.W. 8). The FIR was lodged at 6.30 a.m. at the Police Station and has been proved in this case as exhibit "Ka 16". After lodging the FIR, P.W. 1 came back to the hospital where the injuries of all the four injured persons were examined by Dr. B.S. Babbar. As the condition of the injured persons was serious, intimation was sent to Shri U.C. Tripathi (D.W. 7), Sub Divisional 48 Magistrate, Sahabad, for recording their statements. The Magistrate came and recorded the statements of P.W. 3 and C.W. 1 at 9.15 a.m. and 9.20 a.m. respectively. Jadon was operated upon and his condition was such that he could not make any statement. In fact, he succumbed to the injuries the next day, namely, 9.6.1972 at 3.25 p.m. The post mortem examination was conducted on the dead body of Jadon by Dr. B.S. Babbar on 10.6.1972 at 10.00 a.m. 3. The police after investigation submitted charge sheet against the twelve accused persons, all of whom pleaded not guilty. The First Additional Sessions Judge, Mathura, who tried the case, convicted eleven out of the twelve accused persons and acquitted accused No. 12, Kanhaiya. Appellant Maqsoodan was convicted under Section 302 I.P.C. and sentenced to death. The other ten accused persons were convicted under Sections 302/149 and 307/149 I.P.C. and sentenced to imprisonment for life, each under Section 302/149 Penal Code. Accused Parmatma was convicted under Section 147 I.P.C. and the rest were convicted under Section 148 I.P.C. They were sentenced to various terms of imprisonment. The sentences of imprisonment were directed to run concurrently. There was also a reference for the confirmation of the death sentence imposed on Maqsoodan. The convicts filed several appeals before the High Court of Allahabad. The High Court altered the convictions of Maqsoodan, Madan Mohan, Prayagnath and Nando, from under Sections 302/149 and 307/149 to ones under Sections 302/34 and 307/34 Penal Code. The sentence of death imposed on Maqsoodan was reduced to imprisonment for life. All of them were acquitted of the offences under Section 147 or Section 148 I.P.C. The convictions and sentences as against the other six accused persons were set aside and they were acquitted. The acquittal of Kanahaiya was affirmed. Criminal Appeals No. 367, 368 and 369 of 1974 have been filed by the State against the acquittal of the eleven accused persons of the offences under Sections 147 and 148, Penal Code; S.L.P. No. 766 of 1974 is by the State against the acquittal of Kanahaiya. All these appeals will be disposed of by this common judgment. Shri Rajendra Singh, learned counsel appearing for the appellants in Criminal Appeal No. 175 of 1974, first submits that 49 the conviction of the four appellants is unsustainable in law; he submits that the evidence of the four witnesses, namely, P.W. 1, Sulley, C.W. 1, Rajendra, P.W. 3, Vijay Kumar and P.W. 2, Jagdish, cannot form the basis of the conviction as only one witness, namely, P.W. 2, Jagdish, out of five witnesses named in the FIR has been examined; the eye witnesses examined are interested and their evidence cannot be safely relied on. The High Court has found that the testimony of the eye witnesses, namely, P.Ws 1, 2, 3 and C.W. 1 "suffer from numerous infirmities". It, therefore, sought support to their testimony from the two earlier statements erroneously called dying declarations, Exhibits Ka 22 and Ka 23 made by P.W. 3 Vijai Kumar and P.W. 2 Jagdish respectively. The infirmities referred to by the High Court consisted in, according to the High Court, improvements made by the witnesses and variations in their earlier and latter statements. In our opinion, on that ground alone, the testimony of P.Ws. 1, 2, 3 and C.W. 1 cannot be held to be infirm. It is the duty of the court to remove the grain from the chaff. These four witnesses are the injured witnesses having received the injuries during the course of the incident. Their presence at the time and place of the occurrence cannot be doubted; in fact it has not been challenged by the defence. As both the parties were inimical for a long time, it will be prudent to convict only those persons whose presence and participation in the occurrence have been proved by the prosecution beyond reasonable doubt. We agree with the finding of the High Court that the presence and participation of appellants Maqsoodan, Madan Mohan, Prayagnath and Nando, who are appellants in Criminal Appeal No. 175 of 1974 has been proved beyond reasonable doubt, despite the improvements and variations in their evidence. Shri Rajender Singh has submitted that it is not safe to rely on the testimony of P.Ws. 1, 2, 3 and C.W. 1 as the prosecution has not examined all the witnesses named in the FIR except Jagdish, nor has the prosecution examined any of the neighbours. It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts. It is the quality that counts. Learned counsel has not pointed out to us that any witness better or more creditable has been omitted by the prosecution. As stated above, the eye witnesses examined in this case were the best and natural witnesses. Learned counsel also has criticized that during the course of evidence, prosecution alleged that Maqsoodan 50 gave two blows but that fact was not mentioned in the FIR. He has also criticised that the injured witnesses do not say who injured whom. This, on the contrary, shows that the witnesses examined were not tutored and they gave no parrot like stereotyped evidence. It may be remembered that P.W. 1 who lodged the FIR received as many as seven incised wounds, one of them being on the left chest; he took Jadon, who had received sd serious injuries and who later on succumbed lo them, and C.W. 1, who received five incised injuries and P.W. 3, who has also seriously injured, to the hospital. He lodged the FIR thereafter. The condition of his mind and disposition can easily be imagined. There were bound to be some errors in the FIR. It may also be remembered that the FIR was lodged within half an hour of the occurrence. There was little time lost. The occurrence took place at about 6.00 a.m. on 8.6.1972 It is nobody 's case that the witnesses were unable to recognise the real culprits. The accused persons were well known to the witnesses from before. They did not have any reason to omit the real culprits and implicate falsely the accused persons. The evidence of P.Ws. 1, 2, 3 and C.W.1 could have been accepted even without corroboration. Even so, the High Court rightly pressed into service the earlier statements of P.W. 3 and C.W.1 (exhibit Ka 22 and Ka 23) respectively. Ka 22 and Ka 23 have been wrongly called dying declarations. The statement written or verbal, of relevant facts made by a person who is dead, is called a dying declaration; it is relevant under Section 32 of the Evidence Act, when the statement is made by the 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 that person 's death comes into question. When a person who has made a Statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. In the instant case, the makers of the statements exhibit Ka 22 and Ka 23, are not only alive but they deposed in the case. Their statements, therefore,, are not admissible under Section 32; but their statements however are admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in the Court. In the instant case, exhibit Ka 22 and Ka 23 respectively corroborate the testimony in Court of P.W. 3 and C.W. 1 respectively. The High Court has found that the witness later on improved the story and roped in some other persons. As a rule of 51 caution, the High Court has found that the participation of the four appellants in the offence has been proved beyond reasonable doubt and the presence and participation of the other eight accused persons named by them have not been proved beyond doubt. We do not find valid reason to interfere with this finding of fact of the High Court, in these appeals under Article 136 of the Constitution. As the number of accused persons present and participating in the occurrence have not been proved to be five or more, the High Court has rightly held that the common object necessary for constituting an unlawful assembly has not been proved, and therefore in the facts and circumstances of the case, the High Court correctly held that common intention has not been proved and as such the four appellants were rightly acquitted of the offence under section 302 read with section 149 I.P.C., and also rightly acquitted all the other accused persons of the offences under Sections 147 and 148 I.P.C. 10. Shri Rajinder Singh next submits that if any offence at all has been committed by the appellants of Criminal Appeal No. 175 of 1974, the offences may be under Section 326 I.P.C. depending on the medical evidence and circumstances of the case and that Section 34 I.P.C. cannot apply as no common intention has been proved. We cannot accept this submission. Dr. B.S. Babbar, P.W . 3, who held the post mortem examination on the dead body of Jadon found a number of wounds out of which the following were serious: 1. Incised wound 2" x 1/4" x scalp deep on head. Incised wound 3" x 1/4" x scalp deep on the head 3. Stiched wound with draining tube 3" towards upper portion of the stomach on right side. Stiched wound 1.1/2" on the upper portion of the left side of the stomach. In his opinion, death was due to cyncope following shock and Haemorrhage as a result of the injuries. According to him, injuries No. 1 & 2 separately was sufficient to cause death in the ordinary course of nature. It, therefore, cannot be argued that the offence committed was not murder. 52 Common intention is a question of fact. It is subjective. But it can be inferred from facts and circumstances. In this case, the appellants were related. All of them were armed with deadly weapons. They were together. There was an order by some one, "kill, kill", when all of them simultaneously attacked the deceased and P.Ws. 1, 2, 3, and C.W. 1. After the occurrence, they left together; they were later arrested from the same place. The High Court therefore rightly held that the appellants caused the injuries with the common intention, and was justified in convicting the appellants under Section 302/34 of the Penal Code. We, therefore, affirm the conviction and sentences inflicted by the High Court on Maqsoodan, Madan Mohan, Prayagnath and Nando, appellants in Criminal Appeal No. 175 of 1974 and dismiss the appeal. As held above that the High Court rightly held that the prosecution failed to prove the common object and therefore it rightly acquitted all the accused persons of the offences under Sections 147 and 148. In the result, the State appeals are also dismissed. P. B. R. Appeal dismissed.

The prosecution case against the 12 accused persons was that, armed with deadly weapons, they waylaid and assaulted the deceased and three others accompanying him, and that someone among another group of 12 of their associates standing at some distance constantly incited the accused with the words "kill, kill". The deceased received serious injuries and died on the following morning. While the appellant was convicted under section 302 Indian Penal Code and sentenced to death, ten other accused were convicted and sentenced variously. One of them was acquitted. On appeal the High Court reduced the sentence of death passed on the appellant to imprisonment for life. Convictions of four of the 11 accused were altered from under section 302/149 and section 307/149 to one under sections 302/34 and 307/34 I.P.C. All of them were however acquitted of the offences under section 147 or section 148 I.P.C. The convictions and sentences against the other six accused were set aside and they were acquitted. It was contended on behalf of the appellants that their conviction was unsustainable in law because the evidence of the eye witnesses, who were interested parties, could not be safely relied upon. Dismissing the appeal, ^ HELD: The High Court erred in stating that the testimony of the four eye witnesses suffered from numerous infirmities, that they made improvements in their testimony and that there were variations in their earlier and later statements. On that count alone their testimony could not be held to be infirm. It is the duty of the Court to remove the grain from the chaff. [49 C D] 46 The parties were inimical for a long time. The four witnesses were the injured persons and therefore, their presence at the time and place of occurrence could not be doubted. The presence of all the four accused in the scene of occurrence and their participation in the crime had been proved beyond reasonable doubt despite the improvements and variations in the evidence of witnesses. [49 E F] In a case of this kind it is not the number of witnesses examined or the quantity of evidence adduced by the prosecution that counts. It is the quality that counts. Eye witnesses, examined in the case were the best and natural witnesses. The accused persons were known to the witnesses and they did not have any reason to omit the real culprits and implicate falsely accused persons. [49 G H; 50 C] A statement, written or verbal, of relevant facts made by a person who is dead, is called a dying declaration and is admissible in evidence under section 32 of the Evidence Act. But when a person who has made a statement, even if it be in expectation of death but is not dead, it is not a dying declaration. It is not admissible under section 32 of the Evidence Act. [50 E F] In the instant case the two witnesses whose statements were erroneously called dying declarations by the High Court were alive and deposed in the case. Such statements are admissible under section 157 of the Evidence Act as former statements made by them to corroborate their testimony in the Court. [50 F G] Common intention is a question of fact and is subjective. It can be inferred from facts and circumstances. In the instant case the appellants who were related to one another were armed with deadly weapons when they waylaid and attacked the deceased and his companions, someone incited them to "kill", and after the assault they left the scene of occurrence together and they were arrested from the same place. There was the therefore common intention and the High Court was justified in convicting them under section 302/34, IPC. [52 A C]

Appeal No. 166 (NL) of 1983. the Award dated 19.4.1982 of the Labour Court, Haryana at Faridabad in Reference No. 227 of 198 1. R.K. Jain, R.P. Singh, Aseem Malhotra, Ashish Verma, Manoj Goel, R.K. Khanna and Ms. Abha R. Sharma for the Appellant. Dr. Anand Prakash, Ghosh for M/s Fox Mandal & Co. and Som Mandal for the Respondent. The Judgment of the Court was delivered by K. RAMASWAMY, J. This appeal by special leave is against the award of the Labour Court, Haryana at Faridabad dated April 19, 1982 which was published in the State Gazette on August 10, 1982.It upheld the termination of the appellant 's service as legal and valid. The respondent, by its letter dated December 12, 1980 which was received by the appellant on December 19, 1980, intimated that the appellant wilfully absented from duty continuously for more than 8 days from December 3, 1980 without leave or prior information or intimation or previous permission from the management and, therefore, "deemed to have left the service of the company on your own account and lost your lien and the appointment with effect from December 3, 1980. " In support thereof reliance was placed on clause 13 (2) (iv) of its Certified Standing Order. The appellant averred that despite his reporting to duty on December 3, 1980 and everyday continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register. He pleaded that he was not permitted to join duty without assigning any reasons. His letter of December 3, 1980 was marked herein as Annexure 'A ' wherein he explained the circumstances in which he was prevented to join duty. The Tribunal found that the appellant had failed to prove his case. The action of the respondent is in accordance with the standing Orders and it is not a termination nor retrenchment under the for short 'the Act '. The appellant in terms of standing orders lost his lien on his appointment and so is not entitled to reinstatement. Clause 13 (2) (iv) standing order reads thus: "If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his 936 appointment unless. (a) he returns within 3 calander days of the commencement of the absence of the expiry of leave originally granted or subsequently extended as the case may be; and (b) explains to the satisfaction of the manager/management the reason of his absence o r his inability to return on the expiry of the leave, as the case may. The workman not reporting for duty within 8 calander days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the Muster Rolls in such an eventuality. " A reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended the employee loses his lien on employment unless he returns to duty within eight calander days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the Manager/Management of his reasons for absence or inability to return to the duty on the expiry of the leave. On completion of eight calander days ' absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter the management has been empowered to strike off the name from the Muster Rolls. Section 2(oo) of the Act defines 'Retrenchment ' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman, or (b) retirement of the workman on reaching the age of superannuation of the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, or (c) termination of the service of a workman on the ground of continued ill health. " Section 25F prescribes mandatory procedure to be followed before the retrenchment becomes valid and legal and violation thereof visits with invalida 937 tion of the action with consequential results. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs Presiding Officer, Labour Court, Chandigarh and Ors., the Constitution Bench considered the scope of the word 'retrenchment ' defined by s.2(oo) and held in para 71 at page 716 that "analysing the definition of retrenchment in Section 2(oo) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in Clauses (a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of continued ill health. There would be no violational element of the employer. Their express exclusion implies that those would otherwise have been included". In para 77 at page 719 it was further held that "right of the employer and the contract of employment has been effected by introducing Section 2(oo)". The contention of the management to terminate the service of an employee under the certified standing Orders and under the contracts of employment was negatived holding that the right of the management has been effected by introduction of section 2(oo) and section 25F of the Act. The second view was that the right as such has not been effected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of section 25F of the Act to tide over the financial difficulty which subserves the social policy. This court relied on the maxim Stat pro ratione valuntas populi; the will of the people stands in place of a reason. In paragraph 82 at page 722 this court concluded that the definition in s.2(oo) of the Act of retrenchment means "the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section". Same view was taken by three benches of three Judges of this Court in State Bank of India vs Sri N. Sundara Mani; ; ; Delhi Cloth & General Mills Lid. vs Shambhu Nath Mukherjee & Ors ; and Hindustan Steel Ltd. vs The Presiding Officer. Labour Court ; and two benches of two judges in Robert D 'Souza vs Executive Engineer, Southern Railway and Anr. ; and H. D. Singh vs Reserve Bank of India and Ors. [1985] 4 SCC 201 took the same view. Therefore, we find force in the contention of Sri R. K. lain, the learned Senior counsel for the appellant that the definition 'retrenchment ' in S.2(oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. We need not, however, rest our conclusion on this point as in our considered view it could be decided on the other contention raised by Sri Jain that the order is violative of the principles of natural justice. We are impressed with that argument. Before dealing with it, it is necessary to dispose of inter related contentions raised by Dr. Anand Prakash. 938 The contention of Dr. Anand Prakash that since this appeal was deleted from the constitution bench to be dealt with separately, the finding of the constitution bench deprived the respondent of putting forth the contention based on Cl. 13 of the certified standing order to support impugned action and the respondent is entitled to canvass afresh the correctness of the view of the constitution bench is devoid of force. It is settled law that an authoritative law laid after considering all the relevant provisions and the previous precedents, it is no longer open to be recanvassed the same on new grounds or reasons that may be put forth in its support unless the court deemed appropriate to refer to a larger bench in the larger public interest to advance the cause of justice. The constitution bench in fact went into the self same question vis a vis the right of the employer to fall back upon the relevant provision of the certified standing Orders to terminate the service of the workman/employee. By operation of section 2(oo) the right of the employer under Cl.13(2) (iv), and the contract of employment has been effected. Moreover in Ambika Prasad Mishra vs State of U.P. and Ors. , ; at 72 23 para 5 & 6. A constitution bench held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority 'merely ' because it was badly argued, inadequately considered and fallaciously reasoned. In that case the ratio of this court on article 31A decided by 13 Judges bench in Keshwanand Bharti vs Union of India [1973] Suppl. SCR was sought to be reopened but this court negatived the same. His contention that expiry of eight days ' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears no substance. The constitution bench specifically held that the right of the employer given under the standing Orders gets effected by statutory operation. In Robert D ' Souza 's case (supra) in para 7, this court rejected the contention that on expiry of leave the termination of service is automatic and nothing further could be done. It was further held that striking of the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 consequitive days amounts to misconduct and termination of service on such grounds without complying with minimum prin ciples of natural justice would not be justified. In Shambhunath 's case three Judges bench held that striking of the name of the workman for absence of leave itself amounted to retrenchment. In H.D. Singh vs Reserve Bank of India & Ors. (supra), this court held that striking of the name from the rolls amounts to an arbitrary action. In State Bank of India vs Workmen of State Bank of India and Anr.[1991] 1 SCC 13, a two judge bench of this court to which one of us, K.R.S.,J. was a member was to consider the effect of discharge on one month 's notice or pay in 939 lieu thereof. It was held that it was not a discharge simplicitor or a simple termination of service but one camouflaged for serious misconduct. This court lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was not valid in law. The principle question is whether the impugned action is violative of principles of natural justice. In A.K. Kriapak and Ors. vs Union of India & Ors., a Constitution bench of this court held that the distinction between quasi judicial and administrative order has gradually become thin. Now it is totally clipsed and obliterated. The aim of the rule of the natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded as held in Col. J.N. Sinha vs Union of India & Anr. [1971] 1 SCR 791. It is settled law that certified standing orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely the Act made exceptions for the application of principles of natural justice necessary implication from specific provisions in the Act like Ss.25F; 25FF; 25FFF; etc, the need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service are completed, the need to dispense with the services may arise. In that situation, on compliance of the provisions of section 25F resort could be had to retrench the employees in conformity therewith particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely ' the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the concerned person. 940 It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. vs The Chief Election Commissioner & Ors. at 308F the Constitution Bench held that 'civil consequence ' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non pecuniary damages. In its comprehensive connotion every thing that affects a citizen in his civil life inflicts a civil consequence. Black 's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action. In State of Orissa vs Dr. (Miss) Binapani Dei & Ors., this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. In State of West Bengal vs Anwar Ali Sarkar , per majority, a seven Judge bench held that the rule of procedure laid down by law comes as much within the purview of article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi vs Union of India,. 1, another bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under Art, 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to he reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of article 14. 941 and such law would be liable to be tested on the anvil of article 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of article 14. So it must be right,just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative. inquiry as well as the quasi .judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi judicial enquiry and not to administrative enquiry. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportu nity of being heard and fair opportunities of defence. article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of article 14 and the procedure prescribed by law must be just, fair and reasonable. In Delhi Transport Corpn. vs D. T. C. Mazdoor Congress and Ors, [1991] Suppl. 1 SCC 600 this court held that right to public employment and its concomitant right to livelihood received protective umbrella under the can copy of articles 14 and 21 etc. All matters relating to employment includes the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just. fair and reasonable procedure prescribed under the provisions of the constitution and the rules made under the provisions of the constitution and the rules made under proviso to article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Part III and IV of the Constitution. article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural 942 justice is an integral part of the Guarantee of equality assured by article 14. Any law made or action taken by an employer must be fair,just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of ' natural justice. articles 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the affect thereof is the end result. It is thus well settled law that right to life enshrined under article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D. 7. C. vs D. T.C. Mazdoor Congress and Ors. (supra) the constitution bench, per majority, held that termination of the service of a workman giving one month 's notice or pay in lieu thereof without enquiry offended article 14. The order terminating the service of the employees was set aside. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellant 's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 (2) (iv). Otherwise it would become arbitrary. unjust and unfair violating articles 14. When so read the impugned action is violative of the principles of natural justice. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 943 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accord ingly. The parties would bear their own costs. N.P.V. Appeal allowed.

The respondent company terminated the appellant 's services on the ground that since he had willingly absented from duty continuously for more than 5 days from December 3, 1980, without leave or prior information of intimation or previous permission of the management, he had been deemed to have left the service of the company on his own and lost the lien and the appointment with effect from December 3, 1980. It relied on clause 13(2) (iv) of the Certified Standing Order in support of its action. The appellant 's plea that despite his reporting to duty on December 3, 1980 and every day continuously thereafter, he was prevented entry at the gate and was not allowed to sign the attendance register and that he was not permitted to join duty without assigning any reasons, was not accepted. The Labour Court upheld the termination order as legal and valid. It held that the appellant had failed to prove his case, that the action of the respondent was in accordance with the Standing Orders and it was not a termination nor retrenchment under the and that the appellant in terms of Standing Orders lost his lien on his appointment and was not entitled to reinstatement. Allowing the appeal of the employee, this Court HELD:1.1. The action of the management in terminating the appellant 's service is violative of the principles of natural justice. Under clause 13 (2) (iv) of Certified Standing Orders, on completion of eight calendar days ' absence from duty an employee shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter, the management is empowered to strike off the name from the Muster Rolls. But it is not correct to say that expiry of eight days ' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic. The prin ciples of natural justice must be read into the Standing Order No. 13 (2) (iv). Otherwise, it would become arbitrary, unjust and unfair violating Article 14. Keshwanand Bharti vs Union of India, and State Bank of India vs Workmen of State Bank of India and Anr. ; , referred to. 1.2. In the instant case,admittedly,the management did not conduct any domestic enquiry nor gave the appellant any opportunity to put forth his case. 932 The Labour Court did not record any findings on the appellant 's plea that despite his reporting to duty on December 3,1980 and on all subsequent days and readiness to, join duty he was prevented from reporting to duty, nor he was permitted to sign the attendance register, but held that the management had power under clause 13 of the Certified Standing Orders to terminate the service of the appellant. Under the circumstances, the award of the Labour Court is set aside. The respondent should reinstate the appellant forthwith with 50 per cent of the back wages. Certified Standing Orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely, the made exceptions for the application of principles of natural justice by necessary implication from specific provisions in the Act like Sections 25F, 25FF, 25FFF etc. The need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily, to a service of such temporary workmen to meet such exigencies and as soon as the work or service is completed, the need to dispense with the services may arise. In that situation, on compliance of the provisions of Section 25F resort could be had to retrench the employees in conformity therewith. Particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects, the principles of natural justice would apply unless the employer should justify the exclusion on given special and exceptional exigencies. Col. J.N. Sinha vs Union of India & Anr., [1971] 1 S.C.R. 791, relied on. Application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily affecting the rights of the concerned person. No decision must be taken which will affect the right of any person without first being informed of the case and be given him/her an opportunity of putting forward his/her case. An order involving civil consequences must he made consistently with the rules of natural justice. It is not so much to act judicially but to act fairly, namely, the procedure adopted must he just, fair and reasonable in the particular circumstances of the case. The procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 of the Constitution and such law would be liable to be tested on the anvil of Article 14. The procedure prescribed by a 933 statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of the Article. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 14 has a pervasive processual potency and versatile quality, equalitarian it its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. Therefore, the principles of natural justice are part of Article 14 and the procedure prescribed by law must be right, just, fair and reasonable and not arbitrary, fanciful or oppressive. Mohinder Singh Gill & Anr. vs The Chief Election Commissioner & Ors. ; State of Orissa vs Dr. (Miss) Binapani Dei & Ors. , ; ; State of West Bengal vs Anwar Ali Sarkar, ; and Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621, relied on. Blak 's law Dictionary 4th Edn. p. 1487; referred to. Article 21 of the Constitution clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. Delhi Transport Corpn. vs D. T.C. Mazdoor Congress, and Ors., [1991] Suppl. 1 S.C.C. 600, relied on. The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded. There can be no distinction between a quasi judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi judicial enquiry is to 934 arrive, at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it must logically be applicable both to quasi judicial enquiry and administrative enquiry and not only to quasi judicial enquiry. A. K. Kriapak and Ors. vs Union of India & Ors. , relied on. An authoritative law laid after considering all the relevant provisions and the previous precedents is no longer open to be recanvassed on new grounds or reasons that may be put forth in its support unless the Court deemed it appropriate to refer to a larger bench in the larger public interest to advance the cause of justice. Ambika Prasad Mishra vs State of U. P. & Ors. 10 and Keshwanand Bharti vs Union of India, , relied on. The Constitution Bench in fact went into the self same question visa vis the right of the employer to fall back upon the relevant provision of the Certified Standing Orders to terminate the service of the workman/employee. Therefore, it is not correct to say that since the present appeal was deleted from the Constitution Bench to be dealt with separately, the finding of the Constitution Bench deprived the respondent of putting forth the plea based on clause 13 of the Certified Standing Order to support the action in question and the respondent is entitled to canvass afresh the correctness of the view of the Constitution Bench. The definition of 'retrenchment ' in Section 2(oo) of the is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. Punjab Land Development and Reclamation Corpn. Ltd., Chandigarh vs Presiding Officer, Labour Court, Chandigarh and Ors., ; State Bank of India vs Sri N. Sundara Mani; , ; Delhi Cloth & General Mills Ltd. vs Shambhu Nath Mukherjee & Ors., [1978] 1 S.C.R. 591; Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, ; Robert D ' Souza vs Executive Engineer Southern Railway, and Anr., ; and H.D. Singh vs Reserve Bank of India & Ors., [1985] 4 S.C.C.201, referred to. 935

Appeal No. 891 of 1963. Appeal by special leave from the judgment and decree dated June 26, 1959 of the Assam High Court in Letter Patent Appeal No. 1 of 1959. N. C. Chatterjee and D. N. Mukherjee, for the appellants. Sarjoo Prasad and K. P. Gupta for respondents. The Judgment of the Court was delivered by Shah, J. Biswambar Roy predecessor interest of the appellants was Granted on February 20, 1928, a lease for ten 115 years 1335 B.S. to 1344 B.S. at an annual rental of Rs. 75/ in respect of a plot of land, part of Dag No. 3615 in the town of Silchar, District Cachar in the State of Assam. Biswambar Roy constructed on the land, buildings, some for residential use, and others as warehouses. On the expiry of the period of the original lease, Biswambar Roy obtained a fresh lease in respect of a part of the land for ten years Baisakh 1345 B.S. to Chaitra a 1354 B.S. at an annual rental of Rs. 70/ under an instrument dated February 22, 1938. The respondents purchased the interest of the landlords the land and instituted on August 3, 1951 an action in the Court of the Sadar Munsiff, Silchar against Biswambar Roy for a decree for vacant possession of the land. The suit was decreed by the Munsiff. Biswambar Roy appealed to the Subordinate Judge, Silchar. During the pendency of the appeal, the Non agricultural Urban Areas Tenancy Act 12 of 1955 enacted by the Assam Legislature was brought into force. Biswambar Roy claimed protection from eviction under section 3 of Act 12 of 1955. The Subordinate Judge held that Biswambar Roy had acquired under section 5(1)(a) of the Act the rights of a permanent tenant, since he had constructed within the period prescribed permanent structures for residential or business purposes. He accordingly reversed the decree passed by the Trial Court and dismissed the suit. Against that decree, an appeal was preferred to the High Court of Assam. Deka, J., held that Biswambar Roy could not claim the protection of section 5(1) (a) of the Act, since he had let out to tenants the buildings constructed on the land. In the view of the learned Judge, by the use of the expression "for residential or business purposes" in section 5(1)(a) it is intended that buildings constructed by the tenant should be utilized by the tenant himself for his own residence or for carrying on business and that it is not the intention of the Legislature that third persons should be protected by section 5 from eviction from those structures. An appeal under the Letters Patent from that judgment was heard by C. P. Sinha, C. J., and Mehrotra, J. The learned Judges differed. Sinha, C. J., was of the view that permanent structures constructed by Biswambar Roy conformed to the descripticon "residential or business purposes" and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof and was not liable to be evicted except for non payment of rent. With that view Mehrotra, J., did not agree. He held that a tenant who obtains land on lease for erecting a structure thereon not for his own residential or business purposes but for letting out to others does not build "a permanent structure on the land of, the tenancy for residential or business purposes". and may not claim protec tion under section 5(1)(a). Since there was no majority concurring in the judgment agreeing or reversing the decree appealed from, under section 98(2) of the Code of Civil Procedure the appeal was ordered to be dismissed. Against the decree passed by the High Court, with special leave, this appeal is preferred. 116 This Court has held that section 5 of Assam Act 12 of 1955 has retrospective operation: Refiquennessa vs Lal Bahadur Chetri & Others,(1) and the only question to be determined in this appeal is whether a tenant qualifies for protection under section 5 of the Act only after building permanent structures on the land of the tenancy if he occupies them for his own residential or business purposes. The material part of the section reads: "(1) Notwith tanding anything in any contract or in any law for the time being in force (a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non payment of rent;" Protection under the first part of section 5(1)(a) may be claimed by a tenant if three conditions co exist: (i) under the terms of the contract of tenancy the tenant is entitled to build on the land of the tenancy; (ii) that pursuant to such liberty, he has actually built, within the period of five years from the date of the contract a permanent structure on the land of the tenancy; and (iii) that the permanent structure is for residential or business purposes. The first two conditions are fulfilled in this case. But the learned Judges of the High Court disagreed on the fulfillment of the third condition: they differed as to the true meaning of the expression" a permanent structure. . for residential or business purposes". In the view of Sinha, C. J., under the Act the character of the structure is determinative and not personal use by the ten. ant. Mehrotra, J., held that the permanent structure must be for residential or business purposes of the tenant. We are unable to agree with the view taken by Mehrotra, J., because the Legislature has not, in conferring rights of permanent tenancy, either expressly or by implication enacted any such qualification as is suggested by the learned Judge. The section merely requires that the permanent structure must be one adapted for residential or business purposes. If the structure is not adapted to such purposes, the protection of section 5(1)(a) will not be available. To read the expression "permanent (1) ; 117 structure on the land of the tenancy for residential or business purposes" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section. It was urged on behalf of the landlords that it could not have been the intention of the Legislature to confer by section 5(1)(a) protection upon sub tenants. It was said that a sub tenant is not a tenant within the meaning of section 3(g) of the Act, and he cannot claim protection from eviction under section 5(1)(a). In our judgment, the argument is wholly misconceived. Protection is conferred in terms by section 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land. It is not necessary in this case to consider whether by virtue of the definition of "tenant" in section 3(g) of the Act which includes a person who derives his title from a tenant, a sub tenant of the land is entitled to protection of section 5(1)(a). In the present case, the tenant of the land has claimed protection. By merely letting the premises constructed on the land obtained by him on lease, the tenant does not cease to be in possession of the land. The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined. Possession of the land obtained by the tenant remains his even after he has let out the building constructed by him, and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes, when it is let out. We therefore agree with the view taken by Sinha, C. J., that the protection of section 5(1)(a) extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute. The appeal is therefore allowed and the decree passed by the High Court vacated and the plaintiffs ' suit dismissed. The appellants who are the representatives of the tenant will be entitled to their costs in this Court. There will be no order as to costs in the High Court. Appeal allowed.

The former State of Bharatpur sold some plots for establishing a Mandi, and the appellant was one of the purchasers. Under the terms of the sale, a person trading in the Mandi would get a reduction of 25 % in the customs duty payable, if the commodities were imported into or exported out of the State through the Mandi. The Government of Bharatpur and after its merger the Government of the United State of Matsya, and thereafter, the present Rajasthan State (respondent herein) allowed the reduction to the appellant, who was also a trader. In 1951, the respondent revoked the concession. The appellant filed a suit for the recovery of the excess amount of customs duty paid on the basis that there was a valid contractual liability to grant the concession. The suit was dismissed by the High Court on appeal. In appeal to this Court, HELD:(i) The appellant 's suit must fail because there was no recognition of the contractual right to the succeeding State of Rajasthan. The contractual liability of a former State is binding on a succeeding sovereign State only if it recognises that contractual liability. The enjoyment of the concession by the appellant after the formation of the Rajasthan State did not show any implied recognition of the contractual liability by the respondent, because, the concession is referable to section 33 of the Matsya Customs Ordinance of 1948 under which the concession could be granted and recognised. [85B 88C D] Case law referred to. (ii) Even upon the assumption that there was an implied re cognition by the respondent of the contractual liability, the suit must fail, for the contractual liability must be taken to have been super. seded by the enactment of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949. [88 E F]. Parliament and State Legislatures are, subject to any prohibition in the Constitution, competent to enact laws altering the terms and conditions of a previous contract or of a grant under which the liability of the Government of India or of the State Governments arises. There is nothing in the provisions of the Ordinance which preserves the alleged contractual rights of the appellant, and in the absence of any express language in the Ordinance preserving such rights. it must be held that the general law enacted in the Ordinance supersedes the previous contract of the appellant with the State of Bharatpur. [90 D F] Maharaj Umeg Singh vs The State of Bombay. [1955] 2 S.C.R. 164 and Maharaja Shree Umaid Mills Ltd. vs Union of lndia, [1963] Supp. 2 S.C.R. 515, followed. 82 (iii)The levy of Customs duty is in conformity with article 306 of the Constitution. [91 D]

o. 1067 of 1971. Appeal by special leave from the judgment and order dated October 30, 1970 of the: Delhi High Court in F.A.0. (O.S.) No. 40 of 1970. N. A. Palkhivala, D. Mukherjee, R. H. Dhebar and A. J. Rane, for the appellants. V. M. Tarkunde, G. L. Sanghi, B. R. Agarwala and Janendra Lal, for respondent No. 1. A. K. Sen, G. L. Sanghi and B. R. Agarwala, for respondent No. 2. The Judgment of the Court was delivered by P. Jagammohan Reddy, J. This appeal is by special leave. The question for consideration is whether there is a binding, valid and concluded contract between the appellants and the respondents. On an application filed by the respondents under section 20 of the Arbitration Act a single Judge of the Delhi High Court directed the appellants to file the arbitration agreement to refer the disputes between the parties arising under the contract to arbitrators. An appeal against that order to a Division Bench was dismissed. In order to understand the scope of the controversy, a few facts may be stated. On the 21st March 1968, a notice of Global Tender No. 1 of 1968 was issued by the President of India, therein referred to as the Government of India, Ministry of Railways (Railway Board) proposing to sell 80,000 tones of surplus released serviceable and scrap rails, as per details given in the schedule thereto, to established buyers abroad or their accredited agents. It invited offers in respect thereof to be addressed to the President of India and sent to Shri R. No. Mubayi, Director, Railway Stores, Railway Board. With this notice were enclosed the general conditions of tender, special conditions of tender, instructions to tenderers, including proforma for performance guarantee and deed bonds as in clauses 4A and 4B, shipping terms and schedule of stocks available as on 1st March 1968. In the general conditions the seller was defined to mean the President of India acting through the Director, Railway Stores, Railway Board, unless the context otherwise provided. The delivery F.O.B. (Free an Board /F.A.S. (Free Alongside Ship) invoices and freight were dealt with in clause 9. The default clause in clause 11 provided that where a buyer fails to execute the contract the seller was to have power under the hand of the Director, Railway Stores, Railway Board, to declare the contract at an end 439 at the risk and cost of the buyer. The special conditions of tender dealt with prices, quotations, payments, terms of shipment, weighment, basis of sales and handling at ports, force majeure, arbitration, legal jurisdiction, acceptance of offers and title and risk. In the instructions to tenderers, the tenderers were requested to quote their highest offer indicating the price per metric tonne inclusive of export incentive of 5% of F.O.B. value currently applicable as guarantee by the Government of India which will always be to, the sellers benefit for handing over of the rails F.O.B. docks/F.A.S./F.O.B. Indian Port or C.I.F. destination port. The tenderer was required to offer comments clause by clause on the 'general conditions of tender ' and the 'special conditions of tender ' either confirming acceptance of the clauses or indicating deviation therefrom, if any. It was further provided that the contract will come into force from the date the buyers ' letter of credit is accepted by the sellers ' nominee. In 4A of these instructions the proforma deed bond was given which was to be signed by the tenderer and the acceptance was to be signed for and on behalf of the President of India by the person designated for that purpose. Similarly, para 4B. gave the proforma performance guarantee bond to be addressed to the President of India executed by the tenderer and accepted for and on behalf of the President of India by the ,person so designated. The terms and conditions also set out the shipping terms in detail, though a few of them were also mentioned in the special conditions under the headings Shipment, Terms of Shipping and Receiving Notice. It appears that the terms and conditions enclosed with the tender notice annexed to the petition filed in court were not full and complete. Consequently the appellant has annexed a true copy of the enclosures with the special leave petition and prayed that this may be admitted in evidence. As there was no dispute in respect of the contents thereof, we have allowed this prayer because without them it is not possible to arrive at a just conclusion. Pursuant to this tender notice, the respondents, by their letter, exhibit 'B ', dated 21 5 1968, offered to buy 80,000 tonnes of rails at $45.1 per tonne F.O.B. Indian Ports on the term and conditions set out therein. In reply thereto, by a letter dated 25 5 1968, the Dy. Director, Railway Stores, Railway Board, P.C. Oak in para 1 (6) categorically. stated by reference to para 14 of the conditions of the letter of the respondents that as shipping terms have finan cial implications they were requested to indicate with reference to the tender which particular clauses they desire to re negotiate and settle. In para 2 it was stated that the offer of the respondents was not addressed to the President of India as required under clause 1(3) of the Instructions to the Tenderers and, therefore, the Respondents were required to confirm that their offer was deemed to 'nave been addressed to the President of India and ' is 440 open for acceptance on behalf of the President, it was further stated in para 4 that they should send the reply addressed to the President of India through the Director of Railway Stores, Railway Board covering all the points indicated therein, to reach them not later than 28 5 1968. No reply was, however, received by the time indicated in the letter of the appellants and while so stating another letter was addressed to the Respondents on 3 6 68 by C. Parasuraman for Secretary, Railway Board, seeking further clarification in respect of items Nos. 26 and 27 of the offer contained in the aforesaid letter of the Respondents dated 21 5 1968. There were also two other clarifications in respect of the weight of the tonne for which $45.1 was quoted and the option to transfer the contract in the name of the foreign principles which it was stated, could not be agreed to straightaway unless and until they knew the names of the foreign principles and their willingness to enter into a legal binding guarantee of all the terms and conditions of the contract. The Respondents wrote subsequently to the Director, Railway Stores on the 15th June, 29th June, 8th July and the three letters on 10th July and one on the 15th July 1968, some of which were written after a discussion with the Director of Railway Stores in the presence of the Director of Finance, Mr. Datta. On the same day as the letter of 15th July was sent by the Respondents, P. C. Oak signing for the Secretary of the Railway Board, addressed the following letter of acceptance, No. 68/RS(G)/709/10 to the Respondents "Subject: Tender No. 1 of 1968 for Export sale of used re rollable and repayable steel rails. Reference: Your letter Nos. Nil dated 21 5 68, 15 6 68, 29 6 68, 8 7 68, 10 7 68 and 15 7 68. Kindly be advised that your offer (at $39 per long ton F.O.B. Indian Port for export and Rs. 458/ per long ton for indigenous consumption) with terms and conditions referred to in your above letters is hereby accepted. Formal contract will be issued shortly. Kindly acknowledge receipt. Yours faithfully, Sd./ P. C. Oak. for Secretary, Railway Board". Thereafter, it is alleged that several draft agreements were. exchanged regarding which there is a dispute but ultimately be, fore us it is not contested that a draft agreement, which the appellants say is the 5th draft, but according to the Respondents is 441 the final draft, was handed over to the Respondents by P. C. Oak on 27 8 68 but this, however, was not signed. Clause 2 of this draft agreement states. that the contract has been concluded by the issue of seller 's letter No. 68/RS(G)/709/10 dated 15 7 68 to the buyers; that the term of the contract shall be three years from 1 11 1968 to 31 10 1971; that the buyers reserve the right to act upon the contract any time before 1 1 1 68 and start inspection and take delivery of the goods but this will not in any manner effect the terms of the contract. Even thereafter there was further correspondence between the parties. By letter dated 18 9 68 the Respondents wrote to the Director, Railway Stores, agreeing to several other matters to be included in the final draft and requested him to issue the 'final. contract ' without delay. On the 21st September 1968 the Respondents again wrote to the Director, Railway Stores, complaining that the information provided by the various Railways was not complete and requested him to contact the various Railways and obtain the required information as soon a , possible. After the receipt of this letter the Joint Director, Railway Stores (G), wrote to the general Manager (S), All Indian Railways with a copy to the respondents calling for the required information. In that letter the Joint Director stated thus : ". the Board have finalized an export cum internal sale contract with M/s. N. K. (p) Ltd., New Delhi for a period of 3 years, entitling them to export stock of such surplus rails available with the Railways. The de tailed terms and conditions of the contract will be apprised to you when finalized". On the 23rd October 1968, C. Parasuraman, for Secretary. , Railway Board, replied to the letter of the Respondents of the 21st September 1968, stating that it was not correct that their officehas assured them that it would arrange to get the missing details from the concerned C.O.Ss. After this letter two other letters were written by the Respondents to the Director, Railway Stores, dated 7th and 23rd November 1968. In the first letter it was stated thus "In pursuance of your invitation we submitted our tender for purchase of used relayable and re rollable steel rails on 21 5 68. After some negotiations the terms of the contract were finalized and the Secretary, Railway Board by his letter No. 68/RS(G)70910 dated 15 7 68,. accepted our offer and concluded the contract. We were informed that the formal contract will be issued shortly. A draft of the formal contract was handed over to us on 27 8 68. In our letter of 18 9 68, some agreed terms were set out which had to be incorporated in the formal contract. Since the acceptance of our 442 offer we have made all arrangement for the sale of the material We beg to inform you that out of the total quantity of 88,936 tonnes of Rails already offered to us for our approval we approve and shall take delivery of 53,807 Tonnes as per list enclosed herewith. The above quantity may kindly be reserved for us and arrangement be made for their delivery in terms of the contract. " In the second letter, the respondents complained that though the contract for sale of used rerollable and relayable steel rails was concluded on 15 7 68 they regretted that they had not received the formal contract so far and requested that it should be sent without any further delay. In the last paragraph of that letter, the Respondents complained that they came to know that some of the Railways who were. holding storks are selling the steel rails which they have no right to do and requested them to stop such sales. To this, P. C. Oak for Secretary, Railway Board, replied "Kindly refer to correspondence resting with your letters dated July 26, 1968, 18th September 1968 and No. RB/Rails/68/1/114, dated 2nd December 1968. Your contention contained in your letter No. RB/Rails/ 68/1 dated 23 11 68 that the Railway Board is not authorized to sell rails ' to other parties because of their having concluded a contract with you is factually incorrect. No doubt, letter No. 68/RS(G)/709/10 dated 15 7 68 indicated an intention to enter into a con tract with you, but subsequent to this, discussions had been held with you over a number of sittings on 20 7 68, 12 8 68, 26 8 68, 27 8 67 culminating in your letter dated 18 9 68. This would amply indicate that no agreement had been reached on vital terms and conditions, and the question of the existence of a concluded contract does not arise '. . " The Respondents replied to this letter by their letter dated 25 1 1969 expressing surprise and contesting the stand taken by the Railway Board. In the petition of the Respondents filed in Court after setting out the relevant correspondence leading upto the letter of acceptance of P. C. Oak dated 15th July 1968, 'it was stated that that letter was a definite acceptance of the offer and constitutes a binding and valid contract between the parties. With respect to the draft agreement of the 27th August 1968 handed over to the Respondents embodying the agreement between the parties, the averment was that the then Acting Director of Railway Stores desired certain additional terms to be embodied in the terms that were agreed to. The additional terms were agreed to by the plaintiffs (Respondents) by their letter to the 443 Director, Railway Stores, dated 18 9 1968. In para 16 it was further alleged that after the letter of acceptance by the appellants the then Acting Director of Railway Stores and the Director of Finance proposed to the plaintiffs that the price offered by them should be increased or in the alternative certain alterations be made in the agreed terms, but the plaintiffs having justly refused to do so, the 2nd defendant (C. Parasuraman) falsely wrote to the plaintiffs on 15 1 1969 that no concluded contract had taken place and that the Railway Board was, therefore, not precluded from selling rails to other parties. The appellants in their written statement, raised a prelimi nary objection, namely, that the petition was misconceived as there was no arbitration agreement between the parties and so the question of enforcing the arbitration clause in the alleged contract did not arise. It also reiterated its stand earlier taken that the letter dated 15 7 68 written by Oak on behalf of the Secretary, Railway Board, was not a letter of acceptance of the offer of the Respondents so as to amount to a concluded contract binding on the Union of India nor could it be construed as such in view of the mandatory provisions of Article 299 of the Constitution of India. The contention was that unless and until a formal instrument of contract was executed in the manner required by Article 299 of the Constitution and by the relevant notifications, there would not be a contract binding on the Union of India and at any rate no such agreement was entered into as it was. alleged that though interviews had taken place at various times between the plaintiffs and the several officers of the Railway Board, no agreement had been reached on vital terms and conditions. Two submissions were urged on behalf of the appellants, namely : (1) that apart from the contention relating to article 299 of the Constitution, there was no concluded contract between the parties, because (a) the essential terms were not agreed to between them on the date when the acceptance letter was issued by P. C. Oak on 15 7 68, and (b) even it there was an acceptance as alleged, that acceptance was conditional upon a formal contract being executed by the appellants; (2) that the three mandatory requirements of article 299 of the Constitution for a valid and binding contract made in exercise of the executive power of the Union have not been complied with namely, (a) that the contract was not expressed to be in the name of the President, nor (b) was 444 it executed on behalf of the President, or (c) by a person authorized to execute it on his behalf. The crucial question which arises for determination is whether there was a concluded contract, and if there was one, whether the mandatory requirements of Article 299 of the Constitution for entering into a valid and binding contract have been satisfied? It is now settled by this Court that though the words 'expressed ' and 'executed ' in Article 299(1) might suggest that it should be by a deed or by a formal written contract, a binding contract by tender and acceptance can also come into existence if the accept ance is by a person duly authorized on this behalf by the President of India. A contract whether by a formal deed or otherwise by persons not authorized by the President cannot be binding and is absolutely void. We do not for the present consider it necessary to go into the question whether and to what extent the requirements of article 299 have been complied with in this case. What we have to first ascertain is whether apart from the contention relating to Article 299, a concluded contract has come into existence as alleged by the Respondents. Before us detailed arguments were addressed on behalf of the appellants to show that notwithstanding the letter of acceptance of 15th July 1968, no concluded contract had in fact come into existence and though that letter accepted certain terms, there were other essential terms of the contract which had to be agreed to and were the subject matter of further negotiations between the parties; that it was the intention of the parties that all those terms were to be embodied in a formal contract to be executed which contract alone was to be binding between the parties; and that in any case the letter of acceptance and the subsequent letters were not by the Director of Railway Stores but by the Secretary to the Railway Board who was not a person authorized to enter into the agreement between the President of India represented by the Ministry of Railways and the Respondents. On the other hand, the stand taken by the Respondents was that all the essential terms of the contract were agreed to and the contract was concluded on 15th July 1968, though at the ins tance of the Director, Railway Stores further terms with respect to the execution of the contract were the subject matter of negotiations between the parties and in any case these did not pertain to the essential terms and could not on that account detract from the binding nature of a concluded contract. It was also contended that the letter of acceptance by P. C. Oak though signed on behalf of the Secretary, Railway Board was in fact on behalf of the said Board which was authorized to enter into such a contract. It is in our view unnecessary to consider the several contentions as to whether all the essential terms of the contract had been agreed to or that the contract was concluded by the acceptance 445 letter of 15th July 1968 or whether the parties intended it to be a term of the contract that a formal contract should be entered into between them in order to bind the parties. In this case, we are of the view that the Secretary to the Railway Board, on whose behalf the offer of the Respondents was accepted, was not the person authorized to enter into a contract on behalf of the President of India. As can be seen from the various documents already extracted that the tender notice invited offers to be addressed to the President of India through the Director of Railway Stores, Railway Board. Under the general conditions the seller was defined to mean the President of India acting through the Director, Railway Stores and in the default clause it was provided that where the buyer fails to execute the contract, the seller shall have power under the hand of the Director, Railway Stores, Railway Board, to declare the contract at an end. In the letter written by Oak on 25 5 68, as earlier noticed, it was pointed out to the Respondents that their offer was not addressed to the President of India as required under clause 1(3) of the Instructions to the Tenderers and, therefore, the Respondents were required to confirm that their offer can be deemed to have been addressed to the President and is open for acceptance on behalf of the President and their reply should be addressed to the President of India, through the Director of Railway Stores, Railway Board. Even the draft contract dated 27 8 68 in terms of which the Respondents were insisting on a final contract to be issued to them by the appellants was to be executed by the Respondents as buyers on ,the one part and the President of India acting through the Director, Railway Stores, Ministry of Railways (Railway Board) as the sellers, on the other. There is little doubt that the only person authorized to enter into the contract on behalf of the President is the Director, Railway Stores. It is true that the notification of the Ministry of Law issued in exercise of the powers under clause 1 of Article 299 of the Constitution shows that the President directed the 'authorities named therein to execute on his behalf the contracts and assurances of property specified therein. But notwithstanding this, the President is fully empowered to direct the execution of any specified contract or class of contracts on ad hoc basis by authorities other than those specified in the said notification. This Court had in Seth Bikhraj Jaipuria vs Union of India, (1) earlier held that the authority to execute contracts may be conferred on a person not only by rules expressly framed and by formal notifications issued in this behalf but may also be specifically conferred. In this case the letter of ac ceptance dated 15 7 1968 was on behalf of the Secretary, Railway Board, who is not authorized to enter into a contract on behalf of the President. (1) ; 446 It is contended that clause 43 of part XVIII and Part XII empower the Secretary, Railway Board to enter into such con tracts. Clause 43 of Part XVIII provides that all deeds and instruments other than those specified in that part may be executed by the Secretary or the Joint Secretary or the Deputy Secretary or the Under, Secretary in the Railway Board or a Director, Joint Director, Deputy Director or Assistant Director in the Railway Board. It is submitted that as nothing has been specified in Part XVIII relating to the contract of the type we are considering, the Secretary, Railway Board is authorized to enter into a contract on behalf of the President. This submission is untenable because clause 9 specifically provides for the contracts connected with the sale of scrap, ashes, coal, dust, empty containers and stores. The tender, it will be observed, is for rails which are scrap as well as rerollable and relayable but it is urged that relayable rails are not stores nor can they be considered as scrap and as these are not covered by clause 9, the Secretary, Railway Board is fully empowered by the President to enter into a contract on his behalf. We cannot accept this argument because in our view relayable rails are part of the stores. It may be that some of these rails which are part of the stores may be considered to be in a condition which the authorities concerned think should be disposed of. The contracts relating to the goods of the nature specified in the tender notice are, therefore, dealt with by clause 9, as such clause 43 will have no application. Part XLI empowers the Secretaries to the Central Government in the appropriate Ministries or Departments to execute any contract or assurances of property relating to any matter whatsoever and is in these terms : "Notwithstanding anything hereinbefore contained any contract or assurance of property relating to any matter whatsoever may be executed by the Secretary or the Special Secretary or the Additional Secretary or a Joint Secretary or a Director or where there is no Additional Secretary or a Joint Secretary or a Director, a Deputy Secretary to the Central Government in the appropriate Ministry or Department and in the case of. " The contention on behalf of the Respondents is that since Railway Board is a Department of the Government, the Secretary to the Department is authorized to enter into a contract under the above provision. This submission in our view, is equally misconceived because reading the above requirement carefully it will appear that the persons there mentioned should be Secretary. Special Secretary etc., to the Central Government in the appropriate Ministry or Department and not that the Secretary to any Department or office of the Government of India is empowered thereunder. It is however contended that the Secretary to the 447 Railway Board is a Joint Secretary to the Government of India and as such under the above Provision the acceptance letter should be considered to have been executed on behalf of the president Even this submission lacks validity because as pointed out on behalf of the appellant, at the relevant time the Secretary to the Railway Board did not have any status as Secretary to the Central Government. The status of a Joint Secretary was only conferred on him by a notification by the Government of India in the Ministry of Railways for the first time on 15 9 1969 with effect from that date. An affidavit of the Deputy Secretary to the Railway Board (Ministry of Railways) has been filed before us setting out the above fact and enclosing the said notification. Then again it was urged that the members of the Railway Board were Secretaries to the Central Government and hence the Board on whose behalf the Secretary communicated the acceptance could enter into a binding contract. This submission also is without force because there is no material before us to conclude that the Board was so authorized. In these circumstances, even if the correspondence shows that the formalities necessary for a concluded contract have been satisfied and the parties were ad item by the time the letter of acceptance of the 15th July 1968 was written, about which we do not wish to express any opinion, there is no valid or binding contact because the letter of acceptance, on the evidence before us, is not by a person authorized to execute the contracts for and on behalf of the President of India. On the evening before the day the judgment in the case was due to be delivered, an application dated 7 2 72 was filed enclosing an affidavit of R. N. Mubayi who was Director, Railway Stores, between 18 12 1965 to 30 9 1969 as also an affidavit of R. B. Lal, Managing Director of the Respondent No. 1 to take them in evidence and consider the facts stated therein before judgment is delivered, and if necessary, to call for the file and give a re hearing. The affidavit of Mubayi states that only after he recorded on the relevant file and issued instructions to his Deputy Director, Shri P. C. Oak to convey the acceptance of the offer of M/s. N. K. Private Limited, that the acceptance was conveyed by Shri P. C. Oak to the said company. The affidavit of R. B. Lal says that though the affidavit filed by P. Lal, Deputy Secretary, Railway Board stating that the Secretary, Railway Board, did not have the status of Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of India in the Ministry of Railway, he has not denied that the Secretary did not have the status of a Director. It is further submitted in that affidavit that the Secretary of the Board had the status of a Director at the relevant time and as mentioned in Part XLI of the Notification of the Ministry of Law, 'a Director ' is authorized to accept offers. 448 Apart from the question whether we should admit additional evidence at this stage in this case and though we had rejected an earlier submission to call for the files, having regard to the facts stated by R. N. Mubayi, Director of Railway Stores during the relevant period that it was he who had asked P.C. Oak to accept the offer and had so endorsed it on the file, as also the affidavit of R. B. Lal that the Secretary to the Board was the Director of Railway Stores, we withheld the judgment and called for the file to satisfy ourselves. The file has been submitted to us by the appellants along with an affidavit of R. Srinivasan, Joint Director, Railway Board in which it is categorically averred that at the relevant time, namely, 15 7 68, the Secretary Railway Board did not have the status of the Director under Para XLI of the Notification of the Ministry of Law or at all. A perusal of the relevant file relating to the letter of acceptance would show that on 15 7 68, Shri Oak made the following endorsement: "Reference to Board 's orders at page 38/N, draft letter accepting M/s. N.K. (P) Ltd., offer is being issued today. D.R.S. may kindly see before issue", and this endorsement was merely signed by R.N. Mubayi. We are not here referring to the other proceedings on the file as to whether the execution of a formal contract was a condition precedent and as one of the terms of the contract but even the above endorsement does not show that the letter of acceptance of 15 7 68 was issued on the orders and directions of Mubayi as alleged by him in the affidavit. What it in fact shows is that it is the Board that issued the orders of acceptance and that the acceptance letter was only to be seen by him. Even the draft letter issued does not contain his initials or his signature in token of his having seen or approved it. The letter of acceptance not having been issued on the orders of the Director, Railway Stores, there was no concluded contract as on that date, by a person authorized to enter into a contract. There is also nothing to show that the Secretary to the Board was the Director, Railway Board as further alleged in the affidavit of R. B. Lal. In this view the appeal is allowed and the application under section 20 of the Arbitration Act is dismissed but there will be no order as to costs of the appellants. On the other hand, we direct the appellants to pay the costs of the Respondents because special leave was granted on condition that the petitioner will pay the costs of the Respondents in this appeal in any event. S.C. Appeal allowed.

A global tender to sell surplus serviceable and scrap rails was issued to established buyers by the Government of India and pursuant to this tender notice, the respondents by their letter dated 21 5 68 offered to buy the rails at a particular price and Shri P. C. Oak, Deputy Director, Railway Stores, Railway Board, on behalf of the Secretary, Railway Board,, accepted the respondents ' offer with the terms and conditions mentioned in the letters sent by the respondent on 15 7 68. Negotiations for the final contract, however, took place between the parties and on 15 7 68, the respondents complained that some of the Railways who were holding stocks are selling the steel rails which they have no right to sell in view of the concluded contract; but Shri P. C. Oak for Secretary, Railway Board, replied that subsequent to 15 7 68, there were negotiations for the vital terms and conditions of the contract and so the question of the existence of a concluded contract did not arise. At this, the respondents filed a petition in Court under section 20 of the Arbitration Act, after setting out the relevant correspondence leading upto the letter of acceptance of 15th July 1968 and it was stated that, the letter was a definite acceptance of the offer and constitute a valid and binding contract between the parties. In the written statement, the appellants raised a preliminary objection that the petition was misconceived as there was no arbitration agreement between the parties and so the question of enforcing the arbitration clause in the alleged contract did not arise. Further, it was contended by the appellants that the letter of acceptance and the subsequent letters were not by the Director of Railway Stores, but by the Secretary to the Railway Board, who was not a person authorized to enter into the agreement between the President of India represented by the Ministry of Rail ways and the respondents as required under article 299 of the Constitution. Allowing the appeal. BELD : The Secretary to the Railway Board, on whose behalf the offer of the respondents was accepted, was not the person authorized to enter into a contract on behalf of the President of India, as required under article 299, and therefore, the contract, if any, was not binding on the appellants. Further, it was not correct to say that Clause 43 of Part XVIII and Part XLI empowered the Secretary, Railway Board to enter into such contracts; because Clause 9 specifically provided for the contracts connected with the sale of scrap; ashes coal, dust, empty containers and stores; and repayable rails, being part of the stores, it was covered by Clause 9 and the Secretary, Railway Board, was not empowered by the President to enter into a contract on his behalf. [445 B] Seth Bikhraj Jaipuria vs Union of India, [1962] 2 S.C.R. 880, referred to. 438

os. 621, 655 and 678 of 1955. Under Article 32 of the Constitution for the en forcement of fundamental rights. N.C. Chatterjee (section K. Kapur and Ganpat Rai, with him) for the petitioners. 533 M. C. Setalvad, Attorney General for India (Kan Singh and P. G. Gokhale, with him) for respondent No. 1. K.R. Chowdhury, for Goma, Ghisa and Rama, respondents in Petition No. 655 and Dhira, respondent in petition No.678. September 27. The judgment of the Court was delivered by VENKATARAMA AYYAR J. These are applications under article 32 of the Constitution by certain jagir dars of Marwar, challenging the constitutionality of sections 81 to 86 of the Marwar Land Revenue Act No. XL of 1949 (hereinafter referred to as the Act) on the ground that they infringe the fundamental rights of the petitioners under article 14, article 19(1) (f) and article 31(2) of the Constitution. These sections provide for fixing fair and equitable rent payable by the tenants and prescribe the procedure to be followed therefor. Section 81 of the Act provides that when any local area has been brought under settlement operations by a notification under section 64, the Settlement Officer or an Assistant Settlement Officer shall inspect every village in the local area, divide it into soil classes and assessment circles, select rentrates for the area and publish them in such manner as may be prescribed. If objections to these proposals are received, he has to consider them, and submit his report to the Board of Revenue. The Board has the power to sanction the proposals with or without any modifications, and it has also the power to direct further enquiry into the matters. With a view to arriving at fair and equitable rates, the Settlement Officer is required under section 82 to have regard to the collection of rent and cesses in the nature of rent during the ten years preceding the settlement excluding such years as the Government may, by notification in the Official Gazette, declare to be abnormal the average of the prices of agricultural produce during the same period, the nature of the crops grown and the quantity of the produce and their value. Section 82(2) provides that the rent rates shall not 534 exceed one third of, the value of the produce of unirrigated lands and one fourth of the value of the produce of irrigated lands. Under section 84, the Settlement Officer shall determine rents whether by way of abatement, enhancement or commutation payable for all holdings in the occupation of tenants on the basis of the rates sanctioned by the Board of Revenue. Section 86 enacts that any rent fixed by order of the Settlement Officer shall be payable from the first day of July next following the date of such order, "unless the Settlement Officer thinks fit for any reasons to direct that it shall be payable from some earlier date". Acting under section 81 of the Act, the Settlement Officer formulated certain proposals with reference to the rent rates in the villages comprised in the jagirs of the petitioners, and they were published in the Gazette on 12th December 1953. Objections to those rates were filed by the petitioners on the 12th January, 1954. On 13th October 1954 the Additional Settlement Commissioner submitted his final proposals to the Settlement Officer, who forwarded the same to the Board of Revenue for sanction. After making further enquiry, the Board passed an order on 4 12 1954 determining the rent rates payable. Subsequent to this, an order was also passed under section 86 of the Act bringing the sanctioned rate into operation from 1 7 1954. This order is not itself the subject of attack in these proceedings, and it cannot be, seeing that Petition No. 621 of 1954 was filed on 24th November 1954 before that order was passed, and Petitions Nos. 655 and 678 of 1954 merely repeat verbatim the allegations in Petition No. 621 of 1954. Before us, the petitioners conceded that they were not impugning the correctness of the order passed under section 86 in so far as it gave operation to the rates of rent from 1st July, on its merits, but that they were attacking the section as bad only as a step in establishing that the scheme of the Act, of which section 86 is an integral part is, taken as a whole, an infringement of their fundamental rights under articles 14, 19 and 31(2). We have now to consider 535 whether sections 81 to 86 of the Act are bad as infringing the above provisions of the Constitution. The contention that sections 81 to 86 of the Act are void as being repugnant to article 14 is sought to be made out on two grounds. It is stated firstly that the Act applies ' only to what was prior to its merger the State of Marwar, that the present State of Rajasthan comprises Marwar and 17 other States which have merged in it, and that as the Act, as it stands, is directed against the jagirdars in one area of the State and not the whole of it, it has become discriminatory and void. This contention is clearly untenable. What article 14 prohibits is the unequal treatment of persons similarly situated, and therefore before the petitioners can claim the protection of that article, it is incumbent on them to establish that the conditions which prevail in other areas in the State of Rajasthan are similar to those which obtain in Marwar. But of this, there has been neither allegation nor proof. On the contrary, it is stated by the respondents in para 10 of their statement that the tenants in the jagirs of Marwar were paying much more by way of rent and cesses than those in the Khalsa area of the State, that with a view to remove the inequality between the two classes of tenants within the State, a law was passed in 1943 providing for settlement of rent, and that again on 10 1 1947 another law was passed abolishing all cesses (lags) and fixing the maximum share of rent payable in kind. These special features, it is argued, form sufficient justification for a separate legislation for this area, It is also stated that the other States had their own rent laws suited to their conditions. There are no materials on which we could hold that the impugned Act is discriminatory in character, and we cannot strike it down merely on the ground that it does not apply to the whole of the State of Rajasthan. A similar question arose for decision in Bowman vs Lewis(1). There, some of the areas in the State of Missouri were governed by a judicial procedure diff (1) ; 68 536 erent from that which prevailed in others. Repelling the contention that this differentiation offended the equal protection clauses of the Fourteenth Amendment, the Court observed: "Each State has the right to make political subdivisions, of its territory for municipal purposes, and to regulate their local government. As respects the administration of justice, it may establish one system of courts for cities and another for rural districts; one system for one portion of its territory and another system for another portion. Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right If a Mexican State should be acquired by a treaty and added to an adjoining State or part of a State in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited in any fair construction of the Fourteenth Amend ment. It would not be based on any respect of persons or classes, but on municipal considerations alone and a regard to the welfare of all classes within the particular territory or jurisdiction". This Court has also repeatedly held that classification might properly be made on territorial basis if that was germane to the purposes of the enactment. Having regard to the fact that the conditions of tenants vary from locality to locality, we have no hesitation in holding that a tenancy legislation restricted to a portion of a State cannot be held on this ground alone to contravene article 14. The second ground urged in support of the contention that article 14 has been infringed is that discrimination must result from the settlement of rent being taken up only with reference to portions of the 537 area to which the Act applies and not to the whole of it, because the rent rate is to be fixed on the basis of the average of the ten years preceding the settlement; and if the proceedings are started for different areas on different dates, that might result in different rates being fixed, and that would make for inequality such as is prohibited by article 14. We are unable to agree with this,.contention. Settlement operations can be conducted only by a specialised staff having technical knowledge and administrative experience, and it might be beyond the capacity of the State to undertake them for the whole area at one and the same time. To accede to the contention of the petitioners would, in effect, be to prevent the States from carrying on settlement operations. It was held by this Court in Biswambhar Singh vs The State of Orissa and other8(1) and in Thakur Amar Singhji vs State of Rajasthan(2) that a provision authorising the taking over of estates on different dates was not repugnant to article 14, and the principle of those decisions would apply to the present case as well. The contention that the impugned provisions are in contravention of article 14 must, therefore, be rejected. It is then contended that the provisions in question are repugnant to article 19(1) (f) of the Constitution, because they deprive landlords of their right to realise rents from the tenants freely and without hindrance, and are an encroahment on their right to hold property. The provision in section 82 that the Settlement Officer should, in determining the average collection for the previous ten years,exclude from consideration abnormal years as notified by the Government was particularly attacked as a. device to reduce the rent payable to the landlord and an invasion of his rights to the property. We are unable to agree with this contention. The fundamental right which a citizen has to hold and enjoy property imports only a right to recover reasonable rent when the lands are cultivated by a tenant, and therefore a legislation whose object is to fix fair and equitable (1) ; , 845. (2) ; , 538 rent cannot be said to invade that right. The contention that the provision in section 82(1) (a) that abnormal years as notified in the Gazette should be excluded in determining average collections is calculated to reduce the rent, and is therefore unreasonable is unfounded, because a declaration that a year is abnormal is made not only when there are bumper crops but also when the yield is very low, and the provision is intended equally for the benefit of the tenant and of the landlord. A provision of this kind is usual in all tenancy legislation, and there is nothing unreasonable or unfair about it. It was next contended and this was the contention most pressed on us that section 86 is bad as it confers on the Settlement Officer a power to bring the rent rates into operation from a date earlier than ' the succeeding year and even retrospectively from a date prior to the settlement, and that such a power was repugnant to both article 19(1)(f) and article 31(2). The argument with reference to Article 19(1)(f) is that section 86 is an encroachment on the rights of a person to hold property, and can be valid only if it falls within article 19(5), that it is only a law of 'a regulatory character that is protected by article 19 (5), that there could be regulation only with reference to rights to be exercised in future,. and that a law giving retrospective operation is consequently outside article 19(5). This contention rests on an assumption for which there is no basis. The question whether a law is valid under. Article 19 (5) can arise only when there is a violation of the fundamental right declared in article 19 (1) (f), and if the right to hold property imports, as we have held it does, only a fight to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation. If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the future and that is conceded it cannot be an encroachment as regards 539 the past. A consideration, therefore, of the question whether a law under article 19(5) should be regulatory ' and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controversy. The argument in support of the contention that section 86 is repugnant to article 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation. But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within article 31(2), even though it has the effect of reducing his rights. In Thakur Jagannath Baksh Singh vs United Provinces(1), the question arose for decision whether the provisions of Act XVII of 1939, United Provinces, under which the rent payable to a landlord became diminished were obnoxious to section 299(2) of the Government of India Act, 1935. It was held by the Federal Court that they were not, and in affirming this decision on appeal, the Privy Council in Thakur Jagannath Baksh Singh vs United Provinces(2) observed: "The appellant relies on certain express provisions of the Government of India Act. Thus he relies on section 299 of the Act, which provides that no person, shall be deprived of his property in British India save by authority of law, and that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition of 'land for public purposes save on the basis of providing for the payment of compensation. But in the present case there is no question of confiscatory legislation. To regulate the relations of landlord and tenant and thereby diminish rights, hitherto exercised by the landlord in connection with his land, is different from compulsory acquisition of the land". It was finally urged that section 86 in so far as it (1) [1948] 6 F.L. J. 55; A.I.R. 1948 F.C. 29. (2) [1946] L.R. 73 I.A. 123. 540 conferred authority on the Settlement Officer to give retrospective operation to the rent rates was bad, because the exercise of that authority was left to his arbitrary and uncontrolled discretion, that the Act laid down no rules and prescribed no conditions under which the discretion had to be exercised, and that the power conferred in those terms must be held to be unconstitutional. The decision in Thakur Raghubir Singh vs Court of Wards, Ajmer and another(1) was relied on, in support of this contention. There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a. tenant". Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner., and that was final and not liable to be questioned in civil courts. It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under article 19(1)(f), and that it was not saved by article 19(5). But, in the present case, section 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons. There is no force in the contention that section 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority. Discretion which is wide is not necessarily arbitrary. It was said that under section 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under section 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement. We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, (1) ; 541 and that it invades no fundamental rights of the landlord. For the reasons given above, we must hold that the scheme embodied in sections 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid. In the result, the petitions are dismissed but in the circumstances, without costs.

The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion con sistent with the innocence of the accused. The appellant was convicted under section 302 of the Indian Penal Code and sentenced to transportation for life. There were no eyewitnesses to the murder and the conviction of the appellant rested solely on the circumstantial evidence which was relied on by the courts below. The various facts which formed the links in the chain of circumstantial evidence in the present case taken together advanced the case against the appellant very much beyond suspicion and reasonably and definitely pointed to the appellant as the person who committed the murder. In a case like the present when the various links in the chain had been satisfactorily made out and the circumstances pointed to the appellant as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation, and be offered no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completed the chain. Hanumant vs The State of Madhya Pradesh ([1952] S.C.R. 1091), referred to.

Appeals 'Nos. 455 to 457 and 656 to 658 of 1957. Appeals from the judgment and order dated April 29, 1957, of the Bombay High Court in Misc. Applications Nos. 48 to 50 of 1957. G. section Pathak, section K. Kapur, P. N. Bhagwati and Ganpat Rai, for the appellant in C. A. No. 455 of 1957 & respondent in C. A. No. 656 of 1957. Sachin Choudhry, R. J. Joshi, J. B. Dadachanji, Rameshwar Nath and St N. Andley, for the appellants in C. As. Nos. 456 & 457 of 1957 and respondents in C. As. Nos. 657 & 658 of 1957. C. K. Daphtary, Solicitor General for India, G. N. Joshi, K. H. Bhabha and R. H. Dhebar, for respondent No. 4 in C. As. 455 to 457 of 1957 and appellant in C. As. 656 to 658 of 1957. March 28. The Judgment of the Court was delivered by DAS C. J. These six several appeals are directed against a common judgment and order pronounced on 36 282 April 29, 1957, by a Division Bench of the Bombay High Court in three several Miscellaneous Applications under article 226 of the Constitution, namely, No. 48 of 1957 filed by Shri Ram Krishna Dalmia (the appellant in Civil Appeal No. 455 of 1957), No. 49 of 1957 by Shri Shriyans Prasad Jain and Shri Sital Prasad Jain (the appellants in Civil Appeal No. 456 of 1957) and No. 50 of 1957 by Shri Jai Dayal Dalmia and Shri Shanti Prasad Jain (the appellants in Civil Appeal No. 457 of 1957). By those Miscellaneous Applications the petitioners therein prayed for an appropriate direction or order under article 226 for quashing and ,setting aside notification No. section R. 0. 2993 dated ]December 11, 1956, issued by the Union of India in exercise of powers conferred on it by section 3 of the Commissions of Enquiry Act (LX of 1952) and for other reliefs. Rules were issued and the Union of India appeared and showed cause. By the aforesaid judgment and order the High Court discharged the rules and dismissed the applications and ordered that the said notification was legal and valid except as to the last part of cl. (10) thereof from the words " and the action" to the words " in future cases " and directed the Commission not to proceed with the inquiry to the extent that it related to the aforesaid last part of cl. (10) of the said notification. The Union of India has filed three several appeals, namely, Nos. 656, 657 and 658 of 1957, in the said three Miscellaneous Applications complaining against that part of the said judgment and order of the Bombay High Court which adjudged the last part of el. (10) to be invalid. The (hereinafter referred to as the Act), received the assent of the President on August 14, 1952, and was thereafter brought into force by a notification issued by the Central Government under section 1 (3) of the Act. As its long title states, the Act is one " to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers ". Sub sec tion (1) of section 3, omitting the proviso not material for our present purpose, provides: The appropriate Government may, if it is of 283 opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the, People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly." Under sub section (2) of that section the Commission may consist of one or more members and where the Commission consists of more than one member one of them may be appointed as the Chairman thereof. Section 4 vests in the Commission the powers of a civil court while trying a suit under the Code of Civil Procedure in respect of the several matters specified therein, namely, summoning and enforcing attendance of any person and examining him on oath, requiring discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or officer, issuing commissions for examination of witnesses or documents and any other matter which may be prescribed. Section 5 empowers the appropriate Government, by a notification in the Official Gazette, to confer on the Commission additional powers as provided in all or any of the sub sections (2), (3), (4) and (5) of that section. Section 6 provides that no statement made by a person in the course of giving evidence before the commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement provided that the statement is 'made in reply to a question which he is required by the Commission to answer or is relevant to the subject matter of the inquiry. The appropriate Government may under section 7 issue a notification declaring that the Commission shall cease to exist from such date as may be specified therein. By section 8 the Commission is empowered, subject to any rules that may be made, to regulate its own procedure including the time and place of its 284 sittings and may act notwithstanding the temporary absence of any member or the existence of any vacancy among its members. Section 9 provides for indemnity to the appropriate Government, the members of the Commission or other persons acting under their directions in respect of anything which is done or intended to be done in good faith in pursuance of the Act. The rest of the sections aye not material for the purpose of these appeals. In exercise of the powers conferred on it by section 3 of the Act the Central Government published in the Gazette of India dated December 11, 1956, a notification in the following terms: MINISTRY OF FINANCE (Department of Economic Affairs) ORDER New Delhi, the 11th December, 1956 section R. O. 2993 Whereas it has been made to appear to the Central Government that: (1) a large number of companies and some firms were promoted and/or controlled by Sarvashri Ramakrishna Dalmia, Jaidayal Dalmia, Shanti Prasad Jain, Sriyans Prasad Jain, Shital Prasad Jain or some one or more of them and by others being either relatives or employees of the said person or persons, closely connected with the said persons; (2) large amounts were subscribed by the investing public in the shares of some of these companies; (3) there have been gross irregularities (which may in several respects and materials amount to illegalities) in the management of such companies including manipulation of the accounts and unjustified transfers and use of funds and assets; (4) the moneys subscribed by the investing public were in a considerable measure used not in the interests of the companies concerned but contrary to their interest and for the ultimate personal benefit of those in control and/or management; and (5) the investing public have as a result suffered considerable losses. 285 And Whereas the Central Government is of the opinion that there should be a full inquiry into these matters which are of definite public importance both by reason of the grave consequences which appear to have ensued to the investing public and also to determine such measures as may be deemed necessary in order to prevent a recurrence thereof; Now, therefore, in exercise of the powers conferred by section 3 of the Commissions of Inquiry Act (No. 60 of 1952), the Central Government hereby appoints a Commission of Inquiry consisting of the following persons, namely : Shri Justice section R. Tendolkar, Judge of the High Court at Bombay, Chairman. Shri N. R. Modi of Messrs A. F. Ferguson & o., Chartered Accountants, Member. Shri section C. Chaudhuri, Commissioner of Income tax, Member. 1.The Commission shall inquire into and report on and in respect of: (1) The administration of the affairs of the companies specified in the schedule hereto; (2) The administration of the affairs of such other companies and firms as the Commission may during the course of its enquiry find to be companies or firms connected with the companies referred to in the schedule and whose affairs ought to be investigated and inquired into in connection with or arising out of the inquiry into the affairs of the companies specified in the schedule hereto; (3)The nature and extent of the control, direct and indirect, exercised over such companies and firms or any of them by the aforesaid Sarvashri Ram Krishna Dalmia, Jaidayal Dalmia, Shanti Prasad Jain, Sriyans Prasad Jain, their relatives, employees and persons connected with them; (4)The total amount of the subscription obtained from the investing public and the amount subscribed by the aforesaid persons and the extent to which the funds and assets thus obtained or acquired were misused, misapplied or misappropriated; (5) The extent and nature of the investments by 286 and/or loans to and/or the use of the funds or assets by and transfer of funds between the companies aforesaid; (6)The consequences or results of such investments, loans transfers and/or use of funds and assets ; (7)The reasons or motives of such investments, loans transfers and use and whether there was any justification for the same and whether the same were made bona fide, in the interests of the companies concerned ; (8) The extent of the losses suffered by the investing public, how far the losses were avoidable and what steps were taken by those in control and/or management to avoid the losses; (9) The nature and extent, of the personal gains made by any person or persons or any group or groups of persons whether herein named or not by reason of or through his or their connection with or control over any such company or companies; (10) Any irregularities frauds or breaches of trust or action in disregard of honest commercial practices or contravention of any law (except contraventions in respect of which criminal proceedings are pending in a Court of Law) in respect of the companies and firms whose affairs are investigated by the Commission which ma come to the knowledge of the Commission and the action which in the opinion of the Commission should be taken as and by way of securing redress or punishment or to act as a preventive in future cases. (11) The measures which in the opinion of the Commission are necessary in order to ensure in the future the due and Proper administration of the funds and assets of companies and firms in the interests of the investing public. SCHEDULE 1. Dalmia Jain Airways Ltd. 2. Dalmia Jain Aviation Ltd., (now known as Asia Udyog Ltd.) 3. Lahore Electric Supply Company Ltd., (now known as South Asia Industries Ltd.) 4. Sir Shapurji Broacha Mills Ltd. 287 5. Madhowji Dharamsi Manufacturing Company Ltd. 6. Allen Berry and Co. Ltd. 7. Bharat Union Agencies Ltd. 8. Dalmia Cement and Paper Marketing Company Ltd., (now known as Delhi Glass Works Ltd.) 9. Vastra Vyavasaya Ltd. Ordered that the Order be published in the Gazette of India for public information. (No. F. 107 (18INS/56)). H.M. Patel Secretary. It should be noted that the above notification did not specify the time within which the Commission was to complete the inquiry and make its report. On January 9, 1957, the Central Government issued another notification providing that all the provisions of sub sections (2), (3), (4), and (5) of section 5 should apply to the Commission. As the notification of December 11, 1956, did not specify the time within which the Commission was to make its report, the Central Government on February 11, 1957, issued a third notification specifying two years from that date as the time within which the Commission of Inquiry should exercise the functions conferred on it and make its report. On February 12, 1957, three several Miscellaneous Applications were filed under article 226 of the Constitution questioning the validity of the Act and the notification dated December 11, 1956, on diverse grounds and praying for a writ or order for quashing the same. It will be convenient to advert to a few minor objections urged before us on behalf of the petitioners in support of their appeals before we come to deal with their principal and major contentions. The first objection is that the notification has gone beyond the Act. It is pointed out that the Act, by section 3, empowers the appropriate Government in certain eventualities to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and for no other purpose. The contention is that the conduct of an individual person 288 or company cannot possibly be a matter of public importance and far less a definite matter of that kind. We are unable to accept this argument as correct. Widespread floods, famine and pestilence may quite easily be a definite matter of public importance urgently calling for an inquiry so as to enable the Government to take appropriate steps to prevent their recurrence in future. The conduct of villagers in cutting the bunds for taking water to their fields during the dry season may cause floods during the rainy season and we can see no reason why such unsocial conduct of villagers of certain villages thus causing floods should not be regarded as a definite matter of public importance. The failure of a big bank resulting in the loss of the life savings of a multitude of men of moderate means is certainly a definite matter of public importance but the conduct of the. persons in charge and management of such a bank which brought about its collapse is equally a definite matter of public importance. Widespread dacoities in parti cular parts of the country is, no doubt, a definite matter of public importance but we see no reason why the conduct, activities and modes operandi of particular dacoits and thugs notorious for their cruel depredations. should not be regarded as definite matters of public importance urgently requiring a sifting inquiry. It is needless to multiply instances. In each case the question is: is there a definite matter of public importance which calls for an inquiry ? We see no warrant for the proposition that a definite matter of public importance must necessarily mean only some matter involving the public benefit or advantage in the abstract, e. g., public health, sanitation or the like or some public evil or prejudice, e. g., floods, famine or pestilence or the like. Quite conceivably the conduct of an individual person or company or a group of individual persons or companies may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public well being as to make such conduct a definite matter of public importance urgently calling for a full inquiry. Besides, section 3 itself authorises the appropriate Government to appoint a Commission 289 of Inquiry not only for the purpose of making an inquiry into a definite matter of public importance but also for the purpose of performing such functions as, may be specified in the notification. Therefore, the notification is well within the powers conferred on the appropriate Government by section 3 of the Act and it cannot be questioned on the ground of its going beyond the provisions of the Act. Learned counsel for the petitioners immediately replies that in the event of its being held that the notification is within the terms of the Act, the Act itself is ultra vires the Constitution. The validity of the Act is called in question in two ways. In the first place it is said that it was beyond the legislative competency of Parliament to enact a law conferring such a wide sweep of powers. It is pointed out that Parliament enacted the Act in exercise of the legislative powers conferred on it by article 246 of the Constitution read with entry 94 in List I and entry 45 in List III of the Seventh Schedule to the Constitution. The matters enumerated in entry 94 in List 1, omitting the words not necessary for our purpose, are " inquiries. . for the purpose of any of the matters in this List ", and those enumerated in entry 45 in List III, again omitting the unnecessary words, are " inquiries. . for the purposes of any of the matters specified in List II or List 111. " Confining himself to the entries in so far as they relate to " inquiries ", learned counsel for the petitioners urges that Parliament may make a law with respect to inquiries but cannot under these entries make a law conferring any power to perform any function other than the power to hold an inquiry. He concedes that, according to the well recognised rule of construction of the provisions of a Constitution, the legislative heads should be construed very liberally and that it must be assumed that the Constitution intended to give to the appropriate legislature not only the power to legislate with respect to the particular legislative topic but also with respect to all matters ancillary thereto. Indeed the very use of the words " with respect to in article 246 supports this principle 37 290 of liberal interpretation. He, however, points out that the law, which the appropriate legislature is empowered to make under these entries must be with respect to inquiries for the purposes of any of the matters in the relevant lists and it is urged that the words " for the purpose of " make it abundantly clear that the law with respect to inquiries to be made under these two entries must be for the purpose of future legislation with respect to any of the legislative heads in the relevant lists. In other words, the argument is that under these two entries the appropriate legislature may make a law authorising the constitution of a Board or Commission of Inquiry to inquire into and ascertain facts so as to enable such legislature to undertake legislation with respect to any of the legislative topics in the relevant lists to secure some public benefit or advantage or to prevent some evil or harm befalling the public and thereby to protect the public from the same. But if an inquiry becomes necessary for, say, administrative purposes, a law with respect to such an inquiry cannot be made under these two entries. And far less can a law be made with respect to an inquiry into any wrongs alleged to have been committed by an individual person or company or a group of them for the purpose of punishing the suspected delinquent. This argument has found favour with the High Court, but we are, with great respect, unable to accept this view. To adopt this view will mean adding words to the two entries so as to read " inquiries for the purpose of future legislation with respect to any of the matters in the List or Lists mentioned therein. The matter, however, does not rest here. A careful perusal of the language used in entry 45 in List III does, in our view, clinch the matter. Entry 45 in List III, which is the Concurrent List, speaks, inter alia, of " inquiries for the purpose of any of the matters in List II or List 111. Under article 246 read with this entry, Parliament as well as the Legislature of a State may make a law with respect to " inquiries for the purpose of any of the matters in List II. " Parliament, under article 246, has no power to make a law with respect to any of the 291 matters enumerated in List 11. Therefore, when Parliament makes a law under article 246 read with. , entry 45 in List III with respect to an inquiry for the purposes of any of the matters in List 11, such law can never be one for inquiry for the purpose of future legislation by Parliament with respect to any of those matters in List 11. Clearly Parliament can make a law for inquiry for the purpose of any of the matters in List 11 and none the less so though Parliament cannot legislate with respect to such matters and though none of the State Legislatures wants to Legislate on such matters. In our opinion, therefore, the law to be made by the appropriate legislature with respect to the two legislative entries referred to above may cover inquiries into any aspect of the matters enumerated in any of the lists mentioned therein and is not confined to those matters as mere heads of legislative topic. Quite conceivably the law with respect to inquiries for the purpose of any of the matters in the lists may also be for administrative purposes and the scope of the inquiry under such a law will cover all matters which may properly be regarded as ancillary to such inquiries. The words " for the purposes of " indicate that the scope of the inquiry is not necessarily limited to the particular or specific matters enumerated in any of the entries in the list concerned but may extend to inquiries into collateral matters which may be necessary for the purpose, legislative or otherwise, of those particular matters. We are unable, therefore,to hold that the Inquiry which may be set up by a law made under these two entries is, in its scope or ambit, limited to future legislative purposes only. Learned counsel then takes us through the different heads of inquiry enumerated in the notification and urges that the inquiry is neither for any legislative nor for any administrative purpose, but is a clear usurpation of the functions of the judiciary. The argument is that Parliament in authorising the appointment of a Commission and the Government in appointing this Commission have arrogated to themselves judicial powers which do not, in the very nature 292 of things, belong to their respective domains which must be purely legislative and executive respectively. It is contended that Parliament cannot convert itself into a court except for the rare cases of dealing with breaches of its own privileges for which it may punish the delinquent by committal for contempt or of proceedings by way of impeachment. It cannot, it is urged, undertake to inquire or investigate into alleged individual wrongs or private disputes nor can it bring the supposed culprit to book or gather materials for the purpose of initiating proceedings, civil or criminal, against him, because such inquiry or investigation is clearly not in aid of legislation. It is argued that if a criminal prosecution is to be launched, the preliminary investigation must be held under the Code of Criminal Procedure and it should not be open to any legislature to start investigation on its own and thereby to deprive the citizen of the normal protection afforded to him by the provisions of the Code of Criminal Procedure. This line of reasoning also found favour with the High Court which, after considering the provisions of the Act and the eleven heads of inquiry enumerated in the notification, came to the conclusion that the last portion of el. (10) beginning with the words " and the action " and ending with the words ',in future cases" were ultra vires the Act and that the Government was not competent to require the Commission to hold any inquiry or make any report with regard to the matters covered by that portion of cl. (10), for such inquiry or. report amounts to a usurpation of the judicial powers of the Union or the State as the case may be. While we find ourselves in partial agreement with the actual conclusion of the High Court on this point, we are, with great respect, unable to accept the line of reasoning advanced by learned counsel for the petitioners, which has been accepted by the High Court for more reasons than one. In the first place neither Parliament nor the Government has itself undertaken any inquiry at all. Parliament has made a law with respect to inquiry and has left it to the appropriate Government to set up a Commission of Inquiry under 293 certain circumstances referred to in section 3 of the Act. The Central Government, in its turn, has, in exercise of the powers conferred on it by the Act, set up this Commission. It is, therefore, not correct to say that Parliament or the Government itself has undertaken to hold any inquiry. In the second place the conclusion that the last portion of cl. (10) is bad because it signifies that Parliament or the Government had usurped the functions of the judiciary appears to us, with respect, to be inconsistent with the conclusion arrived at in a later part of the judgment that as the Commission can only make recommendations which are not enforceable proprio vigore there can be no question of usurpation of judicial functions. As has been stated by the High Court itself in the latter part of its judgment, the only power that the Commission has is to inquire and make a report and embody therein its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case and the elaborate discussion of the American authorities founded on the categorical separation of powers expressly provided by and under the American Constitution appears to us, with respect, wholly inappropriate and unnecessary and we do not feel called upon, on the present occasion, to express any opinion on the question whether even in the absence of a specific provision for separation of powers in our Constitution, such as there is 294 under the American Constitution, some such division of powers legislative, executive and judicial is, nevertheless implicit in our Constitution. In the view we have taken it is also not necessary for us to consider whether, had the Act conferred on the appropriate Government power to set up a Commission of Inquiry with judicial powers, such law could not, subject, of course, to the other provisions of the Con stitution, be supported as a law made under some entry in List I or List III authorising the setting up of courts read with these two entries, for a legislation may well be founded on several entries. Learned Counsel appearing for the petitioners, who are appellants in Civil Appeals Nos. 456 and 457 of 1957, goes as far as to say that while the Commission may find facts on which the Government may take action, legislative or executive, although he does not concede the latter kind of action to be contemplated, the Commission cannot be asked to suggest any measure, legislative or executive, to be taken by the appropriate Government. We are unable to accept the proposition so widely enunciated. An inquiry necessarily involves investigation into facts and necessitates the collection of material facts from the evidence adduced before or brought to the notice of the person or body conducting the inquiry and the recording of its findings on those facts in its report cannot but be regarded as ancillary to the inquiry itself, for the inquiry becomes useless unless the findings of the inquiring body are made available to the Government which set up the inquiry. It is, in our judgment, equally ancillary that the person or body conducting the inquiry should express its own view on the facts found by it for the consideration of the appropriate Government in order to enable it to take such measure as it may think fit to do. The whole purpose of setting up of a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures the situation disclosed calls for cannot be placed before the Government 295 for consideration notwithstanding that doing so cannot be to the prejudice of anybody because it has no force of its own. In our view the recommendations of a Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, there can be no objection even to the Commission of Inquiry recommending the imposi tion of some. form of punishment which will, in its opinion, be sufficiently deterrent to delinquents in future. But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statement made by any person before the Commission of Inquiry is, under section 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking any action " as and by way of securing redress or punishment " which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed, for redress or punishment for such wrongs, if any, has to be imposed by a court of law, properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be. Having regard to all these considerations it appears to us that only that portion of the last part of cl. (10) which calls upon the Commission of Inquiry to make recommendations about the action to be taken " as and by way of securing redress or punishment ", cannot be said to be at all necessary for or ancillary to the purposes of the Commission. In our view the words in the latter part of the section, namely, " as and by way of securing redress or punishment ", clearly go outside the scope of the Act and such provision is not covered by the two legislative entries and should, therefore, be deleted. So deleted the latter portion of cl. (10) would read and the action which in the opinion of the Commission 296 should be taken to act as a preventive in future cases ". Deletion of the words mentioned above from cl. (10) raises the question of severability. We find ourselves in substantial agreement with the reasons given by the High Court on this point and we hold that the efficacy of the notification is in no way affected by the deletion of the offending words mentioned above and there is no reason to think that the Government would not have issued the notification without those words. Those words do not appear to us to be inextricably wound up with the texture of the entire notification. The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on article 14 of the Constitution. In Budhan Choudhry vs The State of Bihar (1) a Constitution Bench of seven Judges of this Court at pages 1048 49 explained the true meaning and scope of article 14 as follows: " The provisions of Article 14 of the Constitution have come up for discussion before this court in a number of cases, namely, Chiranjit Lal Choudhuri vs The Union of India (2) , The State, of Bombay vs F. N.Balsara(3),The state of west Bengal vs Anwar Ali Sarkar (4 ), Kathi Baning Rawat vs The State of Saurashtra(5) Lachmandas Kewalram Ahuja vs The State Of Bombay (6), Qasim Razvi vs The State of Hyderabad (7) and Habeeb Mohamad vs The State of Hyderabad (8). it is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, filled namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together (1) ; (3) ; (5) ; [1952] S.C.R. 433.(6) (7) ; (8) ; 297 from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there 'Must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure. " The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) 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; (c) 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; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest ; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f)that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the 38 298 law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws. A close perusal of the decisions of this Court in which the above principles have been enunciated and applied by this Court will also show that a statute which may come up for consideration on a question of its validity under article 14 of the Constitution, may be placed in one or other of the following five classes: (i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the court. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law, as it did in Chiranjitlal Chowdhri vs The Union of India (1), The State of Bombay vs F. N. Balsara (2), Kedar Nath (1) ; (2) ; , 299 Bajoria vs The State of West Bengal (1), V. M. Syed Mohammad & Company vs The State of Andhra (2) and Budhan Choudhry vs The State of Bihar (3). (ii)A statute may direct its provisions against one individual person or thing or to several individual persons or things but, no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination, as it did in Ameerunnissa Begum vs Mahboob Begum (4) and Ramprasad Narain Sahi vs The State of Bihar (3). (iii)A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no Classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the court will strike down both the law as well as the executive action taken under such law, as it did in State of West Bengal vs Anwar, Ali Sarkar (6), Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh(7) (1) ; (2) [1954] S.C.R. I 117. (3) (4) (5) ; (6) ; (7) ; 300 and Dhirendra Krishna Mandal vs The Superintendent and Remembrancer of Legal Affairs (1). (iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification, the court will uphold the law as constitutional, as it did in Kathi Raning Rawat vs The State of Saurashtra (2). (v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court, e. g., in Kathi Raning Rawat vs The State of Saurashtra (2) that in such a case the executive action but not the statute should be condemned as unconstitutional In the light of the foregoing discussions the question at once arises: In what category does the Act or the notification impugned in these appeals fall ? It will be apparent from its long title that the purpose of the Act is to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers. Section 3 empowers the appropriate Government, in certain circumstances therein mentioned, to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions within such time as may be specified in the notification. It seems clear and it has not been controverted that on a proper construction of this (1) (2) ; 301 section, the functions the performance of which is contemplated must be such as are ancillary to and in aid of the inquiry itself and cannot be read as a function independent of or unconnected with such inquiry. That being the position, as we conceive it to be, the question arises as to the scope and ambit of the power which is conferred by it on the appropriate Government. The answer is furnished by the statute itself, for section 3 indicates that the appropriate Government .can appoint a Commission of Inquiry only for the purpose of making an inquiry into any definite matter of public importance and into no other matter. In other words the subject matter of the inquiry can only be a definite matter of public importance. The appropriate Government, it follows, is not authorised by this section to appoint a Commission for the purpose of holding an inquiry into any other matter. Learned Solicitor General, in the premises, submits that the section itself on the face of it, makes. a classification so that this statute falls within the first category mentioned above and contends that this classification of things is based on an intelligible differentia which has a reasonable relation to the object sought to be achieved by it, for a definite matter of public importance may well call for an inquiry by a Commission. In the alternative the learned Solicitor General urges that in any case the section itself quite clearly indicates that the policy of Parliament is to provide for the appointment of Commissions of Inquiry to inquire into any definite matter of public importance and that as there is no knowing when, where or how any such matter may crop up Parliament considers it necessary or expedient to leave it to the appropriate Government to take action as and when the appropriate moment will arrive. In the tempo of the prevailing conditions in modern society events occur which were never foreseen and it is impossible for Parliament or any legislature to anticipate all events or to provide for all eventualities and, therefore, it must leave the duty of taking the necessary action to the appropriate Government. This delegation of authority, however, is not unguided or uncontrolled, 302 for the discretion given to the appropriate Government to set up a Commission of Inquiry must be guided by the policy laid down, namely, that the executive action of setting up a Commission of Inquiry must conform to the condition of the section, that is to say, that there must exist a definite matter. of public importance into which an inquiry is, in the opinion of the appropriate Government, necessary or is required by a resolution in that behalf passed by the House of the People or the Legislative Assembly of the State. If the preambles or the provisions of the statutes classed under the first category mentioned above could be read as making a reasonable classification satisfying the requirements of article 14 and if the preamble to the statute considered in the case of Kathi Raning Rawat (1) could be construed as laying down sufficiently clearly a policy or principle for the guidance of the executive, what objection can there be to construing section 3 of the Act now under our consideration as also making a reasonable classification or at any rate as declaring with sufficient clarity the policy of Parliament and laying down a principle for the guidance of the exercise of the powers conferred the appropriate Government so as to bring this statute at least in the fourth category, if not also in the first category ? On the authorities, as they stand, it cannot be said that an arbitrary and uncontrolled power has been delegated to the appropriate Government and that, therefore, the law itself is bad. Learned counsel for the petitioners next contends that if the Act is good in the sense that has declared its policy and laid down some principle for the guidance of the Government in the exercise of the power conferred on it, the appropriate Government has failed to exercise its discretion property on the basis of a, reasonable classification. Article 14 protects all persons from discrimination by the legislative as well as by the executive organ of the State. "State" is defined in article 12 as including the Government and "law " is defined in article 13 as including any notification or order ' It has to be conceded, therefore, that (1) ; 303 it is open to the petitioners also to question the consti tutionality of the notification. The attack against, the notification is that the Government has not properly implemented the policy or followed the principle laid down in the Act and has consequently transgressed the bounds of the authority delegated to it. It is pointed out that in March, 1946, one Shri Tricumdas Dwarkadas, a solicitor of Bombay, had been appointed an officer on Special Duty to indicate the lines on which the Indian Companies Act was to be revised. He made a report which was, however, incomplete in certain particulars. Thereupon the Government appointed Shri Thiruvenkatachari, the Advocate General of Madras, to make further inquiry. The last mentioned gentleman submitted his report and on the basis of that report, it is said, a memorandum containing tentative proposals was prepared and circulated to elicit the opinions of various organisations. On October 28, 1950, a Committee called the Indian Company Law Committee popularly known as the Bhaba Committee was appointed. That Committee went round and collected materials and made its comprehensive report on the basis of which the new Indian Companies Act has recently been remodeled. As nothing new has since then happened why, it is asked ', should any further inquiry be made ? The conclusion is pressed upon us that there can, in the circumstances, be no definite matter of public importance which can possibly call for an inquiry. We find no force in this argument. In the first place the Bhaba Committee at p. 29 of its Report recommended that further inquiries may, in future, have to be made regarding some matters relating to Companies and, therefore, the necessity for fresh inquiry cannot be ruled out. In the next place the appropriate Government is empowered to appoint a Commission of Inquiry if, in its opinion, it is necessary so to do. The preambles to the notification recite that certain matters enumerated under five heads had been made to appear to the Central Government in consequence of which the Central Government had come to the conclusion that there should be a full inquiry into those matters which, 304 in its opinion, were definite matters of public importance both by reason of the grave consequences which appeared to have ensued to the investing public and for determining such measures as might be deemed necessary in order to prevent a recurrence thereof. Parliament in its wisdom has left the matter of the setting up of a Commission of Inquiry to the discretion of the appropriate Government and if the appro priate Government has formed the opinion that a definite matter of public importance has arisen and calls for an inquiry the court will not lightly brush aside the opinion. Learned counsel for the petitioners argues that granting that the question as to the necessity for constituting a Commission of Inquiry has been left to the subjective determination of the appropriate Government the actual setting up of a Commission is conditioned by the existence 'of some definite matter of public importance. If there be no such definite matter of public importance in existence then no question of necessity for appointing a Commission can arise. Reference is then made to the first preamble to the notification and it is pointed out that all the matters alleged to have been made to appear to the Central Government relate to some supposed act or conduct of the petitioners. The contention is repeated that the act and conduct of individual persons can never be regarded as definite matters of public importance. We are unable to accept this argument as sound, for as we have already stated, the act or conduct of individuals may assume such dangerous proportions as may well affect the public well being and thus become a definite matter of public importance. We do not, therefore, agree that the notification should be struck down for the absence of a definite matter of public importance calling for an inquiry. The point which is next urged in support of these appeals and which has given us considerable anxiety is that the petitioners and their companies have been arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. The provisions of article 14, 305 it is contended, protect every person against discrimination by the State, namely, against the law as well as the executive action and this protection extends to State action at all its stages. The petitioners ' grievance is that the Government had started discrimination even at the earliest stage when it conceived the idea of issuing the notification. Reference is made to the Memorandum filed by the Bombay Shareholders ' Association before the Bhaba Committee showing that the same or similar allegations had been made not only against the petitioners and their companies but against other businessmen and their companies and that although the petitioners and their companies and those other persons and their companies were thus similarly situate, in that allegations had been made against both, the Government arbitrarily applied the Act to the petitioners and their companies and issued the notification concerning them but left out the others from its operation. It is true that the notification primarily or even solely affects the petitioners and their companies but it cannot be overlooked that Parliament having left the selective application of the Act to the discretion of the appropriate Government, the latter must of necessity take its decision on the materials available to it and the opinion it forms thereon. The appropriate Government cannot in such matters be expected to sit down and hold a judicial inquiry into the truth of the materials brought before it, and examine the informants on oath in the presence of the parties who are or may be likely to be affected by its decision. In matters of this kind the appropriate Government has of necessity to act upon the information available to it. It is the best judge of ' the reliability of its source of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion that the act and conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance calling for an inquiry with a view to devise measures for preventing the recurrence of such evil, this Court, not being in possession of all the facts will, 39 306 we apprehend, be slow to adjudge the executive action to be bad and illegal. We are not unmindful of the fact that a very wide discretionary power has been conferred on the Government and, indeed, the contemplation that such wide powers in the hands of the executive may in some cases be misused or abused and turned into an engine of oppression has caused considerable anxiety in our mind. Nevertheless, the bare possibility that the powers may be misused or abused cannot per se induce the court to deny the existence of the powers. It cannot be overlooked that Parliament has confided this discretion, not to any petty official but to the appropriate Government itself to take action in conformity with the policy and principle laid down in the Act. As this Court 'has said in Matajog Dobey vs H. C. Bhari (1), " a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official. " We feel sure, however, that if this law is administered by the Government " with an evil eye and an unequal hand " or for an oblique or unworthy purpose the arms of this Court will be long enough to reach it and to strike down such abuse with a heavy hand. What, then, we inquire, are the salient facts here ? The Central Government appointed investigators to scrutinise the affairs of three of the petitioners ' concerns. Those investigators had made their reports to the Central Government. The Central Government had also the Bhaba Committee Report and all the Memoranda filed before that Committee. It may also have had other information available to it and on those materials it formed its opinion that the act and conduct of the petitioners and the affairs of their companies constituted a definite matter of public importance which required a full inquiry. Up to this stage there is no question of legal proof of the allegations against the petitioners as in a court of law. The only question is: do those allegations if honestly believed, constitute a definite matter of public importance ? We are unable to say that they do not. (1) , 932. 307 Reference is again made to the several matters enumerated in the five clauses set out in the first, preamble to the notification and it is urged that those matters do not at all disclose any intelligible differentia on the basis of which the petitioners and their companies can be grouped together as a class. On the part of the Union of India reference is made to the affidavits affirmed by Shri H. M. Patel, the Principal Secretary to the Finance Ministry of the Government of India purporting to set out in detail as the background thereof, the circumstances which led to the issue of the impugned notification and the matters recited therein and the several reports referred to in the said affidavit. Learned counsel for the petitioners take the objection that reference cannot be made to any extraneous matter and that the basis of classification must appear on the face of the notification itself and reliance is placed on certain observations in the dissenting judgments in Chiranjitlal Chowdhury 's case (1) and in item (2) of the summary given by Fazl Ali J. in his judgment in F. N. Balsara 's case (2). In Chiranjitlal Chowdhury 's case (1) the majority of the Court read the preamble to the Ordinance which was replaced by the Act which was under consideration there as part of the Act and considered the recitals, reinforced as they were by the presumption of validity of the Act, as prima facie sufficient to constitute an intelligible basis for regarding the company concerned as a class by itself and held that the petitioner there had not discharged the onus that was on him. The dissenting Judges, after pointing out that the petition and the affidavit did not give any indication as to the differentia on the basis of which the company had been singled out, went on to say that the statute also did not on the face of it indicate any basis of classification. This was included in cl. (2) of the summary set out in the judgment in F. N. Balsara 's case (2). Those observations cannot, therefore, be read as meaning that the classification must always appear on the face of the law itself and that reference cannot be made to (1) (2) ; 308 any extraneous materials. In fact in Chiranjitlal Chowdhury 's case (1) parliamentary proceedings, in so far as they depicted the surrounding circumstances and furnished the background, were referred to. In Kathi Raning Rawat 's case (2) the hearing was adjourned in order to enable the respondent to put in an affidavit setting forth the material circumstances. In Kedarnath Bajoria 's case (3) the situation brought about by the war conditions was taken notice of The same may be said of the cases of A. Thanyal Kunju Musaliar vs V. Venkitachulam Potti (4) and Pannalal Binjraj vs Union of India (5). In our judgment, therefore, there can be no objection to the matters brought to the notice of the court by the affidavit of Shri H. M. Patel being taken into consideration along with the matters specified in the notification in order to ascertain whether there was any valid basis for treating the petitioners and their companies as a class by themselves. Learned counsel for the petitioners next urges that even if the matters referred to in Shri H. M. Patel 's affidavits and those appearing on the face of the notification are taken into consideration one cannot deduce therefrom any differentia which may be taken to distinguish the petitioners and their companies from other persons and their companies. The qualities and characteristics imputed to the petitioners and their companies are not at all peculiar or exclusive to them but are to be found equally in other persons and companies and yet they and their companies have been singled out for hostile and discriminatory treatment leaving out other persons and companies which are similarly situate. There is no force in this argument. Parliament has confided the task of the selective application of the law to the appropriate Government and it is, therefore for the appropriate Government to exercise its discretion in the matter. It is to be expected and, until the contrary is proved, it is to be presumed that the Government, which is responsible to Parliament, will act honestly, properly and in conformity with the (1) ; (2) ; (3) ; (4) ; (5) ; 309 policy and principle laid down by Parliament. It may well be that the Central Government thought that even if one, or more of the particular qualities and characteristics attributed to the petitioners and their companies may be found in another person or company, the combination of those qualities and characteristics which it thought were present in the petitioners and their companies was of a unique nature and was not present in any other person or company. In its appreciation of the material facts preparatory to the exercise of the discretion left to it by Parliament the Central Government may have thought that the evil was more pronounced in the petitioners and their concerns than any other person or concern and that the need for an inquiry was more urgent and clear in the case of the petitioners and their companies than in the case of any other person or company. What is the gist and substance of ' the allegations against the petitioners and their companies ? They are that a small group of persons had from before 1946 acquired control over a number of companies including a blanking company and an insurance company ; that some of these companies were private companies and the others were public companies in which the public had invested considerable moneys by buying, shares; that the financial years of some of these companies were different from those of the others; that the funds of ' the limited companies were utilised in purchasing shares in other companies having large reserve funds with a view to get control over them and to utilise those funds for acquiring shares in other companies or otherwise utilise those funds for the personal benefit of these individuals; that the shares were acquired on blank transfer deeds and were not registered in the names of the companies with whose funds they were purchased so as to permit the same shares to be shown in the balance sheets of the different companies having different financial years; that after 1951 several of these companies were taken into voluntary liquidation or their assets were transferred to another company under some pretended scheme of ' arrangement or re organisation; that after getting control of 310 a company they appointed some of themselves as managing director or selling agent on high remuneration and after a while cancelled such appointment on paying fabulous amounts as and by way of compensation; that funds of one company were transferred to another company to cover up the real financial position. It is needless to add other allegations to explain the matter. The question before us is not whether the allegations made on the face of the notification and in the affidavits filed on behalf of the Union of India are true but whether the qualities and characteristics, if honestly believed to be found in the petitioners, are so peculiar or unique as to constitute a good and valid basis on which the petitioners and their companies can be regarded as a class by themselves. We are not of opinion that they do not. It is not for us to say on this application and we do not in fact say or even suggest that the allegations about the petitioners and their concerns are at all well founded. It is sufficient for our present purpose to say that the facts disclosed on the face of the notification itself and the facts which have been brought to our notice by the affidavits afford sufficient support to the presumption of constitutionality of the notification. There being thus a presumption of validity in favour of the Act and the notification, it is for the petitioners to allege and prove beyond doubt that other persons or companies similarly situate have been left out and the petitioners and their companies have been singled out for discriminatory and hostile treatment. The petitioners have, in our opinion, failed to discharge that onus. Indeed nowhere in the petitions is there even an averment that there are other persons or companies similarly situate as the petitioners and their companies. It has to be remembered that the allegations set forth in the memorandum submitted by the Bombay Shareholders ' Association to the Bhaba Committee have not been proved by legal evidence. And further that report itself contains matters which may be taken as calculated to lend support to the view that whether regard is had to the combination of a variety of evils or to their degree, the petitioners may quite conceivably 311 be grouped as a class by themselves. In our judgment the plea of the infraction of the equal protection, clause of our Constitution cannot be sustained. The next contention is that the notification is bad, because the action of the Government in issuing it was mala fide and amounted to an abuse of power. Learned counsel appearing for the petitioner, who is the appellant in Civil Appeal No. 455 of 1957, makes it clear that no personal motive or illwill against the petitioners is imputed to any one, but he points out that the Bhaba Committee had been set up and the Companies Act has been remodelled and, therefore, the present Commission was not set up for any legitimate purpose. The main idea, according to learned counsel, was to obtain information which the Government could not get by following the ordinary procedure under the Code of Criminal Procedure and this ulterior motive clearly makes the governmental action mala fide. This point has been further emphasised by learned counsel appearing for the petitioners, who are appellants in Civil Appeals Nos. 456 and 457 of 1957. He has drawn our attention to the affidavits filed by his clients and contends that it was well known to the Government that none of them was concerned in promoting or managing any of the companies and their position being thus well known to the Government, their inclusion in the notification was both outside the power conferred by the Government and also constituted a mala fide exercise of the power conferred on it. No substantial ground in support of this point has been brought before us and we are not satisfied that the circumstances referred to in the notification and the affidavits filed on behalf of the Union of India, may not, if true, be the basis of a further inquiry into the matter. It will be for the Commission to inquire into the allegations and come to its own findings and make its report containing its recommendations. It is not desirable that we should say anything more on this point. All that we need say is that the charge of mala fides has not been brought home to the Government. 312 A point was taken that the original notification was defective in that it did not fix the time within which the Commission was to complete its report and that a subsequent notification fixing a time could not cure that defect. We do not think there is any substance in this too. The third notification quoted above amended the original notification by fixing a time. There was nothing to prevent the Government from issuing a fresh notification appointing a Commission and fixing a time. If that could be done, there was no reason why the same result could not be achieved by the combined effect of two notifications. In any case the amending notification taken together with the original notification may be read as a fresh notification within the meaning of section 3 of the Act, operative at least from the date of the later notification. It is feebly argued that the notification is bad as it amounts to a delegation of essential legislative function. Assuming that there is delegation of legislative function, the Act having laid down its policy, such delegation of power, if any, is not vitiated at all, for the legislation by the delegates will have to conform to the policy so laid down by the Act. Lastly a point is raised that the notification is bad because it violates article 23 of the Constitution. It is frankly stated by the learned counsel. that this point is rather premature at this stage and that he desires to reserve his client 's right to raise it in future. No other point has been urged before us and for reasons stated above the appeals Nos. 455, 456 and 457 of 1957 are dismissed with costs. Appeals Nos. 656, 657 and 658 of 1957 succeed only in part, namely, to the extent that only the word , " by way of redress or punishment " occurring in the latter portion of el. (10) will be deleted so that the latter portion of cl. (10) will read as: " and the action which in the opinion of the Commission should be taken. . . to act as a preventive in future cases " as indicated above. We make no order as to the costs of these three appeals. C. A. Nos. 455, 456 and 457 of 1957 dismissed. C. A. Nos. 656, 657 and 658 of 1957 Partly allowed.

The respondent company was engaged in the manufacture of Carbon Paper. It was served with a notice demanding central excise duty on carbon papers cleared from its factory during the period 25.3.1979 to 24.9.1979 under section 11 B of the . The respondent stated in reply that the notice was without jurisdiction because it was only after 28.2.1982 that the product was subjected to duty under sub item (3) of item 17 of the Central Excise Tariff. The Assistant Collector of Central Excise, confirmed the demand. The appellate Collector, however, accepted the respondent 's contention. The Collector (Appeals) and the Appellate Tribunal dismissed the Revenue 's appeals. The Tribunal upheld the contention of the respondent that for the period before its amendment in 1982, carbon paper fell under Tariff item 68 and not under Tariff Item 17(2), as was contended by the Revenue. Before this Court the Revenue contends that (I) carbon paper being akin to coated paper was covered since 1976 under sub item (2) of item 17 of the Central Excise Tariff which included paper which had been subjected to coating; (2) the introduction of specific name `carbon paper ' as sub item (3) of item 17 in 1982 was with a view to subject it to a different rate of duty; and (3) the amendment so far as item 17(3) was concerned was mere clarificatory and was introduced ex abundanti cautela. The respondent, on the other hand, contends that if carbon paper was already included then there was no purpose of introducing these subsequent amendments. Disposing of the appeal, it was, PG NO 12 PG NO 13 HELD: (1) Where no definition is provided in the statute itself for ascertaining the correct meaning of a fiscal entry, reference to a dictionary is not always safe. The correct guide is the context and the trade meaning, which is prevalent in that particular trade where that goods is known or traded. [21D E] (2) If a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words "popular sense" that which people conversant with the subject matter with which the statute is dealing would attribute to it. The ordinary words in every day use are, therefore, to be construed according to their popular sense. [23F G] (3) Paper simpliciter cannot include ' carbon paper because that would not be in consonance with the popular understanding of the expression "paper". [23G H; 24A] (4) Where paper of a special type defined in the particular statute as one including paper which have been subjected to various treatments such as coating, impregnating, how that paper be understood, there must be evidence of that understanding. [24A] (5) There is authority of the Indian Standards Institute 's publication "Glossary of Terms used in Paper Trade and Industry" to the effect that carbon paper is understood as a coated paper in trade. [23A C] (6) The trade notices and the tariff advices issued by the Board are not relevant, as such, in construing items in Tariff Schedule. [24E F] (7) Understood in the accepted notion of construing entries of fiscal Statute not from a technical or scientific point of view but from the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standards Institute and in the absence of any other evidence to the contrary, on the basis of the definition of paper or it was in the year 1976, carbon paper would come within item 17(2) of the Tariff Items, and would not fall into the residuary entry. [23B C] Sai Giridhara Supply Co. vs Collector vs Collector of Central Excise, Bombay, Tribunal; Commissioner of Sales Tax, U.P. vs M.S.N. Brothers, Kanpur, PG NO 14 ; ; King vs Planters Nut and Chocolate Company Ltd., [1951] C.L.R. exhibit 122; Union of India and Anr. vs Delhi Cloth and General Mills Co. Ltd., AIR 1963 S.C. 791; Grenfell vs I.R.C., ; Porritts & Spencer (Asia) Ltd. vs State of Haryana, [1979] I S.C.C. 82; Kores (India) Ltd. Thane vs Collector of Central Excise, Thane. ; State of Uttar Pradesh vs M/s. Kores (India) Ltd., ; ; Attorney General vs Winstar lay. ; ; Khoday Industries Ltd. vs Union of India, ; Orient Paper Mills Ltd. vs Union of India; , ; M/s Colgate Palmolive (India) P. Ltd., [1979] E.L.T. J. 567; Dunlop India Ltd. vs Union of India, AIR 1977 S.C. 597; Md. Qasim Larry, Factory Manager, Sasamusa Sugar Works vs Muhammad Samsuddin, ; , referred to.

os. 85 and 86 of 1961. Appeals from the judgment and decree dated November 23, 1954 of the Calcutta High Court in Appeals from Original Orders Nos. 84 and 83 of 1953. B. Sen and P. K. Ghosh, for the appellants (in both the appeals). Sukumar Ghosh, for the respondents Nos. 12 and 13 (in C.A. No. 85 of 1961). March 4, 1964. The Judgment of the Court was delivered by SUBBA RAO J. These two appeals raise the question of the validity of the court sale held in contravention of section 35 of the Bengal Money Lenders Act, 1940 (Bengal Act X of 1940), hereinafter called the Act. The facts in both the appeals may be briefly stated. In Civil Appeal No. 85 of 1961, Sudhir Chandra Ghosh, respondent No. 1, executed a first mortgage in favour of one Provash Chandra Mukherjee, since deceased, for a sum of Rs. 12,000/ . Respondent No. 1 executed a second, third and fourth mortgages in favour of the appellant for a total sum of Rs. 7,700/ . He also executed another mortgage in favour of the 9th respondent. In the year 1948 respondents 2 and 3, representing the first mortgagee 's estate, filed Title Suit No. 8 of 1948 in the 7th Additional Court of the Subordinate Judge at Alipore, for enforcing the first mortgage. To that suit the puisne mortgagees were also made parties. On May 24, 1948, a preliminary decree by consent was made in the suit whereunder the judgment 1004 debtor was directed to pay a sum of Rs. 15,473 7 9 to the appellant in 7 equal annual instalments. As the judgment debtor failed to pay the said amount, in due course a final decree was passed in the mortgage suit on or about February 2, 1949. Thereafter, the decree was put in execution on January 31, 1950, and in the said execution application a schedule of properties sought to be sold for the satisfaction of the said claim was annexed. The schedule comprised 11 properties and the appellant gave valuation of the said properties. Though the 1st respondent received a notice under O. XXI, r. 66 of the Code of Civil Procedure, he did not file any objection to the valuation. Though the first respondent got the sale adjourned a number of times promising to pay the decretal amount, he failed to do so. Finally two of the said properties were put up for sale on June 23, 1951, and one of the said properties was purchased by the 12th respondent for a sum of Rs. 11,800/ and the other, by the 13th respondent for a sum of Rs. 10,100/ . On July 21, 1951, the 1st respondent filed an application in the executing court for setting aside the said sale under O. XXI, r. 90 of the Code of Civil Procedure, inter alia, on the ground that section 35 of the Act was not complied with. The learned Subordinate Judge held that there was no fraud in publishing and conducting the sale, that the price of the lots sold was fair and that the sale was not vitiated by reason of infringement of section 35 of the Act. On appeal a Division Bench of the High Court held that though there had not been any substantial injury to the 1st respondent, the provisions of section 35 of the Act were mandatory and, therefore, the. infringement of the said provisions would invalidate the sale. In that view, it set aside the sale and directed the appellant to refund the money with interest. Civil Appeal No. 86 of 1961 also arises out of the same execution proceedings. Under the said compromise preli minary decree the judgment debtor agreed to pay the decretal amount of Rs. 25,687/ to the executors of the estate of the first mortgagee, respondents 2 and 3. As the amount was not paid, the said respondents filed an application in the 7th Court of the Additional Subordinate Judge, Alipore, for the execution of the said decree. In the 1005 execution petition 8 properties were described and their valuations were given. The judgment debtor filed objections to the valuations given by the decree holders, but on the date fixed for settling the valuations of the said properties neither the judgment debtor nor his advocate appeared in court. The learned Subordinate Judge, by his order dated February 11, 1950, directed that both the valuations of the decreeholders and the judgment debtor be noted in the sale proclamation. Thereafter the sale proclamation was duly issued and the date of the sale was fixed for May 11, 1950. The judgment debtor took as many as 15 adjournments of the sale promising to pay the decretal amount, but did not do so. Finally the sale of the properties was fixed for June 23, 1951 and on that date two lots of the property were sold in execution and the appellants purchased lot No. 1 at a price (if Rs. 14,000/ and respondent No. 9 purchased Lot No. 2 at a price of Rs. 19,600/ . On July 21, 1951, the 1st respondent filed an application before the learned Subordinate Judge for setting aside the sale under O. XXI, r. 90 of the Code of Civil Procedure, on grounds similar to those raised in the other application, the subject matter of Civil Appeal No. 85 of 1961. The said application was heard by the learned Subordinate Judge along with the said other application. For the same reasons, he dismissed the application. On appeal, the Division Bench of the High Court heard the appeal along with the connected appeal and set aside the sale. The present appeals are filed by certificate against the common judgment of the High Court in both the matters. Mr. Sen, learned counsel for the appellants in both the appeals, contends that whether section 35 of the Act is mandatory or directory the sale held in violation of the said provision is only illegal but not a nullity and, therefore, it can be set aside only in the manner and for the reasons prescribed in O. XXI, r. 90 of the Code of Civil Procedure, and further that, as the respondents did not attend at the drawing up of the proclamation of sale, the sale cannot be set aside at their instance. To appreciate the argument it is necessary and convenient to read at the outset the relevant provisions of the Act and the Code of Civil Procedure. 1006 Section 35 of the Act. "Notwithstanding anything contained in any other law for the time being in force, the proclamation of the intended sale of property in execution of a decree passed in respect of a loan shall specify only so much of the property of the judgment debtor as the Court considers to be saleable at a price sufficient to satisfy the decree, and the property so specified shall not be sold at a price which is less than the price specified in such proclamation : Provided that, if the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the decree holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest amount bid and the price so specified. " CODE OF CIVIL PROCEDURE Order XXI, r. 64 Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. Order XXI, r. 66. (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree holder and the judgment 1007 debtor and shall state the time and place of sale, and specify as fairly and accurately as possible (a) the property to be sold; Order XXI, r. 90. (1) Where any immovable property has been sold in execution of a decree. the decree holder, or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice to him as required by rule 22 of this Order : Provided (i) that no sale shall be set aside on the ground of such irregularity, fraud or failure unless. upon the facts proved. the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, fraud or failure. (ii) that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by him at the time in respect of the defect relied upon. Under O. XXI. r. 64 of the Code of Civil Procedure, the executing court may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree shall be sold. Under r. 66 of the said Order of the Code when a property is ordered to be sold in public auction in execution of a decree the court shall cause a proclamation of the intended sale to be made and such proclamation shall specify as fairly and accurately as possible, among others, the property to 1008 be sold and such proclamation shall be drawn up after notice to the decree holder and the judgment debtor: under sub r. (4) thereof, the court may summon and examine any person or require him to produce any document in his possession or power relating thereto. Under the said provisions the court has power to direct the sale of the entire property attached or a part thereof sufficient to satisfy the decree and it shall also specify the said property directed to be sold in the proclamation fixed after giving notice to both the decree holder and the judgment debtor. Under section 35 of the Act a duty is cast upon the court in settling the pro clamation of the intended sale of property in execution of a decree passed in respect of a loan to which the Act applies to specify only so much of the property of the judgment debtor as the court considers to be saleable at a price sufficient to satisfy the decree and not to sell the property so specified at a price which is less than the price so specified in such proclamation. This provision is in effect a statutory addition to O. XXI, r. 66 of the Code of Civil Procedure. Indeed, this provision could have been added as another clause to the said rule. This statutory provision pertains to the field of proclamation. The rule says so in terms. The said two conditions are also steps to be taken by the court in the matter of publishing or conducting the sale. If a sale is held without complying with the said conditions, what is the remedy open to a party affected thereby to get the sale set aside? Order XXI, r. 90 of the Code in terms provides for the remedy. It says that a person whose interests are affected by the sale may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice to him as required by r. 22 of the Order. As the non compliance with the said conditions is a material irregularity in publishing or conducting the sale the court under the first proviso to O. XXI, r. 90 of the Code cannot set aside the sale unless it is satisfied that the applicant had sustained substantial injury by reason of such irregularity. That apart, under the second proviso to the said rule, no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person, who after notice did not attend at the drawing up 1009 of the proclamation or of any person in whose presence the proclamation was drawn up unless objection was made by him at the time of drawing up of the proclamation in respect of the defect relied upon. Shortly stated, the noncompliance with the provisions of section 35 of the Act is a defect or a irregularity in publishing or conducting the sale. A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under O. XXI, r. 90 of the Code of Civil Procedure. Even if he could, the sale cannot be set aside unless by reason of the said defect or irregularity he had sustained substantial injury. On this question a divergence of views is reflected in the decisions cited at the Bar. Mukherjea and Pal, JJ., in Asharam Thikadar vs Bijay Singh Chopra(1) set aside the order of the executing court and sent the case back to that court, as the said court inserted in the proclamation the valuation of the property given by the judgment debtor as well as that given by the decree holder and did not, as it should do under section 3 5 of the Act, determine the price of the property which was to be put up for sale on proper evidence. This decision has no relevance to the question raised before us, as the appeal before the High Court was against the order made by the executing court dismissing the application filed by the judgment debtor requesting the court to demarcate the property to be sold pursuant to the provisions of section 35 of the Act. The question whether a sale held in non compliance with the said provisions could be set aside de hors the provisions of O. XXI, r. 90 of the Code of Civil Procedure did not arise for consideration therein. The question now posed before us directly arose for decision before a Division Bench of the Calcutta High Court, consisting of Akram and Chakravartti, JJ., in Manindra Chandra vs Jagadish Chandra (2) Chakaravartti, J., met the objection raised by the judgment debtor who sought to set aside the sale on the ground of non compliance with the provisions of section 3 5 of the Act, thus : (1) I.I. R. 134 159 S.C. 64 (2) ,270. 1010 "It (section 35 of the Act) is a provision relating to the contents of the sale proclamation and its effect, to my mind, is to amend or supplement Or. 21, r. 66 (2) (a) which directs the Court to specify in the sale proclamation "the property to be sold". Any objection regarding non compliance with sec. 35 in specifying the property to be sold is, in my view, a defect in the sale proclamation within the meaning of the second proviso to Or. 21, r. 90, C.P.C. It follows that an objection that the sale proclamation did not conform to sec. 35 of the Bengal MoneyLenders Act cannot avail a judgment debtor in an application under Or. 2 1, r. 90, if he was present at the drawing up of the sale proclamation and did not raise any such objection at the time, nor can it avail a judgment debtor who, after receiving notice did not attend at the drawing up of the sale proclamation at all. " We agree with this reasoning. Another Division Bench of the Calcutta High Court, consisting of Guha and Banerjee, JJ., in Maniruddin Ahmed vs Umaprasanna(1), considered the entire case law on the subject, including the decision now under appeal, and differed from the view expressed by section R. Das Gupta and Mallick, JJ., in the decision now under appeal and agreed with the view expressed by Akram and Chakravartii, JJ., in Manidra Chandra vs Jagdish Chandra (2). The said decisions are in accord with the view we have expressed earlier. The contrary view is sustained by the High Court in the present case on the principle that the sale held in contravention of the provisions of section 35 of the Act was a nullity and, therefore, no question of setting aside the sale within the meaning of O. XXI, r. 90 of the Code of Civil Procedure would arise. This raises the question whether such a sale is a nullity. If a provision of a statute is only directory, an act done in contravention of the provision is manifestly not a nullity. Section 35 of the Act is couched in a mandatory form and it casts in terms a duty on the court to comply with its (1) (2) , 270. 1011 provisions before a sale is held. Prima facie the provision is mandatory; at any rate, we shall assume it to be so for the purpose of these appeals. Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity. In Ashutosh Sikdar vs Behari Lal Kirtania(1), Mookerjee, J., after referring to Macnamara on "Nullity and Irregulari ties", observed : no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated. " Whether a provision falls under one category or the other is not easy of discernment, but in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test has been laid down by Justice Coleridge in Holmes vs Russell(2), which reads: "It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity. " A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book "On the (1) Cal. 61, 72. (2) 1012 Interpretation of Statutes", 11th Edn., at p. 375, describes the rule thus: "Another maxim which sanctions the non observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. " The same rule is restated in "Craies on Statute Law", 6th Edn., at p. 269, thus : "As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court. " The Judicial Committee in AL. Vellayan Chettiar vs Government of Madras(1) pointed out that there was no inconsistency between the propositions that the provisions of section 80 of the Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. In that case the Judicial Committee held that section 80 of the Code of Civil Procedure was explicit and mandatory; but still it held that it could be waived by the authority for whose benefit that was provided. This aspect of the law in the context of section 35 of the Act was considered by a Division Bench of the Calcutta High Court in Gaya Prosad vs Seth (1) [1947] L.R. 74 I.A. 223, 228. 1013 Dhanrupwal Bhandari(1). Dealing with this argument, P. N. Mookerjee, J., speaking for the court, observed : "It is true that section 35 of the Bengal MoneyLenders Act casts a duty upon the court but such duty is solely for the benefit the private benefit of the judgment debtor. It is, therefore, open to him to waive this benefit, or, in other words, to waive his objection of nonobservance of that statutory provision by the court. Guha and Banerjee, JJ., expressed much to the same effect in Maniruddin Ahmed vs Umaprasanna(2) thus, at p. 30: "The Bengal Money Lenders Act, 1940 enacted for the purpose of making better provision for the control of money lenders and for the regulation and control of money lending, has certainly a public policy behind it. But some of its provisions, and section 35 one of them, are intended for the benefit of the individual judgment debtors and have no public policy behind them. Such provisions may be waived by the person for whose benefit the same were enacted." A Division Bench of the Patna High Court in Sheo Dayal Narain vs Musammat Moti Kuer(3), speaking through Meredith, J., in the context of the provisions of section 13 of the Bihar Money Lenders (Regulation of Transactions) Act, 1939, which are pari materia with the provisions of section 35 of the Bengal Money Lenders Act, 1940, rejected the contention that a sale held in contravention thereof was a nullity in the following words "Illegal the sale may have been, in the limited sense that it was held in a manner at variance with a mandatory statutory provision. That provision, however, has no reference at all to the jurisdiction of the Court. It affords no foundation for (1) 508. (2) (3) Pat. 281, 286. 1014 the contention that the sale was one which the Court concerned had no power at all to hold. " Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a manda tory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that section 3 5 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non observance of the provision. It is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of section 35 of the Act, which is really intended to protect the interests of a judgment debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment debtor does not seek to take advantage of the benefit conferred on him under section 3 5 of the Act; for instance, if the part of the property carved out by the court for sale is separated from the rest of his property, the value of the remaining property may be injuriously affected by the said carving out, in which case the judgment debtor may prefer to have his entire property sold so that he may realize the real value of the property and pay part of the sale price towards the decretal amount. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. A provision intended for his benefit cannot be construed in such a way as to work to his detriment. But it is said that the proviso to section 35 of the Act indicates a contrary intention. Under that proviso, "if the highest amount bid for the pro perty so specified is less than the price so specified, the Court may sell such property for such amount, if the decree holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest bid and the price so specified". This is only an option given to the decree holder : he may exercise this option, if he does 1015 not like to go through the entire sale proceedings overagain. In one contingency this proviso also Works for the benefit of the judgment debtor, for he will be relieved of part of his indebtedness. But anyhow this does not show that the main provision is not intended for the benefit of the judgment debtor. We are, therefore, satisfied, on a true construction of section 3 5 of the Act, that it is intended only for the benefit of the judgment debtor and, therefore, he can waive the right conferred on him under section 35 of the Act. If that be the legal position, O. XXI, r. 90 of the Code of Civil Procedure is immediately attracted. The concurrent finding of the courts is that by reason of the non observance of the provisions of section 35 of the Act no substantial injury was caused to the judgment debtor. Further, though notice was given to the judgment debtor, in one case he did not file objections at all and in the other case, though the judgment debtor filed objections, he did not attend at the drawing up of the proclamation. The sales are, therefore, not liable to be set aside under the terms of the said provision. In the result the orders of the High Court are set aside and those of the Additional Subordinate Judge are restored. The appellants will get their costs throughout from the 1st respondent. There will be one set of hearing fee. Appeals allowed.

The appellant is a bus operator in the State of Madras. On an invitation for applications for the grant of two stage carriage permits he submitted his applications along with many others. The State Transport Authority considered the merits of the application awarding marks in accordance with the principles prescribed by Madras G.O. No. 1298, dated April 28, 1956 issued under section 43A of the inserted by the Madras Amending Act 20 of 1948. The Transport Authority on this basis granted the two permits to the appellant. Against this order a number of appeals were filed by some of the unsuccessful applicants including respondents Nos. 2 and 3 in the present appeal. The Appellate Tribunal re allotted marks in accordance with the above G.O. and respondents 2 and 3 having secured the maximum number of marks were granted the permits. On the rejection of a petition under article 226 of the Constitution and after appealing without success to a Division Bench the appellant applied for a certificate to appeal to this Court which rejected. The present appeal was filed on special leave granted by this Court. It was contended on behalf of the appellant before this Court that since Madras G.O. No. 1298, dated April 28, 1956, purports to issue direction to the Transport Authority in the discharge of its quasi judicial functions it is beyond the powers conferred by section 43A of the which authorises only the issue of directions to the said authority in the discharge of its administrative functions and therefore it is bad. Held, (i) Section 43A confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to its administrative functions. M/s. Raman and Raman vs The State of Madras [1959] 2 S.C.R. 227, relied on. (ii)It is well settled that sections 47, 48, 57, 60, 64 and 64A deal with quasi judicial functions and when the transport authorities are dealing with applications for permits and evaluating the respective claims of the parties, the transport authorities are discharging quasi judicial functions and their orders are quasi judicial orders subject to the jurisdiction of the High Court under article 226. L/P(D)1SCI 1 2 New Prakash Transport Co. Ltd. vs Suwarna Transport Co. Ltd. M/s Raman and Raman Ltd. vs State of Madras, , B. Abdulla Rowther vs State Transport Appellate Tribunal, Madras, A.I.R. 1959, S.C. 896, relied on. (iii) In interpreting section 43A it is legitimate to assume that the legislature intended to respect the basic and elementary postulate of the, rule of law that in exercising their authority and discharging their quasi judicial functions, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgement. It is of the essence of fair and objective administration of law that the decision of judges or tribunals must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. (iv) The impugned order is outside the purview of section 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the tribunals constituted under the Act and which have to be dealt with by them in quasi judicial manner. (v) The decision of the appellate Tribunal is solely based on the provisions of the impugned order and since the said order is invalid, the decision is also bad.

tition Nos. 896/81, 865 890, 577 591, 592 606, 607 621, 622 628, 629 633, 634 37, 964 88, 544, 545 575, 766 774, 775 776, 902 63, 897 901, 535 37, 532 34, 529 531, 639 and 540 43/81. (Under Article 32 of the Constitution) H.K. Puri for the Petitioners in WP 896/81. Vimal Dave for the Petitioners in WP 865 890/81. A.K. Sen, R.M. Dube and Sarva Mitter for the Petitioners in WPs 540 43/81. 30 Soli J. Sorabjee, S.S. Ray, A.K. Sen and R.K. Jain for the Petitioners in WPs 529 37, 544 575, 577 538, 766 776 and 897 988/81. S.S. Ray, Soli J. Sorabjeee and R.K. Jain for the Petitioners in WPs 634 37/81. Lal Narain Sinha, Attorney General, O.P. Rana, and Mrs. section Dikshit for the Respondent (State of U.P.) in WPs 540 43, 529 37, 540 43, 544 77 and 577 638/81. M K. Banerjee Addl. and S.K. Gambhir for the State of Madhya Pradesh. Miss A. Subhashini for Union of India. The Order of the Court was delivered by FAZAL ALI, J. Having heard counsel for the parties at great length we are satisfied that there is no violation of the fundamental right of the petitioners enshrined in article 19(1)(g) of the Constitution of India nor is article 14 attracted to the facts of the present case. There is, therefore, no good ground to entertain the petitions. We would, however, like to add that on the materials placed before us the Government may consider the desirability of adopting such measures as may soften the rigours of the impugned orders which, though not arbitrary or excessive so as to violate article 14 or 19, do merit some consideration by the Government in order to effectuate the policy under which the impugned notification was made. There are, however, two arguments urged before us which need special mention. In the first place it was submitted that in the U.P. cases the order impugned imposing a levy on the khandsari produced by the petitioners cannot have any retrospective operation so as to apply to the stock of sugar manufactured prior to the date of the order and would apply only to the sugar produced after the coming into force of the impugned notification. So far as this argument is concerned we find no substance in the same because it is not a question of retrospectivity of the statute but its actual working. Once the notification imposing the levy was made it will obviously apply to stock of khandsari produced by the petitioners either before or after the order. This principle has been clearly laid down by the Constitution Bench of this Court in the case of Trimbak Damodar Raipurkar vs Assaram Hiraman Patil and Ors.(1) where Gajendragadkar, J. speaking for the Court regarding the 31 scope of a Rent Act and Amendment in Rent Act observed as follows: "In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included. This Court followed the dictum of Buckley, L.J. in the case of West vs Gwynne.(1) In the aforesaid case Buckley, L.J. while construing an amendment in the Act by which the contract was governed observed as follows: "The Act of 1881 thus expressed that in the case of leases made either before or after the commencement of the Act a covenant not to assign without licence should be enforceable just as before. .This section is to be read as if it were contained in the Act of 1881, and is dealing with a subject matter mentioned in the Act of 1881, and as to which there is in that Act a provision that the enactment shall apply to leases made either before or after commencement of the Act." Hardy, M.R. in a concurring judgment while construing second amendment in section 14 of the Conveyancing Act pointed out thus: "In the First place, the language of the section is perfectly general, "in all leases," and there is nothing in the section itself to confine it to leases subsequent to the Act. Almost every statute affects rights which would have been in existence but for the statute. " In these circumstances, therefore, once the notification for imposing the levy was made it will naturally apply to the stock of sugar which was with the petitioners irrespective of the fact that it was manufactured before or after the Order. It was next strongly contended that in fixation of the price of levy sugar the Government has not taken into consideration the fact that the petitioners would undergo a serious loss because the price would not be sufficient even to cover their manufacturing cost. We 32 are, however, unable to agree with this argument. The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price so as to benefit the consumers. It is manifest that individual interests, however, precious they may be must yield to the larger interest of the community namely, in the instant case, the large body of the consumers of sugar. In fact, even if the petitioners have to bear some loss there can be no question of the restrictions imposed on the petitioners being unreasonable. In Shree Meenakshi Mills Ltd. vs U.O.I.(1) this Court observed as follows: "If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable." (Emphasis Supplied) Similar view was taken by this Court in the case of Prag Ice and Oil Mills and Anr. vs Union of India(2) where the Court speaking through Beg, C.J., observed as follows: "It has also to be remembered that the object is to secure equitable distribution and availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time. " In this view of the matter the primary consideration in the fixation of price would be the interest of the consumers rather than that of the producers. Moreover, we think that since the petitioners are allowed to sell freely at any rate they like the remaining fifty per cent of sugar (after excluding the fifty per cent which they have to give for levy) as also the produce by the second and third processes, the loss if any caused to the petitioners would be minimal. Lastly, it was urged that Sub Clause (5) which is Sub Clause (3) in the notification issued by the Madhya Pradesh Government 33 in the impugned notification issued by the U.P. Government is extremely arbitrary inasmuch as by insisting on certificates it deprived the petitioners of the free sale of sugar of the remaining amount of fifty per cent as also the Khandsari produced by second and third processes. We see some force in this argument but the Attorney General frankly conceded that he will see that no inconvenience on this score is caused to the petitioners. He gave an undertaking to the Court that he will get the respective Sub Clauses 5 and 3 of the impugned orders of the U.P. and Madhya Pradesh Governments deleted or withdrawn so as to allow the petitioners to sell the remaining amount of sugar as also the stock produced by the second and third processes without any hitch or hindrance. This will, however, be subject to routine and quick inspection. In view of this undertaking, therefore we feel that a substantial part of the grievances of the petitioners would be removed. To be on the safe side, however we allow the stay granted in all the petitions to continue until the provisions of respective Sub Clauses 3 and 5 passed by the State Governments concerned are withdrawn. We may also emphasise the fact that the amount of sugar taken by the Government through levy should be properly stored and duly protected from rain and rot and be despatched to the various control depots expeditiously in order to ensure a quick and equitable distribution of the commodity amongst the people at moderate rates. The Government may also consider the desirability of giving a bare minimum hearing to the representative of the owners of the cane crushers in future before fixing the rate at which the levy is taken from the owners so as to see that the owners of the crushers are not put to such great loss that they are completely wiped out from business. With these observations the petitions are dismissed. N.K.A. Petitions dismissed.

The appellant was employed with the respondent as Salesman at its Delhi Sales Depot on a salary of Rs. 520/ per month from 8th December, 1973. His service was abruptly terminated by letter dated 12th October, 1974 with effect from 19th October, 1974. Consequent upon his termination, an industrial dispute was raised and referred to the Labour Court, Delhi, on 24th April, 1976. The Labour Court, on evaluation of evidence both oral and documentary, held that the termination of the service was in accordance with the standing orders justifying the removal of the employee on unsuccessful probation during the initial or extended period of probation and, therefore, the termination would not constitute retrenchment within the meaning of section 2(oo) read with section 25F of the Industrial Dispute Act. The Labour Court accordingly held that the termination was neither illegal nor improper nor unjustified and the claim of the appellant was negatived. Hence the appeal by special leave. Allowing the appeal, the Court ^ HELD: 1. The termination of service of the appellant was ab initio void and inoperative. His case not being covered by any of the excepted or excluded categories referred to under section 2(oo) and he has rendered continuous service for one year, the termination of his service would constitute retrenchment. The pre condition for a valid retrenchment has not been satisfied in this case and therefore he will be entitled to all benefits including back wages etc. (534F G, 535 C D) 2. Where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workmen concerned continues to be in service with all consequential benefits. It is no doubt true that the Supreme Court had held that before granting reinstatement the court must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. 519 Here, no case has been made out for departure from the normally accepted approach of the courts in the field of social justice. (535A C) Ruby General Insurance Co. Ltd. vs Chopra (P.P.), (1970) 2 Labour Law Journal, 63 and Hindustan Steel Ltd., Rourkela vs A.K. Roy and Others, ; , referred to. Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever in section 2(oo) of the Industrial Dispute Act, would constitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued illhealth. (524 E F) 3:2. It was not open to the Labour Court to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did not improve in spite of repeated warnings when there was not even a whisper of any period of probation in the appointment order or in the rules. The termination of service being, for a reason other than the excepted category, it would indisputably be retrenchment within the meaning of section 2(oo) of the Industrial Dispute Act.(523 G H, 524A, 525Z) Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union, ; Hariprasad Shivshankar Shukla v, A. D. Divikar, [1957] S.C.R. 121; State of Bombay and Ors. vs The Hospital Mazdoor Sabha and Ors. ; at 872; State Bank of India vs N. Sundara Money, ; ; Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, Orissa and Ors., ; ; Santosh Gupta vs State Bank of Patiala, and Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukerjee, ; , explained and followed. Before a workman can complain of retrenchment being not in consonance with section 25F of the Industrial Dispute Act, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. (529 C) 5:1. The language employed in sub sections (1) and (2) of section 25B does not admit of any dichotomy, namely, (a) sub section (1) providing for uninterrupted service and (b) sub section (2) comprehending a case where the workman is in continuous service. Sub sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V A. (530 G H) 5:2. Sub section (1) provides deeming fiction in that where a workman is in service for a certain period for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the 520 part of the workman. Sub section (1) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter V A be deemed to be continuous service. (530H, 531A, C D) 5:3. Sub section (2) incorporates another deeming fiction for an entirely different situation. It is not necessary for the purposes of sub section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub section (1) his case would be governed by sub section (1) and his case need not be covered by sub section (2). Sub section (2) envisages a situation not governed by sub section (1). And sub section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just proceeding the relevant date being date of retrenchment. (531D E. 532A B) Both on principle and on precedent section 25B(2) comprehends the situation where workman is not in employment for a period of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date that is the date of retrenchment, if he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter V A. In the instant case, the appellant 's case indisputably falls within section 25 B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter V A. (534B D) Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen, ; explained and distinguished. Surendra Kumar and Ors. vs Central Government Industrial cum Labour Court, New Delhi and Another, ; followed.

Appeal No. 84 of 1954. Appeal from the judgment and order dated September 1, 1954, of the former Madhya Bharat High Court in Civil Misc. Case No. 11 of 1952. B. Sen, P. V. Sahasrabudhe, B. K. B. Naidu and I. N. Shroff, for the appellant. M. Adhikari, Advocate General for the State of Madhya Pradesh, H. J. Umrigar and R. H. Dhebar, for the respondents. 959 1960. October 3. The following Judgment of the Court was delivered by GAJENDERGADKAR. The question of law which arises for our decision in this appeal is whether the Kalambandis under which the appellant 's right to receive Rs. 21/8/ per month by way of Bachat (balance) is guaranteed constitute an existing law within the meaning of article 372 of the Constitution. This question arises in this way. The appellant Madhaorao Phalke describes himself as an Ekkan and claims that as such Ekkan he and his ancestors have been receiving the monthly payment of Rs. 21/8/ from the State of Madhya Bharat. It appears that the appellant 's ancestors had accompanied the Scindias to Gwalior from Maharashtra about 200 years ago, and had rendered military service in conquering the territory of Gwalior. In recognition of this service the appellant 's ancestors were granted a fixed amount of money per month, and this amount has been received by the appellant 's family for several generations past. The right to receive this amount has been ' recognised by the Rulers of Gwalior in several statutes, orders, rules or regulations having the force of statutes; amongst them are the Kalambandis of 1912 and 1935. On April 18, 1952, the Government of Madhya Bharat issued an executive order terminating the said payment to the appellant; that is why the appellant had to file the present petition in the High Court of Madhya Bharat against the State of Madhya Bharat and the Government of Madhya Bharat, Revenue Department, respondents 1 and 2 respectively under article 226 of the Constitution. In this petition the appellant bad prayed for an order that a writ in the nature of mandamus, or in the alternative an appropriate direction or order be issued calling upon the respondents to forbear from giving effect to the said executive order. In his petition the appellant challenged the said order on two grounds. It was urged that since the appellant 's right to receive the specified amount had been statutorily recognised by the State of Gwalior it was not open to respondent 1 960 to extinguish that right merely by an executive order. In the alternative it was contended that the right to receive the said amount from month to month was property to which the appellant was entitled, and he could not be divested of that property without the payment of compensation under article 31 of the Constitution. These pleas were denied by the respondents. The respondents ' case was that the payment made to the appellant 's ancestors and to him was by way of emoluments for military service and did not constitute property, and that the Kalambandis on which the appellant relied did not constitute an existing law under article 372. It appears that along with the appellant ten other persons had filed similar petitions making prayers for similar writs or orders against the respondents and their pleas were similarly challenged by the respondents. All the eleven petitions were accordingly tried together. These petitions were heard by a Full Bench of the Madhya Bharat High Court consisting of Shinde, C.J. and Dixit and Newaskar, JJ. All the three learned judges agreed in holding that the Kalambandis on which the petitioners had rested their case were orders issued by the Ruler for the purpose of reorganising the scheme of administration and that they did not amount to law or regulation having the force of law. Dixit, J., gave a specific reason in support of his conclusion that the Kalambandis did not amount to a statute. He held that in Gwalior there was a well recognised law making machinery or custom, and since the Kalambandis in question did not satisfy the requirements of the forms and solemnities specified in that behalf they could not claim the status of a statute. In the result all the petitions were dismissed. The appellant then applied for and obtained a certificate from the High Court under article 133(1)(c) of the Constitution, and it is with the said certificate that he has come to this Court in the present appeal. When this appeal was heard by this Court on March 31, 1958, it was conceded by both the parties that it would be better that they should be allowed to 961 adduce additional evidence before the question of law which was undoubtedly one of general importance, was decided by this Court. In fact an application ' bad been made by the appellant before this Court for leave to adduce additional evidence and no serious objection was raised to the additional evidence by the respondents. Therefore, by consent the matter was sent back to the High Court with a direction that parties should be allowed to adduce additional evidence and the High Court should record its finding on the issue remitted to it in the light of the said additional evidence. The issue remitted to the High Court was whether the Kalambandis in question were statutes or regulations having the force of statutes in the State of Gwalior at the material time or were they merely administrative orders. After remand parties have led evidence before the ' High Court, and the High Court has recorded its finding on the issue remitted to it. Abdul Hakim Khan and Newaskar, JJ., have found in favour of the appellant and have held that the Kalambandis in question were regulations having the force of law in the State of Gwalior at the material time; Krishnan, J., has taken a contrary view. After the finding of the High Court was thus recorded papers in the case have been submitted to this Court, and the appeal has now come before us for final disposal; and so we are called upon to decide the short question of law set out by us at the commencement of this judgment. At the outset it may be relevant to refer very briefly to the historical background of the claim made by the appellant and the other petitioners in all these matters. We have already stated that the appellant claims to be an Ekkan. These Ekkans, it appears, were a class of horsemen who formed part of the Peshwa 's Cavalry along with Silledars. They were single volunteers and they brought with them their own horses and accoutrements. The other petitioners claimed to be Silledars whose ancestors formed part of the Maharatta Cavalry. These Silledars were troopers who brought in their own horses and weapons. They brought bodies of troops armed and 962 equipped at their own expense. They were also known as Paigadars. It also appears that later on an account was made as to the expenses which the Ekkan may have to bear for the maintenance of his horse, and from the total amount payable to him the amount of expenses thus determined was deducted, and that presumably left the balance Rs. 21/8/ which was paid to him as Bachat or balance. Broadly stated this appears to be the position on the pleadings of the parties in the present proceedings. The question which calls for our decision is whether the right to receive this amount is a statutory right; in other words, whether the Kalambandis on which the right is based were rules or regulations having the force of law in the St ate of Gwalior? The two Kalambandis in question were issued in 1912 A. D. and 1935 A. D. respectively. The first Kalambandi was issued by the Ruler Sir Madhavrao himself, whereas the second was issued by the Council which was then in charge of the administration of the State subsequent to the death of Sir Madhavrao which took place in 1925. It is well known that the States of Gwalior, Indore and Malwa integrated and formed a Union in 1948. After the Union was thus formed Act No. 1 of 1948 was passed for the purpose of taking over the administration of the covenanting States. Section 4 of this Act provided for the application of local laws, and as a result all laws, ordinances, rules, regulations, etc., having the force of law in any of the covenanting States were to continue to remain in force until they were repealed or amended according to law. Thus the existing laws which were in force in the State of Gwalior continued even after the union ; and according to the appellant the operation of the Kalambandis continued under section 4. On September 19, 1950, a notification was issued by the Commissioner, Jagir Inams, Court of Wards, Madhya Bharat, declaring that in the case of army personnel described in paragraph 1, question of mutation, adoption. , arising in regard to the said personnel would be dealt with by the office of the Commissioner, and Bachat and other amounts payable to 963 the said personnel would be distributed by the same office. Members of the said army, personnel were accordingly asked to claim payment in respect of their Nemnook from the office of the Commissioner. Subsequently, under the new set up which came into existence after the formation of Madhya Bharat the armies of the covenanting States were amalgamated and reorganised by the Government of India so as to fit them into the overall plans of the defence of the country. The report of the general administration of Madhya Bharat shows how this reorganisation was carried out. As a result of this reorganisation the expenditure on account of hereditary military pensions of Bachat to Silledars and Ekkans was agreed to be charged to the Muafi department of the Madhya Bharat Government; that is how the Madhya Bharat Government continued to be liable to pay the amount to the appellant from mouth to month. Then followed the impugned order passed by respondent 1 on April 18, 1952. Clauses 1 to 4 of this order made provision for the continued payment to the persons specified thereunder. Clause 5, however, declared that the distribution of amounts to Silledars and Ekkans not covered by cls. 1 to 4 would be absolutely stopped from May 1, 1952. It is this order which has given rise to the present proceedings. Before dealing with the question as to whether the Kalambandis constitute an existing law or not it may be useful to refer very briefly to the constitutional position in regard to the Government of Gwalior at the material time. It appears that in 1905 Sir Madhavrao Scindia set up an advisory council known as Majlis Khas. He was himself the President of this Council and assumed the title of Mir Majlis. This Council was constituted as a sort of law making body, but in section 5 of the Quaid Majlis Khas it was expressly provided that the acceptance or rejection of any recommendations made by the majority of the Council would depend entirely on the discretion of the President. This was followed in 1916 by the establishment of Majlis Quanun for the purpose of making laws for 964 the State. With this body were associated some nominated public citizens. Section 4(a) of the Quaid Majlis Quanun, however, made it clear that its function was merely to advise His Highness on such matters as would be placed before it, and section 4(b) left it to the absolute discretion of His Highness either to accept or not the recommendations of the body. In 1918 the Constitutional Manual describing the functions of the members of the Ruler 's Cabinet was pub lished and Majlis Am which was the House of the People was established. It consisted mainly of nominated members though some members elected from recognised public bodies also were associated with it. According to section 31(6) of the relevant law creating this body, deliberations of the body were ultimately to be submitted to His Highness for his final orders, and it was his orders which alone could be executed. It would thus be seen that though Sir Madhavrao was gradually taking steps to associate the public with the government of the State and with that object he was establishing institutions consistent with the democratic form of rule, he had maintained all his powers as a sovereign with himself and had not delegated any of his powers in favour of any of the said bodies. In other words, despite the creation of these bodies the Maharaja continued to be an absolute monarch in whom were vested the supreme power of the legislature, the executive and the judiciary. In dealing with the question as to whether the orders issued by such an absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power. There was no constitutional limi tation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of 965 its citizens. In Ameer un Nissa Begum vs Mahboob Begum (1), this Court had to deal with the effect of a Firman issued by the Nizam, and it observed that so long as the particular Firman issued by the Nizam held the field that alone would govern and regulate the rights of the parties concerned though it would be annulled or modified by a later Firman at any time that the Nizam willed. What was held about the Firman issued by the Nizam would be equally true about all effective orders issued by the Ruler of Gwalior (Vide also: Director of Endowments, Government of Hyderabad vs Akram Ali (2) ). It is also clear that an order issued by an absolute monarch in an Indian State which had the force of law would amount to an existing law under article 372 of the Constitution. Article 372 provides for the continuance in force of the existing laws which were in force in the territories of India immediately before the commencement of the Constitution, and article 366(10) defines an existing law, inter alia, as meaning any law, ordinance, order, rule or regulation passed or made before the commencement of the Constitution by any person having a power to make such law, ordinance, order, rule or regulation. In Edward Mills Co., Ltd., Beawar vs State of Ajmer (3), this Court has held that " there is not any material difference between the expressions 'existing law. ' and the 'law in force '. The definition of an, existing law in article 366(10) as well as the definition of an Indian law contained in section 3(29) of the General Clauses Act make this position clear ". Therefore, even if it is held that the Kalambandis in question did not amount to a quanun or law technically so called, they would nevertheless be orders or regulations which had the force of law in the State of Gwalior at the material time, and would be saved under article 372. The question which then arises is whether these Kalambandis were regulations having the force of law at the material time. In support of the conclusion that they are merely administrative orders it is urged by the learned (1) A.I.R. 1955 S.C. 352. (2) A.I.R. 1956 S.C. 6o. (3) ; 123 966 Advocate General of Madhya Pradesh that Sir Madhavrao was an enlightened Ruler and was fully conscious of the distinction between executive orders and statutory provisions, and so if the Kalambandis in question did not take the form of a quanun or a statute it would be safe to infer that they were intended to operate merely as executive orders. In support of this argument reliance has been placed on the obser vations made by Sir Madhavrao, in Volume 7 which deals with Durbar Policy. " Broadly speaking says Sir Madhavrao, " all orders and directions issued by the Ruler may be regarded as laws. In the technical sense, however, the latter term signified only commands whose fulfilment is accompanied by the conferment of a particular concession and whose con travention spells punishment or the extinguishment of a right. Orders issued for the purpose of regulating the working of a department generally take the form of Rules, Manual or Kalambandi and are superscribed as such ". It may be conceded that this statement does make a distinction between laws technically socalled and Rules, Manual or Kalambandi; but it is significant that the very statement on which this argument is founded ends with the observation that the differentiation in the Dames is merely intended to indicate the group to which a given set of orders be. longs. In other words, the name given to the order would not be decisive; its character, its content and its purpose must be independently considered. Then it is urged that the Kalambandis in question were not published in the Government Gazette as other laws are; they were published only in the military gazette, and it is argued that they are not called quanun or laws as they would have been, if they were intended to operate as laws. In this connection our attention was also drawn to certain acts passed in the State of Gwalior which are described as acts or laws. On the other hand, it is clear that the distinction between Kalambandi and quanun was not always strictly observed. In regard to the jurisdiction of the High Court and the functioning of the Civil and Criminal Courts rules were issued and yet they 967 were described as a Manual. There can be no doubt that the rules contained in this Manual which govern the jurisdiction, powers and authority of Courts in the State of Gwalior had the force of law, and yet they were included in a Manual which, judging merely by the description of the document, can be distinguished from a quanun. Similarly it appears from circulars collected in a book called Majmua Circulars (1971 to 1993 Samvat) that the notification issued under the said Circular had the effect of modifying the provisions of the Customs Law. There is also another instance that amendment of statutory provisions was made by Sir Madhavrao by giving directions in that behalf though such directions did not take the form of a quanun. In fact in section 39 of the Durbar Policy, Volume 3, Sir Madhavrao has described the Kalambandi of Samvat 1969 as quayada. To the same effect is the Durbar Order No. 5 dated April 14, 1923. It would thus be clear that the decision of the question with which we are concerned cannot rest merely on the description of the order. It would not be possible to accept the argument urged by the learned Advocate General that because the Kalambandi is not described as a quanun or was not published in the government gazette therefore it should be treated as an executive order. The words used in describing the several orders issued by the Ruler can afford no material assistance in determining their character. In this connection it is necessary to recall that all orders issued by the absolute monarch had the force of law. Therefore it would be necessary to consider the character of the orders contained in these Kalambandis. The first Kalambandi which was issued in 1912 consists of 54 clauses. No doubt it begins by saying that it has been issued for the purpose of arranging for the administration of the department of irregular unit of Shiledari, but the nature of the provisions contained in this document unambiguouly impresses upon it the character of a statute or a regulation having the force of a statute. It recognises and confers hereditary rights, it provides for the adoption of a son by the widow of a deceased silledar subject to the 968 approval of the State; it also provides for the maintenance of widows out of funds specially set apart for that purpose; it contemplates the offering of a substitute when a Silledar has become old or has other. Wise become unfit to render service; it makes detailed provisions as to mutation of names after the death of a Silledar, and it also directs that the Asami being for the Shiledari service it cannot be mortgaged for a debt of any banker, and it further provides that if a decree is passed against a Silledar and the decreeholder seeks to proceed against the amount payable to him the execution has to be carried out in accordance with the manner and subject to the limitations prescribed in that behalf. It would thus be seen that the detailed provisions made by this Kalambandi deal with several aspects of the amount payable to the recipient, and considered as a whole it cannot be treated as an administrative order issued merely for the purpose of regulating the working of the administration of the department of irregular forces. The second order which was issued by the Council is substantially on the same lines as the first order. It consists of 39 clauses. Its preamble shows that as per orders of the Durbar the department of irregulars was governed by the regulations issued in that behalf in 1912 A.D., and it adds that " because the aforesaid Bedas have now been amalgamated with the regular army and are made subject to all the laws that are in force in the Gwalior army, the Regulations of 1912 are repealed and orders are issued as under ". This clearly reads like a statutory provision whereby the earlier relevant statute is repealed. The scheme of this order follows the pattern of the earlier order. It provides for succession, for the regulation of adoption, for the mutation and heirship enquiry, for a substitute being given in case the Silledar is unable to work himself, prescribes a disqualification from service where the Ismdar is convicted, and imposes a similar limitation on execution against the amount of the Asami. Clause 22 of this order says that in case there is no legal heir or the widow of the deceased Ismdar his name will be struck off and the 969 Asami will at once be given to other person. In no case will the Asami be abolished. In our opinion,. having regard to the contents of the two orders and the character of the provisions made by them in such a detailed manner it is difficult to distinguish them from statutes or laws; in any event they must be treated as rules or regulations having the force of( law. That is the finding recorded by Abdul Hakim Khan and Newaskar, JJ., and we think that the said finding is correct. After the finding was recorded and submitted to this Court the appellant has made one more application for permission to lead another piece of additional evidence. This evidence consists of a book named " Guide Book Kalambandi " of October 1, 1899. It has been printed, published and issued under the signature of the Ruler, and it relates among other things to the administration of the Revenue Department of the State of Gwalior; it is written in Hindi. It contains a preface and introduction. According to the appellant the relevant portions of this document would clearly show that Kalambandi was treated as indistinguishable from quanun or law. This position in not seriously disputed by the respondents; but they contend that the appellant should not be allowed any further opportunity to lead additional evidence because by the order of remand he was given such an opportunity and he should have produced all the evidence on which he wanted to rely before the High Court. There is some force in this contention ; on the other hand it is clear that publications like the one on which the appellant now seeks to rely would be primarily within the knowledge of respondent I and respondent I should have produced all relevant and material documents to assist the High Court in determaining the issue sent to it after remand. However, in view of the conclusion which we have reached on the material that has already been adduced on the record we do not think it necessary to consider whether the additional evidence should be allowed to be adduced. It is not disputed that if the Kalambandis on which 970 the appellant 's right is based are rules or regulations having the force of law the impugned executive order issued by respondent 1 would be invalid. The right guaranteed to the appellant by an existing law cannot be extinguished by the issue of an executive order. In fact on this point there has never been a dispute between the parties in the present proceedings. That is why the only point Of controversy between the parties was whether the Kalambandis in question amount to an existing law or not. Since we have answered this question in favour of the appellant we must allow the appeal, set aside the order passed by the High Court and direct that a proper writ or order should be issued in favour of the appellant as prayed for by him. The appellant would be entitled to his costs throughout. Appeal allowed.

These petitions by certain stage carriage permit holders for appropriate writs quashing seven schemes for nationalisation of road transport services in West Godavari District, approved and enforced from different dates by the Government of Andhra Pradesh, called in question the constitutional validity of Ch. IVA of the , as amended by Act 100 of 1956, and the validity of r. 5 of the Andhra Pradesh Motor Vehicles Rules framed by the State Government under section 68(1) of the Act and the note in terms of the said rule appended to the schemes which was said to be inconsistent with the Act and was as follows: "The frequency of services of any of the notified routes or within any notified area shall, if necessary, be varied having regard to the traffic needs during any period. " Held, that in view of the decision of this Court in H. C. 643 Narayanappa vs The State of Mysore, it was no longer open to the petitioners to contend that the provisions of Ch. IVA of the (IV of 1939), as amended by the Central Act 100 of 1956, were ultra vires the powers of the Parliament. H. C. Narayanappa vs The State of Mysore, [1960] 3 S.C.R. 742, followed. Nor was it correct to contend that Ch. IVA of the Act was invalid on the ground that it infringed article 19(i)(g) of the Constitution and was not saved by article 19(6) as the powers conferred on the State by section 68C of the Act exceeded the limits of article 19(6)(ii) of the Constitution. Article 19(6)(ii) is couched in very wide terms, the word 'service ' used by it is wide enough to include all species of motor service and it does not in any way limit the States ' power to confer on itself a monopoly in respect any area in exclusion of any person or persons. The only classification that Ch. IVA of the Act makes is between the State Transport Undertaking and private transport undertakings, whether carried on by individuals or firms or companies, and that classification is reasonably connected with the object it has in view. It was not, therefore, correct to say that it contravenes article 14 of the Constitution. That Chapter does not confer any arbitrary and discriminatory power upon the State Transport Undertaking nor does the quasi judicial procedure prescribed by it seek to cover such power. Any mala fide or collusive exercise of the power, therefore, in deprivation of an individual 's rights can only be a ground for quashing a particular scheme alone but not for declaring the chapter void. Since that chapter provides a complete and satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from a notified area or route it requires no liberal construction. Gullapalli Nageswara Rao vs Andhra Pradesh Road Transport Corporation, [1959] SUPP. 1 S.C.R. 319, referred to. Saghir Ahmad vs The State of U. P., ; , considered. Official bias inherent in the discharge of a statutory duty, as has been pointed out by this Court, is distinct from personal bias for or against any of the parties. Since in the instant case, the State Road Transport Corporation was neither legally nor factually a department of the State Government and the State Government in deciding the dispute between the said undertaking and the operators of private buses was only discharging its statutory function, no question of official bias could arise. Gullapalli Nageswara Rao vs The State of Andhra Pradesh, ; and H. C. Narayanappa vs The State of Mysore, ; , considered. 644 The observations made by this Court in Srinivasa Reddy vs The State of Mysore, in regard to piecemeal implementation of a scheme were directed against any abuse of power by way of discrimination as between operators and operators in respect of a single scheme. Since the seven schemes in question were intended to avoid the vice inherent in piecemeal implementation of a single scheme and were meant to be implementated in their entirety from different dates, those observations did not apply to them. Srinivasa Reddy vs The State of Mysore, ; , explained. There can be no doubt that r. 5 of the Andhra Pradesh Motor Vehicles Rules in conferring on the State Transport Undertaking the power to vary the frequency of services, gave it the power to effect a substantial modification in the scheme permissible only under section 68E of the Act, and as such the rule must be declared void. But since the note appended to the schemes in pursuance of the rule is severable from the schemes, it should be deleted and the schemes must be declared valid. The word 'route ' in section 68C of the Act does not refer to a preexisting route. It is permissible under that section to frame a scheme in respect of any area or route or any portions thereof, or a new route, since there is no inherent inconsistency between an 'area ' and a 'route '.

Appeal No. 552 of 1962. Appeal by special leave from the judgment and decree dated August 22, 1960 of the former Bombay High Court in appeal No. 432 of 1954 from Original Decree. M. K. Nambiar, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. D. R. Prem, B. R. G. K. Achar and R. H. Dhebar, for the respondent. March 3, 1964. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment and decree of the High Court of Bombay confirming those of the Civil Judge, Senior Division, 986 Ahmednagar, Jr,, Special Civil Suit No. 6 of 1953 filed by the appellant against the State of Bombay for a declaration of his right to water from a particular source, and for consequential reliefs. The appellant is the owner of Shankar Tukaram Karale Rampur Farm, situated at the tail outlet of the Godavari Right Bank Canal Distributary No. 17, The lands comprised in the said Farm originally belonged to Shankar Tukaram Karale, hereinafter called Karale. In the year 1935 the said Karale had a farm for raising sugarcane consisting of 35 acres owned by him and about 65 acres of land taken on lease by him in Ahmednagar District. He obtained sanction to irrigate his lands on the outlet No. 17 of the Godavari Right Bank Canal. In or about the same year the Government of Bombay proposed to reserve certain area along the said Distributary Canal as "factory area". After some correspondence between the said karale and the Government of Bombay, it was the appellant 's case, the Superintending Engineer agreed on July 14, 1939, to exclude Karale 's lands from the factory area and also to give him water perpetually on condition that he concentrated all his holdings on the tail outlet of Distributary No. 17 and to take the supply of water on volumetric basis. Pursuant to that arrangement, Karale, by purchase or otherwise, concentrated his holdings and shifted his operations to that area and he was supplied water on the agreed basis. In or about April 1948, the appellant and Karale entered into a partnership for exporting the said area whereunder the appellant had three fourths share and the said Karale had one fourth share. Later on disputes arose between the appellant and Karale in respect of the partnership which culminated in a consent decree dated February 7, 1951, whereunder the appellant became the full owner of the partnership business with all its assets and liabilities, including the lands and the compact block and the right to use the canal water. When the appellant applied for the recognition of the transfer, the Canal Officer refused to do so. On appeal, he was informed that his request for supply of canal water could not be granted. From April 1952 the supply was stopped. After giving the statutory notice under 987 section 80 of the Code of Civil Procedure, the appellant filed Special Civil Suit No. 6 of 1953 in the Court of the Civil Judge, Senior Division, Ahmednagar, against the State of Bombay for a declaration that the plaintiff was entitled to the supply and use of water from the tail outlet of Distri butary No. 17 of the Canal to irrigate 100 acres of basic cane land in the concentrated area described in Schedule 11 at the rates prescribed by the Government under the Irrigation Act on a volumetric basis, for specific performance of the aforesaid agreement between Karale and the Government, for recovery of damages, and for other incidental reliefs. The State of Bombay filed a written statement contending, inter alia, that there was no concluded agreement between the Government and Karale embodying the alleged terms stated in the plaint, that even if there was such an agreement, it was void inasmuch as it did not comply with the provisions of section 175(3) of the Government of India Act, 1935, and that, in any view, the appellant could not legally get the benefit of the agreement under section 30 of the Bombay Irrigation Act, 1879. On the pleadings as many as seven issues were framed reflecting the contentions of the parties. The learned Civil Judge held that there was a concluded agreement between the Government and Karale on the, terms alleged by the appellant, but the transfer by Karale of the said right in favour of the appellant was in violation of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and, therefore, there was no legal transfer of Karale 's right of water in favour of the appellant. In that view, he dismissed the suit. On appeal, the High Court held that there was neither a concluded agreement between Karale and the Government nor did it comply with the requirements of law. In the result the appeal was dismissed. Hence the present appeal. The arguments of Mr. M. K. Nambiar, learned counsel for the appellant, may be summarized under the following heads : (1) There was a concluded agreement between Karale and the statutory authority, the Canal Officer, whereunder the said Karale was entitled 'to get water to his compact block permanently from the tail outlet of Distributary No. 17 of the Godavari Right Bank Canal so long 988 as he was willing to pay the rates for such supply on volu metric basis. (2) As under the compromise decree between Karale and the appellant the said block of land was trans ferred to the appellant, the right under the agreement for the supply of canal water was also transferred to him under section 30 of the Bombay Irrigation Act, 1879 (Bombay Act No. 7 of 1879), hereinafter called the Act. (3) Section 175(3) of the Government of India Act, 1935, does not apply to the agreement in question for the following reasons : (i) once the Legislature covers any matter by the enactment of any statute, any functional power assigned to the Government or any other authority under the said statute is exercisable only under that statute and in virtue of the statutory authority and not in the exercise of the executive authority of the Province within the meaning of section 175(3) of the Government of India Act, 1935; (ii) the agreement contemplated by section 30 of the Act is an agreement entered into under the Act by a statutory authority in pursuance of a statutory power with the statutory consequences and, therefore, such an agreement is outside the provisions of section 175(3) of the Government of India Act, 1935; and (iii) that apart, the expression "agreement" in section 30 of the Act does not mean a formal contract, but only a sanction, permission or consent given by the Canal Officer pursuant to the authority given to him under the Act, and, therefore, such sanction, permission or consent is not a contract within the meaning of section 175(3) of the (Government of India Act, 1935. This appeal raises a question a far reaching importance as regards the scope of the executive authority exercised by the Governor under the Government of India Act, 1935; but, we are relieved of the duty to express our opinion on that question in this appeal in view of our finding that the agreement in question was arrived at outside the provisions of the Act and, therefore, it squarely falls within the scope of section 175(3) of the Government of India Act, 1935. We shall at the outset address ourselves to the said agreement, namely, (i) who are the parties to the said agreement; and (ii) what are the terms thereof? 989 When the suit was pending decision of the Civil Court, the appellant filed an application therein for directing the Government to produce, among others, the applications made to the Government from time to time by Karale in respect of supply of water to his farm in the year 1935 and subsequent thereto and the office copies of the replies sent to the said applications, the Government documents and papers, water bills and the records in respect _of the supply of water to the land belonging to Karale from the year 1935. and the correspondence that passed between karale and ' the Government between 1935 and 1939 in respect of consolidation of his lands. Obviously these papers were required by the appellant for establishing the case that there was a concluded agreement between Karale and the Government or the Canal officer. But, unfortunately, the said documents were not produced. It is not clear from the record why and under what circumstances the Government withheld the documents from the court, but in appeal the High Court in its judgment remarked: "In the trial Court no attempt was made to have this endorsement produced in Court which could have been done if the plaintiffs Counsel had so desired by a proper application to the Court". But the High Court felt that it was absolutely necessary in the interests of justice to call upon the learned Government Pleader to produce the file with reference to that particular endorsement, namely, Endorsement No. 3033/36 1 dated 28th April 1939, and directed him to do so. It disposed of the appeal after receiving the said relevant document. Though the High Court threw the blame for this lapse on the appellant, we do not think there was any justification for it. Apart from the fact that the appellant asked for the production of all the relevant documents, the Government, being the defendant in this case, should have produced the documents relevant to the question raised. While it is the duty of a private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the Government not to withhold such documents from the court. Be that at it may, the documents were finally produced before the court, and the High Court considered the same in arriving at its conclusion. Though Mr. Nambiar suggested that the said documents 990 related to some other party, as we will indicate in the course of the judgment, the said file dealt also with the agreement alleged to have been entered into between Karale and the Government. Exhibits Nos. D 67 and D 68 are the documents on which strong reliance is placed on behalf of the appellant. Exhibit D 67 reads thus : Below Government endorsement No. 3033/36 1 dated the 28th April 1939: No. 4223 of 1939 Poona, 14th July, 1939. Returned with compliments. The applicant has already been allowed to continue his present cane irrigation of 93 acres on outlets 2 and Tail of Distributary 17 of the Godavari Right Bank Canal for one year from 15 2 1939 pending consideration of his case in detail, in relation to the demand of the Sugar Company formed by Messrs. Jagtap & Khilari on this canal and lately named the "Changdeo Sugar Factory". In view however of the orders issued verbally by the Hon 'ble Minister, Public Works Department on 12 7 1939 the applicant is being allowed to concentrate all his cane irrigation to the extent of 100 acres on the tail outlet of Dy 17 of the Godavari Right Bank Canal by 15 2 1940 and to continue it permanently there if he so wishes provided he agrees to take water by measurement on volumetric basis of 112" at the outlet head and pay the water rates that may hereafter be sanctioned by Government in this respect. The applicant has since signified his willingness to these conditions. He will be charged, till then on the area basis as is done at present. The area thus allowed to the applicant will be excluded from the Sugar Factory area while 991 fixing the boundaries of the allotted factory area of the "Changdeo Sugar Factory" on this canal. D.A. Marathi petition. (Sd.) W. H. E. GARROD, Superintending Engineer, D.I.C. Copy, with compliments, to the Executive Engineer, Nasik Irrigation Division, for information and guidance with reference to the correspondence ending with this office No. 3686 dated 22 6 1939. Exhibit D 68 is a letter written by the Superintending Engineer to Karale. It reads : No. 4224 of 1939 Poona, 14th July 1939. TO Shankar Tukaram Karale, Esquire, at Belapur. Continuation of cane irrigation on Distributary No. 17 of the Godavari Right Bank Canal. Dear Sir, In continuation of this office No. 3686 dated 23rd June 1939, I have to inform you that under orders of the Honourable Minister, Public Works Department, you will be allowed to irrigate came to the extent of 100 acres on the tail outlet of Distributory No. 17 of the Godavari Right Bank Canal permanently, so long as you may wish to do so, on condition that you agree to take canal water by measurement on volumetric basis of 112" depth at the outlet head at the rate which may be sanctioned by Government hereafter. (2) This will apply to new cane plantation from 15 2 1940 onwards. Till then, you may continue your cane irrigation on outlets 2 and tail as at present. Yours faithfully, (Sd.) W. H. E. Garrod, Superintending Engineer, Deccan Irrigation Circle. 992 Copy, with compliments, to the Executive Engineer, Nasik Irrigation Division, for information. A fair reading of these two documents leaves no room for doubt that a firm agreement was entered into between the Government and Karale in respect of the supply of water to his land to the extent of 100 acres on the tail outlet of Distributary No. 17 of the Godavari Right Bank Canal. These two letters show that there was previous correspondence between the Engineering Department and Karale and that the Minister of Public Works Department intervened and settled the terms of the agreement, and that the terms were communicated to Karale, who accepted the same. The terms of the agreement were, (i) Karale was allowed to concentrate all his cane irrigation to the extent of 100 acres on the tail outlet of Distributary No. 17 of the Godavari Right Bank Canal by February 15, 1940, and to continue it permanently, if he so wished; (ii) Karale agreed to take water by measurement on volumetric basis of 112" at the outlet head and to pay water rates that might thereafter be sanctioned by the Government in that respect; (iii) the said area will be excluded from the sugar factory area while fixing the boundaries of the allotted sugar factory area of Changdeo Sugar Factory; and (iv) the terms will apply to new cane plantation from February 15, 1940 onwards. It is said that the word "permanently" refers to cultivation, but not to supply of water. This interpretation makes the entire contract meaningless. Sugar cultivation can be done only with the permission of the department, for sugarcane crop cannot be raised without supply of water from the canal. When the Superintending Engineer allowed Karale to concentrate all, his cane irrigation in the said area permanently on condition he paid the prescribed rates, it was necessarily implied in the said agreement that he would supply water permanently, if the said rates were paid. Cultivation and supply of water are so inextricably connect ed that one cannot be separated from the other. The permission to have cane irrigation permanently on the basis of a particular rate implies that the supply for irrigation is co terminous with irrigation. In this view we must hold that Exs. D 67 and D 68, read together, record a concluded 993 agreement between the Superintending Engineer, acting on the orders of the Minister of Public Works Department, on the one hand and Karale on the other, agreeing to supply water so long as Karale had cane cultivation in the con s centrated area. The other documents, read along with the documents filed for the first time in the High Court, also do not detract from this conclusion. Exhibit D 78. which is not dated, was the application filed by Karale to the Chief Minister, P.W.D. and Irrigation Department, Bombay. Therein Karale represented to the Chief Engineer that Distributary No. 17 was permanently closed prior to 1935, that he was responsible for starting the said Distributary by commencing plantation. that the "Prime Minister 's" consent gave him an assurance that while declaring the factory area, the area of the previous gardeners would be excluded from the said area, that he had invested a capital of about Rs. 75,000/ for raising the plantation and that in the circumstances he prayed that while declaring the factory area, his land should be excluded therefrom. This application was considered by the concerned office under G.L. No. 3033/36 dated April 27, 1939. In the note put up by the office the contents of the ;said application are summarized. Thereafter the following note is found : "With reference to the H.M.R.D. 's note dated 3 4 1939 it may be observed that Government has already accepted the principle that no ordinary irrigators should be allowed to operate in the sugar factory area. Under the general orders issued on the subject owner irrigators are to be allowed to continue irrigation, on yearly basis. It is for consideration whether this fact may be brought to the notice of the H.M.R.D. If it is decided to do so the papers may be submitted to the H.M., P.W.D. and the H.M.R.D. after the drafts put up are issued." The Revenue Minister accepted the endorsement. This is only an office note and the suggestion that the irrigators should be allowed to continue on the yearly basis was only to prevent further applications after the factory area was declared. This endorsement had nothing to do with the 134 159 S.C. 63 994 exclusion of any particular area from the sugar factory area. The endorsement "should see" below the endorsement made by the Revenue Minister perhaps meant that the papers, should be submitted to the Minister concerned. Exhibit D 79 is a letter written by the Deputy Secretary to the Government of Bombay to Changdeo Sugar Mills. This letter also refers to the office endorsement No. 3033/36 1. Though we are not directly concerned with this letter, it may be mentioned that the application of Karale is connected with the proposal to declare certain area as factory area and to give water to Changdeo Sugar Factory in respect of the lands in that area, for his application was to exclude his area from the factory area. Both the matters obviously were dealt together. Exhibit D 79A is again part of the file relevant to the factory area. But a reference is made again to the office No. 3033/36 1 and in the same file Karale 's letter is also noticed. Exhibit D 81 is an endorsement at page 133 of the same file, which also deals with the subject 'sugar factories". It contains a copy of the letter written to the Superintending Engineer requesting him to submit at a very early date a draft agreement for the supply of water to the company 's area on the Godavari Right Bank Canal on the terms embodied in the margin thereof. Exhibit D 82 is also another endorsement on the same file. The endorsement reads thus : Endorsement at 191. 3033/36 1114 Discussed with the Secy. In addition to his written requests, Mr. Karale had also interviewed the late H.M.R.D. During the discussions, H.M. had made it clear that Mr. Karale can only be allowed to continue if he was willing to consolidate his holdings in an independent block so that the Co. 's cultivation be carried on undisturbed. This is not recorded on this file as H.M. did not pass any orders in Bombay or at the Secretariat but instructed 995 (Presumably after discussion with Mr. Sule) the S.E.D.I.C. in the matter. Please see P. 107 ante. That Mr. Karale 's cane has to be shifted to one block is clear from the wordings of the S.E.S. letter. "The applicant is allowed to concentrate all his cane. . on the tail outlet of D. 17". This is the only record of the orders passed. Moreover Mr. Karale is to have his supply on a volumetric basis as soon as that can be arranged for. This would necessitate the concentration of his cane areas. " This endorsement notices the contents of exhibit D 67 and, therefore, it must have been made only after April 28, 1939. The said documents do not carry the matter further. They only show what we have already noticed, namely, the Govern ment wanted to create a factory area and that Karale filed an application to have his area excluded therefrom. The notings of the department are not in any way inconsistent either with exhibit D 67 or with exhibit D 68. Exhibits D 67 and D 68 refer to Office No. 3686 dated June 23, 1939, and that letter must have been in some other file and that file was not produced and, if produced, it might have thrown some more light. In the circumstances we must proceed on the basis that Exhibits D 67 and D 68 embodied the terms of the agreement entered into between the Government and Karale pursuant to the application, exhibit D 78, made by him to the Chief Engineer, P.W.D. We have already held that the said documents record the completed agreement between the Government and Karale in respect of supply of water to his and. Even so, the question arises whether the said agreement is enforceable, if it has not complied with the provisions of section 175(3) of the Government of India Act, 1935. The premises on which Mr. Nambiar built his argument is that the said agreement was entered into between the parties under the provisions of the Act. If it was not made under the provisions of the Act, but outside the Act, the foundation for this argument would disappear. We would, therefore. proceed to consider now whether the said agreement was under the provision of the Act. 996 The relevant provisions of the Act may now be read. Section 3(6) defines "Canal Officer" to mean any officer lawfully appointed or invested with powers under section 4. Under section 4, such officer can exercise powers and discharge duties that may be assigned to him by the State Government. It is said that the Superintending Engineer was one of the officers so appointed by the Government and that the powers under sections 27 to 30 of the Act were assigned to him. Under section 27, "Every person desiring to have a supply of water from a canal shall submit a written application to that effect to a Canal Officer duly empowered to receive such applications, in such terms as shall from time to time be prescribed by the State Government in this behalf". Under section 29, "When canal water is supplied for the irrigation of one or more crops only the permission to use such water shall be held to continue only until such crop or crops shall come to maturity, and to apply only to such crop or crops". Under section 30, "Every agreement for the supply of canal water to any land, building or other immovable property shall be transferable therewith, and shall be presumed to have been so transferred whenever a transfer of such land, building or the other immovable property takes place." But under the second limb of the section, "except in the case of any such agreement as aforesaid, no person entitled to use the water of any canal, shall sell or sub let, or otherwise transfer, this right to such use without the permission of a Canal Officer duly empowered to grant such permission". A combined reading of these provisions establishes that every person desiring to have supply of water from a canal shall apply in the prescribed manner to the Canal Officer and that the per ,on to whom water is supplied cannot transfer his right to another without the permission of the Canal Officer. But if the land in respect whereof the water is supplied is transferred, the agreement for the supply of water also shall be presumed to have been transferred along with it. The expression "agreement" in section 30 of the Act, it is contended, does not connote a contract as understood in law, but only a convenient mode of expression to indicate the sanction or permission given by the Canal Officer. This meaning of the expression "agreement" is sought to be supported by a reference to the Bombay Canal Rules, 1934, made in 997 exercise of the powers conferred on the State Government under section 70(e) of the Act. Part 11 of the Rules deals with supply of water. It provides for the filing of applications, the manner of their disposal and. the persons entitled to dispose of the same, and also the mode of supply of water for cultivation of different crops. The forms prescribed columns under different heads for giving the necessary particulars. The forms contain the instructions as well as conditions on which permission will be granted. Rule 7 says that an application for supply of water for the irrigation of land for any period may be sanctioned, indicating thereby that there is no maximum period fixed for which application for supply of water can be made. Assuming without deciding that "agreement" under section 30 of the Act means only sanction, the Act and the Rules provide for an application to be made to the Executive Engineer, who, subject to. the Rules, can give the sanction. Rule 36 provides for an appeal from the order of the Executive Engineer to the Superintending Engineer, and from that of the Executive Engineer 's order under r. 18 or r. 19 to the Collector. But there is no provision either in the Act or in the Rules made thereunder enabling any party to make an application to the Chief Engineer to exclude his land from factory area, and to give him supply of water for irrigating the said land permanently, or a power to the Government to enter into an agreement or make an order in respect of such an application. Such an order or agreement is entirely outside the scope of the Act or the Rules made thereunder. We are not called upon in this case to decide whether the Government has any such power outside the Act; but, we shall assume for the purpose of this case that it has such power and to proceed to consider the legal arguments on that basis. The documentary evidence adduced in this case, which we have already considered, discloses that the application was made to the Chief Engineer; that the Government, through the relevant ministry, considered the application and that on the instructions given by the concerned Minister, the Superintending Engineer wrote the letter exhibit D 68 to Karale. It was, therefore, in effect and substance, an agreement entered into between the Government and Karale. 998 Such an agreement fell outside the provisions of the Act. The parties to the agreement also understood that it was an agreement made between the Government and Karale. The Government in or about February 1942 sent a draft agreement to Karale for execution regarding the supply of canal water to his farm, but the said Karale did not execute the agreement. The parties did not agree in regard to some of the conditions found in the draft, but Karale did not contest the position of the Government that a formal agree ment in compliance with the provisions of law was necessary. Again during the continuance of the partnership between Karale and the appellant, in or about 1950, the Government of Bombay sent another draft agreement to the said Karale for execution. Though Karale signed the agreement, he insisted upon a proviso that the agreement should be without prejudice to the permission already granted to him. The Bombay Government did not execute the said agreement. So too, Karale and the appellant were making yearly applications under the Act and getting supply of water to their plantation. That procedure was presumably followed because, though there was an agreement between Karale and the Government, for one reason or other, a formal document, though intended to be executed, was not executed. This conduct on the part of the Government as well as that on the part of Karale and the appellant also establishes that the agreement was not under the Act, but between the Government of Bombay and Karale. If so, it follows that the contract entered into between the Government and Karale was a contract made in the exercise of the executive authority of the Province within the meaning of section 175(3) of the Government of India Act, 1935. The relevant part of section 175(3) of the Government of India Act, 1935, read : "All contracts made in the exercise of the executive authority of a Province shall be expressed to be made by the Governor of the Province . and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise. 999 This section laid down two conditions for the validity of such a contract, namely, (i) it should be expressed to be made by the Governor of the Province, and (ii) it should be executed on behalf of the Governor by such persons and in such manner as he might direct or authorize. We have nothing on the record to disclose whether the Superintending Engineer, though he acted under oral instructions of the Minister, was authorized by the Governor or under relevant rules to enter into such a contract. That apart, even if Exs. D 67 and D 68 together were treated as forming part of a contract entered into between the Government and Karale, can it be said that the said contract was expressed to be made in the name of the Governor? Ex facie it cannot be said so. But it is contended that on a liberal construc tion, which we should adopt in a case where the Government is trying to go back on its solemn promise, such a formality can easily be read into the said documents. Before we construe the said two documents in order to ascertain whether such a formality has been complied with or not, it would be convenient to notice some of the decisions of this Court. The question of construction of section 175(3) of the Government of India Act, 1935, directly arose for decision in Seth Bikhraj Jaipuria vs Union of India(1). There, the Divisional Superintendent, East Indian Railway, placed certain orders with the appellant for the supply of foodgrains for the employees of the said Railway. The orders were not expressed to be made in the name of the Governor General and was not executed on behalf of the Governor General as required by section 175(3) of the Government of India Act, 1935. They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. This Court held that the contracts, not having been expressed to be entered into by the ,Governor General and not having been executed on his behalf, were void. This Court held that the provisions of section 175(3) of the Government of India Act, 1935, were mandatory and, therefore, the contracts were void. This decision was followed by this Court in New Marine Coal Co. vs The Union of India(2). Reliance is placed by the (1) (2) ; 1000 learned counsel for the appellant on the decision of this Court in Union of India vs Rallia Ram (1) in support of his contention that though ex facie Exs. D 67 and D 68 do not show that the contract was expressed to be made in the name of the Governor, the said fact could be inferred from the recitals. There, the goods offered to be sold belonged to the Government of India. A tender notice was issued by the Government of India, Department of Food (Division 111), in the name of the Chief Director of Purchases. The Chief Director of Purchases agreed to sell the goods on certain conditions to the respondent and incorporated them in the acceptance note, which was also headed "Government of India, Department of Food (Division III), New Delhi". The general conditions of contract, which accompanied the letter of acceptance, defined Government as meaning the Governor General for India in Council. On the said facts this Court held that the correspondence between the parties ultimately resulting in the acceptance note amounted to a contract expressed to be made by the Government and, therefore, by the Governor General, "because it was the Governor General who invited tenders through the Chief Director of Purchases and it was the Governor General who, through the Chief Director of Purchases, accepted the tender of the respondent subject to the conditions prescribed therein". Though in the acceptance note it was not expressly stated that the contract was executed on behalf of the Governor General, on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder, it was held that the contract was executed on behalf of the Governor General. This decision does not depart from the principle accepted in Seth Bikhraj Jaipuria 's case(2). On a fair reading of the correspondence this Court construed that the contract was entered into on behalf of the Governor General and expressed to be made in his name. Can it be said that in the present case Exs. D 67 and D 68 disclose that the Superintending Engineer was authorized to enter into a contract of the nature mentioned therein on behalf of the Provincial Government and that the contract was expressed to be made in the name of the Governor? (1) ; (2) ; 1001 Nothing has been placed before us to establish that the Superintending Engineer was legally authorized to enter into such a contract on behalf of the Government; nor do the documents ex jacie show that the agreement was expressed to be made in the name of the Provincial Government. The letters mentioned the name of the Minister of the Public Works Department and also the Government, in the context of the rates that might be fixed thereafter, but the said documents did not purport to emanate from the Governor. At best they were issued under the directions of the Minister. We find it difficult to stretch the point further, as such a construction will make the provisions of section 175(3) of the Government of India Act, 1935, nugatory. We cannot, therefore, hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor. The agreement is void, as it has not complied with the provisions of section 175(3) of the Government of India Act, 1935. In this view, it is not necessary to express our opinion on other interesting questions raised in this case. In the result, the appeal fails and is dismissed, but in the circumstances, without costs. Appeal dismissed.

The appellant held office as the last Governor General of India. He has been drawing Rs. 15,000/ per annum as pension while residing in the city of Madras. The Corporation of Madras demanded profession tax from him under section 111(i)(b) of the City Municipal Act, 1919 for the year 1958 59 on the ground of his residence being within Madras city and his drawing the pension to which he was entitled. The appellant addressed a communication to the Corporation asserting that this demand was illegal as the Corporation was empowered by the relevant constitutional provisions merely to levy a tax "on a profession, trade calling or employment" and that as he as a pensioner did not fall under any of these classes, the said demand was illegal. The Corporation did not accept the contention of the appellant and therefore, the appellant filed a writ petition under article 226 of the Constitution before the High Court. The High Court dismissed the writ petition of the appellant. The High Court granted a certificate under Art.133(1)(c ) of the Constitution to the appellant to file on appeal to the Supreme Court. Hence the appeal. The question before the Supreme Court was whetherthe Corporation was entitled to levy a tax on pensioners in respect of thepensions received by them in Madras City. Held:(1) that the power of the Corporation to levy the tax is dependent on the subject of the tax being within the State Legislative power under the Constitution. The present levy comes within the purview of item 60 in the State list in Schedule VIII of the Constitution, which reads as follows: "Taxes on profession, trades, callings and employments. " Being a "pensioner" cannot be a "profession, trade, business or calling", nor could a tax on a person because he is in receipt of a pension be said to be a tax on 'employments". The tax, therefore, under the last portion of sec. 111(1)(b) reading profession tax on persons "in receipt of any pension or income from investments" is nothing but a tax on income falling within Entry 82 of the Union List. 963 The taxes specified in item 60 are taxes on the carrying on of a profession, trade etc., and would, therefore, apply only to a case of present C. ' employment. The mere fact that a person has previously been in a profession or carried on trade etc. cannot justify a tax under this entry. The tax on the receipt of pension or on the income from investments which is referred to in the last part of sec. 111(1) is in truth and substance a taxon income. At the time the tax is levied the appellant pen sioner is inno employment but is only in receipt of income. (ii) The present levy of tax cannot be saved by article 277 of the Constitution because the tax was a new levy and not a continuance of a tax which had been levied just prior to April 1, 1937. On the facts of this case it was held that if the statutory charge to profession tax imposed on pensioners by the Act of 1919, was lifted by the Act of 1936, and the tax again came into operation only on April 1, 1937, it would follow that there was no "levy of the tax ' immediately before the commencement of Part III of the Government of India Act. so as to bring it within the saving in section 143(2) of that Act. Besides, the two circumstances, viz., that residence within the city for a specified period was made a condition of the liability to the tax, as well as the increase in the rates would both serve to emphasise that the levy was a new one, with a different texture and not a continuation of the tax which was leved just prior to April 1, 1937. (iii)The mere fact that prior to 1st April, 1937 the Corporation had under Act of 1936 the power to bring the tax into force by a resolution does not on a proper construction of section 143(2) bring it within the range of those taxes or duties which "were being lawfully levied" prior to the commencement of Part III of the Government of India Act 1935, which alone are permitted to be continued to be levied notwithstanding that these duties were in the Federal Legislative List. The mere existence of a power to bring a tax into operation, cannot be equated with "a tax which was being lawfully levied" before Part III of the Government of India Act, 1935. The High Court erred in holding that section 292 of the Government of India Act applies to this case. The Town Municipal Committee, Amravati vs Ramchandra Vasudeo Chimote, ; , South India Corporation (P) Ltd. V. The Secretary, Board of Revenue, Trivandrum, A.I.R. , relied on. (iv)Under section 111(1) as amended, the tax could be levied only in accordance with the rules in Schedule IV and as those rules did not make a provision for the levy of a tax on pensioners, it would follow that the tax "was not being lawfully levied" on them. The High Court erred in holding that such defect would be removed by section 18 of the Madras General Clauses Act. (v)S. 142 A(1) of the Government of India Act, 1935 would assist the respondent 's case only if tax imposed were on a profession, trade, calling or employment. In the present case, the tax is being imposed 664 on an income of a pensioner and so this provision has no application. It is not the intention of Parliament that State might levy a tax on income and call it "profession" tax.

ivil Appeal No. 1187 of 1974. From the Judgment and Order dated 19.12.1973 of the Calcutta High Court in Appeal No. 131 of 1971. S.C. Manchanda and Ms. A. Subhashini for the Appellants. B.P. Maheshwari, S.P. Mittal and R.S. Rana for the Respondent, The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by the Revenue is by certificate and is directed against the judgment of a Divi sion Bench of the Calcutta High Court which upheld the decision of a single judge in a writ petition quashing the notices issued to the petitioner under section 147(a) of the Income Tax Act of 1961 in respect of assessment years 1960 61, 1961 62 and 1962 63. Respondent was assessed to income tax for the assessment year 1960 61 under section 23(3) of the Act of 1922 on 4.3.1961 and for the following two assessment years under section 143(3) of the Act of 1961 on 10th and 11th June, 1963, respectively. Notices under section 147(a) read with section 148 of the Act of 1961 were issued to the respondent in respect of these three assessment years whereupon he challenged the validity of those notices by filing an appli cation under Article 226 of the Constitution. Though the notices did not disclose any material to justify their issue, the Income tax Officer in his return to the rule nisi before the High Court stated: " . . The assessment for the year 1963 64 of Smt. Sushila Bala Devi Ladia, wife of the petitioner, was taken up by me. During the course of the said assessment, she contended having received valuable assets from the petitioner between 11th December, 1955 and 28th October, 1960, without adequate consider ation in money or money 's worth. It was con tended on her behalf that she received over 1203 tolas of gold in jewellery on or about 11.12./1955 and 1104 Rs.1,00,000 in cash on or about 28.10.1960. It was further contended on her behalf that the said jewellery was sold between the years 1959 and 1962. The income from the said assets which should have been included in the return of the petitioner was not so included by him. The capital gains arising therefrom was also not included or disclosed by the petitioner in his returns. " On behalf of the assessee reliance was placed on the deci sion of this Court in V.D.M. RM. M. RM. Muthiah Chettiar vs Commissioner of Income tax, Madras, where with reference to failure of the assessee to include the share income of his wife and minor child in a firm, this Court held: "In considering the first question it is necessary to refer to certain provisions of the Income tax Act, 1922. By section 3 the total income of the previous year of every individual, Hindu Undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually was charged to tax for that year in accordance with, and subject to the provi sions of the Act at any rate or rates pre scribed by the Finance Act. Total income was defined in section 2(15) as meaning 'total amount of income, profits gains referred to in sub section (1) of section 4 computed in the manner laid down this Act '. Section 4(1) set out the method of computation of total income; it enacted: '(I) subject to the provisions of this Act, a total income of any previous year of any person includes all income, profits and gains from whatever source derived which: (a) are received or are deemed to be received in the taxable territories in such year by or on behalf of such person, or (b) if such person is resent in the taxable territories during such year (i) accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year, or . . ' 1105 Section 22 by sub section (1) required the income tax officer to give notice by publica tion in the press in the prescribed manner, requiring every person whose total income during the previous year exceed the maximum exempt from tax, to furnish a return in the prescribed form setting forth his total in come. Sub section (2) authorised the Income tax Officer to serve a notice upon a person whose income in the opinion of the income tax officer exceeded the minimum free from tax. Section 23 dealt with the assessment. It conferred power upon the Income tax Officer to assess the total income of the assessee and to determine the sum payable by him on the basis of such return submitted by him. Rule 19 framed under section 59 of the Income tax Act, 1922 required the assessee to make a return in the form prescribed thereunder, and in Form A applicable to an individual or a Hindu Undi vided family or an association of persons there was no clause which required disclosure of income of any person other than the income of the assessee, which was liable to be in cluded in the total income. The Act and rules accordingly imposed no obligation upon the assessee to disclose to the Incometax Officer in his return information relating to income of any other person by law taxable in his hands." "But section 16 sub section (3) provided in computing the total income of any individu al for the purpose of assessment there shall be included the classes of income mentioned in clauses (a) and (b). Sub section 3(a)(ii) insolar as it is material, provided: '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 or minor child of such individual as arises directly or indirectly . . (ii) From the admission of minor to the benefits of partnership in a firm of which such individual is a partner. ' The assessee was bound to disclose under section 22(5) the names and addresses of his partners, if any, engaged in business, profes sion or vocation together with the location and styled of the principal place and branches 1106 thereof and the extent of the shares of all such partners in the profits of the business, profession or vocation and branches thereof, but the assessee was not required in making a return to disclose that any income was re ceived by his wife or minor child admitted to the benefits of partnership of a firm of which he was a partner. " Upon this conclusion this Court therein held: "For failing or omitting to disclose that income proceedings for reassessment cannot, therefore, be commenced under section 34( l)(a)." Relying upon this decision the learned Single Judge quashed the notices. The Revenue appealed to the Division Bench but failed to obtain any relief in view of the said decision of this Court. The Division Bench also took note of the decision in the case of Malegaon Electricity Co. (P) Ltd. vs Commissioner or Income tax, Bombay, Therein after referring to Muthiah Chettiar case (supra). Hedge, J. speaking for the Court, stated: "Hence, by not showing the income of his wife and minor children, the assessee cannot be deemed to have failed to disclose fully and truly all material facts necessary for his assessment within the meaning of section 34(1)(a) of the Act. " It is appropriate to take note of a later decision of this Court in Commissioner of Income tax, Kerala vs Smt. P.K. Kochammu Amma, Peroke, That was of a two Judge Bench. Reliance was sought to be placed on Muthiah Chettiar 's case (supra). Dealing with the question of impo sition of penalty under section 27 1(l)(c) of the 1961 Act, the Division Bench observed: "It is obvious that on this view the order imposing penalty on the assessee would have to be sustained but there is a decision of this Court in V.D.M. RM, M. RM. Muthiah Cheuiar vs Commissioner of Income tax, which is binding upon us and where we find that a different view has been taken by a Bench of three Judges of this Court. It was held in this case that even if there were any printed instructions in the form of the return requiring the assessee to disclose the income received by his wife and 1107 minor child from a firm of which the assessee was a partner. there was, in the absence in the return of any head under which the income of the wife or minor child could be shown, no obligation on the assessee to disclose this item of income, and the assessee could not be deemed to have failed or omitted to disclose fully and truly all material facts necessary for his assessment within the meaning of 34(l)(a) of the Indian Income Tax Act, 1922. With the greatest respect to the learned Judges who decided this case. we do not think, for reasons already discussed, that this decision lays down the correct law on the subject, and had it not been for the fact that since 1st April, 1972, the form of the return prescribed by rule 12 has been amended and since then. there is a separate column provid ing that 'income arising to spouse/minor child or any other person as referred to in Chapter V of the Act ' should be shown separately under that column and consequently there is no longer any scope for arguing that the assessee is not bound to disclose such income in the return to be furnished by him, we would have referred the present case to a larger Bench. But we do not propose to do so since the question has now become academic in view of the amendment in the form of the return car ried out with effect from 1st April, 1972. we would, therefore, follow this decision in Muthian Chettiar 's case which being a decision of three Judges of this Court is binding upon us . . . . . . ." We agree with what has been stated in Kocharammu Amma 's case and for the reasons indicated therein, we do not pro pose to refer this case to a larger bench. Following the law as laid down in the two cases reported in and we dismiss the appeal. There would be no order for costs throughout. A.P.J. Appeal dis missed.

Clause (c) of sub section (3) of section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, enables a landlord occupying only a part of a building, whether resi dential or non residential, to seek eviction of a tenant occupying the whole or any portion of the remaining part of the building, notwithstanding anything contained in cl. (a), for bona fide requirement of additional accommodation. The first proviso thereto enjoins the Rent Controller to reject the application of the landlord under that clause even where the need is found to be genuine, if the hardship caused to the tenant would outweigh the advantage to the landlord. Sub clause (i) of cl. (a) of section 10(3) enables eviction from residential building if the landlord or any member of his family is not occupying a residential building of his own in the city, while sub cl. (iii) enable eviction from non residential building if the landlord or any member of his family is not occupying for purposes of a business a non residential building in the city. A 'building ' is defined in section 2(2) to mean any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes. The respondent legatees of the landlady, using the first floor of the building for residence sought eviction of the appellant tenant from the ground floor used by him as a godown for storing his business wares on the ground that they bona fide required additional accommodation 1174 for their residential needs. The Rein Controller upheld their claim. The Appellate Authority reversed the findings of the Rent Controller but in revision the High Court re stored the order of eviction passed by the Rent Controller. In this Appeal by Special leave it was contended that since the ground floor constituted a building by itself within the meaning of section 2(2) of the Act. the respondents could seek eviction of the appellant only under section 10(3)(a)(i) of the Act and not under section 10(3)(c), that even if the respondents were entitled to invoke section 10(3)(c) they could seek eviction only if they required the ground floor for non residential purposes and not for residential pur poses, that the factors of relative hardship between the parties weighed more in favour of the appellant than the respondents, and that the High Court was in error in inter fering with the findings of fact rendered by the Appellate Authority while exercising its revisional powers under section 25 of the Act. Dismissing the Appeal, the Court, HELD: 1.1 The ground floor of the building in occupation of the appellant did not constitute a distinct and separate unit. The respondent landlords could. therefore seek evic tion under section 10(3)(c) of the Act. 1.2 A 'building ' has been defined in section 2(2) of the Act as not only a building or hut but also part of a building or hut, let separately for residential or non residential purposes, which could only means that a part of a building that has been let out or that has to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not necessary to treat the entire building as one whole and inseparable unit. A limitation has thereby been placed by the Legislature itself, by providing that the application of the definition is subject to the contextual position. It follows therefrom that where the context warrants. the entire building being construed as one integral unit. It would be inappropriate to view the build ing as consisting of several disintegrated units and not as one integrated structure. 1.3 In enacting section 10(3)(c) the Legislature has intended that the entire building. irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not as different entities. 1175 1.4 There is vast difference between the words "residen tial building" and "non residential building" used in section 10(3)(a)(i) and (iii) on the one hand and section 10(3)(c) on the other. While section 10(3)(a)(i) and (iii) refer to a building only as residential or non residential, section 10(3)(c) refers to a landlord occupying a part of a building, whether resi dential or non residential. Furthermore, section 10(3)(c) states that a landlord may apply to the Controller for an order of eviction being passed against the tenant occupying the whole or any portion of the remaining part of the building. 1.5 TO import the expansive definition of the word "building" in section 2(2) into section 10(3)(c) would result in rendering meaningless the words "part of a building" occu pied by the landlord and a tenant "occupying the whole or any portion of the remaining part of the building", leaving no scope for such a landlord to seek eviction. 1.6 The provisions of an Act should be interpreted in such a manner as pot to render any of its provisions otiose unless there are compelling reasons for the Court to resort to the extreme contingency. If a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since section 10(3)(a) does not provide for eviction of tenants on the ground of additional accommo dation for the landlord either for residential or non resi dential purposes. Saraswathi Sriraman vs P.C.R. Chetty 's Charities, ; Mohammed Jaffar vs Palaniappa Chettiar, [1964] 1 M .L.J. 112 and Cheilaromal vs Accommodation Controller, , approved. 2.1 It cannot be said that a landlord can seek addition al accommodation for residence only if the building is a residential one and likewise he can seek additional accommo dation for business purposes only if the building is a non residential one. 2.2 Section 10(3)(c) provides for both situations, viz. a landlord occupying a part of a building which is residen tial or non residential. The words used in it arc "any tenant" and not "a tenant" who can be called upon to vacate the portion in his occupation. Unless the legislature had intended that both classes of tenant i.e. residential or nonresidential, can be asked to vacate by the Rent Control ler for providing landlord the additional accommodation it would not have used the 1176 words "any" instead of using the letter "a" to denote a tenant. Further, the words "as the case may be" in cl. (0) only mean "whichever the case may be", i.e. either residen tial or non residential. They do not restrict the landlord 's right to secure additional accommodation for residential purposes only in respect of a residential building and in the case of additional accommodation for business purposes only to a non residential building. 2.3 Section 10(3)(c) stands on a different footing from section 10(3)(a) (i) and section 10(3)(a)(iii). The non obstante clause has been added to cl. (c) to give it an overriding effect over both the restrictions placed by cls. (a)(i) and (a)(iii), viz., landlord seeking eviction of a tenant should not be occupying a building of his own and secondly the nature of user of the leased property by the tenant must correspond to the nature of the requirement of the landlord. Thus, the requirement of additional accommodation under cl. (c) is not a case of a landlord not occupying a residential or non residential building of his own but a case of a landlord occupying a part of a residential or non residen tial building of his own and putting it to such user as deemed fit by him. If it was the intention of the legisla ture that only a tenant occupying a residential portion of a building can be asked to vacate for providing additional residential accommodation to the landlord and corresponding ly a tenant occupying a portion of a building for non resi dential purposes alone being asked to vacate for the non residential requirements of the landlord. it would have provided specific stipulation to that effect in cl. In the instant case. the requirement of additional accommodation pertains to the need of the landlord and the manner of user of the portion of the building already in his occupation and consequently the bona fides of his require ment will outweigh all the restrictions imposed by section 10(3)(a). K. Parasuramaiah vs Lakshmamma, (AIR 1965: 220). approved. Thirupathi vs Kanta Rao. [1981] Vol. 1 ILR Madras 128 overruled. Once a landlord is able to satisfy the Controller that he is bona fide in need of additional accommodation for residential or nonresidential purposes and that the advan tage derived by him by an order of eviction will outweigh the hardship caused to the tenant. then he is entitled to an order of eviction irrespective of any other consideration. 1177 4. The Rent Controller has gone into the question of comparative hardship and rendered a finding in favour or the respondents. The Appellate Authority 's findings have been vitiated because of its non advertance to the evidence and application of wrong tests in assessing the comparative hardship between the parties. The High Court, was. there fore, entitled to allow the revision.

Appeal No. 490 ,of 1962. Appeal by special leave from the judgment and order dated October 20, 1959 of the Punjab High Court in Regular Second Appeal No. 1591 of 1959. Kartar Singh Chawla and Harbans Singh, for the appellants. I. M. Lal and M. R. K. Pillai, for the respondents. March 24, 1964. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is a defendants ' appeal by special leave against the order of the High Court of Punjab dated October 20, 1959 dismissing summarily second appeal filed by the appellants. The suit was filed by the respondents for possession of a plot, a house and a Kaur and half share in certain lands as preferential heirs of one Pohla after the death 431 of Pohla 's widow Punjab Kaur on February 7, 1952. The plaintiffs are Mst. Nikko, sister of Pohla and Jarnail Singh, son of Mst. Har Kaur who was another sister of Pohla. The first appellant Mara is a collateral of 4th degree of Pohla and the other two appellants are Mara 's sons. The following genealogy gives the relationship of the parties: Sualtani : : : : : : Sohela Baghaila : : : : Mara defendant No.1 : : Pir Bux Jaimal Sunder : : died sonless : : and wifeless : : : : : Mohinder Singh Major : : : Singh Pohla Mst. Har Kaur Mst. Nikku defendant defendant (son) (daughter) alias Punjab No.2 No.3 : : Kaur (daughter) : : wife of Santa Shrimati Jarnail son Singh Jat, Punjab of Arjun resident of widow Plaintiff Ayali Kalan, No.2 No.2 Plaintiff No.2 The parties are Jhalli Jats of village Chomon, Tehsil and District Ludhiana. The plaintiffs claimed that the property was non ancestral and according to the Riwaj applicable to the family, sisters excluded collaterals in respect of both ancestral and non ancestral properties. It appears that after the death of Panjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole property. He made gifts to his sons of some of the properties and that is why they were joined in the suit. Mara and his elder son Mohinder Singh filed a joint written statement in which they raised many pleas the details whereof need not be given here. They claimed that according to the custom applicable to the family, sister and sister 's sons were excluded from inheritance in respect of properties whether ancestral or nonancestral. They however claimed that the property was ancestral and denied the genealogy. The Subordinate Judge, Second Class, Ludhiana framed six issues of which issues No. 2, 3 and 4 alone are important in this appeal. Those issues are: "2. Whether the property is ancestral qua Pohla and Mara?" "3. Whether the question of the nature of the property is material for the decision of tons case?" 432 "4. Whether the plaintiffs are preferential heirs to the estate of Mst. Panjabo widow of Pohla?" The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it. We have not been referred to any portion of this evidence in this appeal. The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral. On the third issue he referred to question No. 52 from the Riwaj i am relating to the settlements of 1882 and 1909 1910 (Exts. and D 2) in which it is stated that among the Jhalli Jats of Tehsil Ludhiana sisters or sisters ' sons never succeed. He, however, held on the authority of Ahmad vs Mohammad and others(1) that since question refers only to ancestral property and that the nature of the property was thus material. On the fourth issue he held on the strength of the answer to question No. 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable to non ancestral property the personal law would apply unless special custom was proved. He therefore placed the burden on ,he defendants relying upon Harnam Singh vs Mst. Gurdev Kaur, (2) MSt. Sukhwant Kaur vs section Balwant Singh and others(3) and Mst. Jeo vs Ujagar Singh.(4) As he had already rejected the oral evidence and there was no other proof that the property was ancestral, he decreed the suit. On appeal the District Judge, Ludhiana remitted three issues to the trial Judge and they were as follows: "Issue No. 4: Whether there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well as non ancestral left by the Pohla in preference to Mara defendant?" "Issue No. 4A: Whether under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well as non ancestral property of Pohla deceased?" (1) A.I.R. 1936 Lah. (2) (3) A.I.R. 1951 Simla 242. (4) 433 "Issue No. 4B: If the custom set out by the parties is not proved, whether the plaintiffs are preferential heirs to Mara defendant under personal law applicable to the parties?" On these issues the report of the Subordinate Judge, First Class, Ludhiana was against the contention of the defendants. The learned District Judge held, in agreement with the Subordinate Judge, that the lands in suit were not ancestral and he held also that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sisters ' sons in respect of non ancestral property. He referred to Exts. 9, 10, 12 and 13 which were judgments in other cases as evidencing the contrary. He accordingly dismissed the appeal. The Second appeal filed thereafter was dismissed summarily by the High Court. The first question to decide is whether these lands are ancestral or non ancestral. The concurrent finding of the two courts below is that none of the properties in dispute is ancestral. The High Court prima facie saw no reason to differ from any of the conclusions of the courts below. It is contended on the strength of a Kafiat of Thulla Malla prepared at the settlement of 1882 that this land came into possession of one Sekhu who was admittedly a common ancestor in the family and the property, which is now in dispute, must be regarded as ancestral. It is contended that the finding is vitiated because the two courts below did not read this Kafiat alongwith the extracts from the Records of rights of the years 1882 and 1909 1910 in which the names of Jaimal and Sunder, sons of Baghela, and of Pir Bux son of Sohila are shown as persons in enjoyment of half shares in these lands. It is argued that the lands in suit are thus proved to be ancestral as they belonged to Sekhu the common ancestor and the Riwaj i am as disclosed in question No. 52 applies to the case. It appears, however, from the Kafiat as well as the Record of Rights that these lands were once abandoned and when people came back Sekhu got possession of some lands but in addition to these Sekhu 's descendants had acquired the share of one Dalpat in the Thulla and subsequently the entire estate of another holder, namely, Maidas was purchased by Jaimal, Sunder and Sohila. This shows that the lands in dispute are not entirely ancestral but are made up of lands which may be described as ancestral and non ancestral. Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and nonancestral, portions cannot be separated they must be regarded 434 as non ancestral, unless it is shown which are ancestral and which are not. This was laid down by the Privy Council in Avtar Singh vs Thakar Singh(1). It was held by Mr. Justice Kapur (as he then was) in Indar Singh vs Gulzara Singh and others(2) basing himself upon Saif ul Rahman vs Mohammand Ali Khan(3) and Jagtar Singh vs Raghbir Singh(4) that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent. Once these conclusions are reached, it is quite obvious that the decision of the District Judge not to apply the answer to question No. 52 to non ancestral land was right. It may be mentioned that the answers to questions refer to ancestral property only and this is now firmly established. In fact, it was not denied at the hearing. It is, however, contended that there are decisions to show that the right of the collaterals was recognised in respect of even non ancestral land to the exclusion of sisters and their sons. No ruling from the Law Reports has been brought to our notice. Some cases from the Ambala and Amritsar Dis tricts are cited but those obviously cannot be any authority, because, as is well known, custom in the Punjab changes from district to district, tehsil to tehsil and pargana to pargana. It has been ruled in this Court that paragraph 24 of Rattingan 's Digest which excludes sisters from inheritance from non ancestral property is too widely stated. (See Ujagar Singh vs Mst. Jeo(5) and (Waryam Singh and Others vs Smt. Sukhi and another) (Civil Appeal No. 452 of 1961 decided on April 23, 1963). The learned District Judge cited some instances in which the sisters and sisters ' sons were allowed to succeed in preference to collaterals. One of the documents filed by the defendants in the suit (Ext. D 6) also supports the contention of the respondents. In this view of the matter it cannot be said that the application of the personal law to the family by the courts below was erroneous. It is contended lastly that the rulings only show that collaterals of 5th degree are excluded and there is no case showing that a collateral of 4th degree was excluded. If personal law applies, as it does, a collateral of the 4th degree is also excluded. In our judgment this appeal must fail and is accordingly dismissed with costs. Appeal dismissed. (1) 35 I.A. 206. (2)A.I.R. (3) I.L.R (4) I.L.R. (5) (1959 Supp. 2 S.C.R. 781.

The petitioner was selected as a Lower Division Clerk under the Madras Ministerial Service Rules in 1949, and was posted in South Kanara District. He was promoted as upper division clerk on April 2, 1956 and according to him, he should have teen promoted much earlier. According to the State, the Petitioner was considered for inclusion in the eligibility list from 1955 onwards, but was not selected as he was not considered fit. The State admitted that he was promoted as Upper Division clerk with effect from April 2, 1956, but alleged that this was on a temporary basis. He was later reverted and then again posted as temporary Upper Division clerk. In August, 1957, the petitioner was considered and included in the eligibility list at serial No. 14. This list was regularised on December 12, 1957, in accordance with Madras State and Subordinate Service Rules, with effect from October 19, 1957. According to the petitioner this resulted in the loss of benefit of service and increments. In the meantime, reorganisati;on of States took place under the and South Kanara District went to the new Mysore and the petitioner was allotted to it. On May 11, 1957, the Government of India addressed a memorandum to all State Governments and in respect of departmental promotion it said that "the question whether any protection should be given in respect of rules and conditions applicable to Government Servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion was also considered. The Government of India agree with the view expressed on behalf of the State res presentatives that it would not be appropriate to provide for any protection in the matter of these conditions. It was urged on behalf of the petitioner (i) that the Mysore General Services Recruitment Rules, 1959, were not made with the previous approval of the Central Government under section 115(7) of the States Re organisation Act, and, therefore, do not govern the petitioner in so far as the conditions of service have teen varied to his disadvantage and (ii) that the Madras Government had, prior to November 1, 1956, by varoius orders, reduced the petitioner in rank in violation of article 311(2) of the Constitution and article 16. 550 Held: (i) In the setting in which the proviso to section 115(7) of the Act is placed, the expression "previous approval" would in clude a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to section 115(7) of the Act limits that power, but that limitation is removable by the Central Government by giving its previous approval. The broad purpose underlying the Proviso to section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In the memorandum, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. This amounted to previous approval within the proviso to section 115(7). By this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore, it must be held that the rules were validly made. In re Bosworth and Corporation of Gravesend, [1905] 2 K.B. 426 and C. K. Appamna vs State of Mysore, W.P. No. 88 of 1962, held inapplicable. (ii) The petitioner failed to show, how article 16 was in fringed before he was allotted to the new Mysore State. The State in its reply had asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion. It was for the competent authorities to judge the merits of the petitioner. Therefore, it must be held that infringement of article 16 was not established.

Civil Appeal No. 793 of 1988 etc. From the Judgment and order dated 25.6.1987 of the Andhra Pradesh High Court in Writ Petition No. 8019 of 1987 F.S. Nariman, G.L. Sanghi, A.K. Sen, Dr. L.M. Singhvi, Anil B. Diwan, K. Srinivasamurthy, Kailash Vasdev, K.K. Jain, K.S. Murthy, U.K. Khaitan, Ajay K. Jain, Vipin Sanghi, Parveen Kumar, A.M. Singhvi, R.S. Yadav, H.M. Singh, N. Waziri, Vinoo Bhagat, Shree 162 Narain and Sandeep Narain for the Appellants. Shanti Bhushan, V.B. Reddy and K. Rajendra Chaudhary for the Respondents. The Judgment of the Court was delivered by OZA, J. Leave granted. These special leave petitions have been filed against the judgment of the Division Bench of the Andhra Pradesh High Court delivered on 25.6.87 wherein the learned Judges set aside the orders passed by learned Single Judge, of the High Court in Letters Patent Appeal. The petitioners had filed writ petitions before the High Court which were heard by a learned Single Judge and who by his orders quashed the notification issued by the respondent Board dated 21.7.81 unilaterally altering the conditions of supply. The learned Single Judge held that the Board had no authority unilaterally to alter the conditions of supply of electricity but on appeal the learned Judges of the Division Bench set aside the judgment passed by the Single Judge and held that the Board respondent had the statutory authority under Section 49 of the Electricity Supply Act, 1948 ( 'Act ' for short) to lay down the conditions of supply and if any doubt exists Section 18 clause (c) of the Act confers powers on the Board. It is against this judgment of the Division Bench in all these petitions which were disposed of by a common judgment that these special leave petitions have been filed and therefore these matters are before us. On 21.7.81 the respondent A.P. State Electricity Board issued a notification exercising powers under Sec. 49 of the Act. By this notification the Board unilaterally altered the conditions of supply for the high tension consumers of electricity. Admittedly these consumers are the industries which consume high tension power. This notification stated that the industries will be supplied the power for the contracted demands between 1501 KVA to 5000 KVA, at 33 KV whereas industries whose contracted demand is above 5000 KVA shall avail supply at 132 KV or 220 KV. To comply with this requirement high tension consumers i.e. the present appellants before this Court will either have to replace the existing transformers and high tension control gears or to instal transformers with control gears to step down supply from the now proposed voltage to the existing voltage and these modifications have to be made by the industries concerned within a period of 6 months from the date of this notification. It was further 163 provided that after the lapse of six months if the consumers i.e. appellants have not made arrangements for receiving the supply at the proposed voltage and continue to receive supply at the voltage at which they were receiving on the date of the notification they will have to pay additional surcharge ranging between 2.5% to 13% on their power bills. It is alleged that after this notification the appellants and other similarly situated consumers made a representation to the Board and they were told that as the transmission and transformation losses in respect of supply to these high tension consumers is very much it has been decided by the Board to minimise these transmission losses and it is for that purpose that it has been decided to supply at high voltage as transmission of high voltage current results in lesser losses of transmission and by this process energy which is lost in the transmission will be saved and it was for this purpose that this policy has been adopted by the Board. According to the appellants consumers their grievance was that for the purpose of receiving power at a high voltage they will have to instal their own transformers which would involve heavy capital investments and for supply of power at high voltage even the Board will have to lay new lines of supply and all this would not be economical as compared to the contemplated loss of power on account of transmission but as Board did not accept the representation, the petitioners filed their petitions before the High Court and the learned Single Judge of the Andhra Pradesh High Court by his judgment dated 24.9.82 allowed the writ petitions against the judgment of the learned Single Judge, in appeal before the Division Bench the judgment of the learned Single Judge was set aside and the Division Bench took the view that Sec. 49 of the Act coupled with Sec. 18(c) of the same Act empowered the electricity board to unilaterally alter the terms and conditions of supply and it is against this judgment of the Division Bench that these appeals are before us. Before this notification the electricity was being supplied to high tension consumers at 11000 Voltes or 33000 Voltes. By this notification they were expected to receive supply at higher voltage specified in the notification. The main contention advanced before the High Court in the writ petitions was that it was not open to the Board to direct the existing consumers to take the supply at a higher voltage then the voltage at which they were receiving supplies or to impose an additional charge on the supply. It was contended before us that in view of Sec. 26 read with 164 clause 6 of the schedule to the it is not open to the Board to unilaterally impose supply at a higher voltage. According to the learned counsel as a particular customer has requisitioned supply of power at a particular voltage and Board had agreed to do, it was not permissible now to alter the conditions. On the contrary on behalf of the Board it was contended that Sec. 26 of Electricity Supply Act no doubt puts an obligation on the Board to supply power as were the obligations of the licensee under the 1910 Act and also the provisions of Clause 6 of the Schedule will apply to the Board but it was contended that it has not been provided anywhere in Clause 6 that it is the choice of the consumer to require supply at a particular voltage. It was also contended that clause 6 sub clause 5 provides the requisition to be in the form and the prescribed form does not indicate that it is open to the consumer to require the supply at any particular voltage. It was also contended that in fact Sec. 26 itself talks of subject to the provisions of this Act and Sec. 49 of the Act confers power on the Board to lay down the conditions of supply. It was also contended on behalf of the respondent Board that the Board chose to switch over to supply of high voltage in order to minimise the transmission losses as according to them if the electricity is transmitted at 33000 volts instead of 11000 volts the transmission loss will be reduced to 1/19th and if the supply is further increased to 132 KV the transmission loss will be further reduced to 1/44th with the result that the transmission losses could be reduced to 99.3%. It was also contended on behalf of the petitioners that in case of some industries the question of transmission losses is not substantial as some of them are situated just near the supply station and even if there is some loss it is negligible as compared to the heavy cost of installation which will have to be put up. An attempt was also made to suggest that when the distance is very short the transmission loss will be very low but one fact to be kept in consideration which was lost sight of at some stage that transmission loss is not only related to the distance that the power travels but also the quantum of power that travels. Admittedly all these petitioners are consumers who are consuming huge quantities of power which is clearly indicated from the bills, charts of which were filed by the petitioners themselves before this Court indicating that their yearly power bills which run into crores and it is in this context that the question of transmission loss will have to be considered. The main controversy which was before the High Court was as to whether the Board has power unilaterally to alter the conditions of supply. On behalf of the petitioners it was contended that Sec. 49 only confers powers on the Board to revise the tariffs periodically and it was 165 contended that a little before the present disputed notification was issued the tariffs were revised and that revision of tariffs was done keeping in view all the relevant consideration including all losses in transmission and transformation and therefore immediately after the revision of the tariffs there was no occasion for exercise of power under Sec. 49 by issuing the impugned notification. It was contended that Sec. 26 read with clause 6 of the Schedule is an obligation on the Board to supply the power as requested by the consumer. 26 reads: "26. Board to have powers and obligations of licensee under Act 9 of 1910. Subject to the provisions of this Act, the Board shall, in respect of the whole State, have all the powers and obligations of a licensee under the (9 of 1910) and this Act shall be deemed to be the licence of the Board for the purposes of that Act: Provided that nothing in Sections 3 to 11, sub sections (2) and (3) of Section 21 and Section 22, sub section (2) of Section 22 A and Sections 23 and 27 of that Act or in Clause I to V, Clause VII and Clauses IX to XII of the Schedule to that Act relating to the duties and obligations of a licensee shall apply to the Board: (Provided further that the provisions of Clause VI of the Schedule to that Act shall apply to the Board in respect of that area only where distribution mains have been laid by the Board and the supply of energy through any of them has commenced. )" It is clear from a perusal of this provision that the obligation under Sec. 26 is subject to the provisions of this Act. Clause 6 pertaining to requisition for supply to owner and occupiers of the electricity provides for conditions under which a licensee will be bound to supply and sub clause 5 of clause 6 of the Schedule under 1910 Act requires the requisition to be in a form prescribed and the form prescribed does not indicate that the consumer is free to ask for the supply at a particular voltage only. On behalf of the petitioners it was vehemently contended that Sec. 49 confers powers on the Board only to revise the tariffs and it has not conferred any power on the Board to alter unilaterally the supply 166 at a particular voltage. The main contention on behalf of the petitioner was that Sec. 49 only empowered the Board to fix uniform tariffs and in support of the contention reliance was placed on the case of Maharashtra State Electricity Board vs Kalyan Borough Municipality & Anr., ; and Bisra Stone Lime Company Ltd. & Anr. vs Orissa State Electricity Board & Anr., ; In these cases no doubt Sec. 49 has been considered but the only question in these cases was pertaining to tariff and there was no occasion to consider the scope of Sec. 49 Clause I which empowers the Board to lay down conditions of supply. 49 reads: "49. Provision for the sale or electricity by the Board to persons other than licensees. (1) Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. (2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely: (a) the nature of the supply and the purposes for which it is required; (b) the co ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee; (c) the simplification and standardisation of methods and rates of charges for such supplies; (d) the extension and cheapening of supplies of electricity to sparsely developed areas. (3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having 167 regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. (4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person. " Sub clause 1 of this Section clearly provides that the Board could lay down conditions of supply and for purposes of such supply it may also frame uniform tariffs. Sub section 1 therefore clearly authorises the Board to lay down the conditions of supply and have to fix uniform tariffs is provided for in sub clause 2. If there is any doubt sub clause 4 makes it clear that in exercise of powers under this Section Board could fix the conditions of supply and also fix the tariffs and it was therefore contended on behalf of the respondent Board that although the Division Bench referred to Sec. 18(c) still the Board has enough power under Sec. 49 itself to lay down the conditions of supply. This question about the conditions of supply specifically came up before this Court in the case of Jagadamba Paper Industries (Pvt.) Ltd. Etc. vs Haryana State Electricity Board & Ors. Etc., ; and it was observed at page 172: "We are of the view that the Board has been conferred statutory power under section 49(1) of the Act to determine the conditions on the basis of which supply is to be made. This Court in Bisra Stone Lime Company Ltd. & Anr. vs Orissa State Electricity Board & Anr., ; took the view that enhancement of rates by way of surcharge was well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act. What applied to the tariff would equally apply to the security, that being a condition in the contract of supply. Each of the petitioning consumers had agreed to furnish security in cash for payment of energy bills at the time of entering into their respective supply agreements. There was no challenge in these writ petitions that the demand of security at the time of entering into supply agreements has to be struck down as being without jurisdiction. Section 49(1) of the Act clearly indicates that the Board may supply electricity to any person upon such terms and conditions as the Board thinks fit. In exercise of this power the Board had initially introduced the condition regarding security and 168 each of the petitioners had accepted the term. " It is not disputed that although under the original agreement the electricity Board was bound to supply power at a particular voltage but after the lapse of that agreement by lapse of time subsequent agreement provided the clause where the right has been reserved by the Board to alter the conditions of supply and that is why the only contention advanced by the petitioners was that under Sec. 49 the respondent Board had no authority unilaterally to alter conditions of supply and as discussed above this contention cannot be accepted. The Division Bench relied on provisions contained in Sec. 18 sub clause (c) which reads: "to exercise such control in relation to the generation, distribution and utilisation of electricity within the State as is provided for by or under this Act. " It is no doubt true that under these provisions the Board exercises control in relation to generation, distribution and utilisation of electricity and the learned Judges of the Division Bench felt that although specific power is not there under Sec. 18(c) but it is wide enough to authorise the Board to alter the conditions of supply. It is no doubt true that Sec. 18(c) confers power of control on the Board but as indicated above, in our opinion the specific power under Sec. 49 clause I is clear enough wherein Board has been authorised to lay down the conditions of supply. On the merits of the contention various controversies were raised in respect of the calculations and mathematics of calculating the transmission loss. An attempt was also made on behalf of petitioners to suggest that the way of calculations suggested by the respondent Board does not appear to be correct but it is not disputed and it can not be disputed that where power travels through the transmission lines there is always some loss of power. It is also a fact which could not be disputed that loss of power will be related to the quantum of power which travels through the transmission line and the distance through which power has to travel. It is also a fact which could not be disputed that if power is transmitted at high voltage the loss during transmission is less as compared to the loss when the power is transmitted at a low voltage and in view of these accepted scientific facts it is not necessary for us to go into the calculations and mathematical part of it to find out 169 as to whether the calculations submitted by the Board is correct or those suggested on behalf of the petitioners are correct. The fact remains that lower the voltage higher the transmission loss, higher the voltage lower the transmission loss and it is also not in dispute that these appellants are high tension consumers consuming substantial power and therefore when power travels through transmission lines even for short distances it is not smaller quantities of power but heavy quantities of power is transmitted and in this view of the matter it could not be said that the policy decision taken by the Board to supply these high tension consumers power at high voltage so that transmission loss and transformation loss should be minimised could not be said to be any wrong decision or a decision not supported by scientific reasoning. It was also contended that 6 months ' time granted was too short in view of the fact that these consumers were expected to instal transformers and equipments which ordinarily are not easily available in this country and which involved high capital investment. It was also suggested that even the respondent Board has not been able to lay lines for supply at high voltage as during the course of this litigation most of the appellants have accepted to receive the supply at the high voltage and therefore it was contended that the enhanced rate for supply at low voltage which was brought into force immediately after six months of the issue of this notification is not only justified as it was termed by learned counsel for the petitioners to be penal but it was contended that it is not reasonable as in spite of the fact that the petitioners accepted to receive supply at high voltage and some of them have even installed the transformers and other equipments but still Board was not in a position to lay supply lines for the high voltage supply of power and on this basis in substance it was vigorously contended that this enhanced rate should not be made chargeable from the date immediately after the expiry of six months after the issue of this notification. In one of the case i.e. A.P. Paper Mills which has been specifically alleged that inspite of the fact that the petitioner has installed a transformer but the respondent Board could not lay down the lines as there was some injunction issued against the Board when the work for laying the lines started still although the Board is not in a position to supply the power at high voltage still the appellant is compelled to pay the higher rate as he is not receiving power at the high voltage indicated in the notification. 170 So far these aspects of the matter are concerned admittedly they were not before the High Court. Originally what was challenged in the High Court was the power of the Board to unilaterally alter the conditions of supply. This question about from what date the higher rates should be charged and as to whether grant of six months time to complete the preparation for receiving the supply at a higher voltage is reasonable or not were not before the High Court (Single Judge) nor before the Division Bench and in fact, tacts in respect of each petitioner on the basis of which these questions could be considered are also not before us although an attempt has been made by some of the appellants by additional affidavits and documents to place it before us. But it is not sufficient nor it is proper to decide these questions. After all the respondent Board is an authority under a Statute and if the appellants are able to satisfy the authority that the time of six months in the context of the circumstances when this notification was issued was not reasonable it is open to the Board to consider from what date to enforce the enhanced rates for supply at lower voltage taking into consideration all the cases and also keeping in view the circumstances in connection with installation of transformers and laying the lines which have come during the course of these hearings. It is also open to the Board that in the special facts of any particular case to provide a separate date for enforcement of the higher rate. But all these questions can not be decided in the scope of the present appeals. It was also contended by the appellants that by altering this condition of supply the appellants will have to undergo huge capital investment burden. On the other hand on behalf of the Board it was contended that if the bills of supply of power of these appellants are looked at it will indicate that what they are supposed to spend on the installation in stepping down power is not so heavy and it was contended that ultimately if this is not done by the Board the loss incurred on account of transmission has to be borne not only by these consumers who are substantially responsible for the transmission loss but by those also who are not at all responsible for heavy transmission losses. An attempt was made to suggest that when power is supplied to the rural consumers mainly agriculturists and small consumers the power has to be supplied at long distance and that is also to be supplied at low voltage and therefore it was contended that in fact the long distance supply to smaller consumers is really responsible for the loss during transmission for which these high tension consumers i.e. the present appellants are being penalised as they are being called upon to pay at a higher rate but this argument suffers from a fallacy. As indi 171 cated above transmission loss no doubt is on account of low voltage when it travels long distance as it is related to distance but the quantum of loss also is proportional to the quantum of power that travels through the transmission lines and it could not be disputed that the power that has to travel to meet the requirements of small agricultural consumers is negligible as compared to the quantum of power that is supplied to these high tension consumers, the present appellants and therefore there is no substance in the contention that the loss incurred in supply to the smaller consumers is being recovered from the present appellants, the high tension consumers. It was also contended that under Sec. 18(A)(1) read alongwith Sec. 18(A)(2) of the Act, it is the duty of the Board to establish and maintain sub stations and main transmission lines and it is not open to the Board to transfer this responsibility to the consumers by requiring them to make their own arrangements to step down electricity after taking it at a high voltage. Section 2 sub clause 7 of the Act defines the main transmission lines but ll this in sub clause 7 of Section 2 refers to is about transmission of electricity from a generating station to another generating station or to a sub station. Apparently it refers to all the lines and equipments required to be installed from the generating station to the distributing sub station. Apparently both being that of the Board itself it has to maintain it and on this basis it could not be contended that if the consumer has to receive power at a high voltage and if he wants to utilise it at a low voltage it is not his responsibility to instal equipments for stepping down the power from high voltage to low voltage. It was also contended that Sections 28 and 29 read with Sections 18 and 18A of the Act indicate that where any scheme as contemplated under Sections 28 and 29 is to be formulated the procedure prescribed therein had to be followed and it was suggested that as the policy of the Board to change over of supply of power at a high voltage involves heavy expenditure it will fall within the scope of Sections 28 and 29 and therefore it could not be done without following the procedure indicated in these provisions. A perusal of these sections 28 and 29 of the Act indicates that it is altogether a different function rather than what is being done by the Board in exercise of the powers under Section 49 clause 1 and therefore this contention that the procedure indicated in Sections 28 and 29 has to be followed, is of no substance. In the light of discussions above therefore, in our opinion, there 172 is no substance in these appeals. But as indicated earlier as regards the imposition of the higher tariff on failure to receive the supply at the voltage indicated in the notification from the date specified therein or not will be open to the Board for consideration and the parties may approach the Board and it will be open to the Board in the facts and circumstances of each case not to levy the surcharge indicated in the notification during a particular period and in so doing the Board will take into consideration the facts and circumstances of each particular case. The appeals are therefore dismissed. In the circumstances of the case, parties are directed to bear their own costs. H.S.K. Appeals dismissed.

% On 21st July, 1981, the Respondent Andhra Pradesh State Electricity Board issued a notification exercising power under section 49 of the Electricity Supply Act, 1948. By this notification the Board unilaterally altered the conditions of supply of electricity to high tension power consumers. This notification stated that the industries will be supplied the power for the contracted demands between 1501 KVA to 5000 KVA, at 33 KV whereas industries whose contracted demand is above 5000 KVA shall avail supply at 132 KV or 220 KV. To comply with this requirement high tension consumers will either have to replace the existing transformers and high tension control gears or to instal transformers with control gears to step down supply from the now proposed voltage to the existing voltage and these modifications have to be made by the industries concerned within a period of 6 months from the date of this notification. It was further provided that after the lapse of six months if the consumers have not made arrangements for receiving the supply at the proposed voltage and continue to receive supply at the voltage at which they were receiving on the date of the notification they will have to pay additional surcharge ranging between 2.5% to 13% on their power bills. The appellants which were consumers of high tension power challenged the validity of this notification by way of filling writ petitions before the High Court. A Single Judge allowed the writ petitions. In appeal a Division Bench took the view that section 49 of the Act coupled with section 18(c) of the same Act empower the electricity board to unilaterally alter the terms and conditions of supply, and set aside the judgement of the Single Judge. Hence these appeals by Special 160 Leave against the Judgment of the Division Bench. The main controversy was whether the board had power unilaterally to alter the conditions of supply of electricity. Dismissing the appeals this Court, ^ HELD: The contention of the appellants that under section 49 the respondent board had no authority unilaterally to alter the conditions of supply cannot be accepted. Sub clause 1 of section 49 of the Electricity Supply Act, 1948 clearly provides that the board could lay down conditions of supply and for purposes of such supply it may also frame uniform tariffs. Sub clause t therefore clearly authorises the Board to lay down the conditions of supply and have to fix uniform tariffs is provided for in sub clause 2. If there is any doubt sub clause 4 makes it clear that in exercise of powers under this section Board could fix the conditions of supply and also fix the tariffs. [l68B C; 167B C] The Division Bench relied on provisions contained in Section 18(c). It is no doubt true that under these provisions the Board exercises control in relation to generation, distribution and utilisation of electricity and the learned Judges of the Division Bench felt that although specified power is not there under Section 18(c) but it is wide enough to authorise the board to alter the conditions of supply. It is no doubt true that section 18(c) confers power of control on the board but in our opinion the specific power under section 49 Clause t is clear enough wherein board has been authorised to lay down conditions of supply. [168C E] The contention that the policy of the Board to change over of supply of power at a high voltage which involves heavy expenditure will fall within the scope of sections 28 and 29 and therefore it could not be done without following the procedure indicated in these provisions has no substance. A perusal of sections 28 and 29 of the Act indicates that it is altogether a different function rather than what is being done by the Board in exercise of the powers under Section 49 Clause 1.[171G] As regards the imposition of the higher tariff on failure to receive the supply at the voltage indicated in the notification from the date specified therein or not will be open to the Board for consideration and the parties may approach the Board and it will be open to the Board in the facts and circumstances of each case not to levy the surcharge indicated in the notification during a particular period and in so doing the board will take into consideration the facts and circumstances of each particular case [172A B] 161 The contention that the loss incurred in respect of smaller consumers is recovered from the present appellants, the high tension consumer, has no substance. The transmission loss no doubt is on account of low voltage when it travels Long distance as it is related to distance but the quantum of loss also is proportional to the quantum of power that travels through the transmission lines and it could not be disputed that the power that has to travel to meet the requirements of small agricultural consumers is negligible as compared to the quantum of power that is supplied to these high tension consumers. [170H; 171A B] The contention that under section 18(A)(I) read alongwith section 18(A)(23) of the Electricity Supply Act it is the duty of the board to establish and maintain sub stations and main transmissions lines and it is not open to the board to transfer this responsibility to the consumers by requiring them to make their own arrangements to step down electricity after taking it at a high voltage has no substance. Section 2 sub clause 7 of the Act defines the main transmission lines but all this in sub clause 7 of section 2 refere to is about transmission of electricity from a generating station to another generating station or to sub station. Apparently it refers to all the lines and equipments required to be installed from the generating station to the distributing sub station. Apparently both being that of the Board itself it has to maintain it and on this basis it could not be contended that if the consumer has to receive powers at a high voltage and if he wants to utilise it at a low voltage it is not his responsibility to instal equipments for stepping down the power from high voltage to low voltage. [171C E] Maharashtra State Electricity Board vs Kalyan Borough Municipality & Anr., ; ; Bisra Stone Lime Company Ltd. & Anr. , vs Orissa State Electricity Board and Anr. , ; and Jagadamba Paper Industries (Pvt. ) Ltd. Etc. vs Haryana State Electricity Board & Ors. Etc., [1984] I S.C.R. 165, referred to.

Appeal No. 283 of 1960. Appeal from the judgment and decree dated, November 20, 1958, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 3 of 1956. C. B. Agarwala and C. P. Lal, for the appellant. R. Ganapathy Iyer and T. M. Sen, for the respondent. March 16. The Judgment of the Court was delivered by DAs GUPTA, J. The appellant, a clerk in the service of the East Indian Railways was compulsorily ' retired from service with effect from June 30, 1948, on attaining the age of 55 years. His prayer for further retention in service on the ground that he was entitled to be retained under Rule 2046/2 of the Railway Establishment Code having been rejected he brought the suit which has given rise to this appeal in the court of the Civil Judge, Lucknow, alleging that he was entitled to be retained under the above rule, and the order for compulsory retirement on attaining the age of 55 years was. void and inoperative in law. He accordingly prayed for a declaratory decree that the order of his compulsory retirement was illegal and void and for a money decree for, arrears of pay on the basis that he had continued in service. The main defence was a denial of his right to be retained in service under the rules. The Trial Court accepted the plaintiff 's contention ' as regards the effect; of the rule, gave him a declaration as prayed for and ' also decreed the claim for money in part. On appeal the High Court took a different view of Rule 2046 and held that that rule gave the plaintiff no right to continue in service beyond the age of 55 years. The High Court therefore allowed the appeal. and dismissed the plaintiffs suit. Against this decision the 376 plaintiff has preferred the present appeal on a certificate granted by the High Court under article 133(1) (c) of the Constitution. The main question therefore is whether on a proper interpretation of Rule 2046/2 (a) of the Railway Esta blishment Code, which is identical with the fundamental rule 56 (b) (i), the plaintiff had the hight to be retained in service till the age of 60 years. It is necessary to mention that the plaintiff 's case that he continued to be efficient even after attaining the age of 55 years has not been disputed by the respondent, the Union of India. Consequently the question is: assuming the plaintiff so 'continued to be efficient whether he had the right to be retained in service till he attained the age of 60 years. Rule 2046 (1) of the Code deals with the question of retirement of railway servants other than ministerial and provides that such Railway servant, that is, one who is not a ministerial servant, will be compulsorily retired on attaining the age of 55 years; but may be retained in service after that date "with the sanction of the competent authority on public grounds" which must be recorded in writing. A further provision is made that he must not be retained after the age of 60 years except in very special circumstances. Rule 2046/2 deals with cases of ministerial servants. It has two clauses of which ol. (b) deals with (i) ministerial servants who entered Government service on or after April 1, 1938, or (ii) who though in Government service on March 31, 1938, did not hold a lien or a suspended lien on a permanent post on that date. These also, like the Railway servants, who are not ministerial servants have to retire ordinarily at the age of 55 years and cannont be, retained after that age except on public grounds to be recorded in writing and with the sanction of the competent authority; and must not be retained after attaining the age of 60 years except in very special circumstances. Clause (a) deals with railway ministerial servants other than those who entered Government service on or after April 1, 1938, or those in Government service on March 31, 1938, who, did not hold a lien or a 377 suspended lien on a permanent post on that date. The exact words of the rule are: "A ministerial servant who is not governed by sub cl. (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with 'the sanction of the competent authority. " It is obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within el. (a) of rule 2046/2 than those who fall under el. (b) of the same rule or railway servants who are not ministerial servants. For whereas in the case of these, viz., railway servants Who are not ministerial servants, and ministerial servants under cl. (b) retention after the age of 55 itself is intended to be exceptional to be made on public grounds which must be recorded in writing and with the sanction of the competent authority, in the case of ministerial servants who fall under cl. (a) of Rule 2046/2 their retention after the age of 60 is treated as exceptional and to be made in a similar manner as retention in the case of the other railway servants mentioned above after the age of 55. It is clear therefore that whereas the authority appropriate to make the order of compulsory retirement or of retention is given, no discretion by itself to ' retain a ministerial railway servant under cl. (b) if he attains the age of 55 years, that is not the position as regards the ministerial servants who fall under cl. The appellant 's contention however goes very Much further. He contends that in the case of ministerial servants who come within cl. (a) and after attaining the age of 55 years continue to be efficient it is not even a case of discretion of the appropriate authority to retain him or not but that such ministerial servants have got a right to be retained and the appropriate authority is bound to retain him, if efficient. The first clause of the first sentence of the relevant 48 378 rule taken by itself certainly gives the appropriate authority the right to require a ministerial servant to retire as soon as he attains the age of 55 years. The question is: Whether this right is cut down by the second clause, viz., "but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years". On behalf of the appellant it is urged that the very use of the conjunction "but" is for the definite purpose of the cutting down of the right conferred by the first clause; and that the effect of the second clause is that the right to require the Government servant to retire at 55 is limited only to cases where he does not retain his efficiency; but where he does retain his efficiency the right to retire him is only when he attains the age of 60 years. We are con strained to say that the language used in this rule is unnecessarily involved; but at the same time it is reasonably clear that the defect in the language creates no doubt as regards the intention of the rulemaking authority. That intention, in our opinion, is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence; but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more, subject to the condition that he continues to be efficient. If this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option. If the intention had been to out down the right conferred on the authority to retire a servant at the age of 55 years the proper language to express such intention would have been may be required to retire at the age of 55 years provided however that he shall be retained in service if he continues to be efficient up to the age of 60 years" or some such similar, words. The use of "should ordinarily be retained in service" is sufficient index to the mind of the rule making authority that the right conferred by the first clause of the sentence remained. Leaving out for the present the word "ordinarily" the rule would read thus: 379 "A ministerial servant who is not governed by sub clause (b) may be required to retire at the age of 55 years but should be retained in service if he continues to be efficient up to the age of 60 years. " Reading these words without the word "ordinarily" we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient. They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so. This intention is made even more clear and beyond, doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues: to be efficient. The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to route the ' servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but, what are special circumstances is loft entirely to the authority 's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise ' its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if, he continues to be efficient. Reliance was placed by learned counsel on an observation of Mukherjea, J. (as he then was), in Jai 380 Ram vs Union of India (1) when speaking for the Court as regards this rule his Lordship said: "We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right to be retained in service till he reaches the age of 60. This is conditional undoubtedly upon his continuing to be efficient. We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency. " It would be wholly unreasonable however to consider this as a decision on the question of what this rule means. Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsel 's argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule. The correct interpretation of Rule 2046 (2) (a) of the code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient. It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India ' [Basant Kumar Pal vs The Chief Electrical Engineer Kishan Dayal vs General Manager, Northern Railway and Raghunath Narain Mathur vs Union of India (4)]. We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55. (1) A.I.R. 1954 S.C. 584. (3) A.I.R. 1954 Punj. (2) A.I.R. 1956 Cal. (4) A.I.R. 1953 All. 381 It was next urged by Mr. Aggarwal, though faintly, that the notification of the Railway Board dated October 19, 1948, and the further notification dated April 15, 1952, as a result of which ministerial servants who were retired under rule 2046(2)(a) before attaining the age of 60 after September 8, 1948, have been given special treatment are discriminatory. It appears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental rule 56(b)(i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless he has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered. This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance". On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by Rule 2046(2)(a) (which corresponded to fundamental rule 56(b)(1) in the manner as directed by the Government of India 's notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired. Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with article 311 (2) of the Constitution should be taken back to duty" under certain conditions. The appellant 's contention is that the denial of this advantage given to other ministerial servants falling within rule 2046(2)(a) who had been retired after September 8, 1948, is unconstitutional. We do not think that this contention has any substance. What happened was that on September 8,1948, the Government took a decision that ministerial servants should 382 not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend article 14 of the Constitution. This contention is therefore also rejected. The High Court was therefore right in our opinion in holding that there was a reasonable classification of the ministerial servants who had been retired under Rule 2046 (2) (a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948. There is, therefore, no denial of equal protection of laws guaranteed by article 14 of the Constitution. In the result, the appeal fails and is dismissed. There will be no order as to costs, as the appellant is a pauper. We make no order under Order XIV, rule 9 of the Supreme Court Rules. Appeal dismissed.

The appellant who was a clerk under the East Indian Railways was compulsorily retired from service on attaining the age of 55 years. His prayer for further retention in service having been rejected he filed a suit alleging that he was entitled to be retained in service up to the age of 60 years under Rule 2046 (2)(a) of the Railway Establishment Code, which runs as follows: "Clause (a) A ministerial servant who is not governed by sub cl. (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority. " His suit was decreed by the Trial Court but the High Court reversed it holding that the plaintiff appellant had no right to continue in service beyond the age of 55 years. On appeal with the certificate of the High Court. Held, that the correct interpretation of Rule 2046(2)(a) is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 6o years the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if he continues to be efficient. This rule does not give the servant a right to be retained in service beyond the age of 55 years even if he continues to be efficient. jai Ram vs Union of India, A.I.R. 1954 S.C. 584, explained. Basant Kumar Pat vs The Chief Electrical Engineer, A.I.R. , Kishan Dayal vs General Manager, Northern Railway, A.I.R. 1954 Punj. 245 and Raghunath Narain Mathur vs Union of India, A.I.R. 1953 All. 352, approved. 375 The formation by the Railway Board of two classes of ministerial servants, namely, one of, those who retired after September 8, 1948, and the other of those who had already retired before that date was a reasonable classification and (lid not offend article 14 of the Constitution.

il Appeals Nos. 213A and 213B of 1953. Appeals by Special Leave against the Judgment and Order dated the 24th June, 1953, of the Election Tribunal, Ludhiana, in Election Petition No. 153 of 1952. C. K. Daphtary, Solicitor General for India, (Harbans Singh Doabia and Rajinder Narain, with him) for the appellant in Civil Appeal No. 213A. Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in Civil Appeal No. 213A and the appellant in Civil Appeal No. 213B. Naunit Lal for respondents Nos. 3 and 19 in both the appeals. May 21. The Judgment of the Court was delivered by BOSE J. These are two appeals against the decision of the Election Tribunal at Ludhiana. The contest was for two seats in the Pun jab Legislative Assembly. The constituency is a double member constituency, one seat being general and the other reserved for a Scheduled Caste. The first respondent is Atma Ram. He was a candidate for the reserved seat but his nomination was rejected by the Returning Officer at the scrutiny stage and so he was unable to contest the election. The successful candidates were Rattan Anmol Singh, the appellant in Civil Appeal No. 213 A of 1953, for the general seat and Ram Prakash, the appellant in Civil Appeal No. 213 B of 1953 for there served. Atma Ram filed the present election petition. The Election :Tribunal decided in 483 his favour by a majority of two to one and declared the whole election void. Rattan Anmol Singh and Ram Prakash appeal here. The main question we have to decide is whether the Returning Officer was right in rejecting the petitioner 's nomination papers. The facts which led him to do so are as follows. The Rules require that each nomination paper should be "subscribed" by a proposer and a seconder. The petitioner put in four papers. In each case, the proposer and seconder were illiterate and so placed a thumb mark instead of a signature. But these thumb marks were not "attested". The Returning Officer held that without "attestation" they are invalid and so rejected them. The main question is whether he was right in so holding. A subsidiary question also arises, namely, whether, assuming attestation to be necessary under the Rules, an omission to obtain the required attestation ' amounts to a technical defect of an unsubstantial character which the Returning Officer was bound to disregard under section 36(4) of the Representation of the People Act, 1951 (XLIII of 1951). Section 33(1) of the Act requires each candidate to "deliver to the Returning Officer. a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two persons referred to in sub section (2) as proposer and seconder. " Sub section (2) says that "any person whose name is registered etc. may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled. . The controversy centers on the word "subscribed" which has not been defined in the Act. The prescribed nomination form referred to in subsection (1) of section 33 is to be found in Schedule II. In this form we have the following: "9. Name of the proposer 12. Signature of the proposer 484 13. Name of the seconder. . . . . . 16. Signature of the seconder. " The Oxford English Dictionary sets out thirteen shades of meaning to the word ',subscribe", most of them either obsolete or now rarely used. The only two which can have any real relation to the present matter are the following: 1. "To write (one 's name or mark) on, originally at the bottom of a document, especially as a witness or contesting party; to sign one 's name to. " This meaning is described as "rare." 2. "To sign one 's name to; to signify assent or adhesion to by signing one 's name; to attest by signing." This appears to be its modern meaning, and is also one of the meanings given to the word "sign", namely "to attest or confirm by adding one 's signature; to affix one 's name to (a document) late." One also finds the following in Stroud 's Judicial Dictionary, 3rd edition: "Subscribe. (1) 'Subscribe ' means to write under something in accordance with prescribed regulations where any such exist But though this is the strict primary meaning of the word, it may sometimes, e.g., in the attestation of a will, be construed as 'to give assent to, or to attest ' or 'written upon "(3) 'Subscription is a method of signing; it is not the only method '; a stamped, or other mechanical impression of a signature is good, in the case of electioneering papers. " It is clear that the word can be used in various senses to indicate different modes of signing and that it includes the placing of a mark. The General Clauses Act also says that " 'sign ' with reference to a person who is unable to write his name, includes 'mark ' But this is subject to there being nothing repugnant in the subject or context of the Act. In our opinion, the crux of the matter lies there. We have to see 485 from the Act itself whether "sign" and "subscribe" mean the same thing and whether they can be taken to include the placing of a mark. The majority decision of the Tribunal holds that "sign" and "subscribe" are not used in the same sense in the Act because a special meaning has been given to the word I sign" and none to the word "subscribe", therefore, we must use "subscribe" in its ordinary meaning; and its ordinary meaning is to "sign" but not to "sign" in the special way prescribed by the Act but in the ordinary way; therefore we must look to the General Clauses Act for its ordinary meaning and that shows that when it is used in its ordinary sense it includes the making of a mark. We agree with the learned Chairman of the Tribunal that this is fallacious reasoning. The General Clauses Act does not define the word "subscribe" any more than the Representation of the People Act, and if it is improper to exclude the special meaning given to " sign " in the Representation of the People Act because the word "sign " is defined and not " subscribe," it is equally improper to import the special definition of " sign " in the General Clauses Act because that also defines only "sign" and not "subscribe" and also because the " subject " and " context " of the Representation of the People Act show that the writing of a signature and the making of a mark are to be treated differently. The learned counsel for the respondent analysed the Act for us and pointed out that the word " subscribe " is only used in Chapter I of Part V dealing with the Nomination of Candidates while in every other place the word " sign " is used. We do not know why this should be unless, as was suggested by the learned Solicitor General, the Legislature wished to underline the fact that the proposer and seconder are not merely signing by way of attesting the candidate 's signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and as a person for whom they are prepared to vouch, also that the candidate 's signature imports more than a mere vouching for the accuracy of the 486 facts entered in the form. It imports assent to his nomination. We think the learned Solicitor General is probably right because section 33 speaks of "a nomination paper completed in the prescribed form and subscribed by the. candidate himself as assenting to the nomination." But however that may be, it.is evident from the form that " signatures are required. It is also evident from the definition of sign " that the Legislature attached special importance to the fact that in the case of illiterate persons unable to write their names it is necessary to guard against misrepresentation and fraud by requiring that their signatures should be formally authenticated in a particular way. A special statutory cloak of protection is thrown around them just as the ordinary law clothes pardanish in women and illiterate and ignorant persons and others likely to be imposed on, with special protective covering. Now it is to be observed that section 2 calls itself an interpretation " section. It says " (1) In this Act, unless the context otherwise requires. . . . . . . . . (k) 'sign ' in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed. " It is evident then that wherever the, element of signing " has to be incorporated into any provision of the Act it must be construed in the sense set out above. Therefore, whether " subscribe " is a synonym for " sign " or whether it means " sign " plus something else, namely a particular assent, the element of " signing " has to be present: the schedule places that beyond doubt because it requires certain " signature*. " We are consequently of opinion that the " signing," whenever a " signature " is necessary, must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Whether this attaches exaggerated importance to the authorisation is not for us to decide. What is beyond 487 dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases. We are therefore bound to give full affect to this policy. Now if " subscribe " can mean both signing, so called,, and the placing of a mark (and it is clear the word can be used in both senses), then we feel that we must give effect to the general policy of the Act by drawing the same distinction between signing, and the making of a mark as the Act itself does in the definition of "sign. " it is true the word "subscribe" is not defined but it is equally clear, when the Act is read as ' a whole along with the form in the second schedule, that "subscribe" can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of " signature " are to be made, we are bound to give effect, to ft. In the case of a person who is unable to write his name his " signature " must be authenticated in " such manner as may be pres cribed. " The prescribed manner is to be found in rule 2(2)of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951. It runs as follows : " For the purposes of the Act or these rules,, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if he has, placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer on being satisfied as to his identity has attested the mark as being the mark of such person. " In view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names. The four nomination papers we are concerned with were not " signed " by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been " signed ", in the special way which the Act 488 requires in such cases. If they are not " signed " either in one way or the other, then it is clear that they have not been " subscribed " because " subscribing " imports a "signature" and as the Act sets out the only kinds of "signatures" which it will recognise as II signing" for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was therefore bound to reject them under section 36(2)(d) of the Act because there was a failure to comply with section 33, unless he could and should have had resort to section 36(4). That sub section is as follows. The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. " The question therefore is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making _a mark in place of writing a signature. If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality. But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the II subscribing " required in the case of the candidate himself If there is no signature and no mark the form would have to be rejected and their 489 absence could not be dismissed as technical and unsubs tantial. The "satisfaction " of the Returning Officer which the rules require is not, in our opinion, any the, less important and imperative. The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage. It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage. The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been. Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been " any failure to comply with any of the provisions of section 33. . . The only jurisdiction the Return ing Officer has at the scrutiny stage is to see, whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical and unsubstantial it will not matter. If it is not, it cannot be set right. We agree with the Chairman of the Election Tribunal, that the Returning Officer rightly rejected these nomination papers. The appeals are allowed with costs and the order of the Election Tribunal declaring the elections of the two successful candidates to be wholly void is set aside. The election petition is dismissed, also with costs.

On March 16, 1968 the petitioner was arrested and ordered to be detained under section 3(1) (a) (1) of the Jammu and Kashmir Preventive Detention Act, 1964. On September 16, 1968, the order was revoked and another order was served on him. on September 24, 1968 the petitioner was served, with the grounds for the fresh order of detention His case was referred to the Advisory Board on October 26, 1968 and the Board recommended his detention. Under section 10 of the Act, as amended by section 13A, of the Amending Act 8 of 1967, the Government is required to refer a case to the Advisory Board within 60 days from the date of detention: In a petition for the issue of a writ of habeas corpus it was contended that : (1) Since the case of,, the petitioner was not referred to the Advisory Board within 60 days of the date of detention (March 16, 1968) the detention was invalid; (2) The authorities acted mala fide in making the detention order; (3) The grounds in support of the order were vague and indefinite; and (4) 'Mat his being subjected to solitary confinement while in detention was illegal. HELD : (1) There was no reason for not accepting the statement of the State that it was not intended, when the detention order of March 16, 1968 was passed that the petitioner was to be kept in detention for a period longer than 6 months. Therefore, his case fell within the terms of s.13A(1)which provides that 'notwithstanding anything, contained in this Act a person may be detained for a period not longer than 6 months without obtaining the opinion of the Advisioiry Board. In the present case the petitioner was detained under the first order only for a period of 6 months when that order was revoked by the second order of detention. [579 C] (2)The grounds for the two orders are not identical; When the first Order was passed the petitioner was not intended to be detained for a period exceeding 6 months. Thereafter, in consequence of further information that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order, the Government had to issue a fresh order. Therefore. it could not be said that the Government acted mala fide inmaking either the original or the fresh order. [579 G H; 580 A B] (3) The order clearly stated facts relevant to the grounds of detention, except those which Government considered to be against public interest to disclose. Under section 8 (2) it is open to the Government to withhold such facts. Because of the withholding of such facts the grounds in the order of detention could not be said to. be vague or indefinite. [580 C E] 575 (4) Notwithstanding the broad principles of the rule of law, equality and liberty of, the individual enshrined in the Constitution, it tolerates on account 1 the peculiar conditions prevailing, legislation in relation to preventive detention, which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the Power to detain is not a power to publish, and the restrictions placed must, consistently with the effectiveness of detention, be minimal. Since a detenu is not a convict he cannot be subjected to solitary confinement.

Appeal No. 443 of 1957. Appeal by special leave from the judgment and order dated April 25, 1955, of the Allahabad High Court in Civil Misc. Case No. 26/1951. C. B. Aggarwala, C. P. Lal for G. Ar. Dikshit, for the appellant. section K. Kapur and Mohan Behari Lal, for the respondent. October 31. The Judgment of Hidayatullah, Das Gupta and Shah, JJ., was delivered by Shah, J., and the judgment of Das and Ayyangar, JJ., was delivered by Ayyangar, J. SHAH J. Judge (Revisions) exercising authority under section 11 of the United Provinces Sales Tax Act XV of 1948 drew up a statement of case and referred to 191 the High Court of Judicature at Allahabad the follow question : " Whether the assessee, who is a manufacturer and a dealer of non edible oils and who elected the previous year as the basis of his assessment in the assessment year 1948 49, is liable to be assessed at the flat rate of 3 pies per rupee on the whole of the turnover of the previous year, or whether he is liable to be assessed at the rates of 3 pies per rupee and 6 pies per rupee on the turnover of the previous year in proportion to the two periods from 1st April to 8th June, 1948, and from 9th June, 1948 to the 31st March, 1949 ?" The High Court answered the question as follows: " The applicant company is liable to pay tax for the assessment year 1948 49 on the turnover of the previous year in respect of sales of non edible oils at the flat rate of 3 pies per rupee. " Against the order of the High Court recording its answer, this appeal with special leave is preferred. The facts which give rise to the appeal are briefly these : The Modi Food Products Co., Ltd. hereinafter referred to as " the assessee ", manufactures oils edible and non edible in its factory at Modinagar, District Meerut, State of Uttar Pradesh. The assessee is registered as a "dealer" under the United Provinces Sales Tax Act XV of 1948. The assessee 's year of account commences on June 1, and ends on May 31, next year. For the year of account 1946 47, the assessee 's sales of edible and non edible oils amounted to Rs. 63,02,849 7 7. The U. P. Legislature enacted with effect from April 1, 1948, the United Provinces Sales Tax Act XV of 1948 providing for the levy of a tax on sales of certain commodities. This act was amended by Act XXV of 1948 with retrospective operation from April 1, 1948. By the Act, " assessment year " was defined as meaning the twelve months ending on March 31 and " previous year " was defined as meaning the twelve months ending on the 31st March next preceding the assessment year, or, if the accounts of the dealer had been 192 made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st March then, at the option of the dealer, the year ending on the day to which his accounts had so been made up. ,Turnover " was defined as meaning the aggregate of the proceeds of sale by a dealer. By section 3, a tax at the rate of 3 pies per rupee of turnover was, subject to certain exceptions, made payable by every dealer in each assessment year whose turn. over in the previous year exceeded Rs. 12,000 or such larger amount as may be prescribed; the Provincial Government was however authorised to reduce the rate of tax on any dealer or class of dealers on the turnover in respect of any goods or class of goods. By section 3 A, the Government of U. P. was authorised to introduce instead of the multiple point scheme of taxation provided by section 3 a single point system of taxation and by notification to declare that the proceeds of sale of any goods or class of goods shall not be included in the turnover of any dealer except to such single point in the series of sales by successive dealers as may be prescribed; and if the Government made such a declaration, the turnover of the dealer in whose turnover the sale of such goods was included was in respect of such sale to be taxed at such rate as may be specified not exceeding one anna per rupee. By section 7, every dealer whose turnover in the previous year was Rs. 12,000 or more was directed to submit such return or returns of his turnover of the previous year within sixty days of the commencement of the assessment year in such form and verified in such manner as may be prescribed. By the proviso, the Government was authorised to prescribe that any dealer or class of dealers may submit in lieu of the return or returns specified in that section, a return or returns of his turnover of the assessment year at such intervals as may be prescribed. Provision was made by the Act for appeals against the order of assessment and revision against the order of the appellate authority. By section 11, the High Court of Judicature at Allahabad was authorised to decide questions of law raised in any case in the course of assessment and 193 referred to it on a statement of the case drawn up by the Revising Authority. By section 24. the Provincial, Government was invested with power to make rules to carry out the purposes of the Act and in particular in respect of certain specified matters. In exercise of the powers conferred by section 24 of the Act, the Government of U. P. framed rules. Rule 39 of the U. P. Sales Tax Rules gave to every dealer an option to submit his return of the turnover of the assessment year in lieu of the return of the turnover of the previous year. A dealer who did not carry on business during the whole of the previous year had no option, but was bound to submit his return of the turnover of the assessment year. By r. 40, it was provided that every dealer who elected to submit a return of the turnover of his previous year shall within sixty days of the commencement of the assessment year, submit to the Sales Tax Officer a return showing his turnover of the previous year. By r. 41, it was provided that every dealer whose estimated turnover during the assessment year was not less than Rs. 15,000 and who elected to submit his return of such year shall before the last day of July, October, January and April submit to the Sales Tax Officer, a return of his gross turnover for the quarters ending June 30, September 30, December 31 and March 31. In exercise of the authority conferred by section 3 A which was incorporated in the Act by Act XXV of 1948, the Government of U. P. issed the following notification : " In exercise of the powers conferred by section 3 A of the United Provinces Sales Tax Act, 1941, as amended by the United Provinces Sales Tax (Amendment) Act, 1948, the Governor is hereby pleased to declare that with effect from June 9, 1948, the proceeds of sale of goods entered in column 2 of the schedule hereto shall not be included in the turnover of any dealer except at the point in the series of sales by successive dealers mentioned in column 4 thereof under the circumstances shown in column 3 thereof. (2) The Governor is further pleased to order that 25 194 as from June 9, 1948, the rate of tax in respect of the column 5 of the schedule hereto. (3) Every dealer by or on whose behalf goods mentioned in the schedule aforesaid are held at the close of the 8th day of June, 1948, shall submit a statement showing the quantity and price of such stock and of the stock of such goods held on the 24th day of May, 1948, to the appropriate assessing authority by the 30th day of June, 1948. " To this notification was appended a schedule which set out the descriptions of diverse commodities, the "circumstances under Which the turnover was to be calculated " the point of tax and the rate of tax. Item 14 of the schedule was " oils of all kinds excluding edible oils but including Vanaspati " and sales thereof by manufacturers in the U. P. were liable to tax at the rate of 6 pies per rupee. By virtue of this notification, non edible oils became liable to a single point tax as from June 9, 1948, at the time of sale by an importer or manufacturer in the United Provinces. The assessee submitted its return for the assessment year 1948 49 on its taxable turnover of the previous year ending on May 31, 1947, to the Sales Tax Officer, Meerut Range. On the assessee 's return, the Sales Tax Officer assessed the tax at Rs. 1,16,238 12 0, holding that sales of non edible oils for the first 69 days out of the year of the turnover were to be taxed at the rate of 3 pies, and sales for the remaining 296 days were to be taxed at the rate of 6 pies per rupee. Against the order passed by the Sales Tax Officer, Meerut Range, an appeal was preferred to the Judge (Appeals), Sales Tax, under section 9 of the Act. The appellate authority modified the order and directed the assessee to pay tax on non edible oils on the turnover of the previous year at the flat rate of 3 pies per rupee and reduced the tax liability to Rs. 1,08,477 0 3. This order of the Judge (Appeals) was set aside by the revising authority and the order of the Sales Tax Officer was restored. On, a direction made by the High Court, the revising authority drew up a statement of the case and submitted for opinion a question 195 which in his opinion arose out of the assessment. The High Court re framed the question as set out hereinbefore, and answered it in favour of the assessee. By section 3 and section 3 A, which are the charging sections, the liability to pay sales tax in each assessment year is charged on the total turnover of a dealer. By section 7, read with r. 39, the assessee has the option to adopt the turnover of the previous year as the taxable turnover for the year of assessment: and if he does so, he has to submit within sixty days of the commencement of the assessment year returns showing his turnover for that previous year. If, however, the assessee adopts the turnover in the year of assessment as his taxable turnover, he has to submit returns before the last day of July, October, January and April his gross turnover for each of the four quarters ending 30th June, 30th September, 31st December and 31st March. The tax is evidently levied in respect of the year of assessment : it is not levied in respect of the business carried on in the previous year. Again, the rate applicable in assessing the tax is the rate in force in the year of assessment. That is clear from the terms of sections 3 and 3 A. But the taxable turnover for the year of assessment may, except in certain cases not material for the purpose of this appeal, at the option of the tax payer be either the turnover of the previous year or of the year of assessment. If the assessee adopts the turnover of the previous year, by the provisions contained in section 3 and section 7 and rr. 39 and 40, the liability to pay tax arises on the 1st of April and the rate applicable is the rate in force on that date. The liability of the assessee adopting the turnover of the year of assessment arises by virtue of sections 3 and 7 and r. 41 at the end of each quarter. When the taxable turnover is based on the turnover of the previous year, the tax is assessed on an artificial turnover not related to the actual sales of the year of assessment: whereas the levy of tax on a return made on the turnover of the year of assessment is made on actual sales of that year. The tax paid on the turnover of the previous year is not related to the actual sales 196 provision for making adjustments in the liability to tax on ascertainment of the actual turnover at the end of the year of assessment. The Government of the United Provinces had by notification dated June 8,1948, altered the rate of tax in the matter of various commodities including nonedible oils with effect from June 9, 1948. The Sales Tax Officer was right in his view that the levy of tax at the altered rate was not to operate on sales effected before June 9, 1948. Initially, when the liability of the assessee to pay tax on edible oils for the assessment year arose, the rate was undoubtedly 3 pies per rupee on the turnover, and the question which falls to be determined is whether by reason of the alteration of the rate and its incidence in the course of the year, the assessee became liable to pay tax at the higher rate on a part of the turnover of the previous year and if so, on what basis. A tax payer who adopted the previous year 's turnover bad under section 7 and r. 40 to submit his return within sixty days of the commencement of the assessment year, and no provision for submission of any supplementary returns in the case of alteration of rates in the course of the year was made in the Act or the Rules: nor was any method provided for retrospective modification of an assessment once made. There were under the Act and the Rules two distinct and clear cut schemes to assess sales tax, (1) where the tax payer elected to submit his return based on the turnover of the previous year and (2) where he elected to or was bound by law to submit his return on the turnover of the year of assessment. Under these two schemes the points of time at which liability arose and the turnover on which liability was to be assessed were in their nature not identical. The tax payers paying tax under the first scheme paid it on the turnover of the previous year and at the rate in force after the end of the period and applicable to it. The tax payer paying tax under the second scheme paid tax in quarterly installments based on the previous quarter 's actual turnover and at the rate or rates prevalent in the quarter or applicable to it. Was it intended, when alteration was made in the rate of tax 197 or its incidence during the course of the year, to assimilate these two schemes of taxation so as to, permit of a departure from the one to the other ? There is no express provision in the Act or in the Rules in that behalf. Nor does the notification suggest that it was so intended. In the case of a dealer who adopts the turnover of the year of assessment for purposes of taxation, the application of the notification altering the rate of tax and the incidence of tax does not present any difficulty. The notification enjoins levy of the tax at the altered rate only in respect of sales taking place after the fixed date, and all sales which preceded that date are to be taxed at the original rate. In the face of the language employed sales anterior to the date specified could not be affected. The question next arises: Is any machinery provided in the Act or the Rules for projecting this division of the year of assessment, into the previous year, and for apportioning the turnover of that year ? Express provision in that behalf there is none : and it is difficult to imply such a provision in the Act. The dates of commencement and closure of the previous year of a tax payer may vary according to the system of accounting adopted by the assessee. The year may commence from any day of any recognised calendar year, and the year may not consist of 365 days. The method of antedating by one year the date on which the alteration is made in the rate or incidence will be manifestly inappropriate. The method of division of the turnover proportionate to the period of the assessment year before the alteration of the rate and after such alteration though prospective, must be deemed to have been made retrospectively in the previous year, and on a day which is removed from the commencement of the year of account by the number of days by which the date of alteration of rate is removed from the commencement of the year of assessment. But the adoption of the turnover of the previous year as the taxable turnover for the year of assessment is itself based on a fiction and, in the absence of any express provision either in the Act or the Rules or even in the notification setting out machinery for such 198 a division of the year, we are unable to hold that this scheme of a fictional division may be projected into the previous year to make an artificial division of the turnover for imprinting thereon the altered rate of assessment as from the date of the division. Counsel for the State of Uttar Pradesh submitted several hypothetical cases suggesting that by refusing to adopt this method of division of the previous year of assessment for the application of the altered rate, several anomalies may arise in working out the liability to tax. He submitted that a person who was not a manufacturer or an importer of goods included in the schedule to the notification under section 3 A may, if he has adopted the turnover of the previous year as his taxable turnover be liable even though it was the intention of the Government to absolve him from liability to pay tax. But a tax payer adopting the turnover of the previous year for payment of tax makes his choice 'voluntarily and subject to the advantages and disadvantages which that step involves. The fact that he may have to pay tax from which persons choosing the alternative method of submitting of return may partially be exempted, because of an exemption granted in the course of the year, may not, in our judgment, be a ground for not giving full effect to the provisions of the Act as they stand. In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions '. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed it Cannot imply anything which is not expressed it cannot import provisions in the statutes so as to supply any assumed deficiency. Section 18 el. (c) of the Act which provides for proportionate reduction of tax when in the case of a change or discontinuance taking place in the course of the assessment year of a firm which has been assessed for such year on the turnover of the previous year does not support the contention that an artificial divisions of the turnover of the previous year is intended 199 in cases of alteration of circumstances during the course of the assessment year. It may be noticed that, the provision is limited to changes in or discontinuance of the business of a firm, in terms it does not apply to individuals. It is not for us to consider why the Legislature has not chosen to make a similar provision in respect of individuals. But the fact that the Legislature has made an express provision dealing with changes or discontinuance of business of firms in the course of the assessment year enabling a reduction proportionately to the tax already paid would be a ground indicating that in cases not governed by that provision, no alteration in the liability was permissible when the taxable turnover was based on the previous year 's turnover. It is not provided that in giving effect to the alteration of the rate during the course of the year of assessment an artificial division of the turnover of the previous year should, in applying the altered rate be made. The Legislature having failed to provide machinery for working out the liability, the attempted projection becomes unworkable. A legal fiction must be limited to the purposes for which it has been created and cannot be extended beyond its legitimate field. The turnover of the previous year is fictionally made the turnover of the year of assessment: it is not the actual or the real turnover of the year of assessment. By the imposition of a different tariff in the course of the year, the incidence of tax liability may competently be altered by the Legislature, but for effectuating that alteration, the Legislature must devise machinery for enforcing it against the tax payer and if the Legislature has failed to do so, the court cannot resort to a fiction which is not prescribed by the Legislature and seek to effectuate that alteration by devising machinery not found in the statute. We are therefore of the view that the conclusion of the High Court is correct. The appeal therefore fails and is dismissed with costs. AYYANGAR J. We regret we are unable to agree with the judgment just now pronounced. The facts giving rise to this appeal are briefly 200 these:A company called The Modi Food Products Ltd. ' (amalgamated with the respondent) which will be referred to hereinafter as the assessee, was during the years 1946 & 1947 a manufacturer of and dealer in vegetable oils both edible and non edible. During that year there was no legislation imposing any tax on sales. The U. P. legislature enacted the U. P. Sales Tax Act in 1948 and the statute received the assent of the Governor and was published in the official Gazette on June 5, 1948. Section 1 (2) of the Act enacted that it shall be deemed to have come into force on April 1, 1948. The appeal is concerned with the liability to sales tax under the Act of the assessee company in respect of the sale of oil effected by the assessee during the period June 1, 1946 to May 31, 1947, which was the account year of the assessee previous to the first assessment year under the Act1948 49. Section 3 of the Act, to quote only the relevant words, as it stood at the material time, enacted : " Section 3. Liability to tax under the Act. Subject to the provisions of this Act, every dealer shall pay on turnover in each assessment year a tax at the rate of 3 pies a rupee Provided that (i) the Provincial Government may, by notification in the official Gazette, reduce the rate of tax on the turnover of any dealer or class of dealers or on the turnover in respect of any goods or class of goods; (ii) a dealer whose turnover in the previous year is less than Rs. 12,000 or such larger amount as may be prescribed shall not be liable to pay the tax under this Act for the assessment year. " By the U. P. Sales Tax Amendment Act, 1948 (Act XXV of 1948) this proviso was slightly modified and section 3(A) was inserted in the Act reading as follows: " Section 3 A. Single point taxation. (1) Notwithstanding anything contained in Section 3, the Provincial Government may, by notification in the official Gazette, declare that the proceeds of sale of any goods or class of goods shall not be included in the turnover of any dealer except at such single point 201 in the series of sales by successive dealers as may be prescribed. (2)If the Provincial Government makes a declaration under sub section (1) of this Section, it may further declare that the turnover of the dealer, in whose turnover the sale of such goods is included, shall, in respect of such sale, be taxed at such rate as ' may be specified not exceeding one anna per rupee if the sale relates to goods specified below. (A list of goods was then set out) and nine pies per rupee if it relates to any other goods. " Non edible oil which is the commodity with the sale of which the assessment in the present appeal is concerned is not in the list of goods set out in section 3(A) and would therefore be covered by the residuary clause of the section. The U. P. Government issued the following notification dated June 8, 1948, under section 3(A) of the Act: " In exercise of the powers conferred by Section 3 A of the United Provinces Sales Tax Act, 1948, as amended by the United Provinces Sales Tax (Amendment) Act, 1948, the Governor is hereby pleased to declare that with effect from June 9, 1948, the proceeds of sale of goods entered in column 2 of the Schedule hereto shall not be included in the turnover of any dealer except at the point in the series of sales by successive dealers mentioned in column 4 thereof under the circumstances shown in column 3 thereof. 2. The Governor is further pleased to order that as from June 9, 1948, the rate of tax in respect of the turnover of the aforesaid goods shall be as entered in column 3 of the Schedule hereto. Every dealer, by or on whose behalf goods mentioned in the schedule aforesaid are held at the close of the 8th day of June, 1948, shall submit a statement showing the quantity and price of such stock and of the stock of such goods held on the 24th day of May, 1948, to the appropriate assessing authority by the 30th day of June, 1948 ". In the Schedule annexed to this notification, nonedible oil of the type dealt with by the assessee was 202 subject to a tax @ 6 pies per rupee if the same was manufactured in U. P. Section 7 of the Act, as it stood at the date relevant to this appeal, enacted : " Section 7. Determination of turnover and assessment of tax. (1) Subject to the provisions of Section 18, every dealer whose turnover in the previous year is Rs. 12,000 or more in a year shall submit such return or returns of his turnover of the previous year within sixty days of the commencement of the assessment year in such form and verified in such manner as may be prescribed: Provided that the Provincial Government may prescribe that any dealer or class of dealers may submit, in lieu of the return or returns specified in this section, a return or returns of his turnover of the assessment year at such intervals, in such form and verified in such manner as may be prescribed, and thereupon all the provisions of this Act shall apply as if such return or returns had been duly submitted under this section. Provided further that the assessing authority may in his discretion extend the date for the submission of the return by any person or class of persons ". Rules were framed by Government inter alia under the power conferred by the 1st proviso just now set out and by rule 39 of the said rules an option was given to dealers to submit returns of their turnover of the assessment year in lieu of the turnover of the previous year. The assessee exercised the option of being assessed on the basis of the turnover of the previous year under section 7(1) of the Act and in respect of first assessment year after the Act came to force assessment year 1948 49, it filed a return in respect of the turnover of its previous year June 1, 1946 to May 31, 1947. The total turnover of the assessee during this period was Rs. 63,02,849 7 7. The Sales Tax Officer by his order dated March 12, 1949, assessed the turnover in respect of edible oil at 3 pies per rupee. As regards the sale of non edible oil, the sales tax officer hold that since the notification set out above under 203 section 3(A) had come into force as and from June 9 of the assessment year, the assessee was liable to be assessed @ 3 pies per rupee on the turnover during the first 69 days of the year and @ 6 pies per rupee in respect of the remaining days of the year and he computed the ' tax accordingly. The assessee preferred an appeal to the Judge (Appeals), Meerut Range, Meerut, against the order of the Sales Tax Officer. This officer allowed the appeal of the assessee and held that the entire turnover was liable to be taxed only at a flat rate of 3 pies per rupee under section 3(1) of the Act on all oil sold by the assessee edible or non edible. The reason assigned for the order was that on the terms of the notification the new rate of tax could not be applied to sales effected in the previous year which had been opted for the purposes of assessment by the assessee and that so to apply it would be tantamount to giving retrospective effect to the notification which was contraindicated by the terms of the notification itself. The department thereupon moved the Judge (Revision) who accepted its contention and restored the order of the Sales tax Officer applying the provisions of the notification to the turnover of the assessee. There. after the assessee made an application to the Judge (Revision) to state a case for the opinion of the High Court under section 11 of the Act as to whether the rate of tax fixed by the notification could be applied to the sales of the commodity which factually took place on or before June 8, 1948. This petition having been dismissed, an application was filed before the High Court for directing the reference and on this being ordered the following question (as reframed by the High Court) was referred to it for determination : " Whether the assessee who is a manufacturer and a dealer of non edible oils and who elected the previous year as the basis of his assessment in the assessment year 1948 49 is liable to be assessed at the flat rate of 3 pies per rupee on the whole of the turnover of the previous year or whether he is liable to be assessed at the rates of 3 pies per rupee and 6 pies per rupee on the turnover of the previous year in proportion to the two periods from April 1 to June 8, 1948 and from to March 31 1949. " 204 The learned Judges answered the question in favour of the assessee and held that the notification under section 3(A) could not apply to determine the rate of tax payable by the assessee on his turnover of the previous year. The present appeal is against this answer by the High Court. As the arguments before us proceeded on practically the same lines as before the High Court, it will be convenient if we set out the reasoning by which the learned Judges upheld the asssessee 's contention that the notification under section 3(A) was inapplicable to determine the rate of tax payable by it. The grounds were mainly five: (1) The assessee could not be charged at the rates prescribed by the notification unless the new rates operated retrospectively; (2) that section 3(A) which was introduced into the parent Act (Act XV of 1948) by the Amending Act XXV of 1948 was not enacted with retrospective effect. Though the charge imposed by section 3(1) of the Act read with section 7(1) imposed tax retrospectively as and from April 1, 1948, section 3(A) did not on its terms so operate as and from that date. Hence the liability of the assessee which had become fixed under Act XV of 1948, as it originally stood, could not be and 'Was not varied by section 3(A) and would not therefore be affected by any notification issued under the last mentioned provision ; (3) that a notification under section 3(A) could not have retrospective effect since section 3(A) itself did not operate of its own force and merely empowered the Government, 'by a notification, to effect changes in the law and hence such changes when notified could not operate as from any date prior to the date of the notification ; (4) Section 3(A) which used the words " in respect of such sales " contemplated particular sales taking place after the notification issued under it and hence the notification issued under that section could not alter the rate of levy in respect of sales anterior to the date of the notification ; (5) that the terms of the notification carried out the general scheme of the Act and negatived retrospective operation and that as on its langu age it applied only to sales which took place on or 205 admittedly effected long prior thereto in the previous year the same could not be affected by the enhanced rate of duty. Before proceeding further it must be pointed out that the learned Judges of the High Court were not right in thinking that section 3(A) was not enacted to operate retrospectively from the commencement of the ' parent Act. Section 1(2) of the Sales tax Amending Act XXV of 1948 which introduced section 3(A) enacted: " It (this Act) shall be deemed to have come into force on the 1st April, 1948." and as section 3(A) was one of the sections of this enactment, it would have effect from the earlier date. This inadvertent error, however, would not affect the central point of the reasoning of the learned Judges. Besides elaborating the other points in the judgment of the High Court, learned Counsel for the respondent further pressed upon us that there was no specific provision in the Act for refund or reassessment which would have been present if the levy of a rate with retrospective effect were contemplated by the Act as applicable to the assessees who bad opted for the " previous year turnover " basis of assessment. He pointed out that in the case of those assessees who opted for their being assessed in respect of their turn. over during the assessment year, quarterly returns were submitted along with the payment provisionally of the tax due on the basis of that return, the final assessment being completed only after the close of the year when the amount due for the year was ascertained and a demand made for the balance due after adjustment of the amounts already paid during the course of the year (Rule 41). Obviously in their case no difficulty could arise by reason of any change in the law either in the rate or basis of taxation effected during the year, as these would automatically be given effect to in the final assessment. If, however, changes made in the rate of tax payable during the year were held applicable to those assessees who had opted for the previous year turnover basis, necessary adjustments could not be made in their assessment for lack of specific machinery to achieve the same. From this 206 he argued that the scheme of the Act was that in the case of the previous year turnover assessees, to use a convenient phrase, the tax liability had to be determined on the state of the law as it prevailed on the 1st day of the assessment year and that it got fixed and crystallised on that date and remained unaffected by any changes in the law effected during the course of the assessment year. In view of these additional submissions, we consider that it would be convenient to examine the entire argument of learned Counsel for the respondent under three heads into which they naturally fall: (1) Does the Act, read in conjunction with the Rules framed to give effect to its provisions, contemplate any difference being drawn between the basis of the tax liability (as distinct from the quantum of the turnover) of those assessees who have opted for the previous year turnover and " the assessment year turnover " assessees. (2) Is there any sound basis for the contention that the tax liability of the "previous year turnover" assessees gets crystallised on the 1st of April of the assessment year, with the result that such assessees are unaffected by any changes of the law which operate from beyond that date. (3) If the above two questions are answered in the affirmative the construction of the notification dated June 8, 1948, would not fall for consideration, for even if on its language it can apply to the turnover of a period anterior to its issue, the notification cannot be given such effect since the same would be against the basic scheme of the Act. If, however, the answer to the above two questions were in the negative, a further point would arise as to whether on the terms of the notification now under consideration the same could on its language apply so as to affect the tax liability of the " previous year turnover assessees. We shall now proceed to examine these submissions. On the scheme of U. P. Sales tax Act, as of every other sales tax legislation in the other Indian States, the total tax liability of an assessee is the resultant 207 product of two factors: (1) the total of the proceeds of sales effected during a given period, universally a year, from which are deducted the turnover of the sales of commodities which are exempt from tax; for instance under section 4 of the Act whose provisions will be referred to later; (2) multiplied by the rate of tax applicable either to the entire turnover or where ' different rates are prescribed on sales of different articles, such rates in respect of such turnover. The best way to appreciate the scheme underlying the Act would be to ascertain the position at the time the Act was enacted. It received the assent of the Governor and was published in the Gazette on June 5, 1948. Section 1(2) of the Act further enacted that " It shall be deemed to have come into force on April 1, 1948 ". Except to that limited extent, the Act is prospective. The tax is on the " turnover ", i.e., on the total of the sales proceeds of taxable sales and therefore unless there were a taxable sale, its proceeds would not enter the pool which goes by the name of " turnover ". As the Act is not retrospective, the taxable turnover would normally be the total of the sales effected after the enactment became operative, i. e., from and after April 1, 1948, but for the sake of convenience of assessment, it enacts by section 7(1), we have extracted earlier, a provision providing an option to dealers who have been in business in the year previous to the taxing enactment, to be assessed either on the turnover of the previous year, when owing to the absence of the Act their sales were not subject to tax or on the turnover of the current year. But whichever be the turnover adopted, the rate of tax or the determination of the particular sale proceeds whose total constitutes the taxable turnover, i.e., after the exclusion of the sale proceeds of the commodities listed in section 4, does not vary. In other words, though the figure of turnover might vary between those who have opted for the one or the other mode of assessment due to the volume of the sales, no difference is maintained in the Act as regards the incidence of the tax, i.e., either in the principle underlying the computation of the total turnover or in 208 the rate or rates applicable to the sales of particular goods or on the total turnover. This can only be on the premise or implicit assumption that the sales of the previous year are treated by the Act for the purpose of computing tax liability as the sales of the current year a projection forward in point of time. In other words, the entire basis underlying the charging provision section 3(1) read with the option provided by section 7(1) is that the sales of the previous year are fictionally treated as the sales of the current year for the purpose of the computation of the tax liability. It has to be remembered that in cases like the present, during the time when the sales were effected, the Act was not in operation and hence the sales were not taxable. But for the purpose of the imposition of the tax liability, it is assumed that the sales are taxable and the goods whose sales become taxable are determined on the basis of the provisions of the Act. Thus, if in the current year commodities A, B and C are exempt from tax, they are not to be included in the turnover of the dealer in respect of the previous year in the case of those who have opted for the " previous year turnover " under section 7(1), and the turnover thus computed is charged at the same rate of tax applicable to transactions of the current year. So far, therefore, as the express provisions of the Act go, no difference is made between the basis of the tax liability of the " previous year turnover " and the " assessment year turnover " assessees; and though by reason of the terms of section 7(1) the quantum of the turnover varies no other variation in the law applicable to the two types of assessees is contemplated. We must therefore start from the premise that the Act does not contemplate any difference in the incidence of the tax and the quantum of tax liability flowing from the choice of either the " previous year " or the " assessment year " as the basis of the determination of the turnover. We should add that learned Counsel for the respondent has not been able to point out any provision in the Act or in the Rules pointing to any such differentiation. It was, however, submitted that though the statute 209 might not say so in express terms, still by reason of the provisions of the Act and the Rules under, which the " previous year turnover " assessee had to ' or could submit his return within sixty days from the commencement of the assessment year and have his assessment completed immediately thereafter as compared to the " assessment year assessee " whose assessment was completed after the end of the year, coupled with the absence of any machinery for re assessment or refunds in the event of any change in the law effected after the commencement of the financial year, it had necessarily to be held that the liability of the " previous year turnover " assessee got crystallised as on the 1st of April of the assessment year and that the Act did not contemplate this being disturbed by any subsequent changes in the substantive law relating to assessment during the assessment year. It was said that the tax liability of the dealer who had opted for the " previous year " basis had to be determined on foot of two factors and only two: (1) the turnover of the sales of the previous year which is a definite and known figure by the 31st of March of the previous year and (2) the rate of tax on the turnover as it prevailed on the 1st of April of the assessment year when it was said that there was a "crystallisation" of the liability to tax. It was pointed out that it was possible for an assessee to submit his return on the basis of the " previous year turnover " even on the 1st of April of the assessment year and there being no legal impediment in the way of the figures returned by the dealer being accepted the assessment might conceivably be completed and the tax due demanded and even paid on the 1st of April, it sell If this were done, it was urged, there being no machinery for reassessment or refunds such completed assessment would become final for the year and could not be disturbed thereafter. If this were possible or were actually done in the case of one dealer who had so opted, it was urged that it would obviously be anomalous if another dealer who happened to submit his return later and whose assessment was in 27 210 consequence delayed, should be subjected to a different law or a different rate of levy. In our opinion, this argument breaks on critical examination. Learned Counsel for the respondent, to start with, asserted that the crystallisation of the tax liability as on the 1st of April of the assessment year was with reference to the law as it factually was on that date and that changes made subsequently even if with retrospective effect to date from the commencement of the year, would not affect that liability. This was obviously an untenable contention because if the later enactment or rule was retrospective it must be deemed in the eye of the law to have been in existence and in operation on the earlier date. Though learned Counsel withdrew this extreme argument, still the concession that changes effected with retrospective effect to date from the commencement of the assessment year would apply to determine the tax liability even of the " previous year turnover " assessee serves to emphasize that little importance could be attached to the two bases on which " the crystallisation " argument was rested, viz. : (1) the obligation or freedom of the previous year turnover assessee to submit his return and have his assessment completed within sixty days of the commencement of the assessment year and (2) the absence of a specific provision for reassessment and refund. Under the proviso (1) to section 3 which reads: " the Provincial Government may, by notification in the official Gazette, reduce the rate of tax on the turnover of any dealer or class of dealers or on the turnover in respect of any goods or class of goods." the State Government could reduce the rate of tax on the turnover of dealers from the standard rate of 3 pies in the rupee under the main part of section 3. It is also not denied that there is nothing in the terms of the proviso to confine the power to effect reductions only prospectively as distinguished from reductions having retrospective effect. If a reduction were effected say in January or February of the year, having effect as and from the 1st April preceding, on the very argument advanced, Counsel for the respondent would 211 have to concede, that the reduced rate would govern the liability of even those dealers who were assessed on the basis of their turnover of the previous year. Let us first take a case where such a reduction in the rate is notified to be effective before an assessee submits his return. In such a case, the benefit in the reduction of the rate could not be withheld from the previous year turnover dealers even on the theory of " crystallisation " just now referred to. Let us next take the case of a dealer who has submitted his return of the turnover of the previous year on a date anterior to the notification regarding the alteration of the rate. It might be mentioned that in the return submitted by dealers which has to be in Form IV of Appendix F to the rules, only the total of the sale proceeds of the sales of the classified items of goods have to beset out, but the return does not concern itself with the rate of the tax levied. This latter is a matter with which the assessing authority is concerned when determining the amount of tax payable. If the rates are altered subsequent to the submission of the return but before the assessment is completed, on the terms of the charging section which draws no distinction in the incidence of the tax as between the " previous year turnover " group and the " assessment year turnover " dealers, the Sales Tax Officer would have to afford every assessee, whatever be the basis of this turnover the benefit of the tax reduction. The position reached therefore is that if the change in the rate (we have assumed it to be by way of reduction, but the argument would equally apply to variation in any kind), were effected before the actual assessment, it should be given effect to in the case of every assessee for not merely is there no procedural complication in the shape of a need for refund but it would be in accordance with the, law and in fact one might go further and say that any other mode of proceeding would not be countenanced by the Act, because the statute homologises the basis of the tax whether the turnover is computed on the previous year 's or the current year 's sales. Next in regard to cases where the change in the law 212 is effected after the completion of the assessment we consider that the submission regarding the absence of machinery for reassessment and refund is not well founded. It is true that there are no provisions specially so designated to meet this contingency here referred to, but that is not the same thing as saying that there is a complete absence of machinery. In the first place, section 22 of the Act empowers authorities including the assessing officer to rectify any mistake apparent on the face of the record and by such rectification even to enhance the tax liability. If on the premises assumed, the variation in the rate of tax would on a proper construction of the Act be applicable to the turnover of the dealer who has opted for the " previous year rule " but the assessment order does not give effect to it, it would certainly be a case of an error apparent on the face of the record, which would bring the case within the power of rectification. On the analogy of the cases under section 35 of the Income Tax Act, 1922, the assessment officer could order rectification in such cases. Even apart from this, under a. 10(2) of the Act the dealer or the department as the case may be may apply to the Revising authority for revision of the assessment on the ground that the same is not legal, proper or regular. This section enacts: " The Revising Authority may in its discretion at any time suo motu or on being moved by the Commissioner of Sales Tax or on the application of any person aggrieved, call for and examine the record of any order or proceedings recorded by any appellate or assessing authority under this Act for the purpose of satisfying itself as to the legality or propriety, of such order or as to the regularity of such proceedings and may pass such order as he thinks fit." The orders which the Revising Authority could pass might either be by way of enhancement or reduction, and the subsequent sub sections provide: . "10 (4). The Revising Authority shall not pass any order under sub section (3) adversely affecting any person unless an opportunity has been given to such person to be heard. 213 (5) If the amount of assessment is reduced by the Revising Authority under sub section (3) it shall order the excess amount of tax if already realised to be refunded. " It is, therefore, not correct to say that there is no machinery for rectifying errors and for making consequential orders for payment of further tax, or for directing refunds, and this argument cannot therefore justify the construction contended for by the respondent. In the entire discussion up to now we have proceeded on the assumption that the turnover of " the previous year " of the dealer was a fixed quantity which was finally determined once and for ever on the 31st March of that year and that the problem was merely to find the rate of tax to be applied to this predetermined factor. It will be seen from an examination of the Act that even the factor of the turnover is subject to variation. For instance, the first part of section 4 enacts: " The provisions of section 3 of this Act shall not apply to (1) the sale of water, salt, foodgrains, milk, gur, electrical energy for industrial purposes, books, magazines, newspapers and motor spirit as defined in the United Provinces Sales of Motor Spirit Act, 1939, and any other goods which the Provincial Government may, by a notification in the official Gazette exempt from time to time. " Under this power besides the specified goods, the State Government might from time to time exempt other goods from among those whose sale proceeds have to be included in the turnover. If an exemption of that type were granted say in 1948 49, it cannot be contended that the turnover of the dealer who had opted for the " previous year " has to include these sales in the return which he submits in Form IV, If by the date of the submission of the return, the exemption has been notified, and has effect for the entire year of course he need not include these sale proceeds in his return. The computation, therefore, of the quantum of turnover of the previous year on which tax has to be levied is one which is subject to the law 214 in relation to it in the assessment year, and any change in that law presents the same problems, as the variation in the rate of tax. Up to now the discussion has proceeded on the basis that a change in the law made in the assessment year whether as regards the computation of the turnover or as to the rate of levy, is effective throughout that year, i.e., from the 1st April to the 31st March, and it is found that the fact that the returns of the previous year turnover dealers are required to or are submitted within the early part of the year, or the contention based on the absence of specific machinery for reassessment or refund are an insufficient basis for holding that a change in the law affecting the basis of tax liability would not affect the previous year turnover assessees and that the machinery provided by sections 10 and 22 are adequate to meet the contingencies arising out of the changes being retrospectively effected after the assessments were completed. We shall next proceed to consider whether the change in the law either as regards the computation of the taxable turnover or as regards the rate of tax becoming operative sometime after the year has commenced makes any difference. In the case of the "assessment year turnover " dealers, there is no problem because the sales effected during the course of the year would be governed by the law applicable from time to time. The entire basis or theory of the tax being levied on foot of the previous year 's turnover is that notwithstanding that factually the sales took place in the previous year they are to be deemed by fiction to have taken place in the year of assessment. If that theory be discarded there could be no legal foundation for the tax being levied by the Act even as originally enacted on a sale which factually took place before it was operative. The only question therefore is the precise scope of that fiction and its logical implication. If the sale in the previous year is treated by the Act as a sale in the present year, then no principle is contravened, if it were held that sales during a portion of the previous year are held to be sales during a corresponding portion of the current 215 year. If we reject the argument that it is only the law as prevailed on the 1st April of a year that forms,, the basis for the computation of the turnover and for the ascertainment of the tax liability as not flowing from the provisions of the Act, and indeed as contrary to the very scheme underlying the enactment, the changes in the law effected during the course of the assessment year must operate even in respect of the turnover of the previous year, which are deemed to be the turnover of the assessment year. It now remains to deal with the question as to whether the language employed in the notification by which only sales effected after a date specified in the assessment year are to be governed by the new levy, precludes the application of the notified change to those dealers whose sales were actually effected in the previous year, but who had opted for the " previous year turnover " basis of assessment. The argument of learned Counsel, which found favour with the learned Judges of the High Court was briefly this. The notification expressly states that only sales effected from and after June 9, 1948, were to be charged with the new rates. In terms therefore, the change in the law is wholly prospective. If so, one cannot by any line of reasoning reach the conclusion that the new rates of levy applied to sales, as by the present respondent, more than a year earlier. So stated the reasoning appears impressive and it is true that a taxing enactment cannot be construed as levying a charge unless the words clearly do so. But the words have always to be understood and more than that applied with reference to the underlying basis of the scheme of taxation. So applied, it does not appear to us to support the contention of the respondent. The change in the rate of tax, was no doubt prospective. The phraseology employed merely means that in the case of the " assessment year turnover " dealers only the sale proceeds of sales effected after the specified date would be governed by the new rates. In the case of the " previous year turnover " dealers, the change operates to determine the amount of tax during their assessment year just in the same manner as 216 the original charge under the Act, of a flat rate of three pies determined the tax payable notwithstanding that none of the sales whose proceeds were included in their turnover were effected during the assessment year. We have already pointed out that the basic idea underlying the provision contained in section 7(1) of the Act 'is that it projects the turnover of the previous year into the assessment year. Admittedly the Act itself is not retrospective, or designed to levy the charge under section 3(1), on sales effected before April 1, 1948. If sales of the previous year are brought within the taxing provision, it is not because the sales when they took place were subject to tax, but because either (a) the previous year 's sales are deemed in law when the assessee so opts as the sales of the current year or (b) the previous year 's turnover being opted, the provisions of the charging sections operate on that turnover. Whichever of these be the more accurate method of expressing the result, the fact is that there is no element of retrospectivity at all involved in the application of the tax law which prevails in the year of assessment to the turnover of the previous year when due to the choice of the assessee of being assessed under section 7(1), the previous years ' turnover basis is rendered applicable. Possibly the matter may be tested in this manner. Section 3(1) of the Act the charging section imposes in effect a tax of three pies per rupee on all sales effected after the commencement of the Act, i.e., after April 1, 1948. pose that section itself, had by a proviso imposed a tax @ six pies per rupee on all sales of edible oil effected on and after June 9, 1948. Could it then be open to argument, that in respect of the previous year 's sales, only a three pies tax was payable and that the result of the charging provision could be ignored. If, therefore, we are right so far, the respondent derives no advantage from the notification specifying the dates of sales effected from and after which they would be subject to the varied rate. The notification had necessarily to be worded as it was, in order to fulfil its primary purpose of effecting a change in the rate during the assessment year. The date 217 mentioned in the notification as the date from and after which sales would be charged at the new rates would therefore not militate against the new rates being applied to the turnover of the previous year, since the turnover of the previous year has to be assessed on the rates prevailing in the assessment year. The next question is how on the terms of the notification which came into operation after the commencement of the assessment year and during the course of it, the proportion of the turnover on the basis of which the tax liability of a previous year 's turnover dealer could be computed. Learned Counsel for the respondent urged that no intelligible basis could be suggested for distinguishing the two periods in the previous year when the original rates and the altered notified rates would operate. Learned Counsel urged that it would be impossible to distinguish these two periods either on any theory of retrospectivity of the notification or on any theory regarding the sales of the previous year being attributed to the corresponding dates of the current year. There is no doubt that this mode of computing the proportion, viz., to treat the sales which were effected on various dates of the previous year, as if they were sales on the corresponding dates of the current year and thus to compute the two totals of turnover which would be subject to different rates of duty would not be proper. The impropriety would arise from the fact that the fiction enacted by section 7(1) is not that each day 's sale in the previous year is deemed to be a sale on the corresponding date in the current year, but only that the total taxable turnover of the previous year is deemed to be that of the current year. The method to which objection is taken is however not the manner in which the Sales tax Officer computed the proportion which was affirmed by the Judge (Revision). If the total of the sale proceeds of the previous year is deemed to be the total of the current year, there is no illogicality or impropriety in dividing that total in accordance with the number of days in the year in which the different rates prevailed and that is precisely what the Sales tax Officer did. 28 218 If as we hold both the computation of the turnover of the previous year, as well as the incidence of the tax leviable on it, are to be determined not merely by the law as it stood on the first day of the assessment year, but by the law applicable to assessments during the entire assessment year, the method by which the tax liability of the respondent was computed by the Sales tax Officer is not open to any objection. In connection with the interpretation of the notification a minor point was suggested to which brief reference might be made. It was submitted that as the notification in effect levied a tax, if it was ambiguous, it should be resolved in favour of the subject the tax payer. We see no ambiguity in the notification to justify an appeal to this rule. Besides the notification in effect frees dealers other than importers and manufacturers of all tax liability in respect of the sale turnover of oil, though in the case of two specified classes of dealers. a single point tax at an enhanced rate is levied. In such a situation, the rule of construction invoked could hardly be applied, even if the condition as to ambiguity were present. We, therefore, hold that the assessment to sales tax of the respondent company by applying to its turnover of the year 1947 48, the rate of tax specified in the notification of June 8, 1948, as determined by the Sales tax Officer was in accordance with the law. We would accordingly allow the appeal, set aside the decree of the High Court and restore the assessment order of the Sales tax Officer with costs here and in the High Court. BY COURT. In accordance with the opinion of the majority, the appeal is dismissed with costs.

In respect of a decree passed against T, who was the owner of certain watan properties, a building standing on watan land comprised in the said properties, was sought to be attached and sold in execution of the decree. The appellant, who was the legal representative of T, claimed that the building:was not liable for attachment and sale because (1) the building, being part of watan property within the meaning of section 4 of the Bombay Hereditary Offices Act, 1874, was not saleable property under sub section (1) of section 60 of the Code of Civil Procedure, 1908, and (2) in any case, he was an agriculturist and the building belonging to and occupied by him was protected from attachment and sale by cl. (c) of the proviso to sub section (i) of section 60 of the Code. The facts showed that the building was not in existence when the watan was first created but had been built subsequently by one of the watandars and there was no indication on the record that the building was constructed for the purpose of providing remuneration for the performance of the duty appertaining to a hereditary office. The evidence also showed that the appellant was not entirely dependent for his livelihood upon the income from the home farm, that he had substantial income from other lands and that there was nothing to show that this income derived from his other lands was the result of cultivation by him. Held, that the building in question was not an accession to the land so as to partake of the character of the land on which it was constructed and did not come within the definition of watan property in section 4 of ' the Bombay Hereditary Offices Act, 1874. Held, further (per jafer Imam and Raghubar Dayal, jj. Sarkar, J., dissenting), that the word " agriculturist " in cl. (c) of the proviso to sub section (1) of section 60 of the Code of Civil Procedure, 1908, must carry the same meaning as the word in cl. (b) and that in order that a person might come within the meaning of the word in those clauses it must be shown that, he was really dependent for his living on tilling the soil and was unable to 164 maintain himself otherwise, though it was not necessary that he must till the land with his own hands. That on the facts the appellant was not an agriculturist within the meaning of the word in section 60 of the Code. Case law reviewed. Per Sarkar, J. (1) On the plain meaning of the word agriculturist " in cls. (b) and (c) of the proviso to sub section (1) of section 60 of the Code an agriculturist is any person who occupies himself with agriculture. There is nothing in cl. (c) to indicate that the agriculturist there mentioned must be one who depends for his living on agriculture. A person occupying himself with agriculture would be an agriculturist though he did not cultivate with his own hands and carried on, agriculture in a very large scale. He would still be an agriculturist even if he had other means of livelihood besides agriculture. (2) Under cl. (c) in order that houses and buildings belonging to an agriculturist might be protected from attachment and sale they must be occupied by him for the purpose of agriculture.

minal Appeal No. 191 of 1967. Appeal by special leave from the judgment and order dated March 14, 1967 of the Rajasthan High Court in Criminal Appeal No. 720 of 1965. B. D. Sharma, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Sikri, J. Hari Ram, respondent, filed a complaint against Lala Ram, appellant, alleging that Lala Ram had attacked him 899 with a Kassi on June 10, 1964, at about 6 p.m. Poonaram, who was standing there prevented the blow from falling on Hari Ram by receiving it on his hand. The respondent, however, made a second attack and inflicted an injury on the left shoulder of Hari Ram. Hari Ram and Poonaram got themselves examined by the Civil Assistant Surgeon of the city and the injury report was submitted alongwith the complaint. The learned Magistrate acquitted the accused. Hari Ram filed an application under section 417(3) of the Criminal Procedure Code for leave to appeal against the order of the Magistrate. Leave was granted by the High Court, and thereupon Hari Ram filed the appeal. The High Court accepted the appeal and convicted the appellant, Lala Ram, under section 324, I.P.C., and sentenced him to four months ' rigorous imprisonment. The attention of the High Court was not drawn to the Proba tion of Offenders Act, 1958, during the hearing of the a peal but subsequent to the delivery of the judgment an application was filed under section 561 A, Cr. P.C., read with sections 3, 4 and 6 of the Probation of Offenders Act. It was alleged in the application that the appellant was 20 years old and the High Court should have given him the benefit of the Probation of the Offenders Act. The High Court did not accede to this application. The appellant having obtained special leave from this Court, the appeal is now before us. The main contention of law which arises before us is whether the appeal to the High Court was filed within limitation. The application for leave to appeal to the High Court under section 417 (3) against the order of acquittal of the Magistrate, dated August 31, 1965, was filed on November 1, 1965. It was claimed by the applicant that two days were necessary for obtaining the certified copy of the order of the Magistrate and the applicant was entitled to deduct these two days taken for obtaining the certified copy of the order of the Magistrate. There is no doubt that the application would be in time, if these two days are deducted. But the learned counsel for the appellant contends that section 12(2) of the Indian Limitation Act is not attracted to applications under section 417(3), Cr. P.C. Section 417(3) and (4) read as follows "417. (1) Subject to the provisions of sub section (5), the, State Government may, in any ease, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a, High Court. (3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on L5SupCI/70 12 900 an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (4) No application under sub section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. It is contended that the period of 60 days mentioned in s.417(4) is not a period of limitation within the meaning of s.12(2) of the Limitation Act. Section 12(2) of the Limitation Act reads as follows : "12(2) In computing the period of limitation for an ,appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the, time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. " The learned counsel says that what s.417(4) provides is a prohibition and it bars the jurisdiction of the High Court to deal with the application if a period of 60 days has expired from the date of the order of acquittal. In our opinion there is no force in these contentions. In Kaushalya Rani vs Gopal Singh(1) this Court, while dealing with the question whether s.5 of the Limitation Act applies to applications under s.417(3) described this period of 60 days ment ioned in s.417(3) as follows: "In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications. " This Court further observed "Once it is held that the special rule of limitation laid down in sub section (4) of section 417 of the Co de is a especial law ' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the con clusion that s.5 of the Limitation Act is wholly out of the way, in view of s.29 (2) (b) of the Limitation Act." (1) ; 987. 901 This Court approved the judgment of the Full Bench of the Bombay High Court in Anjanabai vs Yashwantrao Dauletrao Dudhe(l). The Full Bench of the Bombay High Court had observed in Anjanabai 's case "Sub section (4) prescribes a period of limitation for such an application. It states that no such application shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal. This period of limitation is prescribed not for all appeals under the Criminal Procedure Code, or even for all appeals from the orders of acquittal. It is prescribed only for applications for special leave to appeal from orders of acquittal. It is therefore a special provision for a special subject and is consequently a special law within the meaning of s.29(2) of the Limitation Act. " It is quite clear that the Full Bench of the Bombay High Court and this Court proceeded on the assumption that s.417(4) of the Criminal Procedure Code prescribes a period of limitation. The learned counsel, however, contends that there was no discussion of this aspect. Be that as it may, it seems to us that s.417 (4) itself prescribes a period of limitation for an application to be made under s.417(3). It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under s.417(3), Cr. P.C.; it was open to it to prescribe a period of limitation in the Code itself. The learned counsel also suggests that the word "entertain" which occurs in s.417 (4) means "to deal with or hear" and in this connection he relies on the judgment of this Court in Lakshmi Rattan Engineering Works vs Asstt. Commissioner Sales Tax (2). It seems to us that in this context "entertain" means "file or received by the Court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within 60 days of the order of acquittal. In the result we hold that the application under s.417(3) to the High Court was within time. The learned counsel then contends that the High Court should not have interfered with the order of acquittal passed by the Magistrate. He has taken us through the evidence of Poonaram who was injured and the statement of P.W. 3, Ananda, who was present and who seems to be an independent witness. We agree (1) I.L.R. [1961]Bom.135, '137. (2) ; 902 with the High Court that the Magistrate was not entitled to reject the evidence of the eye witnessess. No reason has been shown to us why we should interfere with the finding of fact arrived at by the High Court. The learned counsel further contends that no offence was committed because the accused had a right of private defence of property. Assuming that he had a right of private defence of property he had ample opportunity of having recourse to the authorities and there was no need for the appellant to have taken the law into his own hands. The only question that remains now is the question whether the benefit of s.6 of the Probation of Offenders Act should be extended to the appellant. In spite of opportunity being given no good proof has been furnished to establish that the appellant was at the relevant time under the age of 21 years. For the aforesaid reasons the appeal fails and is dismissed. R.K.P.S. Appeal dismissed.

An application for leave to appeal to the High Court under section 417(3) Code of Criminal Procedure against an order of acquittal by a Magistrate dated August 31, 1965 was filed on November 1, 1965. It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate. The application would be in time if these two days were deducted. The High Court accepted the appeal and convicted the appellant. In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in section 417(4) was not a period of limitation within the meaning of section 12 of the Limitation Act and that the sub section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal. HELD : The application under section 417(3) to the High Court was within time. Section 417(4) itself prescribes a period of limitation; it was open to the legislature to prescribe a period of limitation in the code itself. In the context of section 417(4) the word "entertain" means "file or receive by the court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within sixty days of the order of acquittal. [901 D F] Kaushalya Rani vs Gopal Singh, , 987, Anjanabai vs Yeshwantrao Daplatrao Dudhe, I.L.R. (1961) Bom. 135, 137 and Lakshmi Rattan Engineering Works vs Asstt. Commissioner Sales Tax; , , referred to.

Civil Appeal Nos. 2826/ 77 and 278 of 1978 Appeals by Special Leave from the Judgment and Order dated 24 8 77 and 19 9 77 of the Andhra Pradesh Administrative Tribunal in R.P. Nos. 203/76 and 319/76 respectively. L. N. Sinha, G. Narayana Rao and P. P. Singh for the Appellants in both appeals. Vepa Parthasarathy and A . Subba Rao for Respondent No. 1 in both the appeals. P. Ramachandra Reddy, Adv. A.P., T. I '. section Narasimhachari, G. Narayana Rao (In C.A.2826/77) and Mrs. Urmila Sirur for R. R. 2 and 4 in C.A. No. 2836/77 and R. 2 in C.A. 278/78. The Court delivered the following order Respondent 1, Shri V. V. section Krishna Murthy, may if so advised file a writ petition in the High Court of Andhra Pradesh for challenging the order of his compulsory retirement passed by the Governor of Andhra Pradesh on September 29, 1975. If he files the writ petition within three weeks from today, the High Court of Andhra Pradesh and the State of Andhra Pradesh, whom respondent 1 proposes to implead to his writ petition, shall file their counter affidavit, if so advised, within three weeks after the filing of the writ petition. If respondent I desires to file a rejoinder he shall do so within a week after the filing of the counter affidavit. The High Court shall take up the writ petition for hearing within six weeks after the filing of the counter affidavit. 30 The learned counsel who appeared before us for the High Court as also the. learned counsel who appeared before us for the State of Andhra Pradesh agree that the High Court and the State Government will not raise any objection to the maintainability of the writ petition which respondent 1 desires to file for challenging the order of compulsory retirement" either on the ground of laches or of delay or on any other technical ground. All the contesting parties before us are agreed that the writ petition to be filed by respondent 1, as aforesaid, may be disposed of by the High Court on merits The Government of Andhra Pradesh shall comply with the. Order passed by this Court on March 22, 1978 within four weeks from to day. We quash the order of the Andhra Pradesh Administrative Tribunal dated September 19, 1977 in R.P. No. 319 of 1976. We will give our reasons in support of that conclusion later. The common Judgment in C.A. 2826/77 and C.A. 278/78 (C.A.V.) of the Court was delivered by SARKARIA, J. This judgment will not only dispose of this Appeal (C.A. 2826 of 1977) but also furnish reasons in support of our short order dated August 4, 1978, by which we allowed Civil Appeal No.278 of 1978. Both these Appeals raise a common question with regard to the interpretation, scope and impact of Article 371 D on Articles 226, 229 and 235 of the Constitution. In Civil Appeal 2826 of 1977, appellant 1 is the Chief Justice and appellant 2 is the High Court of Andhra Pradesh represented by the Registrar of that Court. Respondent 1, Shri L. V. A. Dikshitulu is a former employee of the High Court whose premature retirement is in question. Respondents 2 and 3 are the Government? and the Accountant General, respectively of Andhra Pradesh. Respondent 1 was a permanent employee of the former Hyderabad High Court prior to November 1, 1956. He was confirmed in the post of Chief Superintendent on the establishment of that High Court on October 6, 1956. At the time of his confirmation, he was serving on deputation, with the concurrence of the Chief Justice of the Hyderabad High Court, as Junior Law officer in the Ministry of Law, Government of India. In March 1965, with the concurrence of the Chief Justice of the High Court of Andhra Pradesh which was the 31 successor High Court to the Hyderabad High Court he was appointed as a temporary Deputy Secretary in the Law Department of the Government of Andhra Pradesh. By an order dated February 6, 1968, the State Government replaced his services at the disposal of the Chief Justice. On his reversion from deputation, he rejoined the establishment of the High Court as Sub Assistant Registrar on February 8, 1968. On that very day, the High Court received a complaint petition from one Smt. Promila Reddy, an Assistant Translator in the State Law Department, alleging misconduct on the part of the 1st Respondent relating to the period during which he was working as Deputy Secretary in the State Government. A preliminary inquiry was conducted by the then Registrar, Shri section Ramachandra Raju (later Judge of High Court of Andhra Pradesh), respondent 4 herein. The Registrar submitted his preliminary inquiry report to the then Chief Justice. After considering the report, the then Chief Justice suspended the 1st respondent and ordered a departmental inquiry against him by Mr. Justice Chinappa Reddy. After due inquiry the enquiring Judge found the 1st respondent guilty of misconduct and recommended his suspension from service for three years. The Chief Justice, however, differed with the enquiring Judge regarding the punishment, and proposed to impose the punishment of compulsory retirement after issue of a show cause notice to that effect. After considering the representations made by the 1st respondent, the Chief Justice by an order, dated January 3, 1969, compulsorily retired him from service. The 1st respondent then moved the High Court under Article 226 of the Constitution by a writ petition (No. 1425 of 1969) questioning the order of the State Government replacing his services with the High Court and assailing the penalty of compulsory retirement inflicted upon him by the Chief Justice. The High Court set aside the order of reversion of the first respondent from deputation to the High Court staff, on the ground that there was a stigma attached thereto. It also set aside the order of compulsory retirement, not on merits, but on the ground that the recommendation of the enquiring Judge in regard to punishment, viz. stoppage of increments, was not communicated to him (1st respondent). The High Court while allowing the writ petition observed that it will be open to the State Government to take action against him in accordance with the Andhra Pradesh Civil Services (C.C.A.) Rules pertaining to lent officers. 32 After the first respondent 's writ petition (No. 1425 of 1969) was allowed, the State Government by an order, dated November 10, ]970, reinstated the I st respondent as Deputy Secretary with effect from February 8, 1968, and once again replaced his services at the disposal of the Chief Justice with effect from April 25, 1968. The State Government did not take further departmental action on the complaint of Smt. Promila Reddy. The 1st respondent then filed another writ petition (No. 5442 of 1970) under Article 226 of the Constitution in the High Court, impugning the order, dated November 10, 1970, of the State Government. But, the High Court dismissed the same by a judgment, dated December 30, 1 970. The first respondent 's appeals (C.A. 476 and C.A. 1536 of 1971) against the orders of the High Court in the afore said writ petitions are pending in this Court. After the dismissal of his writ petition (No. 5442/70), the first respondent, on reinstatement, joined duty as Sub Assistant Registrar in the High Court. Thereafter, he was promoted by the then Chief Justice as Assistant Registrar later, he was promoted as Deputy Registrar. In 1975. A. P. Government Servants Premature Retirement Rules, 1975 came into force. Under the Rules, which amended Andhra Pradesh Liberalised Pension Rules, 1961 and the Hyderabad Civil Service Rules, employees of the State who have completed 25 years of service or completed 50 years age can be prematurely retired after 3 month 's notice or grant of 3 month 's pay in lieu of notice. Rule 19 of the Andhra Pradesh High Court Service Rules contains a similar provision. Thereafter on September 19, 1975, a Committee was constituted under an order of the Chief Justice. It consisted of the Acting Chief Justice and two Judges (Madhava Reddy and Ramachandra Raju, JJ.) of the High Court. The Committee reviewed the service records of the servants and officers of the High Court who had reached the age of 50 years. The 1st respondent, Sri Dikshitulu had attained the age of 50 years on March 12, 1974. The Committee resolved to retire him prematurely, among others, in public interest. By an order, dated September 26, 1975, of the Acting Chief Justice, purporting to have been passed under Article 229 of the Constitution read with Rule 39 of the Andhra Pradesh High Court Service Rules, Rule 3(2)(a) of Andhra Pradesh Liberalised Pension Rules 1961/Rule 292 of the Hyderabad Civil Service Rules and Rule 2(1) of A. P. Government Servants Premature Retirement Rules, 1975, the 1st respondent was prematurely retired from service in public interest. On April 8, 1976, 33 he filed a Review Petition. The then Chief Justice rejected his Review Petition. The rejection was communicated to him by a letter, dated September 13, 1976. The first respondent, again, moved the High Court on the Judicial Side by a writ petition (No. 58908 of 1976) under Article 226 of the Constitution, praying for a writ of certiorari to quash the orders of his pre nature retirement. This writ petition came up for preliminary hearing before a Division Bench of the High Court, which by a lengthy speaking order (after hearing the Government pleader), on October 29, 1976, dismissed it on the preliminary ground that it was not maintainable because "the jurisdiction of the High Court which was hitherto being exercised under Article 226 of the Constitution to correct orders of the Chief Justice on the administrative side with regard to conditions of service of officers of the High Court now stands vested in the Administrative Tribunal by reason of clause 6(1) of the Administrative tribunal order (made by President) and Article 371 D of the Constitution. " The first respondent then on November 16, 1976, moved the Andhra Pradesh Administrative Tribunal, impugning the order of his compulsory retirement. In that petition, the first respondent inter alia contended that Mr. Justice M. Ramachandra Raju, who sat in the Committee to consider the case of the 1st respondent for premature retirement, was biased against him and that the impugned order, dated September 26, 1975, on his premature retirement was arbitrary and capricious. The Tribunal, however, set aside the impugned order of the 1st respondent 's premature retirement made by the Chief Justice on the sole ground that it is arbitrary and amounts to a penalty of dismissal or removal from service and is hit by Article 311 (2) of the Constitution. Against the aforesaid order, dated August 24, 1977, the appellants have now come in appeal before us by special leave under Article 136 of the Constitution. Now, the relevant facts giving rise to Civil Appeal No. 278 of 1978, may be set out. G The 1 st respondent, Shri V. V. section Krishnamurthy, in that appeal was, at the material time, a member of the Andhra Pradesh State Judicial Service. He attained the age of SO years on November 24, 1974. He was prematurely retired, in public interest, by an order dated September 29, 1975 of the State Government on the recommendation of the High Court. Before the Government passed this order, a Committee of Judges appointed by the High Court, considered the entire 34 service record of the 1st respondent and records of other Judicial officers and decided to prematurely retire the first respondent in public interest. The first respondent filed a petition before the Andhra Pradesh Administrative Tribunal, challenging the order of his premature retirement made by the State Government. It was contended by him that his service record has throughout been good. Before the Tribunal the High Court resisted the respondent 's petition on the ground that the order of premature retirement be based upon the over all performance of the respondent and the order had been passed in public interest and was in accordance with the Rules. On behalf of the 1st respondent, a memorandum was filed, in which it was contended that since, according to the Andhra Pradesh State Judicial Service Rules, the High Court in the case of Subordinate Judges is the appointing authority, the Governor has no power or jurisdiction to pass an order of premature retirement of a member of the State Judicial Service. The tribunal accepted this contention and allowed the Respondent 's petition without considering the other contentions raised in the petition, and set aside the order of the respondent 's premature retirement. Against that order of the Tribunal, the High Court of Andhra Pradesh came in appeal (C.A. 278 of 1978) by special leave to this Court under Article 136 of the Constitution. The first contention of Shri Lal Narain Sinha, appearing for the appellants, is that in the context of basic and fundamental principles underlying the Constitution relating to the judiciary including the High Court, officers and servants of the High Court and members of the judicial services are outside the scope of Article 371 D of the Constitution. It is urged that the general expressions indicating class or classes of posts in Article 371 D(3) must be given a restricted interpretation which is in harmony with this basic scheme of the Constitution. The thrust of the argument is that in the absence of clear, unequivocal words in Article 371 D(3) showing a contrary intention, the Article cannot be construed as taking away the jurisdiction of the High Court under Article 226 to review administrative action against a member of the High Court staff or the Subordinate Judiciary. Any other construction, proceeds the argument, will militate against the exclusiveness of the control vested in the Chief Justice under Article 279, and in the High Court under Article 235, over the High Court staff or the Subordinate Judiciary, as the case may be, and will make such control subject and subservient to the wishes of the Executive 35 Government which, in terms of the Presidential order constituting the A Administrative Tribunal, is the ultimate authority to confirm, vary or annul the orders passed by the Tribunal. In support of his contention that the basic scheme of the Constitution seeks to ensure the independence of the High Court staff and the judiciary from executive control, learned counsel has referred to Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court(1); M. Gurumoorthy vs Accountant General Assam & Nagaland & Ors.,(2); State of West Bengal vs Nirpendra Nath Bagchi(3); Baldev Raj Guliani & Ors. vs The Punjab & Haryana High Court & Ors.(4); and State of U.P. vs Batuk Deo Pati Tripathi & Anr.(5). As against the above, Shri Vepa Sarathy, appearing for the respective first respondent in C.A. 2826 of 1977 and in C.A. 278 of 1978 submits that when his client filed a writ petition (No. 58908) of 1976 under Article 226 of the Constitution in the High Court for impugning the order of his compulsory retirement passed by the Chief Justice, he had served, in accordance with Rule 5 of the Andhra Pradesh High Court (original Side) Rules, notice on the Chief Justice and the Government Pleader, and in consequence, at the preliminary hearing of the writ petition before the Division Bench, the Government Pleader appeared on behalf of all the respondents including the Chief Justice and raised a preliminary objection that the writ petition was not maintainable in view of Section 6 of the Andhra Pradesh Administrative Tribunal order made by the President under Article 371 D which had taken away that jurisdiction of the High Court and vested the same in the Administrative Tribunal. This objection was accepted by the High Court, and as a result, the writ petition was dismissed in limine. In these circumstances proceeds the argument the appellant is now precluded on principles of res judicata and estoppel from taking up the position, that the Tribunal 's order is without jurisdiction. But, when Shri Sarathy 's attention was invited to the fact that no notice was actually served on the Chief Justice and that the Government Pleader who had raised this objection, had not been instructed by the Chief Justice or the High Court to put in appearance on their behalf, the counsel did not pursue this contention further. Moreover, this is a pure question of law depending upon the interpretation of Article 371 D. If the argument holds good, it will make the decision of the (1) ; (2) [1971] Supp. S.C.R. 420. (3) ; (4) ; (5) 36 Tribunal as hearing been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case. In the alternative, Shri Sarathy submitted that the subject matter of this case will fall within the purview of `sub clause (c) of Clause (3). Of Article 371 D, because (i) compulsory retirement is a condition of service, and (ii) the 1st respondent was a person appointed to a post in a "civil service of the State" within the contemplation of the said Clause. According to Shri Sarathy, even if an order issued by the President under Clause (3) of article 371 D, abridges, curtails or takes away the powers vested in the Chief Justice under Article 229, or in the High Court under Articles 226 and 235, or is contrary to the constitutional scheme of securing independence of the judiciary, such a result was intended to be brought about by the amendment of the Constitution as is clear from the non obstante provision in Clause (10) of this Article. Shri Sarathy further invited our attention to the definition of the expression "public post" given in the order of the President issued under Article 371 D(3). This definition, according to the learned counsel, is wide enough to include all posts held by the staff of the High Court and the Subordinate Judiciary. To appreciate the contentions canvassed before as, it is necessary, at the outset, to have a look at the constitutional scheme delineated in Chapters V and VI (Part IV), in general, and the content of Article 229 and 235, in particular. Chapter V is captioned: 'The High Courts in the States". It provides for various matters relating to High Courts, such as constitution of High Courts (Article 216). Appointment and Conditions of the office of a Judge (article 217), Salaries of Judges (article 221), Transfer of Judges (article 222), Jurisdiction of existing High Courts and the powers of the Judges thereof in relation to the administration of justice in the Court, including the power to make rules of Court and to regulate the sittings of the Court (article 225). Article 226 gives power to High Court to issue certain Writs against any Government for the enforcement of fundamental rights and for the redress of any substantial injury arising by reason of any substantive or procedural illegality Article 228 confers power on a High Court to withdraw to its own file cases involving a substantial question of law as to the interpretation of the Constitution. Then comes the crucial provision in Article 229, which is the fulcrum of the scheme of this Chapter. Article 229 bears the marginal heading: "officers and Servants and the expenses of High Courts". Clause (1) of the Article provides that "appointments of officers and servants of a High Court shall be made by the Chief 37 Justice of the Court or such other Judge or officer of the Court as he A may direct". Then there is a proviso to this clause with which we are not concerned in the instant case. Clause (2) empowers the Chief Justice or some other Judge or officer authorised by him to make rules prescribing the conditions of service of officers and servants of the High Court. This power, of course, is "subject to the provisions of any law made by the Legislature of the State". Then, there is a proviso to this Clause, also, which requires that the "Rules made by the Chief Justice or the Judge or officer authorised by him under this Clause shall so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. Clause (3) makes the administrative expenses of a High Court, including all C salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, a charge upon the Consolidated Fund of` the State. Now, let us see what is the ambit and scope of the power of "appointment" in Article 229(1). In the context of article 229, read as a whole, this power is of wide amplitude. The word "appointment" in Article 229 ( 1 ) is to be construed according to axiom that the greater includes the less. This cardinal canon of interpretation underlies Section 16 of the General Clauses Act which has been made applicable by Article 317(1) of the Constitution. Construed in the light of this juristic principle, the power of "appointment" conferred by Article 229(1 ) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent indicated in the Provisos. In conferring such exclusive and supreme powers on the Chief Justice the object which the Founding Fathers had in view, was to ensure independence of the High Court. The nature and scope of the powers of the Chief Justice under Article 229 has been the subject of several decisions of this Court. In Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta (supra), two questions among others, came up for consideration: (i) Whether the Chief Justice of a High Court has the power to dismiss from service an officer of the High Court. (ii) If so, whether the Chief Justice could pass an order of such dismissal without previous 38 consultation with the Public Service Commission, as provided by Article 320 of the Constitution. The Court answered both the questions in the affirmative. Dealing with the second question, the Court pointed out that members of the High Court staff are not "persons serving under the Government of a State", and that this phrase used in Article 320(3)(c) "seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Government functioning in the name of the President or of the Governor". It was held that the servants and officers of the High Court do not fall within the scope of this phrase "because in respect of them the administrative control is clearly vested in the Chief Justice. who under the Constitution, has the power of appointment and removal and of making rules for their conditions of service". It was further observed: "The fact that different phrases have been used in the relevant sections of the Government of India Act (1935) and the Constitution relating to the constitutional safeguards in this behalf appears to be meant to emphasise the differentiation of the services of the High Court from other services." ". Therefore, both on the ground that Article 320(3) (c) would be contrary to the implication of Article 229 and on the ground that the language thereof is not applicable to the High Court staff, we are of the opinion that for the dismissal of the appellant by the Chief Justice, prior consultation with the Public Service Commission was not necessary. " It was, however, conceded that for the purposes of Article 311. the phrase "a person who is a member of a civil service of a State" used in that Article includes the officers and servants of the High Court. The powers of Chief Justice under Article 229 again came up for consideration before this Court in M. Gurumoorthy vs Accountant General Assam & Nagaland & Ors. (supra). The Stenographers Service in the High Court was reorganised. Under the reorganisation scheme, one of these posts created with the sanction of the State Government, was to be that of Selection Grade Stenographer. On May 7, 1959, the Chief Justice appointed the appellant as Secretary cum Selection Grade Stenographer after merger of the two posts. The State Government objected that the post of Secretary could not be merged with that of Selection Grade Stenographer. The Accountant General, under the Government 's instructions, withheld the appellant 's pay slips. The appellant moved the High Court by a writ petition, which was dismissed. On appeal, this Court held that the Government 39 had authority to sanction the post, but it could not interfere with the A choice of the incumbent, which undoubtedly was to be of the Chief Justice under Article 229 of the Constitution. In that context, Grover J., speaking for the Court, neatly summed up the position, which being apposite to the point under discussion, may be extracted: "The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. This was essentially to secure and maintain the independence of the High Courts. The anxiety of the constitution makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the court at the same level as the salaries and allowances of the judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (1) read with clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (1). The approval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of India Act, the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court under Section 242(4) read with Section 241 of the Government of India Act, 1935. " In the result, this Court held that any restrictions imposed by the Government, while communicating the sanction of the post, could not bind the Chief Justice in view of Article 229 of the Constitution. We now turn to Chapter IV. It is captioned: "Subordinate Courts". It consists of Articles which provide for matters relating inter alia to appointment and control of persons who man posts in the 40 subordinate judiciary. According to the scheme of this Chapter subordinate judiciary, has been classified into (i) District Judges; and members of the 'Judicial Service '. Article 236 defines the expression "district judge" to include "judge of a city civil court, additional district judge, joint district judge, assistant district judge, Chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge". The Article defines "judicial service" to mean "a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. " Article 233 gives the High Court an effective voice in the appointment of District Judges. Clause ( 1 ) of the Article peremptorily requires that "appointments of persons to be, and the posting and promotion of, district judges" shall be made by the Governor "in consultation with the High Court." Clause (2) of the Article provides for direct appointment of District Judges from advocates or pleaders of not less than seven years standing, who are not already in the service of the State or of the Union. In the matter bf such direct appointments, also, the Governor can act only on the recommendation of the High Court. Consultation with the High Court under Article 233 is not an empty formality. An appointment made in direct or indirect disobedience of this constitutional mandate, would be invalid. (See Chandra Mohan vs State of U.P.(1); Chandramouleshwar vs Patna High Court (2) . 'Service ' which under Clause (1) of Article 233 is the first source of recruitment of District Judges by promotion, means the 'judicial services ' as defined in Article 236. The word 'posting ' as used in Article 233, in the context of 'appointment ' and 'promotion ', means the first assignment of an appointee or promotee to a position in the cadre of District Judges. It cannot be understood in the sense of 'transfer '. [See Ranga Muhammad 's case (3)]. Article 234 enjoins that the rules in accordance with which appointments of persons other than district judges to the judicial service of a State are to be made, shall be framed by the Governor in consultation with the High Court and the Public Service Commission. The expression "judicial service" in this Article, carries the same connotation as. defined in Article 236. (1) (2) ; (3) ; 41 Article 235 is the pivot around which the entire scheme of the Chapter revolves. Under it, "the control over district courts and court subordinate thereto including the posting and promotions of, and the grant of leave to persons belonging to the judicial service of State" is vested in the High Court. The interpretation and scope of Article 235 has been the subject of several decisions of this Court. The position crystallised by these decisions is that the control over the subordinate judiciary vested the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety matters. Among others, it includes: (a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunities of showing cause as required by Article 311(2). (ii) If Article 235, the word 'control ' is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary. The control vested in the High Court, being exclusive, and not dual, an inquiry into the conduct of a member of judiciary can be held by the High Court alone and no other authority. (State of West Bengal vs Nripendra Nath Bagchi (supra); Shamsher Singh vs State of Punjab(1); Punjab and Haryana High Court vs State of Haryana (sub nom Narendra Singh Rao) (2) (iii) Suspension from service of a member of the judiciary, with view to hold a disciplinary inquiry. (b) Transfers, promotions and confirmation of such promotions of persons holding posts in the judicial service, inferior is that of District Judge. (State of Assam vs section N. Sen); (3) State of Assam vs Kuseswar Saikia(4) ) . (c) Transfers of District Judges (State of Assam vs Ranga Muhammad (supra); Chandra Mouleshwar vs Patna High Court (supra) . (1) ; (3) (2) ; (4) 4 520SCI/78 42 (d) Award of Selection grade to the members of the judicial service, including District Judges it being their further promotion after their initial appointment to the cadre. (State of Assam vs Kuseswar Saikia (supra). (e) Confirmation of District Judges, after their initial appointment. or promotion by the Governor to the cadre of District Judges under Article 233, on probation or officiating basis. (Punjab & Haryana High Court vs State of Haryana (supra). (f) Premature or compulsory retirement of Judges of the District Court and of Subordinate Courts (State of U.P. vs Batuk Deo Pati Tripathi & Anr. (supra). Since in both these appeals, orders of the premature retirement of the Respondents, viz. Of Shri Dikshitulu made by the Chief Justice, and of Shri Krishnamoorthy by the Governor in consonance with the decision of the High Court, are in question, it will be appropriate to amplify the point a little. It is well settled that compulsory retirement, simpliciter, in accordance with the terms and conditions of service, does not amount to dismissal or removal or reduction in rank under Article 31 l or under the Service Rules because the Government servant does not lose the terminal benefits already earned by him (See Tara Singh vs State of Rajasthan (1); State of Haryana vs Inder Prakash Anand (2). In the last mentioned case the Government servant was officiating in the cadre of District Judges. The High Court recommended that he should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and, as such, allowed to continue in service till the age of 58 years. Contrary to the recommendation or the High Court, the State Government passed an order under Rule S.32(c) of the Punjab Civil Service Rules, compulsorily retiring him from service at the age of 55 years. Holding that the order of compulsory retirement was invalid, this Court stressed that the power of deciding whether a judicial officer should be retained in, service after attaining the age of 55 years upto the age of 58 years, vests in the High Court, and to hold otherwise "will seriously affect the independence of the judiciary and take away the control vested in the High Court". The formal order of retirement, however, is passed by the Governor acting on the recommendation of the High Court. that being "the broad basis of Article 235". It was explained that "in such cases it is the contemplation in the Constitution, that the Governor as the (1) ; (2) ; 43 head of the State will act in harmony with the recommendation of the A High Court". It was concluded that "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". In other words, while in form, the High Court 's decision to compulsorily retire a subordinate judicial officer in the exercise of its administrative or disciplinary jurisdiction under Article 235 is advisory, in substance and effect, it is well nigh peremptory. Recently, in State of Uttar Pradesh vs Batuk Deo Pati Tripathi(1), this Court succinctly summed up the whole position as follows: "The ideal which inspired the provision that the control over District Courts and courts subordinate thereto shall vest in the High Courts is that those wings of the judiciary should be independent of the executive. It is in order to effectuate that high purpose that article 235 as construed by the Court in various decisions, requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promotions should be dealt with and decided upon by the High Courts in the exercise of the control vested in them. " In sum, the entire scheme of Chapters V and VI in Part VI, epitomised in Articles 229 and 235 has been assiduously designed by the Founding Fathers to insure independence of the High Court and the subordinate judiciary. The stage is now set for noticing the provision of Article 371 and the Andhra Pradesh Administrative Tribunal order, 1975, made by the President in exercise of the powers conferred by clause (3) and (4) of this Article. Article 371 was inserted in the Constitution with effect from July 1, 1974 by the Constitution (Thirty second Amendment) Act, 1973. This Article as its heading shows, makes "special provisions with respect to the State of Andhra Pradesh. " Clause (1) of the Article authorises the President to provide by order "for equitable opportunities and facilities for the people belonging to different parts of the State" in matters of public employment and education. Clause (2) particularises the what an order made by the (1) [1978]2 S.C.C. 102. 44 President under clause ( I ), may require to be done. Clause (3), is crucial for the purpose of the instant case; and may be extracted in full. It reads as under: (3) The President may, by order, provide for the constitution of an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers and authority (including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty second Amendment) Act, 1973, was exercisable by any Court (other than the Supreme Court or by any tribunal or other authority) as may be specified in the order with respect to the following matters, namely: (a) appointment, allotment or promotion to such cases or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order; (b) Seniority of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order. (c) Such other conditions of service of persons appointed. allotted or promoted to such class or classes of posts i civil service of the State, or to such class or classes of posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order. (emphasis supplied). Clause (4) of the Article further provides that an order made under clause (3) may (a) authorise the Administrative Tribunal to receive representation for redress of grievances relating to any matters within its jurisdiction, as the President may specify, and to make such orders thereon as the Tribunal may deem fit; (b) contain provisions with respect to the powers and authorities and procedure of the Administrative Tribunal, (c) provide for the transfer to the Administrative Tribunal proceedings relating to classes of posts within its jurisdiction, pending before any Court (other than the Supreme Court) or tribunal or other authority; (d) contain supplemental, incidental and consequential provisions including those relating to fees, limitation, evidence 45 Under Clause (5), "the order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier." Then there is a Proviso to this Clause, a most extraordinary provision, which says: Provided that the State Government may, by special order made in writing and for reasons to be specified there in, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be. This clause shows that unlike a Civil Court, or a High Court exercising jurisdiction under Article 226 (prior to the enactment of Article 371D, the Administrative Tribunal set up by an order under clause (3) of the Article, is not competent to pass definitive or final orders, in the sense that all its decisions or orders are subject to confirmation, modification or annulment by the State Government. The Tribunal 's order has no force proprio vigore unless confirmed by the State Government either expressly within three months of the date on which it was made, or impliedly by not interfering with that order for the said period of three months. Then there is no provision in the Article, requiring the State Government to give an opportunity of hearing to the parties before modifying or annulling the order of the Tribunal. Clause (6) requires every special order of the Government made under Clause (5) to be laid before the State Legislature. Clause (7) clarifies that the High Court or any other Court (other than the Supreme Court) or tribunal shall have no jurisdiction, power or authority in respect of any matter subject to the jurisdiction, power or authority of, or in relation to, the Administrative Tribunal Clause (8) gives power to the President to abolish the Administrative Tribunal, if he is satisfied that its continued existence is not necessary. Clause (9) is a validating provision. As will be presently seen, it was enacted to get over the difficulties created by the judicial decisions on Mulki Rules. 46 Clause (10) gives an overriding effect to the provisions of Article 371D and to the Presidential orders made thereunder, by enacting: "(10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything; in any other provision of the Constitution or in any other law for the time being in force. " In the context, we may also have a look at the provisions of the Andhra, Pradesh Administrative Tribunal order, 1975, dated the 19th May, 1975 (published as per G.O.Ms. No. 323, General Administration (SPF D), 22nd May 1975), made by the President in exercise of his powers under Clauses (3) and (4) of Article 371 D. Paragraph 2 of this order contains definitions of various expressions used in therein. Clause (d) of this paragraph defines "person employed" to mean "an individual, in relation to whom the Tribunal has jurisdiction in respect of the matters specified in paragraph 6 of this order." Paragraphs 3 to 5 are not material to the points under consideration. Paragraph 6 is important. It provides in regard to "Jurisdiction, powers and authority of the Tribunal". It confers on the Tribunal "all the jurisdiction,, powers and authority which, immediately before the commencement of this order, were exercisable by all Courts (except the Supreme Court) with respect to appointment, allotment or promotion to any public post, seniority of persons appointed, allotted or promoted to such post and all other conditions of service of such persons. " Sub para (2) provides that nothing in sub paragraph (1) of this paragraph shall apply to, or in relation to, (a) persons appointed on contract for a specified term or purpose; (b) member of the All India Services; (c) persons on deputation with the State Government or any local authority within the State being persons in the services of the Central or any other State Government or other authority; (d) persons employed, on part time basis; and (e) village officers. Sub para (3) is not relevant. Sub para (4) makes "the law in force immediately before the commencement of this order with respect to the practice procedure and disposal of petitions for the issue of directions, orders or writs under article 226 of the Constitution by 47 the High Court of Andhra Pradesh" applicable (with modifications, if any, made by the Tribunal) to the disposal of petitions by the Tribunal. There is a proviso to this sub paragraph which is not relevant for our purpose. The Explanation appended to this Sub paragraph defines for the purpose of Paragraph 6, "public post" to mean: (a) all classes of posts in all civil services of the State; (b) all classes of civil posts under the State; and (c) all classes of posts under the control of any local. authority within the State. Paragraph 7 empowers the Tribunal to receive representations from persons aggrieved, relating to matters within the jurisdiction of the Tribunal. Then there is a proviso directing the Tribunal not to admit any such representation (a) unless the person concerned has availed of the remedies under the relevant rules for making such representation to the State Government or the local authority, as the case may be, "or to any other officer or other authority under the State Government or local authority and has failed;" or (b) if a period of more than six months has elapsed after a final order rejecting the representation. The next material provision is in sub paragraph (3) which provides that where a representation has been admitted by the Tribunal "all proceedings for redress of such grievance pending before the State Government or local authority" shall abate. Paragraph 8 is not relevant. Paragraph 9 mandates the Tribunal that when it passes a final order disposing of any case, it shall forward the proceedings thereof to the State Government. Paragraph 14 provides for transfer of proceedings from the High Court and other Courts to the Tribunal, in matters in relation to which jurisdiction has been conferred on the Tribunal by this order. The rest of the provisions of the order are not relevant to the problem before us. The ground is now clear for considering the question. Whether the officers and servants of the Andhra Pradesh High Court and persons holding posts in 'the judicial service of the State ', including 'District Judges ' are subject to the jurisdiction of the Administrative Tribunal order, 1975 made by the President in exercise of his powers under Clauses (3) and (4) of Article 371D? 48 We have seen that the substantive provision is in Clause (3). This clause defines the extent and delimits the area of the "jurisdiction, power and authority" with respect to certain matters mentioned therein, which may be conferred, wholly or in part, on the Administrative Tribunal by an order made by the President, thereunder. Clause (4) only subserves and elucidates the substantive Clause (3). It is undisputed that compulsory retirement is a condition of service. The question, therefore, narrows down into the issue. Do the posts held by officers and servants of the High Court, and members of the subordinate judiciary fall under any of the "class or classes of posts" mentioned in sub clause (c) of Clause (3) of Article 371D ? For reaching a correct finding on this issue, it is not necessary to dilate on the Administrative Tribunal order made by the President, or to explore the scope of the expression "public post" defined in Paragraph 6 thereof for, the order has, merely for the sake of convenience, adopted this brief expression to cover compendiously all the three phrases commonly employed in sub clauses (a), (b) and (c) of Clause (3) of the Article. Though the content of the first limb of each of the sub clauses (a), (b) and (c) varies, the rest of the language employed therein is identical. Each of these three sub clauses, in terms, relates to glass or classes of (i) "posts in any civil service of the State", or (ii) "civil posts under the State", or (iii)"posts under the control of any local authority with in the State". It is manifest that posts on the establishment of the High Court or held by the members of the judiciary are not "posts under the control of any local authority". Neither the Chief Justice, nor the High Court can be called a "local authority" within the meaning of clause (iii). As regards (ii), it is conceded even by Shri Vepa Sarathy, that persons holding posts on the staff of the High Court or in the subordinate judiciary do not hold their posts under the control of the State Government, and, as such, those class or classes of posts do not fall within the purview of phrase (ii), either. The compass of the problem thus further gets reduced into whether the phrase "posts in the civil services of the State" commonly occur ring in sub clauses (a), ( b) and (c) of Article 371 D (3) covers posts held by the High Court staff and persons belonging to the subordinate judiciary ? This phrase is couched in general terms which are susceptible of more than one interpretation. 49 The phrase "Civil service of the State" remains more or less an h amorphous expression as it has not been defined anywhere in the Constitution. Contrasted with it, the expressions "judicial service of the State" and "District Judge" have been specifically defined in Article 236, and thus given a distinctive, definite meaning by the Constitution makers. Construed loosely, in its widest general sense. this elastic phrase can be stretched to include the 'officers and servants of the High Court ' as well as members of the Subordinate Judiciary. Understood in its strict narrow sense, in harmony with the basic constitutional scheme embodied in Chapters V and VI, Part VI, and centralised in Articles 229 and 235, thereof the phrase will not take in High Court staff and the Subordinate Judiciary. Shri Vepa Sarthy canvasses for adoption of the expansible interpretation which will cover the High Court staff and the subordinate judiciary, while Shri Lal Narain Sinha urges for acceptance of the restricted but harmonious construction of the said phrase. A choice between these two rival constructions of the phrase "civil services of the State" is to be made in the light of well settled principles of interpretation of Constitutional and other statutory documents. The primary principle of interpretation is that a Constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meaning more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation. Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion. Or friction, contradiction 50 and conflict between various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living, integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of its basic framework can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture; nor a mere exercise in grammar. As one of us (Chandrachud, J. as he then was) put it in Keshvananda Bharati 's case, "while interpreting words in solemn document like the Constitution, one must look at them not in a school masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in 'a single complex instrument in which one part may throw light on the other ' so that the construction must hold a balance between all its parts. " Keeping in mind the principles enunciated above, we will first leave a peep into the historical background of the provisions in Article 371 D. The former State of Hyderabad comprised of three linguistic areas: Telengana, Marathwada and Karnatak. In 1919, the Nizam issued a Firman promulgating what came to be known as Mulki Rules. The Nizam confirmed these Rules by another Firman issued in 1949. Those Rules provided inter alia 15 years ' residence in the State as an essential qualification for public employment. In 1955, the Rajpramukh in exercise of his powers under Article 309, Proviso, of the Constitution framed the Hyderabad General Recruitment Rules, 1955 in supersession of all the previous rules o the subject. One of these Rules laid down that domicile certificate would be necessary for appointment to a State or subordinate service, and the issue of such certificate depended upon residence in the State for a period of not less than 15 years. On November 1, 1956, as a result of the coming into force of the States Reorganisation Act, the State of Hyderabad was trifurcated. Telengana region became a part of the newly formed State of Andhra Pradesh, while Marathwada and Karnatak regions ultimately became parts of Maharashtra or Mysore States. With these prefatory remarks, we may now notice the Statement of objects and Reasons for the Bill which became the Constitution (32nd Amendment) Act 1972. This Statement may be quoted in extenso: "When the State of Andhra Pradesh was formed in 1956, certain safeguards were envisaged for the Telengana area in the matter of development and also in the matter of 51 employment opportunities and educational facilities for that residents of that area. The provisions of clause (1) of Article 371 of the Constitution were intended to give effect to certain features of these safeguards. The Public Employment (Requirement as to Residence) Act, 1957, was enacted inter alia to provide for employment opportunities for residents of Telengana area. But in 1969 (in the case, A. V. section N. Rao vs Andhra Pradesh ; , the Supreme Court held the relevant provision of the Act to be unconstitutional in so far as it related to the safeguards envisaged for the Telengana area. Owing to a variety of causes, the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the Telengana area and sometimes in the other areas of the State. Measures were devised from time to time to resolve the problems. Recently several leaders of Andhra Pradesh made a concerted effort to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integration of the people of Andhra Pradesh. On the 21st September 1973, they suggested certain measures (generally known as the Six Point Formula) indicating a uniform approach for promoting accelerated development of the backward areas of the State so as to secure the balanced development of the State as a whole and for providing equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public services. This formula has received wide support in Andhra Pradesh and has been endorsed by the State Government. This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six Point Formula in so far as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services. The Bill also seeks to empower Parliament to legislate for establishing a Central University in the State and contains provisions of an incidental and consequential nature including the provision For the validation of certain appointments made in the past. 52 As the Six Point Formula provides for the discontinuance of the Regional Committee constituted under clause (1) of article 371 of the Constitution, the Bill also provides for the repeal of that clause." (Parenthesis and emphasis in Para 1 added). It will be seen from the above extract, that the primary purpose of enacting Article 371D was two fold: (i) To promote "accelerated development of the backward areas of the State of Andhra so as to secure the balanced development of the State as a whole", and (ii) to provide "equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service. To achieve this primary object, Clause (1) of Article 371D empowers the President to provide by order, "for equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education". Clause (2) of the Article is complementary to Clause (1). It particularises the matters which an order made under Clause (1) may provide. For instance, its sub clause (c) (i) enables the President to specify in his order, "the extent to which, the manner in which and the conditions subject to which", preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or under any local authority. Sub clause (c) further makes it clear that residence for a specified period in the local area, can be made a condition for recruitment to any such local cadre. Thus, Clause (4) also, directly is designed to achieve the primary object of the legislation. From the foregoing conspectus it is evident that the evil which was sought to be remedied, (viz., inequitable opportunities and facilities for the people belonging to different parts of the State of Andhra Pradesh in matters of public employment and education) had no causal nexus, whatever, with the independence of the High Court and subordinate judiciary which the Founding Fathers have with solemn concern vouchsafed in articles 229 and 235. Nor did the public agitation which led to the enactment of Article 371D make any grievance against the basic scheme of Chapters V and VI in Part VI of the Constitution. The Statement of objects and Reasons does not indicate that there Was any intention, whatever, on the part of the legislature to impairer derogate from the scheme of securing independence of the Judiciary as enshrined in Articles 229 and 235. Indeed, the amendment or 53 abridgement of` this basic scheme was never an issue of debut in Parliament when, the Constitution (32nd Amendment) Bill was considered. One test which may profitably be applied to ascertain whether the High Court staff and the Subordinate Judiciary were intended to be included in Clause (3) of Article 371D, is: Will the exclusion of the judiciary from the sweep of this Clause substantially affect the scope and utility of the Article as an instrument for achieving the object which the Legislature had in view? The answer cannot but be in the negative. The High Court staff and members of the Subordinate Judiciary constitute only a fraction of the number of persons in public employment in the State. Incidently, it may be mentioned that one of the primary purposes of this Article, viz., to secure equitable share in public employment to people of certain local areas in the State on the basis of the Mulki Rules requiring 15 years residence in those areas, could be achieved under those Rules which, as subsequently clarified by this Court in State of Andhra Pradesh. vs V. V. Reddy(1) continued to be in force as valid law in the territories of the former State of Hyderabad State, even after the constitution of the State of Andhra Pradesh. Let us now apply another test which in the circumstances of the case will be decisive. In that connection, we have to see what consequences will flow if we give this general, undefined and flexible phrase, "Civil services of the State" in Article 371D(3), the wider construction so as to include in it the High Court staff and the members of the subordinate judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the Subordinate Judiciary will become shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government. which, under Article 371D(5), is the supreme authority, having full power to confirm or not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the independence of the judiciary, which the Founding Fathers have with such anxious concern built into the basic scheme of the, Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide literal interpretation (1) A.I.R. 1973 S.C. 823 54 which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularised in Articles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase "civil services of the State". Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its, various provisions. It is true that this very phrase in the context of the provision in Article 311 includes the employees of the High Court and members of the judicial services. But it must be remembered that the provisions of Article 311 are of a general nature. They give constitutional recognition to a fundamental principle of natural justice, by making its protection available uniformly tc all Government servants. That is why in the context of that Article this phrase has been spaciously construed. As against this, Article 371D is a special provision which marks a departure from the general scheme of the Constitution. The area of the departure cannot be extended beyond what is unmistakably and specifically delineated by the words employed therein. A phrase used in the context cf a general provision may not carry the same meaning when employed in the context of a special provision, particularly when that phrase has no where been defined in the enactment. "Words used with reference to one set of circumstances", said Lord Blackburn in Edinburn Street Tramways Co. vs V. Torbin(1), "may convey an intention quite different from what the self same set of words used in reference to another set of circumstances would or might have produced". This holds true even when the same words are used in different contexts in the same enactment. Therefore, in a special provision like Article 371D as its heading itself proclaims which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of` the provision. Conversely, had it been the intention of Parliament to include 'officers and servants of the High Court ' and members of the 'judicial services of the State ' and of the cadre of 'District Judges ', in the phrase 'civil services of the State ' occurring in Clause (3) of Article 371D, and thereby depart from the basic scheme of Chapters V and VI Part VI, the language commonly employed in the sub clauses should have read like this: "Class or classes of posts in the civil services of the State including posts. in the "judicial service of the State " (1)[1877] 3 Appeal Cases 58, 68. 55 and of "District Judges" in the State; class or classes of posts of "officers and servants of the High Court" . " In our opinion, non use of the phrases "judicial service of the State" and "District Judges" (which have been specifically defined in Article 236), and "officers and servants of the High Court", which has been designedly adopted in Articles 235, and 229, respectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate Judiciary were advisedly excluded from the purview of Clause (3) of Article 371D. The scope of the non obstante clause in sub article (10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses. The 'officers and servants of the High Court ' and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3), the non obstante provision in Clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Articles 229, 235 and 226 of the Constitution in regard to those public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371 D, such as Articles 229 and 235. Provisions not otherwise covered by Article 37t D, cannot be brought within its sweep because of the non obstante Clause (10). It follows as a necessary corollary that nothing in the order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary. For the foregoing reasons, we hold that the impugned order dated August 24, 1977 of the Administrative Tribunal, having been passed without jurisdiction, is a nullity. Accordingly, we allow Civil Appeal No. 2826 of 1977, leaving the parties to pay and bear their own costs. The reasons given above apply mutatis mutants to the case of Krishnamurthy in Civil Appeal No. 278 of 1978 and furnish the basis of our short order dated August 4, 1978, by which we had accepted that appeal. In this Appeal (C.A. No. 278/78) however, the respondent 's costs in this Court will be borne by the appellant in terms of this Court 's order dated 10 2 78 in S.L.P. (Civil) No. 626 of 1978. In view of the orders dated 28th November, 1977 and 22nd March, 56 1978, passed in stay applications Nos. 4804 of 1977 and 1744 of 1978 respectively, and in terms of those orders we direct that since the appeals have been allowed, the excess payment, if any, made pursuant to the stay orders shall be adjusted towards pension that may be due to the respondents. The adjustment shall be made in easy, convenient and reasonable instalments. N.V.K. Appeals allowed.

Article 371 D (3) inserted by the Constitution (Thirty Second Amendment) Act 1973, empowers the President to constitute an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction powers and authority which immediately before the amendment was exercisable by any Court, tribunal or authority in respect of appointment, allotment or promotion to posts in the Civil Services of the State, under the State or under the control of any local authority within the state. Clause (10) provides that the provisions of the Article and any order made by the President thereunder, shall have effect notwithstanding any other provision of the Constitution or in any other law for the time being in force. 6 of the Andhra Pradesh Administrative Tribunal Order, 1975 issued by the President, setting up the Andhra Pradesh Administrative Tribunal, provides that the Tribunal shall have 'all the jurisdiction, powers and authority exercisable by all Courts with respect to appointment, allotment or promotion to any public post, seniority of persons appointed. allotted or promoted to such post and all other conditions of service of such persons '. 'The first Respondent in C.A. No. 2826/77 was a former employee of the High Court. He originally belonged to the High Court service. After being on deputation with the Central and State Governments for some years he re joined the High Court service as Assistant Registrar and was later promoted as Deputy Registrar. 'The Chief Justice of the High Court in exercise of his powers under Article 229 of the Constitution read with the relevant rules, passed an order, dated January 3, 1969, compulsorily retiring the respondent from service, who by then had attained the age of 50 years. His writ petition assailing the orders of compulsory retirement, was dismissed by the High Court on the ground that the jurisdiction of the High Court which was hitherto being exercised under Article 226 of the Constitution to correct orders of the Chief Justice on the administrative side with regard to conditions of service of officers of the High Court, vested in the Administrative Tribunal by reason or clause 6 (1) of the A.P. Administrative Tribunal order made by the President under Article 371 D of the Constitution. The respondent thereafter moved the Andhra Pradesh Administrative Tribunal, which set aside the impugned order on the ground, that it was arbitrary. 27 and amounted to a penalty of dismissal or removal from service and, as such, as hit by Article 311(2) of the Constitution. The respondent in C.A. No. 278/78 was a member of the Andhra Pradesh State Judicial Service working as a Subordinate Judge. He was prematurely retired in public interest by an order of the State Government on the recommendation of the High Court. The respondent 's contention, that in the case of Subordinate Judges, the High Court being the appointing authority, the Governor had no power or jurisdiction to pass an order of premature retirement, of a member of the State Judicial Service, was accepted by the Tribunal, and the impugned order was set aside. In the appeals against both the orders of the Administrative Tribunal, it was contended before this Court by the appellants that Article 371 D of the Constitution should be construed harmoniously with the basic scheme underlying Chapters V and VI in Part VI of the Constitution; and so construed, the general expression, such as "class or classes of posts` ', "Civil Services of the State" etc. in Clause (3) of this Article will not include posts/members of the High Court staff and the Subordinate Judiciary, with the result that the impugned orders of the Administrative Tribunal are without jurisdiction and nullities. On the other hand, the respondents contended that. the phrase "any Civil Service of the State" in clause (3) of this Article interpreted in its widest sense, includes the members of the High Court staff and the Subordinate Judiciary; that even it such an interpretation is contrary to the Constitutional scheme of securing independence of the judiciary, such a result was intended to be brought about by insertion of Article 371 D, the non obstante provision in Clause (10) of which gives it an over riding effect. Allowing the appeals, ^ HELD: 1. The entire scheme or Chapters V and VI in Part VI of the Constitution epitomised in articles 229 and 235 has been assiduously designed by the Founding Fathers to ensure independence of the High Court and the Subordinate Judiciary. [43F] (a) In regard to servants and officers of the High Court, Article 229 of the Constitution makes the power of their appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc. including the power to prescribe their conditions of service, the sole preserve of the Chief Justice and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee except to a very limited extent mentioned in the provisos. In conferring such exclusive and supreme powers on the Chief Justice the object which the Founding Fathers had in view was to ensure the independence of the High Court. [37F G] (b) The control over the Subordinate Judiciary vested in the High Court under Article 23 5 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters and is a complete control subject only to the power of the Governor in me matter of appointment, dismissal or removal. [41B C] 28 (c) Since retirement, simpliciter, in accordance with the terms and conditions of service, does not amount to dismissal or removal or reduction in rank under Article 311 or under the service rules, it is for the High Court in the exercise of its 'control ' under Article 235, to decide whether or not a judge of the Subordinate Judiciary should be prematurely or compulsorily retired. Though in form such an administrative decision of the High Court is advisory in substance and effect. it is well nigh peremptory. [42D, 43B] M. Gurumoorthy vs Accountant General Assam and Nagaland and Ors. , Chandra Mohan vs State of Uttar Pradesh , Chandramouleshwar vs Patna High Court ; ; State of Assam vs Ranga Mohammed ; ; State of West Bengal vs Nripendra Nath Bagchi ; ; Shamsher Singh vs State of Punjab ; ; Punjab and Haryana High Court vs State of Haryana (Sub nom Narendra Singh Rao) ; ; State of Assam vs section N. Sen ; State of Assam vs Kuseswar Sukla State of U.P. vs Batuk Deo Pati Tripathi and Anr. ; Tara Singh vs State of Rajasthan ; ; State of Haryana vs Inder Prakash Anand ; referred to. The phrase "any civil service of the State" commonly employed in sub clauses (a), (b) and (c) of clause (3) of Article 371 D is a general, undefined and flexible expression and is capable of bearing meaning more than one. If it is construed loosely, in its widest sense so as to include in it the High Court staff and the members of the Subordinate Judiciary, the result will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the subordinate judiciary will become shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under clause (5) of Article 371 D is the supreme authority, having full power to confirm or not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content make a mockery of the Directive Principles in Article 50 and the fundamental concept of the independence of the judiciary, which the Founding Fathers have with such anxious concern built into the basic scheme of the Constitution. Parliament could never have intended such a strange result. [53E H] 3. (a) In its strict, narrow sense, the phrase 'Civil service of the State. will not take in members of the High Court staff and the subordinate judiciary. [49 A C] (b) Non use of the expressions. "judicial service of the State" and "District Judges" (which have been specifically defined in Article 236), and "Officers and Servants of the High Court", which have been designedly adopted in Articles 235 and 229, respectively, to differentiate these in the scheme of the Constitution from the other Civil Services of the State, gives a clear indication that posts held by the High Court Staff or by the Subordinate Judiciary have been advisedly excluded from the purview of Clause (3) of Article 371 D. [55 B C] 4. In such a situation. the Court must eschew the wide, literal interpretation which will defeat or render otiose the scheme of Chapters V and VI, Part VI, particularised in Articles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court Staff and the Subordi 29 nate Judiciary will not fall within the purview of Clause (3) of Article 371 D. A Such a restricted construction will ensure smooth working of the Constitution; and harmony among its various provisions. [53H, 54A B] 5. The officers and servants of the High Court and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3), the non obstante provision in Clause (10) of Article 371 D cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Articles 229, 235 and 226 of the Constitution in regard to a dispute or matter relating to the conditions of service of a member of the High Court Staff or of the Subordinate Judiciary. [55D] 6. In view of the above, nothing in the Andhra Pradesh Administrative Tribunal Order, 1975, issued by the President confers jurisdiction, power and authority on the Administrative Tribunal to entertain, deal with or decide the representation by a member of the High Court Staff or of the Subordinate Judiciary. The impugned orders. therefore, of the Administrative Tribunal in both these appeals, were without jurisdiction, null and void. [55 F G]

Civil Appeal No. 80 of 1977. Appeal by Special Leave from the Judgment and order dated 4 11 1976 of the Punjab and Haryana High Court in Civil Rev. No. 226 of 1971. Suresh Sethi (Amicus Curiae) for the Appellant. Yogeshwar Prasad and Mrs. Rani Chhabra 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 Punjab and Haryana High Court dated 4th November, 1976 dismissing the revision petition filed by the appellant before the High Court. This case has rather a chequered career and travelled through various stages and finally when it came to the High Court the case was remanded and after remand another re vision petition was filed before the High Court which was heard by a Single Judge who referred it to a Division Bench as in his opinion a substantial question of law was involved in the case. When the case went before the Division Bench consisting of Pandit and B. section Dhillon, JJ. the two Judges differed from each other and the case was referred to a third Judge, namely, Mittal, J. who agreed with Pandit, J. and dismissed the petition. Hence this appeal. In order to understand the point of law involved in this case, it may be necessary to give a brief resume of the facts leading to the appeal. It appears that the appellant defendant was a tenant of a shop belonging to one Sher Singh and was situated in Gurgaon Cantonment. Sher Singh gave an application on 21 3 1967 under the provisions of the East Punjab Urban Rent Restriction Act 1949 (hereinafter referred to as the Act) against the defendant appellant for eviction from the shop on the ground that he had defaulted in payment of the rent and arrears for the period 9 11 1965 to 8 3 1967. Notice of this application for 11th May 1967 was issued on the 22nd March, 1967 and was actually served on the defendant appellant on 22nd April, 1967. on the 29th April, 1967 the defendant appellant made an application before the Senior Sub Judge who was also the Rent Controller for depositing a sum of Rs. 179.48 being the rent along with interest due. The amount was however deposited before the Rent Controller on the 4th May, 1967. It appears that the first date of the hearing of the 839 application was 11th May, 1967 on which date the Rent Controller made the following order: "Present: Mr. Vijay Pal Singh for the petitioner Mr. P. L. Kakkar for the respondent The respondent 's counsel Sh. P. L. Kakkar has been informed that the petitioner has deposited Rs. 179.48 paise on 4 5 67. Papers are filed. " Even before this date when the amount was actually deposited by the appellant, the Rent Controller had passed the following order: "Present: Sh. Shiv Narain Petitioner . The rent be deposited at the responsibility of the petitioner and after that notice be issued on payment of P.F. for the respondent for 11 5 67. " It is, therefore, manifest that in the instant case a deposit of the rent and the arrears along with interest had actually been made before the first date of hearing to the knowledge of the Court and the Court had acknowledged the fact of the deposit of the amount. Again, on the first date of hearing i.e. 11th May, 1967 the Rent Controller informed counsel for the applicant respondent that a sum of Rs. 179.48 had been deposited. It is, therefore, clear that the applicant respondent 1 ' was apprised clearly of the fact that the amount in question had actually been deposited and was at his disposal and he could withdraw the same from the Court of the Rent Controller whenever he liked. Despite these facts, the Rent Controller held in its order dated the 2nd December, 1967 that the deposit was not made in accordance with the proviso to section 13(2) (i) of the Act, and, therefore, the appellant being a defaulter the application was allowed and ejectment was ordered. Thereafter, the appellant went up in appeal to the District Judge who was the Appellate Authority under the Act which differed from the view taken by the Rent Controller and by his order dated 22nd February, 1968 having held that the deposit was valid dismissed the application filed by the respondent for evicting the appellant. Thereafter a revision was filed to the High Court which was remanded to the District Judge for deciding the case afresh, and particularly having regard to the decision of this Court in the case of Shri Vidya Prachar Trust vs Pandit Basant Ram(l). On remand the District Judge accepted the application of the respondent and affirmed the order of the Rent Controller directing ejectment of the appellant. Thereafter the 840 appellant filed a revision before the High Court which, as already indicated, had a varied career before the High Court and was ultimately decided against the appellant and in favour of the applicant respondent The three Judges of the High Court who heard the case have been greatly influenced by the decision of this Court in Shri Vidya Prachar Trust case (supra). It appears that the previous Division Bench of the Punjab and Haryana High Court in the case of Mehnga Singh & Ors. vs Dewan Dilbagh Rai & ors had followed the Supreme Court decision and taken the view that the deposit in the circumstances was not valid. We have gone through the judgment of the Judges of the High Court and we are unable to agree with the interpretation placed by them oh the proviso to section 13(2)(i) of the Act. We are also constrained to observe that the High Court has misapplied the decision of this Court in Vidya Prachar Trust case (supra) which is clearly distinguishable from the facts and circumstances of this case. Before dealing with the point of law involved it may be necessary to extract portions of the Act with which we are concerned. In the instant case, we are mainly concerned with section 13 of the Act which may be extracted thus: "13. (1) x x x (2) A landlord who seeks to evict his tenant shall apply to. the Controller for a direction in that behalf. If the Con troller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the . agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the application for ejectment after the due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. X X X X X 841 The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application. " The decision of the case mainly turns upon the interpretation of the proviso to section 13, which requires three essential conditions: (1) that there must be an application for ejectment before the Court, (2) that even after due service the tenant does not pay or tender the arrears of rent and interest at 6 per cent per annum together with costs assessed by the Controller, (3) that if the payment as required by the aforesaid two conditions is made then the tenant shall be deemed to have paid rent within the time required by law. The last part of section 13 enjoins that where the conditions of the proviso are not fulfilled the Controller shall make an order directing the tenant to put the landlord in possession and where he is satisfied that the rent has been paid, the application of the landlord must be rejected. Thus, the sole question which has to be determined in the instant case is as to whether or not the deposit made by the appellant was legally valid. The grounds on which the High Court held the deposit to b invalid were (1) that the rent was deposited in the Court of the Rent Controller without there being any express provision in the Act requiring the tenant to deposit the rent in Court, (2) that even if the deposit be held to be valid since it was made not on the date of the first hearing but before that date, the deposit did not conform to the conditions required in the proviso. Thirdly, the High Court relied mainly on the decision of this Court in Vidya Prachar Trust case (supra) and held that the deposit was not valid. Before examining the case of this Court in the case of Vidya Prachar Trust case (supra) it may be necessary to comment on the reasons given by the High Court in rejecting the case of the appellant. We have already indicated above that tho appellant first moved the Rent Controller for making a deposit of Rs. 179.48 and then made the actual deposit on the 4th May, 1967 i.e. to say a week before the date of the first hearing fixed by the Rent Controller. It is also not disputed before us or for that matter also, also before the courts below that the amount deposited by the appellant consisted of not only the arrears of rent but also costs and interest as required by the proviso to section 13 of the Act. Fourthly, it is also established that after the deposit was made before the Rent Controller he did not return the same to the appellant on the ground that he had no jurisdiction to receive it but oh the other hand directed that notice of the deposit may be given to the respondent 842 for 11 5 1967. Furthermore, the trial court on 11 5 1967 that is the first date of hearing recorded an order that the respondent 's counsel had been informed that the amount had been deposited. There is magical formula or prescribed manner in which rent can be deposited by the tenant with the landlord. The rent can be deposited by placing the money in the hands of the landlord which would amount to actual tender. The second mode of payment is to deposit the amount in the court where a case is pending in such a manner so as to make the amount available to the landlord without any hitch or hindrance whenever he wants it. Even the Act does not prescribe any particular mode of deposit. In fact, the use of the words "tender or deposit" in the proviso clearly postulate that the rent can be given to the landlord in either of the two modes. (1) It may be tendered to the landlord personally or to his authorised agent or it may be deposited in Court which is. dealing with the case of the landlord to this knowledge so that the landlord may withdraw the deposit whenever he likes. In the instant case the appellant tenant chose the second course. How can it be said that a deposit before the Rent Controller where the case of the landlord was sub judice would not be a valid deposit if it was in fact in existence on the date of the first hearing to the knowledge of the landlord. The reasoning of the High Court that the rent was deposited earlier than 11 S 1967 and is therefore, invalid does not appear to us at all. In fact, if the tenant deposits the rent even before the first date of hearing it is a solid proof of his bonafides in the matter and the Legal position would be that if the rent is deposited before the first date of hearing, it will be deemed to have been deposited on the date of the hearing also because the deposit continues to remain in the court on that date and the position would be as if the tenant has deposited the rent in court for payment to the landlord. This is ' more particularly so when the Controller gave notice to counsel for the respondent on the first date of hearing that the amount had been deposited with the Controller. In these circumstances, we ar, satisfied that all the conditions necessary for the application of the proviso have been completely fulfilled in this case and the High Court was not at all justified in allowing the application of the landlord and directing ejectment of the appellant. Coming now to the case of Vidya Prachar Trust case (supra) which is the sheet anchor of the judgment of the High Court we think that it is clearly distinguishable from the facts of this case. In the first place, although in that case also an application under section 13 of the Act had been made by the applicant for the eviction of the respondent on the ground that rent was not paid, the tenant on the first date of hearing did not tender the rent, cost and interest as required 843 by the proviso but only a part of the rent. It is, therefore, manifest A that in the case which was being dealt with by the Supreme Court the first condition enjoined by the proviso was not fulfilled at all and on that ground alone it could be held that the deposit was not valid. Secondly, the deposit in that case was made not before the Rent Controller under the proviso to section 13 of the Act but was made before the Judge under section 31 of the Punjab Relief of Indebtedness Act which had absolutely no application to proceedings for eviction taken under the Act. Thus, a deposit made before some other court had no nexus with the arrears of rent for which an application for ejectment was filed before the Rent Controller. Thirdly, it was pointed out by this Court that the tenant had deposited even on. month 's rent in advance which under the provisions of section 19 read with section 6 of the Act was an offence if the landlord had withdrawn the rent. Thus, the tenant in that case had deposited the rent in a manner and under circumstances under which it could not be made available to the landlord even if he wanted to withdraw it because the landlord may have entailed a criminal penalty. These are the facts on the basis of which this Court held that the deposit was not valid. In this connection this Court observed as follows: "There is only one saving for the tenant and that is when he tenders the full rent in Court before the Rent Controller together with interest and costs. In the present case, the tenant did tender rent but only for a portion of the period and he relied on his deposit under the Relief of Indebtedness Act as due discharge of his liability for the earlier period. It may be stated that the deposit before the Senior Sub Judge was made not only of arrears of rent but prospectively for some future period for which the rent was then not due. " It appears from the observations of this Court extracted above that the deposit was prima facie invalid. This Court further observed as follows: It is impossible to think that the landlords would be required to go to the Court of the Senior Sub Judge with a view to finding out whether their tenants have deposited rent due to them or not. on the whole, therefore, we are of opinion that the deposit under section 31 of the Relief of Indebtedness Act did not save the tenant from the consequences of the default as contemplated by section 13 of the Urban Rent Restriction Act. " 844 The effect of this observation is that the deposit was made in a wrong court and under such circumstances that the deposit could not be available to the landlord whenever he wanted. It was against the background of these special facts and circumstances that this Court in the Vidya Prachar Trust case (supra) held that the deposit was not valid. In the instant case we find that the deposit made by the appellant does not suffer from any such infirmities as were present in Vidya Prachar Trust case (supra). Finally, we would like to observe that the Rent Control Act is a piece of social legislation designed to protect the tenant from eviction by landlords on frivolous, insufficient or purely technical grounds. Even as the Act allows eviction of the tenant on the ground of non payment of arrears of rent the proviso affords sufficient protection to the tenant against eviction if the tenant deposits the rent in accordance with the proviso. Vidya Prachar Trust case (supra) was reconsidered by this Court in a recent decision in the case of Duli Chand vs Maman Chand by a Bench of three Hon 'ble Judges of which one of us (Kailasam, J.) was a party and while distinguishing the case this Court made the following observations: "We need not deal with all the contents that have been canvassed on both sides. Nor do we feel the necessity of reconsidering the decision in Vidya Prachar Trust vs Basant Ram because on facts, the instant case is clearly distinguish able from that case. Here, before us, the rent for the months of February, March and April 1964 was deposited by the tenant to the credit of the landlord in the very court of the Rent Controller in which the landlord subsequently filed the eviction petition. The deposit lying in the Treasury was in the legal custody and control of the court of the Rent Controller, and at the first hearing, if not earlier, the landlord was informed that he was entitled to withdraw that deposit. Thus, even if the tenant had obtained the order of the Rent Controller for making the deposit, by referring to section 31 of the Relief Act, the fact remained that the money was in custodia legis and could be ordered to be paid to the land lord there and then by the Court at the first hearing. " It was further held by this Court that where the tenant makes the deposit of the arrears of rent and interest informing the landlord at the 845 first hearing then the requirement of the law has been sufficiently complied with. In this connection, the Court observed thus: "The tenant by making deposit of the arrears of rent and interest and costs and informing the landlord at the first hearing that he could receive the same from the Court, had substantially complied with the requirement of the said. proviso. " In the instant case w, have already pointed out that the appellant had fulfilled all the conditions of the proviso and had deposited the rent arrears, costs and interest on the first date of hearing and he, therefore, complied with all the requirements of the proviso and was, therefore, entitled to the protection given by the statute. In view of the legal opinion we have formed regarding the interpretation of proviso to section 13 of the Act it is manifest that the judgment of the High Court is legally erroneous and the case of Mehnga Singh (supra) is hereby overruled, as it had wrongly applied and misconstrued the decision of this Court in Vidya Prachar Trust case (supra). For these reasons, therefore, we allow this appeal, set aside the judgment of the High Court and dismiss the application of the respondent for ejectment of the appellant. In the peculiar facts and circumstances of this case the parties will pay and bear their own costs throughout. S.R. Appeal allowed.

The proviso to clause (1) of sub section (2) of section 13 of the East Punjab Urban Rent Restriction Act, 1949, states that "if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest @ 65% per annum or such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time showed in clause (i) of sub section (2) of section 13 of the Act, 1949". In such circumstances, an order for eviction against the tenant cannot be passed. The appellant was a tenant under the respondent landlord Sher Singh. On 21 3 67, Sher Singh tiled an application under Section 13 of the East Punjab Urban Rent Restrictions Act, 1949 for ejectment of the appellant tenant from the tenanted shop situate in Gurgaon Cantonment, on the ground of arrears of rent for the period from 9 11 65 to 8 3 67 at the agreed rate @ Rs. 15/ pm. The notice of the application for ejectment with the first date of hearing as 11 5 67 was served on the appellant tenant on 22 4 67. On 29 4 1967 the appellant tenant made an application before the very same Rent Controller praying for payment of arrears of rent i.e. Rs. 178.48 for the above period computed @ Rs. 10.62 p.m., being the fair rent fixed by that Court on 20 4 67 in an earlier application for fixation of fair rent. The said amount was actually deposited on the court of the Rent Controller on 4 5 67. On 11 5 67 the appellant tenant tendered in the court to the landlord a further sum of Rs. 25/ being the costs and Rs. 2/ being the interest. This was not accepted on the ground that the lender was not a valid one within the meaning of section 13(2)(i) of the Act. This objection was accepted by the Rent Controller and an ejectment order was passed. On first appeal the District Judge reversed the said order. In the Revision before the High Court, the High Court remanded the matter to the first Appellate Court for fresh orders in view of this Court 's ruling in Vidya Prachar Trust vs Basant Ram [1970] 1 S.C.R. 66. The First Appellate Court affirmed the ejectment order. In the further revision to the High Court, the learned single Judge referred it to the Division Bench which in turn referred it to a third Judge. The third Judge agreed with the single Judge that the payment of fair rent fixed on 4 5 67 was not a valid tender within the meaning of section 13(2)(i) of the Act. The single Judge, therefore, dismissed the revision petition and confirmed the orders of ejectment of the courts below. Allowing the appeal by special leave, the Court. 837 ^ HELD : 1. Proviso to section 13(2)(i) of the East Punjab Urban Rent Restrictions Act, 1949 requires three essential conditions: (1) that there must be an application for ejectment before the Court, (2) that even after due service the tenant does not pay or tender the arrears of rent and interest at 6 per cent per annum together with costs assessed by the Controller, (3 ) that if the payment as required by the aforesaid two conditions is made then the tenant shall be deemed to have paid rent within the time required by law. The last part of section 13 enjoins that where the conditions of the proviso are not fulfilled the Controller shall make an order directing the tenant to put the landlord in possession and where he is satisfied that the rent has been paid, the application of the Landlord must be rejected. [841 A C] 2. There is no magical formula or any prescribed manner in which rent can be deposited by the tenant with the landlord. The rent can be deposited by placing the money in the hands of the landlord which could amount to actual tender. The second mode of payment is to deposit the amount in the court where a case is pending in such a manner so as to make the amount available to the landlord without any hitch or hindrance whenever he wants it. Even the Act does not prescribe any particular mode of deposit. In fact, the use of the words "tender or deposit" in the proviso clearly postulate that the rent can be given to the landlord in either of the two modes. (I) It may be tendered to the landlord personally or to his authorised agent or it may be deposited in Court which is dealing with the case of the landlord to his Knowledge so that the landlord may withdraw the deposit whenever he likes. In the instant case the appellant tenant chose the second course. [842 A C] 3. A deposit before the Rent Controller where the case of the landlord was subjudice would be a valid deposit, if it was in fact in. existence on the date of the first hearing to the knowledge of the landlord. In fact, if the tenant deposits the rent even before the first date of hearing it is a solid proof of his bonafides in the matter and the legal position would be that if the lent is deposited before the first date of hearing, it will be deemed to have been deposited on the date of the hearing also because the deposit continues to remain in the court on that date and the position would be as if the tenant had deposited the rent in court for payment to the landlord. [842 D E] In the instant case, all the conditions necessary for the application of the proviso have been completely fulfilled. This is more particularly so when the Controller gave notice to the counsel for the respondent on the first date of hearing that the amount had been deposited with the Controller. [842 E F] Vidya Prachar Trust vs Pandit Basant Ram, [1970] 1 S.C.R. explained and distinguished. Dulichand vs Maman Chand, C.A. 1744/69 dated 27 3 79 followed Mehnga Singh & Ors. vs Dewan Dilbagh Rai & Ors., overruled. Observation: The Rent Control Act is a piece of social legislation designed to project the tenant from eviction by landlords on frivolous, insufficient or purely technical ground. Even as the Act allows eviction of the tenant on the ground of 838 non payment of arrears of rent the proviso affords sufficient protection to the tenant against eviction if the tenant deposits the rent in accordance with the proviso. [844 B C]

Appeal No. 1851 of 1968. Appeal from the judgment and decree dated June 19, 1963 of the Mysore High Court in Regular Appeal No. 231 of 1960. Shyamala Pappu and Vineet Kumar, for the appellant. K. R. Chaudhuri and K. Rajendra Chaudhuri, for respondent No. 1. section V. Gupte, G, R. Ethirajulu Naidu, B. N. Sen, 0. P. Khaitan, A. N. Parikh, K. R. Chaudhuri and K. Rajendra Chaudhuri, for respondent to. 2 The Judgment of the Court was delivered by Bachawat J. The plaintiffs instituted a suit (O.s. No. 515 of 1957 against the defendant alleging that by a contract dated September 2, 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest under a, mining lease in respect of 184 acres of land in Kudrekanave Kaval, Hosadurga Taluk, and claiming specific performance of the contract. The Trial Court decreed the suit. The defendant filed an appeal against the decree. The High Court allowed the appeal and dismissed the suit. The present appeal has been filed by the plaintiffs after obtaining a certificate under article 133 of the Constitution. The main question arising in this appeal is whether there. was a contract as alleged in the plaint. Under a contract dated August 3, 1957, the defendant agreed to sell to the plaintiffs 40000 tons of float iron lying in the aforesaid mining area and gave them the right to win and remove the iron ore. We are not directly concerned with this contract in this appeal. On September 2, 1957 the defendant wrote the following letter to the plaintiffs: 583 "Further to our agreement dated 3rd August 1957 I hereby agree, to assign the sad lone area of 184 acres for iron and manngase ores, in your favour, subject to your paving me one lakh and eighty thousand rupees at your option to be decided by you within three months from this date. " This document though worded as an agreement was in point of law an offer only. As a matter of fact,. on September 2, 1957 the plaintiffs had not agreed to purchase the mining lease. Until both parties were bound there could be no con cluded contract. The promise to keep the offer open for three months was not supported by any consideration. The defendant was at liberty to revoke the offer at any tune before,its acceptance by the plaintiffs. on October 31, 1957, the defendant posted a letter to the 'Plaintiffs revoking the offer. This letter reached the plaintiffs on November 6, '1957. Before that date the,plaintiffs did not accept the offer either orally or by any letter sent to the defendant. On November 1, 1957, the plaintiffs filed suit (O.S. No. 46 of 1957) against the defendant claiming a declaration that they were entitled to remain in possession of the mining area. The primary object of the suit was to enforce the plaintiffs ' right under the contract dated August 3, 1957. The defendant filed his written statement in that suit on November 5, 1957. The High Court held that the plaintiffs accepted the offer of September 2, 1957 by their plaint in O.S. No. 46 of 1957 and that this acceptance was communicated to, the defendant before November6, 1957. We are unable to agree with this finding. The pleadings and issues raised the question whether a con tract was made on September 2, 1957. If the plaintiffs desired to set up a new case that the contract was concluded in November 1957 they should have amended their pleadings accordingly. We need not say anything more on this point because we find that the plaintiffs have failed to establish the new case. In paragraphs 14 and 19 of the plaint in O.S. No. 46 of 1957 the plaintiffs alleged that by the letter dated September 2, 1957 the defendant agreed to assign the mining lease, that they ,were ready and willing to perform the contract and that they reserved their right to file a suit for specific performance. The suggestion was that the contract was concluded on September 2, 1957 and that in breach of the contract the defendant failed to apply for and obtain the necessary consent of the central government to the assignment of the mining lease. Paragraph 17 and the prayer portion of the plaint suggested that by virtue of this contract and the earlier contract dated August 3, 1957 they were entitled to remain in possession of the mining area. 584 The Suggestion was an atempt to add to the terms of the offer of September 2 1957. On acceptance of the offer according to its terms the plaintiffs could not get a possessory right before execution of a conveyance of the mining lease. In point of law, the Plaint was not an acceptance of the offer, not was it intended to be an acceptance. It is not usual to accept a business offer by a plaint; nor is it usual to communicate an acceptance by serving a copy of the plaint through the medium of the Court. We shall be straining the language of sections 2(6), 3 & 7 the Contract Act if we were to hold that the Plaint was an acceptance and that the service of a copy of the plaint along with the writ of summons was a communication of the acceptance. Under the old chancery practice the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendant 's offer unless the offer had been withdrawn before, the filing of the suit, see Boys vs Ayerst(1), Agar vs Biden(2), Fry on Specific Performance, 8th ed., article 306, page 142, Pomeroy on Specific Performance, 3rd ed., article It may well be doubted whether this rule can apply under our present practice and procedure. A plaint in a suit for specific performance should allege a concluded contract, see the Code of Civil Procedure 1st Schedule Appendix A, Form No. 48. The offer as well as the acceptance should Pr=& the institution of the suit. However, the precise point does not arise in this case. O.S. No. 46 of 1957 was not a suit for specific performance of the contract. Before the present suit for specific performance of the contract was instituted, the offer had been withdrawn. Counsel for the appellant relying on Bloxam 's Case(3) sub mitted that the communication of an acceptance was not necessary. The argument is misconceived. We have held that the plaint in O.S. No. 46 of 1957 was not an acceptance. There was no other acceptance either oral or in writing. Mere mental assent of the plaintiffs to the defendants proposal is not sufficient. In the peculiar facts of Bloxam 's case a contract to take shares was concluded by an oral application for shares followed by allotment though no notice of allotment was given to the applicant. , Ordinarily ' there is no contract unless there is an acceptance of the application for shares and the acceptance is communicated to the applicant, see In re: Pellatt 's Case(4) . In the last case Lord Cairns, L.J. pointed out that Bloxam 's case turned on its own special facts. Bloxam was orally in formed that if he did not receive an answer within a certain time he was to consider his application granted. In the peculiar cir (1) 1822 .6 Madd. 316, 326= 1 2, 1115. (3) ; (2) (4) 5 85 cumstances, Bloxam could be regarded as having dispensed with the necessity of the communication of the acceptance. In the present case we are not concerned with a contract to take shares. The defendant made an offer to assign a mining lease. No acceptance was made or communicated to the defendant before hi withdrew the offer. There was no concluded, contract and the appeal must fail on this ground. The High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments concerned could not be compelled to accord the necessary sanction and approval, the contract to assign the mining lease could not be specifically performed and on this ground the High Court dismissed the suit. We do not think it necessary to express any opinion on this question. 'Me appeal is liable to be dismissed in view of our conclusion. that there was no concluded contract between the parties. In the result, the appeal is dismissed. The appellant will pay one set of costs to the respondents. G.C. Appeal dismissed.

Under a contract dated August 3, 1957 the defendant agreed to sell to the plaintiffs 40,000 tons of float iron lying in a mining area in the Hosadurgo Taluka in Mysore State, and gave, them a right to win and remove iron ore. On September 2, 1957, the defendant wrote to the plaintiffs that further to the agreement dated August 3, 1957, he agreed to assign the said lease area of 184 acres for iron and manganese ores to the plaintiffs subject to their paying one lakh and eighty thousand rupees within three months. The three months expired on November 6, 1957 without the offer being accepted by the plaintiffs orally or by letter. On October 31, 1957 the defendant posted a letter to the plaintiffs revoking the offer, which reached them on November 6, 1957. The plaintiffs instituted a suit (O.S. No. 55 of 1957) against the defendant alleging that by contract dated September 2, 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest in the aforesaid 184 acres of land and claiming specific performance of the contract. The trial court decreed the suit. The defendant appealed to the High Court. On the question whether the offer made in the defendant 's letter of September 2, 1957 had been accepted by the plaintiffs the High Court held that the plaintiffs had accepted the said offer in their plaint in another suit relating to the possession of the same land (O.S. No. 46 of 1957) a copy of which was served on the defendant on November 5, 1957 a day earlier than the defendant ' s letter revoking the offer reached the plaintiffs. Despite this finding, on another ground, the High Court allowed the defendant appeal and dismissed the suit, namely, O.S. No. 55 of 1957. The plaintiff appealed with certificate to this Court. HELD : The appeal must be dismissed on the ground that there was no concluded contract between the parties. [585 C D] The letter dated September 2, 1957 sent by the defendant to the plaintiffs, though worded as an agreement was in point of law an offer only. The defendant was at liberty to revoke the offer at any time before its acceptance by the plaintiffs. The defendant 's letter revoking the offer reached the plaintiffs on November 6. 1957. Before that date the plaintiffs did not accept the offer either orally or by letter. The High Court was wrong in holding that the plaintiffs accepted the offer by their plaint in O.S. No. 46 of 1957 and that this acceptance was communicated to the defendant before November 6, 1957. [583 B B] Considering the contents of its relevant paragraphs the plaint in question was not in point of law an acceptance of the offer, nor was it intended to be an acceptance. It is not usual to accept a business offer by a plaint; nor is it usual to communicate an acceptance by serving a copy 592 of the plaint through the medium of the Court. To hold thus would be straining the language of s section 2(6), 3 and 7 of the Contract Act. [585 A B] The old chancery practice under which the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendant 's offer unless the offer had been withdrawn before the filing of the suit, cannot be applicable under the present Indian practice and procedure. [585 C E] The argument based on Bloxam 's case that the communication of an assent was not necessary and mere mental assent of the plaintiffs to the defendant 's proposal was sufficient. was misconceived. [585 F] Boys vs Ayerst, ; , 326=56 E.R. 11 12, 1115, Agar vs Biden, and Bloxam 's case; , , distinguished. In re : Pellatt 's case, , applied.

Appeal No. 613/ 1963. Appeal by special leave from the judgment dated December 12, 1960, of the Punjab High Court in Income tax Reference No. 2 of 1958. section K. Kapur, K. K. Jain, Bishambar Lal Khanna and section Murthy, for the appellant. C.K. Daphtary, Attorney General, R. Ganapathy Iyer and R.N. Sachthey, for the respondent. 627 April 2, 1964. The Judgment of the Court was delivered by SIKRI, J. The appellant is a Joint Stock Company, here inafter referred to as the assessee, having its registered office in Delhi. It held 11950 'B ' Preference shares in another company, called Rohtas Industries Ltd., in the previous year (calendar year ending December 31, 1953). The latter company paid a sum of Rs. 50,787/ as dividend on the said Preference Shares to the assessee, and for the assessment year 1954 55 this sum was taxed in the hands of the assessee as dividend, within section 2(6A) of the Indian Income Tax Act, 1922, by the Income Tax Officer. The Appellate Assistant Commissioner, on appeal by the assessee, held it not to be taxable. The Income Tax Appellate Tribunal, on an appeal by the Department, however, agreed with the Income Tax Officer and allowed the appeal. On the application of the assessee, the Appellate Tribunal stated a case for the opinion of the Punjab High Court. The High Court upheld the contention of the Department and answered the question referred to it against the assessee. The assessee, after failing to get a certificate under section 66A(2) of the Income Tax Act, obtained special leave from this Court and now the appeal is before us for disposal. The question referred to the High Court is as follows: "Whether on the facts and in the circumstances of the case, the receipt of Rs. 50,787/ was a receipt of dividend and is taxable under the Indian Income Tax Act. " The facts and circumstances referred to in the question are as follows. Rohtas Industries Ltd., hereinafter referred to, as the declaring company, had in the year 1946 issued shares at a premium and the share premiums so received by it were kept separate under the head 'Capital Reserve '. The declaring company declared a dividend in the previous year of the assessee out of the above capital reserve. The learned counsel for the assessee contends before us that the sum received by the assessee is not dividend within the definition of the word in section 2(6A) of the Income Tax Act. He says that the share premiums were not profits capable of being distributed as profits within Regulation 97 of Table A Of Companies Act of 1913 which lays down that "no dividend shall be paid otherwise than out of the profits of the year or any other undistributed profits. " He argues further that it was a capital gain in the hands of the declaring company and capital gains are expressly excluded from the definition of 'dividend ' by the explanation to section 2(6A) which provides that 'the 628 expression "accumulated profits" wherever it occurs in this clause shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948 '. Lastly, he urges that in any event, section 78 of the , has placed this sum beyond the reach of the Revenue. Before adverting to the arguments addressed to us, it is necessary to reproduce the relevant statutory provisions. Section 2(6A) of the Income Tax Act defines 'dividend ' as follows: (6A) 'dividend ' includes (a) any distribution by a company of accumulated profits, whether capitalised or not, if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company; (b). . . (c). . . Provided that (d). . . Provided that Provided further that the expression "accumulated profits", wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948. " Section 78, of the , reads: "78. (1) Where a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called "the share premium account"; and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid up share capital of the company. (2) The share premium account may, notwithstanding anything in sub section (1), be applied by the company (a) in paying up unissued shares of the company to be issued to members of the company as fully paid bonus shares; (b) in writing off the preliminary expenses of the company; 629 (c) in writing off the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company; or (d) in providing for the premium payable on the redemption of any redeemable preference shares or of any debentures of the company (3) Where a company has, before the commencement of this Act, issued any shares at a premium, this section shall apply as if the shares had been issued after the commencement of this Act: Provided that any part of the premiums which has been so applied that it does not at the commencement of this Act from an identifiable part of the company 's reserves within the meaning of Schedule VI, shall be disregarded in determining the sum to be included in the share premium account. " It is evident from the definition of the word 'dividend ' that if a distribution of accumulated profits, whether capitalised or not, entails the release by the company to its shareholder of all or any part of its assets, it is dividend. It is not disputed that the distribution of Rs. 50,787/ entails the release of the assets of the declaring company. But it is contended that there was no distribution of accumulated profits, because by virtue of Regulation 97, Table A of the Companies Act, 1913, no dividend could be paid otherwise than out of the profits of the year or any other undistributed profits. It is said that the premiums received by the declaring company were not profits within Regulation 97. We are unable to accede to this contention. Previous to the enactment of section 78 of the Companies Act of 1956, and the corresponding section in the English Companies Act, it was recognised that a company ,could distribute premiums received on the issue of shares as dividends (vide Palmer 's Company Law, Twentieth Edition). At page 637, it is stated: legally permissible for the company to distribute dividend out of assets which do not represent profits made as the result of its trading or business. The connotation of divisible profits, or profits in the legal sense, is much wider than that of profits in the business sense: the former term includes, e.g., reserves accumulated from past profits, from realised capital profits indeed, before the requirement of a share premium account by the 1947 48 legislation, from premiums obtained on issue of 630 new shares, whereas none of these items is regarded and rightly so by the businessman or accountant as trading profits." Palmer relies on two cases: Re Hoare & Co. Ltd.,(1) and Drown vs Caumin British Picture Corporation(2). In Re Hoare 's (1) case the company had created a reserve fund con sisting partly of premiums received on the issue of preference: shares. It having incurred a loss arising from the depreciation in the value of the public houses below the amount stated in the company 's balance sheet, applied for sanction of the Court to a scheme for reduction of capital whereby the company, while retaining a small portion of the reserve, attributed to, the reserve more than its rateable proportion and to capital account less than that of its rateable proportion Buckley J. apparently held that these premiums were not 'profits ' in the strict sense; and, on appeal, the counsel for the company contended before the Court of Appeal that this was wrong. Romer, L.J., disposed of this contention in the following words"; "The surplus which was carried to the reserve fund represented that which might have been properly applied at the time, if the company had so thought fit, in paying further dividends to shareholders and no person could have complained if they had done so" Thus, Romer, L.J., thought that there was nothing objec tionable in utilising premiums received on the issue of shares for the purpose of declaring dividend. in Drown 's case(2), a company proposed to pay a dividend on its preference shares and utilise in part premiums received by the company on the issue of shares, which had in fact been invested in the assets of the company. The plaintiff asked for an injunction to restrain the company from paying the dividend. Clauson, J., held that part of a reserve fund consisting of moneys paid by way of premiums on shares, unless set aside in some particular fund which has been wholly spent, is available for dividend purposes. We are not concerned with other points that arose in the case and we have only set out the facts and findings relevant to the question before us. We may here set out Article 129 of the Gauniont British Picture Corporation Ltd. Article 129 reads thus: "The Directors may, with the sanction of a general meeting, from time to time declare dividends or bonuses, but no such dividend shall (except as by (2)[1937] Ch. 631 the statutes expressly authorised) be payable otherwise than out of the profits of the company. . . " . Mr. Kapur, learned counsel for the appellant, had contended that the English Law was different inasmuch as what was prohibited in English Law was payment of dividends out of capital and that it did not enjoin directors to pay dividends out of profits. This case refutes Mr. Kapur 's contention. In re Duff 's Settlements, National Provincial Bank Ltd., vs Gregson,(1) which is strongly relied on behalf of the appellant, and which we will advert to in detail later, Jenkins, L.J., says at p. 926: "The share premiums would have been profits available for distribution (see Drown vs Gamnont British Picture Corporation) " (2). It was thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the word 'Profits ' in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words 'accumulated profits ' within section 2(6A)(a). This takes up to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to section 2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of section 78 of the Com panies Act, 1956. Sub section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called 'the Share Premium Account ' and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid up capital of the company. Sub section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of section 78. The effect of this would be that company which has issued shares at a premium before the commencement of the Act would by (1) (2) 632 virtue of section 78, have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premiums in such a way that they had ceased to remain as an identifiable part of the company 's reserves? The sub section says that in that event the premiums so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of section 78. It has no application to them. If this is so, it is difficult to appreciate bow the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed became invested with the character of capital in the bands of the distributing company. We do not say that for the purpose of income tax any future application of the share premium ac count in one of the ways mentioned in sub section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that section 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from section 78; it remains so taxable. The case of Duff 's Settlements(1) referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal. Before concluding, we may refer to the decision of the House of Lords in Land Revenue Commissioners vs Reids Trustees(2), relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/ was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/ was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about this case. In the result, we agree with the High Court that the answer to question referred to it is in the affirmative. The appeal fails and is dismissed with cost. Appeal dismissed. (1)[1951] 1 Ch.

The appellants are manufacturers of medicine in which they have to use alcohol. According to r. 36 of the Medical Preparation and Spirituous Rules, 1345 F framed under the Hyderabad Abkari Act, 1316 F the appellant used to pay certain fees to the State Government for the supervision of the use of alcohol by the appellants. After the coming into force of the Medical and. Toilet Preparations (Excise Duties) Act, 1955 and the Rules framed thereunder the appellants contended that since R. 36 was repealed by this Act they had not to pay that fee. On the refusal of the State Government to accept their contention the appellants filed writ petitions before the High Court challenging the power of the Government to levy the fee. But the High Court held that R. 36 was not repealed and dismissed the writ petitions. Thereupon the appellant filed the present appeals on certificates granted by the High Court. Before this Court it was contended on behalf of the appel lant that section 21 of the 1955 Act in terms repealed any corresponding State law and therefore R. 36 stood repealed. The respondent contended that the proviso to that section saved all previous rules which were not inconsistent with the Act and hence R. 36 should be deemed to be in force. It was further contended by the respondent State that R. 36 remained in force because it was meant to carry out the general purpose of the Hyderabad Abkari Act which was a general Act relating to alcohol and intoxicating drugs. Held:(i) By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of article 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it. Further the effect of section 21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealed. (ii)By reasons R. 143 of the 1956 Rules r. 36 must be held to have been repealed after the coming into force of the 1955 Act and the rules framed thereunder. The purpose of R. 36 is clearly covered by the 1955 Act and the rules framed thereunder and it cannot survive the said Act and Rules in view of section 21 of the Act and r. 143 and the proviso to section 21 cannot be availed of by the State. 377 (iii)The field covered by R. 36 is completely covered by the Rules framed under the Act and therefore R. 36 can no longer be justified as good under the general law relating to alcohol and in ,, toxicating drugs as contended by the State.

Appeal No. 2702 of 1984. From the Judgment and Order dated 20.6.1984 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED (SB) 2714/83 C. Harish N. Salve, Ashok H. Desai, Miss Meenakshi Grover, Rajiv Dutta, Ravinder Narain, Miss Amrit and Miss Punita Singh for JBD & Co. for the Appellants. A.K. Ganguli, k. Swami, Dilip Tandon and P. Parameshwaran for the Respondents. J.: Common questions of law arose for decision in these 8 appeals need disposal by this judgment. The question relates to classification of "toilet soap" in Excise item 15 of the First Schedule to the Central Excise and Salt Act 1 of 1944 as amended in 1964 for short the Act '. In addition, in C.A. Nos. 81 3/86, 3632 34/88 and 1 102/89 sequal to its finding, they claim refund of excess excise duty. The facts in C.A. Nos. 2702/84 and 2785/84 are sufficient for disposal. The appellants laid before Assiatant Collect or classification list claiming "toilet soaps" Kalpa and Oasis, in other appeals Jai, O.K. Moti, Rain drop, Gold and Ria as bath soaps under Tariff item 15 (1) of the First Schedule (Household). By notice dated August 31, 1982, the Assistant Collector called upon the appellants to show cause as to why they cannot be classified under tariff item 15(2) other sorts and to levy excise duty at 15 per cent ad valorem (as then stood). The appellants after filing their reply thereto and having had personal hearing, by proceeding dated November 27, 1982, the Asstt. Collector classified toilet soaps as "other sorts" under tariff item 15(2) of the Schedule. On appeal the Collector by Order dated January 21, 1983 classified them under tariff item No. 15(1) "household" On second appeal, the CEGAT by its order dated June 20, 1984 reversed the appellate order and upheld the Asstt. Collector 's order, Same is the case with regard to all other appeals except resultant claim for refund. In 1954 tariff item No. 15A was introduced in the First Schedule of the Act thus: "15(A) 'Soap ' all varieties of the product known commercially as soap 1. Soap, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power or of steam for heating: (1) Soap, household and laundry: (a) Plain bars of not less than Rupees one pound in weight fives & annas four per cwt. (b) ther sorts Rupees six & annas 382 two per cwt. (2) Soap toilet Rupees fourteen per cwt. (3) Soap, other then household Rupees and laundry or toilet. fourteen per cwt. This entry as amended in 1964 reads thus " 15 'Soap ' means all varieties of product known commercially as soap : (1)Soap, household and 20 per cent Laundary ad valorem (2) Other sorts 20 per cent ad valorem (Ad valorem rate of tarrif varies from time to time as per amendments). Later it was amended in the year 1979 empowering the Govt. to grant exemption under section 8 of the Act. The details thereof are not material for the purpose of these cases. It is seen that in 1954 in Tariff entry 15A "soap" means all varieties of the product known commercially as soap. Item 1 provided that soap in relation to its manufacture with the aid of power or of steam for heating, they were classified as Plain bars, other sorts, toilet soaps and soap, other then husehold or laundry or toilet. While amending the entry in 1964 the language couched therein as seen earliar is thus: 'soap ' means all varities of products known commercially as soap. 1) Soap, household and Laundry 2) "Other sorts" and graded ad valorem tariff has been prescribed. It is seen that household and laundry soap was subjected to levy of tariff at a lesser rate than other sorts" ad valorem. The contention of Sri Ganguli, the learned Senior counsel for the union is that statute always kept distinction between soap "household and laundry" and "other sorts". Toilet soap was kept in the packet of other sorts. Household and laundry soaps are being used for cleaning household articles and utensils and washing the clothes while toilet soaps are for bathing purpose. The latter compose of diverse varieties, based on personal liking and 383 taste, are being used. They are commercially known as other sorts but not household. The legislative history furnishes unimpeachable evidence that soaps used for household and laundry are compendiously treated as a class and are subjected to imposition of lesser tariff. They receive their colour from each other as compendiously known in the commercial parlance that the former are meant for use for household purposes while toilet soap are for use for bath and are subject to higher rate of tariff at par with soap for commercial and industrial purposes. They bear higher rate of tariff. The explanatory note appended to the Finance Bill 1964 would furnish the legislative intendment to amend the tariff item and the treatment meted out to toilet soap for tariff purpose. It is accordingly understood by the department and also by the trade circles. The appellants too intially treated toilet soap as other sorts but later, on legal opinion, they claimed them as household soaps. The construction adopted by the tribunal is consistent with the standard works on soaps. M/s Harish Salve and Ashok Desai, contended that in 1954 toilet soap was treated as an independent tariff sub item and household and laundry soaps were treated as separate entity and separately subjected to varied rates of tariff. On amendment in 1964 toilet soap was omitted as a separate entity and brought toilet soap as part of genus, namely, soap "house hold", as a toilet soap is always a household soap. Therefore, the reliance by revenue on varied rates of duty or departmental contemporenia expositio have no bearing. The object of classification does not show that toilet soap is not part of the genus, "soap household" unless it is established otherwise. The question, therefore, emerges whether "toilet soap" would be household soap within the meaning of Tariff item 15(1) of the Schedule. Undoubtedly true, as contended by Sri Ganguli, that preceding amendment toilet soap was classified separately under sub item 2 and assessed to duty accordingly. But by amendment the distinction was wiped out and toilet soap was brought into common hotchpoch. So the contention that the variety of products known commercially as soaps have been enumerated or included compendiously, retaining their original colour even after the amendment made in the Finance Act, 1964 and falls into "other sorts" same genus, prima facie, though attractive, on consideration from proper perspective and in its setting in common commercial parlance, soap "toilet" appears to fall in household in sub item 1 of tariff item 15 of the Schedule. It is true that the heading "soaps" are commercially known to be of diverse variety. The provisions of the Tariff do not determine the relevant entity ofthe goods. They deal whether and under what entry, the indentified entity attracts duty. The goods are to be identified and then to find the appropriate heading, sub heading under which the identified goods/products would be classified. To find the appropriate classification description employed in the tariff nomenclature should 384 be appreciated having regard to the terms of the headings read with the relevant provisions or statutory rules or interpretation put up thereon. For exigibility ' to excise duty the entity must be specified in positive terms under a particular tariff entry. In its absence be deduced from a proper construction of the tariff entry. There is neither intendment nor equity in a taxing statute. Nothing is implied. Neither can we insert nor anything can we delete but it should be interpreted and construed as per the words the legislature has chosen to employ. in the Act or Rules. There is no room for assumption or presumptions. The object of the parliament has to be gathered from the language used in the statute. The contention that toilet soap is commercially different from household and laundry soaps, as could be seen from the opening words of entry 15, needs careful analysis. It is well, at the outset, to guard against confusion between the meaning and the legal effect of an expression used in a statute. Where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute. The court would interpret them as they stand. The object and purpose has to be gathered from such word themselves. Words should not be regarded as being surplus nor be rendered Otiose. Strictly speaking there is no place in such cases for interpretation or construction except where the words of statute admit of two meanings. The safer and more correct course to deal with a question of construction of statute is to take the words themselves and arrive, if possible, at their meaning, without, in the first place, reference to cases for theories of construction. Let us, therefore, consider the meaning of the word soap "household". The word household signifies a family living together. In the simplistic language toilet soap being used by the family as household soap is too simplification to reach a conclusion. Therefore, one has to gather its meaning in the legal setting to discover the object which the Act seeks to serve and the purpose of the amendment brought about. The task of interpretation of the statute is not a mechanical one. It is more than mere reading of mathametical formula. It is an attempt to discover the intention of the legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts. it is also idle to expect that the draftman drafted it with divine prescience and perfect and unequivocal clarity. Therefore, court would endeavour to eschew literal construction if it produces manifest absurdity or unjust result. In Manmohad Das vs Vishnu Das; , a Constitution bench held as follows: "The ordinary rule of construction is the provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a leteral construction would reduce the provision to absurdity or prevent manifest intention of the legislature from being carried out". 385 In Ramavatar Budhaiprasad etc. vs Assit. Sales Tax Officer, Akola and Anr. ; , another Constitution Bench was to consider whether "betal leaves" are "vegetable" within the meaning of item 6 of the 11 Schedule to the M.P. Sales Tax Act. It was contended that betal leaves are vegetable and, therefore, they are exempted from the payment of sales tax. While construing item 6, this court held that the words must be construed not in any technical sense nor from the botanical point of view but as, understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning "that sense which people conversant with the subject matter with which the statute is dealing would attribute. to it". It is to be construed as understood in common language. Therefore, betal leaves were held to be not vegetable. The term 'vegetables ' is to be understood as commonly understood denoting those classes of vegetable matter which are grown in kitchen gardens and are used for the table. The same view was reiterated in Motipur Zamindari Co. (Pvt.) Ltd. vs State of Bihar [1962] Supp. 1 SCR 498 and State of West Bengal and Ors. vs Washi Alumed etc. [1977]3 SCR 149. In Washi Ahmed 's case green ginger was held to be vegetable within the meaning of the word used in common parlance. In Motipur Zaminadari 's case it was held that sugarcane was not vegetable. In Porritts & Spencer (Asia) Lid. vs State of Haryana, ; this Court held that Dryer felts ' are not textiles. In that context the principle of understanding the meaning of the word in common parlance was adopted. In Indo International Industries vs Commissioner of Sales Tax. U. P., ; at 297C this Court held that "it is well settled that in interpreating items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to "the scientific anti technical ' meaning of the terms or expression used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the (emphasis supplied) enactment then it must he understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In that case the clinical syringes manufactured and sold by the assessee were not considered as glassware ' falling within entry 39 of the First Schedule of the Act. In commercial sense Glassware would never comprise of articles like clinical syringes etc., or specialised significance and utility. Same view was reiterated in P.A. Chillai Chidambara Nadar vs Addl. Appellate Asst. Commissioner. Madurai and Anr. ; that coconut is neither a fresh fruit nor a vegetable. In khandelwal Metal Works vs Union of India, [1985] Supp. 1 SCR 750 at 774 B C this Court held that court cannot decide classification 386 of goods under Import Tariff by implication. If rules of interpretation are made in the Act, they should be applied and interpretation would be made with their aid for classification. The court held that brass scrap is not metal alloy. Craises on Statute Law (7th Edition) at pace 164 specified one of the Rules of Interpretation of Statutes as extracted below: "The second Rule is that if the statute is passed with reference to a particular trade, business or transaction and, words are used therein which everybody conversent with that trade, business or transaction knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning" In Shri Bharuch Coconut Trading Co. and Ors. vs Municipal Corporation of the city of Ahemdabad and Ors., [1992] Suppl. 1 SCC 298 this Court applied the test as "would a householder when asked to bring some fresh fruits or some vegetable for the evening meal bring Coconut too as vegetable? Obviously the answer is in the negative". Again when a person goes to a commercial market ask for coconuts, "no one will consider brown coconut to be vegetable or fresh fruit, no householder would purchase it as a fruit. Therefore, the meaning of the word brown coconut, whether it is a green fruit has to be understood in its ordinary commercial parlance". Accordingly it was held that brown coconut was not green fruit. In interpreting the statute the individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Legislature is to be put aisde. In Hansraj Gordhan Das vs H.H. Dave. Collector of Central Excise & Customs and Ors., [ 3 this court held that the operation of the statutory notification had to be judged not by the object which authority had in mind but by the words it had employed to effectuate the legislative interest. The question whether the cotton textiles manufactured by handlooms are entitled to exemption, this court held to be positive. It may be noted that marketability of the product is an essential facet to attract dutiability of the goods under the Act. The general purpose or common use of the product though may not be conclusive but may be relevant to classify it in a tariff entry when it was not specifically enumerated in a particular entry or sub entry. The construction of the word must yield in favour of promoting and effectuating the object and purpose of the Act. In Dunlop India Ltd. vs Union of India & Ors. ; this Court found the entry not in residuary but placed in the parentage and relieved it from orphanage. in Anant B. Timbodia vs Union of India, ; , this Court was to consider whether imported cloves fell with item 169 in List 8 of Appendix 6 or para 167 of chapter 8 of import and export policy 1990 93. Para 167 of Chapter 8 of import policy clearly provided the heading Import of Spices includes cloves, cinnamon/ cassia, nupneg and Mace. Therefore, it was held that import permit is necessary. The doctrine of popular sense or trade or its use in making medicine as crude drug 387 was not accepted. Dictionary meaning or meaning given in Indian Pharmaceutical Codex was not accepted as given in in view of specific enumeration. In Superintendent of central Excise, Surat vs Vac Metal Corporaion Ltd. AIR 1986 SC 1167 when the revenue contended that metalised yarn fell within general Tariff entry 18 yarn and synthetic fibres", this court held that entry 15A (2) first schedule of Central Excise & Salt Act 's specific entry relating to articles made of plastics of "all sorts" and metalised yam wax exigible to lessor tariff duty. In Spaco Carburettors (India) Ltd. vs Collector of Customs. Bombay ; whether special purpose complex machine tool fell in entry 84 89 or 84,45/48, this court held, after taking into account the purpose and use of it, that it is a multipurpose machine tool and fell in item 84, 45/48 of 1st Schedule. The contention of the Revenue which finds favour with the tribunal that the legislative history and memorandum appended to the Finance Bill would furnish aid to the construction of the word "household" soap is not apposite to the fact situation. When there is ambiguity in the word, statement and objects the legislative history, the memorandum appended to the Bill and the speech of the mover of the Bill are relevant material to discover the intention intention of the legislature. In Shashikant Laxman Kale and Anr. vs Union of India and Anr. , ; at 376 para 17 this Court held that "for determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when _the law was made, the Statement of Objects and, Reasons of the Bill which actuated the step to provide a remedy for the then existing malady can be used for the limited purpose of appreciating the background and the antecedent state of affairs leading to the legislation. The memorandum explaining the provisions in the Finance Bill which were not part of the 'Notes on Clauses ' appended to the Statement of Objects and Reasons of the Bill cannot be used to draw support therefrom as it is not an accurate guide of the final Act. In that behalf this Court relied on the statement of law profounded by Francis Bennion in his Statuitory Interpretation, Second Edition, 1984 at p. 529 relied on by the appellants in this case too. In Ajoy Kumar Bannerjee and Ors. vs Union of India and ors. relied on by Sri Ganguli in this behalf renders no assistance to the Revenue. Therein the question was the object of delegated legislation. Therein the memorandum appended to the Bill incorporating section 16 of the was considered in the context of fixation of the pay scales of the employees. The doctrine of reading down, placing reliance on Utkal contranctors and Joinery Pvt. and Ors. vs State of Orissa and Ors. ; also is of no assistance to the Revenue. The doctrine of reading down has been applied only to sustain the constitutionality of the statute which question is not before us. There is no quarrel with the proposition that in ascertaining the meaning of the word or a clause or 388 sentence in the statute in its interpretation, everything which is logically relevant should be admissible. It is no doubt true that the doctrine of Noscitur A Sociis, meaning thereby, that it is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them i.e. when two or more words which are susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general is restricted to a sense analogous to a less general. The philosophy behind it is that the meaning of doubtful words may be ascertained by reference to the meaning of words associated with it. This doctrine is broader than the doctrine of ejusdem generis. This doctrine was accepted by this Court in catina of cases but its application is to be made to be context and the setting in which the words came to be used or associated in the statute or the statutory rule. Equally the doctrine of ' contemporanea erpositio is also being invoked to cull out the intendment by removing ambiguity in its understanding of the statute by the executive. This Court in a latest case Indian metals & Ferro Alloys Lid. vs Collector of central Excise cited all the decisions upto date and applied the doctrine to the understanding by the revenue of the provisions in income tax Act ' In Desh Bandhu Gupta and Ors vs Delhi Stock Exchange ; this Court held that this principle can be invoked, though the same will not always be decisive on the question of construction. But the contemporaneous construction placed by administrative or executive officers charged with executing the statute, although not controlling, is nevertheless entitled to considerable weight as highly persuasive. We may also add that if the interpretation is erroneous, court would without hesitation refuse to follow such construction. This Court also equally expressed the view that its application was in restricted sense to ancient legislation in J. K. Cotton Spinning and Weaving Mills Ltd. and Anr. vs Union of India and Ors. [1987] Supp. SCC 350 and in Doypack Systems Pvt. case ; at 1000 F to H. In State of Madhya Pradesh vs M/s. G.S. Dall and Flour Mills, [1992] Supp. 1 SCC 150 at 153 para 18, this Court doubted the application of the doctrine of contemporanea exposito as given to the construction or its applicability to a recent statute that too in the first few years of its enforcement. In this case also the question whether toilet soap is a household soap had arisen within a short period after the Amendment Act, 1964 came into force, Therefore the understanding by the executive and its interpretation in bringing toilet soap in sub item (2) "other sorts" instead of item (1) "household" being of formative period of statutory operation the doctrine became inapplicable. The ratio in Indo Metal case, therefore, is inapplicable. As rightly contended by Sri Ganguli that the doctrine of placement of a particular goods in a particular tariff item or residuary i.e. parentage or orphanage i.e. in placement of toilet soaps 389 in either sub items is not attracted to the facts as it is not a case of residuary items but of sub classification within the same item. Thus considered in the legal setting and commercial parlance we are of the considered view that "toilet soap" being of everyday household use for the purpose of the bath and having removed its separate identity which it enjoyed preceding amendment and having been not specifically included in "other sorts", it took its shelter in commercial parlance under "household". As stated if any body goes to the market and asks for toilet soap he must ask only for household bathing purpose and not for industrial or other sorts. Even the people dealing with it would supply it only for houshold purpose. It may be true that Household consists of soap used for cleaning utensils, laundry used for cleaning soiled clothes and soap toilet is used for bathing but household is compendiously used, toilet soap is used only by the family for bathing purpose. Individual preference or choice or teste of a particular soap for bath is not relevant. The soap "toilet" would, therefore fall, within the meaning the word of "household" in sub item (1) of item 15 of the Schedule. The classification shall accordingly be adopted. The appeals are accordingly allowed. the cases are remitted to the primary authority to deal with the matters accordingly. We do not propose to go into the question of refund as it is a matter to be dealt with by the authorities concerned in accordance with the law. , The appellants shall have to apply for refund and the authorities shall be required to deal with it in accordance with law. It is for the authority, therefore, to decide the question as per law. In the circumstances parties are directed to bear their own costs. V.M. Appeal allowed.

The assessee participated in an All India Highway Motor Car Rally and on being declared a winner, received an amount of Rs. 22,000 as prize money. The Income tax officer included the prize money in his income for the relevant assessment year relying upon the definition of 'income 'in clause (24) of Section 2 of Income Tax Act. On an appeal preferred by the respondent assessee the Appellate Assistant Commissioner held that as the Rally was not a race, the prize money cannot be treated as income within the meaning of section 2(24) (ix). The Tribunal on an appeal by the Revenue, held that the Rally was not a race and as it was a test of skill and endurance, it was not a 'game ' within the meaning of Sec. 2 (24) (ix). As the prize money received was casual in nature it fell outside Sec. 10(3) of the Act. The High Court on a reference at the instance of the Revenue,upholding the findings of the Tribunal,observed that the expression 'winnings ' cannotes money won by betting or gambling and therefore the prize money not represent 'winnings '. Inasmuch as the amount in question was obtained by participating in a rally which involved skill in driving the vehicle, it held, it cannot he included in the assessee 's income, also because it fell outside the preview of s.10 (3). Allowing the Appeal, the Court, HELD:1. The expression 'income ' must be construed in its widest sense. The definition of 'income ' is an inclusive one. Even if a receipt does not fall within sub clause (ix) or any of the sub clauses of Sec.2(24) of the Act it may yet constitute income. Hence the prize money received by the respondent 329 assessee constitutes 'income ' as defined in clause (24) of Section 2 of the Act. (335 C) 2.The High Court erred in reading several sub clauses in Sec. 2(24) as exhaustive when the statute expressly says that the definition is inclusive. Even if a receipt does not fall within the ambit of any of the sub clauses in Sec. 2(24) it may still he income if it partakes of the nature of income. The idea behind providing inclusive definition in Sec. 2(24) is not to limit its meaning but to widen its net. This Court has repeatedly said that the word 'income ' is of widest amplitude and that it must he given its natural and grammatical meaning. (335 D) Kamakshya Narayan Singh vs C.LT P.C., Navin Chandra Mafatlal vs C.I.T, Bombay 26 ITR (SC)and Bhagwan Das Jain vs Union of India SC, followed. Gopal SaranNarain Singh vs Commissioner of Income Tax, 3ITR237 P.C., referred to. 3.If the monies which are not earned in the true sense of the word Constitute income, it is difficult to appreciate why do monies earned by skill and to not constitute income? The Rally was a contest, if not a race. The Respondent assessee entered the contest to win it. The Prize money which he got in return for winning the contest was a reward for his skill and endurance. It does constitute his income which expression must be construed in its widest sense. (335 B) 4.The sub clause (ix) of Sec. 2(24), is not confined to games of gambling nature alone. Some of them are games of skill. State of Bombay vs R.M. D. Chamarbaugwala ; ; and Stale of Andhra Pradesh vs K. Satyanarayan ; , followed. 5.As the definition of income in Sec. 2(24) is an inclusive one, its ambit should be the same as that of the word 'income ' occurring in Entry 82 of list 1 of the Seventh Schedule of the Constitution of India. (334 B) 6.Even casual income is 'income 'as is evident from Sec. 10(3). A casual receipt which should mean in the context, casual income is liable to be included in the total income, if it is in excess of Rs. 1,000 by virtue of clause (3) 330 of Sec. 10. The Tribunal erred in its finding that the prize money fell outside the purview of Sec. 10 (3) inspite of holding that the receipt in question was casual in nature. (335 E)

Civil Appeal No. 1296 of 1978. Appeal by Special Leave from the Judgment and order dated 7 5 1976 of the Allahabad High Court in Special Appeal No. 9/76. 924 section section Saksena (In person) G. N. Dikshit and M. V. Goswami for the Respondent. The appellant was appointed by the Government of Uttar Pradesh in November, 1954 as a temporary judicial officer. The State Government terminated his services in December, 1962 but, on representation made by him, the termination order was withdrawn on January 16, 1963. The appellant rejoined service and resumed his duties. However, by an order dated May 18, 1966, his services were terminated again. On a writ petition filed by him in the Allahabad High Court, the termination order was quashed by the High Court on August 8, 1969. The appellant was reinstated with the benefit of continuity of service. His troubles did not end there. Although he had served for about fifteen years, several representation made by him to the State Government for his confirmation met with no response, and he continued to remain a temporary Government servant. Meanwhile, in June, 1973 he was allowed to cross the second Efficiency Bar. But on August 2, 1974 the State Government made an order compulsorily retiring the appellant from service. The order purports to have been made in exercise of the powers mentioned in Note I to Article 465 A of the Civil Service Regulations, which provide for compulsory retirement of a temporary Government servant on attaining the age of SO years. The appellant had reached the age of 54 years. rt was recited in the order that the Governor on being satisfied that it was not in the public interest to retain the appellant, who was described as a temporary judicial officer, required him to retire from service with immediate effect, with three months ' pay in lieu of notice. The order was assailed by the appellant by a writ petition, and a learned single judge of the High Court allowed the writ petition on September 17, 1975 and quashing the order he declared that the appellant continued to remain in service. The learned single judge held that the appellant was not covered by the terms of Article 465 A and as regards Article 465, which was invoked in the alternative in support of the impugned order, he took the view that as the appellant was a temporary Government servant only and not entitled to pension, Article 465 also did not apply. The State of Uttar Pradesh appealed, and a Division Bench of the High Court has, by its order dated May 7, 1976 allowed the appeal and dismissed the writ petition. The Divi 925 sion Bench confirmed that as the appellant was a temporary judicial officer, Note 1 to Article 465 A could not be pressed into service by the State Government for retiring him, but it maintained the order with reference to Note 1 to Article 465 holding that the provision entitled the State Government to retire any Government servant attaining the age of SO years on three months ' notice or pay in lieu thereof. lt observed that the power of the State Government to compulsorily retire a Government servant was not dependent on his eligibility for pension. It was of the view that the appellant, although a temporary Government servant, could be compulsorily retired under Note 1 to Article 465. The further contention of the appellant was also rejected that the impugned order was arbitrary inasmuch as he had been allowed to cross the second Efficiency Bar in June, 1973, which could only have been if his work showed distinct ability and his integrity was beyond doubt and, he urged, nothing had taken place since to justify the order of compulsory retirement passed shortly thereafter. Several contentions have been raised in this appeal by the appellant, who appears in person. In our judgment, one of theem suffices to dispose of the appeal. The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstance, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant 's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quash 926 ed. The appellant will be deemed to have continued in service on the date of the impugned order. The appellant pressed us vehemently to make an order directing his confirmation and pointed out that after he was compulsorily retired as many as 12 temporary judicial officers were considered for confirmation We consider that it would not be right to make the direction prayed for by the appellant. Whether he should be confirmed or not is a matter for the relevant authority. That is a matter to which the authority has yet to apply its mind, and in the circumstances it is not proper that we should pre empt its judgment. The appeal is allowed and the order dated May 7, 1976 of the Division Bench of the High Court is set aside. The order of the learned single judge quashing the impugned order of the State Government is restored. The respondent will pay the costs of this appeal to the appellant. N.V.K . Appeal allowed.

When one of the parties to a case pursuant to the directions of the court, makes written submissions after the Judgment was reserved, such submissions cannot be called private communication to the Judge. They cannot be said to have prejudiced, interfered with or tended to interfere with the due course of justice within the meaning of section 2(c)(ii) of the Contempt of Court Act. These submissions formed part of the record. [937 B D] In the instant case in his counter affidavit filed after the Judgment was reserved the respondent stated that he was filing the statements pursuant to the directions of the Company Judge. The High Court was justified in declining to issue a notice for contempt against the respondents. [937 A E]

(Civil) No. 8227 of 1982. Under Article 32 of the Constitution of India. Dr. Abishek Singhvi, A. Subba Rao and A.S. Gauraya for the Petitioners. Girish Chandra and section Suri for the Respondents. 855 The Judgment of the Court was delivered by PATHAK, CJ. This petition under Article 32 of the Con stitution has been filed by two petitioners, the Assam Rifles Multi purpose Co operative Society Limited and Major General A.S. Guraya, AVSM (Retd.), Vice Chairman of the said Co operative Society. It is stated in this petition that on the north eastern extremity of India, between latitudes 27deg. N. and 28deg. N. and on both sides of longitude 97xE., within the former Tirup District in the NEFA area (now in Arunachal Pradesh) lies substantial territory which is a part of India. It is claimed that Major General Guraya as Inspector General Assam Rifles prepared a programme for settling retired defence personnel, specially of the Assam Rifles, in that region and took preparator steps for effect ing such settlement. It is asserted that about two hundred retired personnel with their families journeyed to the region and settled there on the basis of a scheme approved by the Government of India. It is alleged that the scheme assured allotment of land, grant of title deeds in respect of the allotted land, facilities for movement by air to and from Mohanbari, freedom to develop the allotted areas, grant of advance by way of loans, provision of marketing facili ties for disposal of surplus produce, guaranteed supply of essential commodities and provision of the basic require ments of life for the purpose of encouraging the all round economic development of the area. The Co operative Society was formed with the object of ameliorating the conditions of the settlers and for improving their economic lot. The petitioners relied on correspondence exchanged between them and the authorities of the State Government and of the Central Government and prayed for directions from this Court to the respondents for grant of the reliefs indicated in the writ petition. Counter Affidavits have been filed by the Government of India. Most of the allegations made by the petitioners have been denied. It is asserted that funds have been set apart and basic facilities have been provided. It is alleged that land was not allotted to Major Gen. Guraya as he did not belong to the Assam Rifles and the scheme for rehabilitation of retired personnel from that unit did not cover him. It is alleged that he has engineered this writ petition. We may mention at the very outset that Major General Guraya, who appears in person before us, has categorically stated that he is not interested any more in any personal allotment. The case was taken up by us on 20 February, 1987 and after 856 hearing the parties we were satisfied that settlement and habitation in that region should be encouraged. The region constitutes part of Indian territory and is located on the Indian border with China and Burma. It is in the public interest and for the benefit of the public that settlement of Indian citizens should be encouraged in this area and the area should be suitably developed. In that view, on 20 February, 1987 we made an order directing the Central Gov ernment to nominate a competent authority of suitable status to examine the problem and to look into the scheme and, after hearing the petitioners, to report to the Central Government to enable it to make an appropriate order for redress of the grievances of the petitioners. Pursuant to the order of this Court, a report was submitted by the present Director General, Assam Rifles in which he noted the features of the original scheme set forth in NEFA Adm. letter No. PC 42/63 of 16/17 August, 1963 and the approval with modifications of the Government of India in the Minis try of External Affairs thereto, as well as the points raised by the Assam Rifles Ex servicemen before this Court and before the Director General, Assam Rifles when he visit ed Vijayanagar for the purpose, and in that report, he has made a number of recommendations in support of the scheme to settle Assam Rifles Ex servicemen and to ensure that the various facilities and concessions originally promised to them are provided. We had directed in our order of 20 Febru ary, 1987 that the final order should be made by the Govern ment of India after consideration of the report. It seems that the Government considered the recommendations at an inter Ministerial meeting held in the Home Ministry on 6 July, 1987 and thereafter took the decision contained in Annexure III to the affidavit of Shri R.K. Tandon, Deputy Secretary (NE), Ministry of Home Affairs, New Delhi. It appears that the Government has decided that the Assam Rifles Ex servicemen who have been allotted 10 11 acres of prime land per family in a valley should be provided with agricultural input facilities including animal husbandry, fertilizers, insecticides as well as horticultural support under the normal schemes run by the State Government, that the State Government should be requested to issue specific letters in respect of each family to enable it to obtain loans from banks and other financial institutions, that while free air lifts were not possible, the State Government should be asked to find out whether the subsidised rate of Rs.89 per flight per head could be further reduced and that in any event no charges be levied for abortive flights, that while a full time doctor is already posted in Vijaynagar, the State Government should be requested to post a mid wife to the Vijayanagar hospital and to arrange for periodical visits of a Gynaecologist, that the State PWD be requested to undertake the repair of the suspension bridges forthwith, 857 that the Multi purpose Co operative Society should apply to the State Government for recognition, and that a meeting be called to sort out the difficulties in the disbursal of pension by the Department of Posts and that on issues such as grant of citizenship, loans etc. the position indicated in the minutes of the inter Ministerial meeting held on 6 July, 1987 should be maintained. The report of the present Director General Assam Rifles and the decisions taken by the Central Government thereupon have been considered by us in the light of the submissions made by the parties. The decisions of the Central Government placed before us refer to requests to be made to the State Government to provide some of the facilities required by the settlers. Reference has already been made to those matters earlier. More than sufficient time has passed, and it is desirable to ascertain what action has been taken by the State Government pursuant to those requests of the Central Government. Certain supplementary directions are necessary from this Court, and we make them now: 1. The Central Government and the State Government should decide between them as to which of them will give loans to the settlers and to what extent. The Central Government should direct that the exist ing Post Office establishment be enlarged to handle dis bursement of pensions. The State Government should upgrade the existing middle school to the status of a high school and make ade quate provision for additional seats in the student hostel to absorb the corresponding increase in the number of stu dents resulting from such upgradation. The grant of domicile certificates should be consid ered in relation to the settlers, at least in respect of the members of the petitioner society. The case will now be listed on 1 August, 1989 before which date the respondent No. 1, the Union of India, and the respondent No. 2, the State of Arunachal Pradesh, will file affidavits indicating the action adopted by them pursuant to the decisions taken at the inter Ministerial meeting men tioned earlier and pursuant to the directions made by this Court in this Order.

The appellants were operating launch services for joy rides, film shooting, etc. from Appollo Pier or Gateway of India to Elephanta Island in Bombay. Respondent 7 was a cooperative association of launch owners also engaged in the same activities. The members belonging to the associations were operating launch services turn by turn on voluntary roster system to avoid unhealthy competition. When efforts were made by the police and the Port Trust Authorities to resolve the difference in the operation of launch services between the association and the appellants failed, a roster system was chalked out on the direction of the Deputy Conservator of Bombay Port Trust which was sought to be enforced by the police. When some employees working in the launches were arrested for failure to act according to the roster system, the appellants filed writ petitions claiming that the police and the Port Trust Authorities had no authority to compel them to follow the roster system. The High Court dismissed the writ petitions holding that the Bombay Port Trust Rules conferred powers upon the Deputy Conservator to give directions for berthing and for mooring and unmooring the vessels in the Port, and that apart the police and the Port Trust Authority had adequate powers under the Port of Bombay Passenger Boat Rules, 1962 and section 67 of the Bombay Police Act to regulate the manner in which the launches carried Passengers. In the appeals to this Court, it was contended On behalf of the appellants that: (1) the Deputy Conservator of Bombay Port Trust, respondent No. 3 was not empowered in law to devise an order of the 826 imposition of a roster, and that this action was beyond the powers conferred by the , the Bombay Port Rules and the Port of Bombay Passengers Rules 1962. (2) Respondent No. 3 had purported to act under Rules 4 and 19 of the Bombay Port Rules, Rule 4 of the Port of Bombay Passenger Boat Rules, and section 7 of the Bombay Police Act in having the roster system enforced by the Inspector of Police. (3) The roster has tendency to prohibit trade and the power to regulate Is being misused as a power to prohib it. (4) The imposition of the roster is too severe a measure to deal with the simple problem of overcrowding and chaos and touting for passengers, (5) The provocation for devising and imposing a roster was the complaint made by the appel lant 's trade rivals. and (6) The roster has been prepared and is being enforced without recourse to any statutory provision enabling respondent No. 3 to devise it and impose it. Dismissing the appeals, the Court, HELD: 1. The roster system provides for the regulation of traffic, so that each launch obtains an opportunity of access to the landing place. This is not a distribution of business, but a distribution of the time for which the landing place can be used, and therefore, a regulation of the use of the landing place. The roster is intended to give effect to Rule 4 of the Port of Bombay Passenger Boats Rules, 1962. There is no reason why recourse to a roster system should be considered as unreasonable. [830C.F] 2. The dominant purpose of the regulation of the use of the landing place by the launches is to prevent congestion and a possible breach of peace. The real purpose that the roster is intended to serve, is to ensure the even flow of traffic at landing places. [830H; 831A] Smt. S.R. Venkataraman vs Union of India & Anr. , ; ; Brownelis Limited vs The Ironmongers ' Wages Board Brownells Limited vs The Drapers ' Wages Board, ; and Hanson vs Radcliffe Urban District Coun cil, inapplicable. All the launches owners have equitable access to the landing place and if the other conditions for plying the launches, such as holding of a proper licence, are satis fied, there is no reason why the launches, turn by turn, cannot avail of the facility of an equitable opportunity to use the landing place. [831C D] 827 4(a) There is no excessive invasion of the appellants Fundamental Right to carry on business. [831E] 4(b) What should be the duration for which the appel lants may be allowed to use the landing place, and what should be the turn in which such user may be permitted is essentially a matter for the judgment of the authorities concerned. It is not possible for the Court to adjudicate on this point. [831E F] 5. The disputes between the parties in relation to the application of the roster is not a matter on which this Court will readily enter. [831G] 6. The imposition of a roster is reasonable and the power to impose a roster can be spelt out from the powers conferred on the authorities under the relevant statutory provisions. The roster is only one method of regulation. [831H; 832A]

on No. 569 of 1954. Under Article 32 of the Constitution for the enforcement of fundamental rights. Purshotam Trikamdas, section N. Andley and Rameshwar Nath of M/s Rajinder Narain & Co., for the petitioners. K. L. Misra, Advocate General of Uttar Pradesh, section P. Sinha, K. B. Asthana and C. P. Lal, for the res pondents. April 16. The Judgment of the Court was delivered by SINHA J. This petition under article 32 of the Constitution on behalf of as many as 726 persons, ex 359 patwaris under the first respondent, the State of Uttar Pradesh, seeks the aid of this Court in enforcing the provisions of articles 14 and 16 of the Constitution, on the allegation mainly that they had been denied equality before the law and equal opportunity for employment under the State. The Revenue Minister of Uttar Pradesh is the second respondent, and the Land Reforms Commissioner of that State is the third respondent. The Collectors of Meerut, Muza ffarnagar, Aligarh, Badaun and Moradabad are respondents 4 to 8. It appears that patwaris numbering about 28,000 in the whole of the State of Uttar Pradesh had organised themselves in 1940 into "The U.P. Patwaris Association" with a view to improving their prospects and emoluments. They were part time servants of the Government in the Revenue Department. After the Zamindari Abolition Act was brought into operation in that State, their services were very much in demand. The Association held meetings and passed resolutions demanding increase in pay and allowances and betterment of their service conditions. These matters were under the consideration of the Government, following upon representations and deputation to the Revenue Minister. It appears, however, that under bad advice a large number of patwaris in the State went on a "pen down strike" on the 9th January 1953 with the result that the Government withdrew the official recognition of the Association on the 19th February 1953. In the meantime the new Land Records Manual was published in January 1953 embodying new amended rules regarding recruitment, conditions of service and duties of patwaris. This brought matters to a head and there was a special session of the Association at Lucknow on the 26th January 1953. The Association passed resolutions protesting against the revised Land Records Manual. It was also resolved at the special session that all patwaris should submit their resignations on the 2nd February 1953, requesting that they may be relieved of their work by the 4th March 1953 after which date they will treat themselves as free from all 360 obligations to work under the Government. In pursuance of that resolution, about 26,000 patwaris in the whole of the State resigned. There is no doubt that by submitting their resignations en masse the patwaris betrayed a lack of sense of discipline. By doing so, they apparently intended to paralyse the whole revenue administration in the State and to coerce the Government to accept their demands; but they did not envisage the situation that the Government might accept their resignations and take them at their own words, The Government decided to accept their resignations and the petitioners were relieved of their duties soon after the submission of their resignations, before the 4th March 1953. On the very next day, the 5th March, Government announced the creation of a new service of "Lekhpals" and proceeded to organise that service by recruiting the new personnel which included most of the old patwaris. The new cadre also included all those patwaris whose record of service was free from blemishes and who had withdrawn their resignations. Out of the petitioners also as many as 132 have been absorbed in the new cadre of Lekhpals and many more are likely to be absorbed in the service of Government. Thus it appears that Government have been giving a locus poenitentiae to those of the ex patwaris who have realized their mistake in joining the agitation aforesaid and thus trying to force the bands of Government. The petitioners ' grievance is that they have been prevented from re entering the Government service upon the reorganisation of the cadre under the new Dame. But it is clear that the Government are within their rights to lay down certain qualifications for the new recruits. They are entitled to exclude those persons who have betrayed a lack of proper sense of discipline. It cannot therefore be said that the Government have denied an equal opportunity to those who are equal in all respects. It appears that the Government have not permanently filled all the vacancies in the new cadre. Those of the petitioners who are prepared to accept the discipline of Government service may approach the proper authorities 361 through the proper channel and we have no doubt that their cases will receive sympathetic consideration at the hands of the Government, consistently with the demands of the exigencies of public service. Our attention was particularly invited to the new scheme of recruitment as laid down in the Government orders of the 5th March which contained the directions that all patwaris who bad not resigned and who had not reached the age of superannuation would be absorbed, that the patwaris who had resigned but had withdrawn their resignations by the 4th March 1953 would also be absorbed and that of those who had resigned and whose resignations had been accepted, only those will be absorbed who had an excellent record of work and who had not taken an active part in the agitation. Besides those, fresh recruits also were to be taken in. With reference to those directions it was contended that the petitioners who came within the category excluded from reap pointment had really been denied equal opportunity of appointment as Lekhpals and that thus article 16 of the Constitution was infringed. In our opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service and it is open to that authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. If persons already under Government employment on part time basis had shown themselves not to be amenable to proper discipline in Government offices, it was open to Government not to appoint such persons to the permanent cadre of Lekhpals because such persons could not be said to be as efficient as those who bad excellent records of service and had shown greater sense of responsibility to their employers. Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in article 14, with special reference to the opportunity for appointment and employment under the Government. Like all other employers, Government are also entitled to pick and choose from amongst a large number of 362 candidates offering themselves for employment under the Government. As already indicated, the old patwaris held part time jobs under the Government. The new cadre of Lekhpals is intended to re organise a similar service on a more satisfactory basis both from the point of view of the Government and of the employees themselves. Under the new scheme, the Lekhpals are intended to be whole time servants of the Government on a considerably higher scale of pay and with better prospects subject, of course, to the Government Ser vants Conduct Rules. If the Government have decided to exclude all those who had proved themselves as part time servants of the Government to be lacking in a sense of discipline and of responsibility, it cannot be said that they had been denied equal opportunity of appointment and employment under the Government. Government have not laid down rules excluding any particular group of persons from being candidates for appointment. They bad only issued de partmental instructions not to employ those who bad not a satisfactory record of service in the past. Selection for appointment in Government service has got to be on a competitive basis and those whose past service has been free from blemish can certainly be said to be better qualified for Government service than those whose record was not free from any blemish. The matter thus stands on a basis similar to where the Government may make it a condition precedent to promotion to a higher rank in the same cadre of Government service that only those who had a very satisfactory record in the past would be considered for promotion. It must therefore be held that the petitioners have failed to substantiate their contention that they had been denied equality of opportunity as contemplated by article 16 of the Constitution. After moving this Court under article 32 of the Constitution, most of the petitioners and many others, in all 1,352 in number, also made an application for special leave to appeal (being Special Leave Petition No. 426 of 1955) from the judgment and orders of the High Court of Judicature at Allahabad dated the 363 24th August 1954 passed in Civil Miscellaneous Writ No. 45 of 1954, after their application for leave to appeal to this Court had been dismissed by that Court 's order dated the 5th August 1955. This petition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave. The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No. 1402 of 1955) is that they bad to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that is not a sufficient ground for condoning the delay. In the result, both the petition under article 32 of the Constitution and the petition for special leave to appeal are dismissed. There will be no order as to costs.

The petitioners Ex patwaris under the State of Uttar Pradesh brought the present petition under Article 32 of the Constitution in the Supreme Court alleging that the provisions of articles 14 and 16 of the Constitution had been violated because they bad been denied equality before the law and equal opportunity for employment under the State. Patwaris numbering about 28,000 in the whole State of Uttar Pradesh had organized themselves into "The U.P. Patwaris Associations" with a view to improving their prospects and emoluments. The association passed resolutions demanding increase in pay and allowances etc. The Government was considering these matters when a large number of patwaris went on a "pen down strike" with the result that the Government withdrew the recognition of the Association. The Government further published the new "Land Records Manual" embodying new amended rules regarding recruitment, conditions of service and duties of patwaris. The Association protested against the revised Land Records Manual and passed a resolution that all patwaris should submit their resignations on the 2nd February, 1953 requesting that they should be relieved of their duties by the 4th March, 1953 after which date they will consider themselves as free from all obligations to work under the Government. About 26,000 patwaris actually resigned with a view to paralyse the whole revenue administration in the State and to coerce 47 358 the Government into accepting their demands. The Government however, accepted their resignations and relieved them of their duties before the 4th March, 1953. On the very next date, the 5th March, 1953, the Government announced the creation of a new service of "Lekhpals" and proceeded to organize that service by recruiting the new personnel which included most of the old patwaris. It also included all those patwaris whose record of service was free from blemishes and who had withdrawn their resignations. Some of the petitioners were absorbed in the new cadre of Lekbpals. The Government was thus giving a locus poenitentiae to those of the ex patwaris who had joined the agitation. The question for consideration before the Supreme Court was whether the petitioners who came within the category excluded from re appointment had been denied equal opportunity of appointment as Lekhpals and thus article 16 of the Constitution had been infringed. Held, that the contention of the petitioners that they bad been prevented from re entering Government service upon the re organisation of the cadre under the new name and had been denied equality of opportunity as contemplated by article 16 of the Constitution was without substance as the Government were within their rights to lay down certain qualifications for the new recruits. They were entitled to exclude those persons who had betrayed a lack of proper sense of discipline. Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in article 14 with special reference to the opportunity for appointment and employment under the Government. Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government.

Civil Appeal No. 2371 of 1968. From the Judgment and Decree dated 20th April, 1967 of the Madhya Pradesh High Court in First Appeal No. l of 1960. section N. Kacker, Sol. K. L. Hathi, Rajiv Datta and P. C. Kapur, for the Appellant. L. N. Sinha, H. K. Puri, Vivek Seth, P. P. Singh and M. C. Dhingra for Respondents Nos. 1 4. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by certificate is directed against the judgment of the High Court of Madhya Pradesh dated 20th April 1, 1967 affirming the decree passed by the Additional District Judge Indore decreeing the plaintiff 's suit. The facts of the case are detailed in the judgment of the High Court and that of the District Judge and it is not necessary for us to repeat the same all over again. Briefly, the present action was brought by the plaintiff for recovery of a sum of Rs. 2,00,000 invested by the plaintiff in the Adarsh Bima Company being defendant No. 1 and the predecessor of the appellant, who is defendant No. 3 (Life Insurance Corporation of India). The action was brought on the basis that the Managing Director of the Adarsh Bima Company by practising fraud and misrepresentation on the plaintiff induced him to part with a sum of Rs. 2,00,000 by purchasing 200 shares of Rs. 100/ each. The courts 13 below have recorded clear findings of fact that the fraud alleged by the plaintiff has been clearly proved and that the plaintiff had parted with a sum of Rs. 2,00,000 by investing the same in purchase of 2000 shares as a result of which the shares scrips were handed over to the plaintiff and he was assured of a dividend of 4%. it has also been found as a fact that such a resolution was contrary to the statute of the company. The suit was contested by the appellant who is defendant No. 3 in the courts below mainly on the ground that after the appellant took over the Adarsh Bima Company, he was not liable for any act of the company which was ultra vires the statutes of the company. In support of the appeal the Solicitor General submitted two points before us. In the first place it was contended that on the finding that a fraud was committed on the plaintiff and the act of the Managing Director being ultra vires of the statutes of the company, the company would not be liable although the Managing Director may be personally liable. Secondly, it was argued that assuming that the company was liable but in view of the provisions of section 7(2) of the (hereinafter called the Act), the liability of the appellant would extend only to matters appertaining to the controlled business as defined in the Act. As regards the first contention we find absolutely no substance in the same. There was absolutely no pleading by the defendants that the monies were received by the Managing Director personally and that the same did not go to the coffers of the company. On the other hand, the plaintiff clearly pleaded in paragraphs 3 (b), 8 (a) and 8(b) of the plaint that the money was paid to defendant No. 1 company which after receiving the amount issued share scrips to the plaintiff. The relevant portions of the aforesaid statements may be extracted thus: "3 (b) Relying upon the said guarantee and promise given by the defendant No. 2 on the Company 's behalf Plaintiff No. 1 on 11th June, 1947 gave at Jhabua to Defendant No. 1 Company through Defendant No. 2, Government of India 3 percent Loan Bonds of 1953 55 of the value of Rs. 1,00,000 duly endorsed in favour of Defendant No. 1 company. . The company addressed a letter acknowledging receipt of the application for 1000 shares and the full consideration of the said shares at the rate of Rs. 100 per share and agreed to allot the said 1000 shares to plaintiff No. 4". 14 "8(a) . . . . . . The plaintiffs submit that the transaction of selling the said 2000 shares of defendant No. 1 Company and registering the same as aforesaid in the names of plaintiffs No. 2 to 4 with a guarantee of minimum return is ultra vires the defendant No. 1 Company and is found to be void and inoperative in law. 8(b) The said 2000 shares of defendant No. 1 Company are as aforesaid applied for and registered in the names of plaintiffs No. 2 to 4. At all material times when the said shares were registered in the name of plaintiffs No. 2 to 4, the plaintiffs No. 2 to 4 were minors. The plaintiffs submit that the transaction of issuing the said 2000 shares to plaintiffs No. 2 to 4 who were then minors and registering them as share holders in the Register of defendant No. 1 Company is void in law". Thus, the plaintiff has clearly alleged that the monies were paid to the defendant company and not to the Managing Director personally. If the share scrips were issued, to the plaintiff then it must be presumed that the money was received by the company. This fact has not been denied by the defendant appellant. In these circumstances, therefore, it is absolutely clear that there is nothing to show that the money was paid to the Managing Director personally and not to the company. Moreover, this is essentially a question of fact and it does not appear to have been raised before any of the courts below. For these reasons, therefore, the first contention put forward by the Solicitor General is hereby over ruled. Coming to the next contention the same undoubtedly merits serious consideration. Before however examining this contention the following admitted facts may be stated thus: 1. That the Bima Company was doing merely the business of life insurance and no other; 2. That on the coming into force of the Act the entire interest of the Company vested in the Government: Section 7(2) of the Act runs thus: "7 (2) The assets appertaining to the controlled business of an insurer shall be deemed to include all rights and powers, and all property, whether movable and immovable, appertaining to his controlled business, including, in particular, cash balances, reserve funds, investments, deposits 15 and all other interest and rights in or arising out of such property as may be in the possession of the insurer and all books of account or documents relating to the controlled business of the insurer; and liabilities shall be deemed to include all debts, liabilities and obligations of whatever kind then existing and appertaining to the controlled business of the insurer. Explanation: The expression 'assets appertaining to the controlled business of an insurer ' (a) in relation to a composite insurer, includes that part of the paid up capital of the insurer or assets representing such part which has or have been allocated to the controlled business of the insurer in accordance with the rules made in this behalf; (b) in relation to a Government, means the amount lying to the credit of that business on the appointed day". D It is contended by the Solicitor General that the appellant was liable to discharge only those liabilities which pertained to the controlled business of the insurer. Sub clause (3) of section 2 of the Act defines 'controlled business ' thus: "controlled business" means (i) in the case of any insurer specified in sub clause (a) (ii) or sub clause (b) of clause (9) of section 2 of the Insurance Act and, carrying on life insurance business . " As we have already pointed out that defendant No. 1 Adarsh Bima Company was carrying on the business of life insurance only. Thus the moment the Act was passed, the business of the Adarsh Bima Company vested in the Corporation. Pari passu this contention it was submitted that under section 7(2) of the Act the liability of the appellant would not extend not to any acts which are fraudulent or ultra vires of the statutes of the company. We are, however, unable to agree with this contention. The words of section 7(2) of the Act appear to be of the widest amplitude and the section includes all debts, liabilities, obligations of whatever kind then existing and appertaining to the controlled business of the insurer. There can be no doubt that at the time when the appellant took over the Adarsh Bima Company the obligation to restitute the benefit received by the company from the plaintiff had been fastened and the appellant was legally bound to return the same to the plaintiff under section 65 of the Contract 16 Act in view of the finding of fact recorded by the Courts below that the contract was void. The question as to whether or not the transaction was ultra vires of the statutes of the company was wholly irrelevant because that was the reason why the contract was void and not a ground for exempting the appellant from its liability to pay. The words "of whatever kind" are wide enough, to take within their sweep all kinds of transactions entered into by the predecessor company. The present transaction was undoubtedly entered into by the predecessor company which had received the sum of Rs. 2,00,000 from the plaintiff and had issued share scrips. In these circumstances, therefore, we do not see how the defendant No. 3 can escape his liability even under section 7(2) of the Act. As however the plaintiff will be entitled to restitution of the benefits under section 65 of the Act, he can only get the amount which he had paid to the appellant company and not any interest thereon up to the date of the suit. For these reasons, we are of the opinion that the judgment of the High Court is correct and does not require any interference except a slight modification in the form of the decree. We, therefore, direct that the plaintiff will be entitled to the decree of Rs. 2,00,000 passed by the courts below but not to the interest of Rs. 47,000 claimed by him and to that extent the decree is hereby modified. The plaintiff will however be entitled to interest at six per cent per annum from the date of the suit to the date of the payment. With this modification the appeal is dismissed, but in the circumstances without any order as to costs. S.R. Appeal dismissed.

The plaintiff respondent filed a suit for recovery of a sum of Rs. 2 lakhs invested by him in the Adarsh Bima Company, which was taken over by the appellant, (defendant No. 3) herein, on the basis that the managing,, director of the Adarsh Bima Company by practising fraud and misrepresentation on the plaintiff that the plaintiff would be entitled to an assured dividend of 4%, that too contrary to the statute of the company induced him to part with the said sum by purchasing 200 shares of Rs. 100/ each. The suit was contested by the appellant mainly on the ground that after the appellant took over the Adarsh Bima Company he was not liable for any act of the company which was ultra vires of the statutes of the company. The trial Court passed a decree in favour of the respondents and the High Court affirmed it by dismissing the appeal by the appellant. In appeal by certificate, the appellant contended (a) that on the finding that fraud was committed on the plaintiff and the act of the managing director being ultra vires of the statutes of the company, the company would not be liable although the managing director may be personally liable; and (b) assuming that the company was liable, but in view of the provisions of section 7(2) of the , the liability of the appellant would extend only to matters appertaining to, the controlled business as defined in the Act. Dismissing the appeal the Court. ^ HELD : (1) The words of section 7(2) of the are of the widest amplitude and the section includes all debts, liabilities, obligations of whatever kind then existing and appertaining to the controlled business of the insurer. There can be no doubt that but the time when the appellant took over the Adarsh Bima Company. the obligation to restitute the benefit received by the company from the plaintiff had been fastened and the appellant was legally bound to return the same to the plaintiff under section 65 of the Contract Act, in view of the findings of the Courts below that the contract was void. [15G H, 16A I] (2) The question as to whether or not the transaction was ultra vires of the statutes of the company was wholly irrelevant because that was the reason why the contract was void and not a ground for exempting the appellant from its liability to pay. [16A] (3) The words "of whatever kind" in section 7(2) are wide enough to take within its sweep all kinds of transactions entered into by the predecessor company. The present transaction was undoubtedly entered into by the Predecessor 12 company which had received the sum of Rs. 2 lakhs from the plaintiff and had issued share slips and the appellant, therefore, cannot escape his liability even under section 7(2). [16 A C] (4) As the plaintiff will be entitled to restitution of the benefits under section 65 of the Contract Act, he can get only the amount which he had paid to the appellant company and not any interest upto the date of the suit. [16C] [However the Court awarded interest at six percent per annum from the date of the suit, to the date of payment under section 34 of the C.P.C.] (5) The contention that on the finding that a fraud was committed on the plaintiff and the act of the managing director being ultra vires of the statutes of the company, the company would not be liable although the managing director may be personally liable is wrong. There was absolutely no pleading by the defendants that the monies were received by the managing director personally and in fact the same did not go to the coffers of the company. From the issue of the share scrips to the plaintiff, it must be presumed that the money was received by the company. Moreover this question not having being raised before any Courts below and also being a question of fact cannot be gone into. [13C, E, F, 14D E]

Civil Appeal No. 1727 of 1972. (Appeal from the Judgment and order dt. 8.12.71 of the Delhi High Court in Income Tax Reference No. 30/67). T. A. Ramachandran for the appellant. B. B. Ahuja and Miss A. Subhashini for the respondent. The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave is directed against the judgment of the High Court of Delhi disposing of a reference made to its by the Income Tax Appellate Tribunal on the following question: "Whether on the facts and in the circumstances of the case the sum of Rs. 24,252/ is an item taxable in the previous year under the Provisions of section 10(2) (vii), The appellant is a partnership firm carrying on business as forest contractors. The partners are Thakur Dan Singh and his son, Thakur Mohan Singh. The appeal relates to the assessment year 1958 59, for which the previous year is the financial year ending March 31, 1958. The business was originally carried on by a Hindu undivided family consisting of the aforesaid father and son. There was a total disruption of the family on March 22, 1956 and on the same day the separated members of the family constituted a partnership firm under the name and style of Messrs. D. section Bist & Sons. The business was taken over as a running concern by the firm. At the time when the business was owned by the family, it included three trucks. On account of depreciation allowed in earlier years the written down value of two trucks came to nil in the assessment year 1952 53. As regards the third truck, according to what is stated in the judgment of the High Court the written down value stood reduced to nil by the date of disruption of the Hindu undivided family. During the previous year ending March 31, 1958, relevant to the assessment year 1958 59, two trucks were sold for a total of Rs. 12,000/ while the third truck was sold for Rs. 12,252/ . During the assessment proceeding for the assessment year 1958 59, the Income Tax Officer held that the entire sum of Rs. 24,252/ , representing the sale proceeds of the three trucks, should be deemed to be 226 Profits of the previous year ending March 31, 1958 by virtue of the second proviso to section 10(2) (vii) of the Indian Income Tax Act, 1922, and he included that amount in the total income of the appellant. Before the Appellate Assistant Commissioner the appellant contended ' that as no depreciation was allowed to the appellant in respect of the three trucks no question arose of computing any profit in its hands, but the contention was rejected. The appellant was unsuccessful before the Income Tax Appellate Tribunal also. At the instance of the appellant, a reference was made to the High Court of Delhi. The High Court took the view that inasmuch as the partners of the appellant were the same individuals who were members of the Hindu undivided family and as the business was taken over as a running concern by the appellant from the family "there was merely a change in the style and nature of the Hindu undivided family on March 22, 1956". In the opinion of the High Court the original cost of the trucks to the appellant would be the same as it was to the Hindu undivided family and it rejected the contention that the original cost of the three trucks in the hands of the appellant must be taken as nil. In the result, the High Court affirmed ' that the sum of Rs. 24,252/ was taxable in the hands of the appellant by virtue of the second proviso to section 10(2) (vii). It appears from the judgment of the High Court that the written down value of the three trucks exhausted while they were still the assets of the Hindu undivided family business, the written down value of two trucks having been exhausted in the assessment year 1952 53 and that of the third truck having been exhausted in the assessment year 1956 57. Accordingly, when the business was taken over by the appellant the written down value of the three trucks was nil. In defining the expression "written down value" section 10(5) (b) declares that in the case of assets acquired before the previous year the written down value means ` the actual cost of the assessee less all depreciation actually allowed to him under the Act. " It is urged on behalf of the appellant that the actual cost to the appellant of the three trucks was nil inasmuch as the written down value had already been exhausted when the business was taken over by the appellant. It is urged that as no depreciation could possibly have been allowed to the appellant, no question arises of applying the second proviso to section 10(2) (vii). Now, in enacting the second proviso to section 10(2) (vii) the Legislature sought to recover back from the assessee the benefit allowed to him by way of depreciation allowance earlier, and it did so by imposing a balancing charge on the excess of the sale price over the written down value to the extent of the total depreciation allowance granted to the assessee in the past. In the present case, the appellant could not have been allowed any depre 227 ciation allowance for the reason that from the outset when the three trucks became its property, the written down value was nil. No question can arise of imposing balancing charge under the second proviso to section 10(2)(vii). It is contended by the Revenue that the business was taken over as a running concern by the appellant and" therefore, account should be taken of the depreciation allowed in the hands of the Hindu undivided family. In our opinion, it is immaterial that the business was taken over as a running concern. Where a business is taken over as a running concern by an assessee, the cost to it of the assets must ordinarily turn on the value of the assets as on the date of acquisition. There is no material before us evidencing an intention to the contrary. It cannot be disputed that the actual cost to the appellant of the three trucks must be regarded as nil, and that being so no depreciation can be said to have been ever actually allowed to the appellant. It is pointed out by the Revenue that the partners of the appellant are the same two individuals who constituted the Hindu undivided family, and reliance has been placed on the observation of the High Court that in the constitution of the firm "there was merely a change in the style and nature of the Hindu undivided family". Now we must remember that we are dealing with a case under the Income Tax Act. We are concerned with provisions for the computation of income of an assessee for the purpose of determining its income tax liability. It may be, as is quite often said, that a firm is merely a compendious description of the individuals who carry on the partnership business. But under the Income Tax Act, a firm is a distinct assessable entity. Section 3 of the Indian Income Tax Act, 1922 treats it as such, and the entire process of computation of the income of a firm proceeds on the basis that it is a distinct assessable entity. In that respect it is distinct even from its partners. Commissioner of Income Tax, West Bengal vs A. W. Figgies and Company and others(1) As an assessable entity it is also distinct from a Hindu undivided family, which in itself is regarded as a separate unit of assessment under Section 3. Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax, Bengal(D). For the purposes of the question before us it recks little that the very individuals who constituted the Hindu undivided family now constitute the appellant firm. When depreciation allowance was allowed to the Hindu undivided family in its assessment proceedings, it was a step taken in determining the taxable income of the family. The depreciation allowed to the family (1) (2) 228 cannot be regarded as depreciation allowed to the appellant. We must ignore entirely the circumstance that depreciation has been allowed to the Hindu undivided family in the past. On these considerations it is not possible to say that the second proviso to section 10(2) (vii) is attracted. Accordingly, we hold that the sum of Rs. 24,252/ is not taxable in the hands of the appellant for the assessment year 1957 58 by virtue of the second proviso to section 10(2) (vii) of the Indian Income Tax Act, 1922" and we answer the question referred in favour of the appellant and against the Revenue. It was strenuously contended on behalf; of the Revenue that the sum of Rs. 24252/ should be considered as capital gains under section 12B of the Act, and that it could be brought to tax under that head. There was some debate before us whether that point can be regarded as an aspect of the question specifically referred by the Tribunal for the opinion of the High Court. We consider it unnecessary to enter into the matter, because it is open to the Tribunal to consider whether the assessment should be confirmed on any other ground, now that the case will be before it again for disposal conformably to this judgment. The appellant is entitled to its costs of this appeal. P.H.P. Appeal allowed. & Case remitted.

The appellant was found guilty of gross professional misconduct by the Disciplinary Committee II of the State Bar Council, Tamil Nadu and was therefore, debarred from practice as an Advocate for a period of six years. In appeal, the Bar Council of India upheld the said findings but reduced the period of suspension to one year. Dismissing the appeal, the Court Per Iyer, J. (on behalf of Desai, J. and himself) ^ HELD: 1. Punishment has a functional duality deterrence and correction. But conventional penalties have their punitive limitations and flaws, viewed from the reformatory angle. A therapeutic touch, a correctional twist, and a locus penitentiae, may have rehabilitative impact if only Courts may experiment unorthodoxly but within the parameters of the law. [1057 F G; 1058 E] When the Constitution under article 19 enables professional expertise to enjoy a privilege and the confers a monopoly, the goal is not assured income but commitment to the people whose hunger, privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow. [1058 B C] Justice has correctional edge a socially useful function especially when the delinquent is too old to be pardoned and too young to be disbarred. Therefore, a curative not cruel punishment has to be designed in the social setting of the legal profession. Punishment for professional misconduct is no exception to this 'social justice ' test. [1058 A, E] In the present case, therefore, the deterrent component of the punitive imposition persuades non interference with the suspension from practice reduced 'benignly at the appellate level to one year. From the correctional angle a gesture from the Court may encourage the appellant to turn a new page. He is 1055 not too old to mend his ways. He has suffered a litigative ordeal, but more importantly he has a career ahead. To give him an opportunity to rehabilitate himself by changing his ways, resisting temptations and atoning for the serious delinquency, by a more zealous devotion to people 's cause like legal aid to the poor may be a step in the correctional direction.[1058 E G] 2. Judicial legislation is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense, interpretation is inescapably a kind of legislation. Legislation is not legislation stricto sensu but application and is within the Court 's province. So viewed the punishment of suspension under Sec. 35(3) of the serves two purposes injury and expiation. The ends of justice will be served best in this case by directing suspension plus a provision for reduction on an undertaking to this Court to serve the poor for a year. Both are orders within this Court 's power [1060 F H] 3. Section 35(3) has a mechanistic texture, a set of punitive pigeon holes, but words grow in content with time and circumstance, that phrases are flexible in semantics and the printed text is a set of vessels into which the Court may pour appropriate judicial meaning. That statute is sick which is allergic to change in sense which the times demand and the text does not countermand. That Court is superficial which stops with the cognitive and declines the creative function of construction. 'Quarrying ' more meaning is permissible out of Sec. 35(3) and the appeal provisions in a brooding background of social justice sanctified by article 38 and of free legal aid enshrined by article 39A of the Constitution. [1059 A B] Per Sen (J) In an appeal under Sec. 38 of the the Supreme Court would not, as a general rule interfere with the concurrent findings of fact by the Disciplinary Committee, Bar Council of India and the State Bar Council unless the findings is based on no evidence or it proceeds on mere conjecture and unwarranted inferences. [1066 G H] When 'a lawyer has been tried by his peers ' the Supreme Court cannot interfere in an appeal with the finding in such a domestic enquiry merely because on a re appraisal of the evidence a different view is possible. In the facts and circumstances of the case, no other conclusion is possible than the conclusion reached. There is, therefore no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India. [1067 C D] 2. Disciplinary proceedings before the State Bar Council are sui generis, are neither civil nor criminal in character and are not subject to the ordinary criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive but to inquire, for the protection of the public, the Courts and the legal profession into fitness of the subject to continue in the capacity of an advocate. Findings in disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence. That test is clearly fulfilled in the instant case. [1067 A B] 3. It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or 1056 part of the hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to this course being taken. Counsel 's paramount duty is to the client; accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some other lawyer. It is unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure of the facts. [1067 D E] In the instant case, if there was any conflict of interest and duty the appellant should have declined to accept the brief. What is reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and never filed the suits but in a frantic effort to save himself, he threw the entire blame on his junior. [1068 B C] Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him by the complainants in this case. [1067 F, G H; 1068 A] 4. The punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any further interference. In a case like this, the punishment has to be deterrent. Any appeal for mercy is wholly misplaced. It is a breach of integrity and a lack of probity for a lawyer to wrongfully with hold the money of his client and there was in this case complete lack of candour on the part of the appellant. [1068 D, F] (per contra) (a) Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client, or that the wrong was committed or aided by means of false representations, fraud or deceit, the fact that the advocate makes restitution to or settlement with the client will not prevent disbarment especially where restitution was not made until after the commencement of the disciplinary proceedings. It is only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation particularly when the repayment is made under pressure. [1068 H, 1069 A] (b) When there is disbarment or suspension from practice, the lawyer must prove, if he can, after the expiration of a reasonable length of time, that he appreciates the significance of his dereliction, that he possesses the good character necessary to guarantee uprightness and honour in his professional dealings, and therefore is worthy to be restored. The burden is on the applicant to establish that he is entitled to resume the privilege of practising law without restrictions. There is nothing of the kind in the present case. Even if the Supreme Court has the power to make such a direction, in terms of section 38, the Court has a duty to act with justice to the profession and the public as well as the appellant seeking reinstatement, and without regard to mere feelings of sympathy for the applicant. Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for reinstatement. [1068 B D] 1057 (c) A direction requiring the advocate to undertake free legal aid during the period of his suspension would be a contradiction in terms. Under section 35(4), when an advocate is suspended from practice under cl. (c) of sub section (3) thereof, he shall, during the period of suspension be debarred from practising in any court or before any authority or person in India. If the making of such a direction implies the termination of the order of suspension, on the fulfilment of the conditions laid down, no restriction on the right of the advocate to appear before any Court or authority, which privilege he enjoys under section 30 of the Act, can be imposed.[1069 D F] The Court directed: (i) the appellant to pay a sum of Rs. 2,500/ to the victim of the misconduct and produce a receipt (ii) give an undertaking as directed viz., accepting the suspension from practice upto 14th August 1979 and willingness to undertake work under any legal aid body in Tamil Nadu and convince the Chairman of that Board to accept his services in any specific place where currently there is an on going project, produce a certificate in this behalf from the Board and (iii) agree to do only free legal and for one year as reasonably directed by the Board (and shall not during that period accept any private engagement) so that the period of suspension shall stand terminated with effect from January 26, 1979. [1061 A D]

RISDICTION: Criminal Appeal N4. 133 of 1971. Appeal by special leave from the judgment and order dated the 15 2 1971 of the Borrrbay High Court in Criminal Appeal No. 1354 (lf 1 969. section K. Gambhir and 5. M. Sikka for the appellant. M. C. Bhandare and M. N. Shroff for Respondent. The Judgment of the Court was delivered by BEG, J. The appellant before us by special leave was charged as follows by the Presidency Magistrate of Bombay: "I.B. P. Saptarshi, Presidency Magistrate 6th Court, Mazaagaon, Bombay, do hereby charge you: Karnal Singh S/o Uttam Singh as follows: "That you on or about the 20th day of February, 1968 at Bombay along with one Balwant Singh s/o Uttam Singh who has absconded, at 171, Kazi Sayyed Street, being entrusted with certain property to wit M/Lorry No. 7372 valued at Rs. 52,000/ belonging to the complainant Shankar Dhondiba Sutar as driver committed criminal breach of trust in respect of the said property and aided and abetted to the absconding accused in commission of the said offence and thereby committed an offence punishable under Sec. 408 r.w. 114 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried by me on the said charge". The prosecution evidence in the case was: one Shankar Dhondiba Sutar a member of the Ex Servicemen Transport Cooperative Society Ltd., Bombay, had purchased the Truck No. MRS 7372 after taking a loan of Rs. 50,000/ from the Society out of which he had paid up Rs. 43,000/ . He had entrusted Balwant Singh Uttam Singh, the brother of the appellant, with the truck. He had a contract with Balwant Singh Uttam Singh under which he used to get a net income of Rs. 2000/ to Rs. 2200/ p.m. from Balwantsingh Uttamsingh who was running the truck and seemed to be incurring all necessary expenses of it. This amount was paid regularly upto December, 1967. Thereafter, Balwantsingh Uttamsingh, the driver, avoided meeting the purchaser of the truck and was said to be absconding. On 4 3 1968, the truck met with an accident and Balwantsingh Uttamsingh is said to have sent information of it to section D. Sutar. On 9 3 1968, according to Sutar, Balwantsingh him self went to Sutar. And, when the owner asked him to take him to the truck, it is alleged that he did not comply with this request. 749 As Shankar Dhondiba Sutar had not paid up the whole amount due for the truck which he had borrowed from the Society, the owner of the truck, as entered in the Insurance papers, was the Society itself. section D. Sutar stated that he found the truck at Thana Katha where he also found the appellant before us, Karnalsingh Uttamsingh, who had been, apparently, driving the truck. The First Information Report was lodged on 20 4 1968 at 12.30 p.m. by section D. Sutar. It is against Balwantsingh Uttamsingh and makes no allegations against the present appellant. It is said that Balwant Singh Uttarnsingh had met section D. Sutar again on 12 3 1968 and told him that he would turn up again. Vazir Singh Gaya Singh, PW 2, the Secretary of the Bombay Ex Servicemen Transport Co. deposed that section D. Sutar was a shareholder in the Company and proved the terms of his contract with Balwantsingh. He also made no complaint whatsoever against the present appellant. All that he said was that the truck was seen near Kashali Bridge and the present accused was its driver. Sub Inspector Ramesh Damodar, PW 3, stated that, on 13 5 1968, Vazir Singh, PW 2, and a police constable brought the truck to Pydhonie Police Station and that it was being driven by the present appellant at that time. This is all the evidence against the appellant. The only question that the appellant was asked by the learned Magistrate under Section 342 Criminal Procedure Code and the appellant 's reply are: "Q. What do you wish to say with reference to the evidence given and recorded against you? A. I do not know whether M/Lorry No. MRS 7372 was handed over to the complainant on sale purchase agreement and that the complainant had paid Rs. 43,000/ towards the instalment. I do not know whether the price was fixed at Rs. 50,000/ . Balwant Singh is my brother but I do not know if the complainant had given lorry in his possession in his capacity as a driver. I do not know whether Balwant Singh left with M/Lorry in Dec. 1967. I do not know anything about Balwant Singh not meeting the complainant thereafter. Mangal Singh told me that this lorry had met with an accident and that I should invest the amount over repair, and after the amount is recovered from the plying of the lorry, the lorry would be returned to him. It is true that Vazir Singh and one P.C. had told me to take the lorry at the Pydhonie Police Stn. I was the driver on the said vehicle at that time. I do not know where is my brother at present. He meets me at times. I have not spoken to him about the case. I want to lead defence witness". He led some evidence in defence. Mangaldas Purshottam, D.W. 1, stated that,one Kartar Singh the driver of the truck had sent him a Trunk Call from Jalan that the truck in question had met with an accident on 4 3 1968 and that he gave this message to section D. Sutar. As the accident was serious and the damage was considerable 750 section D. Sutar was unable to meet with the money required to repair it. According to Vazir Singh, PW 2, the claim against Insurance Co. was of Rs.,11000/ . According to Mangaldas, DW 1, the complainant had agreed that the appellant should repair the truck and deduct its expenses out of the income he could make from plying the truck on hire. He proved Exhibit 1 dated 12 3 1968 containing a writing, signed by section D. Sutar. It has been translated as follows: "Ext. '1 ' Dated 12 3 1968. National India Roadways, "I, shankar Dhondiba give you in writing today that my Lorry No. MRS 7372 which had met with an accident, I am bound to pay total costs whatever comes to of its reparation". Sd./ Shankar Dhondiba Sutar". This was put to section D. Sutar in cross examination. He admitted his signature under the writing and gave no explanation about it. It is significant that it was executed on the very day on which, according to an admission of section D. Sutar, Balwant Singh also saw section D. Sutar. Perhaps the defence has also yet come out with the whole truth. It is, however, quite inconceivable that section D. Sutar would be completely unconcerned as to what had happen to the truck if he had not entrusted it to somebody other than Balwantsingh Uttamsingh for repairs to it. The matter seems to have been report ed to the police only as a result of some quarrel or differences between parties. Moreover, nobody would repair the truck without being paid for it. The explanation given by the appellant was, on the face of it, quite reasonable and credible. It was not merely supported by Mangaldas Purshottarn, D.W.l, whose cross examination did not elicit anything to show that he was unreliable but also, indirectly, by Ashok Jugannath, DW2, the Superintendent of the Commonwealth Insurance Co. `who proved the bills supplied to the Company on the strength of which the Insurance Co. had paid Rs. 6078.35. It was, therefore, clear that somebody had got the truck repaired and realised the amounts to be paid for repairs from the Insurance Company. The beneficiary of the contract of insurance was the Bombay Ex Servicemen Transport Co. of which section D. Sutar was a member. Apparently, the amount had been realised by somebody on behalf of this Company. The bills could have been given by the appellant. In the absence of any proof as to who else could have or had repaired the truck the version of the appellant could not be said to be quite unbelievable. 751 A remarkable part of the case is that the Trying Magistrate had A convicted the appellant under Section 411 Indian Penal Code and sentenced him to six months rigorous imprisonment and to pay a fine of Rs., 500/ when he was not even charged with this offence. , The High Court had maintained this conviction and the sentence and had not even mentioned the defects in the trial. There was neither a charge under Section 411 I.P.C. nor was the appellant asked to explain his Possession of the truck although he did account for it. The appellant 's explanation appeared quite plausible. It may have been difficult to hold that the appellant could not have been prejudiced by the omission to frame a charge or by the manner in which he was put one omnibus question under Section 342 Criminal Procedure Code without giving him an intimation of the offence of which he was likely to be convicted, if these questions had been seriously raised. However, as these questions do not appear to have been argued in the High Court and were`not even raised in the grounds of appeal in this Court, we will not consider them further. We think that this appeal is bound to succeed on the view of the facts we have taken above. The presumption from recent possession of stolen property is an optional presumption of fact under Section 114 Indian Evidence Act. It is open to the Court to convict an appellant by using the presumption where the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the appellant is open to the prosecution. In the case before us, the appellant had given a fairly acceptable explanations. The prosecution had been unable to repel the effect of it. The owner of the truck, section D. Sutar, had made admissions which indicated that the prosecution case of an unlawful possession on the part of the appellant was not likely. It is more likely that the appellant had been entrusted with the truck in order that he might repair it and realise the costs. However, we express no opinion on this aspect of the matter as the sentence of such a contract may involve a civil liability. All we need say is that the explanation which the appellant had given was good enough to raise serious doubts about the sustainability of a charge under Section 411 Indian Penal Code on the strength of what was laid down in Otto George Gfeller vs The King(1), the appellant was entitled to an acquittal. It was held there (at p. 215): "The appellant did not have to prove his story but if his story broke down the jury might convict. In other words, the jury might think that the explanation given was one which could not reasonably be true, attributing a reticence or an incuriosity or a guilelessness to the appellant beyond anything that could fairly be supposed". In that case, the question had to go before the Jury and the charge was found to be defective. The principle of benefit of doubt, on questions of fact, applies whether the verdict is of a Jury or the finding is to be given by a Judge or a Magistrate. The principle laid down in Gfeller 's case (supra) (at p. 214) was: 752 ". that upon the prosecution establishing that the accused were in possession of goods recently stolen they may in the absence of any explanation by the accused of the way in which the goods came into their possession which might reasonably be true find them guilty, but that if an explanation were given which the jury think right reasonably be true, and which is consistent with innocence although they were not convinced of its truth the prisoners were entitled to be acquitted inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt. Of the accused" Consequently, we allow this appeal and set aside the conviction and sentence of the appellant. His bail bonds are discharged. S.R. Appeal allowed.

Section 5(1) of the , provides two types of procedure for fixing and revising minimum wages in respect of any scheduled employment. Section 7 provides for the appointment of an Advisory Board. If the procedure provided in s.5(1) (a) is followed consultation with the Advisory Board is not u required while it is mandatory in case the procedure in cl. (b) is followed. Under cl. (a), the Government can appoint as many Committees or sub committees as it considers necessary to hold inquiries and advise it in respect of such fixation or revision. Section 9 requires that every committee, sub committee and the Advisory Board shall consist of representatives of the employers and employees in equal numbers and independent persons, whose number shall not exceed 1/3 of the total number of members. One of the independent persons shall be appointed Chairman. [643 G 644 F] In the present case the State Government followed the procedure under cl. (a) and appointed a committee for revising the wages with respect to employment in Mica Mines which is a scheduled employment under the Act. The committee consisted of five members, two representative of the employers,. two of the employes and a Professor of ' Economics of a Government college as an independent member. It submitted its report to the Government. The Government referred the matter to the Advisory Board which consisted of 21 members, 8 representatives of the employers. 8 of the employees and 5 government officers as independent members. The Advisory Board appointed a sub committee to further into matter. In the sub committee were taken same persons who were, not members of the Advisory Board. The sub committee made its recommendations and the Advisory Board after considering those recommendations also submitted its report and the State Government accepted it with slight variations and fixed minimum wages by a notification. The respondent challenged its validity and the High Court struck it down holding that, (i) the constitution of The Wage Committee and the Advisory Board was not valid because the economics professor and the 5 government member were not independent members, (ii) the Board had exceeded its power. in appointing a sub committee. (iii) the Board committed an illegality in taking into consideration its recommendations while submitting its report to the Government. Allowing the appeal to this Court, ^ HELD :(1) It may be that in certain circumstances persons who are in service of ' the Government may cease to have an independent character if the question arises of fixation of minimum wages in a scheduled employment. the case of fixation of minimum wages in a scheduled employment in which the Government is directly interested, whether Government servants can come in the category of independent members in addition to the Government officer who come on the Board or Committee as representatives of the employers is a matter which has to be considered in an appropriate case. But in the instant case the constitution of the Wage Committee or the Advisory Board was not bad as Government was not an employer in the Mica Mines in respect of which minimum wages were fixed. [646 A E] The State of Andhra Pradesh vs Narayana Velur Beedi Manufacturing Factory and others [1973] I Labour Law Journal, 476, followed. 642 (2) The Advisory Board can device its own procedure and collect information by appointment of sub committees consisting only of some of its members. But the Advisory Board has no power to appoint a rival subcommittee to the one appointed by the Government and take in such subcommittee, persons who are not members of the Board as was done in this case. Therefore. the Advisory Board committed an irregularity in appointing the sub committee and taking into consideration its report. [646 E G] (3) But it does not follow that the impugned notification based upon the report of the Advisory Board was bad even is the irregularity is assumed to be an illegality. The recommendations made by the Board even on consideration of the report of its sub committee was only that of the Advisor Board. Since the procedure was under section 5(1)(a) it was not mandatory for Government to take the opinion of the Advisory Board at all. Therefore, the impugned notification and the proceedings pursuant to it cannot be quashed [646 G 647 B] Gulamahamed Tarasaheb, a Bidi factory by its proprietors Shamrao and other vs State of Bombay and ' others A.I.R. 1962 Bombay 97 referred to.

Appeal No. 469 of 1966. Appeal by special leave from the judgment and decree dated November 25, 1965 of the Bombay High Court in Civil Revision Application No. 1579 of 1962. section G. Patwardhan and M. V. Goswami, for the appellant S.T. Desai and K. L. Hathi, for respondent No.1 The Judgment of the Court was delivered by Bachawat, J. The question arising in this appeal by special leave is whether in a case falling under sub s.(3)(a) of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. 57 of 1947), a tenant can claim protection from eviction by showing his readiness and willingness to pay the arrears of rent before the date of the institution of the suit. The appellant 's husband was a tenant of a flat The rent was in arrears 136 for a period of more than six months. On December 22, 1956, the landlord served a notice on the tenant demanding the rent. The tenant neglected to pay the rent within one month of the notice. On January 11, 1957, he died. On February 4, 1957, the appellant sent the arrears of rent to the landlord by money order, but the landlord refused to accept the payment. On February 5, 1957, the landlord instituted the present suit for eviction of the appellant. The trial Court decreed the suit. The appellant filed a revision application before the Bombay High Court, but this application was dismissed by the High Court. It is to be noticed that the rent was in arrears for a period of more than six months. The tenant neglected to make payment of the arrears of rent within one month of the service of the notice by the landlord under sub section (2) of s.12. The rent was payable by the month, and there was no dispute regarding the amount of the rent. The case was, therefore, precisely covered by sub section (3)(a) of section 12. Nevertheless, the appellant submitted that as she was ready and willing to pay the rent before the institution of the suit, she could claim protection under sub section (1) of section 12. She submitted that the decided cases support this conten tion. In Mohanlal vs Maheshwari Mills Ltd.( '), P. N. Bhagwati, J. held that even in a case falling under sub section (3) (a), a tenant could, by paying or showing his readiness and willingness to pay the arrears of rent before the institution of the suit, claim protection from eviction under sub section A similar opinion was expressed by a Divisional Bench of the Gujarat High Court in Ambalal vs Babaidas(2). The judgment under appeal dissented from the view expressed by the Gujarat High Court. The Bombay High Court held, and, in our opinion, rightly, that in a case falling under sub section (3)(a), the tenant could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit. Sub section (1) of section 12 imposes a general restriction on the landlord 's right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy. Subsection (2) of section 12 imposes the further restriction that no suit for recovery of possession on the ground of non payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent. Sub section (3)(a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub s (2). In such a case, the tenant (1) (1962) 3 Gujarat Law Reporter, 574 at pp. 618 to 62). (2) (1962) 3 Gujarat Law Reporter 625, 644. 137 cannot claim any protection under sub section (1), and the Court is bound to pass a decree for eviction. At the material time, sub section (3) (a) of section 12 read : "Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if 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 s (2), the Court may pass a decree for eviction in any such suit for recovery of possession. " The word "may" in this sub section has the effect of "shall". In Bhatya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad(l), this Court held that where the requirements of sub section (3)(a) were satisfied, the Court was bound to pass a decree for eviction. The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by Maharashtra Act No. 14 of 1963. If the conditions of sub section (3)(a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By terdering the arrears of rent after the expiry of one month from the service of the notice under sub section (2), he cannot claim the protection under sub section It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub section (3)(a), the tenant must be dealt with under the special provisions of sub section (3)(a), and he cannot claim any protection from eviction under the general provisions of sub section The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more, "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2)", and the other conditions of sub section (3)(a) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the section and to substitute in it the following condition : "the tenant neglects to make payment thereof until the date of the institution of the suit. " It is not possible to rewrite the section in the manner suggested by the appellant. The appellant 's case fell precisely within sub section (3)(a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit. The appeal is dismissed with costs. V.P.S. Appral dismissed. (1) ; ,330 331.

Two Hindu undivided families one of them being represented by the appellants and the other by the respondents were co owners of a house which was Purchased by them jointly. The appellants occupied a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter 's share occupied by them. On the compensation not being paid as agreed, the respondents filed a suit for its recovery, as well as for partition. In the plaint one S was mentioned as having been adopted out of the plaintiff family and for that reason he was not impleaded. The appellants resisted the suit on the grounds that: (i) S had not been impleaded although a co owner, (ii) the suit was barred by the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947), and (iii) the contract for payment of compensation was not enforceable as there was no ouster of the plaintiffs by the respondents. The trial court decided in favour of the appellants but the High Court held against them. They came to this Court by special leave. HELD: (i) The suit was not incompetent because S was not made a party thereto. The fact of adoption was stated in the plaint and had not been specifically denied by the appellants in their written statements. No specific issue on the question of adoption was raised and it could not be therefore argued that S 's adoption had not been established. [284 A B, F] Oral evidence of the fact of adoption did not become inadmissible merely because the existence of a deed of adoption was admitted. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. [284 D E] (ii) The mere fact that the defendants agreed to pay compensation to the Plaintiffs for their occupation of the plaintiff 's share would not bring into existence a relationship of landlord and tenant. By this agreement the parties never intended to Constitute a relationship of landlord and tenant between the defendants and their co owners. Bihar Act 3 of 1947 was therefore inapplicable and the suit could not be said to be barred under its provisions, [285 C] 281 (iii) Co owners are legally competent to come to any kind of agreement for the enjoyment of their undivided property and are free to lay down any terms covering the enjoyment of the property. Ouster of a co owner is not a sine qua non for enabling him to claim compensation from the co owner who is in occupation and enjoyment of common property. [285 E F]

ON: Criminal Appeal No. 383 of 1976. (With Criminal Misc. Petitions Nos. 62 and 380 of 1976.) (Appeal by Special Leave from the Judgment and Order dated 22 8 1975 of the Delhi High Court in Crl. Writ Peti tion No. 135/75). 241 S.K. Sinha, for the Appellant. V.P. Raman and Girish Chandra, for the Re spondents. Tek Chand Chanana (In person) for the appli cant Intervener. The Judgment of the Court was delivered by BEG J. A petition under Article 226 of the Constitution was fled in the High Court of Delhi, seeking a writ in the nature of Mandamus "or any other appropriate Writ, direction or order", to restrain the respondents from carrying out the sentence of death passed against Amrit Bhushan Gupta, a person condemned to death for having com mitted culpable homicide amounting to murder. The petition was flied by Smt. Shanti Devi, purporting to act on behalf of her son Amrit Bhushan Gupta, who was alleged to be insane. A Division Bench of the Delhi High Court passed the following order on it: "We have no doubt in our minds that if the petitioner is really insane, as stated in the petition, the appropriate authorities will take necessary action. This petition, at this stage, we feel, does not justify invocation of the powers of this Court under Article 226 of the Constitution. Criminal Writ is dismissed. " Before the grant of special leave to the petitioner on 27th August, 1976 an application for intervention in the matter had been filed by Tek Chand Chanana supported by an affidavit stating the following facts which have not been controverted: "Amrit Bhushan Gupta was sentenced to death for burning alive three innocent sleep ing children aged 14, 8 and 5 years at Srini was Puri on the midnight of 21st June, 1968 by the learned Dist. & Sessions Judge Delhi under Section 302 and 7 years R.I. section 307 for attempting to murder Tek Chand Chanana (Peti tioner) on 6th June, 1969 with the remarks 'even the extreme penalty of death may appear too mild for the gruesome murder of three children by burning them alive. ' Delhi High Court confirmed the death sentence on 23rd September, 1969. Amrit Bhushan Gupta 's relatives made the plea of insanity to the High Court but the Hon 'ble High Court refused even to entertain this petition of the ac cused, some dates are given below: Writ petition dismissed on 20th July, 1971 . . Petition dismissed . . 20th August, 1975. Supreme Court had dismissed the var ious petitions of Amrit Bhuahan Gupta noted below: 17 1458SCI/76 242 Special leave petition dismissed on 3rd April, 1970. Petition dismissed on 12th Sept. 1970. Petition dismissed on 30th April, 1971. Writ Petition filed on 11 May 1971 was withdrawn on 2nd August, 1976. Petition dismissed on 8th January, 1976 Rashtrapati had also rejected several mercy petitions of the accused some dates are given below: 1. 10th August, 1970. 6th December, 1970. 8th November, 1971. February, 1972. Government of India had fixed various dates for execution, details given below: 1.18th December, 1970. 25th August, 1975 and 19th December, 1975. Amrit Bhushan Gupta and his relatives have been delay ing the matter on one excuse, or the other. Their latest plea is nothing new. It is repetition of their modus operandi. The petitioner and his wife have been under constant torment since the day their three innocent child ren were gruesomely murdered in 1968 and the punishment awarded to the accused in 1969 is being postponed on the making of the accused. " This Court when granting special leave in this case was obviously not aware of the facts stated above which were concealed. Learned Counsel for the appellant, when asked to state the question of law which called for the invocation of the jurisdiction of this Court under Article 136 of the Constitution, could only submit that the provisions of Section 30 of the Prison ers Act, 1900, should be applied to the petitioner. This section reads as follows: "30. Lunatic Prisoners how to be dealt with. (1) Where it appears to the State Government that any person detained or imprisoned under any order or sentence of any Court is of unsound mind, the State Government may, by a warrant setting forth the grounds of belief that the person is of unsound mind, order his removal to a lunatic asylum or other place of safe custody within the State there to be kept and treated as the State Government directs during the remainder of the term for which he has been ordered or sentenced to be detained or imprisoned, or, if on the expira tion of that term it is certified by a medical officer that it is necessary for the safety of the prisoner or others that he should be further detained under medical care or treat ment, then until he is discharged according to law. 243 (2) Where it appears to the State Gov ernment that the prisoner has become of sound mind, the State Government shall, by a warrant directed to the person having charge of the prisoner, if still liable to be kept in custody, remand him to the prison from which he was removed, or to another prison within the State, or if the prisoner is no longer liable to be kept in custody, order him to be discharged. (3) The provisions of Section 9 of the Luna tic Asylums Act, 1858, shall apply to every person confined in a lunatic asylum under sub section (1) after the expiration of the term for which he was ordered or sentenced to be detained or imprisoned; and the time during which a prisoner is confined in a lunatic asylum under that sub section shall be reck oned as part of the term of detention of imprisonment which he may have been ordered or sentenced by the Court to undergo. (4) In any case in which the State Government is competent under sub section (1) to order the removal of a prisoner to a lunatic asylum or other place of safe custody within the State, the State Government may order his removal to any such asylum or place within any other State or within any part of India to Which this Act does not extend by agree ment with the State Government of such other State; and the provisions of this section respecting the custody, detention, remand and discharge of a prisoner ' removed under sub section (1) shall, so far as they can be made applicable, apply to a prisoner removed under this sub section." Thus, at the very outset, the section invoked relates to the powers of the State Government. It has nothing to do with powers of Courts. It only regulates the place and manner of the confinement of a person, who appears to be a lunatic, when his detention or imprisonment ' is either during the trial or during the period when, after the sentence, he is undergoing imprisonment. In the case of a person condemned to death no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution. A special provision for a person sentenced to death is to be found in Section 30 of the , which lays down: "30. Prisoners under sentence of death. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence be searched by, or by order of, the Jailor and all articles shall be taken from him which the Jailor deems it dangerous or inexpediem to leave in his possession. (2) Every such prisoner shall be con fined in a cell apart from all other pris oners, and shall be placed by day and by night under the charge of a guard. " 244 The whole objection of the proceedings in the High Court and now before us seems to be to delay execution of the sentence of death: passed upon the appellant. In view of the number of times the appellant has unsuccessfully ap plied, there can be little doubt that the powers of the High Court and of this Court ought not to have been invoked again. The repeated applications constitute a gross abuse of the processes of Court of which we would have taken more serious notice if we were not disposed to make some allow ance for the lapses of those who, possibly out of misguided zeal or for some other reason, may be labouring under the belief that they were helping an unfortunate individual desperately struggling for his life which deserves to be preserved. A bench of this Court 100 was persuaded to pass orders for observation of the convict and obtaining certificates of experts on the mental condition of the convict. Dr. P.B. Buckshey, Medical Superintendent and Senior Psychiatrist, Hospital for Mental Diseases, Shahdata Delhi, certified as follows: "After careful consideration of the entire mental state of the accused, including his behaviour, I am of opinion that Shri Amrit Bhushan Gupta is a person of unsound mind suffering from Schizophrenia. Schizophrenia is a basically incurable type of insanity characterised by remissions and relapses at varying intervals. Shri Gupta was also severely and over whelmingly depressed and appeared to have lost interest in life." Dr. S.C. Malik, Assistant Professor of Psychiatry, G. B. Pant Hospital, New Delhi, gave a more detailed certificate as follows: "Amrit Bhushan Gupta remained mute throughout the ten days period of observation. He however started communicating to me through writing on 3rd day of encounter. He exhibits gross disturbance in thinking and his emotion al life appears to be disorganised. He is suffering from delusion that he is the incarnation of Christ and that I come to his kingdom or 'Palace '. He does not mutter to himself but at times keeps on staring vacantly in space. He is unable to write coherent meaningful sentences. He coins new words and when asked to explain he says it is 'Technologem of myself as CHRIST '. He also had hallucinations e.g. that Russian planes are shooting his Bunkers and that I should be helping him to drive them away. He exhibited depressive and suicidal I tendencies towards later period of my observation period and broke off all communication as I did not give him potassium Cyanide 'Poison ' so that he (Christ) may go back to his Kingdom. In my opinion he is suffering from 'SCHIZO PHRENIA ' (Chronic) which is a serious mental derangement. He is thus considered to be of unsound mind under the Indian Lunacy Act. " 245 We have not even got any appeal from a conviction and sentence before us. We assume that, at the time of the trial of the appellant, he was given proper legal aid and assistance and that he did not suffer from legal insanity either during his trial or at the time of the commission of the offence. Insanity, to be recognised as an exception to criminal liability, must be such as to disable an accused person from knowing the character of the act he was commit ting when he commits a criminal act. Section 84 of the Indian Penal Code contains a principle which was laid down in England in the form of Macnaughten Rules. The section provides: "84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. " If at the time of the commission of the offence, the appellant knew the nature of the act he was committing, as we assume he did, he could not be absolved of responsibility for the grave offence of murder. A Constitution Bench of this Court has upheld the Constitutional validity of the death penalty in Jagmohan Singh vs The State of U.P. (1). We have to assume that the appellant was rightly convicted because he knew the nature Of his acts when he committed the offences with which he was charged. The legality or cor rectness of the sentence of death passed upon him cannot be questioned before us now. So far as the prerogative power of granting a pardon or of remitting the sentence is con cerned, it lies elsewhere. We cannot even examine the facts of the case in the proceedings now before us and make any recommendation or reduce the sentence to one of life impris onment. The contention which has been pressed before us, with some vehemence, by learned Counsel for the appellant, is that a convicted person who becomes insane after his convic tion and sentence cannot be executed at all at least until he regains sanity. In support of this contention learned Counsel has quoted the following passage from Hale 's Pleas of the Crown Vol. I p. 33: "If a man in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment; and this holds as well in cases of treason, as felony, even the delinquent in his sound mind were examined, and confessed the offence before his arraignment; and this appears by the Statute of 33 H. 8 Cap. 20 which enacted a trial in case of treason after examination in the absence of the party; but this statute stands repealed by the statute of 1 and 2 Phil & Mr. cap. 10 cv. P.C.p. 6 And, if such person after his plea, and before his trial, become of non sane memory, he [1) ; , 0+ * 246 shall not be tried, or, if after his trial he becomes of non sane memory he shah not receive judgment; or, if after judgment he becomes of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execu tion". He also cited a passage from Coke 's Insti tutes, Vol. III, p. 6, which runs as follows: "It was further provided by the said act of 33 H.S. that if a man attained of treason became mad, that notwithstanding he should be executed; which cruel and inhuman law lived not long, but was repelled, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos, metus and omnes perveniat, as before is said; but so it is not when a mad man is executed, but should be a miserable spectacle, both against law and of extreme inhumanity and cruelty, and can be no example to others". The following passage from Blackstone 's Com mentaries on the Laws England VoL IV, page 18 and 19 was also placed before us : "The second case of a deficiency in will, which excuses: from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is that 'furiosus furore solum punitur '. In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for ,treason itself. Also, if a man in his sound 'mind ' commits an offence, and before arraignment for it he becomes mad, he ought not to be 'called on to plead to it, because he is unable to do so ' with that advice and caution that he ought. And, if after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence ? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment, he becomes of non sane memory, execution shall be stayed; for parad venture, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judg ment or execution. Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person, being compos roentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if h6 were of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M.c. 10. For, as is observed by Sir Edward Coke 'the execution of an offender is, for example, ut poena ad paucos, metus ad omnes perveniat; but so it is not a miserable spectable, both against law, and of extreme inhumanity and cruelty. and can be of no example to others". 247 A passage from a modern work, 'An Introduction to Criminal Law", by Rupert Cross, (1959), p. 67, was also read. It reads as follows: "In conclusion it may be observed that there are two other periods in the history of a person charged with a crime at which his sanity may be relevant. First, although there may be no doubt 'that he was sane when he did the act charged, he may be too insane to stand a trial in which case he will be detained during the Queen 's pleasure under the Crimi nal Lunatics Act, 1800 and 1883, pending his recovery. Secondly, if he becomes insane after sentence of death he cannot be hanged until he has recovered. In each of these cases. the question of sanity is entirely a medical question of fact and is in no way dependent on the principles laid down in M 'Naghten 's case. The rule that insanity at the time of the criminal act should be a defence is attributable to the fact that the idea of punishing a man for that which was due to his misfortune is revolting to the moral sense of most of the community. The rule that the accused must be fit to plead is based on the undesirability of trying someone who is unable to conduct his defence, or give instructions on the subject. The basis of the rule that an insane person should not be executed is less clear. Occasionally, the rule is said to be founded on theological grounds. A man should not be deprived of the possibility of a sane approach to his last hours. Sometimes, the rule is said to be based on the fact that condemned men must not be denied the opportu nity of showing cause by why they should not be reprieved". Shri S.K. Sinha, learned Counsel for the appellant, has, industriously, collected a number of statements of the position in English law from the abovementioned and other works of several authorities such as Theobald on Lunacy (p. 254), and Kenny 's Criminal Law (p. 74). On the other hand, learned Additional Solicitor General has relied on the following statement of a modern point of view contained in a book by Mr. Nigel Walker on "Crime and Insanity in England" (Vol. I: The Historical Perspective) at p. 213 214: "Home Secretaries have been even more cautious in offering justifications for the practice of reprieving the certifiably insane or the mentally abnormal. Shortt, though he cited Coke, Hale, Hawkins, Blackstone, Hawles, and Stephen to prove that he was bound by the common law, refrained from dwelling on their explanations of it. which are, as we have seen, far from impressive. The Atkin Committee, being lawyers, were more respectful to the institutional writers, and argued that 'many (sic) of the reasons given for the merciful view of the common law continue to have force even under modern conditions. Everyone would revolt from dragging a gibber ing maniac to the gallows '. If 248 they had reflected they would Surely have conceded that 'modern conditions ' greatly weakened two out of the three traditional reasons. The abolition of public executions made Coke 's argument irrelevant as well as illogical; and Hale 's argument that if sane the condemned man might be able to produce a sound reason why he should not be hanged was greatly weakened now that the condemned man 's interests were so well looked after by his lawyerS. As for Hawles ' argument that an insane man was spiritually unready for the next world (which not even Hawles regarded as the main objection) were the Committee such devout Christians that they set store by it ? Equally odd was their remark that 'everyone would revolt from dragging a gibbering maniac to the gallows ', which sounded as if it was meant as an endorsement of one or more of the traditional justifications, but if so could hardly have been more unfortunately phrased. Why should it be more revolting to hang a 'maniac ' than a woman, a seventeen year old boy or a decrepit old man ? Must the maniac be 'gibbering ' before it becomes revolting ? A more logical justification was sug gested by Lord Hewart, who opposed Lord Darling 's attempt to legislate on the lines recommended by the Atkin Committee (see Chap ter 6). Lord Hewart suggested that the medi cal inquiry should be concerned only with a single, simple question: 'If this condemned person is now hanged, is there any reason to suppose from the state of his mind that he will not understand why he is being hanged ? ' Although this Suggestion would have appealed to Covarrubias, it had little attraction either for the Home Office or for humanitar ians in general, for it was clearly intended to. reduce the number of cases in which the inquiry led to a reprieve. Nevertheless, given certain assumptions about the purpose of the death penalty, it was at least more logical than the traditional justifications which the Atkin Committee had so piously. repeated. If, as Covarrubias and Hewart no doubt believed, the primary aim of a penalty was retributive punishment, it could well be argued that the penalty would achieve its aim only if the offender understood why it was being imposed. This argument is not open, however, to someone who believes that the primary aim of a penalty such as hanging is the protection of society by deterrence or elimination. The Atkin Committee would have been more realistic if they had contented themselves with the obser vation that for at least four hundred years it had been accepted that common law forbade the execution of a mad man, although the institutional writers ' explanations were obviously speculative and odd: and that since 1884 certifiable insanity had been accepted as the modern equivalent of 'madness '. Any fur ther attempt to justify the practice would have involved them in one sort of difficulty or another. as Lord Goddard was to argue to the Gowers Commission". 249 Interesting as the statements on and origins of the Common Law rules on the subject in England, against the execution of an insane person, may be, we, in this country, are gov erned entirely by our statute law on such a matter. The Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the Common Law of England against the execution of an insane person sen tenced to death or some theological, religious, or moral objection to it. Our statute law on the subject is based entirely on secular considerations which place the protec tion and welfare of society in the forefront. What the statute law does not prohibit or enjoin 'cannot be enforced, by means of a writ of Mandamus under Article 226 of the Constitution, so as to set at naught a duly passed sentence of a Court of justice. The question whether, on that facts and circumstances of a particular ease, a convict, alleged to have became insane, appears to be so dangerous that he ,must not be let loose upon society, lest he commits similar crimes against other innocent persons when released, or, because of his anteced ents and character, or, for some other reason, he deserves a different treatment, are matters for other authorities to ,consider after a Court has duly passed its sentence. As we have already indicated, even the circumstances in which the appellant committed the murders of which he was convicted are not before us. As the High Court rightly observed, the authorities concerned are expected to look into matters which lie within their powers. And, as the President of India has already rejected the appellant 's mercy petitions, we presume that all relevant facts have received due consid eration in appropriate quarters. We think that the application to the High Court and the special leave petition to this. Court, in the circumstances mentioned above, were misconceived. Accordingly, we dismiss this appeal. We also dismiss Criminal Miscellaneous Petition No. 62 of 1976, an application for summoning of the original re cord, as it could be of no use, but we allow Criminal Mis cellaneous Petition No. 380 of 1976, the application for intervention, whose contents we have quoted above. Stay of execution order is vacated. P.B.R. Appeal dis missed.

A petition under article 226 of the Constitution was filed in the High Court on behalf of the. appellant, who was sen tenced to death, praying that, since the appellant was insane the State should be restrained from carrying out the sentence. The High Court dismissed the petition holding that if the appellant were really insane, the appropriate authorities would take necessary action. In appeal to this Court, it was contended that convicted person who became insane after conviction and sentence could not be executed until he regained sanity. Dismissing the appeal, HELD: (1) (a) Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the common law of England against the execution of an insane person sentenced to death or for some theological religions or moral objection to it. Our statute law on the subject is based entirely on secular considerations which place the protection and welfare of society in the fore front. [249 B] (b) What the statute law does not prohibit or enjoin cannot be enforced, by means of a writ of mandamus under article 226 of the Constitution, so as to set at naught a duly passed sentence of a court of justice. [249 C] (2) (a) Section 30 of the Prisoners Act, 1900 has nothing to do with the powers of courts. It only regulates the place and manner of confinement of a person, who appears to be a lunatic, when his detention or imprisonment is either during the trial or during the period when, after the sentence, he is undergoing imprisonment. In the case of a person condemned to death, no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution. [243 F] (b) Insanity, to be recognised as an exception to crimi nal liability must be such as to disable an accused person from knowing the character of the act he was committing when he commits a criminal act. If, at the time of the commis sion of the offence, the appellant knew the nature of the act he was committing, he could not be absolved of responsi bility for the grave offence of murder. [245 B D] Jagmohan Singh vs The State of U.P. ; referred to. In the instant case, the whole object. of the proceed ings in the High Court and before this Court seems to be to delay execution of the sentence. In view of the number of times the appellant had unsuccessfully applied the powers of the High Court and of this Court ought not to have been invoked again. [244 A]

Appeal No. 315 of 1961. Appeal by special leave from the award dated December 29, 1960, of the Industrial Trinal Bihar it Patna in Reference No. 4 of 1960. C. K. Daphtary, Solicitor General of India. and Sardar Bhadur, for the appellants. B.P. Maheshwari, for the respondents. March 9. The Judgment of the Court was delivered by GAJENDRAGADKAR,J. This appeal by special leave, is directed against the order passed by the Industrial Tribunal,Patna, directing the appellant, the Tatanagar Foundry Co., to pay to the respondents, its workmen, 75% of the consolidated wages as compensation for having laid them off for a period of 45 days commencing from December 1.5, 1959. it is common around that the appellant laid off the respondents for the said period. The appellant 's case was that it had paid the respondents the statutory compensation for the said lay off as prescribed by s.25C of the Industrial Disputes Act (No. 14 of 1947) (hereinafter called the Act). The 797 respondents, however, contended that the lay off was not justified and so the statutory compensation paid by the appellant did not satisfy the ends of justice. It was this dispute between the parties which was referred for adjudication by the Government of Bihar to the Industrial Tribunal on February 9, 1960. On this reference, the Tribunal has held "that the lay off could not be held to be altogether justified. " That is why it has awarded compensation to the respondents in excess of the amount statutorily fixed in that behalf. The appellant contends that the award thus made by the Tribunal is contrary to law Before dealing with the merits of the contentions raised by the appellant, it would be necessary to state some relevant facts which led to the lay off. The appellant is a Public Limited Company and has its factory in Jamshedpur. It manufactures cast iron sleepers, pipes, general engineering casting and non ferrous castings in the said factory. The raw materials mainly required for the manufacture of sleepers are pig iron, coke, limestone and moulding sand. The Railway Board is the only buyer of sleepers and the sleepers are, therefore, manufactured only on receipt of orders upon tenders from the said Board, and not otherwise. The normal procedure for procuring raw material was that after an order was received from the Railway Board, the appellant submitted its requirement of pig iron to ,the Iron & Steel Controller of the Government of India who allocates the quantity for the said commodity to the various manufactures, such as Tata Iron & Steel Co. Ltd. and Indian Iron & Steel Co. Ltd. Formerly, supply of pig iron used to come from the said two concerns to the appellant and the appellant used to ' pay cash to Tata Iron & Steel Co. Ltd. for the pig iron supplied by it and by a Letter of credit to the Indian Iron & Steel Co. Ltd. on which the said Company used to supply the raw material made by it. In 1959, both the companies 798 stopped supply of pig iron in spite of the order issued in that behalf by the Controller, and they wrote to the appellant suggesting that the appellant should request the Controller to cancel his order and place the same with some other suppliers. Correspondence followed between the said companies and the appellant and finally in November, 1959, the appellant was informed by the said companies that they could not supply its requirements of raw material. In June, 1959, the Bhilai Steel Works made their first shipment of pig iron addressed to, the appellant. In August, 1959, the said Works despatched some wagons of pig iron to the appellant, but out of 20 wagons of the consignment, 14 were lost completely, and the rest misdelivered and were subsequently found somewhere in Gomoh and some in Tatanagar and they never reached the appellant in time. In May, 1959, the appellant arranged for Letter of Credit for a sum of Rs. 1,00,000/ for the Bhilai Steel Works. In August, there was a supply of 440 tons and in September, followed a supply of 36 wagons Containing pig iron to the extent of 20 to 21 tons each roughly. In all, this latter supply came to about 760 tons. In the two subsequent months, no supply was received from Bhilai. The Letter of Credit which the appellant had opened for Bhilai Steel Works was revolving, with the result that as soon as one transaction was completed, the said letter was ready for the subsequent transaction. The effect of this revolving letter was that the value of credit of Rs.1,00,000/ continued to be outstanding all the time. In spite of this revolving letter, the Bhilai Steel Works failed to supply pig iron in the two months October and November. The appellant reminded the Works that no supply of pig iron was received from them and yet no advice of any despatch of pig iron was received from the 799 Works after July 27, 1959. Even the 20 wagons which had been sent in August and September did not arrive at the factory. These wagons, it was later learnt, had been delivered to K. P. Docks and some other destinations. In regard to the supply of pig iron from Rourkela, the appellant arranged for finance on cash basis. In fact, between August and December a total advance of Rs. 1,75,000/ was made to the Rourkela Steel Works. A supply of pig iron worth about Rs. 1,64,000/ was received by the appellant, but the balance of Rs. 11,000/ was still outstanding. ,In addition to the cash advances, the appellant also opened a Letter of Credit for Rs. 1,00,000/ in November, 1959, for financing the purchase of steel from the said Works. As early as 1959, TISCO informed the appellant that it regretted that it would not be possible for it to supply the requirements of the company regularly, while in regard to the supply from IISCO, the position was still worse. The appellant kept its employees and the Assistant Labour Commissioner fully informed of these unfortunate developments from time to time. Both the Assistant Labour Commissioner and Mr. John, President of the respondents ' Union, did what they could by moving the Government to assist the appellant in securing the raw material. Even so, when the situation did not show any signs of improvement and the appellant found that no raw material was available with which its foundry could carry on the manufacture of sleepers, it issued a notice on December 15, 1959, and laid off the ' workers of the Sleeper Factory. This lay off con tinued until September, 11, 1960 and from September 12, 1960, the appellant closed the Sleeper Foundry department and issued notice of retrenchment. Subsequently, retrenchment compensation was duly paid to the workmen who had been retrenched. 800 That, in short, is the background of the lay off, the validity of which formed the subject matter of the present reference. It appears that before the Tribunal it was urged by the respondents that the appellant had deliberately brought about a situation which led to the lay off in order to divert the relevant orders for sleepers to its Belur factory. The argument was that at Belur, the appellant gets its work done at cheaper cost with the help of contract labour. Now, if this contention had been established then it would clearly have been a case of malafides on the part of the appellant and a claim for additional compensation may have been justified. But the Tribunal has rejected this contention and has hold that no evidence had been adduced to prove such a malafide intention on the part of the appellant. It was also urged by the respondents that even in the absence of pig iron, the manufacture of sleepers could have been carried on by utilising a substitute, and in support of this case, four witnesses were examined by the respondents. The Tribunal has rejected this case also. It has found that the evidence given by the four witnesses was unreliable and unsatisfactory and the statement made by the General Manager in cross examination on this point was sufficient to show that in the absence of pig iron, castings with scrap iron and tin could not have been made. In fact, the General Manager categorically stated that the appellant ' had not casted any sleeper without pig iron at any time. Thus, the alternative plea raised by the respondents to suggest that if the appellant had so desired, it could have avoided to lay off its workmen, has also been rejected by the Tribunal. The Tribunal, however, was inclined to take the view that if the management had been more foresighted, it could have avoided the unfortunate 801 position which it had to face at the relevant time and because the Tribunal thought that the situation which faced the appellant at the relevant time was partly due to its negligence, it reached the final conclusion that the lay off was not altogether justified. The Tribunal 's view appears to be that if reasonable care had been exercised by the appellant, the situation could have been avoided. It is this part, of its finding that is seriously disputed before us by the appellant. Under a. 2 (kkk), "lay off" means, inter alia, the failure, or inability of an employer on account of shortage of raw materials to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. As we have already seen, there is no doubt that raw materials wore not available to the appellant at the relevant time and so, the lay off which is the subject matter of the present dispute satisfies the test prescribed by the definition. Section 25C provides for the right of workmen laid off for compensation, and it is common ground that compensation, equal to 50% of the total of the basic wages and dearness allowance, as therein prescribed has been paid by the appellant to the respondents. The issue referred to the Tribunal was whether the action of the management in laying off the workmen was justified. If not, to what relief were, the respondents entitled ? In other words, the reference shows that it was only if the Tribunal came to the conclusion that the lay off wag not justified that the question of considering what additional compensation should be paid to the respondents could arise. If the lay off is justified and it satisfies the requirements of the definition under section 2(kkk), the only relief to which the workmen laid off are entitled is the statutory relief prescribed by a. 25C. There is no doubt or dispute about this position. 802 It is also not in dispute that if the lay off is malafide in the sense that the employer has deliberately and maliciously brought about a situation where lay off became necessary, then it would not be a lay off which is justified under section 2(kkk) and the relief provided to the laid off workmen under a. 25C would not be the only relief to which they are entitled. Malafides of the employer in declaring a lay off really mean that no lay off, as contemplated by the definition, has in law taken place and so, a finding as to malafides of the employer in declaring a lay off naturally takes the lay off out of the definition of section 2(kkk) and as such a. 25C cannot be held to be applicable to it so as to confine the workmen 's right to the compensation therein prescribed. If the lay off has been declared in order to victimise the workmen or for some other ulterior purpose, the position would be the same. It would Dot be a lay off as contemplated by a. 2(kkk). But when dealing with a lay off like the one with which we are concerned in the present appeal it would not be open to the Tribunal to enquire whether the appellant could have avoided the lay off if he had been more diligent, more careful or more far sighted. That is a matter relating to the management of the undertaking and unless malafides are alleged or proved, it would be difficult to assume that the Industrial Tribunal has jurisdiction to sit in judgment over the acts of management of the employer and investigate whether a more prudent management could have avoided the situation which led to lay off. The danger involved in permitting such jurisdiction to the Tribunal is illustrated by the present award itself. The Tribunal has found that the appellant was in financial difficulties at the relevant time ; it has found that the appellant was not actuated by any malafide intention, it has come to the conclusion that the lay off was not the result of any uleriort 803 motive, and yet it has finally come to the conclusion that if the affairs of the appellant it had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached, pig iron could have been secured and lay off could have been avoided. Apart from, the fact that this conclusion does not appear to be borne out by any evidence on record, it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better. management could have avoided the crisis. The appellant is, no doubt, expected to manage its affairs prudently, but it would, we think, not be reasonable or fair to hold that if the employer is faced with a situation under which for lack of raw materials he has to lay off his workmen, it is necessary that he must submit to an enquiry by the Industrial Tribunal about the prudence of the management and the forethought displayed by it in anticipating and avoiding the difficulties. That is why we think in embarking upon an enquiry as to whether the appellant had shown sufficient foresight in managing its affairs, the Tribunal has exceeded its jurisdiction. Besides, as we have just indicated, its finding on the question of negligence is not supported by any evidence on record nor by probabilities in the case. In that connection, it is significant that subsequently the section in question has been closed and the retrenched workmen have been paid retrenchment compensation due to them. The result is, the appeal succeeds and the order passed by the Tribunal for the payment of compensation of 75% of the consolidated wages is set aside. There would be no order as to costs. Appeal allowed.

The appellant company had its Head Office in Calcutta generated electricity for distribution at Jabalpur. By cl. 10 of the power of attorney executed by it, it authorised its Resident Engineer at Jabalpur, "subject to the Standing Orders from, time to time, given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the Company at jabalpur". The respondent was charge sheeted and after enquiry discharged by the Resident Engineer. He made an application to the Assistant Labour Commissioner who ordered his reinstatement without break in his service by without payment of back wages. The State Industrial Court, on revision applications by both the parties held that the Resident Engineer was not empowered to hold the enquiry and to issue an order of discharge and refused to interfere. Both the parties moved the High Court under article 226 of the Constitution. The High Court took the view that the powers of dismissal and suspension under cl. 19 of the Standing Orders and the general right to discharge an employee under cl. 20 of the Standing Orders could not be, and latter powers had not actually been, delegated to the Resident Engineer and allowed the respondent 's application with back wages. Held, that the delegation of power by the power of attorney was vailed in law and covered powers both under cl. 19 and cl. 20 of the Standing Orders. There was nothing in law, or in the Articles of the Association of the Company that forbade such delegation and the. company therefore, could, delegate the powers to meet the exigencies of its business . The opening words of cl. 10 of the power of attorney did not mean that the delegate could not at all exercise the powers since under the Standing Orders the company alone 454 could do so. Their effect is that in exercising these powers the delegate cannot do anything that the company could not do under the Standing orders.

Petition (Civil No. 651 of 1986. (Under Article 32 of the Constitution of India). P.P. Rao, Ms. Bina Gupta, Ms. Vandana Saggar and Ms. Monika Mohil for the Petitioners. V.C. Mahajan, K. Swamy, Ms. A. Subhashini and Ms. Niran jana Singh for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. This petition under Article 32 of the Costitution has been filed by Prahalad Singh claiming that he and other similarly placed Compositors working in the Government of India Presses all over India are entitled to the status and salary of Compositors, Grade I in the "highly skilled" category with effect from January 1, 1966, The said relief is claimed on the sole ground that one T.R. Thakur has already been given Grade I in the "highly skilled" category as a result of the judgment in his favour given by the Himachal Pradesh High Court. The writ petition (C.W. 61/69) filed by T.R. Thakur was allowed by the learned Single Judge of the High Court on May 21,1971 and Letters Patent Appeal against the said judgment was dismissed on May 9, 1979. The High Court held that the categorisation as "highly skilled" and "skilled" on the basis of seniority alone was unreasonable and discriminatory. No special leave 154 petition against the judgment of the High Court was brought to this Court and as such the judgment has become final. Prahalad Singh and others have claimed that they are entitled to the benefit of the judgment given by the High Court in Thakur 's case. According to them the said judgment is applicable in principle to all the Compositors whether they were parties before the High Court or not. This peti tion came for hearing before a Bench of this Court consist ing of R.S. Pathak, CJI, M.N. Venkatachalia, J. The Bench in its order dated April 28, 1989 observed as under : "The principal objection to the grant of relief to the Petitioner and those for whom he claims to act is the gross delay with which the writ petition appears to have been bought in this Court. To surmount that difficulty the petitioner relies upon the plea that the judgment of the High Court in T.R. Thakur 's case is a judgment operative in principle in favour of all compositors situated in the circumstances in which T.R. Thakur found himself. There are other pleas which have been taken by the petitioner, but the substantial one is whether he and the other compositors can enforce in their favour the benefit grant ed in T.R. Thakur 's case although they were not parties to that proceeding. At first blush it would seem that the High Court considered the particular facts of T.R. Thakur, the petitioner before it, and while granting relief it appears, in terms, to have confined it to T.R. Thakur. It is an important point whether, as the petitioner now contends before us, the direction issued by the High Court can be regarded as a direction operative in re spect of all compositors employed in the Government of India Presses all over India, The point is important since the objection on the plea of laches seems to be a substantial one in view of the several compositors who have over the years been promoted to the category of "highly skilled" compositors, and interfering with their status now could mate rially prejudice them. At the same time, it cannot be doubted that there can be cases where although the facts of a particular petitioner have been taken into consideration what the Court indents, when it adjudicates on the claim, is to lay down the law to be ap plied by the respondents to all similar situa tions. There are other cases where relief may be granted or refused upon the consideration of a question involved the question being one which affects several persons of the category to which the petitioner belongs and the grant or refusal of the relief may turn on 155 the particular facts of that case. Various possible categories of cases can be conceived in this context. We think it desirable that in cases such as this the Court should formulate a set of appropriate guidelines indicating when directions rendered by the Court in one particular case can be regarded as operative in other cases. As the matter will be governed both by principle and by the practice of the Court, it is appropriate that this case be referred to a larger Bench for consideration on this and the other points arising in it. " This is how the writ petition has come before us for final heating. It is not necessary to go into the merits of the question posed by the Two Judges Bench of this court because we are of the view that the High Court judgment in Thakur 's case does not lay down the correct law. The facts which led 'to the filing of the writ petition by Thakur are as under: Prior to January 1, 1966, there was one grade of Compos itors (Rs. 110 Rs. 180) in the Government of India Presses. In the year 1963 a committee called "The Committee for Categorisation of the Government of India Press Workers" was constituted to review the classification of posts of indus trial workers in the Government of India printing presses. The said Committee, inter alia, made the following recommen dations : "There was an equally persistent and wide spread demand from the workers that the cate gory of Compositors should be treated as highly skilled instead of skilled as at present. We have very carefully examined this case as well and were unable to subscribe to this demand. Hand composing in the Govt. of India presses is essentially a skilled job. The Managers were, however, of the opinion that 10 15% of the Compositors are frequently expected to handle composition work of mathe matical or scientific discourses. For this, a knowledge application of diacritical marks superior and inferior letters/figures, scien tific signs/symbols etc. are essential. This work, admittedly, involved much higher skill than originally hand composition. The Commit tee,therefore, recommend that a suitable percentage of compositors should be upgraded to the highly skilled category with pay scale of Rs. 175 205. This category should be given an appropriate designation to distinguish it from the ordinary grade of Compositors who should still be in the skilled group. " 156 Accepting the above recommendations, the Government of India, by an order dated March 14, 1966, divided the exist ing cadre of Compositors Compositors Grade I (Rs. 150 Rs. 206) and Compositors Grade II (Rs. 11 O 180). It was further decided that the Compositors Grade I would be classified as "highly skilled" and Compositors Grade II as "skilled". The ratio of Grade I to Grade II was fixed as 20: 80. The initial constitution of the cadre of Compositors Grade I was done by appointing 20% of the Compositors on the basis of seniority cure fitness but trade test was made obligatory for future promotions to Grade I. While implementing the above said decision of the Gov ernment of India, 18 Compositors who were senior to Thakur were given the pay scale of Compositor Grade I. Thakur challenged the denial of higher pay scale of Compositor Grade I to him on the ground that he and the 18 Compositors who were promoted were performing the same duties and were holding similar posts which were inter changeable. According to him all of them were performing the duties of "highly skilled" Compositors and as such the higher grade could not have been denied to him. The learned Single Judge allowed the writ petition and held that the categorisation of the senior most persons as "highly skilled" was arbitrary and discriminatory. The learned Judge issued the following directions: "In the light of the above I am of the view that the petitioner is entitled to the relief prayed for and direction is issued to the respondents not to enforce the revised scale of pay in such a manner as to subject the petitioner to a lower scale of pay than the one allowed to the compositors who have been so fixed in the scale laid down for the highly skill compositors. " The Letters Patent Appeal filed by the Union of India against the judgment of the learned Single Judge was dis missed by the Division Bench of the High Court on the fol lowing reasoning: "The contention of the appellants, as raised by them in paragraph 5 of their return. that by length of service a person acquires more and more skill and, therefore, the test of seniority for the purpose of putting a person in the higher category of Grade I was justi fied, not acceptable because it is very well known that a mere length of service does not always result in more skill in the working of the person concerned. Seniority would have of course relevance in a situation where two persons having equal skill are to be consid ered. But unless such a situation arose it is very much evident that initial placing of the 157 present incumbents on the post of Compositor in the higher category of Grade I could not have been done in total disregard of the degree of skill which each of these incumbents possessed. " Academic pursuit and experience are two primary sources of learning. A Compositor 's job in a printing press is a skilled job requiring special technique. In such a job it would be reasonable to measure the standards of skill by length of experience. The High Court, in our view, fell into error in quash ing the classification based on experience arising out of length of service. It is obvious from the recommendations of the Committee quoted above that "highly skilled" category was created to handle the nature of work which involved higher skill than the original hand composition. The Com positors with longer service and who were found fit for promotion were appointed to Grade I and were categorised as "highly skilled". Experience itself is merit and can be a valid basis for classification. This Court in State of U. P. vs j. P. Chaurasaia; , has upheld the classifica tion based on experience as reasonable classi fication. Jagannatha Shetty, J. speaking for this Court observed: "Article 14 permits reasonable classification founded on different bases. It is now well established that the classification can be based on some qualities or characteristics of persons grouped together and not in others who are left out. Those qualities or characteris tics must, of course, have a reasonable rela tion to the object sought to be achieved. In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration. He or she learns also by experience as much as by other means. It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of newcomers. Even in Randhir Singh case, this principle has been recognised. O. Chinnappa Reddy, J. observed that the classification of officers into two grades with different scales of pay based either on academic qualification or experience or length of service is sustainable. Apart from that, higher pay scale to avoid stagna tion or resultant frustration for lack of promotional avenues is very common in career service. There is selection grade for District Judges. 'there is senior time scale in Indian Administrative Service. There is supertime scale in other like services. The entitlement to these higher pay scales depends upon sen iority 158 cure merit or merit cure seniority. The dif ferentiation so made in the same cadre will not amount to discrimination. The classifica tion based on experience is a reasonable classification. It has a rational nexus with the object thereof. To hold otherwise, it would be detrimental to the interest of the service itself. " We, therefore, hold that the judgment of the Himachal Pradesh High Court in T.R. Thakur 's case does not lay down correct law and is overruled. The only ground on which this petition is based, having become non existent, the petition ers are not entitled to the relief claimed by them and the writ petition is liable to be dismissed. We are, however, of the view that the cadre of Composi tors Grade I 'highly skilled ' should be enlarged. The Com positors are persistently demanding the upgrading of the whole of the cadre. The "Committee" also recommended that suitable percentage be upgraded. The Government created the higher grade for 20% of them. Keeping in view the large number of Compositors all over the country and to remove stagnation we are of the opinion that the ratio between the two cadres should be 33 1/3: 66 2/3%. We, therefore, commend to the respondents to increase the strength of the cadre of Compositor Grade I 'highly skilled ' to 33 1/3 per cent with effect from April 1, 1992. The writ petitions is disposed of in the above terms with no order as 0 costs. V.P.R. Petition dismissed.

Petitioner claiming that he and other similarly placed Compositors working in the Government of India presses all over India were entitled to the status and salary of Compos itors, Grade I in the "highly skilled" category with effect from January 1, 1966 on the ground that the decision of the Himachal Pradesh High Court in Thakurs case was applicable in principle to all the Compositors, filed the present petition under Article 32 of the Constitution. The High Court in Thakur 's case held that the categori sation as "highly skilled" and "skilled" on the basis of seniority alone was unreasonable and discriminatory. As no special leave petition against the judgment of the High Court was brought to this Court the judgment became final. Over ruling Thakur 's case and dismissing the petitions this Court, HELD: I.Academic pursuit and experience are two primary sources of learning. A Compositor 's job in a printing press is a skilled job requiring special technique. In such a job it would be reasonable to measure the standards of skill by length of experience. The High Court fell into error in quashing the classification based on experience arising out of length of service. [157 B] 2. "Highly skilled" category was created to handle the nature work which involved higher skill than the original hand composition. The Compositors with longer service and who were found fit 153 for promotion were appointed to Grade I and were categorised as "highly skilled". Experience itself is merit and can be a valid basis for classification. [157 C D] 3. Keeping in view the large number of Compositors all over the country and to remove stagnation the ratio between the two cadres should be 33 1/3: 66 2/3 %. [158 D] 4. The respondents are directed to increase the strength of the cadre of Compositor Grade I 'highly skilled ' to 33 1/3 percent with effect from April 1, 1992. [158 D] Thakur 's Case (Writ petition C.W. No. 61/69) dated 21.5.1971; overruled. State of U.P.v. J.P. Chaurasia; , ; re ferred to.

: Criminal Appeals Nos. 211 to 217 of 1962. Appeals by special leave from the judgment and order dated May, 5, 1962, of the Madhya Pradesh High Court (Indore Bench) at Indore, in Criminal Appeals Nos. 216, 222 and 227 to 231 of 1961. C. B. Agarwala and Rameshwar Nath, for the appellant. B. Sen and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Ayyangar J. These seven appeals are connected as they relate to the same appellant and the point involved in each is identical. They are before us by virtue of special leave granted by this Court and are directed against the common judgment of the Indore Bench of the High Court of Madhya Pradesh convicting the appellant of a contravention of the Indian Iron & Steel (Scrap Control) Order, 1943. The accused, the appellant before us, was the President of the Scrap Dealers Association at Indore and he was prosecuted before the learned Additional City Magistrate, Indore City in seven sets of criminal cases filed by the State of Madhya Pradesh alleging contravention of section 8(4) of the Iron & Steel (Scrap Control) Order, 1943 by selling or causing to be sold scrap iron to different customers on different dates at a rate higher than was authorised by notification dated September 30, 1952 issued by the Steel Controller under the said order. He was acquitted by the Additional City Magistrate but on appeals preferred by the State Government, the learned Judges set aside the acquittal and convicted him of the offences and sentenced him to pay a fine of 325 Rs. 100 in each case with imprisonment in default of payment of fine. It is the correctness of this judgment of the High Court that is canvassed before us by the appellant in these appeals. To appreciate the points raised by the appellant it is necessary to narrate briefly the history of the legislation on the topic of control over the price at which scrap was permitted to be sold by dealers. The Defence of India Act, 1939 enabled the Central Government to frame rules, among others, "for maintaining supplies and services essential to the life of the community (vides. " In pursuance thereof Rule 81 (2) of the Defence of India Rules empowered the Central Government "so far as appears to them to be necessary or expedient for . maintaining supplies and services essential to the life of the com munity" to provide by order, inter alia, (a) for controlling the pi ices or rates at which articles or things of any description whatever may be sold. . and for relaxing any such prices or rates". By virtue of this power, the Central Government promulgated the Iron & Steel (Scrap Control) Order, 1943 (hereinafter referred to as the Indian Scrap Order) on February 25. This Order to whose provisions we shall have to make some reference later would normally have lapsed on the expiry of six months after the revocation of the proclamation of emergency because of the provisions of section 102(3) (a) of the Government of India Act, 1935. In order to avoid this result, the Emergency Provisions Continuance Ordinance, 1946 was promulgated on September 25, 1946 which continued several orders in relation to the control of production, distribution etc. of essential commodities, and Indian Scrap Order among them, and this ordinance was replaced by a permanent legislation the Essential Supplies (Temporary Powers) Act, 1946 (Act 24 of 1946) which also contained a provision for the continuance of the Control Orders in force [vide section 17(2)]. Section 8(4) of the Indian Scrap Order prohibited the sale of scrap in excess of the prices fixed therefore by the Controller. It is not disputed that the sales in regard to which the appellant has been prosecuted were in excess of the maximum there specified. Several defences were raised but of these those which now survive are only two: (1) The legal effect of the parallel provisions on the same subject viz., control over the sale price of scrap which were in force in the Part B State of Madhya Bharat which comprised Indore, and (2) Whether the appellant as the President of the Scrap Dealers Association which was an unincorporated body could be held liable for, a sale in excess of the sup./64 8 326 authorised maximum price effected by a Munim or Munims of the Association. We shall now proceed to narrate in brief outline the history of the parallel provisions relative to control over the sale price of Scrap in the Part B State of Madhya Bharat. These provisions undoubtedly continued in force in the State till September 12, 1950 when the Indian Scrap Control Order, 1943 was in terms made applicable in that State and the principal point raised by Mr. Agarwala was whether a certain notification which had been issued under the State law and was in force on that date continued in force even thereafter. The State legislation on this topic started on October 9, 1948 with the promulgation of the Madhya Bharat Essential Supplies (Temporary Powers) Ordinance, 1948, which was a reproduction of the Indian Essential Supplies (Temporary Powers) Ordinance, 1946. When this Ordinance was replaced in India by the Essential Supplies (Temporary Powers) Act, 1946, the same process was repeated in Madhya Bharat by the enactment of the Essential Supplies (Temporary Powers) Act (Samvat 2005) (Madhya Bharat Act III of 1948). Among the "essential, commodities" dealt with by the State enactment were iron and steel [vide section 2(3)(7)]. Section 4 of the Act read: "4. Powers to control production, supply, distribution etc., of essential commodities. (1) The Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodities, or for securing their equitable distribution and availability at fair prices may by an Order notified in the Official Gazette provide for regulating or prohibiting the production, supply, distribution and movement thereof, and trade and commerce therein. (2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (c) For controlling the prices at which any essential commodity may be bought or sold; to quote only the material words. In exercise of the powers thus conferred the Director of Civil Supplies, Madhya Bharat, to whom the powers in that behalf were delegated by the State Government, promulgated on June 4, 1949 the Madhya Bharat Iron, Steel and Scrap (Production, Procurement and Distribution) 327 Control Order, 1949. Clause 5 of this Order empowered the Director of Civil Supplies, Madhya Bharat to specify from time to time the maximum prices wholesale and retail at which "iron and steel, scrap or specified articles made thereof" may be sold (a) by a producer, (b) by a controlled stockholder, (c) by a registered stockholder (d) by a controlled dealer and (e) by a scrap merchant. The several categories of persons whose sales were thus regulated were defined in the Order. Acting under this provision, the Director Civil Supplies issued a notification on the same date June 4, 1949 which read: "In exercise of the powers conferred on the Director under clause 5(1) of the Madhya Bharat Iron, Steel and Scrap (Production, Procurement and Distribution) Control Order, 1949, I hereby specify that the Price Schedules as may be in force for the time being under . Iron and Steel Scrap Control Order in the Indian Union in respect of sales by producers, controlled and Registered Stockholders and Scrap Merchants shall apply mutatis mutandis to sales by the aforesaid persons in Madhya Bharat; provided however, that the Registered Stockholders shall sell to Controlled Dealers at II column rates of the Government of India Price Schedule for the time being in force, that Iron and Steel which they receive at column I rate from the producers and at column III rate, that Iron and Steel which they receive from the Controlled Stockholders at column II rates : provided also that controlled Dealers in Madhya Bharat shall sell to consumers at a profit margin of not exceeding Rs. 30 per ton; subject however, in all cases to such local extra charges as may be fixed by me or the officers authorised by me in this behalf. " It is only necessary to add that there were similar Orders passed under the Indian Scrap Order, 1943 in which also the classification of dealers etc., proceeded on the same lines. The form of the notification by the Steel Controller to the Government of India, referred to in this notification was on the following lines : There was a schedule to the notification fixing the maximum prices and it was divided into five columns. First was the number of the item, the second was the description or classification of the material and the next three which were headed columns I, II and III dealt with specified maximum basic prices per ton for sale at Calcutta, Bombay and Madras. There were adjustments 328 indicated for arriving at the prices chargeable at other centres. Column I specified the prices for sales by Controlled Sources other than those mentioned in column 11. The second column was headed "specified prices fixed for sales by scrap merchants who have been declared controlled sources" and the ,last or third column specified the maximum for sales by all persons other than those mentioned in columns I and 11. Different maxima were fixed for sale by persons falling under the three columns, the first column price being the lowest, the second t little higher and the last which included sales by retail dealers to the consuming public being the highest. It is common ground that the Scrap Dealers Association, Indore of which the appellant was the President had been declared "a Controlled Source" ' so that the maximum prices at which members of the Association which was an unincorporated body could sell, were those specified in column II of the schedule. It is not necessary to set out the prices at which the actual sales which wore stated to be in violation of the law, took place, but it is sufficient to state that admittedly the servants of the Association sold scrap iron at prices higher than those fixed in column II and at prices fixed for column III. The first submission of Mr. Agarwala learned Counsel for the appellant was that the sale by the Association at the column ]II price was authorised and legal because of a notification issued by the Government of Madhya Bharat dated August 26, 1949. The principal point argued before us in respect of this notification is as to whether this notification was alive and in force on the date of the sales in 1956 which were the subject of the several prosecutions and whether it has survived subsequent Indian legislation extended to the State to which we shall advert presently. But before proceeding to do so, it would be convenient to consider the nature of that notification. The Scrap Dealers Association of Madhya Bharat appear to have made a representation to the State Government that though the dealers in Scrap as constituent units of the Association were treated as a Controlled Source and secured advantages thereby and were bound to sell at prices fixed in column II, still the Association should 'be accorded special privilege and be permitted to sell at prices fixed for the residuary class of dealers in column III. This representation was considered by an Advisory Committee appointed by the State Government and a direction was given that "a change be made to the extent that at present for the goods which is sold to consumers by the Scrap Association 329 at the regional headquarters they will be allowed to charge column III rates on the goods instead of column II rates. " It is stated that the Association has been selling at these rates ever since. There is no doubt that if this direction stood, and we need only add that the validity of this direction was not challenged by the respondent as beyond the powers of the State Government, the appellant could not have been guilty of the offence with which he was charged. But the question is whether this direction or this modification of the prices fixed under section 5(1) of the Madhya Bharat Scrap Control Order by incorporating the notification by the Steel Controller of the Government of India in its text, subsisted in 1956 when the sales which are stated as being in contravention of the Indian Scrap Order, took place. We have already seen that the notification dated June 4, 1949 which we have extracted earlier, was issued under the Madhya Bharat Iron and Steel etc., Control Order, 1949 pro mulgated under the Madhya Bharat Essential Supplies (Tem porary Powers) Act, 1948. The Madhya Bharat Act, however, stood repealed by virtue of the provisions of the Essential Supplies (Temporary Powers) Amendment Act, 1950 (Act 52 of 1950) under which the Essential Supplies (Temporary Powers) Act, 1946 was extended to the Part B States as and from such dates as might be specified by the Central Government. By a notification issued by the Central Government the Essential Supplies Act, 1946 was made applicable to the Part B State of Madhya Bharat from August 17, 1950. The effect of this extension was provided for by section 10 of Act 52 of 1950 which enacted : "1O. Amendment of section 17, Act XXIV of 1946. After sub section (3) of section 17 of the said Act, the following sub section shall be inserted, namely (4) If immediately before the day on which this Act comes into force in a Part B State, there is in force in that State any law which corresponds to this Act, such corresponding law shall on that day stand repealed in so far as it relates to any of the essential commodities governed by this Act: Provided that any Order made and in force immediately before that day in the said State shall continue in force and be deemed to be an Order made under this Act, and all appointments made, licences or permits granted, and directions issued, under any such Order and in force immediately before that day shall likewise continue in 330 force and be deemed to be made, granted or issued in pursuance of this Act. " If the main part of sub section (4) stood alone without the proviso, the effect would have been not merely a repeal of the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 which was "a corresponding law" which was in force in that State, but with that repeal, all the subordinate legislation enacted thereunder including the Control Orders as well as the Orders of the Director fixing prices would also have stood repealed. By virtue of the proviso, however, notwithstanding the repeal of the parent enactment, the Orders made under it were continued and were to be deemed to have been made under the Indian Act. Mr. Agarwala laid considerable stress on the proviso and urged that by reason of its language it continued in force not merely the Madhya Bharat Scrap Order of June 4, 1949 and the price fixation by the Director under section 5 ( I) of that Order on the same date, but also the variation in the prices to be charged by the Association effected by the Government Order dated August 26, 1949 which enabled that body, notwithstanding its being a dealer specified in column II to sell at prices fixed for persons falling under column M. We need not pause to consider whether the direction or the notification dated August 26, 1949 is "a direction issued under any such order" within the proviso to section 17(4) but shall proceed on the basis that it is, accepting the construction suggested by learned Counsel. But the replacement of the Madhya Bharat law on this topic by the law in force in India did not stop with that effected by Act 52 of 1950. By a notification of the Government of India dated September 12, 1950, the Indian Scrap Order, 1943 was extended to Madhya Bharat. It is really the legal effect of this extension that calls for scrutiny in these appeals. The notification by which the Indian Scrap Order was extend ed to Madhya Bharat, no doubt, did not expressly provide for the repeal of the "Madhya Bharat Scrap Iron & Steel etc., Order, 1949", but if the two Control Orders cannot operate simultaneously, it would be obvious that the Indian Scrap Order would have repealed and replaced the State law. In the first place, even if the provisions contained in the two sets of Orders were in identical terms, it might be proper to hold that the Indian Scrap Order replaced the State law in order to give some meaning and effect to the extension of the Indian Scrap Order to Madhya Bharat. But that is not the position here. There are 331 marked differences between the provisions of the two Orders such that it would not be possible for the two to stand together. For instance, Rule 3 of the Indian Scrap Order prohibits producers from acquiring or agreeing to acquire scrap except and in accordance with a written order of the Controller etc. There is no rule corresponding to this in the Madhya Bharat Scrap Order. In line with this, in Rule 6 of the Madhya Bharat Order which corresponds to Rule 8(4) of the Indian Scrap Order, there is no prohibition against acquisition for a higher price than the maximum fixed, such as is to be found in Indian Order. Again, Rule 7 of the Madhya Bharat Order relating to the restrictions on the movement of scrap has no corresponding provisions in the Indian Scrap Order. Illustrations of this type of variation may be multiplied, but this is unnecessary as it was conceded that the provisions contained in the two orders were not identical. What we desire to emphasise is that the two orders, though achieving substantially the same object, are not identical in their provisions. If that is so, it is obvious that on the extension to Madhya Bharat of the Indian Scrap Order, the Madhya Bharat Scrap Order would stand repealed and be replaced by the Indian law. Mr. Agarwala, however, submitted that this would not follow because according to him the Madhya Bharat Scrap Order had some sort of higher efficacy or stood on a footing superior to the Indian Scrap Order by reason of its having been continued by the proviso to section 17(4) to Act 24 of 1946, the argument being that the notification etc., should be deemed to be one under the Essential Supplies (Temporary Powers) Act itself. This argument, even if sound, does not really help the appellant, for the Indian Scrap Order itself was preserved by a saving of the same type and couched in exactly the, same language in the Essential Supplies (Temporary Powers) Ordinance, 1946 and the Act of the same name of 1946 [vide section 17(2) & (3) of Act 24 of 1946]. Besides, just as an order made or notification issued. under the Essential Supplies (Temporary Powers) Act, 1946 could be amended, modified or cancelled, even if the Madhya Bharat Scrap Control Order and the notifications issued thereunder are deemed to have been passed under the Act of 1946 which is what learned Counsel contends, they could surely be modified. amended or replaced by other subordinate legislation originating from the same parent Act. The Indian Scrap Order, 1943 was one such, because it is deemed to have been made under that 332 Act. When the Indian Scrap Order was extended to Madhya Bharat, the result was that it effectively replaced the Madhya Bharat Order on the same topic. Even granting that the Madhya Bharat Scrap Order of June 4, 1949 was repealed on the extension to that territory of the Indian Scrap Order, Mr. Agarwala urged that the direction contained in the notification of the State Government dated August 26, 1949 was a special law which stood unaffected by the extension of the Indian Scrap Order to Madhya Bharat. That when the Indian Scrap Order was extended it carried with it the notifications issued by the Controller from time to time and that after the extension of the Scrap Order to Madhya Bharat, all sales of scrap would have to be effected only in conformity with the prices fixed by the 'notifications issued under the Scrap Order was not contested. Nor was it disputed that on the terms of the notifications issued fixing the prices at which several classes of dealers might effect sales tinder the Indian Scrap Order, the Association of which the appellant was the President would have fallen under column 11 and would have been bound to sell scrap only at the prices fixed in that column. But it was submitted that the fact that even before the extension of the Indian Scrap Order to Madhya Bharat in September, 1950 tinder the very provisions of the notification dated June 4, 1949 itself the maximum prices fixed in Madhya Bharat were only those prescribed by the Controller in India and that the deviation in regard to these prices permitted to the Association was thus in effect a local modification of the Indian Order and that consequently the direction issued by the State Government on August 26, 1949 and which was continued even after the repeal of the Madhya Bharat Temporary Powers Act, 1948 by reason of the proviso to section 17 (4) of the Act 24 of 1946 was not affected by the extension of the Indian Scrap Order to Madhya Bharat. We find ourselves unable to accept this argument. The concession allowed to the Association by the notification dated August 26, 1949 could be looked at from one of two alternative positions. The direction could be viewed as in effect a modification of the prices fixed under section 5 (1) of the Madhya Bharat Order by the Director so that in law it should be deemed to have been incorporated in that price fixation and became, as it were, the price fixed by the Controller. The effect of this would be that in Madhya Bharat before the extension of the Indian Scrap Order, the maximum prices chargeable by the specified type of dealer falling under 333 column It would be those applicable to dealers in column III. If this were the true position, the result would be that when the Indian Scrap Order was made applicable to Madhya Bharat without a saving or special provision as regards sales by the Association, it would supersede that law and the special classification effected by the Madhya Bharat law would cease to be in force. In this respect the fact that the prices fixed in Madhya Bharat for sales by dealers etc., specified in the three column corresponded to those fixed by the Controller in India, would be wholly irrelevant, for the authority by which the fixation was effected would be traceable to Madhya Bharat and not the Indian law. The other alternative would be that the notification dated August 26, 1949 was an independent piece of subordinate law making under the Essential Commodities Act and the Madhya Bharat Scrap Order, and it was this aspect that was stressed by Mr. Agarwala. Even if that be so, the appellant would derive no advantage from this, because there has been t repeal not merely of the Madhya Bharat Essential Supplies Act no doubt with a saving but of the Madhya Bharat Scrap Order without a saving and on the repeal of the Scrap Order under which the Subordinate rule or regulation was effected the latter would also stand repealed. As explained by Lord Reading C.J. in Watson vs Winch(1): "It has been long established that, when an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed) as if it had never existed. . It would follow that any bye law made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bye law notwithstanding the repeal. " Admittedly there is no saving clause either in the notification of the Central Government by which the Indian Scrap Order was extended to Madhya Bharat nor, of course, in the Scrap Order itself. As the parent order under which the notification was made his been repealed without a saving the effect must be that the notification dated August 26, 1949 must, if it were held to be an independent subordinate legislation, be held also to have been repealed. Mr. Agarwala next referred us to section 24 of the General Clauses Act No. X of 1897 and urged that the notifica (1) , 690. 334 tion would be a bye law that would have continued notwithstanding the repeal of the Madhya Bharat Scrap Order. Section 24 of the General Clauses Act runs thus: "24. Where any Central Act or Regulation, is after the commencement of this Act, repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or bye law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re enacted, continue in force and be deemed to have been made or issued under the provisions so re enacted, unless and until it is superseded by any appointment, notification, order scheme, rule form or by law, made or issued under the provisions so re enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5A of the Scheduled Districts Act, 1874, or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and reextended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re enacted in such area or part within the meaning of this section. " We consider that this submission is entirely without force. Mr. Agarwala fairly conceded that the language of section 24 would not cover a repeal of the Madhya Bharat Scrap Order by the introduction into the Madhya Bharat territory of the Indian Scrap Order. 1943, but he suggested that even though the section was in terms inapplicable, he could invoke the principle underlying it. But this argument, however, proceeds on assuming that section 24 was declaratory of the common rule of interpretation and that even in the absence of section 24 the same principle of law would apply. The position apart from a statutory provision such as is found in section 24 of the General Clauses Act, is thus summarised in Craies on Statute Lent, 6th Edn. 334: "If the statute under which bye laws are made is repealed, those bye laws are impliedly repealed and cease to have any validity unless the repealing statute contains sonic provision preserving the validity of the bye law notwithstanding the repeal. This follows from the rule . when an Act of Parliament is repealed it must 335 be considered (except to transactions passed and closed) as if it had never existed." This submission has, therefore, no merit and must be rejected. The second of the points urged by Mr. Agarwala was that the Scrap Dealers Association was an unincorporated body consisting wholly of retail dealers and that as each of them individually was a dealer who could himself have sold at the column M rate, the Association could not be penalised for selling at that rate. As an unincorporated body, he submitted, it was merely the aggregate of its members and so would have the rights of its constituent units. There is no force in this point either. Apart from the definition of "person" in the General Clauses Act as including an unincorporated body of persons, what we are concerned with is not sales by individual dealers who composed the Association, but sales by and through the Association. It was the Association that was given the facility of obtaining scrap at more favourable prices than dealers and it was that body which was subjected to control in the shape of having to sell what it had purchased from controlled sources at the prices specified in column II. Lastly, it was faintly urged by Mr. Agarwala that the appel lant was merely the President of the Association and could not be held liable for the sales effected by its employees. There was no dispute that the sales were by the Association and at prices fixed by that body. It was also admitted that these prices were in excess of the prices specified for sales fixed for the Association. under section 8 of the Essential Supplies (Temporary Powers) Act, 1946, "Any person who abets the contravention of any order. shall be deemed to have contravened that order." In the circumstances, we do not see bow this affords any defence to the appellant. The result is that these appeals fail and are dismissed. Appeals dismissed.

The Indian Scrap Order, 1943, passed under the Defence of India Rules, was after the expiration of the said Rules, preserved by the Essential Supplies Act, 1946. By (Central) Act 52 of 1950, the said Act was extended, inter alia to the Part B State of Madhya Bharat. That State already had its corresponding law on the subject, namely, the Madhya Bharat Essential Supplies Act, 1948, under which the Madhya Bharat Scrap Order, 1949 had been issued. While extending the Cen tral legislation to the Part B States, Act 52 of 1950 also laid down, in section 17(4) that the "corresponding law" in the State would stand repealed, with a proviso that the orders, directions etc., issued under the repealed law would continue. The appellant who was President of the Scrap Dealers Association, Indore, was prosecuted under the allegation that the Association had sold scrap iron at rates higher than those fixed under the Indian Scrap Order. The defence taken was that the prices at which the sales had been effected were those fixed by a notification dated 26th August, 1949 under the Madhya Bharat Scrap Order which continued in force. The appellant was acquitted by the trial Court but was convicted by the High Court and appealed to the Supreme Court by special leave. The contentions of the appellant were : (1) The Madhya Bharat Scrap Order had not been expressly repealed by the Indian Scrap Order and therefore it continued by force of the proviso to section 17(4) of the Act 52 of 1950, and, in any case, the notification dated 26th August, 1949, continued in force as an independent piece of subordinate legislation. (2) The appellant as President of the Scrap Dealers Association which was an unincorporated body could not be held liable for a sale in excess of the authorised maximum price effected by a Munim or Munims of the Association. HELD : (i) The Central notification by which the Indian Scrap Order was extended to Madhya Bharat, no doubt, did not expressly provide for the repeal of the Madhya Bharat Scrap Order, but the provisions of the two Orders were not identical and they could not, therefore, operate simultaneously. It was therefore obvious that on the extension to Madhya Bharat of the Indian Scrap Order, the Madhya Bharat Scrap Order was repealed and replaced by the Indian law. [331D]. (ii) The notification in question could not survive even if it was treated as an independent piece of subordinate legislation under the State law. According to Craies, if the statute under which by laws are made is repealed, those bye laws are impliedly repealed and cease to have any validity unless the repealing statute contains some provision preserving the validity of the by laws, notwithstanding the repeal. As the parent 324 order under which the notification dated August 26, 1949, was made had been repealed without a saving, the effect was that the said notification also stood repealed. (333D; 333G H; 334H]. (iii) The definition of 'person ' in the General Clauses Act includes within that term an unincorporated body of persons. In the present case it was the Association that was given the facility of obtaining scrap at more favourable prices than dealers, and it was that body which was subjected to control in the shape of having to sell what it had purchased from controlled sources at specified prices. The argument could not be accepted that the Association as such could not be penalised for selling at unauthorised rates. The appellant as President of the Association was liable to be convicted by virtue of section 8 of the Essential Supplies (Temporary Powers) Act, 1946 which made the abetment of contravention of any order under the Act, also an offence. [335C D,E F]. Watson vs Winch. and Craies on Statute Law. 6th Edn. 332, referred to.

104 of 1957. Petition under Article 32 of the Constitution for the enforcement of fundamental rights. R. V. section Mani, for the petitioner. 267 H. N. Sanyal, Additional Solicitor General of India, R. Ganapathy Iyer and R. H. Dhebar for respondents, Nos. 1 3. N.N. Keshwani, for I. N. Shroff, for respondent No. 4. 1958. March 24. The Judgment of Das C. J. Venkatarama Aiyar, section K. Das and Sarkar JJ. was delivered by Das C. J. Bose J. delivered a separate Judgment. DAS C. J. We have had the advantage of perusing the judgment prepared by our learned Brother Bose J. which he will presently read. While we agree with him that this application must be dismissed, we would prefer to base our decision on reasons slightly different from those adopted by our learned Brother. The relevant facts will be found fully set out by him in his judgment. The petitioner has come up before us on an application under article 32 of the Constitution praying for setting aside the order made by the respondent No. 3 on March 19, 1956, directing the petitioner to stop the cutting of forest wood and for a writ, order or direction to the respondents not to interfere in any manner whatever with the rights of the petitioner to enter the forests, appoint her agents, obtain renewal passes, manufacture charcoal and to exercise other rights mentioned in the petition. Since the application is under article 32 of the Constitution, the petitioner must make out that there has been an infringement of some fundamental right claimed by her. The petitioner 's grievance is that the offending order has infringed her fundamental right under article 19(1)(f) and 19(1)(g). She claims to have derived the fundamental rights, which are alleged to have been infringed, from a document dated April 26, 1948, whereby her husband Shri Balirambhau Doye, the proprietor of certain forests in eight several Tehsils, granted to her the right to take and appropriate all kinds of wood Building wood, fuel wood and bamboos, etc. from the said forests for a period from the 268 date of the document up to December 26, 1960. The terms of the document have been sufficiently set out in the judgment to be presently delivered by Bose J. and need not be set out here. The petitioner has paid Rs. 26,000 as consideration for the rights granted to her. The genuineness of this document and the good faith of the parties thereto have not been questioned. The document, however, has not been registered under the Indian Registration Act. The nature of the rights claimed by the petitioner has to be ascertained on a proper interpretation of the aforesaid document. We do not consider it necessary to examine or analyse the document minutely or to finally determine what we may regard as the true meaning and effect thereof, for, as will be presently seen, whatever construction be put on this document, the petitioner cannot complain of the breach of any of her fundamental rights. If the document is construed as conveying to her any part or share in the proprietary right of the grantor, then, not being registered under the Indian Registration Act, the document does not affect the immoveable property or give her any right to any share or interest in the immoveable property. Assuming that she had acquired a share or interest in the proprietary right in spite of the document not having been registered, even then that right has vested in the State under section 3 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and she may in that case only claim compensation if any is payable to her under the Act. If the document is construed as purely a license granted to her to enter upon the land, then that license must be taken to have become extinguished as soon as the grantor 's proprietary rights in the land vested in the State under section 3 of the Act. if the document is construed as a license coupled with a grant, then the right acquired by her would be either in the nature of some profits a prendre which, being an interest in land, is immoveable property or a purely personal right under a contract. If the document is construed as having given her a profits a prendre which is an interest in land, then also 269 the document will not affect the immoveable property and will not operate to transmit to the petitioner any such profits a prendre which is in the nature of ' immoveable property, as the document has not been registered under the Indian Registration Act, as has been held in Ananda Behera vs The State of Orissa (1). If it is a purely personal right, then such right will have no higher efficacy than a right acquired under a contract. If, therefore, the document is construed as a matter of contract, then assuming but without deciding that a contract is a property within articles 19(1)(f) or 31(1) of the Constitution, she cannot com plain, for the State has not acquired or taken possession of her contract in any way. The State is not a party to the contract and claims no benefit under it. The petitioner is still the owner and is still in possession of that contract, regarded as her property, and she can hold it or dispose of it as she likes and if she can find a purchaser. The petitioner is free to sue the grantor upon that contract and recover damages by way of compensation. The State is not a party to the contract and is not bound by the contract and accordingly acknowledges no liability under the contract which being purely personal does not run with the land. If the petitioner maintains that, by some process not quite apparent, the State is also bound by that contract, even then she, as the owner of that contract, can only seek to enforce the contract in the ordinary way and sue the State if she be so advised, as to which we say nothing, and claim whatever damages or compensation she may be entitled to for the alleged breach of it. This aspect of the matter does not appear to have been brought to the notice of this Court when it decided the case of Chhotabai Jethabai Patel and Co. vs The State of Madhya Pradesh (2) and had it been so done, we have no doubt that case would not have been decided in the way it was done. For the reasons stated above, whatever rights, if any, may have accrued to the petitioner under that document on any of the several interpretations noted above, the cannot complain of the infringement by the (1) ; , (2) ; 270 State of any fundamental right for the enforcement of which alone a petition under article 32 is maintainable. We, therefore, agree that this petition should be dismissed with costs. BOSE J. This is a writ petition under article 32 of the Constitution in which the petitioner claims that her fundamental right to cut and collect timber in the forests in question has been infringed. The petitioner 's husband, Balirambhau Doye, was the Zamindar of Pandharpur. On April 26, 1948, he executed an unregistered document, that called itself a lease, in favour of his wife, the petitioner. The deed gives her the right to enter upon certain areas in the zamindari in order to cut and take out bamboos, fuel wood and teak. Certain restrictions are put on the cutting, and the felling of certain trees is prohibited. But in the main, that is the substance of the right. The term of the deed is from April 26, 1948 to December 26, 1960, and the consideration is Rs. 26,000. The petitioner says that she worked the forests till 1950. In that year the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, which came into force on January 26, 1951, was enacted. Under section 3 of that Act, all proprietary rights in the land vest in the State on and from the date fixed in a notification issued under sub section The date fixed for the vesting in this area was March 31, 1951. After that, the petitioner was stopped from cutting any more trees. She therefore applied to the Deputy Commissioner, Bhandara, under section 6(2) of the Act for validating the lease. The Deputy Commissioner held, on August 16, 1955, that the section did not apply because it only applied to transfers made after March 16, 1950, whereas the petitioner 's transfer was made on April 26, 1948. But, despite that, he went on to hold that the Act did not apply to transfers made before March 16, 1950, and so leases before that could not be questioned. He also held that the lease was genuine and ordered that the petitioner be allowed to work the forests subject to the conditions set out in 271 her lease and to the rules framed under section 218(A) of the C. P. Land Revenue Act. It seems that the petitioner claimed compensation from Government for being ousted from the forests from 1951 to 1955 but gave up the claim on the understanding that she would be allowed to work the forests for the remaining period of the term in accordance with the Deputy Commissioner 's order dated August 16, 1955. She thereupon went to the Divisional Forest Officer at Bhandara and asked for permission to work the forests in accordance with the above order. She applied twice and, as all the comfort she got was a letter saying that her claim was being examined, she seems to have taken the law into her own hands, entered the forests and started cutting the trees; or so the Divisional Forest Officer says. The Divisional Forest Officer thereupon took action against her for unlawful cutting and directed that her name be cancelled and that the cut materials be forfeited. This was on March 19, 1956. Because of this, the petitioner went up to the Government of Madhya Pradesh and made an application dated September 27, 1956, asking that the Divisional Forest Officer be directed to give the petitioner immediate possession and not to interfere with her rights. Then, as nothing tangible happened, she made a petition to this Court under article 32 of the Constitution on August 26, 1957. The foundation of the petitioner 's rights is the deed of April 26, 1948. The exact nature of this document was much canvassed before us in the arguments by both sides. It was said at various times by one side or the other to be a contract conferring contractual rights, a transfer, a licence coupled with a grant, that it related to move able property and that, contra, it related to immoveable property. It will be necessary, therefore, to ascertain its true nature before I proceed further. As I have said, the document calls itself a " lease deed ", but that is not conclusive because the true nature of a document cannot be disguised by labelling it something else. 272 Clause (1) of the deed runs " We executed this lease deed . and which by this deed have been leased out to you in consideration of Rs. 26,000 for taking out timber, fuel and bamboos etc. " At the end of clause (2), there is the following paragraph: " You No. 1 are the principal lessee, while Nos. 2 and 3 are the sub lessees. " Clause (3) contains a reservation in favour of the proprietor. A certain portion of the cutting was reserved for the proprietor and the petitioner was only given rights in the remainder. The relevant passage runs: " Pasas 16, 17, 18 are already leased out to you in your lease. The cutting of its wood be made by the estate itself. Thereafter, whatever stock shall remain standing, it shall be part of your lease. Of this stock, so cut, you shall have no claim whatsoever. " Clause (5) runs " Besides the above pasas the whole forest is leased out to you. Only the lease, of the forest woods is given to you. " Clause (7) states " The proprietorship of the estate and yourself are (in a way) co related and you are managing the same and therefore in the lease itself and concerning it, you should conduct yourself only as a lease holder explicitly Only in the absence of the Malik, you should look after the estate as a Malik and only to that extent you should hold charge as such and conduct yourself as such with respect ' to sub lessees. " The rest of this clause is Without the signatures of the Malik, nothing, would be held valid and acceptable, including even your own pasas transactions,. . . The lease under reference shall not be alterable or alienable by any body. " The only other clause to which reference need be made is clause (8). It runs 273 "You should not be permitted to recut the wood in the area which was once subject to the operation of cutting. otherwise the area concerned will revert to the estate. The cutting of the forests should be right at the land surface and there should not be left any deep furrows or holes. " I will examine the seventh clause first. The question is whether it confers any proprietary rights or interest on the petitioner. I do not think it does. It is clumsily worded but I think that the real meaning is this. The petitioner is the `proprietor 's wife and it seems that she was accustomed to do certain acts of management in his absence. The purpose of clause (7) is to ensure that when she acts in that capacity she is not to have the right to make any alteration in the deed. There are no words of transfer or conveyance and I do not think any part of the proprietary rights, or any interest in them, are conveyed by this clause. It does not even confer rights of management. It only recites the existing state of affairs and either curtails or clarifies powers as manager that are assumed to exist when the proprietor is away. Although the document repeatedly calls itself a lease, it confers no rights of enjoyment in the land. Clause (5) makes that clear, because it says Only the lease of the forest woods is given to you ' . In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood. To that extent the matter is covered by the decision in Chhotabhai Jethabhai Patel & Co. vs The State of Madhya Pradesh (1), and by the later decision in Ananda Behera vs The State of Orissa (2), where it was held that a transaction of this kind amounts to a licence to enter on the land coupled with a grant to out certain trees on it and carry away the wood. In England it is a profit a prendre because it is a grant of the produce of the soil " like grass, or turves or trees ". See 12 Halsbury 's Laws of England (Simonds Edition) page 522, Note (m). (2) [1953]S.C.R.476,483. (2) ; , 922, 923. 35 274 It is not a " transfer of a right to enjoy the immoveable property " itself (section 105 of the Transfer of Property Act), but a grant of a right to enter upon the land and take away a part of the produce of the soil from it. In a lease, one enjoys the property but has no right to take it away. In a profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for removing something from it, namely, a part of the produce of the soil. Much of the discussion before us centred round the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act of 1950. But I need not consider that because this, being a writ petition under article 32, the petitioner must establish a fundamental right. For the reasons given in Ananda Behera 's case (1), I would hold that she has none. This runs counter to Chhotebhai Jethabhai Patel 's case but, as that was a decision of three Judges and the other five, I feel that we are bound to follow the later case, that is to say, Ananda Behera 's case (1), especially as I think it lays down the law aright. The learned counsel for the petitioner contended that his client 's rights flowed out of a contract and so, relying on Chhotebhai Jethabhai Patel 's case(2), he contended that he was entitled to a writ. As a matter of fact, the rights in the earlier case were held to flow from a licence and not from a contract simpliciter (see page 483) but it is true that the learned Judges held that a writ petition lay. In so far as the petitioner rests her claim in contract simpliciter, I think she has no case because of the reasons given in Ananda Behera 's case (1): " If the petitioners ' rights are no more than the right to obtain future goods under the Sale of Goods Act, then that is a purely personal right arising out of a contract to which the State of Orissa is not a party and in any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right. " To bring the claim under article 19(1)(f) or article 31(1) (1) [1955]2 S.C.R. 919. (2) ; 275 something more must be disclosed, namely, a right to property of which one is the owner or in which one has an interest apart from a purely contractual right. Therefore, the claim founded in contract simpliciter disappears. But, in so far as it is founded either on the licence, or on the grant, the question turns on whether this is a grant of moveable or immovable property. Following the decision in Ananda Behera 's case (1), I would hold that a right to enter on land for the purpose of cutting and carrying away timber standing on it is a benefit that arises out of land. There is no difference there between the English and the Indian law. The English law will be found in 12 Halsbury 's Laws of England (Simonds Edition) pages 620 and 621. But that still leaves the question whether this is moveable or immoveable property. Under section 3 (26) of the General Clauses Act, it would be regarded as " immovable property " because it is a benefit that arises out of the land and also because trees are attached to the earth. On the other hand, the Transfer of Property Act says in section 3 that standing timber is not immoveable property for the purposes of that Act and so does section 2 (6) of the Registration Act. The question is which of these two definitions is to prevail. Now it will be observed that " trees " are regarded as immoveable property because they are attached to or rooted in the earth. Section 2(6) of the Registration Act expressly says so and, though the Transfer of Pro party Act does not define immoveable property beyond saying that it does not include " standing timber, growing crops or grass ", trees attached to earth (except standing timber), are immovable property, even under the Transfer of Property Act, because of section 3 (26) of the General Clauses Act. In the absence of a special definition, the general definition must prevail. Therefore, trees (except standing timber) are immoveable property. Now, what is the difference between standing timber and a tree ? It is clear that there must be a distinction because the Transfer of Property Act draws one in the definitions of " immoveable property " and (1) ; 276 " attached to the earth " ; and it seems to me that the distinction must lie in the difference between a tree and timber. It is to be noted that the exclusion is only of standing timber " and not of " timber trees". Timber is well enough known to be " wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned. (Webster 's Collegiate Dictionary). Therefore, " standing timber " must be a tree that is in a state fit for these purposes and, further, a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. I? not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil. Now, of course, a tree will continue to draw sustenance from the soil so long as it continues to stand and live; and that physical fact of life cannot be altered by giving it another name and calling it " standing timber ". But the amount of nourishment it takes, if it is felled at a reasonably early date, is so negligible that it can be ignored for all practical purposes and though, theoretically, there is no distinction between one class of tree and another, if the drawing of nourishment from the soil is the basis of the rule, as I hold it to be, the law is grounded, not so much on logical abstractions as on sound and practical common sense. It grew empirically from instance to instance and decision to decision until a recognisable and workable pattern emerged; and here, this is the shape it has taken. The distinction, set out above, has been made in a series of Indian cases that are collected in Mulla 's Transfer of Property Act, 4th edition, at pages 16 and 21. At page 16, the learned author says "Standing timber are trees fit for use for building or repairing houses. This is an exception to the general rule that growing trees are immoveable property." At page 21 he says "Trees and shrubs may be sold apart from the land, to be cut and removed as wood, and in that case they are moveable property. But if the transfer 277 includes the right to fell the trees for a term of years, so that the transferee derives a benefit from further growth, the transfer is treated as one of immoveable ' property." The learned author also refers to the English law and says at page 21 " In English law an unconditional sale of growing trees to be cut by the purchaser, has been held to be a sale of an interest in land; but not so if it is stipulated that they are to be removed as soon as possible. " In my opinion, the distinction is sound. Before a tree can be regarded as " standing timber " it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early. The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market. But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee. Now, how does the document in question regard this In the first place, the duration of the grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and maker, it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it. This aspect is emphasised in clause (5) of the deed where the cutting of teak trees under 1/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be felled. And clause (4) speaks of a first cutting and a second cutting and a 278 third cutting. As regards trees that could be cut at once, there is no obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded as trees and not as timber that is standing and is about to be cut and used for the purposes for which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years;. and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there. The result is that, though such trees as can be regarded as standing timber at the date of the document, both because of their size and girth and also because of the intention to fell at an early date, would be moveable, property for the purposes of the Transfer of Property and Registration Acts, the remaining trees that are also covered by the grant will be immoveable property, and as the total value is Rs. 26,000, the deed requires registration. Being unregistered, it passes no title or interest and, therefore, as in Ananda Behera 's case (1) the petitioner has no fundamental right which she can enforce. My lord the Chief Justice and my learned brothers prefer to leave the question whether the deed here is a lease or a licence coupled with a grant, open because, on either view the petitioner must fail. But we are all agreed that the petition be dismissed with costs. Petition dismissed.

In the State of Haryana two identical schemes are simultaneously in operation with the object of imparting literacy (functional and awareness) to adult illiterates and to provide literacy to children keeping away from school. The first scheme, known as the Adult and Nonformal Education Scheme, is financed by the Central Government under its Rural Functional Literacy Programme/Project, but is administered by the State Government. Under this scheme, a number of Adult Education Centres have been opened to impart literacy to adult illiterates. The petitioners were appointed as Instructors at these centres on different dates. They are being paid a fixed salary of Rs.200 per month. The petitioners are given a deliberate break of one day in their service after the lapse of every six months and have thus been treated temporary in service. The second scheme, known as the State Social Education Scheme, has been framed by the State of Haryana. Under this scheme Social Education Centres have been opened in the State and teachers known as Squad Teachers appointed at these centres to impart literacy among the illiterates. The State regularised the services of the Squad Teachers working on ad hoc basis with effect from 1.1.1980 and sanctioned them pay scale of Rs.420 700, the scale applicable to primary school teachers in the State. The Petitioners ' grievance is that although they are performing the same nature of functions and duties as performed by the Squad Teachers, they are denied the same scale of pay. The petitioners pray for the issuance of a writ, order or direction to the respondents (i) to treat them in continuous service irrespective of the deliberate breaks in their service, (ii) to grant them regular pay scales of the Primary School Teachers plus consequential benefits from the date of their initial appointment, and (iii) to treat the Department of Adult Education and Non formal Education as a permanent department and to regularise the 412 services of the petitioners in that Department. The claim of the petitioners is based on the doctrine of 'equal work equal pay '. The petitioners contend that (i) the two schemes are similar and the nature of duties and functions performed by instructors are similar to those performed by squad teachers, (ii) the instructors as well as the Squad Teachers are both appointed by the District Adult Education officer and function under the supervision of the Directorate of Education, (iii) the instructors are full time employees and take regular classes of students in the age group of 5 15 years for two and a half hours and of adult illiterates in the age group of 15 35 years for one and a half hours. In addition, they have to motivate the children and the adults to join the Adult Education Centres. They are further required to submit regular survey reports. The respondents, on the other hand, urge that the functions and duties of the instructors and the squad teachers are quite different. The main points of distinction relied upon are that (i) the instructors are appointed part time while squad teachers are in full time employment, (ii) the squad teachers are transferable while instructors are not, (iii) the squad teachers are required to teach 7 hours daily while instructors are required to teach for four hours, (iv) the social education scheme is permanent and squad teachers are working under a permanent scheme while the instructors are working under a temporary scheme, and (v) the qualifications and the mode of recruitment of instructors are different; while the instructors are appointed locally, the squad teachers are selected by the Subordinate Service Selection Board after competing with candidates from any part of the country. It is emphasized that if a regular selection was held, many of the Instructors may not have been appointed. Earlier, this court had in Bhagwan Das vs State of Haryana, [1987] 4 SCC 634 upheld the claim of the Supervisors appointed to supervise the centres at which instructors have been working under the Adult and Non formal Education Scheme for the grant of the same scale of pay as has been sanctioned to the Head Squad Teachers of the Social Education Scheme. In partly allowing the writ petitions, this Court, ^ HELD: (1) There is no difference in the nature of duties of the instructors and squad teachers and both of them carry out similar work under the same employer. The functions and duties of both classes of 413 persons are primarily directed to advance the cause of education to bring social awareness among the people in the rural areas and to create interest in various social, economic and educational activities. Bringing adults to centres for educating them is a difficult task and to impart education to dropout children is not an easy job. One of the main duties of the instructors is to motivate the adults and dropout children to participate in the activities and to motivate them for taking education. The instructors teach four hours a day and thereafter they have to do survey work and motivation work. In addition to that, the instructors are required to carry out additional duties which are assigned to them by the Department. Further, the instructors are required to organise sports like kho kho, kabadi and athletics, and to participate in the local functions and to motivate affluent villagers to give donations for the adult education scheme. [420C E; 421D E] (2) Having regard to their duties and functions, it is difficult to uphold the respondents ' plea that the instructors are part time employees as they work only for four hours. [421E] (3) If the two class of persons do same work under the same employer, with similar responsibility, under similar working conditions, the doctrine of 'equal work equal pay ' would apply and it would not be open to the State to discriminate one class with the other in paying salary. [421F G] (4) The State is under a constitutional obligation to ensure that equal pay is paid for equal work. Article 39(d) contained in Part IV of the Constitution ordains the State to direct its policy towards securing 'equal pay for equal work ' for both men and women. Though Article 39 is included in the Chapter of Directive Principles of State Policy, but it is fundamental in nature. The purpose of the article is to fix certain social and economic goals for avoiding any discrimination amongst the people doing similar work in matters relating to pay. [421G; 422B C] (5) The doctrine of 'equal work equal pay ' would apply on the premise of similar work, but it does not mean that there should be complete identity in all respects. [421F] (6) A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee. [422D] (7) The plea that instructors are not transferable does not affect 414 the doctrine of equal pay for equal work. The instructors are appointed A locally because they are in a better position to motivate the adults and dropout children for participating in the scheme, while an outsider may be handicapped in motivating the local residents. [423C D] (8) Minimum qualification for the Instructors as well as the Squad Teachers is Matric, though many among both are graduates and some of them are trained teachers. Though the Instructors belong to the locality where they have been posted, but they are appointed only after selection. The difference in mode of selection will not affect the application of the doctrine of `equal work equal pay ' if both the class of persons perform similar functions and duties under the same employer. [423D E] (9) The instructors are entitled to the same pay scale as sanctioned to squad teachers. The pay of each of the petitioners shall be fixed having regard to the length of service with effect from the date of his initial appointment by ignoring the break in service on account of six months fresh appointments. The petitioners will be entitled to increments in the pay scale in accordance with law notwithstanding the break in service that might have taken place. These directions shall be implemented with effect from September 1, 1985. [424A C] 10. The petitioners ' claim for regularising their services in the departments cannot be accepted as admittedly the project of Adult and Non formal Education is temporary. [424C D] Bhagwan Dass vs State of Haryana, [1987] 4 SCC 634; Ranjit Singh vs Union of India, ; ; Dhiren Chamoli vs State of U.P., and Surinder Singh vs Engineer in Chief CPWD, & Ors., referred to.

ivil Appeal Nos. 3694 3695 of 1989. From the Judgment and Order dated 22.9. 1987 of the Kerala High Court in O.P. Nos. 4932 of 1983 and 1091 of 1982. T.S. Krishnamurthy Iyer and E.M.S. Anam for the Appel ants. P.S. Poti and P.K. Pillai for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Special leave granted. We have heard learned counsel for the parties. In disposing of the appeal against a decision of the Forest Tribunal under the provisions of the Kerala Private Forests (Vesting & 39 Assignment) Act, 1971, a Division Bench of the Kerala High Court in MFA No. 401/78 disposed of on 14th of July, 1980, directed: "It follows that out of 102 acres 25 acres over which teak was planted in 1967 and euca lyptus was planted in 1955 will be private forest coming within the Private Forests (Vesting & Assignment) Act. But since this area is under the personal cultivation of the respondent she will be entitled to 15 acres under Section 3(2) of the Act. The rest 10 acres will vest with the Government. In the result the appeal is partly allowed and the order of the lower court is modified as follows: It is declared that 75 acres over which the respondent had planted teak wood, orange and soft wood prior to 14th December, 1949, is held to be not a private forest under the Madras Preservation of Private Forests Act, 1949 and Kerala Private Forests (Vesting & Assignment) Act, 26 of 197 1. But of the rest 2 acres over which the respondent had planted cashew is declared to be not a private forest under Section 2(f)(1)(i)(A) and (C) of the Act. Another 15 acres under the personal cultivation of the respondent is also held not to vest under the above Act under Section 3(2) of the Act. The Custodian shall demarcate this 15 acres in such a manner that it will be convenient for the enjoyment of the respond ent. The balance 10 acres will vest. with the Government. With the demarcation and identifi cation of that 10 acres the case is sent back to the Forest Tribunal. If the Custodian has taken possession of the area declared not to vest, he will surrender the same to the re spondent forthwith . ." In terms of this judgment 92 acres (being the total of 75 acres + 15 acres + 2 acres) were to be given back to the appellants. In the process of implementation of this direc tion certain lands were returned to the appellants by the Forest officials. These lands constituted thick forests and had valuable trees thereon. This fact was realised by the higher officers of the Department and timber transit permits were not issued to the appellants when applied for. There upon the appellants filed a writ petition before the High Court for a direction to the State Government and its offi cers to issue the requisite transit permits to enable the appellants to transport the rosewood trees and other 40 timber. The claim contested. The High Court came to the conclusion: "It is made clear that the petitioners are not entitled to any relief with regard to rosewood and other trees cut from the lands which do not form part of the lands ordered to be restored to the petitioner in O .P. No. 4832 of 1983 and are vested in the Government. With respect to the trees cut from the properties ordered to be restored to the petitioner, respondents 1 to 3 are directed to consider the applications filed by the petitioner for issue of transit permits and pass appropriate orders according to law. Before determining this question also the respondents may give an opportunity to both the petitioners to put forward their contentions and a final decision may be taken after considering their objec tions. " This order of the High Court is the subject matter of the present appeal. In an affidavit filed in this appeal by the conservator and Custodian of Vested Forests it has been accepted that in terms of the judgment of the High Court in MFA No. 40 1/78, 92 acres were found not to vest in the State under the Act. In the judgment the survey numbers with the respective extents had been furnished. It is stated that 12 acres had not been taken possession of and, therefore, surrender had to be made of 80 acres only. A further affidavit has been filed by the said Custodian where it has been said: "Hence only 80 acres are to be restored and out of this 56.31 acres have admittedly been restored already. For the remaining 23.69 acres, Government are pleased to restore the same as follows vide G.O. Rt. No. 1345/82/AD dated 24.5.82, in lieu of the land wrongly handed over to the petitioner. Survey No. Area to be restored. 1518 10.19 acres 1580 6.03 acres 1580 7.47 acres" It has been further stated therein that in case any part of such land is not available, the Government are prepared to pay reasonable compensation for such shortfall as if the same had been acquired by the State for a public purpose. 41 We are of the view that the High Court was right in refusing to act upon the footing that pursuant to the direc tion by the High Court about 36 acres of land containing forest growth had been surrendered to the appellants and, therefore, they were entitled to appropriate the trees. In fact within the ambit of the writ petition as filed before the High Court, the only question that fell for considera tion was whether timber transit permits should or should not be issued to the appellants to enable them to transport the felled timber from the area which should not have been delivered to the appellants. Since we do not intend to differ from the High Court on that issue this appeal de serves to be dismissed but with a view to doing complete justice to the parties and give a final verdict in the matter we had enquired from Mr. Poti appearing for the respondent State on 27.3.1989 as to how Government proposed to comply with the binding direction of the High Court given in the first appeal. The affidavit of 24th of June, 1989 by the Custodian of Vested Forests is in answer to that query. We would like to reiterate that the appellants are entitled to return of 92 acres of land and not 80 acres. This is on the ground that the direction of the High Court in the first appeal became final and in terms of such direc tion 92 acres were to go back to the appellants. Government had no authority to alter the decision by an .administrative order as has been done on 22.5.1982. There is no dispute that 56.31 acres have been restored to the appellants. By the affidavit of 24th of June, 1989, 23.69 acres have been offered to be restored from three survey numbers indicated therein. With the restoration of 23.69 acres the appellants would have got back 80 acres of land. There would still be 12 acres to be returned to the appellants. The respondents shall have a direction to trace these 12 acres in the local ity and make over vacant possession to the appellants there of within four months hence. In case 23.69 acres or any part thereof as indicated in the affidavit cannot be delivered possession and the balance 12 acres are not identified and possession thereof cannot be delivered, the appellants shall be entitled to compensation in respect of the shortfall out of 35.69 acres in all which remain to be delivered and compensation for such shortfall shall be determined as if it were acquisition under the provisions of the Land Acquisi tion Act, the date of the preliminary notification being deemed to be the date of judgment in MFA 401/78. The direc tions indicated above shall be worked out by the respondents within a total period of six months from today. The High Court called upon the respondents to consider the appellants ' plea for timber transit permits in respect of trees cut from 42 certain other lands. There is no material on record as to whether that has been complied with. In case the respondents have not done the same yet they are directed to comply with the order of the High Court within three months from today. The appeal is allowed in part. Parties are directed to bear their respective costs. Appeal allowed partly.

Applying the principle enunciated in Atma Ram Mittal vs Ishwar Singh Punia; , , this Court dismissed the special leave petition, and, HELD: 1.1 The exemption would apply for a period of ten years and will continue to be available until suit is dis posed of or adjudicated. [121H] 1.2 If the petitioner fails to file an undertaking on usual terms, the decree shall become executable forthwith. [122B]

ivil Appeal No. 735 of 1975. From the Judgment and Order dated 21.6.1974 of the Bombay High Court in Spl. Civil Appln. No. 15 of 1971. U.U. Lalit and A.G. Ratnaparkhi for the Appellants. M.S. Gupta for the Respondent. 68 The Judgment of the Court was delivered by SAWANT, J. These proceedings arise under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Act). The appellant Hiraji Tolaji was admittedly a protected lessee or tenant of the agricultural land being Survey No. 30 of Village Madha, Taluqa Chikhali District Buldana. The land measures approxi mately 25 acres and 31 gunthas. The respondent who is men tally disabled became the landlady of the land in question in quite queer circumstances which to say the least are indefensible in law. Her father, one Mr. Brijlal Bansilal owned as many as 568 acres of land of which the suit lands are a part. The lands admittedly are ancestral. He effected first partition of his entire holding of lands on January 31, 1949 between himself on the one hand and his wife and a minor son on the other. On December 16, 1950, he effected a second partition of the very same lands between himself on the one hand and his wife and his son on the other. Again on June 29, 1959 he effected a third partition of the said lands between himself on the one hand and his wife and his two minor daughters including the respondent on the other. There is further no dispute that it is in this third parti tion that the suit lands were given to the share of the respondent and the respondent became the alleged landlady w.e.f. the date of the said partition. It appears that sometime in 1962, the respondent through her guardian, namely her father Brij Lal initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default in payment of rent for three years, namely 1959 60, 1960 61 and 196 1 62. By his decision of April 30, 1963 the Tehsildar dismissed 'the application holding that the respondent was not a landlady since the partitions in question were illegal. The Deputy Collector in appeal confirmed the said decision by his Order dated November 26, 1963. The respondent 's revision before the Maharashtra Revenue Tribunal also failed when the Tribu nal rejected it by its decision of April 29, 1965. In the Writ Petition filed before the High Court under Article 227 of the Constitution against the said decision of the three authorities below, the High Court by its Order dated October 4, 1966 remanded the matter to the Tehsildar for investiga tion into the validity of the partition. Then started the second round of litigation. On remand, the Tehsildar by his decision of March 16, 1968 held that the partition effected on June 29, 1959 (which was the only material partition so far as the respondent was con cerned) was bogus. Hence the notice of demand and therefore the proceedings for recovery of possession pursuant thereto, were bad in law. 69 It appears that thereafter in a different proceeding the Maharashtra Revenue Tribunal on June 25, 1968 had held 'that the said partition was binding. It is after this decision of the Tribunal as stated earlier in an altogether different proceeding, that the matter came up for hearing in appeal filed by the respondent before the Deputy Collector, against the decision of the Tehsildar given on March 2, 1968. The Deputy Collector, therefore, followed the said decision of the Revenue Tribunal, and by his decision of April 16, 1969 held that the partition being valid, the respondent was the landlady of the suit land and, therefore, notice given by her, terminating the tenancy on the ground of default of rent and the proceedings filed for recovery of the suit land, were proper. He also held that the appellant was in arrears of rent for three years as contended by the respond ent and, therefore, allowed the said application for evic tion of the appellant from the suit land. Against the said decision, the appellant preferred a revision before the Revenue Tribunal and the Tribunal by its decision of September 15, 1970 confirmed the findings of the Deputy Collector. Aggrieved by the decision, the appellant preferred a Writ Petition before the High Court under Article 227 of the Constitution, and the High Court by its impugned decision of June 21, 1974 dismissed the petition. Hence this appeal. Before the High Court, two obvious illegalities committed by the lower authorities were highlighted on behalf of the appellant. The first illegality was that the property being admittedly ancestral, Brijlal could not have effected partition of the property between himself on the one hand and his wife and his daughter on the other. In all the three partitions effected on July 31, 1949, December 16, 1950 and June 29, 1959, wife was one of the parties to the partitions. In the third partition made on June 29, 1959 besides his wife, the other parties to the partition were two minor daughters. Secondly, the same property is shown to have been partitioned by Brij Lal on three occasions. Admit tedly, the partition of June 29, 1959 is between Brij Lal on the one hand and his wife and two minor daughters including the respondent on the other. This partition was obviously contrary to the provisions of Hindu Law. Hence the respond ent in any case could not have become a landlady of the suit land because it is in this third partition of June 29, 1959 that the said land is alleged to have gone to the share of the respondent. The High Court dismissed this contention with regard to the patent illegality by giving a spacious reason that the question 70 referred to the Tehsildar in its earlier remand order, namely the validity or otherwise of the partition, was investigated by the three authorities and that they had given a finding upholding the partition. The High Court further held that what was produced before the courts below was a family settlement and since the said family settlement created a right in favour of the respondent she should be held to have become the owner of the suit land. Unfortunate ly, the High Court lost sight of the fact that the family settlement which is accepted by the Courts in lieu of parti tion, is a settlement which gives share to the parties as per their legal entitlement and not a settlement which is made or purported to have been made to circumvent the law. A partition of the property can only be among the parties who have a preexisting right to the property. Under the Hindu Law, a female, major or minor has no share in the ancestral property. A female is given a share either in the self acquired property of the husband or the father, or in the share of the husband or the father in the coparcenary property after the property is partitioned. There cannot, therefore, be a partition and hence a family settlement with regard to the ancestral property so long as it is joint, in favour of either the wife or the daughter. Since this obvi ous illegality was ignored by the High Court, it will have to be held that the High Court 's decision was patently wrong. The respondent, therefore, never became the landlady of the land and it was Brij Lal who continued to be the landlord of the same. Hence the notice given by the respond ent and the proceedings for eviction adopted by her are misconceived. Her application for possession of the land has, therefore, to be dismissed, 5. The second obvious illegality which was brought to the notice of the High Court was that even assuming that the partition deed of June 29, 1959 was a valid document, the same has to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of Section 38(7) of the Act. Under Section 46 of the Act, a protected tenant becomes the owner of the land on and from April 1, 1961. Under section 38(1), however, a landlord is given a right to evict a tenant if he wants the land for bona fide personal cultivation. The right to adopt the proceedings for possession of the land has to be exer cised on or before March 31, 1961. The condition precedent to such application, however, is that the landlord should have given a notice to the tenant, for the purpose, on or before November 15,1961. Under Section 38(2), the time to apply for possession is extended in the case of the landlord who is a minor, widow or a person subject to any physical or mental disability. We are concerned in the present case with a person who is mentally disabled, since the respondent is alleged 71 to be a mentally disabled person. Further the proviso to sub section (2) of Section 38 also makes it clear that where such person is a member of a joint family, the time given to the landlord to terminate the tenancy is not extended if atleast one member of the joint family is outside the cate gories of the disabled persons. Such disabled person, fur ther, has to be the owner of the land on March 31,1961. 6. The sum total of these provisions is that the appel lant in the present case would become the owner of the suit land on and from 1st April, 1961 if the respondent did not intervene as the landlady of the suit land before that date. Admittedly, the respondent is alleged to have become the landlady by virtue of the partition effected on June 29, 1959. Section 38(7) of the Act, however, states as follows: "Nothing in this section shall confer on a tenure holder who has acquired any land by transfer or partition after the 1st day of August 1953 a right to terminate the tenancy of a tenant who is a protected lessee and whose right as such protected lessee had come into existence before such trans fer or partition. " It may be mentioned here that in some copies of the Act published by the Government Press, instead of the 1st day of August 1953, the date printed is 1st day of August 1963. That is admittedly wrong. We perused the Bombay Tenancy and Agricultural Lands (Vidarbha Region) (Amendment) Act 1963. By that Amending Act, all that was done was to add the words "or partition" after the word "transfer" in Section 38(7). No amendment was made of the date the transfer effected after which would not result in conferring title to the land. In fact, the Amending Act also states that the amend ment was effected pursuant to the decision of the Full Bench of the Bombay High Court reported in 1969 Maharashtra Law Journal page 933 where the Court had taken the view that the "transfer" contemplated by the unamended provision of Sec tion 38(7) did not include transfer by partition. It had, therefore, become necessary to include in the "transfer" also transfer by partition and, hence, the Amending Act was enacted only for the purpose of adding the words "or parti tion" after the words "by transfer" and "before such trans fer" in that Section. The position that obtains under Section 38(7) after the Amending Act 1963 is, therefore, that any transfer of land effected after 1st August 1953 whether by way of parti tion or otherwise, has no effect of conferring on the trans feree a right to terminate the tenancy 72 of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition. This amendment is admittedly retro spective in operation. Even assuming, therefore, that the partition of June 29, 1959 was a valid one, it did not give a right to the respondent to terminate the tenancy of the appellant who was admittedly a protected lessee prior to August 1, 1953 and was on the land as such tenant on April 1, 1961. The result therefore is that firstly, the respondent had not become the landlady of the suit land since the share given to her in the partition was prima facie illegal and contrary to the provisions of law. Secondly, assuming that the partition was valid, the respondent had no right to terminate the tenancy of the appellant on any ground whatso ever. The appellant was a tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1, 1961. Hence he became a statutory owner under Section 46 on and from April 1, 1961. Any proceedings for evicting him on the ground that he was a tenant and, therefore, had fallen in arrears of rent could not have, therefore, been adopted in 1962. It is unfortunate that the High Court lost sight of the ' said patent legal position and brushed aside the con tention in that behalf on the ground that the question involved was a question of law and fact. We are unable to see what questions of fact were necessary to investigate for the disposal ot the said question. It was a pure question of law arising out of the admitted facts on record. Hence we allow the appeal, set aside the decision of the High Court and hold that the appellant had become a statutory owner of the suit land on and from April 1, 1961. He was, therefore, not liable to be evicted at the hands of the respondent and the proceedings adopted by her were illegal and stand dismissed. The respondent will pay the costs throughout. R.S.S. Appeal al lowed.

The appellant was a protected lessee or tenant of the agricultural land in dispute, under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The respond ent became the landlady of the land on June 29, 1959 when her father effected a partition of his ancestral lands between himself, on the one hand, and his wife and his two minor daughters, including the respondent, on the other. This was the third partition effected by the respondent 's father, who had earlier also twice partitioned the same lands. Sometime in 1962, the respondent initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default. The Tehsildar dismissed the application holding that the respondent was not a landlady since the partition in question was illegal. The Deputy Collector in appeal confirmed this decision, and the Maha rashtra Revenue Tribunal rejected the respondent 's revision. In the Writ Petition filed before the High Court under Article 227 of the Constitution against the above decision of the three authorities below, the High Court remanded the matter to the Tehsildar for investigation into the validity of the partition. On remand, the Tehsildar held that the partition effected on June 29, 1959 was bogus. Thereafter, in a different proceeding the Maharashtra Revenue Tribunal had held that the said partition was bind ing. Therefore, in the appeal against the decision of the Tehsildar, the Deputy Collector following the said decision of the Revenue Tribunal, held the partition valid and al lowed the respondent 's application for eviction. The Revenue Tribunal, in revision, confirmed this order of the Deputy Collector. 67 The appellant preferred a writ petition before the High Court. It was, inter alia, contended before the High Court that: (1) the partition was contrary to the provisions of Hindu Law; and (2)even assuming that the partition deed of June 29, 1959 was a valid document, the same had to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of section 38(7) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The High Court however dis missed the petition holding that what was produced before the courts below was a family settlement. Allowing the appeal, this Court, HELD: (1) A partition of the property can only be among the parties who have a pre existing right to the property. Under the Hindu Law, a female, major or minor has no share in the ancestral property. A female is given a share either in the self acquired property of the husband or the father, or in the share of the husband or the father in the coparce nary property after the property is partitioned. There cannot, therefore, be a partition and hence a family settle ment with regard to the ancestral property so long as it is joint, in favour of either the wife or the daughter. [70C D] (2) The position that obtain under section 38(7) after the Amending Act of 1963, is that any transfer of land effected after 1st August 1953 whether by way of partition or otherwise, has no effect of conferring on the transferee a right to terminate the tenancy of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition. This amendment is admittedly retrospective in operation. [71G H; 72A] (3) The appellant was tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1, 1961. Hence he became a statutory owner under section 46 of the Act on and from April 1, 1961. Any proceedings for evicting him on the ground that he was a tenant and, there fore, had fallen in arrears of rent could not have, there fore, been adopted in 1962. [72C D]

N: Criminal Appeal No. 481 of 1980 Appeal by Special Leave from the Judgment and Order dated the 2nd May, 1979 of the Patna High Court in Criminal Misc. No. 405 of 1979. D.P. Singh, and V.J. Francis for the appellant. 726 D. Goburdhan for the Respondent. D.P. Mukherjee for Complainant. The Judgment of the Court was delivered by VENKATARAMIAH, J. The question for consideration in this case is whether a person against whom a complaint is filed alongwith some other person and who after an enquiry under section 202 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (hereinafter referred to as the Code) is not proceeded against by the court can be summoned at a later stage under section 319 of the Code to stand trial for the very same or connected offence or offences alongwith the other person against whom process had been issued earlier by the court. This is an appeal by special leave against the judgment and order dated May 2, 1979 of the High Court of Patna in Criminal Misc. No. 405 of 1979. A complaint was preferred by the second respondent herein before the Chief Judicial Magistrate, Ranchi, to take action against the appellant and one Banktesh Prasad alleging that Banktesh Prasad had committed certain acts which amounted to offences punishable under sections 323 and 504 I.P.C. and that the appellant had abetted the offence under section 323 and had also committed an offence punishable under section 506 I.P.C. Banktesh Prasad was the Security Officer of the National Institute of Foundry and Forge Technology, The appellant was its Director. The complainant was the General Secretary of the association of the employees of the Institute. The alleged incident is stated to have taken place as a consequence of a certain labour dispute. After recording the statement of the complainant on solemn affirmation and the evidence of six witnesses, the Chief Judicial Magistrate felt that there was no prima facie case made out for proceeding against the appellant and accordingly he declined to issue process against him. He, however, took cognizance of the case against Banktesh Prasad and issued process against him for his appearance on September 15, 1976. The case was transferred to the file of the Judicial Magistrate, Ist, Class, Ranchi for disposal. The complainant filed a revision petition before the Judicial Commissioner, Ranchi, against the order of the Chief Judicial Magistrate dropping the proceedings against the appellant. That petition was dismissed by the Judicial Commissioner on November 24, 1976. 727 The proceedings against Banktesh Prasad were continued before the Judicial Magistrate, Ist Class, Ranchi, as directed by the Chief Judicial Magistrate. In the course of those proceedings, it appears, that the prosecution witnesses deposed on oath that the appellant had ordered Banktesh Prasad to hit the complainant and that the appellant had also taken out his revolver and threatened to shoot and kill the complainant 's party by pointing the revolver towards them. After such evidence was recorded the complainant made an application under section 319 of the Code to summon the appellant to stand trial alongwith Banktesh Prasad. That application was allowed by the magistrate on April 2, 1979 holding that there was sufficient evidence in the case suggesting that the appellant had committed offences punishable under sections 323/109 and 506 I.P.C. and that the appellant should be summoned to face the trial alongwith the other accused. The appellant questioned the order of the magistrate before the Patna High Court at Ranchi in a revision petition. That petition was dismissed. This appeal by special leave is filed against the order of the High Court on the revision petition. Section 319 of the Code reads: "319. Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re heard; 728 (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. " The provision corresponding to section 319 of the Code was section 351 of the former Criminal Procedure Code of 1898. Section 351 of the old Code provided that any person attending a criminal court although not under arrest or upon a summons, might be detained by such court for the purpose of inquiry into or trial of any offence of which such court could take cognizance and which from the evidence might appear to have been committed and might be proceeded against as though he had been arrested or summoned. It further provided that when such detention took place in the course of an inquiry under Chapter XVIII of the old Code or after a trial had begun the proceedings in respect of such person should be commenced afresh and the witnesses re heard. Under that section it was not open to the Court to summon a person who was not attending the court and join him in a pending criminal proceeding even though it appeared to the court that evidence in the proceedings disclosed that such person was also involved in the commission of any offence connected with the one for which the accused already before the Court was on trial. Since it was found desirable to empower the criminal court to take action against such person also, Parliament on the recommendation of the Law Commission in its 41st Report introduced section 319 in the present code as set out above. The point to be decided in this case is whether when a magistrate had declined to issue process against a person at the stage of an inquiry under section 202 of the Code, he can later on summon him under section 319 of the Code. An inquiry under section 202 of the Code is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can commence only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused until it is decided to issue process against him. Even if he participates in the proceedings under section 202 of the Code, he does so not as an accused but as a member of the public. The object of the inquiry under section 202 729 is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings under section 202 of the Code. The nature of these proceedings is fully discussed by this Court in two cases Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker & Anr.(1) and Chandra Deo Singh vs Prokash Chandra Bose & Anr.(2) in which section 202 of the former Code of Criminal Procedure arose for consideration. The present section 202 being a substantial reproduction of the former section 202, the observations made by this Court on the nature of proceedings under that section would have to be accepted as governing the proceedings under section 202 of the Code. Even so two of the modifications made in the present section 202(1) deserve attention. In section 202(1) of the old Code where a magistrate decided to postpone the issue of process for compelling the attendance of the person complained against he had to record reasons in writing in support of such decision. That obligation is no longer there under the present section. Secondly, the purpose of holding an inquiry under section 202(1) of the old code was stated to be 'ascertaining the truth or falsehood of the complaint '. Under the new section the inquiry contemplated is for the purpose of deciding whether or not there is sufficient ground for proceeding. The amendment now made brings out clearly the purpose of the inquiry under section 202 even though words used in the former section had also been understood by courts in the same way in which the present section is worded. Thus the section has been brought in accord with the language of section 203 which empowers the magistrate to dismiss a complaint if he is of opinion 'that there is no sufficient ground for proceeding '. The object of the latter change in section 202 is to be found in the 41st Report of the Law Commission which opined thus: "16.9. Section 202 says in terms that the further inquiry or investigation is intended for the purpose of ascertaining the truth or falsehood of the complaint". 730 We consider this inappropriate, as the truth or falsehood of the complaint cannot be determined at that stage; nor is it possible for a magistrate to say that the complaint before him is true when he decides to summon the accused. The real purpose is to ascertain whether grounds exist for 'proceeding further", which expression is in fact used in section 203 '. We think therefore that the language of section 202 should correspond to the language of section 203, and we have accordingly made suitable verbal alterations. " The effect of dismissal of a complaint under section 203 of the old Code has been dealt with by this Court in Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar(1). Kapur, J. who wrote the majority judgment observed at page 354 thus: "An order of dismissal under section 203, Criminal Procedure Code, is however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. " As rightly commented by the Law Commission the circumstances mentioned by the Court in the above passage cannot be exhaustive of all the circumstances when a second complaint can be in otherwise in entertained. A second complaint may be entertained appropriate cases too, though it should be for extraordinary reasons. Having regard to the nature of the proceedings under section 202 of the Code, it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed against a person complained against on the same material if the Court has dismissed a complaint under section 203. But it is not necessary to express any final opinion on that question since in the instant case, it is seen that the magistrate decided to take action under section 319 of the Code on the basis of fresh evidence which was 731 brought on record in the course of the proceedings that took place after the inquiry contemplated under section 202 of the Code was over and in the course of the trial against Banktesh Prasad. The autre fois principle adumbrated, in section 300 of the Code cannot however, apply to this case. Even when an order of the magistrate declining to issue process under section 202 is confirmed by a higher court, the jurisdiction of the magistrate under section 319 remains unaffected if other conditions are satisfied. In Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors(1) to which one of us (Venkataramiah, J) was a party, this Court had to deal with the scope of section 319. In that case a Food Inspector filed a complaint before a magistrate requesting him to take action against the manager and all the directors of a company which was engaged in the business of manufacture of a certain brand of toffees for violating certain provisions of the Prevention of Food Adulteration Act. When the magistrate proceeded to take action against the accused, they approached the High Court under section 482 of the Code with a prayer for quashing the proceedings. The High Court quashed the proceedings against all of them on the ground that there was no averment that any of them was in charge of the affairs of the company which was manufacturing the toffees. On appeal to this Court, the order of the High Court in so far as the manager was concerned was set aside as from the very nature of his duties it was clear that he was liable to be proceeded against for the offence said to have been committed by the company. But as regards the directors, the order of the High Court was upheld as at that stage it was found that there was not sufficient material to proceed against them. But it was, however, made clear that if the prosecution was able to produce evidence against any of those directors at a later stage it was open to the trial court to proceed against him under section 319 of the Code. In that connection this Court observed at Page 8 thus: "This provision gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject matter of a decision by this Court in Joginder Singh vs State of Punjab where Tulzapurkar, J. speaking for the Court observed thus; (at page 349) 732 A plain reading of Section 319(1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused,. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. " It is thus clear that it cannot be said that the magistrate had no power to proceed against the appellant in this case. On looking into the record we are of the view that the magistrate had good reason to summon the appellant under section 319 of the Code as it appears from the evidence led at the trial that there was a strong case made out against the appellant for joining him in the criminal case as an accused. It is, however, not necessary to refer to this aspect of the matter in detail having regard to the nature of the order we propose to pass in this case. In the instant case, the complaint was filed in 1976. There was also a counter complaint filed against the second respondent. The 733 Magistrate convicted the second respondent in that case. On appeal, the Additional Judicial Commissioner, Ranchi acquitted the second respondent and the said order of acquittal has become final. The second respondent who was an employee of the National Institute of Foundry and Forge Technology, Ranchi had been suspended for involvement in the incident in question. That order of suspension has since been revoked and he has rejoined his duties after receiving all back wages. No other workman has been discharged or punished for participating in the incident. On November 4, 1981, a settlement has been arrived at between the NIFFT Employees ' Association and the management settling all pending issues. As a consequence of the settlement, it is stated that the second respondent has also filed an application before the Magistrate to withdraw the original complaint out of which these proceedings have arisen. In view of these events which have taken place since the filing of the complaint and the nature of the offences alleged to have been committed by the appellant and in the interests of industrial peace, we feel that while we agree with the High Court on the order made by it, these proceedings initiated against the appellant should be dropped. We, therefore, set aside the orders passed by the High Court and by the Magistrate and dismiss the application filed by the second respondent under section 319 of the Code. The appeal is accordingly allowed. S.R. Appeal allowed.

The General Secretary of the Employees Association of the National Institute of Foundry and Forge Technology, Ranchi filed a complaint before the Chief Judicial Magistrate, Ranchi to take action against Banktesh Prasad. the Security Officer of the Institute and the Appellant, the Director of the Institute, alleging that both had committed certain acts amounting to offences punishable the former under Sections. 323 and 504 IPC and the latter under Sections 323 and 506 IPC. After recording the statement of the complainant and the evidence of six witnesses under section 202 Cr. Procedure Code 1973, the Chief Judicial Magistrate felt that there was no prima facie case made out for proceeding against the appellant and accordingly he declined to issue process against him. A revision petition filed by the complainant against that order was dismissed by the Judicial Commissioner, Ranchi. However, in the course of further proceedings against Banktesh Prasad, the First Class Judicial Magistrate, Ranchi to whose Court the proceedings were transferred allowed an application under section 319 filed by the complainant to the effect that since it was in the further evidence of the witnesses that the appellant had also taken out his revolver and threatened to shoot and kill the complainants ' party, he should be summoned to stand trial along with Banktesh Prasad. The appellant questioned the order of the Magistrate before the Patna High Court at Ranchi in a Revision Petition. That Petition was dismissed. Hence the appeal by Special Leave. Allowing the appeal, the Court ^ HELD: 1 : 1 Having regard to the nature of the proceedings under Section 202 of the Criminal Procedure Code, it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed under Section 319 against a person complained against on the same material, if the Court has dismissed a complaint under Section 203. But it is not necessary 725 to express any final opinion on that question since, in the instant case, it is seen that the magistrate decided to take action under section 319 of the Code on the basis of fresh evidence which was brought on record in the course of proceedings that took place after the inquiry contemplated under Section 202 of the Code was over and in the course of the trial against Banktesh Prasad. [730 G H, 731 A B] 1 : 2 Even when an order of the magistrate declining to issue process under Section 202 is confirmed by a higher court, the jurisdiction of the magistrate under Section 319 remains unaffected, if other conditions are satisfied. [731 B] 1 : 3 The autre fois principle adumbrated in Section 300 of the Code cannot, however, apply to this case. In the instant case, the magistrate had good reason to summon the appellant under Section 319 of the Code, as it appears from the evidence led at the trial that there was a strong case made out against the appellant for joining him in the criminal case as an accused. [731 B, 732 D] Pramathanath Taluqdar vs Saroj Ranjan Sarkar [1962] Suppl. 2 SCR 297; Municipal Corporation of Delhi vs Ram Kishan Rohatgi and ors. ; followed. 2 : 1 The object of the inquiry under Section 202 of the Code is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. Section 202 does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. [728 H, 729 A B] 2 : 2 An inquiry under Section 202 of the Code is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can commence only after the process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused until it is decided to issue process against him. Even if he participates in the proceedings under Section 202 of the Code, he does so not as an accused but as a member of the public. [728 G H] Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker and Anr., ; Chandra Deo Singh vs Prokash Chandra Bose and Anr., ; , referred to.

Civil Appeal No. 1275 of 1979 Appeal by Special leave from the Judgment and Order dated 891 the 27th March, 1979 of the Allahabad High Court in Civil Misc. Writ No. 1416 of 1977. Mr. E.C. Agarwala, Advocate for the Appellant. Mr. J. P. Goyal, Mr. section R. Jain and Mr. Rajesh, for the Respondent. The Judgment of the Court was delivered by MISRA, J. The present appeal by special leave against the judgment of the Allahabad High Court dated 27th of March, 1979 centers round a shop No. 270 situate in Grouceganj, Bulandshahr. This shop was owned by Ratan Lal and Naubat Singh was a tenant of the shop. Nabuat Singh died on 31st of August, 1974. He had no male issue but had four daughters, all of whom were married and were residing with their husbands outside Bulandshahr. He also left behind his widow who was residing in village Rampur, district Bulandshahr. He was carrying on some business in the disputed shop during his lifetime. On his death Ratan Lal, the landlord, filed an application under section 12 read with section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short, referred to hereinafter as 'the U.P. Act No. 13 of 1972 ') for a declaration that the shop was vacant and he required the same for his personal need. The application was resisted by Jaspal Singh, the present appellant, on the ground that he was the heir of Naubat Singh deceased and was in occupation of the disputed shop; that on 4th of July 1973 Naubat Singh before his death executed a will conveying all his rights and properties including the tenancy rights in the disputed shop to him; that he had been helping Naubat Singh in his business s for the last several years and remained in continuous possession of the disputed shop after the death of Naubat Singh and so he was entitled to get the benefit of s.14 of the U.P. Act No. 13 of 1972. The Rent Control and Eviction officer rejected the application holding that Jaspal Singh the, appellant, had been living with the deceased Naubat Singh and was also assisting him in doing the business in the disputed premises to the full knowledge of the landlord, and so he was entitled to get the tenancy rights under section 14 of the U.P. Act No. 13 of 1972, as it stood prior to its amendment made by U.P. Act No. 28 of 1976. 892 Feeling aggrieved the landlord preferred a revision before the District Judge, Bulandshahr,, which was transferred to the Additional District Judge, who dismissed the same on 8th of July, 1976. He, however, did not agree with the finding of the Rent Control and Eviction officer that Jaspal Singh was entitled to the benefit of original section 14 of the U.P. Act No. 13 of 1972 but since even after the death of Naubat Singh, on 31st of August 1974 Jaspal Singh had been permitted to continue in possession of the premises he got the benefit of amended section 14, as amended by U.P. Act No. 28 of 1976. Undaunted by his failures, the landlord filed a petition under article 226 of the Constitution challenging the orders of the two authorities below. The High Court endorsed the finding of the Additional District Judge that Jaspal Singh could not get the benefit of the unamended section 14 of the U.P. Act No. 13 of 1972 inasmuch as on the date immediately preceding the commencement of the Act, i.e., on 14th July, 1972 Naubat Singh was very much alive and admittedly he was the tenant of the premises in question and as such no question of regularisation of Jaspal Singh as tenant could arise. The High Court also held that Jaspal Singh was not even entitled to get the benefit of the amended section 14 as it stood amended by the U.P. Act No.28 of 1976, which came into force on 5th of July, 1976. According to the High Court the benefit of amended section 14 would be available to Jaspal Singh, the appellant, only when he was living in the premises with the consent of the landlord provided that no proceedings for his eviction were pending. The landlord, however, in the instant case immediately after the death of Naubat Singh started the proceedings for the release of the premises in 1974. The High Court took exception to the assumption of the learned Additional District Judge regarding the consent of the landlord. According to the High Court consent of the landlord cannot be assumed or presumed, it must be proved as a fact but there was no proof of the consent of the landlord. The High Court alter construing the scheme and the various provisions of the Act also held that the appellant could not be an heir on the basis of the will executed by Naubat Singh nor could Naubat Singh execute any will in respect of the tenancy rights. On these findings the High Court held the possession of Jaspal Singh to be unauthorised. Consequently, the High Court allowed the writ petition and quashed the orders of the authorities below and directed the Rent Control and Eviction officer to decide the release application afresh in accordance with the law. Jaspal Singh has not approached this Court by special leave, and the counsel for the appellant has reiterated the same points before us. 893 The first question which calls for consideration is whether Jaspal Singh, the appellant is entitled to the benefit of the unamended and amended section 14 of the rent Act. It would be appropriate at this stage to read the old unamended and amended section 14 of the Act. Section 14 as it stood originally in the U.P. Act No. 13 of 1972 read: "14. Regularisation of occupation of existing tenants. Notwithstanding anything contained in and general order made under sub section (2) of section 7 of the old Act, any tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act, not being a person against whom proceedings under section 7 A of the old Act are pending immediately before such commencement, shall be deemed to be in authorised occupation of such building. Section 14 of the Act as amended by the U.P. Act No. 28 of 1976 reads: "14. Regularisation of occupation of existing tenants. Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2 A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent. and Eviction Amendment) Act, 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building. " A bare perusal of section 14 as it stood prior to its amendment in 1976 would indicate that in order to get the benefit of this section a person must satisfy that (1) he was a tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act and that he was not a person against whom proceedings under section 7A of the old Act are pending immediately before such commencement, i.e., on 14th July, 1972 (date of commencement of the Act being 15 July, 1972). Admittedly Naubat Singh was the tenant of the shop on the date immediately preceding the commencement of the Act (i.e., 15th July, 1972) and he was alive 894 and therefore no question of Jaspal Singh being regularised as a tenant arises. In order to attract section 14 as it stood after the amendment in 1979, Jaspal Singh had to prove that he was a licensee or a tenant with the consent of the landlord immediately before the commencement of the U.P. Act No. 28 of 1976 which came into force on 5th July, 1976. At the relevant time, however, the application for release filed by the landlord against Jaspal Singh was pending in court of Additional District Judge by way of revision petition wherein the landlord Ratan Lal had contested the claim of tenancy by Jaspal Singh. The appellant, therefore, could not get the benefit of amended 5. 14 as well and the High Court was right in so holding. This leads us to the next contention that the appellant is a tenant within the meaning of section 3(a) of Act No. 13 of 1972: "3. In this Act, unless the context otherwise require (a) "tenant" in relation to a building, means a person by whom its rent is payable, and on the tenant 's death (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non residential building, his heirs:" The appellant would be a tenant within the meaning of section 3 (a) only when he is an heir. The appellant is not a son but only a nephew of Naubat Singh. He, however, claims to be an heir on the basis of a will executed by Naubat Singh conveying all his rights and properties including the tenancy rights in respect of the disputed shop in his favour and that he had been helping Naubat Singh in his business for the last several years and continued to remain in possession of the shop even after the death of Naubat Singh. Accordingly he was entitled to the benefit of section 14. We have already dealt with the question whether the appellant was entitled to the benefit of section 14 as it stood prior to its amendment in 1976 and also of the amended provisions of section 14 and we have negatived the contention of the appellant. Therefore, the precise question for consideration would be whether the appellant is an heir within the meaning of section 3(a) on the basis of the will executed in his favour by Naubat Singh. There seems to be a cleavage of opinion on this point in various High 895 Courts. The Allahabad High Court in Smt. Rukmani Devi vs III Addl. District Judge, Kanpur and Munni Lal vs Smt. Shiva Devi held that the question as to who are heirs of the deceased tenant, will be decided in accordance with the personal law of the tenant, as this Act does not lay down the list of heirs on whom the tenancy should devolve. Tn some of the Rent Control Acts list of the heirs has been specified for the purpose of devolution of tenancy on the death of the tenant. A Division Bench of the Punjab and Haryana High Court in Gulzara Singh vs Smt. Tej Kaur on the other hand held: "Generally speaking 'heirs ' are those persons whom the law declares to be entitled to the estate of a deceased person, and in common legal parlance the word 'heir ' like the expression 'heir at law ' undoubtedly connotes and is suggestive of a person who succeeds to the estate in case of intestacy under the statutes of succession. But in common speech this word is also not infrequently used to indicate those who come in any manner to the ownership of any property by reason of the death of the owner or persons upon whom the property devolves on the death of another either by law or by will. " In other words, it is indicative of persons entitled by will or otherwise to share the estate of the deceased. It is thus true that technically the word 'heir ' may be distinguish able from the word 'legatee ' but it is also at times used in its more general and comprehensive sense as indicating the person upon whom the property devolves on the death of another and hence when the intent is clear the word 'heir ' may well be treated as equivalent to 'Legatee ' or devised '. The true scope, effect and significance of this word is, there fore, in all cases a question of intention which has to be determined principally on a consideration of the objection and purpose of the statute in which it is used." Thus, the word 'heir has been construed both in a wider as well as in a narrower sense. Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs. This will also 896 raise an allied question whether the tenancy rights could be devised by a will. It will be relevant at this stage to refer to material provisions of the Act. The word 'family ' has been defined in section 3(g) of the Act: (g) "family" in relation to a landlord or tenant of a building, means, his or her (i) spouse, (ii) male lineal descendants, (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female, having a legal right of residence in that building;" Section 11 deals with the prohibition of letting without allotment order. It reads: "Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16." Section 12 deals with a deemed vacancy of building in certain cases and reads: "(1) A landlord or a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. 897 (2) In the case of non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. " Section 13 provides for restrictions on occupation of building without allotment or release, and reads: "Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise then under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part. " Section 15 casts an obligation on the landlord or the tenant to intimate vacancy to the District Magistrate. Section 16 deals with allotment and release of a vacant building. Section 20 puts a bar of suit for eviction of a tenant except on specified grounds enumerated therein. From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant. There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he has allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building. In the case of a non residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. If a tenant subjects the premises, he is able to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously, cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime. Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the 898 original tenant. Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights. The High Court also recorded a finding to the effect that there was no will in respect of the tenancy rights of the disputed shop. Having given our anxious consideration to the questions involved in the case we see no reason to differ from the finding of the High Court. The appeal is accordingly dismissed but in the circumstances of the case the parties are allowed to bear their own costs. M.L.A. Appeal dismissed.

The Central Government as an 'appropriate Government ' referred the Industrial dispute between the Appellant employees ' Association and the first Respondent employer in each of the Appeals under Sec. 10 (1) (d) of the to the Central Government Industrial Tribunal. A preliminary objection was raised that the CENTRAL Government was not the 'appropriate Government ' in relation to the said industrial disputes and consequently the Central Government had no power under Sec. 10 (l) (d) of the Act to make the five references and that the Tribunal would have no jurisdiction to entertain the same The Appellant Association repelled this objection by contending that the workmen were 'dock workers ' within the meaning of the expression in the and as they were working at Mormugao Port, a major port in the Union Territory of Goa, Daman Diu, the Central Government would be the 'appropriate Government ' in relation to the industrial dispute and consequently the references were valid and competent. 374 The Tribunal held that the workmen covered by the reference who were iron Ore samplers were 'dock workers ' as defined in the and as they were working in a major port, in a Union Territory, the Central Government would be the 'appropriate Government ' for referring the industrial dispute. The Tribunal over ruled the preliminary objection and set down the references for final hearing. The first respondent employers filed applications under Article 227 in the High Court which held that the workmen, who were iron ore samplers, were neither comprehended in the expression 'dock workers ' as defined in the . nor involved in any work connected with or related to a major port. and were not involved in an industrial dispute concerning a major port and therefore the Central Government was not the appropriate Government ' for referring the industrial dispute. It further held that the Central Government is not the State Government for the Union Territory of Goa, Daman and Diu under Section 2 (a) (i) of the but it is the Administrator appointed under Article 239 and therefore the Central Government was not the 'appropriate Government ' and had no jurisdiction to make the references. The rule was made absolute and the references quashed. Allowing the Appeals to this Court, ^ HELD: 1. The Central,Government as the 'appropriate Government had made the references The High Court was clearly in error in quashing the references. The judgment of the High Court is quashed and set aside and the award of the Tribunal on the preliminary point about the competence of the Central Government to make the reference under Section 10(1) of is confirmed. The tribunal will be at liberty to examine the contention whether iron ore samples are involved in any work connected with or related to a major part or are dock workers and come to its own decision uninfluenced by the view taken by the High Court. As the dispute is an old one, the Tribunal is to give top priority and dispose of the matter within a period of six months. [386G; 387D E, C] 2 (i) Indisputable the is a Central Act enacted after the commencement of the and the relevant definitions having been recast to meet the constitutional and statutory requirements the expressions 'Central Government, 'State Government ',and 'Union Territory ' must receive the meaning assigned to each in the unless there is anything repugnant in the subject or context in which it is used. No. such repugnancy was brought to the notice of the Court. [384B C] (ii) On a conspectus of the relevant provisions of the Constitution and the Union Territories Act 1963, it clearly transpires that the concept of State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an Administrator appointed by him. Administrator is thus the delegate of the President. His position is wholly different from that 375 Of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central A Government. The Administrator of Union Territory does not therefore qualify for the description of a State Government. The Central Government is therefore the 'appropriate Government ' [384F G] (iii) The High Court fell into an error in interpreting clause (c) of Section 3 (60) of the which upon its true construction would show that in the Union Territory there is no concept of State Government but wherever the expression 'State Government ' is used in relation to the Union Territory, the Central Government would be the State Government. The very concept of State Government in relation to Union Territory is obliterated by the definition. [383D H] Satya Dev Bushahri vs Padam Dev & Ors., ; and the State of Madhya Pradesh v, Shri Moula Bux & Ors. ; , held inapplicable. (i) The definition of three expression 'Central Government ' (Section 3 (8), 'State Government ' (Section 3 (60)), and Union Territory ' (Section 3 (62A)) in the Would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression 'Central Government ' that in relation to the Administration of a Union Territory the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. would be comprehended in the expression 'Central Government. When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression State Government ' which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governors and in a Union Territory, the Central Government, the difference conceptually speaking between the expression ' State Government ' and the 'Administration of a Union Territory ' clearly emerges There is no room for doubt that the expression Administration of a Union Territory ', Administrator however having been described, would not be comprehended in the expression State Government as used in any enactment These definitions have been modified to bring them to their present form at by the Adaptation of Laws (No.1) Order, 1956. [386E G] (ii) The High Court clearly fell into an error when it observed that the inclusive definition of the expression 'State Government, does not necessarily enlarge the scope of the expression but may occasionally point to the contrary; [386C]

vil Appeal No. 41819 of 1989. From the Judgment and Order dated 29.4.1988 of the Gujarat High Court in F.A. Nos. 848 849 of 1986. V.B. Patel, D. Patel, T.H Pandey and R.P. Kapur for the Appellant. Soli J. Sorabjee, Atul Setalwad, N.J. Mehta, P. Shah, S.K. Sharma, section Sharma and P.H. Parekh for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an application for leave to appeal under Article 136 of the Constitution from the judgment and order of the High Court of Gujarat dated 29th April, 1988. To appreciate the questions involved herein, few facts have to be emphasized. In 1978, the State Government of Gujarat undertook a scheme known as 'Bhavnagar City Water Supply Scheme '. The 322 Scheme was divided into two parts: (i) Raising Main; and (ii) Gravity Main. Raising Main was divided into two sec tions, namely, 10.1 k.ms. and 7.4 k.ms. steel welded pipe line. On or about 15/16th December, 1978, the State Govern ment issued letter of approval to the bargain between the parties on certain terms. On 12th January, 1979, two contracts were awarded to the respondent No. 1 for Rs. 1,29,39,691 and Rs.94,30,435 which provided the dates of completion as February 1979 and the 3rd week of September, 1980 respectively. On 29th March, 1981 the respondent No. 1 filed the Civil Suit No. 588 of 1981 in the City Civil Court with regard to measurements recorded by the Deputy Engineer and alleged underpayments. On 4th June, 1981, the respondent No. 1 gave notice to the State Government and the petitioner Board requesting for reference of the alleged disputes to the arbitrator under clause 30 of the agreement. On or about 8th July, 198 1 the respondent No. 1 gave notice under Section 8 of the Arbitra tion Act, 1940 (hereinafter called 'the Act ') calling upon the petitioner to concur in the appointment of one Shri G.G. Vaidhya. On 21st July, 1981, he withdrew the Civil Suit No. 588 of 1981. On 6th August, 1981, the respondent No. 1 filed Civil Miscellaneous Application No. 231 of 1981 in the Court of Civil Judge, (SD), Ahmedabad for appointment of the said Shri G.G. Vaidhya as the sole arbitrator. On 7th November 1981, the petitioner filed reply contesting the arbitrabili ty of the various claims made in the application and inter alia contending that the application was not maintainable. On or about 15th December, 1981 the learned Civil Judge appointed Shri G.G. Vaidhya as the sole arbitrator with a direction that he should first decide as to which disputes fell within the purview of clause 30 of the agreement. On 5th May, 1982, Shri Vaidhya gave an interim award holding that the claims at section Nos. 10(g) and 10(1) only were not arbitrable and further that the other claims were arbitra ble. A petition was filed in High Court which was dismissed and then there was an application to this Court under Arti cle 136 of the Constitution which was disposed of by consent on 30th November, 1983. The said order inter alia provided that the parties had agreed to settle the matter amicably and one Shri Mohanbhai D. Patel, Retired Secretary, Public Works Department, Gujarat and at that time Sitting Member of the petitioner Board was appointed as the sole arbitrator in place of Shri Vaidhya to decide all disputes between the parties relating to the following works: "i) providing, fabricating, laying and joint ing 1000 mm dia. 10,000 M long steel welded pipe line under Bhavnagar 323 Emergency Water Supply Scheme based on She trunji Dam Agreement No. 5/2 1 of 1978 79. ii) providing, fabricating laying and jointing 1000 mm dia 7,400 M long steel welded pipe line under Bhavnagar Emergency Water Supply Scheme based on Shetrunji Dam Agreement No. B 2/2 of 1978 79. " It was further provided that all disputes concerning the said two works in question should be referred to the sole arbitrator and the Board could also be entitled to put counter claims before him. The consent terms also provided the following terms: "That the arbitration proceedings shall be started de novo meaning thereby that the earlier appointment and proceedings before the Sole Arbitrator Shit G.G. Vaidhya shall be inoperative and void. That the Board shall have a right to agitate all points both in fact and in law before the Sole Arbitrator as per the terms and condi tions of the contract including the question of arbitrability within the meaning of clause 30 of the contract. Both parties shall have a right to be repre sented by an Advocate and/or their representa tives. The expenses of arbitration shall be borne by .both the parties as per rules of Govern ment in this behalf. That both parties shall agree to extend time as and when necessary for competition of arbitration proceedings. That a formal agreement for arbitration shall be executed between the parties defining the scope of Arbitration. _ That the provisions of the Indian shall apply to the proceedings before this Sole Arbitrator." On 31st March, 1984, Shri M.D. Patel was appointed as the sole arbitrator jointly by the parties, and on 2nd April, 1984 he accepted his appointment and directed the parties to file their claim statements within 15 days. Thereafter, the respondent No. 1 filed claim to the tune of Rs.4,92,20,683 and a counter claim to the extent of 324 Rs.26,87,217.40. On 22nd August, 1984 the parties appeared before the arbitrator after filing of claims and counter claims. On 1st October, 1984 the petitioner filed an application before the arbitrator praying that preliminary issues be raised and decided first as to which of the disputes were arbitrable under clause 30 Of the agreement. On 8th July, 1985, a lumpsum award was made by the arbitrator, and on 19th July, 1985 the parties were informed about the signing of the award. On the same day the award filed by the re spondent No.1 's Advocate which was dated 8.7.1985 was regis tered as Civil Miscellaneous Application No. 144/85. There after, notice was issued on the same day and served on the petitioner also on the same day. The petitioner filed objec tions to the award and the Objection Petition was registered as Civil Miscellaneous Application No. 158/85. Reply to the objections was filed by the respondent No. 1. On 17th June, 1986, however, the learned Civil Judge directed that decree be passed in terms of the award. Two appeals were filed by the petitioner. On the 29th April, 1988 the High Court by a judgment dismissed the petition challenging the award and upheld the award. Aggrieved thereby, the petitioner has moved this Court as mentioned hereinbefore. Various grounds were urged in support of this applica tion. It was contended, firstly, that there was an error apparent on the face of the award and that the award was bad. It was submitted that the arbitrator had committed an error of law in not deciding or disclosing his mind about the arbitrability of claims or counter claims, more so when the Board 's application for deciding the same, was pending before the arbitrator. Before the learned Trial Judge the Board had submitted an application to the arbitrator seeking to raise a preliminary issue regarding arbitrability of the claims. As noted by the learned Trial Judge, it appears that the third meeting specifically mentioned that the claims were placed before the arbitrator and their contentions about the arbitrability were considered. So, these issues were gone into and it appears that the parties had agreed and proceeded on the basis that the claims may be examined and it was not necessary to decide preissue of arbitrability and it was agreed that aH the claims be decided claimwise. So, it cannot be said that the arbitrator had acted arbi trarily in discussing all the questions raised before him without first deciding the question of arbitrability or non arbitrability of an issue as such. The Court in its judgment has discussed the conduct of the parties. It appears that the Court found that the par ties themselves had 325 agreed that the arbitrator should decide claimwise and on merit. The Court so found, and in or opinion, rightly. The arbitrator so proceeded. There was no error committed by the arbitrator in so conducting himself. It was, secondly, contended that out of the numerous claims before the arbi trator, some of which, according to the petitioner, were ex facie not arbitrable and some were withdrawn including the claims for interest of Rs.54,61,073 and compound interest of Rs.82,26,039. and in the award no basis or indication was given as to which claim was rejected and further of the amount which was awarded as claim and what amount towards element of interest. It was, thirdly, contended that there was an error apparent on the face of the award inasmuch as the basis on which interest has been awarded has not been disclosed and whether the interest has been awarded from the date of the institution of the proceedings. It was, fourth ly, contended that granting of interest pendente lite was contrary to the decision of this Court. It was, lastly, contended that non speaking award had resulted in great prejudice inasmuch as against the claim of Rs. 1 lakh, Rs.57 lakhs have been awarded. The scope and extent of examination by the Court of the award made by an arbitrator has been laid down in various decisions. It has to be noted that there is a trend in modern times that reasons should be stated in the award though the question whether the reasons are necessary in ordinary arbitration awards between the parties is pending adjudication by the Constitution bench of this Court. Even, however, if it be held that it is obligatory for the arbi trator to state reasons, it is not obligatory to give any detailed judgment. An award of an arbitrator should be read reasonably as a whole to find out the implication and the meaning thereof. Short intelligible indications of the grounds should be discernible to find out the mind of the arbitrator for his action even if it be enjoined that in all cases of award by any arbitrator reasons have to be stated. The reasons should not only be intelligible but should also deal either expressly or impliedly with the substantial points that have been raised. Even in a case where the arbitrator has to state reasons, the sufficiency of the reasons depends upon the facts and the circumstances of the case. The Court, however, does not sit in appeal over the award and review the reasons. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusion or if the award is based upon any legal proposition which is erroneous. See the observations of this Court in Indian Oil Corporation Ltd. vs Indian Carbon Ltd.; , 326 In the instant case, the arbitrator by virtue of the terms mentioned in the order of this Court had to decide which of the disputes were arbitrable and which were not. It is true that the arbitrator has not specifically stated in the award that he had to decide the question of arbitrabili ty. The arbitrator has rested by stating that he had heard the parties on the point of arbitrability of the claim and the ,counter claim. He has further stated that after 'con sidering all the above aspects ' and 'the question of arbi trability or non arbitrability ' he had made the award on certain aspects. Reading the award along with the preamble, it appears clear that the arbitrator had decided the arbi trability and the amount he has awarded was on the points which were arbitrable. The contention that the arbitrator had not decided the question of arbitrability as a prelimi nary issue cannot also be sustained. A reference to the arbitrator 's proceedings which were discussed in detail by the High Court in the judgment under appeal reveal that the procedure adopted by the arbitrator, i.e., that he will finally decide the matters, indicated that the parties had agreed to and the arbitrator had proceeded with the consent of the parties in deciding the issues before him and in not deciding the question of arbitrability as a separate, dis tinct and preliminary issue. The arbitrator has made his award beating all the aspects including the question of arbitrability in mind. It was contended before us that the arbitrator has made a non speaking award. It was obliged to make a speaking award, it was submitted by terms of the order of this Court. We cannot sustain this submission because it is not obligatory as yet for the arbitrator to give reasons in his decision. The arbitrator, however, has in this case indicated his mind. It appears to us that the point that the non speaking award is per se bad was not agitated before the High Court. We come to that conclusion from the perusal of the judgment under appeal though, howev er, this point has not been taken in the appellant 's appeal. It is one thing to say that an award is unintelligible and is another to say that the award was bad because it was a non speaking award. The point taken was that the award was unintelligible and not that it was non speaking. But there was nothing unintelligible about the award. We were invited to refer the matter to the Constitution Bench and await the disposal of this point by the Constitu tion Bench. The contract in this case was entered into in 1978. The proceedings for initiation of arbitration started in 1981. The matter had come up to this Court before which resulted in the order dated 30th November, 1983. Pursuant thereto, the award has been made and no grounds specifically were urged though they were taken in the appeal in the High 327 Court in the arguments before the High Court about the award being bad because it is non speaking. In those circum stances, it will not be in consonance with justice for us to refer the matter to the Constitution Bench or to await the disposal of the point by the Constitution Bench. It was further submitted before us that the award was unreasonable and that the arbitrator had awarded a large amount to money but the original claim was not so large and as such the award was disproportionate. This contention, as it is, it appears from the judgment of the High Court, was not urged and canvassed before the High Court. The claim and the counter claim together in its totality, in our opinion, does not make the award amount disproportionate. Reasonableness as such of an award unless the award is per se preposterous or absurd is not a matter for the court to consider. Ap praisement of evidence by the arbitrator is ordinarily not a matter for the court. It is difficult to give an exact definition of the word 'reasonable '. Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and the circumstances in which he thinks. The word 'reasonable ' has in law prima facie meaning of reasona ble in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. See the observations on this point in Municipal Corporation of Delhi vs M/s. Jagan Nath Ashok Kumar & Anr., ; Judged by the aforesaid yardstick the award cannot be condemned as unreasonable. There is, however, one infirmity in the award which is apparent on the face of the award which in the interest of justice as the law now stands declared by this Court, we should correct, viz., the question of interest pendente lite. The right to get interest without the intervention of the Court and the powers of the court to grant interest on judgment have been examined by this Court in Executive Engineer (Irrigation) Balimela and Ors. vs Abhaduta Jena & Ors., [1988] 1 SCC 418 which observations were also followed by this Court in State of Orissa & Ors. vs Construction India, [1987] Supp. SCC 709. In accordance with the princi ples stated therein and the facts in this case, it appears that the principal amount awarded is Rs.57,65,273. This is confirmed. In this case, 2nd April, 1984 is the date of the reference to arbitration, on 22nd August, 1984 the arbitra tor entered upon the reference. 8th July, 1985 is the date of the award and 19th July, 1985, is the date of the publi cation of the award. The interest awarded, in the instant case, covers three periods: (i) 6th August, 1981 to 21st August, 1984 prior to the commencement of the arbitration proceedings; (ii) 22nd August, 1984 to 19th July, 328 1985 pendente lite; and (iii) 19th July, 1985 to 17th June, 1986 (date of award to date of decree). Having regard to the position in law emerging from the decision of this Court in Executive Engineer (Irrigation) Balimela & Ors. (supra) and section 29 of the and section 34 of the Code of Civil Procedure, we would modify the grant of interest in this case. The arbi trator has directed interest to be paid at 17% per annum from 6.8.1981 upto the date of decree viz., 17.6.1986. Since in this case the reference to arbitration was made after the commencement of the , the arbitrator under section 3(1)(a) of the said Act was entitled to award inter est from 6.8.1981 till 21.8.1984 in view of this Court 's decision in Abhaduta Jena 's case (supra). In the light of the same decision, he could not have awarded interest for the period from 22.8.1984 till the date of the publication of the award viz. 19.7. So far as interest for the period from the date of the award (19.7.1985) till the date of the decree is concerned, the question was not specifical ly considered in Abhaduta Jena 's case (supra) but special leave had been refused against the order in so far as it allowed interest for this period. We think interest should be allowed for this period, on the principle that this Court can, once proceedings under sections 15 to 17 are initiated, grant interest pending the litigation before it, i.e., from the date of the award to the date of the decree. It may be doubtful whether this can be done in cases arising before the in view of the restricted scope of section 29 of the . But there can be no doubt about the court 's power to grant this interest in cases governed by the as section 3(1)(a) which was applied by Abhaduta Jena to arbitrators will equally apply to enable this Court to do this in these proceedings. In this connection, it is necessary to consider whether the date of commencement of the arbitration proceedings should be taken as the date of the reference or the date on which the arbitrator entered upon the reference as the date of the calculation of interest. In this case, the proceed ings commenced on 2nd April, 1984 and the arbitrator entered upon the reference on 22nd August, 1984. Having regard to the facts and the circumstances of the case, it is neces sary, in our opinion, to take 22nd August, 1984 as the date. It is also necessary to consider whether the date of award should be taken as the date of its making or its publica tion. The award was made on 8th July, 1985 and it was pub lished on 19th July, 1985, and, therefore, the latter date would be taken as the date of the award. 329 We would, however, delete the interest awarded by the arbitrator for the period from 22.8.1984 till the date of the award and confine the interest on the principal sum of Rs.57,65,273 to interest at 9 per cent from 6.8.1981 till 21.8.1984 (which has been worked out at Rs.29,82,443). However, in exercise of our powers under section 3 of the and section 29 of the , we direct that the above principal sum or the unpaid part thereof should carry interest at the same rate from the date of the award (19.7.1985) till the date of actual pay ment. The appeals are disposed of in the above terms. N.V.K. Appeals disposed of.

In 1978 the State Government undertook the construction of the 'Bhavnagar City Water Supply Scheme ', and on 12th January, 1979, two contracts in respect thereof were awarded to respondent No. 1. On 29th March, 1981, respondent No. 1 filed a civil suit with regard to measurements recorded by the Deputy Engineer and alleged underpayments. On 14th June, 1981, he gave notice to the State Government and the peti tioner Board requesting for reference of the disputes to an arbitrator as provided for under clause 30 of the Agreement, and gave notice under section 8 of the calling upon the petitioner to concur in the appointment of one Shri G.G. Vaidhya. On 6th August, 1981 respondent No. 1 filed a civil miscellaneous application for appointment of the said Shri G.G. Vaidhya as the sole arbitrator after withdrawing the civil suit. The petitioner contended that the application was not maintainable. The Civil Judge howev er appointed the said Shri G.G. Vaidhya as sole arbitrator. The arbitrator gave an interim award holding that only two claims were not arbitrable and that the other claims were arbitrable. The High Court having dismissed the appeal, a further appeal was filed in this Court. This appeal was, however, disposed of by con 319 sent on 30th November, 1983 to the effect that a retired Secretary, Public Department who was at that time sitting member of the petitioner Board be appointed as the sole arbitrator to decide all the disputes between the parties. On 8th July, 1985, this sole arbitrator made a lump sum award. The Civil Judge directed that the decree be passed in terms of the award, rejecting the objections of the peti tioner. The High Court by a common judgment dismissed the two appeals of the petitioner challenging the award. In the appeals to this Court by special leave, it was contended: (1) that the arbitrator had committed an error of law in not deciding or disclosing his mind about the arbi trability of the claim or counterclaims, (2) in the award no basis or indication was given as to which claim was reject ed, and further what amount was awarded as claim and what amount towards element of interest, (3) there was an error apparent on the face of the award inasmuch as the basis on which interest had been awarded had not been disclosed and whether the interest has been awarded from the date of the institution of the proceedings, (4) that the granting of interest pendente lite was contrary to the decision of this Court and (5) that the non speaking award had resulted in great prejudice to the petitioner inasmuch as against the claim of Rs.1 lakh, Rs.57 lakhs had been awarded. Disposing of the appeals, the Court, HELD: 1(a) There is a trend in modern times that reasons should be stated in the award though the question whether the reasons are necessary in ordinary arbitration awards is pending adjudication by the Constitution Bench of this Court. Even if it be held that it is obligatory for the arbitrator to state reasons, it is not obligatory to give any detailed judgment. [325E] 1(b) An award Of an arbitrator should be read reasonably as a whole to find out the implication and the meaning thereof. Short intelligible indications of the grounds shall be discernible to find out the mind of the arbitrator for his action. [325F] l(c) The Court does not sit in appeal over the award and review the reasons. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusion or if the award is based upon any legal proposition which is erroneous. [325G H] 320 Indian Oil Corporation Ltd. vs Indian Corbon Ltd., ; , referred to. l(d) It is one thing to say that an award is unintelli gible and it is another thing to say that the award was bad because it was a nonspeaking award. [326F] In the instant case, the arbitrator, in pursuance to the order of this Court had to decide which of the disputes were arbitrable and which were not. Reading the award along with the preamble, it appears clear that the arbitrator had decided the arbitrability and the amount which he has award ed was on the points which were arbitrable. In such circum stances it will not be in consonance with justice to refer the matter to the Constitution Bench or to await the dispos al of the point by the Constitution Bench. [326B, G] 2. Reasonableness as such of an award unless per se preposterous or absurd is not a matter for the Court to consider. Appraisement of evidence by the arbitrator is ordinarily not a matter for the Court. It is difficult to give an exact definition of the word 'reasonable '. The word 'reasonable ' has in law, prima facie meaning of reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. The award in the instant case cannot be condemned as unreasonable. [327C D] Municipal Corporation of Delhi vs M/s. Jagan Nath Ashok Kumar & Anr., ; referred to. The grant of interest pendente lite is however one infirmity in. the award which is apparent on the face of the award which in the interest of justice should be corrected. [327E] Executive Engineer (Irrigation) Balimela and Ors. vs Abhaduta Jena & Ors., [1988] 1 SCC 418 and State of Orissa & Ors. vs Construction India, [1987] Supp. SCC 709 referred to. In the instant case, April 2, 1984 is the date of the reference to arbitration, on August 22, 1984 the arbitrator entered upon the reference. July 8, 1985 is the date of the award and July 19, 1985 the date of publication of the award. The latter date should be taken as the date of the award. Since the reference to arbitration was made after the commencement of the the arbitrator under section 3(1)(a) of the said Act was entitled to award inter est from August 6, 321 1981 till August 21, 1984. He could not have awarded inter est for the period from August 22, 1984 till the date of publication of the award viz. July 19, 1985. [327G H; 328A] 4. So far as interest for the period from the date of the award (July 19, 1985) till the date of the decree is concerned, interest should be allowed for this period, on the principle that this Court can, once proceeding under sections 15 to 17 are initiated, grant interest pending the litigation before it, i.e. from the date of the award to the date of the decree. It may be doubtful whether this can be done ln cases arising before the in view of the restricted scope of section 29 of the . [328D E] 5. The interest awarded by the arbitrator for the period from August 22, 1984 till the date of award is deleted; and the interest on the principal sum is confined to 9% from August 6, 1981 till August 21, 1984. However, exercising powers under section 3 of the and section 29 of the , the Court directed that the principal sum or unpaid part thereof should carry interest at the same rate from the date of the award (July 19, 1985) till the date of actual payment. [329A B]

section 443 of 1955 and 40 41 of 1956. Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights. M. C. Setalvad, Attorney General of India, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P.L. Vohra, for the petitioners (In all the petitions). R. H. Dhebar and T. M. Sen, for the State of Madras. K. V. Suryanarayana Iyer, Advocate General for the State of Kerala and T. M. Sen, for the State of Kerala. A. V. Viswanatha Sastri and M. R. Krishna Pillai, for respondents Nos. 2 to 9. Purshottam Trikamdas and M. B. Krishna Pillai, for respondent No. 12 (In Petn. 40 41 of 56). A. V. Viswanatha Sastri and K. R. Krishnaswami, for respondents Nos. 13 and 15 17 (In Petn. No. 443 of 55). K. B. Krishnaswami for respondents Nos. 11 and 14 (In all the petitions). 892 Purshottam Trikamdas and K. R. Krishnaswami, for respondent No. 12 (In Petn. No. 443 of 55). A.V. Viswanatha Sastri and M. R. Krishna Pillai, for Intervener No. 1. Sardar Bahadur, for Intervener No. 2. 1960. May 4. The judgment of Sinha, C. J., Subba Rao and Shah, JJ., was delivered by Subba Rao, J. The judgment of Imam and Sarkar, JJ. was delivered by Sarkar, J. SUBBA RAO, J. These three connected petitions filed under article 32 of the Constitution raise the question of the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955, (Madras Act 32 of 1955) (hereinafter referred to as the impugned Act). These petitions were heard by this Court on a preliminary question raised by the respondents and the judgment thereon was delivered on March 4, 1959. This Court rejected the preliminary objection and directed the petitions to be heard on merits, and pursuant to that order, these petitions were posted for disposal on merits. The facts have been fully stated by Das, C. J., in the preliminary judgment and it would, therefore, be sufficient if the relevant facts pertaining to the questions raised were stated here. The petitioner in Petition No. 443 of 1955 is Kavalappara Kottarathil Kochunni Moopil Nair. He is the holder of the Kavalappara sthanam to which is attached Kavalappara estate situate in Walluvanad Taluk in the district of South Malabar. In pre British times the Kavalappara Moopil Nair, who was the senior most male member of Kavalappara Swaroopam (dynasty), was the ruler of Kavalappara territory. He had sovereign rights over his territory. Besides the Rajasthanam, the Kavalappara Moopil Nair held five other sthanams granted by the Raja of Palghat for rendering military services and two other sthanams granted to his ancestors by the Raja of Cochin for rendering similar services. Properties are attached to each of these sthanams. The petitioner 's immediate predecessor died in 1925 and the petitioner became the Moopil Nair of Kavalappara estate and as such the sthanee of the properties 893 attached to the various sthanams held by him. The petitioner in Petition No. 443 of 1955 will hereafter be referred to as " the sthanee ". Respondents 2 to 17 are the junior members of the Kavalappara tarwad, and, according to the sthanee, they have no interest in the said properties. In 1932, the Madras Marumakkathayam Act (Mad. Act XXII of 1932) came into force where under the members of a Malabar tarwad were given a right to enforce partition of tarwad properties or to have them registered as impartable. After some infructuous proceedings under the provisions of the said Act, respondents 10 to 17, who then constituted the entire Kavalappara tarwad, filed O.S. No. 46 of 1934 in the court of the Subordinate Judge of Ottapalam for a declaration that all the properties under the management of the sthanee were tarwad properties belonging equally and jointly to the sthanee and the members of the tarwad. The Subordinate Judge dismissed the suit. On appeal, the High Court of Madras on April 9, 1943, allowed the appeal and reversed the decision of the Subordinate Judge and decreed the suit,. On farther appeal to the Privy Council, the Board by its judgment dated July 29, 1947, restored the judgment of the Subordinate Judge. The Privy Council found that the Kavalappara estate in Walluvanad Taluk was an impartible estate and that nothing had happened to alter the original character of the property in its relation to the members of the family. On that finding, the Privy Council held that respondents 10 to 17 were not entitled to the declaration they sought in that case. The result of that litigation was that all the properties in the possession of the sthanee were declared to be sthanam properties and that the members of the tarwad had no interest therein. After the title of the sthanee was thus established, the Madras Legislature passed the impugned Act in 1955. Under the impugned Act, every sthanam possessing one or other of the three characteristics mentioned therein it is common case that the impugned Act applies to the petitioner 's sthanam shall be deemed and shall be deemed always to have been properties belonging to the tarwad. The sthanee 116 894 states that the impugned Act is ultra vires the Madras Legislature, void and inoperative and that the said Act cannot affect the rights of the sthanee or his estate to any extent. The first petitioner in Petition No. 40 of 1956 is the wife of the sthanee, who has also been added as respondent 18 to this petition ; and petitioners 2 and 3 therein are their daughters. The first respondent to the said petition is the State of Madras and respondents 2 to 17 are the members of the tarwad. On August 3, 1955, the sthanee executed a gift deed in favour of the petitioners in the said petition in respect of properties granted to his predecessor by the Raja of Palghat. This petition raised the same questions as Petition No. 443 of 1955 and seeks for the same reliefs. Petition No. 41 of 1956 is filed by Ravunniarath Rajan Menon, who is the son of the sthanee. The first respondent therein is the State of Madras and respondents 2 to 17 are the members of the tarwad and respondent 18 is the stanee. This petitioner alleges that on August 3, 1955, the sthanee executed a gift deed in his favour in respect of the properties granted to the sthanee 's predecessor by the Raja of Cochin. This petition contains similar allegations as the other two petitions and asks for similar reliefs. The learned Attorney General, appearing for the petitioners in all the three petitions, raised before us the following points: (1) The impugned Act is constitutionally void, because it offends against article 14 of the Constitution. (2) It is also void because it deprives the sthanee of his fundamental right to hold and dispose of property and thereby offends against article 19(1) (f) of the Constitution and is not saved by cl. (5) of article 19. (3) The impugned Act is further bad because it has been made by the Legislature not in exercise of its legislative power but in exercise of judicial power. Learned counsel for the respondents while countering the arguments advanced by the learned Attorney General raised two further points, viz., (1) the petitioner 's sthanam is an " estate " within the meaning of article 31A of the Constitution and therefore the Act 895 extinguishing or modifying the rights pertaining to the said sthanam cannot be questioned on the ground that it infringes articles 14, 19 and 31 of the Constitution; and (2) the impugned Act purports to deprive the petitioner of his sthanam properties by authority of law within the meaning of article 31(1) of the Constitution and, as he is legally deprived of his properties, article 19(1) (f) of the Constitution has no application, for, it is said, article 19(1) (f) pre supposes the existence of the petitioner 's title to the sthanam and its properties, and, as he is deprived of his title therein by the impugned Act, he can no longer rely upon his fundamental right under article 19(1) (f). Learned counsel for the respondents further contended that the gifts of the sthanam properties by the sthanee in favour of the petitioners in the other two petitions were void and that, therefore, they have no fundamental right to enable them to come to this Court under article 32 of the Constitution. Before we pass on to the merits of the case, it would be convenient at the outset to clear the ground. It cannot be disputed that the impugned Act passed by the Madras Legislature could not have had any extra territorial operation so as to affect the properties in the quondam Cochin State. It is not disputed that, after the States Reorganization, the provisions of the Act were not extended by any legal process to the properties situate in that area of the Kerala State which originally formed part of Cochin State. In the premises, we are not called upon to decide the fundamental right of the sthanee in respect of the sthanam properties in the said area. We do not also propose to express any opinion on the validity or otherwise of the gift deeds executed by the sthanee in favour of his wife and daughters, and son; for, if the gifts were valid, the donees would have a right to maintain the petitions, and if they were not valid, the donor would continue to be the owner of the properties gifted. The title inter se is not really germane to the present. enquiry, for the validity of the Act in respect of sthanam properties other than those in the Cochin State, falls to be decided in the first petition itself. 896 We, therefore, leave open the question of the validity of the gift deeds. We shall take first the contention of the respondents based on article 31A of the Constitution, for, if that contention was accepted, no other questions except one would arise for consideration. Learned Attorney General contends that the question was not specifically raised in the pleadings, that it was a mixed question of fact and law, and that if it was allowed to be raised at this stage, his clients would be irreparably prejudiced. Further, he argues that there is no material on the record on the basis of which we can decide whether the properties of the petitioners are held in janmam right or not. In the counter affidavit filed by respondents 2 to 17, no plea on the basis of article 31A is taken. Only in the counter filed by the State of Kerala, this contention is raised. Paragraph 6 of the counter affidavit contains the said plea and it is: " I am advised that the impugned statute is Dot open to attack on any of the grounds set forth in the petition and further and in any view of the case that it is saved by virtue of the provisions of article 31A of the Constitution as amended by the Constitution (Fourth Amendment) Act, 1955. " Except this bald statement, no statement is made to the effect that all the properties of the sthanee, or any portion thereof, are held in janmam right. Learned Advocate General, appearing for the State of Kerala, while conceding that the plea could have been more precise, and supported by definite particulars, contends that there is material on the record containing the admission of the petitioner in the first petition that the properties are janmam properties, and, even apart from such admission, whatever properties the petitioner held as appertaining to the sthanam, they could not be other than janmam properties or properties held as a subordinate tenure holder under a janmi and that in either case they would form part of an it estate" within the meaning of article 31 A of the Constitution. It is true that in the previous proceedings which went up to the Privy Council, there is a statement 897 that in regard to the properties under the management of the Court of Wards, " sthanam registration took place in Malabar and all the properties belonging to the sthanee were registered in the name of Kavalappara Moopil Nair ". But that in itself does not conclude the matter. Ordinarily, when a question raised depends upon elucidation of further facts not disclosed in the statements already filed, we would be very reluctant to allow a party to raise such a plea at the time of arguments. But in this case we do not think we would be justified in not allowing the respondents to raise the contention, as the validity of the impugned Act depends upon the application of ' article 31A of the Constitution. We would, therefore, for the purpose of this petition, assume against the petitioner that he is in possession of the properties in janmam right and proceed to consider on that basis the contention raised. Learned counsel for the respondents contends that article 31A of the Constitution excludes the operation of Art.13 in the matter of the extinguishment or modification of any rights in an estate, that the impugned legislation either extinguishes or modifies the sthanam right in the janmam property which is an " estate as defined in the said Article and that, therefore, the impugned Act cannot be challenged on the ground that it infringes articles 14, 19 and 31 in Part III of the Constitution. To appreciate this contention it will be convenient to read the material portions of article 31A. Article 31A. (1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, . . . . . . . . . shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31. . . . . . . . (2) In this article, 898 (a) The expression " estate " shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grants and in the States of Madras and Kerala any janmam right. (b) the expression " right ", in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. " This Article was introduced in the Constitution by the Constitution (First Amendment) Act, 1951. As it originally stood, the said Article only provided that no law affecting rights of any proprietor or intermediate holder in any estate shall be void on the ground that it is inconsistent with any of the fundamental rights Included in Part III of the Constitution. Article 31A has been amended by the Constitution (Fourth Amendment) Act, 1955. The object of the amendment was explained in the Statement of the Objects and Reasons and the relevant part thereof reads: "It will be recalled that the Zamindari abolition laws which came first in our programme of social welfare legislation were attacked by the interests affected mainly with reference to articles 14, 19 and 31, and that in order to put an end to the dilatory and wasteful litigation and place these laws above challenge in the courts, articles 31A and 31B and the Ninth Schedule were enacted by the Constitution (First Amendment) Act. Subsequent judicial decisions interpreting articles 14, 19 and 31 have raised serious difficulties in the way of the Union and the States putting through other and equally important social welfare legislation on the desired lines, e.g., the following: (i) While the abolition of zamindaries and the numerous inter mediaries between the State and the tiller of the soil has been achieved for the most part, our next objectives in land reform are the fixing of limits to the extent of agricultural land that may be owned or occupied by any person, the disposal of 899 any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings. . . . . . . . . . . It is accordingly proposed in clause 3 of the Bill to extend the scope of article 31A so as to cover these categories of essential welfare legislation. " The object of the amendment relevant to the present enquiry was only to enable the State to implement its next objective in the land reform, namely, the fixing of limits to the extent of agricultural lands that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings. The object was, therefore, to bring about a change in the agricultural economy but not to recognize or confer any title in the whole or a part of an estate on junior members of a family. This Court has held in Aswini Kumar Ghose vs Arabinda Bose(1) that the statement of objects and reasons is not admissible as an aid to the construction of a statute. But we are referring to it only for the limited purpose of ascertaining the conditions prevailing at the time the bill was introduced, and the purpose for which the amendment was made. Unhampered by any judicial decision, let us now scrutinize the express terms of the Article to ascertain its scope and limitations. Sub el. (a) of article 31A(1) enables the State to acquire any estate or of any rights therein or to extinguish or modify any such rights. " Estate " is defined in el. (2)(a) to have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and by inclusive definition it takes in any jagir, inam, or muafi or other similar grants and in the States of Madras and Kerala any janmam right. Clause (2)(b) defines the expression " rights ", in relation to an estate, to include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. If (1) ; 900 an estate so defined is acquired by the State, no law enabling the State to acquire any such estate can be questioned as inconsistent with the rights conferred by articles 14, 19 or 31 of the Constitution. So too, any law extinguishing or modifying any such rights mentioned in cl. (1)(a) and defined in el. (2)(b) cannot be questioned on the said grounds. The broad contention that a law regulating inter se the rights of a proprietor in his estate and the junior members of his family is also covered by the wide phraseology used in cl. (2)(b), may appear to be plausible but that argument cannot be sustained if that clause is read along with the other provisions of article 31 A. The definition of " estate" refers to an existing law relating to land tenures in a particular area indicating thereby that the Article is concerned only with the land tenure described as an " estate ". The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure holders. The last clause in that definition, viz., that those rights also include the rights or privileges in respect of land revenue, emphasizes the fact that the Article is concerned with land tenure. It is, therefore, manifest that the said Article deals with a tenure called "estate" and provides for its acquisition or the extinguishment or modification of the rights of the land holder or the various subordinate tenure holders in respect of their rights in relation to the estate. The contrary view would enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform. It would also enable the State to compel a proprietor to divide his properties, though self acquired, between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before. Such acts have no relation to land tenures and the.), are purely acts of expropriation of a citizen 's property without any reference to agrarian reform. Article 31A deprives citizens of their fundamental rights and such an Article cannot be extended by interpretation to overreach the object implicit in the Article. The unsondness of the wider interpretation will be made clear if the Article is construed with reference to the 901 janmam right. Under the definition, any janmam right in Kerala is an " estate ". A janmam right is the freehold interest in a property situated in Kerala. Moor in his " Malabar Law and Custom " describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as " proprietary interest of a landlord in lands " and such a janmam right is described as "estate" in the Constitution. Substituting janmam right " in place of "estate " in cl. 2 (b), the rights " in article 31 A (1) (a) will include the rights of a proprietor and subordinate tenure holders in respect of a janmam right. It follows that the extinguishment or modification of a right refers to the rights of a proprietor or a subordinate tenure holder in the janmam right. A proprietor called the janmi or his subordinate tenure holder has certain defined rights in janmam right ". Land tenures in Malabar are established by precedents or immemorial usage. Janmam right is a freehold interest in property and the landlord is called " janmi ". He can create many subordinate interests or tenures therein, such as verum pattom (simple lease), kushikanom (mortgage of waste land with a view to its being planted on), kushikara pattam (mortgage of waste land for improvements, the tenant paying rent), kanom kuzhikanom (mortgage of waste land for improvements, the landlord receiving some pecuniary consideration), kanom (mortgage with possession, a fee being generally paid), mel kanom (higher mortgage), koyu panayam (mortgage of the right of cultivation), kanom poramkadani (loan advanced on the security of land already held on mort gage), otti usufructuary mortgage, the full value of the land being advanced), kaivituka otti (usufructuary mortgage, with relinquishment of the power of transfer), ottikkumpuiram (where a sum is advanced beyond the otti amount), neermuthal (where a further sum is advanced on an otti mortgage in addition to the ottikkunipuram), peruvartham (usufructuary mortgage, the land being redeemable at its value in the market at the time of redemption), anubham or anubhavam (relinquishment of land for enjoyment by the tenant in perpetuity), karankari or jamma koyu (sale 117 902 or transfer in perpetuity of the right of cultivation), kariama (right of perpetual enjoyment), cooderoopad or nelamuri (assignment of rent produce), kutti kanom (mortgage of forests, the mortgagee felling the timber for trade and paying a fee on each stump or tree to the landlord). These rights may be extinguished or modified. A law may regulate the rights between a janmi and his subordinate tenure holders; but it may also affect his rights unconnected with the tenure. To illustrate: A janmi holds 10 acres of land in janmam right, out of which he may sell 2 acres each to five persons; the land is divided into 5 plots held by different holders, but each one continues to have full rights of a janmi ; the janmam right is not extinguished or modified, though the land is divided between 5 persons. That is what the impugned Act purports to do. It does not modify any of the rights appertaining to " janmam right ", but only confers shares in the property on other members of the tarwad. It is said that the inclusive definition of the expression " rights " in cl. (2) (b) takes in such a case as it extinguishes or modifies the proprietor 's right in the land. This is a superficial reading of the Article. We have already explained how such a modification is not a modification of a right pertaining to a " janmam right ", but only a deprivation of a particular janmi of his right in his property or a curtailment of his right therein, leaving all the characteristics of a janmam right intact. It is said that a contrary construction has been accepted by this Court in two decisions. The first is that in Sri Ram Ram Narain vs State of Bombay (1). In that case, the constitutional validity of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 (Bom. XIII of 1956), was canvassed. Under that Act the title to the land which vested originally in the landlord passes to the tenant on the tiller 's day or within the alternative period prescribed in that behalf. This title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined (1) [1959] SUPP. 1 S.C.R. 489. 903 by the Tribunal constituted for that purpose. This Act was, therefore, enacted to implement the agrarian reform in that part of the country and it expressly confers certain rights on tenants in respect of their tenements which they did not have before. The Act creates absolute rights in a tenant which was either by the extinguishment or by modification of a landlord 's rights and conferment of the same on the tenant. This law is, therefore, one pertaining to the land tenure of the State. The second decision is that in Atma Ram vs State of Punjab (1). There, this Court was concerned with the provisions of the Punjab Security of Land Tenure Act (IO of 1953) (as amended by Act 11 of 1955). Under that Act, the substantive rights of a landowner were modified in three respects, namely, (1) it modified his rights of settling his lands on any terms and to any one he chooses; (2) it modified, if it did not altogether extinguish, his right to cultivate the surplus area as understood under the Act; and (3) it modified his right of transfer in so far as it obliged him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons, in accordance with the provisions of the Act. It is clear from the said Act that the provisions thereof purport to regulate the rights in respect of lands which are estates within the meaning of the law relating to land tenures in Punjab. It was contended therein that in the purview of article 31A, only the entire estates were included but not portions thereof, but that contention was negatived. Sinha, J. (as he then was), who delivered the judgment of the Court, observed at p. 526 thus: "Keeping in view the fact that article 31A was enacted by two successive amendments one in 1951 (First Amendment), and the second in 1955 (Fourth Amendment) with retrospective effect, in order to save legislation effecting agrarian reforms, we have every reason to hold that those expressions have been used in their widest amplitude, consistent with the purpose behind those amend. ments ". (1) [1959] Supp. 1 S.C.R. 748. 904 This Court has, therefore, recognised that the amendments inserting article 31A in the Constitution and subsequently amending it were to facilitate agrarian reforms and in that case it was held that the impugned Act affected the rights of the landlords and tenants. Neither of the two decisions, therefore, supports the contention that article 31A comprehends modification of the rights of an owner of land without reference to the law of land tenures. The impugned Act does not purport to modify or extinguish any right in an estate. The avowed object of it is only to declare particular sthanams to be Marumakkathayam tarwads and the property pertaining to such sthanams as the property of the said tarwads. It declares particular sthanams to have always been tarwads and their property to have always been tarwad property. The result is that the sole title of the sthanee is not recognised and the members of the tarwad are given rights therein. The impugned Act does not effectuate any agrarian reform and regulate the rights inter se between landlords and tenants. We, therefore, hold that the respondents cannot rely upon article 31A to deprive the petitioner of his fundamental rights. Now coming to the arguments advanced by the learned Attorney General, as we propose to hold in his favour on point (2), we are relieved of the necessity to express our opinion on points (1) and (3) raised by him. On the basis of this elimination, the question that falls to be decided is whether the impugned Act deprives the petitioner of his fundamental right to hold and dispose of property and is not protected by cl. (5) of article 19 of the Constitution. This question is inextricably connected with the contention raised by the respondents that article 31(1) excludes the operation of article 19(1)(f) of the Constitution. We shall, therefore, proceed to consider both these questions. The argument of the learned counsel for the respondents is that article 19(1)(f) must give place to article 31(1) of the Constitution. In other words, a 905 person 's fundamental right to acquire, hold and dispose of property is conditioned by the existence of property and if he is deprived of that property by authority of law under article 31(1), his fundamental right under article 19(1)(f) disappears with it. Fundamental rights have a transcendental position in the Constitution. Our Constitution describes certain rights as fundamental rights and places them in a separate Part. It provides a machinery for enforcing those rights. Article 32 prescribes a guaranteed remedy for the enforcement of those rights and makes the remedial right itself a fundamental right. Article 13(1) declares that " All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void "; and article 13(2) prohibits the State from making any law which takes away or abridges the rights conferred by Part III of the Constitution and declares that any law made in contravention of that clause shall, to the extent of the contravention, be void. It is true that any other Article of the Constitution may exclude the operation of the fundamental rights in respect of a specific matter for instance, articles 31A and 31B. It may also be that an Article embodying a fundamental right may exclude another by necessary implication, but before such a construction excluding the operation of one or other of the fundamental rights is accepted, every attempt should be made to harmonise the two Articles so as to make them co exist, and only if it is not possible to do so, one can be made to yield to the other. Barring such exceptional circumstances, any law made would be void if it infringes any one of the fundamental rights. The relevant Articles read: Article 19. (1) AU citizens shall have the right . . . . . . . . . (f)acquire, hold and dispose of property. . . . . . (5) Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State 906 from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. " Article 31. (1) No person shall be deprived of his property save by authority of law. (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate. (2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a Corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. " Clause (2) of article 31 has been amended and cl. (2A) has been inserted in article 31 by the Constitution (Fourth Amendment) Act, 1955. The said cl. (2) in its original form, i.e., before the Constitution (Fourth Amendment) Act, 1955, read as follows : " (2) No property, moveable or immoveable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which and the manner in which, the compensation is to be determined and given. " To have a correct appreciation of the scope of the amended clauses of article 31, it is necessary to consider, 907 in the words of Lord Coke, the following circumstances : (i) What was the law before the Act was passed; (ii) What was the mischief or defect for which the law had not provided; (iii) What remedy Parliament has appointed; and (iv) the reason of the remedy. The unamended clauses of the Article were the subject of judicial scrutiny by this Court in the State of West Bengal vs Subodh Gopal Bose (1). There, the respondent purchased certain property at a revenue sale and as such purchaser he acquired under section 37 of the Bengal Revenue Sales Act, 1859, the right " to avoid and annul all under tenures and forthwith to eject all under tenants " with certain exceptions. In exercise of that right he brought a suit for eviction of certain under tenants and obtained a decree therein. When the appeal against the said decree was pending, the Act was amended. The amending Act substituted by section 4 the new section 37 in place of the original section 37 and it provided by section 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession, should abate. It was contended on behalf of one of the respondents therein that section 7 was void as abridging his fundamental rights under article 19(1)(f) and article 31. The Court by a majority held that the Act was void as it infringed article 31 of the Constitution. The majority of the Judges, who constituted the bench, took the view that cls. (1) and (2) of article 31 related to the same subject of eminent domain and that the State had no power to seriously impair the rights of a citizen in property without paying compensation. Patanjali Sastri, C. J., expressed his view thus at p. 618: " Under the Constitution of India, however, such questions must be determined with reference to the expression " taken possession of or acquired " as interpreted above, namely, that it must be read along with the word " deprived " in clause (1) and understood as having reference to such substantial abridgement of the rights of ownership as would (1) ; 908 amount to deprivation of the owner of his property. No cut and dried test can be formulated as to whether in a given case the owner is " deprived of his property within the meaning of article 31 each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation within the meaning of article 31, if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him, or materially reduced its value. " Das, J. (as he then was), observed that article 31(2) dealt with only acquisition and requisition of property where under title passed to the State and that article 31(1) conferred police power on the State. Ghulam Hasan, J., concurred with the view of the Chief Justice. Jagannadhadas, J., did not agree with the view of Das, J., that article 31(1) conferred police power on the State, but he was not also able to agree with the view of the Chief Justice that article 31(1) has reference only to the power of eminent domain. He also expressed his disagreement with the view of Das, J., that acquisition and taking possession in article 31(2) have to be taken as necessarily involving transfer of title or possession. The result of the decision is that this Court by majority held that article 31(1) and (2) provided for the doctrine of eminent domain and that under cl. (2) a person must be deemed to have been deprived of his property, if he is " substantially dispossessed " or if his right to use and enjoy his property has been "seriously impairedor the value of the property is " materially reducedby the impugned law. This view was followed in Dwarakadas Shrinivas of Bombay vs The, Sholapur Spinning and Weaving Co. Ltd. (1) and in Saghir Ahmad vs The State of U.P. (2). Presumably, Parliament accepted the minority view of Das, J., on the interpretation of el. (2) of article 31 and amended the Constitution by the Constitution (Fourth Amend ment) Act, 1955. The amendment made it clear that cl. (2) of article 31 applies only to acquisition and requisition. Clause (2A) of the said Article which was inserted (1) ; (2) ; 909 by the said amendment. explains that unless a law provides for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. The result is that it did not accept the majority view of this Court that deprivation of property need not be by acquisition alone but also by any serious impairment of an dividual 's right to property, whether his ownership or right to possession of the property has been transferred to the State or its nominee or not. This amendment also in effect accepted the view of Das, J., that deprivation of property in el. (1) of article 31 covers cases other than acquisition or requisition of property by the State. But the amendment in other respects does not give any indication as regards the interpretation of article 31(1) of the Constitution, for no change in the phraseology of that clause is made. Therefore, we must look at the terms of that clause to ascertain its true meaning. The words are clear and unambiguous and they do not give rise to any difficulty of construction. The said clause says in a negative form that no person shall be deprived of his property save by authority of law. The law must obviously be a valid law. Article 13(2) says that " the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void ". The law depriving a person of his property cannot,therefore, take away or abridge the right conferred by Part III of the Constitution. In a recent decision in Deep Chand vs State of U.P. (1) this Court considered the limitations placed by the Constitution on the Parliament and the Legislatures of the States in making laws. After reading articles 245, 246, 13 and 31 of the Constitution, this Court proceeded to state, at p. 655, thus : " The combined effect of the said provisions may be stated thus: Parliament and the Legislatures of States have power to make laws in. respect of any (1) [1959] SUPP. (2) S.C.R. 8. 118 910 of the matters enumerated in the relevant lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution including article 13 i.e., the power is made subject to the limitations imposed by Part III of the Constitution. . When cl. (2) of article 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition. A constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other constitutions; nor can we appreciate the argument that the words " any law " in the second line of article 13(2) posit the survival of the law made in the teeth of such prohibition. " The same view was expressed by this Court in Basheshar Nath vs Commissioner of Income tax, Delhi Therein Das, C. J., says at p. 158 thus: " As regards the legislative organ of the State, the fundamental right is further consolidated by the provisions of article 13. Clause (1) of that Article, provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency, be void. Likewise cl. (2) of ' this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause shall, to the extent of the contravention, be void. It will be observed that so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles . . . " Bhagwati, J., observed much to the same effect at p. 161 thus: " It is absolutely clear on a perusal of article 13(2) of the Constitution that it is a constitutional mandate (1) [1959] SUPP. 1 S.C.R. 528. 911 to the State and no citizen can by any act or con. duct relieve the State of the solemn obligation imposed on it by article 13(2). . . ." One of us had also stated to the same effect, after citing article 13, at p. 181 : " This Article, in clear and unambiguous terms, not only declares that all laws in force before the commencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of the contravention but also prohibits the State from making any law taking away or abridging the said rights. " It is, therefore, manifest that the law must satisfy two tests before it can be a valid law, namely, (1) that the appropriate legislature has competency to make the law; and (2) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution. It follows that the law depriving a person of his property will be an invalid law if it infringes either article 19(1)(f) or any other Article of Part III. Learned counsel, appearing for the respondents, while conceding that the validity of a law must pass the test of the foregoing two conditions, contends that in the context of article 31, we should apply the construction analogous to that put upon by this Court on the word " law " in article 21 of the Constitution in the case of A. K. Gopalan vs The State of Madras(1). In the said case, the question was whether the provisions of the (IV of 1950), were ultra vires the Constitution. This Court by a majority held that the said Act, with the exception of section 14 thereof, did not contravene any of the Articles of the Constitution and, therefore, the detention of the petitioner therein was not illegal. In that context, a question was raised whether the said Act must be struck down as infringing article 19(1)(d) of the Constitution. This Court held that the concept of the right " to move freely throughout the territory of India " referred to in article 19(1)(d) of the Constitution was entirely different from the concept of the right to "personal liberty" referred to in article 21 and that article 21 (1)[1950] S.C.R. 88. 912 should not, therefore, be read as controlled by the provisions of article 19. Though the learned Judges excluded the operation of article 19 in considering the question of fundamental right under article 21, the judgment of the court discloses three shades of opinion. As much of the argument is centred on the analogy drawn from this decision the relevant Articles may be summarized: Under article 21, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Clauses(1) and (2) of article 22 afford protection in the matter of arrest and detention in certain cases. Clauses 4, (5) and (6) thereof provide for preventive detention and constitutional safeguards relating thereto. It may not be inappropriate to describe these provisions as forming an exhaustive code, as they elaborately deal with a particular subject, namely, life and personal liberty. In construing the said provisions, Kania, C. J., said at p. 100 101 thus: " So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses. If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub clauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid , on the mode of the detenue 's life. " Mahajan, J. (as he then was), gave the reason for his conclusion at p. 226: " I am satisfied on a review of the whole scheme of the Constitution that the intention was to make article 22 self contained in respect of laws on the subject of preventive detention. " 913 The learned Judge further elaborated the point thus at p. 228: " If the intention of the Constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have troubled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide. Some of the provisions of article 22 would then have been redundant. . . . " Mukherjea, J. (as he then was), said much to the same effect at p. 225: " In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law. " Patanjali Sastri, J. (as he then was), stated at p. 191 " Read as a whole and viewed in its setting among the group of provisions (articles 19 to 22) relating to " Right to Freedom ", article 19 seems to my mind to pre suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests." The learned Judge further dilated on the point at p. 191. " Deprivation of personal liberty in such a situation is not, in my opinion, within the purview of article 19 at all but is dealt with by the succeeding articles 20 and 21. In other words, article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free, while articles 20 22 secure to all persons citizens and non citizenscertain constitutional guarantees in regard to punishment and prevention of crime. " Das, J. (as he then was), stated at p. 302 thus: " The purpose of article 19(1)(d) is to guarantee that there shall be no State barrier. It gives protection against provincialism. It has nothing to do with the freedom of the person as such. " 914 The learned Judge continued to state at p. 304: " Therefore, the conclusion is irresistible that the rights protected by article 19(1), in so far as they relate to rights attached to the person, i.e., the rights referred to in sub clauses (a) to (e) and (g), are rights which only a free citizen, who has the freedom of his person unimpaired, can exercise. " The views of the learned Judges may be broadly summarized under three heads, viz., (1) to invoke article 19(1), a law shall be made directly infringing that right; (2) articles 21 and 22 constitute a self contained code; and (3) the freedoms in article 19 postulate a free man. On the basis of the said theories, this Court, with Fazl Ali, J., dissenting, rejected the plea that a law made under article 21 shall not infringe article 19(1). Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazl Ali, J.; but we are bound by this judgment. Even so, there is no analogy between article 21, as interpreted by this Court, and article 31(1). Article 21 deals with personal liberty. Personal liberty, Kania, C.J., observed, includes " the right to eat or sleep when one likes or to work or not to work as and when one pleases and several such rights " and " deprivation of such liberty ", in the words of the learned Chief Justice, " is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen)". " Personal Liberty " is a more comprehensive concept and has a much wider connotation than the right conferred under article 19(1)(d). articles 19(1)(d) and 22 deal with different subjects, whereas both articles 19(1)(f) and 31(1) deal with the same subject, namely, property; while under article 19(1)(f), a citizen has the right to acquire, hold and dispose of property, article 31(1) enables the State to make a law to deprive him of that property. Such a law directly infringes the fundamental right given under article 19(1)(f). Further, articles 21 and 22 are linked up together; while article 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, article 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute, an 915 integrated code in the matter of personal liberty. On the other hand, article 31(1), by reason of the amendment, ceases to be a part of the guarantee against acquisition or requisition of property without the authority of law and must therefore be construed on its own terms. The said Articles are not in pari materia and they differ in their scope and content. There is material difference not only in the phraseology but also in their setting. Article 31(1), therefore, cannot be construed on the basis of the construction placed upon article 21. The decision in The State of Bombay vs Bhanji Munji (1), on which reliance is placed by learned counsel for the respondents in support of their contention that article 31(1) excludes the operation of article 19(1), is one based on the pre existing law before the Constitution (Fourth Amendment) Act, 1955. In that case it was contended that sections 5(1) and 6(4)(a) of the Bombay Land Requisition Act,, 1948 (Bom. Act XXXIII of 1948), as amended by Bombay Act 11 of 1950 and Bombay Act XXXIX of 1950, were ultra vires articles 19(1)(f) and 31(2) of the Constitution. The premises in question there belonging to the respondents were requisitioned by the Governor of Bombay under the said Act. The Act also provided for compensation, and this Court found that there was a clear public purpose for the requisition, and upheld the law under article 31(2) of the Constitution. This Court also considered the alternative argument advanced, namely, that the Act was hit by article 19(1)(f) of the Constitution inasmuch as unreasonable restrictions were imposed on the rights of the respondents to acquire, bold and dispose of property. In rejecting that argument, Bose, J., speaking for the Court, observed at p. 780 thus : " We need not examine those differences here because it is enough to say that article 19(1)(f) read with clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction (1) [1955] 1 S.C.R. 777. 916 can be placed on the exercise of the right to acquire, hold and dispose of it, and as clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the article postulates the existence of property over which these rights can be exercised. " For these observations the learned Judge has drawn upon the principle laid down in A. K. Gopalan 's Case (1). These observations prima facie appear to be against the contentions of the petitioner herein. But a further scrutiny reveals that they have no bearing on the construction of article 31(1) of the Constitution after cl. (2) of article 31 has been amended and el. (2A) has been inserted in that Article by the Constitution (Fourth Amendment) Act, 1955. Before the amendment, this Court, as we have already noticed, held by a majority in The State of West Bengal vs Subodh Gopal Bose (2) that cls. (1) and (2) of article 31 were not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namely, the acquisition or taking possession of property referred to in cl. (2) of article 31. In that view, article 31, before the amendment, was a selfcontained Article providing for a subject different from that dealt with in article 19. On that basis it was possible to hold, as this Court held in The State of Bombay vs Bhanji Munji (3) on the analogy drawn from article 21, that when the property therein was requisitioned within the meaning of article 31, the opera tion of article 19 was excluded. But there is no scope for drawing such an analogy after the Constitution (Fourth Amendment) Act, 1955, as thereafter they dealt with two different subjects: article 31(2) and (2A) with acquisition and requisition and article 31(1) with deprivation of property by authority of law. The decision of this Court in Bhanji Munji 's Case (3) no longer holds the field after the Constitution (Fourth Amendment) Act, 1955. Strong reliance is placed upon the observations of Das, J. (as he then was), in Subodh Gopal Bose 's Case ( 2 ). Therein the learned Judge dissented from the view of the majority on the interpretation of article 31(1) and (2) of the Constitution. In the course (1) ; (2) ; (3) [1955] 1 S.C.R. 777, 917 of his dissenting judgment, the learned Judge made certain observations on the effect of his interpretation of article 31 on article 19. The learned Judge said at p. 632 thus: " Such being the correct correlation between article 19(1), sub clauses (a) to (e) and (g) on the one hand and article 21 on the other, the question necessarily arises as to the correlation between article 19(1) (f) and article 31. Article 19(1)(f) guarantees to a citizen, as one of his freedoms, the right to acquire, hold and dispose of property but reasonable restrictions may be imposed on the exercise of that right to the extent indicated in clause (5). Article 31, as its heading shows, guarantees to all persons, citizens and non citizens, the ' right to property ' as a fundamental right to the extent therein mentioned. What, I ask myself, is the correlation between article 19(1)(f) read with article 19(5) and article 31 ? If, as held by my Lord in A. K. Gopalan 's Case(1) at p. 191, subclauses (a) to (e)and (g) of article 19(1) read with the relevant clauses (2) to (6) ' presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests ', it must follow logically that article 19(1)(f) read with article 19(5) must likewise presuppose that the person to whom that fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised. I found myself unable to escape from this logical conclusion. " The learned Judge earlier expressed the same opinion in Chiranjit Lal Chowdhuri vs The Union of India (2). When it was pointed out to the learned Judge that, if his view was correct, the legislature while it cannot restrict a person 's right to property unless the restriction is reasonable and for a public purpose, it can deprive him of his property without any such limitations, the learned Judge negatived the objection in the following words at p. 654: (1) ; , (2) ; 119 918 " What is abnormal if our Constitution has trusted the legislature, as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament or State legislatures should act like mad men and deprive us of our property without any rhyme or reason?" Further, the learned Judge was of the view that unless article 3 l(l) was construed in the manner he did, it would not be possible for the State to bring about a welfare State which our Constitution directs it to do. Elaborating this point, the learned Judge observed, at p.655, thus: We must reconcile ourselves to the plain truth that emphasis has now unmistakably shifted from the individual to the community. We cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordinating the social interest in individual liberty or property to the larger social interest in the rights of the community. As already observed, the police power of the State is the most essential of powers, at times most insistent, and always one of the least limitable powers of the government '. . In the matter of deprivation of property otherwise than by the taking of posession or by the acquisition of it within the meanings of article 31(2) our Constitution has trusted our legislature and has not thought fit to impose any limitation on the legislature 's exercise of the State 's police power over private property ". Relying upon the said observations, learned counsel for the respondents pressed on us the following three points: (1) After the Constitution (Fourth Amendment) Act, 1955, cl. (1) of article 31 must be read independently of el. (2) thereof and, if so read, cl. (1) must be held to deal with police power. (2) Without such power the State cannot usher in a welfare State which the Constitution enjoins it to do. (3) The fact that there is no limitation on the power of the legislature to make law depriving a citizen of his property need not deter us from recognising such power, as we 919 can trust our legislatures and Parliament as the people of Great Britain have trusted their Parliament. We cannot agree with the con tention of the learned counsel that article 31(1) deals with " police power ". In the view expressed by Das, J. (as he then was), the legislature can make any law depriving a person of his property and the only limitation on such power is its good sense. But " police power ", as it is understood in American Law, can never be an arbitrary power. Willis on Constitutional Law " says at p. 727: " The United States Supreme Court has said that the police power embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety '. " In the Constitution of the United States of America, prepared by the Legislative Reference Service, Library of Congress (Senate Document No. 170, 82D Congress), " police power " is generally defined thus at p. 982: " The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the State ". Prof. Willoughby states in his Constitutional Law of the United States (Vol. III, p. 1774):. . the police power knows no definite limit. It extends to every possible phase of what the Courts deem to be the public welfare ". Holmes, J., in Noble State Bank vs Haskell(1) concisely defines 'police power" thus: " It may be said in a general way that the police power extends to all the great public needs ". It is, therefore, clear that police power cannot be divorced from social control and public good. We cannot, therefore, import the doctrine of police power in our Constitution divorced from the necessary restrictions on that power as evolved by judicial decisions of the Supreme Court of the United States. Indeed, uninfluenced by any such doctrine, the plain meaning of the clear words (1)219 U.S. 104. 920 used in article 31(1) of the Constitution enables the State to discharge its functions in the interest of social and public welfare which the State in America can do in exercise of police power. The limitation on the power of the State to make a law depriving a person of his property, as we have already stated, is found in the word " law " and that takes us back to article 19 and the law made can be sustained only if it imposes reasonable restrictions in the interest of the general public. We find it also very difficult to accept the second and third aspects of the approach to the question. The duty of this Court is only to interpret the provisions of the Constitution in a liberal spirit, but not to eradicate or modify the fundamental rights. That apart, our constitution makers thought otherwise. The Constitution declares the fundamental rights of a citizen and lays down that all laws made abridging or taking away such rights shall be void. That is a clear indication that the makers of the Constitution did not think fit to give our Parliament the same powers which the Parliament of England has. While the Constitution contemplates a welfare State, it also provides that it should be brought about by the legislature subject to the limitations imposed on its power. If the makers of the Constitution intended to confer unbridled power on the Parliament to make any law it liked to bring about the welfare State, they would not have provided for the fundamental rights. The Constitution gives every scope for ordered progress of society towards a welfare State. The State is expected to bring about a welfare State within the framework of the Constitution, for it is authorized to impose reasonable restrictions, in the interests of the general public, on the fundamental rights recognized in article 19. If the interpretation sought to be placed on article 31(1) was accepted, it would compel the importation of the entire doctrine of police power and grafting it in article 31(1) or the recognition of arbitrary power in the legislature with the hope or consolation suggested that our Parliament and legislatures may be trusted not to act arbitrarily. The first suggestion is not legally permissible and the second does not stand to reason, 921 for the Constitution thought fit to impose limitations on the power of the legislatures even in the case of lesser infringements of the rights of a citizen. Another argument raised by learned counsel for the respondents may also be noticed. If the view expressed by us be correct, the argument proceeds, the law depriving a person of his property however urgent the need may be and whatever grave danger or serious vice it seeks to avert or suppress can never be a reasonable restriction on the right to enjoy property and therefore every such law would be void. The learned Attorney General argues that in the present case the petitioner is not deprived of his property, but his right is only restricted. It depends upon the per spective from which we look at the facts. In one sense, the petitioner has been deprived of his shares in the property given by the statute to the respondents, but, even on that assumption, we do not think that the argument of the respondents has any substance. The correct approach to the question is, first to ascertain what is the fundamental right of the petitioners; then to see, whether the law infringes that right. If the law ex facie infringes that right, the State can support that law only by establishing that the law imposes reasonable restrictions on the petitioner 's fundamental right in the interests of the general public. If so approached, the impugned Act by seeking to deprive the petitioner of his property certainly infringes his fundamental right. There is absolutely nothing on the record to sustain the validity of the law under the said clause (5) of article 19. The apprehension that deprivation can never be a restriction and therefore every law depriving a person of his property must necessarily be void, even if justifiable, cannot help the respondents, for if it is not saved by cl. (5), that result must flow from the promises. But that apprehension has no justification. This Court has held in a recent decision that under certain circumstances a law depriving a citizen of his fundamental right to property may amount to a reasonable restriction. In Narendra Kumar vs The Union of India (1), Das Gupta, J., observed: (1) ; 922 " It is reasonable to think that the makers of the Constitution considered the word 'restriction ' to be sufficiently wide to save laws ' inconsistent ' with article 19(1), or ' taking away the rights ' conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt therefore that they intended the word 'restriction ' to include cases of ' prohibition ' also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted. It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court. " If so, the State can establish that a law, though it purports to deprive the petitioner of his fundamental right, under certain circumstances amounts to a reasonable restriction within the meaning of cl. (5) of article 19 of the Constitution. We, therefore, hold that a law made depriving a citizen of his property shall be void, unless the law so made complies with the provisions of el. (5) of article 19 of the Constitution. This leads us to the question whether the provisions of the Act infringe article 19(1)(f) of the Constitution. The impugned Act is The Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Madras Act No. XXXII of 1955). As the argument turns upon the provisions of the Act and as the Act itself is a short one, it will be convenient to set out all the provisions thereof. The Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Act No. XXXII of 1955). (An Act to remove certain doubts in the Madras Marumakkathayam Act, 1932 (Madras Act XXII of 1933), in regard to sthanams and sthanam properties). Whereas doubts have arisen about the true legal character of certain properties which are erroneously 923 claimed to be or regarded as sthanam properties, but which are properties of the tarwad, the male members of which are entitled to succeed to the sthanam and it is necessary to remove those doubts in respect of this question : Be it enacted in the Sixth Year of the Republic of India as follows 1. This Act may be called the MADRAS MARUMAKKATHAYAM (REMOVAL OF DOUBTS) ACT,, 1955. (2)It shall apply to all persons governed by the Madras Marumakkathayam Act, 1932 (Madras Act, XXII of 1933). 2.Notwithstanding any decision of Court, any sthanam in respect of which: (a)there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad, or (b)the members of the tarwad have been receiving maintenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam, shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act, 1932 (Madras Act XXII of 1933), shall apply. Explanation: All words and expressions used in this Act shall bear the same meaning as in the Madras Marumakkathayam Act, 1932 (Madras Act XXII of 1933). The Act presupposes the existence of a sthanam and its properties. It says that the sthanam and its properties possessing one or more of the characteristics mentioned therein shall be deemed and shall be always deemed to have been a Marumakkathayam tarwad and its properties respectively. The 924 impugned Act applies also to sthanams whose title to properties has been declared by courts of law. Further the Act is given retrospective operation. It is suggested that the provisions of the Act have not been happily worded and, if properly understood with the help of the preamble, it would be clear that the sthanams were not converted into tarwads but only tarwads which were wrongly claimed to be sthanams were declared to be not sthanams. The preamble of a statute is " a key to the understanding of it " and it is well established that " it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt ". We do not find any ambiguity in the enacting part of the Act. Assuming that there is some doubt, the preamble confirms our view of the construction of the Act. According to the preamble certain properties of the tarwad are erroneously claimed to be or regarded as sthanam properties and it has become necessary to remove those doubts by making the Act. The preamble also recognizes the existence of sthanams and the doubts related only to the title to the property of sthanams. The enacting part purports to resolve these doubts by laying down three tests, and if any one of these tests is satisfied, the sthanam shall be deemed to be a tarwad and the properties tarwad properties. In short, the Act, read with the preamble, takes the sthanam, lays down certain tests and proceeds to say that if one or other of the tests is satisfied in respect of any property claimed to be that of the sthanam, the sthanam by statutory fiction is treated as the tarwad and its properties as tarwad properties. The tests, as we will presently show, are arbitrary and not germane to the question whether the properties belong to a sthanam or a tarwad. Whatever may be the phraseology used, in effect and substance, the Act in the guise of applying certain tests seeks to convert certain sthanams into tarwards and their properties into tarwad properties. It applies equally to sthanams governed by decrees of courts and sthanams whose character and title to the properties can be established by clear 925 evidence and to sthanams whose title is admitted. In the said cases no question of doubt can conceivably arise. The Act in the guise of dispelling doubts abolishes a class of sthanams and deprives them of their properties. The question is whether the said legislation can stand the test of article 19(5) of the Constitution. The learned Advocate General of Kerala seeks to support the legislation on the ground that under the Marumakkathayam law, the three characteristics of properties mentioned in section 2 pertain to tarwad and, therefore, when wrong decisions were given by courts introducing confusion in titles, the legislature rightly stepped in to set right the wrong and declare such sthanams possessing definite characteristics of the tarwad to be and always to have been the tarwad properties. He further argues that, as the law was made to protect the rights of the members of the tarwad in a parti cular class of sthanams, the restrictions imposed on the sthanees ' rights in their properties would be reasonable and would be in the interests of the general public, notwithstanding the fact that the legislation indirectly affects the rights of a few decree holder sthanees, who have established their rights in a court of law. Mr. Purshottam Tricumdas supported the learned Advocate General in this contention. Mr. A. V. Viswanatha Sastri, who followed him, preferred to found his contention on a broader basis, namely, that the members of a tarwad and a sthanee have some interest in each other 's property and the legislation did nothing more than regulate their interest inter se to restore peace and harmony among them and to change the mutual relationship to bring it in accord with the concept of a modern welfare State. If that be the object of the Act, the argument proceeds, the mere fact that the law incidently disturbs the rights of parties who have obtained decrees of court does not make it unreasonable. Before we consider the validity of these arguments, it would be convenient at this stage to notice the scope of article 19(1)(f) and article 19(5) of the Constitution. The said Articles read 120 926 Article 19. (1) All citizens shall have the right . . . . . . . . . (f) to acquire, hold and dispose of property. . . . . . . . . . (5)Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Under cl. (5), the State can make a law imposing reasonable restrictions on the fundamental rights embodied in article 19(1)(f) in the interests of the general public. What is " reasonable restriction " has been succinctly stated by Patanjali Sastri, C. J., in State Of Madras vs V. G. Row(1) thus at p. 607: "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. " If we may say so, with respect, this passage summarizes the law on the subject fully and precisely. The learned Chief Justice in his description of the test of reasonableness, in our view, has not stated anything more than the obvious, for the standard of reasonableness is inextricably conditioned by the state of society and the urgency for eradicating the evil sought to be remedied. Some of the American decisions and passages from text books cited at the Bar may be useful in ascertaining whether in the instant case the restrictions imposed by the statute are reasonable. (1) ; 927 In Willoughby 's Constitutional Law it is stated at p. 795 thus: As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighbourly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate. " The Supreme Court of th United States of America in Henry Webster vs Peter Cooper(1) observed: " The result of the decision is, that the constitution of the State has secured to every citizen the right of acquiring, possessing, and enjoying property and that, by the true intent and meaning of this section, property cannot, by a mere act of the Legislature, be taken from one man and vested in another directly; nor can it, by the retrospective operation of law, be indirectly transferred from one to another, or be subjected to the government of principles in a court of justice, which must necessarily produce that effect." In The Citizens ' Savings and Loan Association of Cleveland, Ohio vs Topeka City (2), the Supreme Court of the United States of America again declares the importance of individual property right thus: " The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the same. No court, for instance, would hesitate to declare void a statute which enacted that A and B who were husband and wife to each other should be so no longer, but that A should thereafter be the husband of C, and B the wife of D. Or which should enact that the homestead now owned by A should (1) ; , 517. (2) ; , 461. 928 no longer be his, but should henceforth be the property of B." We have cited the relevant passages from the textbook and the decisions not with a view to define the scope of " reasonable restrictions " in article 19(5) of our Constitution, but only to point out that, as between citizens, the individual proprietary rights are ordinarily respected unless a clear case is made out for imposing restrictions thereon. There must, therefore, be harmonious balancing between the fundamental rights declared by article 19(1) and the social control permitted by article 19(5). It is implicit in the nature of restrictions that no inflexible standard can be laid down: each case must be decided on its facts. But the restrictions sought to be imposed shall not be arbitrary but must have reasonable relation to the object sought to be achieved and shall be in the interests of the general public. Before we proceed to consider whether the restrictions imposed by the impugned Act are reasonable within the meaning of el. (5) of article 19, it would be necessary to ascertain precisely the law on the following three matters: (1) What is a sthanam in Marumakkathayam law?; (2) what is tarwad under the said law ? ; and (3) what is the relationship between members of a tarwad and a sthanee? Marumakkathayam law governs a large section of people inhabiting the West Coast of South India. Marumakkathayam literally means descent through sisters ' children. It is a body of custom and usage which have received judicial recognition. Though Sundara Aiyar, J., in Krishnan Nair vs Damodaran Nair(1) suggested that " Malabar law is really only a school of Hindu law ", it has not been accepted by others. There is a fundamental difference between Hindu Law and Marumakkathayam system in that the former is founded on agnatic family and the latter is based on matriarchate. Marumakkathayam family consists of all the descendants of the family line of one common ancestor and is called a tarwad. The incidents of a tarwad are so well settled that it is not necessary to consider the case law, but it would (1) Mad. 929 be enough if the relevant passages from the book "Malabar and Aliyasanthana Law" by Sundara Aiyar are cited. The learned author says at p. 7 thus : " The joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the karnavan. The individual members are not entitled to enforce partition, but a partition may be effected by common consent. The rights of the union members are stated to be (1) if, males, to succeed to management in their turn, (2) to be maintained at the family house, (3) to object to an improper alienation or administration of the family property, (4) to see that the property is duly conserved, (5) to bar an adoption, and (6) to get a share at any partition that may take place. These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights. " For the purpose of this case it is not necessary to go into further ramifications of the incidents of a tarwad, for nothing turns upon them. We are concerned in this case with a sthanam. In the book of Sundara Aiyar the origin, scope and incidents of a sthanam are discussed at p. 249: " As a technical word, ' stanom ' means a position of dignity of this kind, that is, one to which certain specific property is attached, and which passes with it, and is held by the person as the " stani. . . . . The origin of stanom is by no means clear and is more or less a matter for speculation." The learned author proceeds to give the three modes of the origin of sthanams, namely, (1) in a ruling family " it was considered necessary in the circumstances that for the maintenance of the dignity of the ruler he should own properties in which the 930 members of the tarwad as such had no right or interest and which would pass with the Crown to his successor": sthanams in the families of Zamorin, Palghat, Wulluvanad and other Rajas are given as instances of this class of sthanams; (2) " in the case of some chieftains and public officers, sthanams were created by the ruling king, who, when he appointed the head of a particular family to an office with hereditary succession attached also certain lands for the maintenance of the officer holder ": Para Nambi is given as a prominent instance of this class; and (3) " when a family became very opulent and influential, it was sometimes deemed necessary in order to keep its social position and influence that the head should be able to maintain a certain amount of state, and for that purpose the members of the family agreed to set apart certain property for him, and such property, would descend to the head of the family for the time being ". To some of the questions posed by the decisions or that are likely to arise, the learned author suggested some answers. The learned author describes the position of a sthanee vis a vis the members of the tarwad thus: " It is rather that of a member of a tarwad who separates himself from it by division. His accession to the stanom operates as a severance from the family. In consideration of his solely becoming entitled to the stanom property it was probably considered fair that he should give up his existing right in the property of the tarwad. But he and his tarwad will have the same right of succession to the properties of each other as if his severance from the family had been the result not of his accession to the stanom, but a voluntary division between him and the rest of the family." Another difficulty visualized and attempted to be answered by the learned author is the case of a family which has no male member to succeed to the sthanam. He gives three possible answers, namely, (i) escheat to the Crown ; (ii) descent according to the rules of devolution applicable to the property of a divided member ; and (iii) on the assumption that 931 the property is dedicated for the purpose of the tarwad, reverting to the tarwad. On the question, what would happen to the sthanam, if at the time of the death of the sthanee there was no male member in the tarwad, though he cited a decision of the Madras High Court where a subsequent born male infant was given a decree to recover the properties, he was of the view that the question was not an easy one to decide. The decided cases considered the nature of this institution and also its incidents. A division bench of the Madras High Court in Vira Rayen vs The Valia Rani of Pudia Kovilagom, Calicut (1) held that according to the custom obtaining in the family of the Zamorin Rajas of Calicut, property acquired by a sthanam holder and not merged by him in the properties of his sthanam, or otherwise disposed of by him in his lifetime, became, on his death, the property of the kovilagom in which he was born, and, if found in the possession of a member of the kovilagom, belonged presumably to the kovilagom as common property. In the course of the judgment, the learned judges pointed out that in the family of the Zamorin of Calicut there were five sthanams or places of dignity with separate properties attached to them, which were enjoyed in succession by the senior male members of the kovilagom. It appears from the judgment that the senior lady of the whole family also enjoyed a sthanam with separate property. The Judicial Committee in Venkateswaralyany Shekhari Varma (2) was considering the validity of a perpetual lease of sthanam lands effected by one of the Valia Rajas of Palghat. In that context, Sir Arthur Hobhouse, delivering the judgment of the Judicial Committee, described a sthanam thus at p. 386: " It appears that in the families of the Malabar Rajas it is customary to have a number of palaces, to each of which there is attached an establishment with lands for maintaining it, called by the name of a sthanam. The Palghat family have no less than nine sthanams. Each sthanam has a raja as its head or Sthanamdar. The Sthanamdar represents (1) Mad. 141. (2) Mad. 932 the corpus of his sthanam much in the same way as a Hindu widow represents the estates which have devolved upon her, and he may alienate the property for the benefit or proper expenses of the sthanam. " This passage equates a sthanamdar to a Hindu widow vis a vis his rights both in the matter of representation as well as his right to alienate the property pertaining to the sthanam. The decision in Mahomed vs Krishnan (1) dealt with a suit filed by the junior members of a tarwad, which consisted of the three sthanams, against the karnavan and others, including certain persons to whom he had alienated some tarwad property, inter alia, for a declaration that the alienations were invalid as against the tarwad and for possession of the property alienated. One of the questions raised was whether the plaintiffs were competent to maintain the suit. The suit was resisted on several grounds and one of them was that the tarwad was not a Malabar family in the ordinary sense of the term, but that it consisted of three sthanams and three illakur houses or subsidiary tarwads. In considering the objections the learned Judges considered the nature of a sthanam property and made the following observations at p. 112: " According to the custom of Malabar, the nature of stanom property is such that the present holder has in it a life interest and the successor derives no benefit from it during the life of his predecessor, whereas in ordinary tarwad property each member of the tarwad has a concurrent interest and a joint beneficial enjoyment. Although the position of a stani is analogous to that of a childless widow, in that both have a life interest, both represent the estate ate or the inheritance for the time being, and both have a disposing power only to the estate taken by reversioner. Each male reversioner becomes under Hindu Law the full owner when the reversion falls in, whereas the person that succeeds to a stanom takes the same qualified estate that his predecessor bad. The legal relation therefore between the Vayoth Nair and the other stanomdars and the karnavans of the three subsidiary tarwads is that (1) Mad. 106. 933 which subsists among a group of person , entitled to succeed to the stanom property in a certain order, each having only a life interest therein and qualified power of disposition over it. The relation between the stani and the junior members of each subsidiary tarwad is that which exists between the representative of the stanom for the time beinog and the class of persons who may become karnavans of their tarwads and therefore representatives of the junior and senior stanoms in the order of seniority. " This decision not only brings out the differences between a Hindu widow 's estate and the sthanee 's interest in a sthanam property but also points out that the interest of a member of a tarwad is only a right to succeed to the sthanam property in a certain order. It is nothing more than a spes successionis. Seshagiri Ayyar, J., in Krishnan Kidavu vs Raman(1) throws some light on the relationship to the tarwad of a person who had succeeded to a sthanam. The learned Judge says at p. 920 thus: " It is clear that if in his new sphere the stani acquires property and does not dispose of it, his tarwad will be entitled to it. The converse position is at least arguable. If the tarwad becomes extinct, the quondam member who had become a stani may lay claim to the property. It cannot, therefore, be said that the attainment to a sthanam severs the relationship altogether. The person thus ceasing to be a member is not in the position of a stranger. " The Judicial Committee in considering some of the aspects of the institution of a sthanam in K. Kochunni vs K. Kuttanunni (2 ), a case that was fought out between the petitioner and some of the respondents in the present petition, accepted the meaning given to the word " sthanam " by Sandara Aiyar in his book on " Malabar and Aliyasanthana Law ", namely, that it is a dignity to which property is attached for its maintenance and for the fulfilment of the duties attached to the position, but rejected the contention that the following two circumstances indicated that the sthanam was a tarwad: (1) maintenance was (1) Mad. (2) I.L.R. 121 934 decreed against Moopil Nair to the junior members of the family and that maintenance was being paid to the junior members; and (2) the Court of Wards treated the sthanam property as tarwad property. The first circumstance was explained away with the following remarks at p. 691: " The maintenance claimed was a customary one, originating in ancient times when admittedly the Muppil Nair was a sthani in possession of sthanam rights. There is no evidence as to how the maintenance allowance arose, whether it was given in recognition of a legal claim or was only a generous provision made for the benefit of the women and younger members, which the Raja was perfectly competent to do out of property which he regarded exclusively as his own. " In respect of the second circumstance, the Judicial Committee remarked at p. 693 thus: " It appears from the evidence that the Court of Wards throughout the entire period of their management from 1872 till 1910 treated the estate as if it was a tarwad, but this was apparently without any investigation into the true nature of the property. . . Besides there was no adult male at that time to question the treatment by the Court of Wards of the property as tarwad property." A third circumstance was relied upon, namely, that in 1872 the only surviving member of the family was then a girl of six years of age and that, therefore, there being no male heir to succeed to the sthanam, the sthanam became extinct. The Judicial Committee did not allow this plea to be raised for the first time before them. That apart, quoting from Sundara Aiyar 's book, they pointed out that the question whether a sthanam becomes extinct on the extinction of the male members or is only in abeyance during the absence of the male members so as to be capable of being revived, does not admit of an easy solution. " This decision lays down that if once it has been . established that a property is a sthanam property, the mere fact that the sthanamdar was giving maintenance to the members of the family or that the Court of Wards treated the entire property as tarwad 935 property would not in itself convert what, is sthanam property into a tarwad property. To summarize: The origin of the sthanam is lost in antiquity. It primarily means a dignity and denotes the status of the senior Raja in a Malabar Kovilagom or palace. It is surmised that sthaiiams were also created by the Rajas by giving certain properties to military chieftains and public officers and also by tarwads creating them and allocating certain properties for their maintenance. Most of the the incidents of a sthanam are well settled. Usually the seniormost male member of the family and occasionally a female member attains a sthanam. Properties are attached to the sthanam for the maintenance of its dignity. The legal position of a sthanee is equated to that of a Hindu widow in that he represents the estate for the time being and he can alienate the properties for necessity or for the benefit of the estate. Unlike a Hindu widow, the successor to a sthanee is always a life estate holder. In that respect his position is more analogous to an impartable estate holder. He ceases to have any present interest in the tarwad properties. Like a Hindu widow or an impartible estate holder, he has an absolute interest in the income of the sthanam properties or acquisitions therefrom. His position is approximated to a member separated from the family and that the members of the tarwad succeed to his acquisitions unless acereted to the estate and he succeeds to the tarwad properties, if the tarwad becomes extinct. Questions like what would happen if there is no male heir to a sthanam at any point of time whether the properties pertaining to the sthanam would escheat to the State or devolve upon the members of the tarwad or whether a subsequent birth of a male heir would revive the athanamare raised by Sundara Aiyar in his book, but there is a decision of the Madras High Court where in the case of Punnathoor family a subsequent born male heir was given a decree for the possession of the properties of a sthanam. On the question whether a sthanam property, not being the property of a member of a tarwad, be blended with the property of the tarwad so as to make it a tarwad property, there is no direct 936 decision. On principle if the sthanee, on attaining the sthanam is in the position of a separated member of a Hindu family, there may not be any scope for the application of the doctrine of blending. No member of a tarwad has any right to maintenance from out of the sthanam properties and the mere fact that a sthanee for the time being, out of generosity or otherwise, gives maintenance to one or other members of the tarwad cannot legally have the effect of converting the sthanam property into a tarwad property; nor the fact that the sthanam properties are treated as tarwad properties can have such a legal effect. Now, what is the relationship between the tarwad and the sthanee ? It is true that whatever may be the origin of the sthanam, ordinarily, the seniormost member of a tarwad succeeds to that position, but once he succeeds, lie ceases to have any proprietary interest in the tawad. So too, the members of the tarwad have absolutely no proprietary interest in the sthanam property. Thereafter, they continue to be only " blood relations" with perhaps a right of succession to the property of each other on the happening of some contingency. The said right is nothing more than a spes successions the tarwad may supply future sthanees. With this background let us look at the terms of the Act to see what it purports to do. What is the effect of the impugned Act ? It is not the form that matters but the substance of it in its operation on the vested rights of citizens. The Act destroys the finality of decrees of courts establishing the title of janmies to the sthanam properties. It affects the undisputed title of sthanees in sthanam properties, though they may not have obtained decrees in respect thereof. It statutorily confers title retrospectively on the members of the tarwad who had none before. It arbitrarily dislocates the title of particular sthanees in respect of certain sthanam with particular characteristics, which have no relation to the title of the sthanees. The first characteristic mentioned in the impugned Act is that there is or had been at any time an intermingling of the properties of the sthanam and the properties of 937 the tarwad. If the word "intermingling" conveys only the idea of mere factual mixing up of the sthanam properties with the tarwad properties, it cannot, by any known legal notion of Marumakkathayam Law or on any analogy drawn from Hindu Law, convert the sthanam property into the tarwad property. Even if it is understood in the sense of blending, the sthanee, who ceases to be a member of the tarwad and is in a position of a separated member, cannot legally blend his property with that of the tarwad, for the legal concept of blending implies that the person who blends his property with that of the family is an undivided member of the family. The second characteristic mentioned in the impugned Act is that the members have been receiving maintenance from properties purporting to be sthanam properties as of right or in pursuance of custom or otherwise. This characteristic is foreign to the concept of sthanam. No member of a tarwad is entitled as of right to any maintenance from out of properties of the sthanam. Under this clause, if maintenance is so received, the sthanam is deemed to be a tarwad on the basis that the receipt of maintenance from the sthanee out of the sthanam property brings about the said result. If a sthanee creates any such right in favour of a tarwad, it may bind him, but it cannot certainly be binding on the sthanam properties or its successor. If a custom be established on evidence, it may become an incident of the sthanam, but it cannot obliterate or extinguish it or convert it into a tarwad. The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis. The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary. On the basis of this rule, it is contended, that the right or the custom mentioned in the clause is a distinct genus and the words " or otherwise " must be 938 confined to things analogous to right or custom such as lost grant, immemorial user, etc. It appears to us that the word " otherwise " in the context only means " whatever may be the origin of the receipt of maintenance ". One of the objects of the legislation is to by pass the decrees of courts and the Privy Council observed that the receipt of maintenance might even be out of bounty. It is most likely that a word of the widest amplitude was used to cover even acts of charity and bounty. If that be so, under the impugned Act even a payment of maintenance out of charity would destroy the character of an admitted sthanam which ex facie is expropriatory and unreasonable. Nor does the third characteristic embody an unimpeachable test of the extinction of a sthanam or the conversion of the same into a tarwad. Under the impugned Act, if there had been at any time a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam the sthanam would be deemed to be a tarwad. Not only there is no justification for enacting that non existence of such a male heir at any point of time should put an end to the character of the sthanam, but the only decided case of the Madras High Court on the point recognized the right of a subsequently born male member in a tarwad to succeed to the sthanam and its properties. Therefore, the three tests laid down by the impugned Act to enable the drawing of the statutory fiction are not only not germane but extraneous to the object sought to be achieved. What is more, the impugned Act is made retrospective so as to make the sthanee liable to arrears of maintenance and past profits. The contention that the impugned Act is nothing more than a readjustment of rights inter se between the members of the tarwad and the sthanee is without substance, for, before the Act, except ties of blood and a right to succeed in a particular contingency the members of the tarwad had no interest in presenti in the sthanam property nor vice versa. The impugned Act is only a legislative device to take the property of one and vest it in another without compensation, and, therefore, on its face stamped with unreasonableness. In short, the 939 impugned Act is expropriatory in character and is directly hit by article 19(1) (f) and is not saved by cl. (5)of article 19. Another condition for the application of cl. (5) of article 19 is that the restrictions should be in the interests of the general public. We assume for the purpose of this case that there are sthanams with characteristics similar to those of the petitioner 's sthanam and that the Act confers title on the junior members of tarwad in properties of such sthanams and that they form a defined section of the public. If so, a question arises whether a section of the public is "general public " within the meaning of article 19(5). This fell to be considered by a full bench of the Calcutta High Court in Iswari Prosad vs N. R. Sen (1). It was contended before the full bench of the said High Court that the words " in the interests of the general public " mean " in the interests of the public of the whole of the Republic of India ". Negativing this contention, Harries, C.J., observed at p. 278 thus: " The phrase ' in the interests of the general public ' means I think nothing more than 'in the public interest ', and it may well be that legislation affecting a limited class of persons or a limited area might well be legislation in the public interests, though the public of other parts of India might not be directly affected by such legislation. If they are indirectly affected such would be quite sufficient to make such legislation in the public interest. Legislation affecting a particular class or a particular area would only directly affect the members of that class or the inhabitants of that particular area. But the removal of some serious abuse or grievance or discontent is a matter indirectly affecting the public generally. It is not in the interests of the general public or in the public interest to allow any class of persons to labour under some grievance and to be genuinely discontented. It is in the interests of the general public or in the public interest that all classes of the citizens of India are content and that their grievances should be removed. A festering sore on the human body may eventually affect the whole (1) A.I.R. 1952 Cal. 273. 940 body though at first its effect is localised. Grievances or discontent in some particular area or in some State or in some class of persons may eventually affect the whole Republic of India, though originally the effects might be limited. The removal of any grievance, abuse or discontent is a matter not only where the discontent or grievance is genuine it may well be in the public interest to remove such, though the public in other parts of India may not be directly affected. It is in the public interest that persons should be governed justly and well and removal of hardship and grievances of a particular class is I think clearly a matter of public interest. We agree with these observations. Relying upon these observations, it is said that the decision of the Privy Council created a stir among the members of that class of the public who are governed by the Marumakkathayam Law, either because the pre existing rights were disturbed or because there is no justification in a welfare State for one member of the tarwad succeeding to the entire sthanam property to the exclusion of the other members of the tarwad, and so, the argument proceeds, that the State has stepped in to rectify the mistake or to do justice consistent with modern trends. It is further argued that the redress of this grievance of a section of the com munity is in the interest of the public. This argument is purely based on surmises. We have pointed out that the junior members of the tarwad had never any interest in the sthanam properties. We cannot say on the materials placed before us that any public interest will be served by depriving a sthanee of his properties and conferring title in his properties so deprived on others. Nor is there any evidence that there was a real and genuine grievance in this particular section of the public belonging to tarwads justifying the interference by the State. We cannot on the materials placed before us hold that this reform is in the public interest. The learned Attorney General raised a further point that no law can impose restrictions retrospectively on fundamental rights aid, in support of his contention, he relied upon the wording of cl. (5) of article 19 of the 941 Constitution and also on the decision of the Privy Council in Punjab Province vs Daulat Singh (1). But, as we have held that the restrictions imposed are not reasonable within the meaning of cl. (5) of article 19 of the Constitution, this question need not be decided in this case. We declare that Madras Act 32 of 1955 is void and ultra vires the Constitution and issue a writ of mandamus restraining the State of Kerala from enforcing the provisions of the said Act against the petitioner and his sthanams. In the result, Petition No. 443 of 1955 is allowed with costs; Petition No. 40 of 1956 is allowed, but in the circumstances, without costs ; and Petition No. 41 of 1956 is dismissed, but in the circumstances, without costs. SARKAR, J. In our view these petitions fail. The petitions challenge the validity of an Act passed by the Madras Legislature called the Madras Marumakkathayam (Removal of Doubts) Act, 1955. The substantive provisions of the Act are contained in section 2 which is in these terms: "section 2. Notwithstanding any decision of Court, any sthanam in respect of which (a)there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad, or (b)the members of the tarwad have been receiving maintenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam, shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act, 1932 (Madras Act, XXII of 1933), shall apply." (1) 122 942 Sthanams and tarwads are peculiar institutions of the Malabar area and a few words about them are necessary. A tarwad is an undivided family governed by the Marumakkathayam Law, the customary law of Malabar. The outstanding feature of that law is that for the purposes of inheritance, descent is traced through the female line. The property of the tarwad or family is owned by all its members but is managed ordinarily by the eldest male member, such manager being called the karnavan. Before the Madras Maru makkathayam Act, 1932, was passed, a member of the tarwad could not insist on a partition and a partition took place only when all the adult members agreed. The members had, however, the right to be maintained by the karnavan and had certain other rights to which it is not necessary for us to refer. The Madras Marumakkathayam Act, 1932, made some changes in the customary law. The more important changes were that the junior members were given power to inspect the accounts of the karnavan and a right to ask for partition subject to certain limitations. We turn now to sthanams. A sthanam is a station, rank or dignity. A sthani is the holder of a sthanam. A sthanam usually has lands attached or granted to keep up the station, rank or dignity of the sthani and it appears to have come into existence in one or other of the manners hereinafter stated. The ancient rulers of the Malabar coast possessed sthanams and it may be taken that the lands which they held as rulers were regarded as being sthanam lands in character. The sthanam held by a ruler went by the name of Rajasthanam. The Rajasthanams have continued though there are no rulers now. Apart from Rajasthanams, there are other kinds of sthanams. The rulers often granted sthanams with lands attached to them to their subsidiary chieftains or other persons of consequence in their States. Sthanams with lands were also sometimes granted for rendering military service. Again when a family became opulent and influential the members of the tarwad sometimes agreed to set aside for the karnavan certain lands in order that he might keep up his social position and influence and so again a sthanam was created. A sthanam with the 943 lands attached thereto devolved on the death of the holder for the time being to the next senior member of his tarwad. When a member of the tarwad becomes the sthani he loses his interest in the tarwad properties though he does not cease to be a member of the tarwad. The members of the tarwad in their turn have no interest in the sthanam lands. The sthani is entitled to utilize the income of the sthanam properties for his own purposes. For a more detailed state ment of the character of a sthanam reference may be made to P. R. Sundara Ayyar 's book on Malabar and Aliyasanthana Law. We have taken the greater part of what we have said in this paragraph from Kuttan Unni vs Kochunni (1). The important point to note for the purposes of these petitions is that the sthani for the time being is alone entitled to the lands of his sthanam and the members of his tarwad are not enti tled to them while all members of a tarwad except the sthani are entitled jointly to all the properties of a tarwad. There are altogether three petitions before us bearing numbers 443 of 1955 and 40 & 41 of 1956 and they have been heard together. The petitioner in Petition No. 443 of 1955 is the Moopil Nayar or the senior member of the Kavalappara tarwad or family to which the parties to this petition other than the States of Kerala and Madras, belong. As the head of. the family he claimed to be entitled to eight sthanams with the lands attached to them respectively. It appears that the Kavalappara family was a ruling dynasty in pre British times and ruled over the Kavalappara territory. The Moopil Nayar or senior member of this family for the time being was the ruler of the Kavalappara State. The Kavalappara territory was the Ruler 's Rajasthanam. When Malabar was ceded by Tippu Sultan to the East India Company in 1792, the Kavalappara family lost its sovereign rights. The Kavalappara territory, however, continued as a Rajasthanam held by the Moopil Nayar or the senior member of the family for the time being. The petitioner in Petition No. 443 of 1955 has been the Moopil Nayar of the Kavalappara family since his elder (1) I.L.R. 914 brother 's death in 1925 and claims the lands of the Rajasthanam as such. This is the first of the eight sthanams mentioned earlier. The head of the Kavalappara family was entitled to five other sthanams granted from time to time by the rulers of Palghat to whom the Kavalappara State was subordinate. Each of these sthanams also had lands attached to it. The lands attached to the Rajasthanam and sthanams granted by the rulers of Palghat were situate in the South Malabar district which originally appertained to the State of Madras and is now part of the State of Kerala. The head of the Kavalappara family was also entitled to two further sthanams with the lands attached to them which had been granted by the ruler of Cochin. The lands belonging to these two sthanams were situate in the former State of Cochin now merged in the State of Kerala. The petitioner made a gift of the lands attached to the five sthanams which had been granted by the Raja of Palghat, to his wife and daughters. The donees under this gift are the petitioners in Petition No. 40 of 1956. He likewise made a gift of the lands attached to the two sthanams which had been granted by the Raja of Cochin to his son who is the petitioner in Petition No. 41 of 1956. These gifts had been made before the impugned Act bad been passed. It is necessary now to refer to a previous litigation. On April 10, 1934, the then junior members of the Kavalappara family filed a suit in the Court of the Subordinate Judge of Ottapalam for a declaration that all the properties managed by the Moopil Nayar were tarwad properties belonging equally and jointly to all the members of the tarwad including the Moopil Nayar and that the latter was managing them as Karnavan and not as sthani. The defendant to this suit was the petitioner in Petition No. 443 of 1955, the Moopil Nayar or the senior member of the family. The Moopil Nayar resisted the suit claiming to be solely entitled to the disputed lands on the basis that they were sthanam lands and he was the sthani. The suit was dismissed by the learned Subordinate Judge but on appeal the decision of the Subordinate Judge was reversed by the High Court of Madras and a decree 945 was passed as claimed in the suit. It is this judgment of the High Court which is reported in I.L.R. , to which reference has been made earlier. On a further appeal to the Privy Council by the Moopil Nayar, the decision of the High Court was set aside and that of the Subordinate Judge restored. The decision of the Judicial Committee was given on July 29, 1947. The result was that the petitioner, Moopil Nayar, was declared to be entitled as sthani to the disputed properties and it was held that those properties were sthanam properties and not tarwad properties. The impugned Act came into force on October 19, 1955. At that time the South Malabar District was part of the State of Madras. Later, with the formation of the State of Kerala, this area became part of that State and continued to be governed by the Act. That Act was never extended to any other part of Kerala and never applied to the territories covered by the former Cochin State which had been merged in the State of Kerala. The petitions were filed challenging the validity of the Act soon after it came into force. We will take up Petition No. 443 of 1955 first. In this petition we are concerned only with the Kavalappara Rajasthanam. The petitioner, the Moopil Nayar, was entitled at the date of the petition only to the lands attached to that sthanam for he had earlier given away the lands belonging to the other sthanams to his wife, daughters and son as already stated. He complains that as a result of the impugned Act he has been deprived of the exclusive ownership of the lands attached to the Kavalappara Rajasthanam and has to share it with the other members of his tarwad or family. It is not in dispute that the Act applies to Kavalappara Rajasthanam. The respondents to this petition are the junior members of the Kavalappara family and the States of Kerala and Madras. The State of Madras has not appeared perhaps because the Act applies to lands which have since the filing of the petition, been transferred from Madras to Kerala, upon which transfer the State of Kerala had been made a party to the petition. There are three interveners in 946 this petition two of whom support the respondents and one supports the petitioner. The petitioner, Moopil Nayar, first says that the Act violates article 14 of the Constitution inasmuch as it applies to the stbanam held by him only and to no other sthanams. This raises a question of fact. He, however, also says that the Act is bad as infringing articles 19(1)(f) and 31(1) of the Constitution as it deprives him of his right to hold property and that it is not saved by cl. (5) of article 19. If, however, the Act enacts a law within the meaning of article 31 A of the Constitution, the petitioner cannot be heard to complain of violation of articles 14, 19(1)(f) and 31(1). So the question arises, Is it saved by article 31A? That article so far as is material in this case is set out below: " article 31A. (1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, . . . . . . . . . . shall be deemed to be void on the around that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 : Provided that where such law is a law made by the Legislature of a State, previsions of this article shall not apply thereto unless such law having been reserved for the consideration of the President, has received his assent. (2) In this article, (a) the expression ' estate ' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right; (b)the expression 'rights ', in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenureholder, raiyat, under raiyat or other intermediary 947 and any rights or privileges in respect of land revenue ". It appears that the Act had been reserved for the consideration of the President and had received his assent. If, then, the Act provides for a modification of rights in an " estate ", it would not be void on the ground that it is inconsistent with articles 14, 19 and 3l the violation of which the petitioner complains. Under article 31A (2) (a), an " estate " includes, in the State of Kerala, any janmam right. This of course means lands held in janmam rights for janmam rights exist only in lands. Again, under sub cl. (b) of el. (2) of article 31A the expression " rights " used in relation to an " estate " in that article includes the rights of the proprietor of the estate or others holding under him. In regard to this sub clause it has been held by this Court in Alma Ram vs State of Punjab (1) that the expression " rights " in relation to an estate has been used in a very comprehensive sense and includes not only the interest of the proprietor or sub proprietor but also of lower grades of tenants, that is, all those who have acquired rights under him by what are called processes of sub infeudation. The respondents contend that the rights affected by the Act are janmam rights and, therefore, the Act is one contemplated by article 31A. The petitioner, Moopil Nayar, states that the respondents have not alleged that the sthanam properties are held in janmam right. It appears that in the affidavit of the State of Kerala it is stated that the Act is saved by virtue of the provisions of article 31A. As we are concerned with lands in the State of Kerala, the Act could be saved by article 31A if the lands were held in janmam rights or in rights held under the holder of the janmam rights. The allegation that the Act is saved by article 31 A, therefore, clearly implies that the lands attached to the sthanams were held in janmam rights or rights subordinate to janmam rights. There is no statement by the petitioner anywhere on the records that the lands were not held on such rights. On the other hand, it would appear from what we state later that (1) [1959] SUPP. I S.C.R. 748. 948 the rights in the lands were janmam rights or rights subordinate to janmam rights. Janmam right is really a freehold interest in land. In section 3 (k) of the Malabar Tenancy Act, 1929, a janmi has been defined as a person entitled to the absolute proprietorship of land. What we have earlier stated leaves no doubt that the lands, belonging to the sthanams were lands held in absolute proprietorship, that is, in freehold interest. It has not been alleged that the freehold interest in the sthanam lands has undergone any change. Neither has it been shown to us that in the Malabar area land can be held in any right other than janmam right or subordinate rights created by the holder of a janmam right. Again in his written statement in the suit of 1934, earlier mentioned, which is on the record of this case, the petitioner, Moopil Nayar, stated that the lands of the sthanams situated in Madras remained in the management of the Court of Wards, Madras, from 1872 to 1916 and were registered as held in janmam rights. Therefore, it seems to us that it has been established that the lands belonging to the sthanams in South Malabar district are held in janmam rights. That being so, rights in such lands would be rights in an estate within the meaning of article 31 A (1) (a). It is said on behalf of the petitioner, Moopil Nayar, that the Act compels him to share the lands with the other members of his family. If so it seems to us that the effect of the Act is to modify the interest of a holder of a sthanam in the lands attached thereto. His rights as sole owner of the lands are modified by making him one of the, joint owners of them along with the other members of his family. As the lands were held in janmam rights or rights subordinate thereto, the Act would be saved by article 31A though it may infringe articles 14, 19 (1) (f) or 31(1). The petitioner, however, contends that even if the lands were held in janmam rights, article 31A would not protect the Act. He first says that the Act contemplated by Art,. 31A(l)(a) is an Act passed with the object of effecting agrarian reforms which the Act before us is not. But we find nothing in the article to justify this contention. The article does not mention 940 any agrarian reform. Under it any janmam right may be acquired, extinguished or modified; this would be so whether the land held on janmam right was agricultural land or land which can never be used for agricultural purposes. Article 31 A was introduced into the Constitution by the Constitution (First Amendment) Act, 1951. It was subsequently amended by the Constitution (Fourth Amendment) Act, 1955. Both these Acts made the amendments with retrospective effect from the commencement of the Constitution. The petitioner seeks to support the contention that the Act contemplated by article 31A (1)(a) is an Act dealing with agrarian reforms by referring to the objects and reasons stated in the Bills by which the Acts amending the Constitution were introduced in the Parliament. It does not seem to us that it is permissible to refer to such objects and reasons for the construction of a statute: see Aswini Kumar Ghose vs Arabinda Bose (1). We conceive therefore, that we are not entitled to read the word " law " in article 31A (1) in relation to sub cl. (a), only as a law intended to achieve agrarian reforms on the basis of the supposed object of the legislature in enacting article 31A. We also observe that apart from the objects and reasons found in the Bills, there is nothing on which the contention that the law contemplated by article 31 A (1)(a) is a law intended to achieve agrarian reform, can be based. It is next said that the Act did not effect any modification of janmam rights and hence again article 31A is of no avail to protect it. It is contended that the modification contemplated by the Article is a modification of the incidents of the janmam rights. It is said that what the Act did was to distribute janmam rights among various persons and several owners held the same janmam rights which, before the Act, had been held by one. That, it may be stated, is so but that does not affect the real question for decision. When the Article talks of modification of janmam rights it does not talk of such rights in the abstract. It contemplates the modification of the (1)[1953] S.C.R. 1. 950 rights held by a person. It would be as much modification of janmam rights if such rights held by one person are directed to be held by a number of persons jointly, as when the incidents of such rights are altered. Further our view receives support from two decisions of this Court, namely, Sri Ram Ram Narain Medhi vs The State of Bombay(1) and Atma Ram vs The State of Punjab (2 ). These cases dealt with Acts one of the provisions of which compelled a landlord to sell to his tenant the whole or a portion of the land held by the latter at a price to be fixed in the manner indicated. It was held that though this provision violated article 19(1)(f) yet it was saved by article 31A. It will be seen that here the incidents of the tenure on which the landlord held the land were not altered. After he had been compelled to transfer the lands to his tenants, he held the remainder on the same terms as before, yet it was held that the Acts compelling the landlord to sell a part of the land held by him were saved by article 31A. In our view, therefore, the Act now before us is saved by article 31A and it cannot be declared invalid even if it violates the provisions of articles 19(1)(f), 14 and 31 (1) of the Constitution. In this view of the matter it is not necessary for us to consider whether the Act in fact violates articles 14, 19(1)(f) and 31(1) or any of them or is saved by el. (5) of article 19. Next it is said that the Act is bad as it is really an exercise by the legislature of judicial power which it does not possess and not an exercise of a legislative power at all. We are unable to hold that this is so. There are two things in the Act on which this contention has been based. The first is that the Act has been given a retrospective operation. It is quite clear to us that by itself does not make the Act a thing done in the exercise of judicial power. The legislature has the power to give retrospective opera tion to an Act. That of course interferes with vested rights but the legislature can interfere with such rights in the exercise of its legislative power. That is not adjudicating between parties affected by the Act. It is laying down the law to be followed by (1) [1959] SUPP. I S.C.R. 489. (2) [1959] SUPP. 1 S.C.R. 748. 951 951 courts in future. It is so none the less that the law is altered as from a past date. Then it is said that the Act provides that it is to have effect notwithstanding any decision of the Court contrary to its provisions. That the Act no doubt does. Can it be said that it thereby adjudicates and not legislates ? In Piare Dusadh vs King Emperor (1) it was pointed out that in India the legislature very often in the enactments that it makes sets aside decisions of Courts. In America a rule appears to obtain that " Legislative action cannot be made to retroact on past controversies and to reverse decisions which the courts in the exercise of their undoubted autho rity have made ": Cooley 's Constitutional Limitations, 8th Ed., p. 190. It was held in Piare Dusadh 's case (1) at p. 104, that this rule had no application in India. The observation there made may be set out: It is clear from the American authorities that this limitation has been derived from the interpretation placed by the American courts on what are known as the Fifth and Fourteenth Amendments which provide against any person being " deprived of life, liberty or property without due process of law ". The expression " due process of law" has been interpreted as referring only to ' judicial process ' and as not including legislation . . As this requirement had been made part of the written constitution, it followed that no enactment passed by a legislature limited by that constitution could authorise anything in violation of it Hence the rule (stated by Cooley) that ' it would be incompetent for the legislature, by retrospective legislation, to make valid any proceedings which had been had in the courts but which were void for want of jurisdiction over the parties. ' The constitutional position in India is different. " It seems to us that this observation of the Federal Court which no doubt was made with reference to the Government of India Act,., 1935, applies with equal force to the position obtaining under our Constitution. It has been held by this Court that there is no scope (1) 952 under our Constitution for the application of the American concept of " due process of law". The American cases cited in support of the contention that a legislation cannot override judicial decisions therefore afford no assistance in our country. Article 31B itself provides that it would apply notwithstanding any judgment, decree or order of any court to the contrary and it had been enacted by an Act passed by the Parliament. There have been many Acts passed since the Constitution came into force which contained similar provisions. In no case has it ever been contended that such an Act amounted to an exercise of the judicial function by the legislature. The Act before us lays down a law to be applied by courts in future in the adjudication of disputes between parties. It also says that the courts shall apply the law notwithstanding that there is an earlier decision on the rights of the parties which are being litigated upon in a subsequent proceeding. The Act does not itself annul any decision of any court. All that it says is that the law laid down is to be applied by courts irrespective of any previous decision. It does not in any sense adjudicate between parties. It, therefore, seems to us that the contention that the impugned Act is really an exercise of judicial power is ill founded. In our view, the challenge brought against the impugned Act fails. Petition No. 443 of 1955 should, therefore, be dismissed with costs. Coming now to the Petition No. 40 of 1956 the petitioners here are the wife and the two daughters of the petitioner in Petition No. 443 of 1955. The respondents are the junior members of the tarwad as also the Moopil Nayar. The petitioners claim as donees from the Moopil Nayar to be entitled to the sthanam lands in the Palghat area. It is not necessary for us to decide whether the petitioner in Petition No. 443 of 1955 had the right to make the gift in favour of his wife and daughters. That question has not been gone into by consent of the parties. If the gift is valid then what we have said earlier in connection with Petition No. 443 of 1955, will apply to this petition also and it must for the same reason 953 fail. If the gift is invalid, the petition must fail on the ground that the Act has not affected the petitioners ' rights in any lands held by them. We would, therefore, dismiss that petition with costs except the costs of the hearing before us for all the three petitions were heard together. Lastly, we come to Petition No. 41 of 1956. This petition must clearly be dismissed. It was filed by the son of the petitioner in Petition No. 443 of 1955 claiming to be entitled to the sthanam lands situate in an area which was formerly part of the Cochin State. It is not in dispute that the impugned Act was never extended to that area. Therefore, whether the gift to him was valid or not, as to which we say nothing, the petitioner in this petition is not affected by that Act at all. His petition is clearly misconceived. His petition is, therefore, dismissed and he will pay the costs excepting the costs of the hearing. ORDER OF COURT. In view of the judgment of the majority, Petition No. 443 of 1955, is allowed with costs, Petition No. 40 of 1956, is allowed without costs, and Petition No. 41 of 1956, is dismissed without costs.

In exercise of the powers conferred by section 68C of the , the General Manager of the Mysore Government Road Transport Department published a scheme for the exclusion of private operators on certain routes in a specified area and reservation of those routes for the State Transport Undertaking. The scheme was approved by the Government under s, 68D(2) of the Act after the Chief Minister of the State had given an opportunity to the operators affected by the scheme to make representations objecting to it, The petitioners who were 743 private operators challenged the validity of the scheme and the action taken by the Government pursuant to it on the grounds, inter alia, (1) that the petitioners have a fundamental right to carry on the business of plying stage carriages and that the provisions of Ch. IVA of the , which provide for the right of the State to exclusive right to carry on motor transport business are invalid,(2)that by Ch. IVA Parliament had merely attempted to regulate the procedure for entry by the State into the business of motor transport in the State, and that in the absence of legislation expressly undertaken by the State in that behalf, that State was incompetent to enter into the arena of motor transport business to the exclusion of private operators, and (3) that the scheme violated the equal protection clause of the Constitution because only fourteen out of a total of thirty one routes on which stage carriages were plied for public transport in the area specified were covered by the scheme : Held, (1) that the expression " commercial and industrial monopolies " in entry 21 of List III of the Seventh Schedule of the Constitution of India is wide enough to include grant or creation of commercial or industrial monopolies to the State and citizens as well as control of monopolies. (2) that it is competent for the Parliament to enact Ch. IVA of the Act under entry 21 read with entry 35 of List III. (3)that the scheme framed under section 68C of the may be regarded as "law" within the meaning of article 19(6) of the Constitution, made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by article 19(1)(g). (4)that on a true reading, the scheme in question was approved in relation to the fourteen notified routes and not in relation to a notified area and that as a scheme under section 68C of the Act may be one in relation to an area or any route or portion thereof, the scheme could not be challenged as discriminatory.

Appeal No. 1749 of 1980. From the Judgment and Order dated 26.3. 1980 of the Gujarat High Court in Special Civil Application No. 1606 of 1975. D.A. Dave, Vimal Dave, R. Karanjawala, Mrs. Manik Karanjawala, Jitender Singh and P.K Mullick for the Appellant. R.R. Goswami, S.K Dholakia, P.H. Parekh, Fazal, H.K Rathod and S.C. Patel for the Respondents. The following Order of the Court was delivered: The State of Gujarat, the appellant herein, is aggrieved against a mandamus issued by the High Court of Gujarat on March 26, 1980 'in Special Civil Application No. 1606/75 whereby its decision to impose a ratio while working out a, Quota rule was upset. The minimum facts are these: In the State Public Works Department there was an Electrical Engineering Branch. By Resolution dated July 10, 1972, the services in the said branch w.e.f May 1, 1972 were trifurcated on the same pattern as was 386 done in other branches. The result was that the trifurcation ended into three cadres (1) Junior Engineers, (2) Supervisors and (3) Over seers. The compartment of Over seers is a surplus age. There was only one Overseer at the relevant time and he stood retired. In substance it was a bifurcation between Junior Engineers and Supervisors, the former being graduates and the latter being diploma holders. This exercise of the State Government was challenged in a writ petition before the High Court in Special Civil Application No. 1855/73, which was negatived by the High Court by an order dated 2nd April, 1975. The High Court directed that in working out the trifurcation the Government must provide criterion for promotion from the three independent cadres. In compliance thereof, the State Government adopted a Resolution dated 26.9.1975 introducing a quota rule effective from May 1, 1972 at the ratio of 2:1 for Junior Engineers and, Supervisors respectively for promotion to the posts of Deputy Engineers. The nine contesting respondents herein preferred a writ petition being Special Civil Application No. 1606/75 before the High Court challenging the trifurcation as also the quota rule. The High Court repelled the challenge in so far as it related to the trifurcation and the adoption of quota rule but struck down the ratio of 2:1 holding it to be unjustified as also the disparity in qualifying service from both the channels. The High Court concluded as follows: "We are, therefore, of the opinion that though it was within the power of the State Government to bifurcate the unified cadre into two distinct cadres of Junior Engineers and Supervisors and though it was within the power of the State Government to prescribe a quota for both of them for the purpose of promotion to the higher posts of a Deputy Engineer there was no justification for prescribing the quota of 2:1 and a longer qualifying service for the Supervisors. Therefore, the promotional rule which prescribes unequal quota and an unequal length of qualifying service for Supervisors for promotion to the posts of a Deputy Engineer is liable to be struck down. " And accordingly it did by issuing a mandamus. The State Government of Gujarat when appealing to this Court was unsuccessful in obtaining a stay of operation of the impugned judgment. 387 As a consequence it had to obey the mandate of the High Court which was to the effect that the ratio of 2:1 could not be enforced. As a result the quota rule went out of gear. It was left open all the same to the State Government to make any other rational rule in that behalf. Even this Court on 18.12.1980, at that juncture, ordered, "Let the Government frame a fresh quota rule consistent with the High Court judgment under appeal for the purpose of making promotions during the pendency of the appeal. ' Pursuant thereto, it appears that the State Government was constrained to introducing of a Rule under Article 309 of the Constitution. But before we advert to that Rule it would be relevant to mention that earlier in point of time, by Notification dated July 4, 1978, Rules known as Deputy Engineer (Electrical) Recruitment Rules, 1978, were framed under Article 309 of the Constitution giving a statutory clothing to the Resolutions dated 10.7.72 and 26.9.75. Unfortunately, these statutory provisions were not brought to the notice of the High Court nor were they put to challenge. The matter in the High Court proceeded on the assumption that an executive action of the State was under challenge. The necessary assumptions and presumptions, well known to law and the placement of onuses went unnoticed. In this background and facing the situation so arising the State Government issued a Notification on April 12, 1982 by causing a substitution in the earlier Rules of 1978 aforementioned by fixing t he promotional ratio from both sources at 1:1, but subjected them to the result of the instant litigation emerging from this Court. We stand deprived of the pleadings of the parties before the High Court. The pleadings now introduced do not help us. Significantly, the High Court judgment is silent as to the basis on which it was persuaded to strike down the ratio of 2:1 for Junior Engineers and Supervisors respectively. The tenor of the judgment of the High Court does however suggest that the executive flexibility, with which the Government works could not justify the fixation of the ratio of 2:1. The High Court could not and did not substitute what was the right ratio in the circumstances and left it to the Government to devise another ratio. Had the, factum of the legislation on the subject the Rules dated 4.7.1978, been brought to its notice, perhaps the High Court 's angle of vision would have been different. The State has no doubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality. No such measure can ever be permanent that would hold good for all times, to meet not only the present needs but also future exigencies as well. Hands of the State cannot to so 388 tied down. That would be a step retrograde to the growth and working of a democracy. The State is now left to devise a ratio other than the ratio of 2:1 and cause a variation. It cannot come to that ratio again. This appears to us an undesirable situation. It must be left to the State to get at, it again. Though obeying the mandamus of the High Court the State must be free to arrive at the original ratio of 2:1. On some basis the Governor of the State appears to have legislated on the subject. It was on the writ petitioner 's (now respondents) to lay data before the High Court and bear the onus to show that the legislative measure was unfair and arbitrary, violative of Article 14 of the Constitution. As said before no such data appears to have been placed before the High Court. On these circumstances, we are left with no option but to upset the judgment of the High Court and remand the matter back to it for reconsideration. In doing so we may set at rest the controversy regarding difference of length of qualifying service, from both sources. The controversy does not survive in view of Roop Chand Adlakha & Ors. vs Delhi Development Authority & Ors., [1989] Supp. I SCC 116. The High Court need not advert now to the disparity in length of qualifying service from the channels of promotion. In the meantime, however, status quo needs to be preserved. The substituted Service Rules of 1982 shall continue to operate till the decision of the High Court and the promotions, as before, shall continue, subject to the result of the judgment of the High Court. In these terms we allow the appeal and set aside the judgment. The High Court may pass appropriate orders afresh, after permitting the parties to amend their pleadings, if necessary, and putting the onus on the writ petitioners to prove unfairness in the 1978 Rules, or violation of Article 14 of the Constitution. Since it is an old matter, we request the High Court to dispose it of as quickly as possible, preferably within six months. No Costs. V.P.R. Appeal allowed.

The appellant 's election to the Legislative Assembly was challenged by the Respondent in his election petition before the High Court. It was contended by the election petitioner that the respondent had used a religious symbol for the furtherance of his election prospects which was a corrupt practice under Section 123(3) of the Representation of the People Act, 1951. The High Court declared the election of the successful candidate to be void and set it aside. The successful candidate preferred the present appeal. On the question whether the use of a religious symbol in the election of Respondent amounted to corrupt practice u/s 123(3) of the Representation of the People Act, 1951, this court, HELD:1.1. There is no doubt that the offending poster is a religious symbol. The depiction of anyone in the attire of Lord Krishna blowing a 'shanku ' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion. The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party. [350G H] 1.2.But there is no evidence to show that the offending poster was printed by or at the behest of the successful candidate. The successful 346 347 candidate himself in his evidence denied that he had the offending posters printed or pasted. The averment in the election petition that the offending posters were pasted by followers, supporters and party men of the successful candidate is not established. [351B D] 1.3.The evidence on record does not establish that the offending posters were used at the election by the successful candidate or his election agent or with their consent. [352D] 1.4.The standard of proof in an election petition is rigorous, having regard to the quasi criminal nature of the proceeding. The charge laid against the successful candidate under section 123(3) has not been established on the basis of the evidence on record. [351G]

Appeal No.155 of 1953. Appeal by special leave from the Judgment and Order dated the 15th July, 1953, of the Election Tribunal, Nagpur, in Election Petition No. 3 of 1952.B. Sen and T. P. Naik for the appellant. Veda Vyas (section K. Kapur with him) for respondent No. 1. 1954. February 15. The Judgment of the Court was delivered by Bose J. This is an appeal against a decision of the Nagpur Election "Trbunal. The contest before the tribunal was about two seats in the Bhandara Parliamentary Constituency. The elections were held on five days 'in December, 1951, and January, 1952. 819 Thirteen candidates filed nomination papers, among them the petitioner. Of these, six contested the seat reserved for the Scheduled Castes. One of these was Gangaram Thaware who has since died. The Scheduled Caste in question is the Mahar caste. Objection was taken to Thaware 's nomination for the reserved seat on the ground that he was not a Mahar. It is admitted that he was born a Mahar, but later in life he joined the Mabanubhava Panth. This, according to the appellant, is a sect which does not believe in caste, and alternatively that it forms a separate caste in itself The contention was that when Gangaram Thaware joined the Panth he ceased to be a member of the Mahar caste ' The objection succeeded and his nomination was rejected. The nomination of another Scheduled Caste candidate was also rejected and five others were withdrawn before the election, among them was the present petitioner. That left six candidates of whom three were eligible for the reserved seat. The two who were elected were Tularam Sakhare, for the Scheduled Caste seat, and chaturbhuj, Jasani, nor the general seat. Jasani 's election was challenged on the ground that he was subject to the disqualifications set out in section 7 (d) of the Representation of the People Act (Act XLIII of 1951) as he was interested in a contract for the supply of goods to the Central Government. The Election Tribunal held that the rejection of Gangaram Thaware 's nomination was improper as he continued to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava. Panth. It also held that Chaturbhuj Jasani had a contract with the Central Government, so he was disqualified. Accordingly it set aside the whole election. We will deal with Chaturbhuj Jasani 's election first. Section 7(d) is in these terms : "A person shall be disqualified for being chosen as, and for being, a member etc. * * * * 820 (d)if by himself he has any share or interest in a contract for the supply of goods to the appropriate Government." Chaturbhuj Jasani was, and still is, a partner in the firm of Moolji Sicka & Company, and it is said that at all material times the firm had a contract for the supply of bidis to the Government for the troops. Moolji Sicka & Company is a firm of bidi manufacturers. The Central Government was interested in stocking and purchasing bidis for sale to its troops through its canteens. Accordingly, it placed two of the brands of bidis manufactured by this firm on its approved list and entered into an arrangement with the firm under which the firm was to sell, and the Government was to buy from the firm, from time to time, these two brands of bidis. It was argued that this amounted to a contract for the supply of goods within the meaning of the section. It was said that the contract was embodied in four letters. We do not intend to analyse these letters in detail. It is enough to say that in our opinion no binding engagement can be spelt out of them except to this extent : Moolji Sicka & Company undertook to sell to the canteen contractors only through the Canteen Stores and not direct and undertook to pay a commission on all sales. This, in our opinion, constituted a Continuing arrangement under which the Canteen Stores, i.e., the Government, would be entitled to the commission on all orders placed and accepted in accordance with the arrangement ; and in fact the Canteen Stores did obtain a sum of Rs. 7,500 'in satisfaction of a claim of this kind. This money was paid long before the dates which are crucial here but the settlement illustrates that there was an arrangement of that nature and 'that it was a continuing one. In our opinion, it continued in being even after that and the mere fact that there was no occasion for any claim subsequent to the settlement does not indicate that it was no longer alive. But except for this, the; letters merely set out the terms on which the parties were ready to do business with 821 each other if and when orders were placed and executed. As soon as an order was placed and accepted a contract arose. It is true this contract would be governed by the terms set out in the letters but until an order was placed and accepted there was no contract. Also, each separate order and acceptance constituted a different and distinct contract: see Rose and Frank Co. vs J. R. Crompton & Bros. Ltd.(1) The crucial dates with which we are concerned are 15th November, 1951, the last date for putting in the nominations, and 14th February, 1952, the date on which the results were declared. The section runs "A person shall be disqualified for being chosen as. The words which follow, "and for being", need not be considered as it is enough for our purposes to use only the former. Now the words of the section are "shall be disqualified for being chosen. " The choice is made by a series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen. The disqualification alleged in this case is that Chaturbhuj Jasani had an interest in a contract, or a series of contracts, for the supply of goods to the Central Government. He had this interest because the contracts were made with Moolji Sicka & Company a firm of which Jasani is one of the partners. The fact of partnership is admitted but the other facts are denied. We have therefore to see whether any contract for the supply of goods to Government by Moolji Sicka & Company existed at any 'time on or between the relevant dates. Exhibit C is a tabular statement which sets out the dealings between the parties during certain months. It is accepted as correct by both sides. The following extracts from this statement show that Moolji Sicka & Company had an interest in a series of contracts for the sale of bidis to the Canteen Stores at and between the relevant dates. (1) ; 822 Date of order Date of invoice Price of Date of by and goods pay Canteen Stores Despatch. supplied.ment. 8 10 1951 18 10 1951Rs. 1,684 13 919 12 1951. 8 10 195119 10 19513,373 9 3do 17 8;195126 10 195112,602 8 0do 12 9 195126 10 195111,426 14 6do 11 10 195126 10 19518,411 14 0do 21 10 195130 11 195110,125, 2 9do 9 8 195129 8 195125,812 12 024 12 1951 8 10 195118 10 19514,793 4 9do 14 11 195122 11 1951:1,887 9 95 I .1952 17 10 19518 11 195116,534 2 022 1 1952 12 11 195120 11 19514,205 15 0do 13 12 195110 1 195213,97,079 7 912. 2 1952 14 1 195222 1 19521,691 11 9do 21 12 195110 1 195216,983 8 018 2 1952 12 11 195122 11 19518,411 14 013 3 1952 9 1 195216 1 19525,888 4 9do 23 1 195228 1 19528,411 ,14 020 3 1952 This statement reveals that various contracts aggregating Rs. 15,39,345 6 0 less some small sums for railway freight, were outstanding at one time or another between the two crucial dates and that payments in discharge of these liabilities were made at various dates between 15th November, 1951, and 20th March, 1952. It also shows that orders were placed and accepted for goods priced at Rs. 84,659 14 3 before 15th November, 1951, and that payment was not made till after that date. Therefore, on 15th November, 1951, goods worth Rs. 84,659 14 3 had still to be paid for. Then between 15th November, 1951, and 14th. February, 1952, further orders for goods valued at Rs. 39,695 8 9 were placed And accepted and they were not paid for till after 14th February, 1952. It was argued that there is nothing to show that. the goods were, not supplied before 15th November, 1951, and before 14th February, 1952. It was said on behalf of 'the appellant that these are the only dates which are crucial, so if Moolji Sicka. & Company hid. fully 823 executed their part of the contracts before the two crucial dates the disqualification would not apply. That raises these questions: (1) Does a person who has fully executed his part of a contract continue to have an interest in it till the goods are paid for ?; and (2) were these contracts fully executed so far as Moolji Sicka & Company 's part was concerned? The parties are not agreed about this, so it will now be necessary to examine their letters in detail to determine the terms of the various contracts. The correspondence discloses that the Canteen Stores and Moolji Sicka & Company dealt with each other from time to time under various arrangements which they called " systems. The earliest letter we have about the transactions between these parties is one dated 30th March, 1951. It shows that the "system" which they called the " Direct Supply System " was in use at that time. The details of the " system " are set out in an order dated 17th April, 1951. Under it Moolji Sicka & Company had to send supplies of bidis direct to the Canteen Stores contractors as and when ordered. The value of the goods so supplied was to be recovered from the contractors direct and the Canteen Stores were to be informed of the sales and were to be paid a certain commission. This led to some friction and in their letter of 30th March, 1951, the Canteen Stores complain that information about some of the sales to the contractors had been suppressed with the result that the Canteen Stores lost their commission. Moolji Sicka & Company replied to this on 24th April, 1951, and suggested a slight change in the system, namely that all orders for the goods should in future be placed through the Canteen Stores and that there should be no dealings with the contractors direct except to supply them with the goods ordered by the Canteen Stores; then, ' they said, there would be no complaint about their having been kept in the dark. This appears to have been agreed to because such of the subsequent order& as are on record were placed by the Canteen Stores. 824 The order dated 17th April, 1951, to which we have referred above is a sample. This was considered unsatisfactory and it was felt that a change was called for. Moolji Sicka & Company 's letter of 24th April, 1951, shows that their complaint was that the Canteen Stores did not keep a sufficient stock of bidis on hand. They said " We feel that you can stock more of our bidis. And that will mean an added profit to you; since the rebate you get on supplies made under the Direct Supply System is Rs. 4 only, whereas on supplies made to you we have now offered a much higher rebate. . . We have therefore to request you to kindly 8stock more of our bidis. " In view of this, two representatives of Moolji Sicka & Company, met the Chairman of the Board of Administration, who was in charge of the Canteen Stores Department, on 10th July, 1951. They reached certain tentative conclusions which were reduced to writing by the Canteen Stores on 11th July, 1951. Their letter of that date shows that the Canteen Stores proposed to abolish the Direct Supply System in the near future but so far as Moolji Sicka & Company were. concerned they said that the system could be abolished. at once (" forthwith " is the word used) provided Moolji Sicka & Company would agree to supply bidis for the Bombay, Calcutta and Delhi Depots of the Canteen Stores under a new system which they called the " Consignment System ". Under this the Canteen Stores were to pay as they sold. But the new system was intended only for the Bombay, Calcutta and Delhi Depots of the Canteen Stores. The letter goes on to say that for the Pathankot and Srinagar Depots the supplies would have to be made on the " Outright Purchase Basis ". These proposals were embodied under the heading " Future Business RelationsThen there was a provision for what was called theTransition Period ". That said that Untilstocks could be placed in our depots, it was agreed that you would supply your bidis direct against our orders and on such supplies you would allow us rebate as at present. 825 These proposals were sent to Moolji Sicka & Company for confirmation. It will be seen that the ' letter makes four proposals: (1)That so far as Moolji Sicka & Company were concerned, " The Direct Supply System " should be terminated at once though, so far as other manufacturers were concerned, it should continue in force for some time longer; (2)That in its place the Calcutta, Bombay and Delhi Depots were to be supplied under a new system called the " Consignment System "; (3)That the Pathankot and Srinagar Depots were to be supplied under another new system called the Outright Purchase System "; (4)That during the "transition period" the "Direct Supply System" was to continue in operation " as at present " even with Moolji Sicka and Company. Moolji Sicka & Company replied on 16th July, 1951, saying that they were prepared to accept these terms provided the Canteen Stores confirmed certain modificatioins which Moolji Sicka & Company proposed. They were as follows: (1)Regarding the " Transition Period " they said" "We are pleased to note that you will soon be abolishing the Direct Supply System. But it should be applied to all suppliers at the same time. Till then we should be allowed to supply any orders received from the Canteen Contractors. You should inform us of the date on which Direct Supply System will be discontinued. (2) Regarding the new proposals under the heading Future Business Relations Moolji Sicka & Company said "Goods sent to your depot on consignment basis must be either returned to us or paid for fully within three months of the date of supply. We understand that the system. of supplying goods on consignment basis will be discontinued in about six months ' time. " 107 826 (3) They said " And for this purpose we have agreed to offer you Rs. 7,500 in full and final settlement of all your claims to date and upon the understanding of your acceptance of the terms for future business. They concluded " Upon receiving your confirmation we shall instruct our Bombay office to send you the cheque for the amount stated above. " The Rs. 7,500 was what the Canteen Stores claimed from Moolji Sicka & Company as compensation for breach of the agreement under which Moolji Sicka & Company had agreed not to sell to the Canteen Contractors without paying the Canteen Stores a commission. Neither side was able to produce exact figures but this was the estimate made by the Canteen Stores of the loss suffered by them by reason of that breach. It will be seen that the proposal about the " Consignment System " which the Canteen Stores made was that they would pay Moolji Sicka & Company only when they sold the stocks with which Moolji Sicka & Company were to supply them for stocking their depots at Calcutta, Bombay and Delhi. Moolji Sicka & Company were not satisfied with this and said that the Canteen Stores must either return or pay for all stocks supplied, within three months from the date of supply. The Canteen Stores replied on 19th July, 1951, as follows: (1) They accepted Moolji Sicka & Company 's suggestion that when the Direct Supply System was abolished the abolition would apply to all suppliers of bidis. (2) As regards the " Consignment Account System they did not turn down the proposals but observed that they were thinking of doing away with that too in favour of the " Outright Purchase System" and warned Moolji Sicka & Company that in view of that it might not be necessary to place any of Moolji Sicka & Company 's stocks in their depots. 827 (3) They wanted a six months ' guarantee period in place of three months. The letter concludes "Although under the system of provisioning,adopted by us, and as explained to you during our discussions, it may not be that we shall at any time have any stocks surplus to our requirements or stocks which have not been disposed of within the guarantee period, but should there be any solitary occasions will you please confirm that you will replace Such stock with fresh stock without any cost to us? We await your agreement by return. " They also said, "We now await your cheque for Rs. 7,500. Moolji Sicka & Company replied on 26th July, 1951, and commenced by saying " We agree to all you have said in page one of your letter under reply. " Regarding the guarantee they said they could not agree to six months but would agree to three provided the guarantee was limited to goods found to be defective because of faults in manufacture. They concluded "We have also to pay you Rs. 7,500 as per our ' letter, dated 16th July, 1951," and asked how the Canteen Stores would like the payment to be made. The Canteen Stores replied on 31st July, 1951, and explained what they meant by the " guarantee period ". Bidis deteriorate by keeping, so the idea was to have a system under which they could be returned within six months to prevent their deterioration. They explain that this is in the interests of the 'manufacturer because (1) it will not bring their brands into disrepute, for that would, be the inevitable result if stale bidis which had deteriorated were sold in the canteens and (2) if the period is made too short, then "the goods will not stay in our depots and in the stalls of our canteens and contractors long enough to sell and hence our depots will always be,, anxious to 828 return these stocks. The result will be obvious. Your sales will be, lower. They continue " We therefore consider that the period of six months should be the least before the expiry of which goods may be taken back by you and replaced. . . The period of three months within which you expect us to return your stocks, should we find them not moving, will be too short. " They conclude by saying that they hope Moolji Sicka & Company will agree to the six months. Now it will be seen that all this correspondence related to the proposals about the " Consignment System " which were first mooted on 11th July, 1951. Moolji Sicka & Company complained on 24th April, 1951, that the Canteen Stores were not keeping large enough stocks of their bidis and they asked the Canteen Stores to stop the Direct Supply System and purchase stocks direct. The Canteen Stores were naturally reluctant to keep large stocks on hand because bidis 'deteriorate and become unsaleable in course of time. Therefore they proposed the " pay as we sell " system, that is, they would keep stocks of bidis and pay for whatever they sold. But the problem of unsold stocks deteriorating still remained. Who was to be responsible? The obvious answer was that the manufacturers should take back the unsold stocks before they were too far gone and in their place send fresh consignments for sale on the " pay as we sell " basis. We say "obvious" because the manufacturers could use the stale tobacco by re curing and blending it, or could use it for other purposes provided it was not too far gone. The proposal therefore was that the, Canteen Stores were to keep stocks of Moolji Sicka & Company 's bidis in their depots and canteens, pay for what they sold and return all unsold stocks within six months. Moolji Sicka & Company were then to replace them with fresh stocks which would be paid for when sold. This was agreed to in the main but the point at which they were at issue was the six months. Mooli Sicka & Company proposed three months while the 829 Canteen Stores wanted six months. We think 'the argument used in the letter of 31st July, 1951, that " the result will be obvious. Your sales will be lower " can only have reference to an arrangement of this kind, otherwise no question of the sales being lower could arise. In the case of an outright sale, the sale would be complete when the order was executed, and except for bidis found to be defective due to manufacture Moolji Sicka & Company would have no further concern with them. The sentences the goods may be taken back by you and replaced and " should we find them not moving " can only refer to these proposals about the "Consignment System " In any case, it certainly includes this system. Moolji Sicka & Company 's reply is dated 9th August, 1951. They say "We are in receipt of your letter No. 7B/29/ 17 1299, dated 31st July, 1951, and are pleased to extend the guarantee period from three to six months. We are sure this will now enable you to keep adequate stocks of our bidis. Awaiting your esteemed orders. " This is an acceptance of the interpretation of the " guarantee period " as given by the Canteen Stores in their letter of 31st July, 1951. The words "now" and "adequate" relate to the dispute which started on 24th April, 1951, when Moolji Sicka & Company complained that the Canteen Stores were not keeping adequate.stocks of their bidis in their depots. The ,subsequent correspondence was aimed at finding out ways and means to meet this objection and at the same time satisfy both sides. It all ended by Moolji Sicka & Company accepting the terms set out in the letter of 31st July, 1951. We are accordingly of opinion, that Moolji Sick& & Company accepted the " Consignment System " on 9th August, 1951. That imported a "pay as we sell" arrangement with an obligation to take back stocks unsold within six months and replace them with fresh stocks which would be paid for when sold. in the "transition period " the Direct Supply System was also to continue. That meant that there would be two systems in force for a time in certain depots: the "Consignment 830 System " regarding stocks ordered for the stocking up of the Calcutta, Bombay and Delhi depots of the Canteen Stores and the " Direct Supply System " till such time as the depots were stocked. The third system of " Outright Purchase " was limited for the time being to the Pathankot and Srinagar depots. Both the "Direct Supply" and the "Consignment" systems were abolished together on list November, 1951 (see the Canteen Stores ' letter dated 24th November, 1951). But the obligation to take back unsold stocks within the six months ' period continued to attach to all contracts for consignment to the Calcutta, Bombay and Delhi depots made between 9th August, 1951, and 31st October, 1951. The tabular statement shows that the following contracts for consignment to one or other of these three depots were made during that period. The date of the invoice is the date of the execution of the order and thus of the acceptance of the proposal contained in the order. Date of Invoice Depot Price of goodsd date & despatch supplied payment. 1 10 1951 Bombay. Rs. 5,056 2 0 15 11 1951 13 10 1951 do. 13,536 4, 6 do 18 10 1951 Delhi 1,684 13 919 12 1951 19 10 1951 Calcutta 3,373 9 3 do 18 10 1951 Bombay 4,793 4 924 12 1951 The value of these orders comes to Rs. 28,444 2 3. The obligations under these several contracts continued from 1st April, 1952 to 18th April, 1952. It was argued that assuming that to be the case then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under the guarantee clause. We are unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions, each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each 831 condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacements. But even if all that be disregarded and it be assumed that Moolji Sicka & Company had fully performed their part of the contract by placing the goods on rails before 15th November, 1951, we are of opinion that the contracts were not at an end until the vendors were paid and the contracts were fully discharged. The words of the sections are "if. he has any share or interest in a contract for the supply of goods to. . the appropriate Government. " There can be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of the goods. Whether they were contracts for the supply of goods to the Government is a matter which we shall deal with presently. But we have no doubt that they were contracts for the supply of goods. The question then is, does a contract for the supply of goods terminate when the goods are supplied or does it continue in being till payment is made and the contract is fully discharged by performance on both sides 9 We are of opinion that it continues in being till it is fully discharged by performance on both sides. It was contended, on the strength. of certain observations in some English cases, that the moment a contract is fully executed on one side and all that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes its place. With the utmost respect we are unable to agree. There is always a possibility of the liability being disputed before actual payment is made and the vendor may 832 have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract. It is true the contractor might abandon the contract and sue on quantum meruit but if the other side contested and relied on the terms of the contract, the decision would have to rest on that basis. In any case, as we are not bound by the dicta and authority of those cases, even assuming they go that far, we prefer to hold that a contract continues in being till it is fully discharged by both sides: see the observations of Gibson J. in O 'Carroll vs Hasting8(1). To use the language of O 'Brien L.C.J. in that case at page 599, these contracts have not been "merged, abandoned, rescinded, extinguished or satisfied; and if any demur was made as to payment before payment was actually made, he could have sued upon the contract specially; or if he sued for work done at the request of the defendants the contract would have been. a part of his necessary proofs" We agree with the learned Lord Chief Justice in thinking that "it is far fetched to contend that a man is not concerned in the contract or security by which he can enforce payment. " The same view was taken, by Costello J. in an Indian case in Satyendrakumar Das vs Chairman of the Municipal Commissioners8 of Dacca(2). Counsel for the appellant relied strongly on certain English cases. They were all examined and distinguished in the above decisions. They either turned on special facts or on the words of a statute which are not the same as ours. The leading case appears to be Royse vs Birley(3 ). But the decision turned on the language of the English statute which the learned Judges construed to mean that the contract must be executory on the contractor 's part before the English Act can apply. Tranton vs Astor(4) follows the earlier ruling. The statute with which Darling J. was dealing (1) at 608. (2) I.L.R. from p. 193 onwards. (3) (4) 833 in Cox vs Truscott(1) is nearer the language of our Act. He hesitatingly proceeded on the debtor and creditor basis. We need not go further than this because, as we have said, if these decisions cannot be distinguished, then we must with respect differ. We hold therefore that these contracts which Moolji Sicka & Company had entered into with the Government subsisted on 15th November, 1951, and on 14th February, 1952, and that as Chatturbhuj Jasani, the appellant, was a partner in the firm he also had both a share and an interest in them on the crucial dates. That brings us to article 299 (1) of the Constitution. It states: "All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President . and all such contracts. made in the exercise of that power shall be executed on behalf of the President . by such persons and in such manner as he may direct or authorise." The contention was that as these contracts were not expressed to be made by the President they are void. Cages were cited tons under the Government of India Acts of 1919 and 1935. Certain sections in these Acts were said to be similar to article 299. We do not think that they are, but in any case the rulings ,under section 30 (2) of the Government of India Act, 1915, as amended by the Government of India Act of 1919 disclose a difference of opinion. Thus, Krihsnaji Nilkant vs Secrtary of State(2) ruled that contracts with the Secretary of State must be by a deed executed on behalf of the Secretary of State for India and in his name. They cannot be made by correspondence or orally. Secretary of State vs Bhagwandas(3) and Devi Prasad Sri Krihhna Prasad Ltd. vs Secretary of State(1) held they could be made by correspondence. Secretary of State V. O.T. Sarin & Company(1) took an intermediate vie,* and held that though contracts in the prescribed form could not be enforced by either side, (1) (4) A.I.R. 1941 All. 377. (2) A.I.R. 1937 Bom. 449,451. (5) I.L.R. 11 Lah. (3) A.I.R. 1938 Bom. 108 834 a claim for compensation under section 70 of the Indian Contract Act would lie. Province of Bengal vs section L. Puri(1) took a strict view and held that even letters headed "Government of India" did not comply with, the rule in section 175 (3) of the Government of India Act, 1935. The Federal Court was called upon to construe section 40 (1) of the Ninth Schedule of the Government of India Act, 1935. It held that the directions in it were only directory and not mandatory, and the same view was taken of article 166 (1) of the present Constitution by this court in Dattatreya Moreshwar Pangarkar vs State of Bombay(2). None of these provisions is quite the same as article 299. For example, in article 166, as also in section 40(1) of the Government of India Act of 1935, there is a clause which says that "orders" and "instruments" and "other proceedings" "Made" and "expressed" in the name of the Governor or Governor General in Council and "authenticated" in the manner prescribed shall not be, called in question on the ground that it is not an "order" or "instrument" etc. 'made" or "executed" by the Governor or Governor General in Council. It was held that the provisions had to be read as a whole and when that was done it became evident that the intention of the legislature and the Constitution was to dispense with proof of the due "making" and "execution" when the form prescribed was followed but not to invalidate orders and instruments otherwise valid. Article 299(1) does not contain a similar clause, so we are unable to apply the same reasoning here. In our opinion, this is a type of contract to which section 236(3) of the Indian Contract Act would apply. This view obviates the inconvenience and injustice to innocent persons which the Federal Court felt in J. K. Gas Plant Manufacturing Co., Ltd. vs The King. Emperor (3)and at the same time protects Government. We feel that some reasonable meaning must (1) (2) ; at 632, 633. (3) at 156, 157, 835 be attached to article 299(1). We do not think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility. If not, its interests are safeguarded as we think the Constitution intended that they should be. In the present case, there can be no doubt that the Chairman of the Board of Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned. There can equally be no doubt that both sides acted in the belief and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops. The only flaw is that the contracts were not in proper form and so, because of this purely technical defect, the principal could not have been sued. But that is just the kind of case that section 230(3) of the Indian Contract Act is designed to meet. It would, in our opinion, be disastrous,to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effect ed by a ponderous legal document couched in a particular form. it may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means "that the principal cannot be sued ; but we take it there would 836 be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess: see The Collector of Masulipatam vs Cavaly Venkata Narrainapah(1). We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been,sued on them by reason of article 299(1). Now section 7(d) of the Representation of the People Act does not require that the contracts at which it strikes should be enforceable against the Government; all it requires. is that the contracts should be for the supply of goods to the Government. The contracts in question are just that and so are hit by the section. The purpose of the Act is to maintain the purity of the legislatures and to avoid a conflict between duty and interest. It is obvious that the temptation to place interest before duty is just as great when there is likely to be some difficulty in recovering the money from Government (for example, if Government were to choose not to ratify the contracts) as when there is none. In our opinion, the Election Tribunal was right in disqualifying Chatturbhuj Jasani. We now turn to Gangaram Thaware. He stood as a Scheduled Caste candidate and his nomination was rejected on the ground that he did not belong to the Scheduled Caste in question, namely the Mahars. The only question here is whether he ceased to be a Mahar when he joined the Mahanubhava Panth. This gave rise to much controversy and we have been presented with many conflicting opinions. Thus, the Imperial Gazetteer of India, Voluime XXI, page 3012 states that the founder of the sect repudiated the caste system as also a multiplicity of God7f3 and insisted on the monotheistic principle. At the same time it ,says that he taught his disciples to eat with none but (1) 8 M.I.A. 529 at 554. 837 the initiated and to break off all former ties of caste and religion. Russell in Volume IV of his Tribes and Castes of the Central Provinces says that the Manbhaos (Mahanubhau) is a religious sect,or order which has " now" (1911) become a caste. The Central Provinces Ethnographic Survey, Volume IX, says the same thing at page 107 and at page 110 and adds that members of the sect often act as priests or gurus to the Mahars. As against this, the Election Tribunal has quoted a number of opinions which tend the other way. Thus, V. B. Kolte says at page 247 of his Shri Chandradhar Charitra that no serious attempt has been made by them to abolish caste, and Ketkar says at page 76, Volume XVIII of the 1926 edition of his Maharashtriya Dhnyankosh that there are two divisions among the Mahanubhavas, one of Sanyasig who renounce the world and the other a secular one. The latter observe the caste system and follow the rituals of their own caste and carry on social contacts with their caste people and marry among them. Similar views are expressed by Bal Krishna Mohanubhav Shastri. But we are not really concerned 'with their theology. What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds. Conversion brings many complexities in its train, for it imports a complex composite composed of 'many ingredients. Religious beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of family and social ties and the casting off or retention of old customs and observances. The exact proportions of the mixture vary from person to person. At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the conversion only nominal. There is no clear out dividing line and it is not a matter which can be viewed from only one angle. 838 Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or ex communicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter. The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters, which concern the political rights of the old body when neither the dld body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order. In our opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu convert to Christianity apply here: not, of course, the details of the decision but the broad underlying principle. In Abraham vs Abraham(1), their Lordships say: " He " (the convert) " may renounce the old law by which he was bound, as he has renounced his old religion, or, if he thinks fit, he may abide by the old law, notwithstanding he has renounced the old religion. " The only modification here is that it is not only his choice which must be taken into account but also the views of the body whose religious tenets he has (1) 9 M.I.A. 199 at 242, 243, and 244. 839 renounced, because here the right we are considering is the right of the old body, the right conferred on it as a special privilege to send a member of its own fold to Parliament. But with that modification the observations which follow. apply in their broad outline. "The profession of Christianity releases the convert from the trammels of the Hindu law, but it does not of necessity involve any change of the rights or relations of the ' convert in matters with which Christianity has no concern, such as his rights and interests in, and his powers over, property. The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which as to these matters has adopted and acted. upon some particular law, or by having himself observed some family usage or custom; and nothing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which he has adopted, or the rules which he has observed. " Now what are the facts here ? Whatever the views of the founder of this sect may have been about caste, it is evident that there has been no rigid adherence to them among his followers in later years. They have either changed their views or have not been able to keep a tight enough control over converts who join them and yet choose to retain their old caste customs and ties. We need not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. 840 Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar 'convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) are Mahars. There is no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra (R. W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter dinings and inter marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion. Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry. When pinned down in cross exami nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is 841 another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did not arise as a man lost his caste on conversion. On this evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the convert 's caste status, at any rate,, so far as the householder section of the Panth is concerned. So much for the caste consciousness on both sides. Now considering Gangaram Thaware the individual we find that he was twice married and on both occasions to Mahar girls who were not Mahanubhavas at the time of their respective marriages. His first wife was never converted. His second wife was converted after her marriage. The witnesses say ' he was still regarded as a Mahar after his conversion and always looked upon himself as a Mahar and identified himself with the caste. No one on the other side denies this. As we have shown, they took shelter behind generalities and evaded the issue by saying that in that case he cannot be a real Mahanubhava. If he was not, then he must have continued a Mahar even on their view. The evidence also discloses that Gangaram Thaware led Mahar agitations and processions as a member and leader of the Mahar caste. In 1936 he contested the election for the Provincial Assembly as a Mahar candidate. No one appears to have questioned his competency. And lastly, he declared himself to be a Mahar in the verification to his nomination form in the present election as also in an affidavit filed before the Returning Officer who rejected his nomination. The 'Returning Officer described that as a "cleverly, worded document. " We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham vs Abraham(1), we hold that despite his (1) 9 M.I.A. 199. 109 842 conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us. We therefore uphold the decision of the Tribunal and dismiss the appeal with costs. Appeal dismissed.

Held, that the rule of English law that a civil servant cannot ' maintain a suit against the State or against the Crown for the 787 recovery of arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India. Section 240 of the Government of India Act, 1935, places restrictions and limitations on the exercise of the pleasure of the Crown and these restrictions must be given effect to. They are imperative and mandatory. Therefore whenever there is a breach of restrictions imposed by the statute ' by the Government or the Crown the matter is justiciable and the aggrieved party is entitled to suitable relief at the hands of the court. Government servants are entitled to relief like any other person under the ordinary law, and that relief must be regulated by the Code of Civil Procedure. Punjab Province vs Pandit Tara Chand ([1947] F.C.R. 89) approved. High Commissioner OF India and Pakistan vs I.M. Lall ([1948] L.R. 75 I.A. 225) distinguished.

iminal Appeal No. 80 of 1963. Appeals by special leave from the judgment and order dated March 26, 1963, of the Punjab High Court in Criminal Mis. No. 186 of 1963. Criminal Appeals Nos. 86 to 93 of 1963. Appeal by special leave from the judgment and order dated February 21, 1963 of the Punjab High Court in Criminal Misc. No. 155, 102, 108, 105, 104, 101 and 107 of 1963 and judgment and order dated February 1963 of the same High Court in Criminal Misc. No. 99 of 1963. Criminal Appeals Nos. 109 to 111 of 1963. Appeals from the judgment and order dated May 31, 1963 of the Maharashtra High Court in Criminal Applications Nos. 217, 218 and 114 of 1963. Criminal Appeals Nos. 114 to 126 of 1963. Appeals from the judgment and order dated May 31, 1963 of the Maharashtra High Court in Criminal Applications Nos. 271, 265, 270, 267, 219, 220, 269, 264, 263, 266 and 273 of 1963. Criminal Appeal No. 65 of 1963. Appeal by special leave from the judgment and order dated April 3, 1963, of the Maharashtra High Court (Nagpur Bench) in Criminal Application No. 11 of 1963. M. C. Setalvad, N. C. Chatterjee, A. V. Viswanatha Sastri, section Mohan Kumaramangalam, C. B. Agarwala, Sarjoo Prasad, D. R. Prem, A. section R. Chari, section G. Patwardhan, W. section Barlingay, Etharajalu Naidu, Veda Vyas, Raghubir Singh, K. T . Sule, Asif Ansari, Hardayal Hardy, Bawa Shiv Charan Singh, section N. Mukherjee, Durgabhai Deshmukh, M. section K. Sastri, G. B. Rai, Ganpat Rai, D. N. Mukherjee, A. N. Sinha, Udayaratnam, K. V. Raghnatha Reddy, Janardhan Sharma, K. R. Choudhury, B. P. Maheshwari, I. B. Goyal, I. K. Nag, Y. Kumar, Hardev Singh,, M. I. Khowaja, section section Shukla, K. K. lain, Bishambar Lal Khanna, section Murthi, P. K. Chakravarti, P. K. Chatterjee, A. George Pudussary, Girish Chandra Mathur, Udai Pratap 804 Singh,Yogeshwar Prasad,M. R. Krishna Pillai, B. D.Sharma, K. P. Gupta, T. section Venkataraman, M. Veerappa,T.R.Ramachandra, R. C. Prasad, Santosh Chatterjee,N.N. Keshwani, K. Jayaram, R. Ganapathy Iyer, Thyagarajan, R. Vasudeva Pillai, R. V. section Mani, section C. Majumdar, Shaukat Hussain, K. Baldev Mehta, Mohan Behari Lal, Sadhu Singh, V. G. Row, section N. Kakkar, section K. Kapur, Parthasarathy, Shanti Swarup Bhatnagar, K. L. Mehta, Satish Mehta, Brij Kishore Prasad, Ali Ahmad, V. A. Syeid Muhammad, Narayanarayan Gooptu, Tapesh Roy, Madhan Bhaittia, Ajit Singh Banis and Brij Raj Kishore, J. B. Dada chanji O. C. Mathur, Ravinder Narain, D. P. Singh, M. K. Ramamurthi, R. K. Garg, and section C. Agarwal, for the appellant (in Cr. A. No. 80 of 1963). C. K. Daphtary, Attorney General, L. K. Kaushal, Deputy Advocate General, Punjab, D. D. Chaudhuri, R. N. Sachthey and R. H. Dhebar, for the respondent (in Cr. A. No. 80 of 1963). A. section R. Chari, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal for the appellant (in Cr. A. No. 86 of 1963). Hardev Singh and Y. Kumar, for the appellants (in Cr. A. Nos. 87 to 93 of 1963). L. D. Kaushal, Deputy Advocate General, Punjab, D.D.Chaudhri, R. N. Sachthey and R. H. Dhebar, for the respondent (in Cr. A. Nos. 86 to 93 of 1963). A. section R. Chari, 0. P. Malhotra, B. Parthasarathy, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant (in Cr. A. No. 65 of 1963). N. C. Chatterjee, and Janardan Sharma, for the appellant (in Cr. A. No. 109 of 1963). K. T. Sule, Jitendra Sharma and Janardan Sharma, for the appellants (in Cr. A. Nos. 111 and 114 to 126 of 1963) and for the Detenue Interveners Nos. 12, 14, 16, 18 and 37). C. K. Daphtary, Attorney General, N. section Bindra, B. R. G. K. Achar, R. N. Sachthey and R. H. Dhebar, for the respondents (in Cr. A. No. 65, 109 to 111 and 114 to 126/1963). C. K. Daphtary, Attorney General, H. N. Sanyal, Solicitor General, section V. Gupte, Additional Solicitor General, R.N.Sachthey and R. H. Dhebar, for intervener No. 1 Naunit Lal, for intervener No. 1. B. Sen and P. K. Bose, for intervener No. 3. section P. Varma, for intervener No. 4. M. Adhikari, Advocate General, Madhya Pradesh and I.N.Shroff, for intervener No. 5. A. Ranganadham Chetty and A. F. Rangam, for intervener No. 6. G. C. Kasliwal, Advocate General, Rajasthan, R. H.Dhebar, R. N. Sachthey, for intervener No. 7. C. P. Lal, for intervener No. 8. N. C. Chatterjee, Narayan Gooptu, Tapesh Roy, D. P.Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal, for intervener No. 69. A. section R. Chari, Narayan Gooptu, Tapesh Roy, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal, for intervener No. 70. A. section Peerbhoy A. Desai, M. Rajagopalan and K. R. Choudhari, for interveners Nos. 79 and 80. September 2, 1963. The judgment of P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, M. Hidayatullah,B. Gajendragadkar, J. K. Subba Rao, J. delivered a dissenting Opinion. GAJENDRAGADKAR, J. This group of 26 criminal appeals has been placed for hearing and disposal before a special Constitutional Bench, because the appeals constituting the group raise two common important questions of Constitutional law. Nine of these appeals have been preferred against the decisions of the Punjab High Court, whereas seventeen have been preferred against the decisions of the Bombay High Court. All the appellants are detenues who have been detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(1)(b) of the Defence of India Rules (hereinafter called the Rules) made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India Ordinance, 1962 (No. 4 of 1962) (hereinafter called the Ordinance). They applied to the Punjab and the Bombay High Courts respectively under section 491 (1) (b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained. Their contention was that section 3(2)(15)(1) and section 40 of the Defence 806 of India Act, 1962 (No. 51 of 1962) (hereinafter called 'the Act ') and Rule 36(1)(b) under which they have been detained are constitutionally invalid, because they contravene their fundamental rights under Articles 14, 21 and 22(4), (5) & (7) of the Constitution, and so, they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty. These petitions have been dismissed on the ground that the Presidential Order which has been issued under article 359 of the Constitution creates a bar which precludes them from moving the High Court under section 491 (1) (b) Cr. That is how the decisions of the two High Courts under appeal raise two common questions of considerable importance. The first question is : what is the true scope and effect of the Presidential Order which has been issued under article 359 (1) ? The answer to this question would depend upon a fair and reasonable construction of article 359(1) itself. The second question is : does the bar created by the Presidential Order issued under article 359(1) operate in respect of applications made by detenues under section 491 (1) (b) of the Code? The answer to this question would depend upon the determination of the true character of the proceedings which the detenues have taken under section 491(1)(b), considered in the light of the effect of the Presidential Order issued under article 359(1). Both the Punjab and the Bombay High Courts have held against the appellants. Meanwhile, when similar petitions were made before the Allahabad High Court in Criminal Cases Nos. 1618, 1759 and 1872 of 1963 Sher Singh Negi vs District Magistrate, Kanpur & Anr., the said High Court took a contrary view and directed the release of the detenues who had moved it under section 491 (1) (b) of the Code. It is because the questions raised are important and the answers given by the different High Courts have disclosed a sharp difference of opinion that a Special Bench has been constituted to deal with these appeals. If the two principal questions are answered in favour of the detenues, a third question would arise and that relates to the validity of the impugned sections of the Act and the relevant statutory Rules. On the 8th September, 1962, the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of India. That is why on 807 the 26th October, 1962, the President issued a Proclamation under article 352 of the Constitution. This Proclamation declared, that a grave emergency existed whereby the security of India was threatened by external aggression. On the same day, the Ordinance was promulgated by the President. This Ordinance was amended by Ordinance No. 6 of 1962 promulgated on November 3, 1962. On this day, the President issued the Order under article 359(1), suspending the rights of citizens to move any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution for the period during which the proclamation of emergency issued on October 26, 1962 would be in force. On November 6, 1962, the rules framed by the Central Government were published. Then followed an amendment of the Presidential Order on November 11 1962. By this amendment, for the words and figures "article 21" the words and figures "articles 14 and 21" were substituted. On December, 6, 1962, Rule 30 as originally framed was amended and Rule 30 A added. Last came the Act on December 12 1962. Section 48(1) of the Act has provided for the repeal of the Ordinances Nos. 4 and 6 of 1962. Section 48(2) provides that notwithstanding such repeal, any rules made, anything done or any action taken under the aforesaid two Ordinances shall be deemed to have been made, done or taken under this Act as if this Act had commenced on October 26, 1962. That is how the Rules made under the Ordinance continued to be the Rules under the Act, and it is under Rule 30(1) (b) that the appellants have been detained. Before dealing with the points which have been raised for our decision in the present appeals, it is necessary to indicate briefly at the outset the general argument which has been urged before us by Mr. Setalvad on behalf of the appellants, and the learned Attorney General on the other side. article 359(1.) which falls to be construed, occurs in Part XVIII of the Constitution which makes emergency provisions. Whenever the security of India or any part of the territory of India is threatened whether by war or by external aggression or internal disturbance, the President may, under article 352, by proclamation, make a declaration to ,hat effect. Articles 353 to 360 which occur in this Part thus constitute emergency provisions. The learned 808 Attorney General contends that in construing an emergency provision like article 359(1), we must bear in mind the fact that the said Article is intended to deal with a situation which has posed a threat to the security of India, and so, fundamental rights guaranteed by Part III which are un doubtedly of vital importance to the democratic way of life guaranteed by the Constitution have to be regulated during an emergency, because the very security of the nation is exposed to serious jeopardy. The security of the nation on such a solemn occasion must have precedence over the liberty of the individual citizens, and so, it is urged that if article 359 is capable of two constructions, one in favour of the fundamental rights of the citizens, and the other in favour of the grant of power to the President to control those rights, the Court should lean in favour of the grant rather than in favour of the individual citizen 's fundamental rights. In support of this argument, the learned Attorney General has relied on two decisions of the House of Lords. In The King (At the Prosecution of Arthur Zadig) vs Halliday,(1) Lord Finlay L. C. who was called upon to construe Regulation 14B of the Defence of the Realm (Consolidation) Regulations Act, 1914, noticed the argument that if the Legislature had intended to interfere with personal liberty, it would have provided, as on previous occasions of national danger, for suspension of the rights of the subject as to a writ of habeas corpus, and rejected it with the observations that the Legislature bad selected another war of achieving the same purposes, probably milder as well as more effectual than those adopted on the occasion of previous wars. He added that the suggested rule as to construing penal statutes and the provision as to trial of British subjects by jury made by the Defence of the Realm Act, 1915, have no relevance in dealing with an executive measure by way of preventing a public danger. The majority decision of the House of Lords in Liversidge vs Sir John Anderson (2 ) has also been relied upon by the learned Attorney General. In that case, the House or Lords had to consider the true scope and effect of Regulation 18B of the Defence (General) Regulations, 1939. (1) ; , 270. (2) ; 809 Viscount Maugham in I rejecting the argument of the detenu that the liberty of the subject was involved and that the legislation dealing with the liberty of the subject must be construed, if possible, in favour of the subject and against the Crown, quoted with approval the language of Lord Finlay, L. C., in the case of Rex vs Halliday(1). Lord Macmillan who took the same view observed that it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time. Lord Wright and Lord Romer adopted the same approach. The Attorney General relies on the fact that this approach has also been adopted by Gwyer, C. J., in Keshav Talpade vs The King Emperor(2). In making his contention in regard to the proper approach. which the Court should adopt in construing article 359, the learned Attorney General no doubt contended that the question about the approach would arise only if two constructions are reasonably possible. According to him, article 359 was capable of only one construction and that is the construction which the High Courts of Punjab and Bombay have accepted. On the other hand, Mr. Setalvad has argued that article 359 is not an emergency legislation properly so called and on the merits, he has strongly resisted the suggestion made by the learned Attorney General that if two reasonable constructions are possible, we should adopt that which is in favour of the grant of power to the President and not in favour of the citizens fundamental rights. He has relied on the minority speech of Lord Atkin in the case of Liversidge(3) and has argued that the view taken by Lord Atkin should be preferred to the majority view which the House of Lords adopted in that case. "In this country", observed Lord Atkin, "amid the clash of arms, the laws are not silent. They maybe changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between (1) ; , 270. (3) ; (2) , 63. 52 2 section C. lndia/64 810 the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case, I have listened to arguments which might have been addressed acceptably to the Court of King 's Bench in the time of Charles I." Realising that he was in a minority, Lord Atkin added that he protested, even if he did it alone, against a strained construction put on words with the effect of giving ail uncontrolled power of imprisonment to the Minister. In this connection, Mr. Setalvad referred to two subsequent decisions of the Privy Council in which the view taken by Lord Atkin has been accepted, vide Nakkuda Ali vs M. F. De section layaratne(1), and King Emperor vs Vimalabai Deshpande(2). In the former case, Lord Radcliffe observed that indeed, it would be a very unfortunate thing if the decision of Liversidge 's case came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments, and he added that the said decision is an authority for the proposition that the words "if A. B. has reasonable cause to believe" are capable of meaning "if A. B. honestly thinks that he has reasonable cause to believe" and that in the context and attendant circumstances of Defence Regulation 18B they did in fact mean just that. In distinguishing the said decision, Lord Radcliffe made the somewhat significant comment that the elaborate consideration which the majority of the House gave to the context and circumstances before adopting that construction itself shows that there is no general principle that such words are to be so understood. Mr. Setalvad has also invited our attention to the fact that the majority decision of the House of Lords in Liversidge(3) has not received the approval from jurists, (vide Maxwell on Interpretation of Statutes p. 276, footnote 54, Craies on Statue Law p. 309, and Friedmann, Law in a Changing Society p. 37.) Like the Attorney General, Mr. Setalvad also urged that the stage to choose between two rival constructions would not arise in the present appeals because, according to him, the construction for which he contended was the only reasonable construction of article 359. (1) , 76. (2) 73 I.A. 144. (3) ; 811 In our opinion, it is unnecessary to decide the merits of the rival contentions urged before us in regard to the rule of construction and the approach which the Court should adopt in construing article 359. It is common ground that the question of approach would become relevant and material only if we are satisfied that article 359 is reasonably capable of two alternative constructions. As we will presently point out, after hearing counsel on both sides, we have reached the conclusion that article 359 is reasonably ,capable of only one construction and that is the construction which has been put on it by the Punjab and Bombay High Courts. That is why we are relieved of the task of dealing with the merits of the controversy between the parties on this point. Let us then revert to the question of construing article 359. In doing so, it may be relevant and somewhat useful to compare and contrast the provisions of Articles 358 and 359. Indeed, both Mr. Setalvad and the learned Attorney General contended that article 359 should be interpreted in the light of the background supplied by the comparative examination of the respective provisions contained in articles 358 and 359 (1) & (2). The said two Articles read as under : "358. While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the competency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect 359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period a may be specified in the order. 812 (2)Any order made as aforsesaid may extend to the whole or any part of the territory of India. " It would be noticed that as soon as a Proclamation of Emergency has been issued under article 352 and so long as it lasts, article 19 is suspended and the power of the legis latures as well as the executive is to that extent made wider. The suspension of article 19 during the pendency of the Proclamation of emergency removes the fetters created on the legislative and executive powers by article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by article 19, their validity is not open to challenge either during the 'continuance of the emergency or even thereafter. As soon as the Proclamation ceases to operate, the legislative enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted, article 19 which was suspended during the emergency is automatically revived and begins to operate. Article 358, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over In other words, the suspension of article 19 is complete during the period in question and legislative and executive action which contravenes article 19 cannot be questioned even after the emergency is over. Article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any court for enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. What the Presidential Order purports to do by virtue of the power conferred on 'the President by article 359(1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights. The rights are not expressly suspended, but the citizen is deprived of his right to move any court for their enforcement. That is one important 813 distinction between the provisions of article 358 and article 359(1). Before proceeding further, we may at this stage, in parenthesis, observe that there has been some argument before us on the question as to whether the fundamental rights specified in the Presidential Order issued under article 359 are even theoretically alive during the period specified in the said Order. The learned Attorney General has contended that the suspension of the citizens ' right to move any court for the enforcement of the said rights, in law, amounts to the suspension of the said rights themselves for the said period. We do not propose ,to decide this question in the present appeals. We will assume in favour of the appellants that the said rights arc, in theory, alive and it is on that assumption that we 'will deal with the other points raised in the present appeals. The other distinction lies in the fact that the suspension of article 19 for which article 358 provides continues so long as the Proclamation of Emergency is in operation, whereas the suspension of the right to move any court which the Presidential Order under article 359(1) brings about can last either for the period of the Proclamation or for a shorter period if so specified by the Order. It would be noticed that the Presidential Order cannot widen the authority of the legislatures or the executive; it merely suspends the rights to move any court to obtain a relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order. The inevitable consequence of this position is that as soon as the Order ceases to be operative, the infringement of the rights made either by the legislative enactment or by executive action can perhaps be challenged by, a citizen in a court of law and the same may have to be tried on the merits on the basis that the rights alleged to have been infringed were in operation even during the pendency of the Presidential Order. If at the expiration .of the Presidential Order, Parliament passes any legislation to protect executive action taken during the pendency, of the Presidential Order and afford indemnity to the executive in that behalf, the validity and the effect of such legislative action may have to be carefully scrutinised. 814 Since the object of article 359(1) is to suspend the rights of the citizens to move any court, the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the Order is in operation and may be revived when the said Order ceases to be operative; and fresh proceedings cannot be taken by a citizen after the Order has been issued, because the Order takes away the right to move any court and during the operation of the Order, the said right cannot be exercised by instituting a fresh proceeding contrary to the Order. If a fresh proceeding failing within the mischief of article 359(1) and the Presidential Order issued under it is instituted after the Order has been issued, it will have to be dismissed as being incompetent. In other words, article 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant 's fundamental rights specified in the Presidential Order have been contravened, and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order. There is yet another distinction between the provisions of article 358 and article 359(1). The suspension of Art '. 19 for which, provision is made under article 358 applies to the whole of the country, and so, covers all legislatures and also States. On the other hand, the Order issued under article 359(1) may extend to the whole of India or may be confined to any part of the territory of India. These, broadly stated, are the points of distinction between article 358 and article 359(1), What then is the true scope and effect of, article 359(1).? Mr. Setalvad contends that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order should be construed to mean the right to move the Supreme Court which has been guaranteed by article 32(1). He suggests that as one reads the relevant clause in article 359(1), one seems 815 to hear the echo of the right which has been constitu tionally guaranteed by article 32(1). His argument, therefore, is that the only right of which a citizen can be deprived under article 359(1) is the right to, move the Supreme Court, and so, his case is that even in regard to fundamental rights specified in the Presidential Order, a citizen is entitled to ask for reliefs from the High Court under article 226 because the right to move the High Court flowing from article 226 does not fall within the mischief of article 359(1). This argument attempts to interpret the words "the right to move for the enforcement of the specified rights" in isolation and without; taking into account the other words which indicate that the right to move which is specified in the said Article is the right to move "any courts$. In plain language, the words "any court" cannot mean only the Supreme Court they would necessarily take in all courts of competent jurisdiction. If the intention of the Constitution makers was to confine the operation of article 359(1) to the right to move only the Supreme Court, nothing could have been easier than to say so expressly instead of using the wider words "the right to move any court. ') To meet this difficulty,Mr. Setalvad attempted to invoke the assistance of article 32(3). article 32(3) provides that without prejudice to the: powers conferred on the Supreme Court by clauses (1) and ' (2), Parliament may by law empower any other court, to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). The argument is that the Constitution contemplates that there may be some other courts in the country on which the powers exercisable by the Supreme Court under article 32(2) may be conferred, and so, the words "any court" may have been intended to take within their purview the Supreme Court and such other courts oil whom the Supreme Courts powers under article 32(2) may have been conferred. This argument is fallacious. The scheme of article 32 clearly indicates that the right to move this Court which itself is a guaranteed fundamental right,, cannot be claimed in respect of courts falling under article 32(3). article 32(3) merely provides for the conferment of this Court 's 816 powers under article 32(2) on the courts specified in clause (3). The right guaranteed by article 32(1) cannot be claimed in respect of the said other courts. Therefore, oh a plain construction of the relevant clauses of article 32, it is impossible to accept the argument that courts under article 32(3) must be regarded as having the same status as the Supreme Court and as such the right to move them must also be held to constitute a fundamental right of the citizen in respect of such courts. Besides, it would be irrational to suggest that whereas the Constitution did not confer on the citizens a guaranteed fundamental right to move the High Court under article 226, it thought of conferring such a guaranteed fundamental right in regard to courts on which the Supreme ' Court 's powers under article 32(2) would be conferred by article 32(3). Therefore, the attempt to suggest that 'the use of the words "any Court" used in article 359(1) is justified because they take in the Supreme Court and some other courts, fails and the conclusion inevitably follows that the words "any court" must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction. In other words the words "any court" include the Supreme Court and the High Courts before which the specified rights can be enforced by the citizens. In this connection, it was attempted to be argued that the power of the High Court to issue the writs or orders specified in article 226(1) is a discretionary power and as such, no citizen can claim to have a right to move the High Court in that behalf, and '. so, it was suggested that the proceedings contemplated by article 226(1) are outside the purview of article 359(1). In our opinion, this argument is not well founded. It is true that in issuing writs or orders under article 226(1), the High Courts have discretion to decide whether a writ or, %,order should be issued as claimed by the petitioner; but the discretion conferred on the High Courts in that behalf has to be judicially exer cised, and having regard to the scheme of article 226(1), it cannot be said that a citizen. has no right to move the High Court for invoking its jurisdiction under article 226(1); article 226(1) confers wide powers on the High Courts to issue the specified writs, or other appropriate orders or directions; having regard to the nature of the said powers, 817 and the object intended to be achieved by their conferment there can be little doubt that in dealing with applications made before them the High Courts have to exercise their discretion in a judicial manner and in accordance with principles which are well settled in that behalf. The High Courts cannot capriciously or unreasonably refuse to en tertain the said applications and to deal with them on the merits on the sole ground that the exercise of their juris diction under article 226(1) is discretionary. Therefore, it is idle to suggest that the proceedings taken by citizens under article 226(1) are outside the purview of article 359(1). We must accordingly hold that the right to move any court under article 359(1) refers to the right to move any court of competent jurisdiction. The next question to consider is, what is the nature of the proceedings which are barred by the Presidential Order issued under article 359(1) ? They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened, that proceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed, as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified 'fundamental rights, that is a proceeding which falls under article 359(1) and would, therefore, be hit by the Presidential Order issued under the said Article. The sweep ,of article 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the 818 said specified fundamental rights. We have already seen that the operation of article 359(1) and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force, or for such shorter period as may be specified in the Order. That being so, we feel no difficulty in holding that proceedings taken by a citizen either under article 32(1) or under article 226(1) are hit by article 359(1) and the Presidential Order issued under it. In this connection it would be legitimate to add that the contention of the appellants which seeks to confine the operation of article 359(1) only to the right to move the Supreme Court, would make the said provision almost meaningless. There would be no point in preventing the citizen from moving this Court, while leaving it open to him to move the High Courts for the same relief and then to come to this Court in appeal, if necessary. That takes us to the question as to whether proceedings taken by a citizen under section 491(1)(b) are affected by article 359(1) and the Presidential Order issued under it. Section 491 (1) (b), inter alia, provides that any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public custody be set at liberty. It has been strenuously urged before us that the proceedings for obtaining directions of the nature of habeas corpus which are taken under section 491 (1) (b) are outside article 359(1), and so, the Presidential Order cannot create a bar against a citizen asking the High Court to issue a writ in the nature of habeas corpus under the said provision. It is necessary to examine this argument very carefully. It is well known that after section 491 was enacted in the Code of Criminal Procedure in the present form in 1923, the right to obtain a direction in the nature of a habeas corpus became a statutory right in India. After 1923, it was not open to any party to ask for a writ of habeas corpus as a matter of common law. This question was elaborately considered by Rankin, C. J., in Girindra Nath Banerjee vs Birendra Nath Pal(1), where the learned C.J. considered the history of the development of the law on this point and came to the conclusion that the relief of a writ in the nature of a habeas corpus could be claimed (1) I.L.R. 819 after 1923 solely under Cr. P. C. The same view was taken by a full Bench of the Madras High Court in District Magistrate, Trivandrum vs K. C. Mammen Mappillal(1), where the said High Court held that it had no power to issue a writ of habeas corpus as known to the English Common Law. Its powers are confined in that respect to those conferred by section 491 of the Code of Criminal Procedure which gives authority to issue directions of the nature of habeas corpus. When this point was raised before the Privy Council in Matthen vs District Magistrate of Trivandrum (2), their Lordships observed that the reasoning of Rankin C.J. in the case of Girindra Nath Banerjee(3) was so clear and convincing that they were content to adopt it, as also to state that they were in entire agreement with the views expressed by him. The same view was expressed by the Privy Council in King Emperor vs Sibnath Banerji(4). Basing himself on these decisions, Mr. Setalvad contends that the statutory right to obtain relief under section 491 (1) (b) is a right which is separate and distinct from the Constitutional right guaranteed by the relevant Articles of the Constitution, and so, article 359(1) cannot be said to apply to the proceedings under section 491 (1) (b). In support of the same contention, Mr. Setalvad has also pressed into service the provisions of article 372 by which the existing laws are continued and he has invited our attention to the provisions of article 225 and 375 to show that the jurisdiction conferred on the High Courts by section 491 Cr. P. C. continues unless it is expressly taken away by a competent piece of legislation. In this connection, reliance has also been placed on the fact that in the past whenever the operation of section 491 was intended to be suspended, the legislature made a specific provision in that behalf and as an illustration, reference is made to section 10 of the Restriction and Detention Ordinance, 1944 (No, III of 1944). Section 10 specifically refers to section 491 of the Code and provides that no Court shall have power to make any order under the said section in respect of any order made under or having, effect under the Ordinance, or in respect of any person the subject of such an order. It is urged that the Presidential Order is con (1) I.L.R. 66 I.A. 222. (3) I.L.R. :54 Cal, 727.(4) 72 I.A. 241. 820 fined only to proceedings taken for enforcement of consti tutional rights and if it was intended that the proceedings under section 491(1)(b) should also be prohibited, it was essen tial that the said provision should, in terms, have been suspended by a competent piece of legislation. Mr. Setalvad has also emphasised the fact that the approach in dealing with a proceeding under section 491(1)(b) is different from the approach which the courts adopt in dealing with proceedings under article 226 or article 32. In invoking the Jurisdiction of the High Courts under article 226(1), or that of the Supreme Court under article 32(1), the Courts always enquire whether the party concerned is aggrieved by the order against which complaint is made. Under section 491(1)(b), however, the court can take action suo motu and that brings out the difference in the character of the two respective categories of proceedings. That, broadly stated, is the manner in which Mr. Setalvad has raised his contention that proceedings under section 491 (1) (b) are outside the purview of the Presidential Order and do not fall within the mischief of article 359(1). There is no doubt that the right to ask for a writ in the nature of habeas corpus which could once have been treated as a matter of Common Law has become a statutory right after 1923, and as we have already seen after section 491 was introduced in the Cr. P. C., it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provisions of section 491(1)(b) itself. It has, however, been suggested by the learned Attorney General that just as the common law right to obtain a writ of habeas corpus became a statutory right in 1923, a part of the said statutory .tight has now become a part of the fundamental rights guaranteed by the Constitution, and so, after the Constitution came into force, whenever a detenu claims to be released from illegal or improper ' detention, his claim can, in some cases, be sustained on the ground that illegal or improper detention affects his fundamental rights guaranteed by articles 19, or 21 or 23 as the case may be. If that be so, it would not be easy to accede to the argument that the said part of the statutory right recognised by section 491(1)(b) retains its distinctive and independent character even after 821 the Constitution came into force to such an extent that it cannot be said to form part of the fundamental rights guaranteed by the Constitution. It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under article 226(1) or article 32(1) of the Constitution, or he may take a proceeding under s.491(1)(b) of the Code. But it seems to us that despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally, the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constitution, and so, whatever is the form of the remedy adopted by the detenu, the right which he is seeking to enforce is the same. It is no doubt urged that under section 491 (1) (b) a stranger can apply for the release of a detenu improperly or illegally detained, or the Court itself can act suo motu. This argument is based on the provision that the High Court may, whenever it thinks fit, issue the appropriate direction. The learned Attorney General contended that the clause "whenever it thinks fit" postulates that some application or petition has been filed before the Court and on perusing the application or petition it appears to the Court fit to take the appropriate action. In other words, his argument is that the Court cannot take suo motu action under section 491(1)(b). He has also urged that a third person may apply, but he must show that he has been duly authorised to act on behalf of the detenu or he must at least purport to act on his behalf. We do not think it necessary to express any opinion on this part of the controversy between the parties. We are prepared to assume that the court can, in a proper case, exercise its power under section 491(1)(b) suo motu, but that, in our opinion, does not affect the decision of the question with which we are concerned. If article 359(1) and the Presidential Order issued under it govern the proceedings taken under section 491 (1) (b), the fact that the court can act suo motu will not make any difference to the legal position for the simple reason that if a party is precluded from claiming his release on the ground set out by him in his petition, the 822 Court cannot, purporting to act suo motu, pass any order inconsistent with the provisions of article 359(1) and the Presidential Order issued under it. Similarly, if the pro ceedings under section 491(1)(b) are hit by article 359(1) and the Presidential Order, the arguments based on the provisions of article 372 as well as articles 225 and 375 have no validity. The obvious and the necessary implication of the suspension of the right of the citizen to move any Court for enforcing his specified fundamental right. , is to suspend the Jurisdiction of the Court pro tanto in that behalf. Let us take a concrete case which will clearly bring. out the character of the proceedings taken by the detenues in the present cases. An application is made on behalf of the detenu that he is illegally or improperly detained. The State in its return pleads that the detention is neither illegal nor improper because it has been effected under rule 30(1) (b), and in support of this return reliance is placed on the provisions of section 3(2)(15)(i) of the Act. On receiving this return, it is urged on behalf of the detenu that the provisions of section 3(2)(15)(i) as well as Rule 30(1)(b) are invalid because they contravene the fundamental rights guaranteed to the citizens under articles 14, 21 and 22 and so, the sole issue which falls to be determined between the parties relates to the validity of the relevant statutory provisions and Rules. If the impugned provisions in the Act and the Rules are ultra Vires the detention is illegal and improper, but if, on the other hand, the said provisions are valid, the detention is legal and proper. In deciding this point, the Court will naturally have to take into account the provisions of section 45(1) of the Act. Section 45(1) provides that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court; and the reply of the detenu inevitably would be that notwithstanding this provision, the validity of the impugned legislation must be tested. This clearly brings out the true nature and character of the dispute which is raised before the Court by the detenu in asking for the issue of a writ of habeas corpus in the present proceedings. The question which thus arises for our decision is, can it be said that the proceedings taken under section 491 (1) (b) are 823 of such a distinctly separate character that they cannot fall under article 359(1) ? Under section 491 as it stood before the date of the Constitution, it would have been open to the detenu to contend that the law under which he was detained was invalid, because it was passed by a legislature without legislative competence. The validity of the law might also have been challenged on the ground that the operative provision in the law suffered from the vice of excessive.delegation. The detenu might also have urged that in detaining him the mandatory provisions under the Act had not been complied with. But before the Constitution was adopted, it would not have been open to the detenu to claim that the impugned law was invalid because it contravened his fundamental rights guranteed by the relevant Articles of the Constitution. The right to challenge the validity of a statute on the ground that it contravenes the fundamental rights of the citizens has accrued to the citizens of this country only after and as a result of the provisions of the Constitution itself, and SO, there can be no doubt that when in the present proceedings the detenues seek to challenge the validity of the impugned statutory provision and the Rule, they are invoking their fundamental rights under the Constitution. If section 491. is treated as standing by itself and apart from the provisions of the Constitution, the plea raised by the detenues cannot be entertained in the proceedings taken under that section ; it is only when the proceedings taken under the said section are dealt with not only in the light of section 491 and of the rights which were available to the citizens before 1950, but when they are considered also in the light of the fundamental rights guaranteed by the Constitution that the relevant plea can be raised. In other words, it is clear that the content of the detenu 's right to challenge the legality of his detention which was available to him under section 491(1)(b) prior to the Constitution, has been enlarged by the fundamental rights guaranteed to the citizens by the Constitution, and so, whenever a detenu relies upon his fundamental rights even in support of his petition made under section 491(1)(b) he is really enforcing the said rights and in that sense, the proceedings inevitably partake of the character of proceedings taken by the detenu for enforcing these rights; that is why the argument that article 359(1) 824 and the Presidential Order issued under it do not apply to the proceedings under section 491(1)(b) cannot be sustained. The prohibition contained in the said Article and the Presidential Order will apply as much to proceedings under section 491(1)(b) as to those under article 226(1) & article 32(1). In this connection, it is hardly necessary to emphasise that in deciding the present question, we must take into account the substance of the matter and not attach undue or exaggerated importance to the form of the proceedings. If the form which the proceedings take is held to be decisive in the matter, it would lead to this irrational position that an application containing the requisite averments in support of a plea for the release of the detenu, would be thrown out by the High Court if in form it purports to be made under article 226, whereas it would be entertained and may indeed succeed if it purports to be made under section 491(1)(b). Indeed, this argument seems to suggest that when the Constitution makers drafted article 359, they intended that whenever an emergency arises and a Presidential Order is issued under article 359(1) in regard to the fundamental rights guaranteed by articles 21 and 22, it would be necessary to pass another piece of legislation providing for an appropriate change or repeal of a part of the provision of section 491(1)(b), Cr. P. C.; and since the legislature has through oversight omitted to pass the necessary Act in that behalf, proceedings under section 491(1)(b) must be allowed to be continued free from the bar created by the Presidential Order. In our opinion, this position is wholly untenable. Whether or not the proceedings taken under section 491(1)(b) fall within the purview of the Presidential Order, must depend upon the construction of article 359(1) and the Order, and in dealing with this point, we must look at the substance of the matter and not its form. Before giving relief to the detenu who alleges that he has been illegally and impropely detained, is the High Court required to consider the validity of the operative provisions of the impugned Act on the ground that they infringe the specified fundamental rights? If yes, the bar created by article 359(1) and the Presidential Order must inevitably step in even though the proceedings in form may have been taken under section 49t(1)(b) of the Code. In our opinion, therefore, once it is shown that the proceedings under 825 s.491(1)(b) cannot make a substantial progress unless the validity of the impugned law is examined on the ground of the contravention of the specified fundamental rights, it must follow that the bar created by the Presidential Order operates against them as much as it operates against proceedings taken under article 226(1) or article 32(1). Thus, the true legal position, in substance, is that the clause "the right to move any court" used in article 359(1) and the Presidential Order takes in all legal actions intended to be filed, or filed, in which the specified rights are sought to be enforced, and it covers all relevant categories of Jurisdictions of competent courts under which the said actions would otherwise normally have been entertained and tried. At this stage, we may conveniently refer to the recent decision of this Court in Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1), wherein this Court rejected the detenu 's petition on the ground that it was barred by the Presidential Order and it refused to entertain the argument that the Ordinance and the Act and the Rules framed thereunder were void for the reason that they contravened articles 14, 21 & 22, with the observation that the challenge made by the petitioner in that behalf really amounted to "arguing in the circle". If the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights, it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued, and so, during the period of its operation, the challenge to the validity of the Act cannot be entertained. Incidentally, it may be observed that a petition for a writ of habeas corpus made by Mohan Chowdhury which was rejected by this Court on the ground that it was barred under the Presidential Order would, on the view for which the appellants contend, be competent if it is presented before the appropriate High Court under section 491(1)(b) of the Code; and that incidentally illustrates how exaggerated importance to the form of the petition would lead to extremely anomalous and irrational consequences. Therefore, our conclusion is that the proceedings (1) [1964] 3 S.C.R.412. 53 2 SC India/64 826 taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules arc void because they contravene articles 14, 21 and 22, arc incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential Order and all citizens ire precluded from moving any Court for the enforcement of the said specified rights. The next question to consider is the validity of tile Presidential Order itself which was issued on the 3rd November, 1962. This is how the Order reads: "G.S.R. 1464. In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspends for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on ,lie 26th October, 1962 is in force, if such person has been delivered of any such rights under the Defence of India Ordanance, 1962 (4 of 1.962) or any rule or order made thereunder. " We have already stated that this Order was subsequently modified on the 11th November, 1962, by the addition of article 14. The first argument which has been urged against the validity of this Order is that it is inconsistent with the provisions of article 359(1). It is argued that the Order which the President is authorised to issue under this Article must be an Order of general application; in fact, the Order purports to be confined to persons who have been deprived of any of the specified rights under the Defence of India Ordinance, 1962, or any Rule or Order made thereunder. In other words, there is no doubt that this Order does not apply to persons who have been detained under the provisions of the earlier No. 4 of 1950, and so, in limiting the application of the Order to persons who have been detained under the Ordinance, the President has acted outside the powers conferred on him by article 359(1). In our opinion, this argument cannot be sustained. The power conferred on the President is wide enough to enable him to make an Order applicable to all parts of the country and to all 827 citizens and in respect of any of the rights conferred by Part 111. This wide power obviously includes the power to issue a limited order. What the Order purports to do is to provide that all persons wherever they reside who have been detained under the Ordinance or the Act, will be precluded from moving any court for the enforcement of the rights specified in the Order. It is not easy to see how this Order can be said to contravene or be otherwise inconsistent with the powers conferred on the President by article 359(1). It is then argued that the said Order is invalid because it seeks to give effect to the Ordinance which is void. It will be recalled that Ordinance No. 4 of 1962 was promul gated on the 26th October, 1962, whereas the Order was issued under article 359(1) on the 3rd November, 1962. The argument is that during the period between the 26th October and the 3rd November the validity of the said Ordinance could have been challenged on the ground that it contravened articles 14, 21 and 22, and so, the said Ordinance can be held to have been a still born piece of legislation and yet detentions effected under such a void law are sought to be protected by the Presidential Order by depriving the the detenues of their right to move any court to challenge the validity of the orders of detention passed against them. In our opinion, this argument is wholly misconceived. We have already stated that for the purpose 'of these appeals, we are prepared to assume that despite the issue of the Order under article 359(1), the fundamental rights guaranteed by articles 14, 21 and 22 are not suspended; what is suspended is the enforcement of the said rights during the prescribed period, and so, what is said about the invalidity of the Ordinance during the period between 26th October and 3rd November is true even after the Order was issued on the 3rd November. If the detenues are justified in contending that the Ordinance and the Act which took its place contravened the fundamental rights guaranteed by articles 14, 21 and 22, the said Ordinance and the Act would be and would continue to be invalid; but the effect of the Presidential Order is that their invalidity cannot be tested during the prescribed period. Therefore, the argument that since the Ordinance or the Act is invalid, the Presidential Order cannot preclude a citizen from test 828 ing its validity, must be rejected. The same argument is put in another form. It is urged that we have merely to examine the Ordinance and Act to be satisfied that articles 14, 21 and 22 (4), (5) and (7) have been contravened and it is suggested that if these infirmities in the Ordinance and the Act are glaring, it would not be open to the President to issue an Order pre venting the detenues from challenging the validity of the said statutory provisions. That, in substance, is what is described by this Court in Mohan Choudhury 's case(1) as arguing in the circle". Therefore, we are satisfied that the challenge to the validity of the Presidential Order is not well founded. It still remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detentions either under section 491(1)(b) of the Code, or article 226(1) of the Constitution. We have already seen that the right to move any court which is suspended by article 359(1) and the Presidential Order issued under it is the right for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order. If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order. Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered malafide. It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is malafide would not be (1) ; 829 enough; the detenu will have to prove the malafides. But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 359(1) and the Presidential Order. That is another kind of plea which is outside the purview of article 359(1). Section 491(1) deals with the power of the High Court to issue directions in the nature of the habeas corpus, and it covers six categories of cases in which such a direction ,can be issued. It is only in regard to that class of cases falling under section 491(1)(b) where the legality of the deten tion is challenged on grounds which fall under article 359(1) and Presidential Order that the bar would operate. In all other cases falling under section 491(1) the bar would be inap plicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law. We ought to add that these categories of pleas have been mentioned by us by way of illustration, and so, they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential Order. There is yet another ground on which the validity of the detention may be open to challenge. If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid, the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presi dential Order. In terms, it is not a plea which is relatable to the fundamental rights specified in the said Order. It is a plea which is independent of the said rights and its validity must be examined. Mr. Chatterjee has urged before us that section 3(2) (15) (i) as well as section 40 of the Act are invalid, because they confer oil the rule making authoritypower which is often described as excessive delegation. It is,therefore, necessary to consider this point. The Actwhich took the place of the Ordinance was passed, because it was thought necessary to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith. Section 3(2)(15)(i) whose validity is challenged purports to confer on the Central Government power to make Rules. Section 3(1) reads thus : 830 "The Central Government may, by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community." Section 3(2) provides that without prejudice to the gene rality of the powers conferred by sub section (1) the rules may provide for, and may empower any authority to make orders providing for, all or any of the following matters; then follow clauses (1) to (57), including several subclauses which provide for the matters that may be covered by the Rules. Amongst them is cl. (15)(i) which reads as under: "Notwithstanding anything in any other law for the time being in force, the rules to be made may provide for the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being about to act or being likely to act in a manncr prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India 's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner. " The argument is that in conferring power on the Central Government to make rules, the legislature has abdicated its essentially legislative function in favour of the Central Government. In our opinion, this argument is wholly un tenable. Right up from the time when this Court dealt with Special References in 1951, In re The etc.(1) the question about the limits within which (1) ; 831 the legislature can legitimately confer powers on its dele gate has been examined on several occasions and it has been consistently held that what the legislature is prohibited from doing is to delegate its essentially legislative func tion and power. If it appears from the relevant provisions of the impugned statute that powers which have been delegated include powers which can legitimately be regarded as essentially legislative powers, then the legislation is bad and it introduces a serious infirmity in the Act itself. On the other hand, if the legislature lays down its legislative policy in clear and unambiguous terms and leaves it to the delegate to execute that policy by means of making appropriate rules, then such delegation is not impermissible. In Harishanker Bagla vs The State of Madhya Pradesh(1) where the validity of section 3 of the Essential Supplies (Temporary Powers) Act, 1946, was challenged, this Court in upholding the validity of the impugned statute held that the preamble and the body of the relevant sections of the said Act sufficiently formulate the legislative policy and observed that the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy. The same view has been expressed in Bhatnagars and Co., Ltd., vs The Union of India( ). In the present cases, one has merely to read section 3(1) and the detailed provisions contained in the several clauses of section 3(2) to be satisfied that the attack against the validity of the said section on the ground of excessive delegation is patently unsustainable. Not only is the legislative policy broadly indicated in the preamble to the Act, but the relevant provisions of the impugned section itself give such detailed and specific guidance to the rule making authority that it would be idle to contend that the Act has delegated essentially legislative function to the rule making authority. In our opinion, therefore, the contention that section 3(2)(15)(i) of the Act suffers from the vice of excessive delegation must be rejected. What we have said about this section applies with equal force to section 40. If the impugned sections of the Act are valid, it follows that Rule 30(1)(b) which is challenged by the appellants must be (1) (2) ; 832 held to be valid since it is consistent with the operative provisions of the Act and in making it, the Central Gov ernment has acted within its delegated authority. This conclusion is, of course, confined to the challenge of the appellants based on the ground that the impugned provisions and the Rule suffer from the vice of excessive delegation. If we had held that the impugned provision in the Act suffered from the vice of excessive delegation, it would have become necessary to consider what the effect of that conclusion would have been on the merits of the controversy between the parties in the present proceedings. If we had reached the conclusion that the impugned sections were invalid because they conferred power on the rule making authority which suffers from the vice of excessive delegation, the question would have arisen whether in challenging the validity of the Order of detention passed against him the detenu is enforcing his fundamental right under article 21 of the Constitution. article 21 is one of the articles specified in the Presidential Order and if at any stage of the proceedings, the detenu seeks to enforce his right under the said Article, that would be barred. It may be urged that if the detenues had been able to show that the impugned provisions of the Act were invalid because they suffered from the infirmity of excessive delegation, the next step which they would have been entitled to take was to urge that their detention under such an Act is void under article 21, because the law referred to in that Article must be a valid law; and that would raise the question as to whether this latter plea falls within the ambit of article 359(1) and the Presidential Order issued under it. We do not propose to express any opinion on this question in these appeals. Since we have held that the Act does not suffer from the vice of excessive delegation as alleged, it is unnecessary to pursue the enquiry as to whether if the challenge had been upheld, the detenu would have been precluded from urging the said invalidity in support of his plea that his detention was illegal. We must now turn to some other arguments which were urged before us at the hearing of these appeals. Mr. Sule contends that part of the Act containing the im 833 pugned sections was a colourable piece of legislation. His argument was that since the No. 4 of 1950 was already on the statute book, it was hardly necessary for the Legislature to have passed the impugned Act, and he urges that since the sole object of the Legislature in passing the impugned Act was to deprive the citizens of their fundamental rights under articles 21 and 22, it should be deemed to be a colourable piece of legislation. The legislative competence of the Parliament to pass this Act is not disputed. Entry No. 9 in List I in the Seventh Schedule confers on the Parliament jurisdiction to make laws in regard to the preventive detention for reasons connected with defence, foreign affairs, or the security of India as well as in regard to persons subjected to such detention. If the Legislature thought that having regard to the grave threat to the security of India posed by the Chinese aggression, it was necessary to pass the impugned Act notwithstanding the fact that another Act had already been passed in that behalf, it would be difficult to hold that the Legislature had acted malafide and that the Act must, therefore, be struck down as a colourable exercise of legislative power. It is hardly necessary to emphasise that a plea that an Act passed by a legislature competent to pass it is a colourable piece of legislation, cannot succeed on such flimsy grounds. Whether or not it was wise that this part of the Act should have been passed, is a matter which is wholly irrelevant in dealing with the plea that the Act is a colourable piece of legislation. In this connection, we may refer to another aspect of the same argument which has been pressed before us. Before doing so, however, let us briefly indicate the effect of the relevant Articles. Article 14 guarantees equality before law. Article 21 provides, inter alia, that no person shall be deprived of his personal liberty, except according to procedure established by law, and article 22(4), (5) (6) & (7) lay down Constitutional safeguards for the protection of the citizen whose personal liberty may be affected by an order of detention passed against him. Article 22(4) requires that an Advisory Board should be constituted and that cases of detenues should be referred to the Advisory Board for its opinion as provided therein. Article 22(5) 834 imposes an obligation on the detaining authority to commu nicate to the detenu grounds on which the order of detention has been passed against him with a view to afford him the earliest opportunity of making a representation against the order. Article 22(6) provides that in giving notice to the detenu under article 22(5), facts need not be disclosed which the detaining authority considers to be against public interest to disclose, and article 22(7) prescribes certain conditions which have to be satisfied by any law which the Parliament may pass empowering the detention of citizens. It is thus clear that the Constitution empowers the Parliament to make a law providing for the detention of citizens, but this power has to be exercised subject to the mandatory conditions specified in article 22(4), (5) & (7). It is common ground that the of 1950 complies with these requirements inasmuch as it has enacted sections 7 to 13 in that behalf. It is also clear that these Constitutional safeguards have not been provided for by the impugned Act. The argument is that even if the Parliament thought that during the period of emergency, citizens reasonably suspected to be engaged in prejudicial activities should be detained without affording them the benefit of the Con stitutional safeguards guaranteed by article 22(4), (5) & (7), the Parliament need not have enacted the Act and might well have left the executive to take action under the of 1950, and since Parliament has chosen to pass the Act under challenge and has disregarded the Constitutional provisions of Articles 14 and 22, the exercise of legislative power by Parliament must, in the context, be held to be a colourable exercise of legislative power. This argument seems to assume that if the Parliament had expected the executive to detain citizens under the of 1950 without giving them the benefit of the Constitutional safeguards prescribed by article 22, their cases could have been covered if a Presidential Order had been issued under article 359(1) in respect of such detentions. The question is: is this assumption well founded? Assuming that the Presidential Order had suspended the citizens ' right to move any court for enforcing their fundamental rights under articles 14, 21 and 22 and had made 835 the said Order applicable to persons detained under the of 1950, could that Order have effectively prevented the detenues from contending that their detention was illegal and void? In such a case, if the detenu was detained under the of 1950 and he challenged the validity of his detention on the ground that the relevant provisions of the said Act had not been complied with, would his challenge be covered by article 359(1) and the Presidential Order issued under it? In other words, can it be said that in making the said challenge, he was enforcing his fundamental rights specified in the Presidential Order? If it is held that he was challenging the validity of his detention because the mandatory provisions of the Act had not been complied with, his challenge may be outside article 359(1) and the Presidential Order. If, on the other hand, it is held that, in substance, the challenge is to enforce his aforesaid fundamental rights, though he makes the challenge by reference to the relevant statutory provisions of the Act themselves that would have brought Ills challenge within the prohibition of the Presidential Order. Normally, as we have already held, a challenge against the validity of the detention on the ground that the statutory provisions of the Act under which the detention is ordered have not been complied with, would fall outside article 359(1) and the Presidential Order, but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act, the mandatory provisions in question essentially represent the fundamental rights guaranteed by article 22 and it is open to argument that the challenge in question sub stantially seeks to enforce the said fundamental rights. In the context of the alternative argument with which we arc dealing at this stage, it is unnecessary for us to decide whether the challengein question would have attracted the provisions ofArt. 359(1) and the Order or not. We are referringto this matter only for the purpose of showing thatthe Parliament may have thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by taking recourse to the of 1950, and that may be the genesis of the impugned Act. If that 836 be so, it would not be permissible to suggest that in passing the Act, Parliament was acting malafide. It is quite true that if the Act has contravened the citizens ' fundamental rights under articles 14 and 22, it would be void and the detentions effected under the relevant provisions of the said Act would be equally inoperative; but it must be remembered that it is precisely in this set of circumstances that article 359(1) and the Presidential Order issued under it step in and preclude the citizen from enforcing his fundamental rights in any court. The said Article as well as the Presidential Order issued under it indicate that there may be cases in which the specified fundamental rights of citizens have been contravened by executive action and the impugned executive action may be invalid on that account. That is precisely why the said Article and the Presidential Order impose a ban against the investigation of the merits of the challenge during the period prescribed by the Order. Therefore, the alternative argument urged in support of the plea that the impugned provisions of the Act amount to a colourable piece of legislation fails. Mr. Parulekar who argued his own case before us with remarkable ability, contended that a detenu cannot be prevented from disputing the validity of the Ordinance, Act and the Rules under the Presidential Order if he did not ask for any consequential relief. His argument was that the prayer made in his petition under section 491(1)(b) consists of two parts; the first prayer is to declare that the impugned Act and the Order are invalid, and the second prayer is that his detention should be held to be illegal and his release should accordingly be ordered. The first prayer, says Mr. Parulekar, cannot fall within the mischief of the Order because he is not enforcing any of his rights when he asks merely for a declaration that the law is invalid, and he suggested that even if we take the view that he is precluded from challenging the validity of his detention by virtue of the said Order, we should not preclude him from challenging the validity of the law merely with a view to obtain a declaration in that behalf. In our opinion, this argument cannot be accepted. What section 359(1) purports to do is to empower the President to make an Order by which the right of the detenue to move the Court 437 to challenge the validity of his detention on the ground that any of his fundamental rights specified in the Order have been contravened, is suspended, and so, it would be unreasonable to suggest that what the detenu cannot do in order to secure his release, he should be allowed to do merely for the purpose of obtaining an academic declaration. A proceeding taken under section 491(1)(b) like a petition filed under article 226(1) or article 32(1) is intended to obtain relief, and the relief in such cases means the order for the release of the detenu. If the detenu is prohibited from asking for an order of release on the ground that the challenge to the validity of his order of detention cannot be made during the pendency of the Presidential Order, we do not see how it would be open to the same detenu to claim a mere declaration either under s.491, Cr. P.C. or article 226(1) or article 32(1) of the Constitution. We do not think that it was open to the High Court to consider the validity of the impugned Act without relation to the prayer made by the detenu in his petition. The proceedings commenced by the detenu by means of his petition under section 491(1)(b) constitute one proceeding and if the sole relief which the detenu seeks to obtain cannot be claimed by him by virtue of the Presidential Order, it would be unreasonable to hold that he can claim a different relief, VI Z., a mere declaration; such a relief is clearly outside the purview of the proceedings under section 491(1)(b) and articles 226(1) and 32(1). During the course of the hearing of these appeals, it has been strenuously pressed before us by Mr. Setalvad that the emergency created by the Chinese act of aggression may last long and in consequence, the citizens would be precluded from enforcing their fundamental rights specified in the Presidential Order during the period that the Order is in operation. That, however, has no material bearing on the points with which we are concerned. How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency, are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis, such as our country is facing 838 today. As Lord Wright observed in the case of Liver sidge(1), "the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extra ordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the, emergency. " The other aspect of Mr. Setalvad 's argument was that during Operation the Presidential Order, the executive may abuse. Its powers and the citizens would have no remedy. This argument is essentially political and its impact on the constitutional question with which we are concerned is at best indirect. Even so, it may be permissible to observe that in a democratic State, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion. The appellants have also relied upon the made by Lord Atkin in the case of Eshuqbavi Elecko vs Officer Administering the Government of Nigeria (2). "In accordance with British jurisprudence," said Lord Atkin, "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive. " These noble sentiments so eloquently expressed by Lord Atkin as well as his classic minority speech in the case of Liversidge evoke a spontaneous response in the minds of all of us who have taken the oath to administer law in accordance with our Constitution and to uphold the fundamental rights of citizens guaranteed by the Constitution. This Court is fully conscious of the solemn duty imposed on it by article 32 which constitutes it the Custodian and Guardian of the citizens ' fundamental rights. But we must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustains it must ultimately be governed by the Constitution itself. The Constitution is the law of laws the paramount (1) ; (2) 839 and supreme law of the country. It has itself enshrined the fundamental rights of the citizens in the relevant Articles of Part III and it is no doubt the duty of this Court as the Custodian of those rights to see that they are not contravened contrary to the provisions of the Constitution. But the Constitution itself has made certain emergency provisions in Chapter XVIII with a view to en ,Able the na tion to meet grave emergencies like the present, and so, in dealing with the question about the citizen 's right to chal lenge the validity of his detention, we will have to give effect to the plain words of article 359(1) and the Presidential Order issued under it. As we have already indicated, the only reasonable construction which can be placed upon article 359)(1) is to hold that the citizen 's right to take any legal proceeding for the enforcement of his fun damental rights which have been specified in the Presi dential Order is suspended during the prescribed period. It is, in our opinion, plain that the right specified in article 35)(1) includes the relevant right, whether it is statutory, Constitutional or Constitutionally guaranteed, and the words "any court" refer to all courts of competent jurisdiction and naturally include the Supreme Court and the High Courts. If that be so, it would be singularly inappropriate for this Court to entertain an argument which seeks to circumvent this provision by suggesting that the right of the detenu to challenge the legality of his detention under section 491(1)(b) does not fall within the scope of the said Article. The said argument concentrates attention on the mere form of the petition and ignores the substance of the matter altogether. In the context, we think, such a sophisticated approach which leans solely on unrealistic and artificial subtlety is out of place and is illogical, unreasonable and unsound. We must, therefore, hold that the Punjab and the Bombay High Courts were right in coming to the conclusion that the detenues before them were not entitled to contend that the impugned Act and the statutory Rule under which they were deained were void for the reason that they contravened articles 14, 21 and 22(4), (5) & (7). Before we part with these appeals, we ought to mention one more point. At the commencement of the hearing of these appeals when Mr. Setalvad began to argue about 840 the validity of the impugned provisions of the Act and the Rules, the learned Attorney General raised a preliminary contention that logically, the appellants should satisfy this Court that it was open to them to move the High Courts on the grounds set out by them before the validity of the said grounds is examined. He suggested that, logically, the first point to consider would be whether the detenues can challenge the validity of the impugned Act on the ground that they arc illegally detained. If they succeed in showing that the applications made by them under section 491(1)(b) are competent and do not fall within the purview of article 359(1) and the Presidential Order, then the stage would be reached to examine the merits of their complaint that the said statutory provisions are invalid. If, however, they fail on the first point, the second Point would not fall to be considered. We then took the view that since a large number of appeals were placed for hearing before us and they raised important issues of Constitutional Law, it would be better to allow Mr. Setalvad to argue the case in the manner he thought best, and so, Mr. Setalvad addressed us on the validity of the Act in the first instance and then dealt with the question about the competence of the applications made under section 491 (1) (b) of the Code. In the main, the same method was adopted by the learned Advocates who followed Mr. Setalvad on the appellants ' side. Naturally, when the learned Attorney General made his reply, he also had to address us on both the points. It appeared that as regards the validity of the impugned provisions of the Act and the Rules he was not in a position to challenge the contention of the appellants that the Act contravened articles 14, 21 and 22(4), (5) & (7). Even so, he strongly pressed before us his original contention that we would not reach the stage of expressing our opinion on the validity of the Act if we were to uphold the preliminary objection that the applications made by the detenues were incompetent. In our opinion, the learned Attorney General is right when he contends that we should not and cannot pronounce any opinion on the validity of the impugned Act if we come to the conclusion that the bar created by the Presidential Order operates against the detenues in the present cases. In fact, that is the course which this Court 841 adopted in dealing with Mohan Choudhury 's case(1), and we are satisfied that that is the only course which this Court can logically and with propriety adopt. In the result, we hold that the Punjab and the Bombay High Court are right in coming to the conclusion that the applications made by the detenues for their release under section 491 (1) (b), Cr. P. C. are incompetent in so far as they seek to challenge the validity of their detentions on the ground that the Act and the Rule under which they are detained suffer from the vice that they contravene the fundamental rights guaranteed by articles 14, 21 and 22(4), (5) and (7). Since these appeals were placed before the Special Bench for the decision of the common questions of law raised by them, we do not propose to examine the other contentions which each one of the appellants seeks to raise in his appeal. Therefore, we direct that all the appeals included in the present group should now be set down before a Constitution Bench and each one of them should be dealt with in accordance with law. SUBBA RAO J. I have had the advantage of reading the judgment of my learned brother, Gajendragadkar J. I regret my inability to agree with him wholly. I agree with his conclusion in regard to the applicability of article 359 of the Constitution to a right to move a court both under article 32(1) and article 226 thereof, but not with his conclusion in regard to the exercise of power by the High Court under s.491 of the Code of Criminal Procedure. These appeals raise questions of great importance touching apparently conflicting, but really harmonious, concepts of individual liberty and security of the State, for the former cannot exist without the latter. My only Justification for a separate treatment of the subject even on questions on which ,here is general agreement is my conviction that on important questions I should express my thoughts in my own way. Broadly, two questions are posed for the consideration of this Court, namely (i) whether section 3(2) (15) (i) of the Defence of India Act, 1962 (51 of 1962), hereinafter called the Act, and r. 30(1)(b) of the Rules made in exercise of the power conferred under the Act are constitutionally void; and (ii) whether the Order made by the President in exercise of the power conferred on 'him under article 359(1) of the Constitution would be a (1) ; 54 2 section C. India/64 842 bar against the maintainability.of any action in any court to question the validity of the detention order made under the Act. I shall deal with the two questions in the said order. Before dealing with the first question it would be conveni ent to quote the impugned provisions of the Act. Section 3. ( 1) The. Central Government may by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. (2)Without prejudice to the generality of the powers conferred by sub section (1), the rules may provide for, and may empower any authority to make orders providing for, all or any of the following matters, namely. (15)notwithstanding anything in any other law for the time being in force, (i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being about to act or being likely to act in a manner prejudical to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India 's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, * * * * Rule 30. (1) The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from 843 acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India 's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may, make an order * * * * (b)directing that he be detained. Rule30A. (2) Every detention order shall be reviewedin accordance with the provisions hereinafter contained. (3)A detention order made by the Central Government Or the State Government or the Administrator shall be reviewed by the Central Government or the State Government or the Administrator, as the case may be. (4)A detention order made by an officer (who shall in no case be lower in rank than that of a District Magistrate) empowered by the State Government or the Administrator shall be reviewed : (a) in the case of an order made by an officer empowered by the State Government, by a reviewing authority consisting of any such two officers from among the following officers of that Government, that is to say, the Chief Secretary, a mem ber of the Board of Revenue, a Financial Commissioner and a Commissioner of a Division, as may be specified by that Government by notification in the Official Gazette ; (b) in the case of an order made by an officer empowered by the Administrator, by the Administrator himself. Under the said provisions the Central Government or the State Government or an officer on whom the power to detain is delegated can direct the detention of any person if the detaining authority is satisfied that his detention is necessary for one or other of the reasons mentioned in r. 30. No grounds of detention need be served upon the detenu; no opportunity need be given to him to make representations or establish his innocence. The period of detention can be indefinite. The Central Government or the 844 State Government or the Administrator of a Union Territory, as the case may be, is authorised to review the order of detention made by them. So too, a detention order made by an officer empowered by the State Government in that behalf can be reviewed by one or other of the officers mentioned in r. 30A (4) It is contended that the said provisions infringe article 22(4) and (5) of the Constitution and, therefore, void. This Court in Deepchand vs The State of Uttar Pradesh(1) laid down the effect of a law made in infringement of fundamental rights; and observed : "The result of the aforesaid discussion may be summarized in the following propositions; (i) whether the Constitution affirmatively confers powers on the legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right, they represent only, two aspects of want of legislative power; (ii) the Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constituion and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it follows from the premises that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention, as the case may be;. . . . " This view was accepted by a later decision of this Court in Mahandra Lal vs State of U.P.(2). It is, therefore, manifest that if the Act and the rules framed thereunder infringed the provisions of article 22(4) and (5) of the Constitution, they would be ab initio void they would be stillborn law and any detention made thereunder would be an illegal detention. Articles 21 and 22 enshrine fundamental rights relating to personal liberty,. Clauses (4) to (6) of article 22 specifically deal with preventive detention. This Court has held in A. K . Gopalan vs State of Madras(3) that the word '.,law" in article 21 means State made law or enacted law and that article 22 lays down only the minimum procedural conditions which such a (1) [1959] Supp. 2 S.C.R. 8, 40. (2 ) ; (3) ; 845 a statutory law cannot infringe in the matter of pre ventive detention. The minimum conditions arc as follows: (1) Parliament may make a law prescribing the maximum period for which any person may be detained; (2) he shall not be detained for a period more than 3 months unless an Advisory Board constituted for that purpose reports before the expiry of three months that there is sufficient cause for detention ; and (3) the authority making the order shall communicate to such person the grounds on which the order has been made and afford him the earliest opportunity of making representations against the order. At the same time cl. (7) enables Parliament to make a law prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board. Clause (6) of article 22 enables an authority not to disclose facts to the detenu which it considers to be against the public interest to disclose. While cls. (4) to (6) of article 22 provide for the minimum safeguards for a dctenu in the matter of preventive detention, cl. (7) removes them enabling Parliament to make a law for preventive detention ignoring practically the said safeguards. The only outstanding safeguard, therefore, is that Parliament can only make a law in derogation of the said safeguards by defining the circumstances under which and the class or classes of cases in which a person may be so detained. Parliament did not make such a law. Neither the Act nor the rules made thereunder satisfy the conditions laid down in that clause. The Act and the rules do not provide for the maximum period of detention, for the communication to the detenu of the grounds of detention, for affording him an opportunity of making representations against his detention, or for an Advisory Board consisting of persons with the requisite qualifications. The power to review given to the detaining authority cannot conceivably satisfy the condition of an Advisory Board provided for under cl. (4)(a) of article 22. It is, therefore, a clear case of Parliament making a law in direct infringment of the relevant provisions of article 22 of the Constitution, and therefore the law so made is void under the said Article., 846 In this context a relevant aspect of the argument advanced by the learned Attorney General may be noticed. He contends that, on a true construction of article 359(1) of the Constitution, if the requisite order is made by the President, a law can be made in infringement of article 22 of the Constitution. Under article 359, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order shall remain suspended for the period during which a Proclamation of Emergency is in force or for such shorter period as may be specified in the order. It is contended that when remedy is suspended in respect of infringement of article 22, the right thereunder also falls with it. It is said that right and remedy are reciprocal; and if there cannot be a right without a remedy, there cannot also be a remedy without a right. In "Salmond on jurisprudence", 11th Edn., the following interesting passage is found, at p. 531, under the heading "Ubi jus Ibi Remedium"; "Whenever there is a right, there should also be an action for its enforcement. That is to say, the substantive law should determine the scope of the law of procedure, and not vice versa. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognize. In early systems this is far from being the case. We there find remedies and forms of action determining rights than rights determining remedies. The maxim of primitive law is rather, Ubi remedium ibi jus. " I understand this passage to mean that a right pertains to the substantive law and the remedy, to procedural law; that where a right is provided by a statute a remedy, though not expressly provided for, may necessarily be implied. But the converse, though obtained in primitive law, cannot be invoked in modern times. To put it in other words, the suspension of a remedy cannot abrogate the right itself. Indeed, a comparative study of articles 358 and 359 of the Constitution indicates that it could not have been the intention of the makers of the Constitution, for article 358 expressly suspends the right whereas article 359 suspends the remedy. If the contention of the learned Attorney 847 General be accepted, both have the same effect: if that was the intention of the makers of the Constitution, they would not have expressed themselves in different ways in the two articles. Where they intended to suspend the right, they expressly said so, and where they intended only to suspend the remedy, they stated so. We cannot, therefore, accept this contention. At this stage I may also notice the argument of the learned Attorney General that article 359, by enabling the President to suspend the right to move for the enforcement of the fundamental rights mentioned therein, impliedly permitted Parliament to make laws in violation of those fundamental rights in respect whereof the right to move the court is suspended. I cannot appreciate this argument. It is one thing to suggest that in view of the amplitude of the phraseology used in article 359, the right to move for the enforcement of fundamental rights infringed by a void law, even deliberately made by Parliament, is suspended but it is a different thing to visualize a situation when the Constitution permitted Parliament under the shelter of executive fiat to make void laws. Indeed, a comparison of article 358 and article 359 I shall deal with them in detail later on indicates the contrary. I cannot for a moment attribute to the august body, the Parliament, the intention to make solemnly void laws. It may have made the present impugned Act bona fide thinking that it is sanctioned by the provisions of the Constitution. Whatever it may be, the result is, we have now a void Act on the statute book and under that Act the appellants before us have been detained illegally. To use the felicitous language of Lord Atkin, in this country "amid the clash of arms, the laws are not silent; they may be chanced, but they speak the same language in war as in peace". The tendency to ignore the rule of law is contagious, and, if our Parliament, which unwittingly made a void law, not only allows it to remain on the statute book, but also permits it to be administered by the executive, the contagion may spread to the people, and the habit of lawlessness, like other habits, dies hard. Though it is not my province, I venture to suggest, if I may, that the Act can be amended in conformity with our Constitution without it losing its effectiveness. This leads us to the question whether the appellants, 948 who are illegally detained, can move this Court under article 32 of the Constitution or the High Court under article 226 thereof or under section 491 of the Code of Criminal Procedure, hereinafter called the Code. It would be convenient at this stage to read the relevant provisions of the Constitution. Article 32.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. * * * * (3)Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. Article. 226 (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, ' quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2)The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. Article 358. While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in the Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, 849 except as respects things done or omitted to be done before the law so ceases to have effect. Article 359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. Article 33 confers power on Parliament to modify the rights conferred by Part III in their application to Armed Forces or the Forces charged with the maintenance of public order; article 34 enables Parliament to impose restrictions an the rights conferred by Part III while martial law is in force in any area. The contention of learned counsel for the appellants on the construction of the said provisions may be classified under the following heads: (1) article 358 permits the State to make laws only in infringement of article 19 of the Constitution, and article 359 suspends only the right to move the enforcement of the fundamental rights specified in the President 's Order and, therefore, article 359 cannot be so construed as to enlarge the legislative power of Parliament beyond the limits sanctioned by article 358 and, therefore, it should be confined only to executive infringements of the said rights. (2) Article 359 does not permit the executive to commit fraud on the Constitution by doing indirectly what Parliament cannot do directly under article 358 and article 13(2) of the Constitution. (3) For invoking article 359 two conditions must be complied with, namely, (i) the party shall have a right to move any court, and (ii) only for the enforcement of the rights conferred by Part III. Such a right to move for such a relief is expressly conferred by the Constitution under article 32. Therefore, the President 's order under article 359 would only suspend the right to move under article 32 and not for approaching the Court under article 226 of the Constitution. In any view, those words are inappropriate to a pre existing statutory right under section 491 of the Code. 850 To appreciate the contentions from a correct perspective it is necessary at the outset to notice the nature of the fundamental rights enshrined in the Constitution and the remedy or remedies provided for their enforcement. It would be pedantic to go into the question whether fundamental rights provided for under our Constitution are natural rights or primordial rights : whatever their origin might have been and from whatever source they might have been extracted, they are enshrined in our Constitution in Part III and described as fundamental rights. The constitution declared under article 13(2) that the State shall not make any law taking away or abridging the said rights and any law made in contravention of this clause shall be void to the extent of the contravention. After declaring such a law void, it proceeds to provide for the mode of enforcement of the said rights. Article 32(1) makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the said rights a guaranteed right. Appropriate proceedings are described in cl. (2) thereof, that is to say, a person can move the said Court for directions, orders, or writs in the nature described thereunder for the enforcement of any of the said rights. The right to move, therefore, is regulated by the procedure prescribed thereunder. Article 226, though it does not find a place in Part III of the Constitution, confers a power on every High Court throughout the territories in relation to which it exercises jurisdiction to issue such directions, orders, or writs in the nature described thereunder for the enforcement of any of the rights conferred by Part III. There is a material difference between article 32 and article 226 of the Constitution, namely, while in article 32 the right to move the court is guaranteed, under article 226 no such guarantee is given. But a fair construction of the provisions of article 226 indicates that the right to move, though not guaranteed, is necessarily implied therein. As I have pointed out, under article 32 the right to move the Court is given a practical content by the provision indicating the different modes open to the person who has the said right to approach the Supreme Court. Article 226 employs the same procedure for approaching the High Court and that procedure must necessarily be for the exercise of the right to move that 851 court. When a power is conferred upon the High Court and a procedure is prescribed for a party to approach that court, it is reasonable to imply that the person has a right to move that court in the manner prescribed thereunder. The only difference between article 32 and article 226 is that the Supreme Court cannot say, if it is moved in the manner prescribed, that it will not decide on merits, but the High Court, in exercise of its jurisdiction can do so. The decision on merits is left to its discretion, though the exercise of that discretion is regulated by convention and precedent. Further, article 32(3) also enables Parliament to make a law empowering any other court to exercise within the local limits of itsjurisdiction all or any of the powers exercisable by theSupreme Court under cl. (2) thereof. One thing to benoticed is that Parliament can only empower any othercourt to exercise any of the powers exercisable under cl.(2) ; it cannot confer the guaranteed right mentioned in cl. (1) on any person to move that court. That is to say, the court or courts to which such powers are given would be in the same position as the High Court in respect of the enforcement of the fundamental rights. To put it shortly, no person will have a guaranteed right to move any such other court for the enforcement of fundamental rights. A discretionary jurisdiction similar to that of the High Court can only be conferred on them. For the same reason given in the case of the High Court, an aggrieved party will also have a right to move those courts in the manner prescribed. This analysis leads us to the following position Under the Constitution every person has a right to move, for the enforcement of a fundamental right, the Supreme Court, the High Courts or any other court or courts constituted by Parliament by law in the manner prescribed i.e., by one or other of the procedural writs or directions or orders described thereunder. With this background let me have a close look at the provisions of article 359. The expressions used in article 359 are clear and unambiguous. Three expressions stand out in bold relief, namely, (i) "right to move", (ii) "any Court", and (iii) "for the enforcement of such of the rights conferred by Part III". "Any Court" implies more 852 than one court, but it cannot obviously be any court in India, for it must be a court where a person has a right to move for the enforcement of the fundamental rights. It can, therefore, be only the Supreme Court, High Court or the courts or courts constituted by Parliament under article 32(3). If the contention of learned counsel for the appellants be accepted, the expression "court" should be confined to the Supreme Court. But the Article does .not say either Supreme Court or that the right to move is the guaranteed one under article 32(1). The next question is, what do the words "right to move" mean? The right to move is qualified by the expression "for the enforcement of such of the rights conferred by Part 111". Therefore, the right to move must be a right to move the Supreme Court or the High Court in the manner prescribed by article 32(2) or article 226(1) of the Constitution for the enforcement of the fundamental rights. The words in the second limb of the Article viz., that "all proceeding.s pending in any court for the enforcement of the rights so mentioned shall remain suspended" only relate to the proceedings instituted in exercise of the said right : they do not throw any light on the scope of the "right to move '. This construction gives full meaning to every expression used in the Article. if so construed, it can only mean that the temporary bar that can be imposed by an order of the President is not confined only to the guaranteed right of a person to move the Supreme Court for the enforcement of his fundamental rights, but also extends to the right of a person to move the High Court or the Court or Courts constituted by Parliament for the enforcement of such of the fundamental rights as mentioned in the order. I would, therefore, hold that the President 's order under article 359 suspending the right to move any court in respect of specified fundamental rights includes not only the right to move under article 32 but also that under article 226. The more difficult question is whether article 359 can be so construed as to empower the President to suspend all actions which a person may take under a statute or common law, if he seeks thereby to protect his liberty against unlawful encroachment by State or its officers. To put it in other words, can a person, who is illegally 853 detained under a void law, approach the High Court under section 491 of the Code or file a suit in a civil court for damages for illegal confinement or take any other legal proceedings open to him? Learned Attorney General contends that "any court" in article 359 means any court in India and that the expression "enforcement of fundamental rights" implies any relief asked for by a party if the granting of such relief involves directly or indirectly a decision on the question whether any of the fundamental rights specified in the President 's order has been infringed. This argument, if I may say so, completely ignores the scheme of the Constitution. Under the Constitution, a person may have three kinds of rights, namely, (i) fundamental rights, (ii) constitutional rights, and (iii) statutory or common law rights. Under article 32(1) a person has a fundamental right to move the Supreme Court for enforcement of his fundamental rights; under article 226, a person has a constitutional right to move the High Court for the enforcement of the said rights. Parliament, by law, in exercise of its powers conferred on it under article 245, may confer a right on a person to move any court for a relief wider in scope than that provided by article 32 or article 226 of the Constitution. Though Parliament may not have power, except in the cases specified to circumscribe the fundamental rights enshrined in Part III it can certainly make a law enlarging the content of the substantive and procedural rights of parties beyond those conferred by Part III. Under this category there may also be laws made by competent authority before the commencement of the Constitution, but continued under article 372, which do not any way infringe the fundamental rights created by the Constitution. Section 491 of the Code is one of the pre Constitution statutory provisions continued under article 372 of the Constitution. It does not in terms posit any right to move the High Court for the enforcement of fundamental rights. Therefore, the argument of the learned Attorney General involves considerable strain on the express language of article 359, for, he in effect asks us to equate the expression "a right to move for the enforcement of fundamental rights" with any relief asked for in any proceedings in any court, whether initiated at the instance of the party affected or not, 854 or whether started suo motu by the court, if it involves a decision on the question whether a particular law was void for the reason that it infringed the fundamental rights mentioned in the President 's order. In support of this contention he presses on us to hold that in days of stress and strain i.e., when there is a threat of war and conse quently an emergency is declared, a court has to adopt the principle of "strained construction" which will achieve the object behind article 359 of the Constitution and the order issued by the President. I shall briefly examine the decisions cited by him to ascertain whether any such novel doctrine of construction of statutes exists. Rex vs Halliday(1) is a decision of the House of Lords made in 1917 i.e., during the First World War. Regulation 14B of the Defence of the Realm (Consolidation) Regulation, 1914, empowered the Secretary of State to order the internment of any person of hostile origin or associations, where on the recommendation of a competent naval or military authority it appeared to him expedient for securing the public safety or the defence of the realm. This regulation was authorized by the Defence of the Realm Consolidation Act, 1914, section 1, sub section 1. The House of Lords, by a majority, held that the Act conferred upon , the King In Council power, during the continuance of the war, to issue regulations for securing the public safety and the defence of the realm and, there fore, the regulation was valid. It was urged there that no such restraint of personal liberty should be imposed except as a result of judicial enquiry. It was also contended that if the Legislature intended to interfere with personal liberty it should have provided for suspending the right of the subject as to the writ of heabeas corpus. The argument was negatived. Lord Atkin observed "The subject retains every right which those statutes confer upon him to have tested and determined in a Court of law, by means of a writ of Habeas Corpus,, addressed to the person in whose custody he may be, the legality of the order or warrant by virtue of which he is given into or kept in that custody. If the Legislature chooses to enact that he can be deprived of his liberty and incarcerated or (1) ; , 272. 855 interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it, if intra vires, do not infringe upon the Habeas Corpus Acts in any way whatever, to take away any rights conferred by Magna Charta, for the simple reason that the Act and these Orders become part of the law of the land. " This decision does not lay down any new rule of cons truction. Parliament is supreme in England. It its wisdom it did not take away the habeas corpus, but empowered the executive to issue regulations for public safety and defence of the nation. The regulation made did not exceed the power conferred by the Parliament. The House of Lords held that the detention was in accordance with law. Nor does the controversial decision in Liverside vs Sir John Anderson(1), which was the subject of servere criticism in later years, lay down any such new rule of construction. There, the Secretary of State, acting in good faith under reg. 18B of the Defence (General) Regulations, 1939, made an order in which he recited that he bad reasonable cause to believe a person to be of hostile associations and that by reason thereof it was necessary to exercise control over him and directed that that person be detained. The validity of the detention turned upon the construction of the express provisions of reg. 18B of the said Regulations. In that regulation the expression used was "reasonable cause to believe any person to be of hostile origin". The House of Lords, by a majority, held that the expression meant that "the Secretary of State thinks fit to be reasonable". There was a powerful dissent by Lord Atkin on the question of construction. With the correctness of the construction put upon by the majority on the said provision we are not concerned ; but none of the learned law Lords laid down in their speeches any new rule of construction peculiar to war conditions. Viscount Maugham observed : "My Lords, I think we should approach the construction of reg. 18B of the Defence (General) Regulations without any general presumption as to its (1) ; , 219, 251. 856 meaning except the universal presumption, applicable to Orders in Council and other like instruments, that, if there is a reasonable doubt as to the meaning of the words used, we should prefer a construction which will carry into effect the plain intention of those responsible for the Order in Council rather than one which will defeat that intention." Lord Atkin, in his dissenting judgment, protested against the strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. Then he proceeded to observe : "The words have only one meaning. They arc used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them." These observations by the dissenting Lord may at the most indicate that the majority in fact put a strained cons truction on the express words used in the regulation; but they do not show that they have laid down any such rule of construction. This is made clear by Lord Macmillan when he stated: "In the first place, it is important to have in mind that the regulation in question is a war measure. This is not to say that the courts ought to adopt in wartime canons of construction different from those Which they follow in peace time. The fact that the nation is at war is no Justification for any relaxation of the vigilance of the courts in seeing that the law is duly observed,. especially in a matter so fundamental as the liberty of the subject matter the contrary. But in a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace time measure. The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of 857 all statutes or statutory regulations in peace time as well as in war time. " These observations should be understood in the background of the earlier observation : "I do not agree that the critical phrase in the context in which I find it is susceptible only of one meaning, namely that for which the appellant contends. Were it so it would be strange that several learned judges should have found it to possess quite a different meaning." This judgment, therefore, is no authority for the position for which it is relied upon. The decision in substance says that the rule of construction of a statute is the same both in peace time and in war time and that when there is an ambiguity in the expressions used, the court may give such meaning to the words used which are capable of bearing that meaning as would promote rather than defeat the object of the legislation. Indeed, the Privy Council, in Nakkuda Ali vs Jayaratna(1), confined the interpretation put upon reg. 18B of the Defence (General) Regulations, 1939, by a majority of the House of Lords to the particular cricumstances of that case and they did not accept that construction when similar words were used in the Regulation 62 of the Defence (Control of Textiles) Regulations, 1945. I cannot, therefore, hold that the said decisions suggested a new rule of construction peculiar to war measures. The rules of construction are the same in war time as well as in peace time. The fundamental rule of construction is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself. Where the language is unambiguous, no more is necessary than to expound those words in their natural and ordinary sense. But where the words are ambiguous and reasonably capable of bearing two meanings, the court may be justified in adopting that meaning which would further the intention of the Legislature rather than that which would defeat it. In the present case we are not dealing with a war measure, but a constitutional provision which was designed to govern the affairs of our country for all times so (1) L.R. 1 55 2 S C India/64. 858 long the Constitution remains in force ; and it cannot certainly be strained to meet a passing phase in a country 's life. A strained construction put upon a statutory provison to meet a particular emergency may be rectified by a subsequent enactment. But such a construction put upon a constitutional provision might entail serious consequences. Even if Liversidge 's case(1) had laid down a new rule of construction, that construction cannot be invoked in the case of a constitutional provision. In Gibbons vs Ogden(2) the following rule of construction of a constitutional provision is stated : "That which the words declare is the meaning of an instrument ; and neither Courts nor legislatures have the right to add or to take away from that meaning. This is true of every instrument, but when we arc speaking of the most solemn and deliberate of all human writings those which ordain the fundamental law of states, the rule rises to a very high degree of significance. It must ' be very plain, nay absolutely certain, that the people did not intend what the language they have employed in its natural signifi cation, imports, before a Court will feel itself at liberty to depart from the plain reading of a constitutional pro vision. " No doubt a constitution should receive a fair, liberal and progressive construction so that the true objects of the instrument may be promoted ; but such a construction could not do violence to the natural meaning of the words used in particular provision of the Constitution. The relevant provisions of section 491 of the Code read (1) Any High Court may, whenever it thinks fit, direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law ; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty * * * * Bearing in mind the said rules of construction, I ask myself the question whether the exercise of the power un (1) ; (2) ; 859 der section 491 of the. Code can be equated with a right to move the High Court to enforce such of the fundamental rights conferred by Part III of the Constitution as may be mentioned in the order of the President. It is necessary to ascertain the correct scope of the section to answer the question raised before us. The section is framed in wide terms and a discretionary power is conferred on the High Court to direct one or other of the things mentioned therein "whenever it thinks fit". Unlike article 32 and article 226, the exercise of the power is not channelled through well recognized procedural writs or orders. With the result the technicalities of such procedural writs do not govern or circumscribe the court 's discretion. A short history of this section reinforces the said view. Originally, the Supreme Courts in India purported to exercise the power to issue a writ of habeas corpus which the Kings ' Bench Division in England exercised. In 1861 Parliament passed Acts 24 25 Vict. 104 authorising the establishment of High Courts of judicature in India. The Letters Patents issued under that Act in 1865 were expressly made subject to the legislative powers of the Governor General in Council. The courts were given the same jurisdiction, power and authority which the Supreme Courts possessed but subject to the legislative power of the Governor General in Council. Pursuant to the power so conferred, the Governor General in Council passed successive Codes of Criminal Procedure in the years 1872, 1875, 1882;and,1898, and in 1923 by the Criminal Law (Amendment) Act, some of the provisions of the Code of 1898 were amended. The High Courts Act of 1861 authorized the Legislature, if it thought fit, to take away the powers which the High Courts exercised as successor to the Supreme Courts, and Acts of Legislatures passed in 1872 and subsequent years had taken away the power of the High Courts to issue prerogative writs ; and instead a statutory power precisely defined was conferred upon the High Courts. That statutory power underwent various changes and finally took the form of section 491 of the Code, as at present it stands. The attempt to resuscitate the prerogative writs was rejected by the Calcutta High Court in Girindra Nath Banerjee vs Birendra Nath Pal(1) and (1) Cal. 727. 860 by the Madras High Court in District Magistrate, Trivandrum vs Mammen Mappillai(1). The Privy Council in Matten vs District Magistrate, Trivandrum(2) approved the said decisions and held that the said Act. ,, have taken away the power of the High Courts to issue prerogative writs and thereafter the only power left in the High Court was that conferred by the statute. By reason of article 372 of the Constitution, the Code of Criminal Procedure, including section 491 thereof, continued to be in force until altered, repealed or amended by the competent Legislature or other competent authority. Article 225 of the Constitution expressly preserved the High Courts ' powers and jurisdiction, subject to other provisions thereof. Admittedly, Parliament has not made any law repealing section 491 of the Code. The statutory power conferred on the High Courts under that section is not inconsistent either article 32 or with article 226 or with any other Article in Part III or any other Chapter of the Constitution. So, it cannot be held that section 491 of the Code has been impliedly superseded by article 226 even to the extent it empowers the High Court to give relief to persons illegally detained by the State. Now what is the scope of that section? Though section 491 of the Code is remedial in form, it postulates the existence of the substantive right. In India, as in England, the rule of law was the accepted principle. No person can be deprived of his liberty except in the manner prescribed by the law of the land. If a person is illegally or improperly detained in violation of the law of the land, the High Court can direct his release "whenever it thinks fit" so to do. The section prima facie does not predicate a formal application ; nor does it insist that any particular person shall approach it. The phraseology used is wide enough for the exercise of the power suo motu by the High Court. Nor does the section introduce an antithesis between the exercise of jurisdiction on application and that exercised suo motu ; that is to say, even if an application was filed before the High Court and for one reason or other, no orders could be passed thereon, either because of procedural defect or because it was not pressed, (1) L.I.R. (2) L.R. (1939) 66 I.A. 222. 861 nothing prevents the High Court from acting suo motu ,on the basis of the information brought to its notice. It is said that various High Courts framed rules regulating the procedure of the respective High Courts, but that fact is not much relevance in the matter of construing the section. Shortly stated, the High Court is given an absolute discretion to direct a person, who has been illegally detained, to be released, whenever that fact is brought to its notice through whatever source it may be. This juris diction existed long before the Constitution was made and long before the fundamental rights were conferred upon the people under the Constitution. The rights, substantive as well as procedural, conferred under Part III and article 226 on the one hand and under section 491 of the Code on the other, are different. Under articles 32 and 226, an affected party can approach the Supreme Court or the High Court, as the case may be, only in the manner prescribed under article 32(2) or article 226 i.e., by way of writs and orders mentioned therein : he must ask the court for the enforcement of this fundamental right. The relief implies that he must establish that he has a fundamental right, that his fundamental right has been infringed by the State and, therefore, the Court should give the appropriate relief for the enforcement of that right. Both the right as well as the procedure are the creatures of the Constitution. Whereas section 491 of the Code assumes the existence of the "rule of law" and confers a power on the High Court to direct persons in illegal detention to be set at liberty. It is not bound by any technical procedures envisaged by the Constitution. If a person approaches the High Court alleging that he or some other person has been illegally detained, the Court calls upon the detaining authority to sustain the validity of the action. The onus of proof lies on the custodian to establish that the person is detained under a legal process ; but if it fails to establish that the person is detained under law, the said person may be released. It is true that the detaining authority will have to satisfy the court that the law under which the detention is made is a valid one. It may also be true that in scrutinizing the validity of that law the court has to go into the question whether the law offends any of the fundamental rights mentioned 862 in Part III of the Constitution. But that circumstance does not by any process of involved reasoning make the said proceeding one initiated in exercise of the right to move the High Court for the enforcement of the petitioner 's fundamental right. The distinction between the two lies in the fact that one is an enforcement of a petitioner 's fundamental right and the other, a decision on the unconstitutionality of a law because of its infringement of fundamental rights generally. Further, the right and the relief have a technical and specific significance given to them by the Constitution. They cannot be equated with the mode of approach to the High Court under section 491 of the Code or with the expression"whenever it thinks fit" confers an absolute discretionon the court to exercise its power thereunder or not todo so, having regard to the circumstances of each case. While the word "may" used in a statute was sometimes construed as imposing a duty on the authority concerned on whom a power is conferred to exercise the. same if the circumstances necessitated its exercise, the expression "whenever it thinks fit" does Rot warrant any such limitation on its absolute discretion. Though ordi narily a High Court may safely be relied upon to exercise its powers when the liberty of a citizen is illegally violated by any authority, the said unlimited discretion certainly enables it in extraordinary circumstances to refuse to come to his rescue. The absolute discretionary jurisdiction conferred under section 491 of the Code cannot be put on a par with the jurisdiction conferred under article 226 of the Constitution hedged in by constitutional limitations ' A brief reference to decided cases on the scope of section 491 of the Code will make my meaning clear. In Alam Khan vs The Crown(1), the Full Bench of the Lahore High Court has defined the scope of section 491 of the Code. Ram Lall, J., who spoke for the majority, stated, after quoting the relevant part of the section "The language of the section places no limit on the class of person or persons who can move a High Court with relation to a person in custody and if the (1) Lahore 274, 303. 863 High Court on hearing the petition thinks fit. to do so, may make an order that he be dealt with according to law. " In Ramji Lal vs The Crown(1), a Full Bench decision of the East Punjab High Court, Mahajan, J., as he then was, defined the wide scope of the section thus "Whatever may be the state of English law on the subject so far as section 491 of the Criminal Procedure Code is concerned it has been very widely worded and confers Jurisdiction on the Court to issue directions whenever it thinks fit. The Court may be moved by the prisoner or by some relation of his, or it may act suo motu if it acquires knowledge that a certain person has been illegally detained. The mode and manner in which the judge has to be satisfied cannot affect the Jurisdiction conferred on him under section 491 of the Criminal Procedure Code. " In King Emperor vs Vimlabai Deshpande(2), a police officer made an arrest of the respondents under sub rule I of r. 129 of the Defence of India Rules, 1939, which read : "Any police officer. . may arrest without warrant any person whom he reasonably suspects of having acted. . (a) in a manner prejudicial to the public safety or to the efficient prosecution of the war." ' The Judicial Committee held that the burden was upon the police officer to prove to the satisfaction of a court before whom the arrest was challenged that he had reasonable grounds of suspicion and that if he failed to discharge that burden, an order made by the Provincial Government under sub rule 4 of r. 129 for the temporary custody of the detenu was invalid. As the police officer failed to discharge the onus, the Privy Council held that the High Court was right in ordering the release of the person from custody under section 491 of the Code of Criminal Procedure. This shows that when a person is detained by a police officer, the burden of establishing that the detention is valid is on him. These authorities well establish that section 491 of the Code does not contemplate any right to move a court by any affected party, but the court can exercise the (1) I.L.R. (1949). II E.P. 28, 54. (2) (1946) L.R. 73 I.A. 144. 864 statutory power whenever it thinks fit, if the fact of illegal detention of a person is brought to its notice. The problem may be approached from a slightly different perspective. Three questions may be posed, namely, (1) has any person the right to move the High Court under section 491 of the Code to enforce his fundamental right? (2) would it be necessary for a person detained or any other on his behalf to allege that the detenu has a fundamental right and that it has been infringed by State action and seek a relief for enforcement of that right? (3) would it be obligatory on the Court to enforce the right if the said right had been established? All the questions must be answered in the negative. Under section 491 of the Code there is neither a right in the person detained to move the High Court for the enforcement of the fundamental right nor there is an obligation on the part of the High Court to give the said relief. It is only a discretionary jurisdiction conceived as a check on arbitrary action. There is another aspect of the question. Article 359 has nothing to do with statutory powers conferred by Parliament. Article 359 expressly deals with the constitutional right to move a court and the constitutional enforcement of that right. So far as ordinary laws are concerned, Parliament can always amend the law, having regard to the circumstances obtaining at a particular point of time ; for instance, Parliament could have amended section 491 of the Code by repealing that section altogether or by suitably amending it. Briefly stated, article 359 provides for the suspension of some constitutional rights in the manner prescribed thereunder. The statutory rights are left to be dealt with by the appropriate Legislature in exercise of the powers conferred on them. The argument that the intention of the makers of the Constitution in enacting article 359 would be defeated, if section 491 of the Code was salvaged, does not appeal to me. If Parliament had amended section 491 of the Code, which it should have done if it intended to do so, this alleged anomaly pointed outby the learned Attorney General could not have arisen. I would, therefore, hold that the expression "rightto move any Court for the enforcement of such of the rights conferred by Part III" could legitimately refer 865 only to the right to move under article 32 or article 226 of the Constitution for the said specific relief and could not be applied without doing violence to the language used to the exercise of the statutory power conferred on the High Courts under section 491 of the Code. If that be so, the expression "all proceedings pending in any Court for the enforcement of the rights" used in the second limb of article 359 must also necessarily refer to proceedings initiated in exercise of the right to move envisaged in the first limb of the article. I shall now proceed to consider some of the minor points raised at the Bar. Another argument advanced on behalf of the respondents may also be briefly noticed. It is said that while article 358 maintains the legislative incompetency to make laws in derogation of fundamental rights other than those enshrined in article 19, Art, 359 enables the President by an indirect process to enlarge the said legislative competency and, therefore, article 359 must be so read as to confine its scope only to executive acts. I cannot agree. Article 359 does not ex facie enlarge the legislative competency of Parliament or a State Legislature. It does not enable them to make laws during the period covered by the order of the President infringing the fundamental rights mentioned therein. It does not empower the Legislatures to make void laws ; it only enables the President to suspend the right to move the Court during the period indicated in his order. Once that period expires, the affected party can move the Court in the manner prescribed by the Constitution. Despite article 358 it may happen that void laws are made and executive actions are taken inadvertently or otherwise ; and article 359 is really intended to put off the enforcement of the rights of the people affected by those laws and actions till the expiry of the President 's order. The invalidity of the argument would be clear if it was borne in mind that article 358 also saved executive acts infringing article 19, but nonetheless article 359 gave protection against the exercise of the right to move any court in respect of such acts not saved by article 358. If the infringement of fundamental rights by executive action not saved by article 358 could not be a basis for the exercise of a right to move during the period of suspension, 866 by the same token, laws not saved by article 358 could not equally be the basis for such an action during the said. period. Be it as it may, the phraseology of article 359 is wide enough to comprehend laws made in violation of the specified fundamental rights. Another argument advanced is, while article 358 read with article 13(1) and (2), maintained the constitutional position that all laws infringing fundamental rights other than that enshrined in article 19 would be void during the emergency, the President by issuing the order he did, indirectly, in effect and substance, validated the laws infringing Arts.14, 21 and 22, and, therefore, the issuing of the said order must be held to be a fraud on hi s powers. This argument has no merits. It is based upon a misapprehension of the doctrine of fraud on powers. In the context of the application of the doctrine to a statutory law, this Court observed in Gullapally Nageswara Rao vs Andhra Pradesh Road Transport Corporation(1) thus : "The legislature can only make laws within its legislative competence. Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution. The legislature can not overstep the field of its competency, directly or indirectly. The Court will scrutinize the law to ascertain whether the legislature by device purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. If, in fact it has power to make the law, its motives in making the law are irrelevant. " To the same effect are the observations in Gajapati Narayan Deo vs The State of Orissa(2). On the same analogy, the President cannot overstep the limits of his power defined under article 359 of the Constitution. So long as he does not exceed his power, the effect of his order made within bounds could not conceivably sustain the plea of fraud on powers. Fraud on power implies that a power not conferred is exercised under the cloak of a power conferred. But if an act can legitimately be referred to a power conferred the intention of the person exercising (1) [1959] Supp. 1 S.C.R. 319, 329. (2 ) ; 867 the power or the effect of his exercise of the power is ir relevant. Now, on the construction placed by me on article 359, the President has clearly the constitutional power ' to suspend the aforesaid right. The fact that Parliament by taking shelter under that order may enforce void laws cannot make a valid exercise of a power of the President one in fraud of his power. The next argument is that the order issued by the President is in excess of the powers conferred under article 359 of the Constitution. Under article 359, the argument proceeds, the order made by the President can relate to a period or the whole or a part of the territory of India and cannot be confined to a class of persons. As the order is restricted to persons that have. been deprived of their rights under the Defence of India Ordinance, it is said that it is not sanctioned by the provisions of article 359. There are no merits in this contention. Under the order the right to move for the enforcement of the rights mentioned therein is suspended during the period of emergency and it applies to the entire country. The fact that only persons, who are deprived of their rights under the Defence of India Ordinance, cannot exercise their right to move the Court does not make the order one confined to a class of persons. The Ordinance has force throughout India and ex hypothesis only persons affected would move the Court. That does not mean that the order is confined only to a class of persons. The next contention is that the impugned section suffers from the vice of excessive delegation and that in any view the relevant rules framed are in excess of the power conferred upon the Government by the said Act. I cannot agree with either of the two contentions. On this aspect I have nothing more to add to that found in the judgment of my learned brother. But the order made by the President still leaves the door open for deciding some, questions even under article 32 or article 226 of the Constitution. The order is a conditional one. , In effect it says that the right remains suspended if such person has been deprived of any such right under the Defence of India Ordinance, 1962, or under any rule or order made thereunder. The condition is that the person should have been deprived of a right under the 868 Defence of India Ordinance or under any rule or order made thereunder. If a person was deprived of such a right not under the Ordinance or a rule or order made thereunder, his right would not be suspended. If the order was made in excess of the power conferred upon the Government by the said Ordinance, it would not be covered by that order. If the detention was made mala fide, it would equally be not an order made under the Ordinance. My view on the basis of the aforesaid discussion may be stated thus : (1) The detenus cannot exercise their right to enforce their fundamental rights under articles 21, 22 and 14 of the Constitution, during the period for which the said right was suspended by the President 's order. (2) This does not preclude the High Court to release the detenus in exercise of its power under section 491 of the Code of Criminal Procedure, if they were imprisoned under a void law, though the voidness of the law arose out of infringement of their fundamental rights under articles 14, 21 and 22 of the Constitution. (3) The President 's order does not preclude, even under article 32(1) and article 226 of the Constitution, the petitioners from proving that the orders of detention were not made under the Defence of India Ordinance or the Act either because they were made, (i) outside the provisions of the Ordinance of the Act, or (ii) in excess of the power conferred under them, or (iii) the detention were made mala fide or due to a fraudulent exercise of power. I would close with a few observations. In the view I have taken. there are three courses open to Parliament : either it can make a valid law without infringing the fundamental rights other than those enshrined in article 19 or amend section 491 of the Code in order to maintain the enforcement of void laws, or do both. It is not for me to suggest the right course. In the result, the petitions will now go to the Constitution Bench for disposal on the said questions. ORDER BY COURT In accordance with the opinion of the majority the constitutional points raised in the Appeals are dismissed. Appeals to be set down individually before a Constitution Bench for dealing with the other contentions raised in each one of them.

The appellants held personal inams which were governed by Bombay Acts Nos. II and VII of 1863 by virtue of which they held their lands on payment of land revenue which was less than the full assessment. After. coming into force of the Bombay Personal Inams Abolition Act, 1952, the appellants who were affected by it Challenged the validity of the Act on the grounds, inter alia, (i) that the property which had been dealt with under the Act was not an estate inasmuch as what sections 4 and 5 extinguished was the right of the inamdar to appropriate to himself the difference between the full assessment and 944 the quit rent and this was not an estate within the meaning of article 31 A of the Constitution of India, and (2) that no compensation bad been provided in the Act for taking away the property of the appellants. Held: (i) that the right of the inamdar to appropriate to himself the difference between the full assessment and the quit rent was a right in respect of land revenue and was therefore a right in an estate by virtue of the definition in article 31 A(2)(b). Such a right also fell under section 3(5) Of the Bombay Land Revenue Code, 1879, and as such it was an estate under article 31 A. Accordingly, the Act when it extinguished or modified the rights of inamdars in inam estates was protected by article 31 A. (2) that sub section (5) Of section 17 of the Act under which no compensation was to be paid for the loss to the inamdar of what he used to get because of the difference between the quit rent and the full assessment, was not invalid as article 31 A saved the Act from any attack under article 31 which was the only Article providing for compensation.

Civil Appeal No 757 of 1988. From the Judgment and Order dated 14.8.1986 of the Allahabad High Court in F.A. No. 448 of 1978. G. Ramaswamy, Additional Solicitor General, Pramod Swarup and P. Parmeshwaran for the Appellants. R.P. Gupta for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. The appeal is disposed of by the judgment hereunder. It appears that on or about 18th September, 1969, four agreements were entered into between M/s. L.K. Ahuja & Co. and Union of India, represented by the Executive Engineer, Northern Railway, Allahabad, for the construction of certain quarters. It was followed by supplementary agreement entered into sometime in 1972. It is stated that all the four contracts were executed and completed by the first respondent on diverse dates. The last one was on 30th May, 1971. Between 29th May, 1972 to 19th June, 1972, the respondent accepted the four final bills and gave no claim declaration in respect of the four contracts. The respondent wrote a letter to the Additional Chief Engineer, R.E.N.R. Allahabad, stating that Rs.1,91,137 were due on account of the work executed and requested him to refer the dispute to the Arbitrator. On 4th June, 1976 a reply was sent to the above letter stating that there was no dispute between the parties and, hence, no question of appointment of any Arbitrator arose. On 13th December, 1976, an application was filed by the respondent in the Court of Civil Judge, Allahabad, for appointment of an Arbitrator under Section 20 of the (hereinafter called `the Act '). That application was dismissed on 10th February, 1978 as being barred by limitation. There was an appeal from the said decision to the High Court of Allahabad and the High Court by its impugned Judgment and Order dated 14th August, 1986 allowed the appeal. Hence, this appeal. The sole question, involved in this appeal, is whether the High Court was right in dismissing the application. In matters of this nature, the main question is whether the application under Section 20 was within time. Though there was some doubt before but now it is well 405 settled in view of the decision of this Court in Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amson & Beson, Kerala, ; that Article 137 would apply to any petition or application filed under any Act to a Civil Court. The Words "any other application" this Court held under Article 137, cannot be read on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in part I of the third division. The aforesaid view has to be harmonised with the view of this Court in Wazirchand Mahajan & Anr. vs Union of India, ; There this Court found that the second appellant had purchased from the Himachal Pradesh Government the right to extract and collect certain medicinal herbs from the forests of Chamba District. The period of agreement was one year from September 1, 1960. Under an arbitration clause in the agreement all disputes between the parties were to be referred to the Deputy Commissioner, Mandi District Himachal Pradesh. The second appellant transferred all his rights under the agreement to the first appellant with the consent of the State of Himachal Pradesh. Disputes arose between the parties in October, 1950. On May 30, 1952 the appellants addressed a letter to the Chief Conservator of Forests, Himachal Pradesh requiring that officer to submit the matters in difference to the arbitration of the Deputy Commissioner, Mandi Distt. By a letter dated June 23, 1952, the Chief Conservator declined to agree to a reference contending that the matters desired to be referred were outside the arbitration clause. On June 22, 1955 the appellants applied to the District Court of Chamba for an order that the agreement be filed in Court and the disputes between them and the State be referred to the sole arbitration of the Deputy Commissioner of Mandi Distt. The State of Himachal Pradesh contended, inter alia that the application for filing the arbitration agreement was barred by law of limitation as the right to apply if any arose in 1950 and not in June, 1952 as alleged. The Court of First Instance held in favour of the appellants. In appeal the Judicial Commissioner reversed the order of the Trial Court. In the view of the Judicial Commissioner an application for filing an arbitration agreement under Section 20 of the Act was governed by Article 181 of the Limitation Act, 1908 and since the period of three years prescribed thereby commenced to run from the date on which the differences arose between the parties from the month of September, 1950 and in any case on September 1, 1951, the application of the appellants was held to be barred. The Judicial Commissioner was in error, hence, according to this Court in rejecting the application of the appellants for filing the arbitration agreement as barred under Article 181 of the Limitation 406 Act. It was reiterated that the terms of Article 181, though general and apparently not restricted to applications under the Code of Civil Procedure have always been interpreted as so restricted. In the aforesaid background this Court directed the arbitration agreement to be filed. This question was again considered by this Court in Mohd. Usman Military Contractor, Jhansi vs Union of India, Ministry of Defence, There the appellant had entered into a contract with the Government of India. The contract contained an arbitration clause. For certain supplies made under the contract the appellant made representations to the Government for payment and for arbitration of disputes. On or about July 10, 1958 Government refused to refer the matter for arbitration. On July 11, 1961 the appellant filed an application in the Court of District Judge under Sections 8 & 20 of the Act, for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the Court. The respondent contended that the application was barred by Limitation. The learned District Judge allowed the application, holding that there was no limitation for making an application under Sections 8 & 20 of the Act. The defendant 's appeal was dismissed by the High Court as incompetent insofar as it challenged the order under Section 8 but was allowed insofar as it challenged the order under Section 20 of the Act. The High Court held that an application under Section 20 was governed by Article 181 of the Indian Limitation Act, 1908. In coming to this conclusion the High Court took into account the settled judicial view that the operation of Article 181 was limited to applications under the Code of Civil Procedure and reasoned that Article 181 should be construed as if the words `under the Code ' were added in it. The repealed para 17 of the second schedule to the Code and re enacted it in Section 70 with minor modifications. That being so Section 8(1) of the applied and the implied reference in Article 181 to para 17 of the second schedule to the Code should be construed as a reference to Section 20 of the Act. In the appeal by certificate this Court held that by the the Legislature amended Articles 158 and 178 of the Limitation Act and made them applicable to the relevant proceedings under the but no similar change was made in Article 181. It was manifest that save as provided in Articles 158 & 178 there would not be any limitation for other application. In the circumstances the Court found it impossible to construe the implied reference in Article 181 as a reference to the , or to hold that Article 181 applied to applications under that Act. In the premises the Court held that an application under Sections 8 & 20 of 407 the was not governed by Article 181 of the Limitation Act. In that view of the matter the application was held to be barred by limitation. The question is now concluded as mentioned hereinbefore vide this Court 's decision in Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amsom & Besom, (supra). It appears that these questions were discussed in the decision of the Calcutta High Court in Jiwnani Engineering Works P. Ltd. vs Union of India, where (one of us Sabyasachi Mukharji) was a party and which held after discussing all these authorities the question whether the claim sought to be raised was barred by limitation or not, was not relevant for an Order under Section 20 of the Act. Therefore, there are two aspects. One is whether the claim made in the arbitration is barred by limitation under the relevant provisions of the Limitation Act and secondly, whether the claim made for application under Section 20 is barred. In order to be a valid claim for reference under Section 20 of the , it is necessary that there should be an arbitration agreement and secondly differences must arise to which the agreement in question applied and, thirdly, that must be within time as stipulated in Section 20 of the Act. In the instant case it appears that there was an arbitration agreement as found by the High Court covering the disputes. It is also obvious that differences existed. There was an assertion of claim and denial of the same. It is stated in the judgment of the High Court that under the agreement the appellants had claimed a sum of Rs. 1,91,636 and, as such, the dispute was liable to be referred to arbitration in terms of the agreements entered into between the parties. Further, for the purpose of getting an arbitrator appointed, a letter dated June 4, 1976 was sent by the appellant to the Additional Chief Engineer, Allahabad. The respondent did not take any step in time. The appellant filed an application on 4.6.1976 under Section 20 of the Act. It was contended before the learned Trial Judge that the work under all the four contracts had been fully executed by the appellant on different dates and the respondents claimed that the appellant had accepted full and final payment of the agreements which had been executed by it and no claim declaration in respect of the same had been given by the appellant. It was, therefore, submitted that since there was no dispute, the application filed under Section 20 of the Act, was misconceived. The Trial Court held that the Court had no jurisdiction under Section 20 of the Act. The respondent came up in appeal before the High Court. The question, therefore, was whether there was a valid claim under section 20 of the Act to be referred in accordance with law. 408 In view of the well settled principles we are of the view that it will be entirely a wrong to mix up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act and, secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time. The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making an Order under Section 20 of the , to be barred by limitation. In order to be entitled to ask for a reference under Section 20 of the Act, there must be an entitlement to money and a difference or dispute in respect of the same. It is true that on completion of the work, right to get payment would normally arise and it is also true that on settlement of the final bill, the right to get further payment gets weakened but the claim subsists and whether it does subsist, is a matter which is arbitrable. In this case the claim for reference was made within three years commencing from April 16, 1976 and the application was filed on December 18, 1976. We are, therefore, of the view that the High Court was right in this case. See in this connection the observations of this Court in Major (Retd.) Inder Singh Rekhi vs D.D.A., ; In the aforesaid view of the matter this appeal must fail and is accordingly dismissed. The costs of this appeal would be the costs in the arbitration proceedings. S.L. Appeal dismissed.

% In respect of sale of raw petroleum coke by petitioner to respondent there were three agreements, providing for sale, petitioner 's right to shift raw petroleum coke at the risk and expense of the respondent in case of failure of Respondent to shift the same as agreed, and the Respondent 's liability to pay interest on the value of stock not uplifted. There was default in payment and petitioner stopped supplies to respondent, filed a suit and obtained an order of attachment of stocks of raw petroleum coke, to the extent of Rs.6 crores, of the Respondent. The respondent filed an appeal as also an application for stay of the suit under Section 34 of the . Meanwhile the petitioner terminated the agreement. Thereafter the respondent filed a suit and the Court passed an order for restoration of supplies. On an appeal by the petitioner, this Court stayed the order of restoration of supplies, and recorded the compromise terms, pursuant to which all proceedings were withdrawn by the parties. The petitioner 's claim were referred to an Arbitrator, who passed an interim award, according to which the petitioner was not entitled to any interest nor any shifting charges. The petitioner challenged the said award, when it was filed in High Court. The High Court dismissed the petition and this special leave petition is against the High Court 's order. It was contended before this Court that the Arbitrator has failed to give a reasoned award and so it is bad in law. Dismissing the special leave petition, this Court, ^ HELD: 1. It is obligatory in England now after the Arbitration , that the award should give reasons. The purpose of Section 12 of the Act requiring the tribunal to furnish a statement of reasons if requested to do so before it gave its decision is to enable the person whose property or whose interests were affected, to know, if the decision was against him, what the reasons were. [435B C] 'Law of Arbitration ' by Justice R.S. Bachawat. First Edition 1983 pp. 320 and 321, referred to. 2.1 In India, there has been a trend that reasons should be stated in the award. The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned award, the sufficiency of the reasons depend upon the facts of the particular case. He is not bound to give detailed reasons. [435C D] 2.2 The Court does not sit in appeal over the award and review the reasons. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous.[435D E] 2.3 The award in question is unassailable. According to the Arbitrator, because of the letter dated 18th October, 1982 of the petitioner addressed to the Respondent stating that if the outstandings and interest are not paid, further supplies would not be made, has been acted upon by the petitioner, which had not delivered any coke to the respondent, or made any offer to do so, the petitioner was not entitled to the interest in respect of the period from 18th October, 1982 onwards, nor to shifting charges in respect of any shifting on or after 18th October, 1982. On this reasoning, he had given the award. How the Arbitrator has drawn inference is apparent from the reasons. No proposition was stated in the aforesaid reasons, which could be objected to as an error of law. The reasons given by the Arbitrator meet the requirements of a reasoned award. It is apparent that the arbitrator has not acted irrelevantly and unreasonably. [432E G; 434G H] 2.4 Arbitration procedure should be quick and that quickness of the decision can always be ensured by insisting that short intelligible indications of the grounds should be available to find out the mind of the arbitrator for his action. This was possible in the instant case where the arbitrator has spoken his mind, and he is clear as to how he acted 428 and why he acted in that manner.[434H; 435A] Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., AIR, ; Hindustan Steelworks Construction Ltd. vs Shri C. Rajasekhar Rao, 3 S.C. 239; Siemens Engineering and Manufacturing Company of India Ltd. vs Union of India, [1976] Suppl. S.C.R. 489; Rohtas Industries Ltd. and Another vs Rohtas Industries Staff Union and others; , and Dewan Singh vs Champat Singh, ; , referred to Bremer Handelsgesellschaft vs Westzucker, [1981] 2 Lloyd 's Law Reports 130, referred to.

minal Appeal No. 178 of 1963. Appeal by special leave from the judgment and order dated August 19, 1963, of the Bombay High Court in Criminal Revision Application No. 388 of 1963. section G. Patwardhan and M. section Gupta, for the appellants. W. section Barlingay, B. R. G. K. Achar for R. H. Dhebar, for respondent No. 1. The Judgement of the Court was delivered by Raghubar Dayal, J. Bhaurao Shankar Lokhande, appellant No. 1, was married to the complainant Indubai in about 1956. He married Kamlabai in February 1962, during the lifetime of Indubai. Deorao Shankar Lokhande, appellant No. 2, is the brother of the first appellant. These two appellants, together with Kamlabai and her father and accused No. 5, a barber, were tried for an offence under section 494 I.P.C. The latter three were acquitted by the Magistrate. Appellant No. 1 was convicted under section 494 I.P.C. and appellant No. 2 for an offence under section 494 read with section 114 I.P.C. Their appeal to the Sessions Judge was dismissed. Their revision to the High Court also failed. They have preferred this appeal by special leave. The only contention raised for the appellants is that in law it was necessary for the prosecution to establish that the alleged second marriage of the appellant No. 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through. It is urged for the appellants that the essential ceremonies for a valid marriage were not performed during the proceedings which took place when appellant No. 1 and Kamlabai married each other. On behalf of the 'State it is urged that the proceedings of that marriage were in accordance with the custom prevalent in the community of the appellant for gandharva form of marriage and that therefore the second marriage of appellant No. 1 with Kamlabai was a valid marriage. It is also urged for the State that it is not necessary for the commission of the offence under section 494 I.P.C. that the second 8 39 marriage be a valid one and that a person going through any form of marriage during the life time of the first wife would commit the offence under section 494 I.P.C. even if the later marriage be void according to the law applicable to that person. Section 494 I.P.C. reads : "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descrip tion for a term which may extend to seven years, and shall also be liable to fine." Prima facie, the expression 'whoever. marries ' must mean 'whoever marries validly ' or 'whoever. marries and whose marriage is a valid one '. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the of 1955, which made a second marriage of a male Hindu, during the life time of his previous wife, void. Section 5 of the provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of sections 494 and 495 I.P.C. shall apply accordingly. The marriage between two Hindus is void in view of section 17 if two conditions are satisfied : (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appel lant and Kamlabai in February 1962 cannot be said to be 'solemnized ', that marriage will not be void by virtue of section 17 of the Act and section 494 I.P.C. will not apply to such parties to the marriage as had a spouse living. L4Sup./65 7 840 The word 'solemnize ' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form ', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form ' it cannot be said to be 'solemnized '. It is therefore essential, for the purpose of section 17 of the Act, that the marriage to which section 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom. We are of opinion that unless the marriage which took place between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been 'solemnized ' and therefore appellant No. 1 cannot be held to have committed the offence under section 494 I.P.C. We may now determine what the essential ceremonies for a valid marriage between the parties are. It is alleged for the respondent that the marriage between appellant No. 1 and Kamlabai was in 'gandharva ' form, as modified by the custom prevailing among the Maharashtrians. It is noted in Mullas Hindu Law, 12th Edition, at p. 605 : "The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination. It has at times been erroneously described as an euphemism for concubinage. This view is based on a total misconception of the leading texts of the Smritis. It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste. " At p. 615 is stated : "(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely (1) invocation before the sacred fire, and 841 (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. (2) A marriage may be completed by the performance of ceremonies other than those referred to in subsection (1), where it is allowed by the custom of the caste to which the parties belong. " It is not disputed that these two essential ceremonies were not performed when appellant No. 1 married Kamlabai in February 1962. There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community. In fact, the prosecution led no evidence as to what the custom was. It led evidence of what was performed at the time of the alleged marriage. It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the 'gandharva ' form of marriage in their community. Such a statement does not mean that the custom of the community deemed what took place at the 'marriage ' of the appellant No. 1 and Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated. There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage. What took place that night when appellant No. 1 married Kamlabai, has been stated thus, by P.W. 1 : "The marriage took place at 10 p.m. Pat wooden sheets were brought. A carpet was spread. Accused No. 1 then sat on the wooden sheet. On the other sheet accused No. 3 sat. She was sitting nearby accused No. 1. Accused No. 4 then performed some Puja by bringing a Tambya pitcher. Betel leaves and coconut was kept on the Tambya. Two garlands were brought. Accused No. 2 was having one and accused No. 4 having one in his hand. Accused No. 4 gave the garland to accused No. 3 and accused No. 2 gave the garland to accused No. 1. Accused nos. 1 and 3 then garlanded each other. Then they each struck each other 's forehead. " 842 In cross examination this witness stated: "It is not that Gandharva according to our custom is performed necessarily in a temple. It is also not that a Brahmin Priest is required to perform the Gandharva marriage. No 'Mangala Ashtakas ' are required to be chanted at the time of Gandharva marriage. At the time of marriage in question, no Brahmin was called and Mangala Ashtakas were chanted. There is no custom to blow a pipe called 'Sher ' in vernacular. " Sitaram, witness No. 2 for the complainant, made a similar statement about what happened at the marriage ceremony and further stated, in the examination in chief : "Surpan is the village of accused No. 3 's maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle, so it was performed at another place. There is no custom requiring a Brahmin Priest at the time of Gandharva." He stated in cross examination : "A barber is not required and accused No. 5 was not present at the time of marriage. There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act. " It is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage, it must be concluded that the ceremonies which, according to this witness, had been performed, were all the ceremonies which, by custom, were necessary for the validity of the marriage. In the absence of a statement by the witness himself that according to custom these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the foreheads completed the gandharva form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage. Bhagwan, witness No. 3 for the complainant, made no state ment about the custom, but stated in cross examination that it was not necessary for the valid performance of gandharva marriage in their community that a Brahmin priest was required and mangala ashtakas were to be chanted. The statement of Jeebhau, witness No. 4 for the complainant, does not show how the custom has 843 modified the essential forms of marriage. He stated in cross examination : "I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin Priest, a Barber and a Thakur is not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangala ashtakas. It was necessary to have a maternal uncle or any other person to make touch the foreheads of the sponsors together. A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names. " This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community. Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies which, till then, were essential for the marriage, were given up. If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the . Clause (a) of section 3 of the Act provides that the expressions 'custom ' and 'usage ' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. We are therefore of opinion that the prosecution has failed to establish that the marriage between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by section 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law. It follows therefore that the marriage between appellant No. 1 and Kamlabai does not come within the expression 'solemnized marriage ' occurring in section 17 of the Act and consequently does not come within the mischief of section 494 I.P.C. even though the first wife of appellant no.1 was living when he married Kamlabai in 1 February 1962. We have not referred to and discussed the cases referred to in support of the contention that the 'subsequent marriage ' referred 844 to in section 494 I.P.C. need not be a valid marriage, as it is unnecessary to consider whether they have been correctly decided, in view of the fact that the marriage of appellant No. 1 with Kamlabai could be a void marriage only if it came within the purview of section 17 of the Act. The result is that the conviction of appellant No. 1 under section 494 I.P.C. and of appellant No. 2 under section 494 read with section 114 I.P.C. cannot be sustained. We therefore allow their appeal, set aside their convictions and acquit them. The bail bonds of appellant No. 1 will stand discharged. Fines, if paid, will be refunded. Appeal allowed.

By a Notification under the Travancore Ancient Monuments Preservation Regulation (1 of 1112/M.E. 1936 37 A.D.), the State Government declared a fort wall, which was within certain property purchased by the petitioner, to be protected monument for the purposes of the Regulation. The petitioner challenged the Notification as infringing his fundamental right under article 19(1) (f). It was contended on behalf of the petitioner that the impugned Notification had no legal force as Regulation 1 of 1112/M.E., though validly made when it was passed, was impliedly repealed by the extension to the State in 1951 of the Ancient Monuments Preservation Act, 1904 (Central Act VII of 1904) as that Act covered the same field occupied by the State Government, and in any event there was an implied repeal of the Regulation by the Central Acts LXXI of 1951 and XXIV of 1958. It was also contended that the disputed wall was not an ancient 'monument ' but fell within the term 'archaeological sites or remains ' and as the latter subject was in the Concurrent List, upon the extension of the Central Act VII of 1904 in 1951 to the State, the Central Act occupied practically the entire field covered by the State Act and thereby implicitly repealed the State Act. HELD:By virtue of Entry 67 of the Union List, Parliament could make a law in respect of ancient and historical monuments declared by or under a law made by it to be of national importance, but the Central Act of 1904 did not embody the requisite declaration. Therefore the Regulation, which fell under Entry 12 of the State List, continued to hold the field despite the extension of the Central Act to the State. [873 F G] Similarly, the Central Acts LXXI of 1951 and XXIV of 1958 applied only to ancient or historical monuments specified in Part 1 of the Schedule to the 1951 Act or expressly notified by the Central Government under section 4 of the 1958 Act. As neither of these Acts covered the monument in question, the State Regulation continued to be applicable in respect of it therefore followed hat the Notification issued under the State Act was valid. [873 H; 874 A E] The contention based on the argument that the disputed wall was not a monument but an archaeological site or remain could not be accepted, because it was clear from the evidence before the court that the Fort wall was not an archaeological site for exploration and study but that it was 869 an existing structure surviving from a former period and, as such, a monument. The State Government was therefore within its rights in issuing the impugned notification under section 3 of Regulation 1 of 11II 12/ M.E. [875 H; 876 A B]

Civil Appeal No. 1652 of 1973. Appeal by Special leave from the Judgment and Order dated the 25th June, 1973 of the Calcutta High Court in Appeal No. 233 of 1970. WITH Civil Appeal Nos. 759 760 of 1973 From the Judgment and Order dated the 2nd June, 1972 of the Calcutta High Court in Appeal from Original Order Nos. 155 & 158 of 1970. AND Civil Appeal No. 661 of 1975 From the Judgment and Order dated the 15th March, 1974 of the Calcutta High Court in Appeal No. 96 of 1972. V.S. Desai, B.B. Ahuja and Miss A. Subhashini for the Appellant, in CA. 1652 of 1973. 819 S.T. Desai, Miss A. Subhashini for the Appellants in CA. 759 760 of 1973 & 661 of 1975. Sanjay Bhattacharya, Rathindas and K. Kathazarika for the Respondent in CA. No. 1652 of 1973. V.B. Saharya for the Respondent in CA. No. 759 of 1973. N.S. Das Behl for the Respondent in CA. No.760 of 1973. D.N. Mukherjee for the Respondent in CA. No.661 of 1975. The Judgment of the Court was delivered by TULZAPURKAR, J. All these appeals, at the instance of the Commissioner of Income tax, raise a common question whether the Revenue is under a statutory obligation to communicate to the person (from whose custody books of account and documents have been seized under section 132(1) of the Income tax Act, 1961) the approval obtained from the Commissioner of Income tax and the recorded reasons of the Authorised Officer/Income Tax Officer on which such approval is based for the retention of the seized books of account and documents by the Department for a period exceeding 180 days from the date of seizure under sec. 132 (8) of the Income tax Act, 1961 ? Since in all these appeals the facts giving rise to aforesaid question are almost similar, it will suffice to indicate briefly the facts obtaining in M/s. Oriental Rubber Work 's case (Civil Appeal No. 1652 of 1973). Under a proper authorisation issued in that behalf under sec. 132(1) of the Act, on 17th February, 1965 a search was conducted by the Income tax Department in the factory premises at Kantalia as well as the offices and godown at Mahatma Gandhi Road Calcutta belonging to the respondent assessee and various books of account and documents were seized from the aforesaid premises. After lawfully carrying out the aforesaid search and seizure, the respondent assessee was given opportunity to inspect the seized books and documents as also to make copies of the entries. The concerned Income Tax Officer then issued a notice to the respondent assessee under Sec. 142(1) of the Act in connection with its assessment for the assessment year 1964 65 and after giving several hearings which were attended by the respondent assessee or its representative the assessment for the said year was completed under section 143(3) of 820 the Act on 5th February, 1969. Notwithstanding the passing of such assessment order on 5th February, 1969, the respondent assessee on 27th February, 1969 moved the Calcutta High Court by way of a writ under article 226 of the Constitution inter alia praying (a) for a direction to the Commissioner of Income tax and the concerned Authorized Officer/Income Tax Officer to return forthwith the said books of account, documents and papers etc. seized as aforesaid and to cancel or rescind the warrant of authorisation issued under sec. 132(1) of the Act and (b) for a mandamus commanding the concerned Income Tax Officer not to proceed with the assessment for the assessment year 1964 65 until the return of documents seized on 17th February, 1965. The main submission of the respondent assessee was that the retention of the seized books of account and documents beyond the period of 180 days from the date of the seizure (17th February, 1965) was illegal and invalid inasmuch as neither the approval accorded by the Commissioner of Income tax for such extended retention nor the recorded reasons of the Authorized Officer/Income Tax Officer on which such approval was based had been communicated to the respondent/assessee and that without the return of the seized books of account and documents no assessment for the concerned assessment year 1964 65 could be proceeded with or made. On behalf of the Revenue it was pointed out that the concerned Income Tax Officer had recorded his reasons seeking approval of the Commissioner of Income tax for extended retention of the seized books of account and documents and had obtained approval of the Commissioner of Income tax for such extended retention from time to time and therefore such retention of the seized books and documents beyond 180 days was perfectly legal and valid that there was no obligation under sec. 132(8) of the Act to communicate the Commissioner 's approval for such extended retention or the, recorded reasons of the Income Tax Officer therefor to the respondent assessee and that in any event due inspection of the seized books and documents was afforded to the respondent assessee who was also permitted to take copies of the entries in the books and after giving proper hearing to the respondent assessee the assessment for the year 1964 65 had been validly completed on 5th February, 1969 long before the respondent assessee approached the Court and obtained a Rule Nisi. A learned Single Judge of the High Court held that the seized books of account and other documents could not be retained beyond the period of 180 days without a complete and effective order of approval for such extended retention of the said books and documents and that since the approval of 821 the Commissioner and the recorded reasons therefore had not been communicated to the respondent assessee, the retention of the books and documents beyond 180 days was unlawful. The learned Judge, therefore, ordered the issuance of a mandamus directing the Commissioner and the concerned Income Tax Officer to return all the seized books and documents and he further ordered that the concerned Income Tax Officer shall be at liberty to complete the assessment for the year 1964 65 after the return of the said books and documents and after issuing afresh statutory notices under section 142(1)/143(2) of the Income tax Act to the respondent assessee. In rendering the aforesaid decision, the learned Judge followed two earlier decisions of his own High Court in Mahabir Prasad Poddar 's case decided by T. K. Basu, J. and his own decision in C. K. Wadhwa 's case (which is the subject matter of the companion Civil Appeal No.760 of 1973 before us). At the instance of the Commissioner of Income tax, an appeal was preferred to the Division Bench of the High Court being Appeal No. 233 of 1970. The self same contentions were urged on behalf of the Revenue in the appeal and it was specifically submitted that the assessment for the assessment year 1964 65 having been completed on 5th February, 1969 long before the rule nisi had been issued, the direction given by the learned Single Judge with regard to the liberty to complete the assessment for the said assessment year had become infructuous. The Division Bench, however, negatived all the contentions a dismissed the appeal affirming all the directions given by the learned trial Judge. The Revenue has come up in appeal to this Court. Counsel for the Revenue urged two points before us in support of this appeal. In the first place, the counsel urged that section 132(8) of the Income tax Act, which deals with the extended retention of the seized books and documents in excess of the period of 180 days from the date of the seizure merely provides that for such extended retention the Authorised Officer/the concerned Income Tax Officer has to record his reasons in writing in that behalf and has to obtain the approval of the Commissioner of Income tax for such extended retention and there is no obligation imposed by the said sub section to communicate the approval of the Commissioner of the recorded reasons of the I.T.O. on which it is based to the person from whose custody the books and documents have been seized or to the person legally entitled to such books and documents and therefore the High Court erroneously held that such extended retention of the seized books and documents without communicating the 822 Commissioner 's approval and the reasons on which it is based was unlawful or illegal. Secondly, the counsel contended that in any event since proper opportunity to inspect the seized books and documents and to make copies of the entries was given to the respondent/assessee and since after issuing proper notices and giving hearing to the respondent assessee, the assessment for the assessment year 1964 65 had been completed long before the issuance of the rule nisi, the same ought to have been upheld as binding on the respondent assessee. In other words, according to the counsel for the Revenue, the unauthorised retention of the seized books and documents beyond 180 days, if any, could not render the assessment for the year 1964 65 properly made invalid. Counsel further pointed out that the respondent assessee had even preferred appeals to higher authorities challenging the said assessment on merits. It may be stated that Counsel for the respondent assessee in this appeal conceded that in all the circumstances of the case the assessment already made on 5th February, 1969 should be allowed to stand subject of course to the result of the appeals that have been preferred by the respondent assessee against it. In this view of the matter, the second contention urged by Counsel for the Revenue in this appeal has to be accepted and the assessment for the assessment year 1964 65 made on 5th February, 1969 subject as aforesaid to be upheld. That leaves for consideration the first contention, which as we have indicated earlier, is common to all the appeals. In order to decide the aforesaid contention it will be desirable to set out the material provisions of sec.132 of the Act, namely, sub secs.(8), (10) and (12) thereof, which run as follows: "132 (8) The books of account or other documents seized under sub section (1) or sub section (1A) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained: Provided that the Commissioner shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income tax Act, 1922 (XI of 1922), or this Act in respect of the years for 823 which the books of account or other documents are relevant are completed. (10) If a person legally entitled to the books of account or other documents seized under sub section (1) or sub section (1A) objects for any reason to the approval given by the Commissioner under sub section (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents. (12) On receipt of the application under sub section (10) the Board may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit. " On a plain reading of the aforesaid provisions it will be clear that ordinarily the books of account or other documents that may be seized under an authorisation issued under sub sec.(1) of sec.132 can be retained by the authorised officer or the concerned Income tax officer for a period of one hundred and eighty days from the date of seizure, whereafter the person from whose custody such books or documents have been seized or the person to whom such books or documents belong becomes entitled to the return of the same unless the reasons for any extended retention are recorded in writing by the authorised officer/the concerned Income Tax Officer and approval of the Commissioner for such retention is obtained. In other words two conditions must be fulfilled before such extended retention becomes permissible in law: (a) reasons in writing must be recorded by the authorised officer or the concerned Income tax Officer seeking the Commissioner 's approval and (b) obtaining of the Commissioner 's approval for such extended retention and if either of these conditions is not fulfiled such extended retention will become unlawful and the concerned person (i.e. the person from whose custody such books or documents have been seized or the person to whom these belong) acquires a right to the return of the same forthwith. It is true that sub sec.(8) does not in terms provide that the Commissioner 's approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the 824 conditions it is obligatory upon the Revenue to communicate the Commissioner 's approval as also the recorded reasons to the person concerned. In the absence of such communication the Commissioner 's decision according his approval will not become effective. Moreover, sub sec.(10) confers upon the person legally entitled to the return of the seized books and documents a right to object to the approval given by the Commissioner under sub sec.(8) by making an application to the Central Board stating therein the reasons for such objection and under sub sec.(12) it is provided that the Central Board may, after giving the applicant an opportunity of being heard pass such orders as it thinks fit. It is obvious that without the knowledge of the factum of the Commissioner 's approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents. In our view the scheme of sub secs. (8), (10) and (12) of sec.132 makes it amply clear that there is a statutory obligation on the Revenue to communicate to the person concerned not merely the Commissioner 's approval but the recorded reasons on which the same has been obtained and that such communication must be made as expeditiously as possible after the passing of the order of approval by the Commissioner and in default of such expeditious communicating any further retention of the seized books or documents would become invalid and unlawful. It is obvious that such obligation arises in regard to every approval of the Commissioner that might have been accorded from time to time. In the result the orders passed by the High Court directing the return of the seized books of account and documents to the respondents in each of the appeals are confirmed and the appeals (subject to the directions given below in two of them) are dismissed with no order as to costs. In Civil Appeal No.1652 of 1973 the assessment order passed on 5th February, 1969 is upheld subject to the result of the appeals that may have been preferred against it. In Civil Appeal No.661 of 1975 it is directed that the assessment orders passed for the concerned assessment years would be subject to the appeals already preferred if any or such as might be preferred in accordance with law, against the same. H.S.K. Appeals dismissed.

After the Legislative Assembly of the State was dissolved by the President elections were held and after the results were declared the Election Commission issued a notification containing the names of the members elected for the constituencies on June 9, 1980. The elected members were notified that they could take the oath as required by article 188 of the Constitution at the session of the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days. In the meanwhile, on June 17, 1980 the Election Commission issued a notification calling upon the elected members of the state Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha. For conducting the election the Secretary and Joint Secretary of the State Legislative Assembly were appointed respectively as the Returning Officer and the Assistant Returning officer. The appellant and respondent No. 1 in Civil Appeal No. 1775 of 1981 were nominated as the candidates at that election. At the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two grounds: (1) that the appellant was disqualified as he was a Government 940 servant, and (2) that the proposer though an elected member of the Assembly, was not qualified to propose the appellant 's candidature as he had not yet taken the oath under Article 188 of the Constitution. The appellant contended that as he had retired voluntarily from Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer being an elected member of the Legislative Assembly was competent to propose even though he had not taken the oath as provided in article 188. Overruling the objections the nomination papers of the candidates were accepted. In the election the appellant was declared elected as a member of the Rajya Sabha. Respondent No. 1 therefore filed an election petition. The High Court set aside the appellant 's election on the grounds : (1) that as the Secretary of the Legislative Assembly was neither an officer of the Government nor of a local authority, he could not be appointed as the Returning Officer under s.21, and (2) that the proposer of the nomination paper had not made or subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination and consequently there was improper acceptance of the nomination of the appellant. The appellant, the Election Commission of India, and the State preferred Appeals to this Court. Allowing the Appeals, ^ HELD : 1 (i) The word `Government ' in Article 102 (1)(a) and in Article 191 (1)(a) of the Constitution and the word `Government ' in the expression an officer of Government in section 21 of the Representation of the People Act, 1951 should be interpreted liberally so as to include within its scope the Legislature, the Executive and the Judiciary. [951 G H] (ii) The finding of the High Court that the Secretary of the State Legislature could not be appointed as the Returning officer for the election to the Rajya Sabha is unsustainable. [952 A] (iii) The expressions `Government ' and an officer of Government ' are not defined in the Constitution or in the Representation of the People Act 1951. Article 367 of the Constitution provides that unless the context otherwise requires, the , shall subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation for the Constitution. Section 3 (23) of the gives an inclusive definition of `Government ' and suggests that there may be other organs of State which may be included within the meaning of expression `Government ', The expressions `Central Government ' and `State Government ' are defined in section 3 (8) and section 3 (60). A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State. In the expressions `the Union '`the States ' and `the Union Territories ' are used. In Article 12 the expressions `Government and 941 Parliament of India ' and 'Government and the Legislature of each of the States ' are found suggesting that Government is different from the Union Legislature or the Legislatures of the States. This is for purposes of In Article 102 (1) (a) and Article 191 (1) (a) the expression 'the Government of India ' and 'Government of any state ' are used and they provide that a person holding an office of profit under the Government of India or a State Government is disqualified for being chosen as a member of Parliament or of a State Legislature respectively. Article 98 and Article 187 provide for appointment of separate secretariat staff of each House of Parliament and of the State Legislatures respectively. [947 C H; 948 A] (iv) After the commencement of the Constitution, the Secretaries of the State Legislatures almost as a matter of rule were being appointed as Returning Officers for election to the Rajya Sabha and for election to the Legislative Councils of States, and Parliament had not thought it fit to amend suitably, section 21 expressly including the officers of the State Legislatures amongst the persons qualified to be appointed as Returning officers even though it had been amended once by specifically including officers of local authorities. Parliament all along had treated the Secretaries of the State Legislatures as officers of Government for purposes of section 21, and had found it convenient to do so [951 C E] (v) Even though Article 98 and Article 187 contemplate the establishment of a separate secretariat staff for each House of Parliament and the State Legislature respectively, the salaries and allowances of the members of that staff are paid out of the Consolidated Fund of India or of the State, as the case may be after they are voted by the House or Houses concerned. Their appointment and other conditions of service are regulated by Rules made by the President or the Governor, as the case may be, until an appropriate law is made by Parliament or the State Legislature. [951 F G] (vi) In our Constitution, which has a federal structure there are both at the level of the Union and at the level of the State detailed provisions pertaining to the Legislature, the Executive and the Judiciary. All the three organs are concerned with the governance of the country the first makes the laws, second enforces them and the third interprets them. Sometimes their functions may be overlapping. All the three organs together constitute the Government at their respective level. [950 B C] (vii) The President is a part of the Parliament under Article 79 of the Constitution. The executive power of the Union is vested in him under Article 53(1). At the level of the State the position is analogous. The Governor is a part of the Legislature of the State under Article 168 (1). The Executive power of the State is vested in him under Article 154 (1) and he is consulted in the appointments of the judges of the High Court. While under Article 235 the High Court is vested with the control over the subordinate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary, the Governor has to issue the order though on the recommendation made by the High Court. A study of these provisions shows that there is no water tight compartment between the three major organs of the State. The Comptroller and Auditor General of India though he is assigned an independent status is an officer under the Union Government. The Judges of the Supreme Court and of 942 a High Court are not servants of Government but hold a constitutional office. But the Comptroller and Auditor General of India and the Judges of the Supreme Court and of a High Court are not eligible to contest elections to Parliament and the State Legislatures in view of Article 102 (1) (a) and Article 191 (1) (a) because they are serving in connection with the affairs of the Union and are therefore, holding offices of profit under the Central Government. [950 C H; 591 A B] Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; ; Gurugobinda Basu vs Sankari Prasad Ghosal & Ors. ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr [1978] I. section C. R. 423; & Hargovind Pant vs Dr. Raghukul Tilak & Ors. ; referred to. (viii) The position of a person who works as an officer of the Legislature of a State is also the same. Even though he belongs under Article 187 to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression 'Government is used in Article 102 (1) (a) and Article 191 (1)(a). If the expression 'Government used is construed as meaning the Executive Government only, then it would defeat the very purpose of these provisions. Similarly he has to be treated as an officer of Government for purposes of section 21 of the Act also qualified for being appointed as the Returning officer for an election held under the Act. [951 A C] 2(1) This is not a case where general elections to the Legislative Assembly had been held before the normal tenure of the existing Legislative Assembly was over. The previous Legislative Assembly having been dissolved in February 1980, on the publication of the notification containing the names of the elected members of the Legislative Assembly on June 9,1980 under Section 73, the Assembly was deemed to be duly constituted. [953 D; 954 D] (ii) An elected member who has not taken 'oath ' but whose name appears in the notification published under section 73 of the Act can take part in all non legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. [957 G] In the instant case the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under sec. 73 of the Act and in the electoral roll maintained under section 152. There is therefore no infirmity in the nomination. [957 H; 958 A] (iii) The words 'sitting and voting ' in Article 193 of the Constitution imply the summoning of the house under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a house after a general election, and the summoning of the first meeting of the House. During that 943 interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. [955 B D] (iv) The election for filling a seat in the Rajya Sabha does not from a part of the Legislative proceedings of the House carried on at its meeting. Nor the vote cast at such an election is a vote given in the House on any issue arising before the House. The speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose. All the steps taken in the course of the election fall outside the proceedings that take place at a meeting of the House. [955 E F; 956 B] Bhupendra Nath Basu vs Ranjit Singh, I. L. R. 41 Cal. 384, approved.

ivil Appeal No. 2110 of 1987. From the Order dated 8.6.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED/SB/145/84 C in Order No. 440/87 C. M.K. Banerjee, Solicitor General, P. Parmeshwaran, Mrs. Radha Rangaswamy and Mrs. Sushma Suri for the Appellant. J.S. Kapil, Krishan Kumar and Vimal Dave for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. The Collector of Central Excise, Kanpur, is the appellant in this appeal under section 35L(b) of the (hereinafter called `the Act '). The period involved in this appeal is the assessment period from 25th March, 1979 to 24th September, 1979, a period of about six months. The respondent M/s. Krishna Carbon Paper Company was engaged in the manufacture of carbon papers. During the period from 25th March, 1979 to 24th September, 1979 the respondent manufactured and cleared from its factory a quantity of 5601 boxes, 20,288 reams and 45 packets of carbon papers for a total value of Rs.7,67,498.40 without payment of any duty under the Act. The Superintendent of Central Excise Lakhimpur Kheri, issued notice to the respondent demanding central excise duty on carbon paper cleared during the aforesaid period under section II A of the Act. The respondent submitted a written reply stating that the notice was without jurisdiction because the respondent had taken out the central excise PG NO 15 licence immediately on the direction of the department and it was only after February 28, 1982 that the product was subjected to duty under sub item (3) of item 17 by the Central Excise Budget of 1982. In support of this contention, the respondent relied on Notifications Nos. 187/82 and 69/82, both dated 28th February, 1982. It was contended that the carbon paper was a new item which was specified under sub item (3) of item 17 of C.E.T. According to the revenue, however, that the recasting of Tariff Item 17 in 1976 was irrelevant and that the carbon being akin to coated paper (one side or both side) was covered under sub item (2) of item 17 of the C.E.T. since 1976. The submission of the respondent was that sub item (3) of item 17 of the C.E.T. covering the carbon paper including copy paper was inserted by the Central Excise Budget 1982, but it does not make any retrospective change. It was, according to the appellant, an introduction of specific name or variety of paper for being subjected to a different rate of duty. The carbon paper remained a coated paper already covered under sub item (2) of item 17 of C.E.T. The Assistant Collector of Central Excise, Sitapur, by his order dated 27/30th April, 1983, confirmed the demand for basic excise duty amounting to Rs.1,15,124,76 and special excise duty of Rs.5,756.23 on carbon paper cleared during the period from 25th March, 1979 to 24th September, 1979. The Appellate Collector, however, set aside the order of the Assistant Collector and was of the view that the carbon paper could not be classified under Tariff Item 17(2) of the Act, as it was before 1982. The Collector (Appeals) accepted the respondent 's contention that the carbon paper was brought under the purview of Tariff Item 17 for the first time in 1982 when it was introduced as sub item (3) of Item 17 of the First Schedule to the Act with effect from 1st March, 1982. Being aggrieved thereby the appellant preferred an appeal before the Appellate Tribunal. The Appellate Tribunal dismissed the appeal. Hence, this appeal. The question for decision in this appeal is whether carbon paper before the introduction of Central Excise Budget in 1982 and consequential amendment in tariff, fell under item 68 of the First Schedule to the Act, as held by the Tribunal or under item 17(2) of the Tariff Item, which was claimed by the Collector of Central Excise. Following its previous decision in the case of Sai Giridhara Supply Co. vs Collector of Central Excise, Bombay, [1987] 23 E.L.T. 438 Tribunal, the Tribunal upheld the contention of the respondent and held that for the period before the amendment of Central Excise Budget, in 1982, carbon paper fell under Tariff Item 68 and not under Tariff Item 17(2), as it then was. The Tribunal did not go into the question of the PG NO 16 limitation, namely, whether the claim was barred in any event by the lapse of time in view of section 11 A of the Act. The Tribunal came to the finding that the carbon paper in question fell under Tariff Item 68 of the Central Excise Tariff. Shri Kapil on behalf of the respondent submitted before us that the claim, in any event, was barred by lapse of time in view of section 11 A of the Act. In view of the fact that the Tribunal did not decide this question if we are persuaded to reject the revenue 's contention in this appeal, the matter has to be remanded back to the Tribunal to decide this question as to limitation, as there is no decision of the Tribunal on this aspect of the matter. Before the contentions are appreciated, it will be appropriate to refer to the position of Tariff Item 17 at three different phases, namely, in 1975, after the amendment in 1976 and after the further amendment to item No. 17 by the Finance Act of 1982. Item No. 17 was amended with effect from 27th February, 1982 and two specific entries were added. These were (3) and (4). It is necessary to set out in the position at different points of time. It was as follows: "Tariff Item 17 Position in I975 Item No. Description of goods Rate of Duty 17. Paper, all sorts (including paste board, mill board, strawboard and cardboard), in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Cigarette tissue Rs. 3 per Kg. (2) Blotting, toilet, target tissue Rs. 1 and 20 other than cigarette tissue paise per kg. teleprinter, typewritting; manifold, bank, bond, art paper, chrome paper, tubsized paper, cheque paper, stamp paper, cartridge paper, (waxed paper, polythelene coated paper), parchment and coated board (including art board, chrome board and for playing cards) PG NO 17 (3) Printing and writing paper, 90 paise per kg. packing and wrapping paper, strawboard and pulp board, including grey board, corrugated board, duplex and triplex boards, other sorts (4) All other kinds of paper and Re. 1 and 20 paper board, not otherwise paise per kg. specified. Position in 1976 17. Paper and Paper Board,All sorts Thirty percent (including paste board, mill board ad valorem. straw board, cardboard and corrugated board), in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Uncoated and coated print and writing paper (other than poster paper) Twenty five per cent ad valorem (2) Paper board and all kinds of paper (including paper or paper hoards which have been subjected to various treatments such as coating, impregnating corrugation, creping and design printing), not elsewhere specified. There was further amendment to Item No 17 by the Finance Act of l982. Item 16 was amended with effect from 27.2 1982, and two specific entries were added. They are (3) and (4) which are reproduced below: Item No. Description of goods Rate of Duty 17. xx xx xx (3) Carbon and other copying papers 32 1/2% ad (including duplicator stencils) and valorem papers, whether or not cut to size and whether or not put to in boxes PG NO 18 (4) Boxes, cartons, bags and other 32 1/2% ad packing containers (including flattened valorem or folded boxes and flattened or folded cartons), whether or not printed and whether in assembled or unassembled conditions. " The short question with which we are concerned is, whether during the relevant period, namely, 25th March, 1979 to 24th September, 1979 when the position mentioned above was prevailing, whether carbon papers could be included in "all kinds of paper including the paper which have been subjected to coating", would come within sub item (2) of item 17 as mentioned hereinbefore or under residuary item 68 of the Central Excise Tariff. The Tribunal followed a previous decision in Sai Giridhara Supply Co. vs Collector of Central Excise, Bombay, (supra). There, the Tribunal had discussed the various aspects of the matter and felt itself bound by the decision of the Karnataka High Court to which reference will be made later. The Tribunal has referred to the observations of Buckley L.J. where the Lord Justice observed that once a precedent was held to be a binding one, then no deviation therefrom was permissible within the judicial polity except in the well accepted categories of cases enumerated in the judgment. Those contingencies, the Tribunal found, were not applicable to the facts of this case. It is well settled that in order to ascertain the correct meaning of a fiscal entry reference to a dictionary is apt to be a somewhat delusive guide, as it gives all the different shades of meaning. In the instant case, our attention was drawn to the extract from the Oxford English Dictionary, Volume III, page 436 where the meaning of the word "paper" has been given. It reads as follows: "Paper (pei 'per), sb. Also 4 papure, 4 6 papir. 5 papire, papyre, (paupire, 5 6 pauper, 5 7 papyr, 6 papre. [a. AF. papir = OF, Papier (=Pr. Papier, Cat. Paper, Sp. papel `paper ', It. papira papyrus), ad. L. papyrus the papyrus or paper reed of the Nile, also writing material made of it, a Gr. nanvpos the papyrus reed. From the writing sheets made of the thin strips of papyrus the name was transferred to paper made of cotton, and thence to paper of linen and other fibres. These extensions took place before the word became English, so that here its application to papyrus is only a later retrospective use.] PG NO 19 I. The simple word. *Without a or pl. as denoting a particular kind). I. A substance composed of fibres interlaced into a compact web, made (usually in the form of a thin flexible sheet, most commonly white) from various fibrous materials, as linen and cotton rags, straw, wood, certain grasses, etc., which are macerated into a pulp, dried, and pressed (and subjected to various other processes, as bleaching, colouring, sizing, etc., according to the intended use); it is used (in various forms and qualities) for writing; printing, or drawing on, for wrapping things in, for covering the interior of walls, and for other purposes. " Our attention was also drawn to the meaning of the carbon paper in `Pulp and Paper Manufacture ', second edition. volume II which has been described as follows: "Carbon paper is made by coating paper with a mixture consisting principally of a wax and a pigment. The color is obtained from the pigment, usually a carbon black of low oil absorption, plus toners, usually lake pigments or oil soluble dyes, which are added to increase the blackness. The wax, which acts as a binder for the pigment, must have a viscosity low enough to permit slight penetration into the paper, but not so low that the wax strikes through or sweats oil. Waxes with a melting point between 105 to 120 F. and a viscosity of about 60 or 70 Saybolt at 210 F. are generally used. The principal wax used is carnauba, although some ceresin, beeswax, candelilla, ozokerite. ouricury, and synthetic waxes are also used. Special grades of micro crystalline waxes may be added to soften the coating and improve the printing qualities. In addition to the above ingredients, non drying oils (mineral oils) are used to soften the coating and control the amount of coating transferred to the copy. Oleic acid is sometimes used as a solvent for oil soluble dyes. All carbon papers must be free of offset, flaking, wrinkles, curl, or other defects, and must give a good impression on the copy paper. The coating must be hard enough not to smear in hot weather, but the exact degree of hardness depends upon the intended use, that is, whether PG NO 20 the paper is designed as a pencil carbon, a typewriter carbon, or a one time carbon. The amount of coating varies from a very thin coating used in making one time carbons to a very heavy coating used in making high grade typewriter carbons for multiple use. The latter, in which the paper may be reused up to 40 to 50 times, must have a coating of very high color value and the coating must be compounded so that only a small amount is transferred to the copy sheet. A simplified formula for a typewriter carbon would be as follows: Carnauba was. . . . . .34% Ozokerite. . . . . . 6% Deeswax. . . . . . .7% Petrolatum. . . . . . 6% Mineral Oil. . . . . 25% Carbon black. . . . . .13% Toners. . . . . . 6% Oleic acid. . . . . . 3% In the coating of carbon paper, the molten was mixture is applied to the paper at a temperature of about 200 F. Coating is done on a carbon paper coater which consists of an inking roll which is supplied with coating directly from a bath or from a heated fountain. The inking roll revolves in a direction opposite to that of the paper web. Excess coating is scraped off the paper by an equalizer rod and the sheet then passed over a water cooled cylinder to chill and harden the coating. Crystallization of the wax occurs Upon chilling, and this process continues over a period of several days. For this reason, it is customary for cart on manufacturers to age their coated paper for two to seven days before shipping. It is absolutely essential that the coating be absorbed evenly by the paper. Therefore the paper must have a smooth surface, uniformly high density, good formation and above all, be free of pinholes. Further requirements are high strength, low basis weight, and freedom from flaws such as slime spots and dirt specks. Because of these rigid requirements, the base stock for carbon tissue is difficult to make. The best grades made from new cotton or linen rags, or from manila hemp, whereas the cheaper grades are made PG NO 21 from sulfate and sulfite pulps. The stock is beaten for a considerable period of time, often up to thirty hours, in order to develop maximum strength. The stock is only lightly sized. Calcium carbonate is often used as a filler, but the ash should not be over 5%. The basis weight is usually 4, 5 1/2, 7, or 10 lb. per ream (20 x 30 500). The 4 1b. paper is used when a large number of copies is to be made; the 5 and 7 lb. papers are suitable for ordinary work. Carbon paper under the specifications of the Indian Standard Institute, is described as follows: "Carbon Paper paper coated (generally on one side) with a pressure transferable pigmented layer, used for making copies at the same time as an original manuscript or typescript is made. " It is well settled, as mentioned before, that where no definition is provided in the statute itself, as in this case, for ascertaining the correct meaning of a fiscal entry reference to a dictionary is not always safe. The correct guide, it appears in such a case, is the content and the trade meaning. In this connection reference may be made to the observations of this Court in Commissioner of Sales Tax, U.P.v. S.N Bothers, Kanpur, AIR 1973 S.C.68 at page 80 para 5. The trade meaning is one which is prevalent in that particular trade where that good is known or traded. If special type of good is subject matte of a fiscal entry then that entry must be understood in the context of that particular trade, bearing in mind that particular word. Where, however, there is no evidence either way then the definition given and the meaning following from particular statute at particular time would be the decisive test. In the famous Canadian case in King V. Planters Nut and Chocolate Company Limited, [1951] C.L.R. exhibit 122 Cameron J. observed that it is not botanist 's conception as to what constitutes a fruit or vegetable. but rather what would ordinarily in matters of commerce in Canada be included there should be the guide. Similarly, this Court has held in Union of India and Anr. V. Delhi Cloth and General Mills Co. Ltd.; , at page 79 para 12 that the view of the Indian Standard Institute as regards what is refined oil as known to the market in India must be preferred in the absence of any other reliable evidence. It must be PG NO 22 emphasised in view of he regards what is refined oil as known arguments advanced in this case that the meaning should be as understood in the particular trade. In this case, we are construing not paper as such but a particular brand of paper with a meaning attributed to it. Sub item (2)of item 17 as was the position in 1976 paper referred to all kinds of paper including paper or paper boards which have been subjected to various treatments such as coating, impregnating. So, therefore, if all kinds of paper including coated paper is the goods, we have to find out the meaning attributed to those goods in the trade of those kinds of paper where transactions of those goods take place. It is a well settled principle of construction, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the legislature. This principle is well settled by a long line of decisions of Canadian, American, Australian and Indian cases. Pollock J. pointed out in Grenfell vs I.R.C., [1876] I exhibit D 242 at 248 that if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words "popular sense ' ' that which people conversant with the subject matter with which the statute is dealing would attribute to it. The ordinary words in every day use are, therefore, to be construed according to their popular sense. The same view was reiterated by Story, J. in 200 Chests of Tea, [ 1824] 9 Wheaton US 435 at 438 where he observed that the legislature does not suppose our merchants to be naturalists, or geologists, or botanists. See the observations of Bhagwati, J. as the learned Chief Justice then was, in Porritts & Spencer (Asia) Ltd. vs State of Haryana,[l9791] I S.C.C. 82. But there is a word of caution that has to be borne in mind in this connection, the words must be understood in popular sense, that is to say, these must be confined to the words used in a particular Statute and then if in respect of that particular items, an artificial definition is given in the sense that a special meaning is attached to particular words in the Statute then the ordinary sense or dictionary meaning would not be applicable but the meaning of that type of goods dealt with by that type of goods in that type of market, should be searched. In the instant case, we have "all kinds of papers including papers subjected to coating, impregnating etc. " If there is a market meaning or trade meaning of that kind of a paper that should be adhered to. In this case, there is no direct evidence how these peculiar goods are dealt with in the particular market dealing with PG NO 23 those goods. But there is evidence how these are to be understood in the light of the specifications of the Indian Standard Institute which we have mentioned before. It is instructive to refer in this connection a passage of the Tribunal 's decision in Kores (India) Ltd. Thane vs Collector of Central Excise, Thane, , where the Tribunal observed that on the point whether carbon paper is understood as a coated paper in trade, there is authority of the Indian Standards Institute 's publication "Glossary of Terms used in Paper Trade and Industry" IS: 4661. Therefore, understood in the accepted notion of construing entries of fiscal Statute not from a technical or scientific point of view but from the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standard Institute and in the absence of any other evidence to the contrary, the Tribunal was justified in holding that on the basis of the definition of paper as it was in the year 1976 carbon paper would come within item 17(2)of the Tariff Items. Learned counsel for the respondent placed reliance on the observations of this Court in State of Uttar Pradesh vs M/s. Kores (India) Ltd., [977] 1 SCR 837 where this Court was concerned with a notification under section 3 A of the U.P. Sales Tax Act, 1948 The question fell for consideration before this Court in that case was whether carbon paper was taxable as paper and further whether ribbon was accessory or part of typewriter. This Court reiterated that a word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. The word has to be understood according to the well established canon of construction in the sense in which persons dealing with and using the article understand it. For this principle this Court relied on the observations of Lord Tenterden in Attorney General vs Winstanley; , and the observations of Pollock, J. in Grenfell vs Commissioners of Inland Revenue, [ at 248. Pollock, J. was construing the Stamp Act, where he correctly emphasised that the words should be construed in popular sense meaning thereby the sense in which people conversant with the subject matter with which the Statute is dealing, would attribute to it. That is the correct test. This Court observed further at page 839 of the report that in popular parlance, the word 'paper ' is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls. Carbon paper is not commonly understood as paper. This Court thus held that paper simpliciter cannot include carbon paper because that would not be in consonance with the popular PG NO 24 understanding of the expression "paper". But where paper of a special type defined in the particular statute as one including paper which have been subjected to various treatments such as coating, impregnating, how that paper be understood, there must be evidence of that understanding. In the absence of that evidence, the natural meaning following from the expression used in the statute should be adhered to. In that light, it appears to us that in view of the facts of this c. se and in the principles of law as prevailing in 1976 papers of all kinds including paper with coating and impregnating and the views of the Indian Standard Institute, would include carbon papers . Learned counsel drew our attention to the decision of the Karnataka High Court in Khoday Industries Ltd. vs Union of India and Ors., where the learned single Judge held that carbon paper is an article of statutory classifiable under item 68 of the Central Excise Tariff al1d not under item 17(2) as coated paper prior to its amendment with effect from 27th February, 1982. He took into account the Trade Notice No. 56/76 and Tariff Advice No. 5/76. The Trade Notice No. 5/76. The issued by the Collector was based on the instructions issued by the Boarsl as per Tariff Advice No .5/76. Carbon paper was commercially recognised only as an article of stationery falling under item 68 of the Central Excise Tariff and not under Item 17(2). This was in respect of the position as it stood prior to 1976 when paper did not include coated paper or impregnated paper. It appears from the said judgment of the High Court that the Trade Notice 56/76 was issued by the Collector on 2nd March, 1976 and Item 17 was amended on 27th May, 11976 and sub clause (2) as amended among other things included coated paper. the trade notices and the tariff advices are not relevant, as such, in construing items in Tariff Schedule. In this connection, reference may be made to the observations of this Court in Orient Paper Mills Ltd. V. Union of India, ; where this Court observed that a quasi judicial body exercising quasi judicial power is not bound by the directions of the Board. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. Therefore, trade notices as such issued by the Board are not relevant considerations. The point which Shri Kapil, further, urged is that Item No. 17 was amended by the Finance Act of 1982 and two specific entries were added, namely, Items nos. 17(3) and 17(4) we have noted before. His contention was that if the PG NO 25 carbon paper was already there then there was no purpose of introducing these subsequent amendments. Shri Kapil relied on a Full Bench decision of the Government of India in the case of M/s. Colgate Palmolive (India) (P) Ltd., [1979] E.L.T. J 567 where the Government of India observed that it was well settled law that the proper rule of construction applicable to items and entries occurring in Excise Schedule should be to construe not in scientific or technical sense but in the sense as understood by the parties dealing with or commercially conversant with them. The Government of India relied on the observations of this Court in Dunlop India Ltd. vs Union of India, A.I.R. 1977 S.C. 597. So far as that principle is concerned, this is applicable. It must be understood by the persons dealing with this particular type of goods. We are concerned here not with paper simpliciter or how it is understood in common parlance but paper with a particular definition at the relevant time, namely, all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating) stated in that context. In that context, it cannot be said that carbon paper cannot be coated paper as such. Shri Kapil submitted that if carbon paper was there then there was no purpose for introducing two sub items by the Finance Act of 1982. The Finance Minister, however, observed in his speech (extract of para 123 at page 38 39 of Part 'B ' dated 27th February, l982) as follows: "123. I also propose to rationalise and restructure the tariff relating to paper and paper boards, the primary objective being to exempt small scale paper converters from payment of excise duty and to release them from excise control. In order to recoup the consequent loss in revenue, I propose to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem. However, certain converted papers of high value added categories are proposed to be subject to basic excise duty at 32 1/2 per cent ad valorem. Similarly, specified articles made of paper and paper board are proposed to be brought within the purview of the tariff item but effectively restricting the levy to printed cartons and printed boxes. It appears that the Finance Minister was adding two items, one was 17(3) carbon and other copying papers and the second was 17(4) boxes, cartons, bags and other packing containers. He mentioned in his speech that in order to recoup the consequent loss in revenue, he proposed to raise PG NO 26 the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1i2 per cent ad valorem. Tariff Advice No. 5/76 contained the following statement: "TARIFF ADVICE No. 5/76 (BOARD 'S LETTER F. No. 61/2/73 CX. 2 dated 12.2.76.) Sub: Paper Carbon paper and Stencil Paper Whether excisable under Item No. 17 of. A doubt has been raised whether carbon/stencil paper, produced by conversion of duty paid base paper, should be treated as paper falling under tariff item 17(4) of Central Excise Tariff or as on item of stationery, outside the scope of item No. 17 of C.E. Tariff. The matter was considered in the Central Excise Tariff Conference held at Cochin on the 13th to 15th November, 1975. It was reported that carbon paper/stencil paper is sold in the market mostly cut to size by retail stationers. The Indian Customs Tariff Guide has also treated Carbon paper as an item of stationery and not as paper. The Conference was therefore, of the view that carbon paper/stencil paper, were commercially recognised only as articles of stationery. The Board is accordingly advised that carbon paper and stencil paper should he treated as articles of stationery. and therefore outside the purview of item No. 17 C.Ex . Tariff. 4 Receipl of this letter may kindly be acknowledged. These are relevant or proper materials to apply to construe the meaning of the Tariff Item. Moreover. in proper light these do not militate against the view that carbon paper in 1976, was included in the special type of paper. as defined at that time. In the aforesaid view of the matter, we are of the opinion that as at the relevant time the definition of paper PG NO 27 being paper board and all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating and impregnating and in the light of the I.S. specifications as noted hereinbefore and there being no other reliable evidence as to how coated paper is understood in the market, except the opinion of the Indian Standard Institute in its specifications, in our opinion, the Tribunal was not right in the view it took . The Tribunal in Kores (India) Ltd., Thane, vs Collector of Central Excise, thane, (supra) expressed the view that carbon would fall under item 17(2) of the Tariff Items relying on ISI specifications. There was authority of the Indian Standards Institute 's publication "Glossary of Terms used in paper Trade and Industry" Is 4661. In view of the facts as appeared in paragraph 14 of the Tribunal 's judgment in Kores (India) Lid. ,Thane, vs Collector of Central Excise,Thane, (supra), where the basis of the classifications of ISI in its specifications is explained, we are of the opinion that the carbon paper fell under item 17(2) as it stood at the relevant period germane for this appeal, before 1982, and not in residuary item No.68 of C.E.T. Learned Solicitor General submitted that this amendment so tar as item 17(3) was concerned was mere clarificatory and was introduced ex abundanti cautela. Our attention was drawn to the decision of this Court in Md. Qasim Larry, Factory Manager,Sasamusa Sugar Works vs Muhammad Samsuddin and Anr., [1964] 7 S.C.R.419 where the Court was concerned with the question whether the term "wages" as defined by section 2(vi) of the including wages fixed in an industrial dispute between the employer and the employee. The question had to be answered in the light of the definition prescribed by section 2(vi) before it was amendement in 1958. The subsequent amendment expressly provided by section 2(vi)(a) that any remuneration payable under any award or settlement between the parties or order of a Court. would be included in the main definition under section 2(vi). In the view we have taken on the construction of the expression as it stood in the relevant time, it is not necessary to rest our decision on the question whether the amendment was clarificatory or not. In the light of the evidence referred to by the Tribunal in Kores (India) Ltd. Thane vs Collector of Central Excise Thane, (supra) and in the light of the definition of paper in C.E.T. Item 17( l ) as it stood at the relevant time, it is sufficient to hold that it was covered by item 17(2) of PG NO 28 C.E.T. and would not fall into the residuary entry. In that view of the matter, the decision of the Tribunal cannot be sustained on this point and the appeal must be allowed. However, as the point of limitation has not been decided by the Tribunal, we remand the case back to the Tribunal to decide that question having regard to the facts found in this case. The appeal is, therefore, disposed of in the light of what is stated aforesaid. In the facts of this case, the parties will pay and bear their own costs. R. S . section Appeal disposed of.

In exercise of the powers conferred upon it by section 3 of the Commissions of Enquiry Act, 1952, the Central Government by a notification dated December 11, 1956, appointed a Commission of Inquiry to inquire into and report in respect of certain companies mentioned in the Schedule attached to the notification and in respect of the nature and extent of the control and interest which certain persons named in the notification exercised over these companies. By subsequent notifications the Central Government made all the provisions of sub sections (2), (3), (4) and (5) Of section 5 Of the Act applicable to the Commission and fixed a period Of 2 years from February 11, 1957, as the period within which the Commission was to exercise its function and to make its report. The four persons named filed three applications under article 226 of the Constitution before the Bombay High Court questioning the validity of the Act and of the notification and praying for writs for quashing the same. The High Court dismissed the applications and ordered that the said notification was legal and valid except as to the last part of cl. 10 thereof which empowered the Commission to recommend the action which should be taken as and by way of securing redress or punishment or to act as a preventive in future cases. The petitioners as well as the Union of India filed appeals : Held, that the Act wag ' valid and intra vires and that the notification was also valid excepting the words " as and by way of securing redress or punishment " in cl. 10 thereof which went beyond the Act. The Act was enacted by Parliament under entry 94 of List I and entry 45 of List III of the Seventh Schedule of the Constitution which relate to inquiries for the purposes of any of the matters in List I and in Lists 11 and III respectively. The inquiry which may be set up by a law made under these entries is not limited, 280 in its scope and ambit, to future legislative purposes only. Such a law may also be for administrative purposes and the scope of the inquiry under such a law will cover all matters which may properly be regarded as ancillary to such inquiries. The Act does not delegate to the Government any arbitrary or uncontrolled power and does not offend article 14 Of the Constitution. The discretion given to the Government to set up a Commission of Inquiry is guided by the policy laid down in the Act that the executive action is to be taken only when there exists a definite matter of public importance into which an inquiry is necessary. Kathi Raning Rawat vs State of Saurashtra, [1952] section C. R. 435, applied. The Commission is merely to investigate, record its findings and make its recommendations which are not enforceable proprio vigore. The inquiry or report cannot be looked upon as judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently Parliament or the Government cannot be said to have usurped the functions of the judiciary. The notification was well within the powers conferred on the Government by section 3 Of the Act and did not go beyond the provisions of the Act. The conduct of an individual person or company or a group of individual persons or companies may, in certain circumstances, become a definite matter of public importance within the meaning Of section 3(i) and call for an inquiry. Besides, section 3 authorises the Government to appoint a Commission. of Inquiry not only for the purpose of making an inquiry into a definite matter of public importance but also for the purpose of performing such functions as may be specified in the notification. It has not been established that the petitioners and their companies have been arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. In matters of this kind the Government has of necessity to act upon the information available to it. It is the best judge of the reliability of the source of the information and if it acts in good faith and honestly comes to the conclusion that the act and conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance the Court will be slow to adjudge the action to be bad and illegal. The bare possibility that the powers may be misused or abused cannot Per se make the power bad. The power having been entrusted to the Central Government and not to any petty official, abuse of power cannot be easily assumed. In determining whether there is any intelligible differentia on the basis of, which the petitioners and their companies have been grouped together it is permissible to look not only at the facts appearing in the notification but also the facts brought to the notice of the Court upon affidavits. The facts in the present case 281 afford sufficient support to the presumption of constitutionality of the notification and the petitioners have failed to discharge the onus which was on them to prove that other people or companies, similarly situated have been left out and that the petitioners and their companies have been singled out for discriminatory and hostile treatment. The recommendations of the Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. There can be no objection to the Commission recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to delinquents in future. But the Commission cannot be asked to make recommendations for taking any action " as and by way of securing redress or punishment " in respect of wrongs already done or committed as this is the function of a Court of law. Even though the original notification appointing the Commis sion did not fix the time within which the Commission was to complete its report the Government could validly do so by a subsequent notification.

vil Appeal No. 105 of 1951. On appeal from the judgment and decree dated the 22nd November, 1946, of the High Court of Judicature at Allahabad (Verma c. J. and Mathur J.) in First Appeal No. 310 of 1941 arising out of judgment and decree dated the 4th March, 1941, of the Court of the Senior Civil Judge of Pauri, Garhwal, in Original Suit No. 1 of 1934. K.S. Krishnaswamy lyengar (R. C. Ghatak and N.C. Sen, with him) for the appellants. S.K. Dar (D. D. Unival, with him) for the respondent. 850 1952 May 9. The Judgment of the Court was delivered by MUKHERJEA J. The sanctity which orthodox Hindu thought and feeling attribute to visiting of sacred places is nowhere better illustrated than in the vast concourse of pilgrims, who are attracted every year, from all parts of India, to the mountain shrines at Badrinath, situated, high up in the Himalayas, in the District of Garhwal. The place to which the appellation of 'Puri ' is given, contains a number of temples but the principal temple is the one where the idol Badrinath along with some other subsidiary idols is installed. This main temple is divided into three por tions or apartments, and to the innermost portion which is considered to be the holiest and where the deities are located, no pilgrim is allowed access. The pilgrims gather in the middle room; they have 'darshan ' or look at the deity from this place and there also they make their offerings and perform other rites of individual worship. The last room is an outer apartment which is used as a sort of waiting place for the worshippers. Outside the temple and at a short distance from it, there is a hot spring known as Tapta Kundu where the worshippers take ceremonial bath before they enter into the temple and to the Tapta Kundu they come back again after the ceremonies are over. The temple at Badrinath is an ancient institution and is admittedly a public place of worship for the Hindus. The chief priest or ministrant of the temple is known by the name of 'Rawal ' who originally looked after both the spirit ual and temporal affairs of the idol subject to certain rights of supervision and control exercisable by the Tehri Durbar which, however, were not very clearly defined. It appears that there was a scheme for the management of the temple framed by the Commissioner of Kumaun Division, within whose jurisdiction Badrinath is situated, some time in the year 1899. Under this scheme, the 'Rawal ' was to be the sole 851 trustee of the Badrinath temple and its properties, and the entire management was entrusted to him subject to his keeping accounts, which he had to submit for approval by the Tehri Durbar, and making arrangements for the disposal and safe custody of cash receipts and other non perishable valuables. This scheme apparently did not work well and led to constant friction between the 'Rawal ' on the one hand and the Tehri Durbar on the other. This unsatisfactory state of affairs led to public agitation and demand for reforms, and in 1939, the U.P.Legislature passed the Sri Badrinath Temple Act, the object of which was to remove the chief defects in the existing system of management. The Act restricts the ' Rawal ' to his priestly duties and the secular management is placed in the hands of a small committee, the members of which are partly elected and partly nominated, powers being reserved to the Government to take steps against the commit tee itself, if it is found guilty of mismanagement. The Act preserves the traditional control of the Tehri Durbar. The appellants before us, who were the plaintiffs in the trial Court, claim to be Pandas associated with the Badri nath temple. The Pandas are Brahmans belonging to the priestly class and are found to exist in almost all impor tant public places of worship in India. They are not temple priests in the proper sense of the expression and have nothing to do with the regular worship of the idol which is carried on by the Shebayat, the High Priest or the manager as the case may be. Their chief duty consists in acting as guides or escorts of the pilgrims, and taking them to var ious places of worship acquainting them at the same time with detailed information regarding the reputed sanctity of each. They look after the comforts of the pilgrims and make arrangements for their boarding and lodging and also act as Tirtha Purohits, in which capacity they assist the pilgrims in the performance of various acts of individual worship as distinguished from the general worship which is conducted by or on behalf of the temple authorities. 852 It is admitted that there are several classes of Pandas in Badrinath and the Deoprayagi Pandas to which category the plaintiffs belong get normally the charge of all the pil grims that come from the plains, whereas the Pandas of the 'Dimri ' class act as attendants on all hill people. the people coming to Badrinath from the plains generally follow the pilgrim 's route from. Hardwar to Badrinath and in this route, at a distance of about 58 miles from Hardwar, stands the place known as Deoprayag where all the Deoprayagi Pandas reside. It is in the light of these few introductory facts that we propose to follow the history of this litigation and deal with the points in controversy that it has given rise to. The suit was commenced by the appellants in the Court of the Senior Civil Judge of Garhwal on 16th April, 1934, and the only defendant in the suit, as it was filed originally, was the 'Rawal ' who was at that time in entire charge of the Badrinath institution, both as Trustee and High Priest. The suit was a representative one and purported to be brought on behalf of all the Deoprayagi Pandas, and permission of the Court under Order I, rule 8, of the Civil Procedure Code was duly taken. The allegations in the plaint in substance are that the plaintiffs who are a body of Brahman Purohits residing at Deoprayag and also at Badrinath have the right, by immemorial custom, to act as Pandas and 'Tirtha Purohits ' of the pilgrims at Badrinath. It is said that in performance of their duties they meet the pilgrims at Hardwar and con duct them throughout the pilgrimage to different places of sanctity and finally to Badrinath itself. Besides looking to their creature comforts, they assist the pilgrims, while they stay at Badrinath, in having their ceremonial ablutions in the 'Tapta Kundu ' and then conduct them into the pre cincts of the temple and assist them in having 853 'darshan ' of the idols and making offerings to them. The plaintiffs aver that because of the support that they lent to the transfer of the management of the temple from the 'Rawal ' to the Tehri Durbar, the defendant 'Rawal ' was displeased with them and in August 1933, wrongfully and without any just cause or excuse. obstructed and threatened to obstruct the plaintiffs from entering the precincts of the temple along with their Yajmans or clients and unlawful ly restrained them from assisting the pilgrims in the usual way at the time of 'darshan ' and worship of the deities inside the temple. The reliefs prayed for in the plaint after it was amended stand as follows : (1) That a declaration be granted that the plaintiffs are the Pandas of Badrinath temple and that they have a right to personally go into the precincts of the Badrinath temple at all times and on all occasions without obstruction when the said temple is open for doing 'darshan ', worship etc. (2) That the plaintiffs have the right freely to go into the precincts of the said temple with their Yajmans or clients whenever it is open for assisting them in the matter of 'darshan ' or worship of God Badrinarayan and other dei ties and in the matter of making offerings to them. (3) That the plaintiffs have the right to take within the precincts of the said temple whatever is put into their hands as gift by their clients at the time of worship etc. (4) That a perpetual injunction be issued restraining the defendant 'Rawal ' from interfering with the immemorial rights of the plaintiffs. The defendant, in his written statement, admitted that the Pandas did sometimes accompany rich pilgrims as their guides and receive presents from them for the services they rendered. It was also admitted that the plaintiffs in their individual capacity as Hindus had the right to enter the temple of Badrinath for purposes of worship. It was assert ed, however, 854 that it was neither necessary nor desirable that the plaintiffs should. be allowed to accompany their Yajmans or clients into the temple, as the defendant himself made adequate arrangements for 'darshan ' and worship by the.pilgrims; and he, as the sole trustee and manager of the temple, had the right to regulate entry into the temple so that over crowding might be avoided and order maintained inside it. It was further pleaded that the suit of the plaintiffs was barred by res judicata and the law of limita tion. On these pleadings, two issues of a preliminary nature were framed by the Civil Judge, one of them being, whether the plaintiffs ' suit was barred by res judicata. This issue was decided against the plaintiff and the Civil Judge dis missed the suit on 18 9 1934 holding that the suit was barred by the rule of res judicata, as an earlier suit brought by five of the Deoprayagi Pandas and claiming iden tical reliefs against the 'Rawal ' was dismissed by the Commissioner of the Kumaun Division in the year 1896. Against this order of dismissal, an appeal was taken by the plaintiffs to the High Court of Allahabad and a Division Bench of the High Court, by its judgment dated 23rd May, 1938, reversed the decision of the Civil Judge on this preliminary point and remanded the case for hearing of the suit on its merits. The case then went back before the Civil Judge and while it was still pending, the Sri Badrinath Temple Act was passed. A temple committee being formed in accordance with the provisions of this Act. the said committee through its Secretary, was impleaded as Defendant No. 2 in the suit. The committee filed a fresh written statement in which certain additional grounds were taken. It was contended primarily that the suit as framed, was not maintainable by reason of the provisions of Sri Badrinath Temple Act of 1939, which abrogated all previous rights and customs and vested the ownership of the temple and its endowments in the temple committee. It was asserted, further, that all gifts made within the precincts of the temple would vest in the temple 855 committee under section 3(b) of the Act and that the commit tee had the absolute right to regulate entry of persons inside the temple. A number of issues were framed after this written state ment was filed, and on hearing the evidence adduced by the parties, the Civil Judge disposed of the suit by his judg ment dated 4th March, 1941. The suit was decreed in part and the plaintiffs were given a declaration in their favour on one of the points in an attenuated and restricted form. Besides certain pleas in bar which were raised by the de fendants in their written statements and in regard to which the trial judge 's decision was in favour of the plaintiffs, the substantial controversy between the parties centred round the two following points: (1) Whether the Deoprayagi Pandas could accompany their Yajmans or clients inside the temple and assist them in the 'darshan ' and worship of the deities (2) Whether the Pandas would have the right to accept within the precincts of the temple whatever was paid by the pilgrims as gifts or presents to them and not to the temple ? As regards the first point, the learned Civil Judge reviewed the entire evidence relating to the practice of admitting the Pandas along with their Yajmans inside the temple, as it obtained from very early times down to the date of the institution of the suit. It appears that in 1892 certain rules were framed by the then 'Rawal ' for regulation of pilgrims in the Badrinath temple, and to these rules the Commissioner of Kumaun Division accorded his sanction on 4th July, 1892. One of these rules, namely Rule (3), expressly laid down that "at the time of 'darshan ' by the pilgrims, no other persons and Pandas shall be allowed to go inside the temple along with the pilgrims". On 22nd October, 1894, an application was filed before the Commissioner of Kumaun Division by some residents of Deoprayag complaining of unjust prohibition from entering the temple by the new manager and it was prayed that directions might 111 856 be given to the said Manager to desist from encroaching upon the time honoured rights of the Pandas. On 28th October 1894, the Commissioner ordered that a copy of the petition might be sent to the Manager. for report and in the body of the order he recorded his opinion that "the duty of the Pandas consists normally in escorting the pilgrims to the temple precincts. Their entering the temple can be permitted when they did so as pilgrims. " The petition was eventually rejected, and on 19th August, 1895. five Deopray agi Pandas filed a suit in the Court of the Deputy Collec tor, Garhwal, who was invested with the powers of a Civil Court, praying for a declaration of their right to go inside the temple with their Yajmans which the 'Rawal ' was not willing to allow unless he gave special permission. The trial court allowed the plaintiffs ' prayer but, on appeal, the judgment was reversed and the suit was dismissed. This order of dismissal was affirmed on Second Appeal by the Commissioner of Kumaun Division who had the powers of a High Court in regard to this area, by his order dated 9th March, 1896. This is the earlier decision on the strength of which the plea of res judicata was taken by the defend ant in the present suit. According to the learned Civil Judge, after the rules as mentioned above were framed in 1892 and the judgment of the Commissioner, Kumaun Division, in the Civil Suit was given in 1896, it was the 'Rawal ' who decided whether or not he would give permission to any particular Panda to go inside the temple as an escort of his Yajmans and practice was almost uniform on this point down to the year 1903. The same practice prevailed, according to the learned Judge, from 1903 to 1920. From 1921, however, the practice became lax to a great extent and from the evidence of respectable witnesses examined on behalf of the plaintiffs, the learned Judge was of opinion that in many cases the Pandas were able to go inside the temple without any let or hindrance and without seeking any express permission from the 'Rawal '. A definite challenge to the rights of the Pandas occurred again in 1933 which led 857 to the institution of the present suit. After reviewing this evidence, the learned Civil Judge discussed the provi sions of the Shri Badrinath Temple Act bearing on this point ,and summed up his conclusions as follows: "In my view under the scheme of the Shri Badrinath Act, the Pandas or pilgrims have no absolute right to go inside the temple, regardless of the conditions imposed by the Committee about entry into the temple, but ordinarily in the entry of the pilgrims or Pandas is in accordance with the rules or bye laws framed by the Committee the pilgrims can always go inside accompanied by their Pandas, who are enti tled as devout Hindus to go inside the temple, and perform worship there, and can assist their Yajmans also. In other words, there is no right of the plaintiffs which has to be recognised, and can be recognised, on the grounds of custom, usage, or otherwise, that they can without any let or hin drance and regardless of the conditions imposed by the Committee, enter the temple with the pilgrims whenever they like. Like other pilgrims, and persons who are all subject to the control of the conditions that may be imposed by the Committee, the Deoprayagi Pandas can also enter the temple, perform worship there, and even help their Yajmans who happen to be inside the temple. To lay down an absolute prohibition against them would not be in accordance with the provisions of Shri Badrinath Temple Act, and similarly to recognise that they have an absolute right to enter the temple with the pilgrims, would also nullify a number of provisions in the Shri Badrinath Temple Act. Issue No. 2 is decided accordingly in the negative, but subject to recogni tion of the conditional right of the plaintiffs to accompany their pilgrims and help them in the 'darshan ', as mentioned above subject to the control of the Committee. " In spite of this finding, which is certainly not very definite the Court dismissed in toto the plaintiffs ' prayer No. 2 in the plaint, the reason given being that 858 no absolute right as was claimed by the plaintiffs was established on the footing of a custom or otherwise. As regards the other point, the learned Judge was of opin ion that although a Panda had no absolute right to go inside the temple along with his clients, yet if the commit tee or the temple authorities allowed him to do so, there was nothing in law or custom which could prevent him from accepting a gift which any pilgrim might desire to make in his favour. The result was that the learned Judge gave the plaintiffs a declaration in the following terms : "The plaintiffs ' suit is decreed for a declaration that they have a right to accept within the precincts of the temple whatever was put into their hands as gifts (Dan or Dakshina or Shankalp) by the pilgrims, for the benefit of the plaintiffs and not the temple, and to retain such gifts for their personal benefit. This right is however subject to the administrative control of the temple committee so far as the maintenance of order and decency and the enforcement of proper behaviour within the temple are concerned. The exercise of this right will further be restricted by any special or general conditions imposed by the Committee of management under any bye law framed by it in accordance with the provisions of Shri Badrinath Temple Act or any other special law that may hereafter be applicable to the temple. " The rest of the plaintiffs ' claim was dismissed. Against this judgment, the plaintiffs took an appeal to the High Court of Allahabad. The defendants also preferred cross objections challenging the propriety of that part of the trial Court 's decree which was in favour of the plain tiffs. The appeal was heard by a Division Bench consist ing of Varma C.J. and Mathur J. and, by their judgment dated 22nd November, 1946, the learned Judges dismissed the plaintiffs ' appeal and allowed the cross objections filed by the defendants. Thus, the decision resulted in a total dismissal of the plaintiffs ' suit. It is from this judgment that the present appeal has come before us, 859 It was held by the High Court that the plaintiffs failed miserably to establish that there was any immemorial usage in existence under which they were entitled to accompany the pilgrims, as of right, inside the precincts of the temple. It was held also that even if any such usage existed, that must be deemed to have been abrogated by the provisions of Shri Badrinath Temple Act, and reference was made in this connection to section 25 (1)(m) of the Act, which empowers the temple committee to frame bye laws not inconsistent with the provisions of the Act for the "maintenance of order inside the temple and regulating the entry of persons there in. " It is to be noted that after the judgment of the trial court was delivered and the appeal came up for hearing before the High Court, the Badrinath Temple Committee passed a resolution which was approved of by the Governor of the U.P. State, and was to the following effect : "Subject to the provision of bye laws and any direction given by the committee, the Pandas can accompany their Yajmans within the temple. " This resolution was communicated to the plaintiffs by the 2nd defendant by a letter dated 29th May, 1942, and undoubtedly after passing of this resolution, the grievance of the plaintiffs in regard to temple entry disappeared to a large extent. The High Court however, refused to give the plaintiffs a declaration of their right in this respect even in a limited form as, in its opinion, the plaintiffs could not claim such declaration as a matter of right. The view taken by the High Court seems to be that it is entirely for the committee to decide, whether the Pandas should be al lowed to enter the temple at all, and, if so, to what extent and under what conditions. On the other question relating to the right of the plaintiffs to accept gifts made in their favour by the pilgrims within the precincts of the temple, it was held by the High Court that under section 3 (b) of the Shri Badri nath Temple Act, such gifts would become part of the endow ment,. and the donees would be 860 incapable of laying any claim to the same. It was further, held that bye law (8) of the Puja Bye laws framed by the temple committee which prevents a person other than those whose rights have been specifically recognised by the Committee, from receiving any gifts within the precincts of the temple, was quite a legitimate provision the making of which was within the rule making authority of the committee of management. It was held, therefore, that in view of this rule, the plaintiffs ' claim in regard to receiving of gifts within the temple was not maintainable in law. Mr.Iyengar, appearing in support of the appeal before us, has assailed the propriety of the High Court 's decision on both these points. The first point that requires consideration is whether the plaintiffs can, on the facts admitted and found in this case, claim a declaration of their right to accompany the Yajmans or clients inside the Badrinath temple and assist them in having 'darshan ' of the deities and in performing such ceremonies as individual worshipers may perform. Mr. Dar, who appears on behalf of the respondents, draws our attention to the fact that this right has practically been conceded by the temple committee in their resolution passed in March, 1942, referred to already, The learned counsel has very fairly stated. to us that he would have no objection if the plaintiffs are given a declaration of their rights in this respect in some suitable form as might safeguard their. interest, without in any way trenching upon the rights of temple committee and thereby obviate all disputes in the future. It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact ha.s been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of 'darshan ' or worship is a right 861 which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or in memorial usage need be asserted or proved. As the Panda as well as his client are both Hindu worshippers. there can be nothing wrong in the one 's accompanying the other inside the temple and subject to what we will state presently, the fact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of 'darshan ' or worship of the deities or that the landa gets remunera tion from his client for the services he renders, does not in any way affect the legal rights of either of them. In law, it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them. If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise. This right of entry into a public temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the Holy of Holies ' where the deity is actually located. Quite apart from these, it is always competent to the temple authorities to make and enforce rules to ensure good order and decency of worship and prevent overcrowding in a temple. Good conduct or orderly behaviour is always an obligatory condition of admission into a temple (1), and this principle has been accepted by and recognised in the Shri Badrinath Temple Act, section 25 of which provides for framing of bye laws by the temple committee inter alia for maintenance of order inside the temple and regulating the entry of persons within it(2). (1) Vide Kalidas Jivram vs Gor Parjaram, I.L.R. 15 Bom. p. 309; Thackeray vs Harbhum, I.L.R. 8 Bom. p. 432. (2) Vide Section 25 (1)(m). 862 The true position, therefore, is that the plaintiffs ' right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form. We now come to the other point which is the real bone of contention between the parties to this appeal, and the question for consideration is whether the plaintiffs are entitled to a declaration that they have a right to take, within the precincts of the temple, whatever is put into their hands as gifts by their clients at the time of wor ship. The trial court, as pointed out above, gave the plaintiffs a qualified declaration on this point, though the High Court rejected this claim altogether. Mr. Iyengar has vehemently assailed the propriety of the grounds upon which the decision of the High Court rests, whereas Mr. Dar has contended inter alia that the claim of the plaintiffs under this head is wholly untenable in view of the provision of bye law (8) of the Puja Bye laws framed by the temple committee. It may be stated at the outset that as the gift, if any, which a pilgrim might choose to make within the temple precincts is entirely a voluntary act on his part and as he could not be compelled to make a gift either in favour of the Pandas or anybody else, there could strictly speaking, be no legal right in the plaintiffs to receive any gift from his client which can be declared by a court of law. The plaintiffs do accept the position that the pilgrims are not bound ' to give anything to the Pandas by way of Dakshina or sacrificial fee at the conclusion of the ceremonies in the temple; but what they say is this that if the pilgrims choose to make any gift to them, the temple committee could 863 not, in law, prevent the latter from accepting the same and treat such gifts as part of the temple property. It is argued that bye law (8) of the Puja Bye laws is illegal and ultra vires and cannot take away the legal right of the donee to the gifted property under the ordinary law which has not been and cannot be affected in any way by the provi sions of the Sri Badrinath Temple Act. A number of respectable witnesses examined on behalf of the plaintiffs do say that when they went on pilgrimage to Badrinath they made gifts to their Pandas inside the temple at the close of the ceremony of darshan and worship. But the evidence taken, even at its face value, does not estab lish that the practice of making gifts to Pandas within the temple is a general one or that the pilgrims ,regard it as an indispensable part of the ceremony of worship; many of the witnesses plainly admit that they do not remember to have made any gifts at all within the temple precincts and others say that they paid dakshina or sacrificial fees to all the Brahmans who were found inside the temple at that time and not exclusively to their Pandas. It is also stated that suphal or final blessing is Obtained from the Pandas by the pilgrims after making presents to them at the place called Tapta Kundu where the hot spring lies which is outside the temple. Mr. Iyengar has drawn our attention to certain texts from the Kedar Kanda of Skanda Purana which describe the glory of the deity Badrinath, to show that it is a religious duty enjoined by the Hindu scriptures that a worshipper who goes to Badrikasram should make gifts to Brahmans after the darshan of the idol is obtained and offerings are made to it. An English rendering of the passages relied upon by the learned counsel would read thus: "After having bathed in the Ganges, in the Narada Hrada (Kund) and others (Hradas), one (worshipper) shall bathe in the Vahni Tirth ( Tapta Kunda) after performing the obliga tory duties and with his mind 112 864 kept under control, he shall go into the temple of Badri nath with his. mind concentrated on Shri Hari. He shall make offerings to the best of his capacity and with utmost devo tion. Then he shall look at the All Pervading Narayana from crown to foot, and HERE make gifts to Brahmans to the best of his capacity. Thereafter, he shall do PRADAKSHINA (go round) with the utmost devotion. Then he shall come back to the Tirthas (Vahni Tirtha etc.) and make gifts according to his means"(1). It cannot and is not disputed that according to ortho dox Hindu ideas, gift to Brahmans is considered as a merito rious act and there are texts, to some of which Mr. Iyengar drew our attention, which extol the merits of such gifts when made at a sacred place or within a temple or on the banks of a holy river. It may be as Mr. Iyengar suggests that the idea of making gifts within the temple had its origin in the religious texts to which the learned counsel drew our attention. But, the point that requires considera tion in the present case is a different and much narrower one. The question is whether under the powers of making bye laws which are conferred by the Sri Badrinath Temple Act upon the managing committee, the latter could make a rule as they have done, by which all persons other than those whose rights are specifically recognised are disabled from receiv ing gifts within the precincts of the temple. It is perfectly true that under the general law, nobody can be prevented from accepting a gift which another person may be inclined to make in his favour, and it is immate rial in such cases at what place the gift is actually made. One has to enquire, therefore, on what grounds the committee can interdict the taking of any gifts within the temple precincts. The High Court seems to be of opinion and this view is sought to be supported on behalf of the respondents before us that the Sri Badrinath Temple Act itself has in express (1) Skanda purana, Kedar Khand, Badri Mahatma, Chapter VI, Verses 46 49. 865 terms abrogated the rights of the donee in regard to a gift made to him within the ,temple and as such gifts come within the definition of 'endowment ' as given in the Act, the temple committee gets a controlling hand over them and can make any regulations in relation thereto. Reliance is placed in this connection upon section a (b) of the Sri Badrinath Temple Act which lays down that the expression "endowment" in relation to the Act "means all property moveable or immoveable belonging to or given or endowed for the maintenance or improvement of, or additions to, or worship in the temple, or for the performance of any service or charity connected therewith and includes the idols in stalled therein, the premises of the said temple and gifts of property made to anyone within the precints of the tem ple. " The definition is undoubtedly couched in very wide language but it is to be noted that under section 4 of the Act which deals with the vesting of property, a gift does not vest in the temple at all unless it is made for the benefit of the temple or for the convenience, comfort or benefit of the pilgrims. It is conceded by Mr. Dar that a gift intended for the personal benefit of the Pandas cannot vest in the temple and this is quite in accordance with the existing principles of Hindu law. He contends, however, that such gifts could not vest in the donee, as well, in accordance with the definition of ' 'endowment" given in section a (b) of the Sri Badrinath Temple Act. In other words, according to the interpretation which he would like to put upon sec tion 3 (b) of the Act, such gifts should be regarded as totally void after the passing of the Act and consequently title to the thing given would still remain in the donor even after the gift is made. This does not seem to us to be a sound view to take. If a legislation wants to take away the proprietary right which a person acquires under the ordinary law, it must express its intention in clear and unambiguous terms. We are unable to spell any such intention out of the language used in section 3 (b) of the Sri 866 Badrinath Temple Act. It may be that the wording of this sub section is defective and that there is an apparent conflict between the provision of this sub section and that of section 4 of the Act. It is an arguable point whether the expression "gifts of property made to any one" should not be construed to mean grits made to any one for the benefit of the temple or for other purposes as are specified in section 4. But it is not necessary for our purpose to express any opinion on that point in the present case. All that we desire to say is that there is nothing in the Sri Badrinath Temple Act which lays down that a gift made to any person inside the temple and intended for the benefit of that person shall not belong to him. But, even if the gifts made within the temple and intend ed for the benefit of the donee personally cannot vest in the temple under section 4 04 the Sri Badrinath Temple Act, the question still remains whether the committee in exercise of their powers to make bye laws, can frame a rule that no such gifts should be allowed to be made within the temple and whatever gifts the pilgrims might choose to make in favour of any person which is unconnected with offerings to the deity must be made outside the temple precincts. Section 25 of the Act empowers the committee to make bye laws not inconsistent with the Act or the rules made thereunder or any other law for a variety of purposes which are enumerated in the different clauses of the sec tion; and clauses (m) and (n) run as follows: (m) The maintenance of order within the temple or inside the temple and regulating the entry of persons there in; and (n) The performance of duties prescribed in section 2:3. Section 23 lays down the duties of the committee and sub section (9)prescribes it to be duty of the committee to do all such things as may be incidental and conducive to the efficient management of the temple and endowments and the convenience of the 867 pilgrims. In our opinion, bye law (8) of the Puja Bye laws referred to above, ' which forbids the acceptance of the gifts by any person within the temple, unless he comes within the category of persons specifically authorised by the committee to receive the same, is a perfectly legiti mate bye law which it was quite competent for the committee to enact under the terms of clauses (m)and (n)of 25 referred to above. It will be remembered that the religious duty to make gifts within the temple or at sacred places which is enjoined on Hindu worshippers by the texts relied upon by Mr. Iyengar has no particular reference to the Pandas who accompany the worshipper. The injunction is to make gifts in favour of Brahmans generally and the Pandas, because they are Brahmans and happen to be available at the spot, naturally become recipients of such gifts. It is a thing too well known to require mention that in many of the Hindu temples of renown in India, the pilgrims after their worship is finished, or even before that, are literally beseiged by an army of mendicants including many Sadhus or ascetics, the begging Brahmans who abound in all sacred places, and even people who are associated with various duties in the temple itself. The presence of a large number of such persons who certainly do not come inside the temple as worshippers is positively detrimental to the maintenance of good order, decency and solemnity in the temple and not unoften it is a source of very great annoyance and discomfort to the pil grims themselves. It seems to us that one of the objects which the temple committee had in view in framing these byelaws was to prevent this religious mendicancy showing it itself in an unseemly manner within the precincts of the temple itself, Bye law 8 of the Puja Bye laws referred to above, which prevents taking of a gift by any person within the temple, lays down, further,that the permanent employees of the temple shall not receive or solicit for any remunera tion, reward or Dakshina in any form from the pilgrims. This prohibition is not confined to the temple but extends also 868 to places outside it. Then again, bye law 15 specifi cally provides that no Sadhu or beggar shall beg or sit for begging for alms within the temple. We think, therefore, that for the purpose of preventing overcrowding within the temple and to ensure order, decency and worshipful behaviour on the part of those who enter into it, the committee was quite justified in framing this bye law which lays down in substance that whatever gifts a pilgrim might be desirous of making and which is unconnected with the offerings to the deity shall be made outside the temple precincts and not inside it. In our opinion, the Pandas do not stand. to lose anything by reason of this regulation and their grievance is more or less a sentimental one. As we have said already, the gift intended for the Pandas can under no circumstances vest in the temple, but a regulation of this character could certainly be deemed to be necessary as conducive to efficient management of the temple and endowments, the convenience of the pilgrims and the maintenance of order and decent behaviour within the temple precincts. We do not see how such bye law can be said to be, in any way, inconsistent with the provisions of the Act. It is certainly confined to the circumstances contem plated by the Statute itself and is not repugnant to the general principles of Hindu law which we have referred to already. It does not, in our opinion, take away the proprie tary right of any person which is recognised under ordinary law. Thus, although we cannot agree with the High Court of Allahabad regarding the interpretation that it has put upon sections 3 (b) and 4 of the Act, we think that bye law 8 of the Puja Bye laws is perfectly valid and is within the ambit of the powers conferred upon the committee by section 25 of the Act. The appeal is thus allowed only in part. The plain tiffs shall have a declaration that they are entitled to accompany their Yajmans inside the temple subject to any bye law or rule made by the committee in proper exercise of their powers under section 25 of 869 the Sri Badrinath Temple Act. The other prayer of the plaintiffs is rejected. As the appeal succeeds in part and as it raised ques tions of general importance with regard to which there were longstanding disputes between the parties, we think that the proper order should be to direct each party to bear his own costs in all the Courts. The costs of the defendant shall come out of the temple funds. Appeal allowed in part. Agent for the respondent :section section Sukla.

The appellant was a shareholder of a company known as Mafatlal Gagalbhai and Co., Ltd. The Company with its registered office at Bombay was at all material times resident in British India. It was also doing business in the former Baroda State and used to keep its profits derived in that State with Mafatlal Gagalbhai Investment Corporation, Navsari. In the year 1949 Mafatlal Gagalbhai and Co. Ltd. declared dividends out of profits which had accrued partly in British India and partly in the Indian State. The appellant was assessed to income tax on the dividends earned by her. She did not bring those dividends into British India and claimed the benefit of para. 4 of the Merged States (Taxation Concessions) Order. The Tribunal held that the income did not accrue to the appellant in the Baroda State but it did not decide the question whether she was entitled to the benefits of the Taxation Concessions Order. The High Court on a reference to it held that para. 4 of the Taxation Concessions Order. did not apply to the assessee but it did not decide the other question as to where the income had accrued to the assessee. On appeal by special leave the appellant contended, inter alia, that since the Tribunal had not gone into the question of the applicability to the assessee of the Concessions Order and had not expressed any opinion thereon, the High Court could not raise the question on its own and decide it: Held, that the High Court exceeded its jurisdiction in going outside the point of law decided by the Tribunal and deciding a different point of law. Section 66 of the Income tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal. It does not confer jurisdiction on the High Court to decide a different question of law not arising out of such order. New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax, , Scindia Steam Navigation Co. Ltd. vs Commissioner of Income tax, , Commissioner of Incometax vs Breach Candy Swimming Bath Trust, and Ismailia Grain Merchants Association vs Commissioner of Incometax, [1957] 31 I.T.R. 433, distinguished. Mash Trading Co. vs Commissioner of Income tax, , considered.

Civil Appeal Nos. 1256 1258 of 1981. 451 Appeals by Special Leave from the Judgment and Order dated 9.9.1980 of the Calcutta High Court in Appeal Nos. 94, 122 & 95 of 1980 respectively. S.N. Kacker and H.R. Puri for the Appellant. Shankar Ghosh, B.P. Maheshwari and Miss Asha Jain for Respondent No. 1. Dalip Sinha, G.S. Chatterjee and P.K. Chatterjee for Respondent No. 2. The Judgment of the Court was delivered by DESAI, J. M/s Jethabhai Khatu & Co., a partnership firm, is the appellant in all the three appeals. The respondents in all the three appeals are: (1) Luxmi Narayan Cotton Mills Ltd., an incorporated Company ( 'company ' for short), (2) State of West Bengal, (3) S.K. Dutta, who was for some time a receiver appointed by the High Court; (4) Grindlays Bank, ( 'Bank ' for short), having a fixed deposit account in the name of Receiver. S.K. Dutta on behalf of Luxmi Narayan Cotton Mills Ltd., (5) A.K. Dutta, and (6) R.C. Deb, who claim to have been appointed as joint receivers after removal of Sh. S.K. Dutta. Appellant filed suit No. 1194/66 against the company on the original side of the Calcutta High Court to recover a certain amount due under two separate heads. By the time the suit came up for hearing the board of Directors of the 1st respondent company was superseded and one Gurudas Sharma was appointed as an Administrator. The Administrator on behalf of the 1st respondent company entered into a compromise with the appellant in respect of the claim in suit of the appellant and after obtaining leave of the Court to settle the matter, invited a consent decree by which the company was held liable and directed to pay Rs. 2,85,000 with interest thereon at 6% per annum from January 6, 1970, the date of the decree, till realisation. The Ist respondent company was given an option to pay the decretal amount by monthly instalments of Rs. 5,000, the first instalment becoming due and payable on March 15, 1970, and each subsequent instalment to be paid by 15th day of the next succeeding month. The default clause in the consent decree provided that if the company committed default in payment of any two instalments within the time stipulated in the decree, the whole of the decretal amount and the interest on the balance of the decretal 452 amount will become due and payable at once. It appears that the Ist respondent company received Rs. 15,00,000 from the Custodian of Enemy Property in respect of its cotton Mills situated in Narayanganj, Bangladesh. The 3rd respondent S.K. Dutta appears to have been appointed a receiver in respect of this compensation amount and he appears to have deposited Rs. 8,40,000 out of the compensation amount in fixed deposit account evidenced by receipt No.1002 2539 with the Bank at its Netaji Subhash Road Branch, Calcutta. The appellant, by an order dated April 5, 1978, of the Calcutta High Court, obtained leave to execute the decree by attachment of funds lying in the hands of the 3rd respondent receiver S.K. Dutta (Annexure 'D '). By the date of the order Rs. 4,20,702.94 p. had become due and payable under the decree. Pursuant to this order an interim attachment was levied under order 21 Rule 52 C.P.C. On the amount covered by the aforementioned fixed deposit receipt, and accordingly the Master of the Court, Shri S.K. Ghosh informed the 3rd respondent receiver by the writ of the Court dated April 12, 1978, that the receiver shall hold the money under the fixed deposit account subject to such order as may be made respecting the same in the suit in which he had been appointed a receiver and subject to further orders of the Court (Annexure 'E '). The Master confirmed the interim attachment by his order dated April 24, 1978 (Annexure 'F '). On May 4, 1978 upon a petition by the appellant the Court directed the receiver 3rd respondent to pay the sum of Rs. 4,20,702.94 to the appellant decree holder out of the amount in the fixed deposit account of the judgment debtor with the Bank in fixed deposit receipt No. 1002 2539 standing in the name of the receiver which was attached in terms of order dated April 12, 1978, as confirmed by the order dated April 24, 1978. Presumably neither the 3rd respondent receiver nor the Bank effectively implemented the order dated May 4, 1978, whereupon the appellant moved the Court during the vacation on May 24, 1979, for an appropriate direction and a learned single Judge of the Calcutta High Court working as vacation judge gave the directions prayed for. As this order has some legal consequences in this matter, it would be advantageous to extract it. It reads as under: "There will be an order in terms of prayers (a) & (b) of the petition. Prayer (a): That the receiver Sudhir Kumar Dutta be forthwith directed to instruct and intimate to the Grindlays Bank Ltd., Netaji Subhash Road Branch, Calcutta, to pay 453 a sum of Rs. 4,29,702.94 p. to the petitioner decree holder in terms of the payment order dated 4th May, 1978 out of the amount of the Fixed Deposit of the judgment debtor with Grindlays Bank Ltd., in Fixed Deposit Receipt No. 1002 2539 which has been Lying attached in terms of the order dated 12th April, 1978 and is confirmed by the order dated 24th April, 1978 and the said Grindlays Bank Ltd., Netaji Subhash Road, Branch, Calcutta, be directed to pay the said sum of Rs. 4,20,702.94 p. to the petitioner decree holder; Prayer (b): That Grindlays Bank Ltd., Netaji Subhash Road Branch, Calcutta, be directed to pay the said sum of Rs. 4,20,702.94 p. to the petitioner decree holder in terms of the payment order dated 4th May, 1978, out of the said fixed deposit receipt No. 1002 2539. " Effectively this order of the Court directed the receiver to pay the amount therein mentioned to the decree holder and the Bank, the keeper of the fixed deposit account of the receiver was also put under an obligation not to raise any objection on receiver withdrawing the money and paying the same to the decree holder. In fact upon its true construction, the Bank was also under an obligation to take effective steps to pay the amount mentioned in the order to the decree holder. It appears that these directions were not obeyed. Consequently, the appellant moved the Court for holding the 3rd respondent receiver S.K. Dutta and the 4th respondent Bank in contempt and for passing appropriate order for punishing them for contempt unless they purged themselves of the contempt. On June 7, 1979, when the petition for taking action against the alleged contemners came up before the Court, respondents 5 and 6 appear to have been appointed as joint receivers. The Bank appeared through its counsel Mr. Majumdar and the joint receivers appeared forth themselves as well as for their respective clients, namely, 1st respondent company and the 2nd respondent State of West Bengal. Mr. Majumder, learned advocate for the Bank undertook to the Court to comply with the order dated May 24, 1979, to pay the amount therein mentioned to M/s Maharia & Co. Advocate on record for the appellant. The court directed that on such payment being made the Bank shall be absolved from all the liability in respect of the said amount. The Court specifically noted that in view of the undertaking given by the learned advocate on behalf of the 454 Manager of the Bank, the Court was not inclined to pass any order in respect of the contempt application and the application for taking action in contempt was accordingly disposed of. At this stage. Mr. A.K. Dutta appearing for the Ist respondent company prayed for stay of a portion of the order of the Court which prayer was specifically refused observing that as no fresh orders have been passed on that day affecting the interests of the said Company, no question of granting stay of a portion of the order arises. The Court specifically directed that all the parties and particularly the Manager of the Bank should act on the signed copy of the minutes. It appears that the solemn undertaking given by the Bank was not acted upon. Probably soon thereafter some interim orders were obtained as would transpire from the order of Mrs. Padma Khastgir, J. dated March 7, 1980. When the matter came up on March 7, 1980, the court observed that there will by no order on the applications before it save and except that the receiver will hold the balance sum of Rs. 4,19,697.06p till further order of the Court. The Court also declined to grant prayer for discharge of the receiver S.K. Dutta, the 3rd respondent, because notice of the application was not served upon him. This observation would, however, establish that till March 7, 1980, the 3rd respondent was not discharged as a receiver though from the recitals in the order dated June 7, 1979, it appears that by that date A.K. Dutta and R.C. Deb were functioning as joint receivers. In this order it was distinctly made clear that except what is stated the specifically in the order all interim orders were vacated. However, the Court at the instance of joint receivers stayed the portion of the order dated March 7, 1980, for a period of a fortnight. To clarify the position it may be mentioned that when the Court directed that balance of Rs. 4,19,697.06 will be held by the receiver it would imply that would be the balance after payment of the amount directed to be paid to the appellant. Specifically this order has the effect of confirming the earlier order dated May 24, 1970, to pay the decretal amount to the appellant. If appears that thereafter three appeals came to be filed before the Division Bench of the Calcutta High Court. Appeal No. 95/80 and Appeal No. 94/80 were preferred by the Ist respondent company. Appeal No. 122/80 was preferred by the 2nd respondent State of West Bengal. These three appeals were preferred against the order dated March 7, 1980, made by Mrs. Padma Khastgir, J. In the two appeals preferred by the Ist respondent company a Division Bench of the Calcutta High Court by its order dated 455 March 27, 1980, granted ad interim stay as under: "The Joint Receivers, R.C. Deb and A.K. Dutta are directed not to part with any money lying deposited under the fixed deposit receipt No. 1002/2529 in the Grindlays Bank. There will be an order directing the Grindlays Bank Ltd., of 29, Netaji Subhash Road not to disburse any amount in respect of fixed deposit No. 1002 2539 standing in the name of S.K. Dutta, the fixed deposit receipt whereof is Lying deposited with the present joint receivers R.C. Deb and A.K.Dutta . Order of injunction restraining Jethabhai Khatau and Co. from obtaining any payment out of the moneys lying in the Grindlays Bank and held by the joint receivers or receiver. " This interim order was confirmed by the Division Bench by its order dated September, 9, 1980. Hence these three appeals by special leave. Frankly, this Court ordinarily does not interfere with interim orders unless and until manifest injustice convulsively shakes it. Even then, with our usual response of reluctance to undertake to examine interim orders, only a notice to show cause why special leave should not be granted and the interim stay application not be considered, was issued to the respondents. After notices were served and counter affidavits and rejoinder affidavits were filed, this matter came before us about four weeks back, our hands off attitude to interim orders manifested itself when we adjourned the matter for four weeks indicating to the parties, especially the respondents who are appellants before the High Court, to take executive steps to get their appeals placed on the cause list for hearing and to move for expeditious disposal of the same. We also declined to grant any interim relief. We so adjourned the matter in the fond hope that we may hang on to our tenuous view that ordinarily we would not undertake to deal with interim orders. Our hope has proved a mirage. When this matter was listed before us on April 3, 1981, Mr. Kackkar, learned counsel for the Appellant stated that almost within the dying embers of the time granted by this Court an attempt was 456 made by the respondents to get their matter listed in the High Court and the only order that the court has made is that the appeals be added to the cause list of the Division Bench and it would be anybody 's guess when this last added matter would reach hearing. Having no alternative left open to us, we have heard the matter. As the appeals are pending before the Division Bench of the Calcutta High Court and are to be heard on merits, we would make every manageable human effort to avoid any expression of opinion which may even remotely interfere with judicious adjudication of the issues before the Division Bench. However, we make it clear that even if there is any express or implied opinion discernible in this order, the same has to be wholly ignored by the High Court while disposing of the appeals on merits. With this extra caution we proceed to dispose of these appeals. As every stage of the proceeding has been neatly delineated by us with the orders of the Court referred to in details, the permissible inferences may alone be set out. What is the injudicious situation which may bring disrepute to judicial process, stares in the face. The consent decree under which appellant was entitled to recover Rs. 2,85,000 with interest, at the rate of 6% per annum from the date of the decree till realisation was made by the Court on January 6, 1970. The decree without being satisfied in its minutest part has collected dust for 11 years. And at present who is impeding the execution of the decree ? It is the 1st respondent company which has been a party to the consent decree and which decree has become final and unassailable. There is no proceeding at precent questioning the correctness, validity or legality of the decree or its binding character on the 1st respondent company. It is again incontrovertible that the judgment debtor Ist respondent company has in its fixed deposit with the 4th respondent Bank a sum of Rs. 8,40,000. That his amount is of the ownership of the judgment debtor is not in dispute. 3rd respondent S.K. Dutta was once a receiver. Respondents say that he has been removed and respondents 5 and 6 who are respectively the Advocates of the Ist respondent company and the 2nd respondent State of West Bengal claim to be appointed as joint receivers. The date of appointment is not made clear but the order dated March 7, 1980 (Annexure 'J ') by Mrs. Padma Khastgir, J. leaves no room for doubt that till that date 3rd respondent S.K. Dutta was not discharged as receiver. 457 The High Court on a petition of the appellant levied attachment under order 21 Rule 52 C.P.C. On the amount Lying in fixed deposit account with 4th respondent Bank in the name of 3rd respondent S.K.Dutta as receiver of the first respondent company by order dated April 5, 1978. This attachment order was levied by the Master of the Court and the interim attachment was confirmed. Admittedly these orders were not challenged. Sabyasachi Mukerjee, J. by his order dated May 4, 1978, directed 3rd respondent S.K. Dutta to pay the amount of Rs. 4,20,702.94 P. Out of the amount Lying in fixed deposit receipt No. 1002 2539 with the fourth respondent Bank to the appellant in satisfaction of the decree. This order may appear to have become final as not having been questioned by any one. Manoj Kumar Mukherjee, J. by his order dated May 24, 1979, directed 3rd respondent S.K.Dutta, receiver of the Ist respondent company to pay Rs. 4,20,702.94 p. Out of the fixed deposit account held by him as receiver of the Ist respondent company to the appellant and a consequential order was made directing the Bank to pay the amount set out in the order to the appellant. This order dated May 24, 1979, may appear to have become final as it appears not to have been questioned, challenged or appealed by any one. Failure to comply with the court 's mandatory direction led the appellant to file a petition for contempt. The alleged contemners impleaded were Ist respondent company and the 4th respondent Bank. When this petition for taking action in contempt came up before Manoj Kumar Mukherjee, J. there appeared on the scene one Mr. Majumdar, learned counsel for the 4th respondent Bank as well as the two joint receivers functioning in dual capacity as joint of receivers as well as learned counsel for the respective clients, namely, Ist respondent company and the 2nd respondent State of West Bengal. At the hearing of this motion for taking action for contempt, Mr. Majumdar learned counsel for the 4th respondent unreservedly agreed to comply with the order of the Court on May 24, 1979, which means that he agreed and undertook to pay the amount of Rs. 4,20,702.94 out of the fixed deposit account in the name of 3rd respondent S.K. Dutta, receiver of the Ist respondent company. It is because the Bank agreed unreservedly and unconditionally to pay up the amount that the motion for taking action in contempt was discharged by the Court. No action was sought to be taken against the joint receivers who had interposed themselves in the meantime. Therefore, the court declined to accede to their request to stay a 458 portion of the order. The order dated June 7, 1979, is not a fresh order on merits. It was merely an implementation of the order dated May 24, 1979, which may appear to have become final and binding. Yet the 1st respondent company and the 2nd respondent State of West Bengal took no further action and surprisingly the Bank also joined hands with them by not paying the amount till March 7, 1980. Maybe, there may be some interim orders. We are not made knowledgeable about the nature and character of those interim orders save and except what has been recited in the order dated March 7, 1980, of Mrs. Padma Khastgir, J. However, there seems to be some apparent collusion between the company on one hand and the joint receivers in not complying with the court 's order dated May 24, 1979, even though action for contempt was avoided by giving an unconditional undertaking to carry out that order. The three appeals were preferred against the order dated March 7, 1980. That order has nothing to do with order dated May 24, 1979, or the order dated June 7, 1979. At any rate, the order dated May 24, 1979, may appear to have become final. Would it be appropriate in such circumstances to grant an interim stay of the portion of an order which may appear to have become final in an appeal against an altogether different order? Mr. Shankar Ghose, learned counsel for the respondent wanted us to take note of various allegations against the 3rd respondent, the receiver, the fact that he was removed, the fact that he was colluding with the appellant and that he was negligent as also that he was discharged at some stage of the proceedings. At this stage, these contentions in our opinion are not very relevant. Maybe, there is merit in these contentions. Maybe, the Division Bench hearing the appeals by the Ist and 2nd respondent will examine these contentions on merits. The only live issue is whether would it be fair while granting stay of the order dated March 7, 1980 to effectively stay the order dated March 24,1979, which appears not to be under appeal though its validity may be questioned in the course of hearing of the appeal? If that be so, could the Court overlook attempt of the Ist and 2nd respondents to circumvent the order by obtaining an interim stay in such manner that an order not under appeal gets frozen '? It is, therefore, that we propose to interfere with the interim order made by the Division Bench of the Calcutta High Court on September 9, 1980, confirming the ad interim order dated March 7, 1980, to a limited extent so that an impression that the court 's process can be lightly trifled with, may be avoided. 459 Under the circumstances the proper thing to do would be to set aside the interim stay order dated March 27, 1980, as also the order dated September 9, 1980, confirming the interim order but in order to ensure the resultant justice as we are interfering with an interim order, we consider it proper to give certain directions, while restoring status quo ante in the event the appeals filed by respondents 1 and 2 are allowed or any specific positive direction is given by the court in this behalf. We accordingly allow these appeals and set aside the orders made by the Division Bench on March 27, 1980 and September 9, 1980. The result would be that the order dated May 4, 1978, by Sabyasachi Mukherjee, J. and order dated May 24, 1978, made by Manoj Kumar Mukherjee, J. as also the undertaking given by the manager of the 4th respondent Bank through his learned counsel Shri Majumdar before Manoj Kumar Mukherjee, J. On June 7, 1979, would be revived and would be effective and will have to be implemented. In pursuance to the aforementioned two orders, the 4th respondent Bank will have to pay Rs. 4,20,702.94 p. to the decree holder appellant towards the decretal amount. On receipt of the amount the appellant shall pass a receipt acknowledging receipt of the amount and to the extent of the payment of the amount herein indicated the liability of the 4th respondent Bank to the Ist respondent company or anyone claiming on its behalf or the 3rd respondent receiver shall stand discharged. Before the amount is paid, the appellant shall give security to the satisfaction of the High Court and also an undertaking on affidavit to the Division Bench of the Calcutta High Court before which the appeals preferred by the Ist and 2nd respondents are pending that in the event the appeals are allowed which makes it consequently necessary for the appellant to repay the amount received from the 4th respondent Bank in payment of the decretal amount, the appellant shall deposit the said amount with the Calcutta High Court within one month from the date of the order of the appellate Bench. The appeals will stand disposed of as herein indicated with no order as to cost. N.V.K. Appeals allowed.

The respondent assessee an existing company under the had neither any share capital nor distributed any dividend to its members and its entire income was expended for fulfilment of its objects, which were the promotion, protection and development of trade, commerce and industry in India. During the assessment year 1962 63, the relevant accounting year for which the year ended December 31, 1961 the assessee submitted a return showing its total income as 'nil ' claiming that all its income was exempt under section 11(1)(a) read with Section 2(15) of the Income Tax Act. During the assessment year, the assessee held the Indian Trade Fair at New Delhi and derived receipts from rent for space allotted, temporary stalls and storage and realised deposit and advances from the participants for hotel accommodation. In the relevant accounting year, the Conference of the Afro Asian Organisation for Economic Cooperation, was sponsored by the assessee and for organising the Conference, the assessee received from the Government Rs. 3 lakhs as grant in aid and after meeting the expenses, was left with a balance of Rs. 2 lakhs. It also received income by sale of books, fee for arbitration etc. The balance sheet for the accounting year indicated that it had an excess of income over expenditure under the head 'income '. The contention of the assessee before the Income Tax Officer was that the activities carried on by the Federation were not were not motive of earning profits, but that they were carried on with the object of promotion, protection and development of trade, commerce and industry in India and abroad, and therefore the income derived by the assessee was exempt under section 11(1)(a). The Income Tax Officer, held that the decision of this Court in the Andhra Chamber of Commerce 's case [1965] I.S.C.R. 565 was no longer good law due to the addition of the words 'not involving the carrying on any activity for profit ' in the definition of 'charitable purpose ' in Section 2(15) of the Act which qualify the fourth head of charity viz. 'any other object of general public utility ' and, therefore, must be read subject to the additional statutory requirement that the 490 object of general public utility should not involve the carrying on of any activity for profit, and accordingly raised a demand. On appeal by the assessee, the Appellate Assistant Commissioner disagreed with the view of the Income Tax Officer and held that the activities carried on by the assessee were not profit oriented and, therefore, its income was exempt. The Department appealed to the Appellate Tribunal, and the Appellate Tribunal upheld the view of the Appellate Assistant Commissioner and held that the dominant object with which the Federation was constituted being a charitable purpose viz., promotion, protection and development of trade, commerce and industry, there being no motive to earn profits, it was not engaged in any activity in the nature of business or trade, and, if, any income arose from such activity, it was only incidental or ancillary to the dominant object for the welfare and common good of the country 's trade, commerce and industry. The Commissioner of Income Tax applied to the Appellate Tribunal to make a reference to the High Court under sub section (1) of section 256 of the Act, but in view of the conflict in the decisions of the High Courts on the construction of the expression 'charitable purpose ' as defined in section 2(15) of the Act the Tribunal made a reference to this Court under Section 257 . On the question whether the words 'not involving the carrying on of any activity for profit ' in the definition of 'charitable purpose ' contained in section 2(15) of the Act, govern the word 'advancement ' and not the words 'object of general public utility '. ^ HELD: [By the Court] The reference must be answered against the Revenue and in favour of the assessee, in the view of the majority opinion in Addl. Commissioner of Income Tax vs Surat Art Silk Cloth Manufactures, [1980] I S.C.R. 77. [492 F] [Per A.P. Sen, J.] 1. The majority view in the Surat Art Silk case was that the condition that the purpose should not involve the carrying on of any activity for profit would be satisfied if profit making is not the real object. The theory of dominant or primary object of the trust, has, therefore, been treated to be the determining factor, even in regard to the fourth head of charity, viz. advancement of any other object of general public utility, so as to make the carrying on of business activity merely ancillary or incidental to the main object. This doctrine of dominant or primary object holds the field till there is a change of law. [496 C D, 497 F] 2. The majority decision had the effect of neutralising the radical changes brought about by Parliament in the system of taxation of income and profits of charities, with particular reference to "object of general public utility" to prevent tax evasion, by diversion of business profits to charities. It is the vagueness of the fourth head of charity "any other object of general public utility" that impelled 491 Parliament to insert the restrictive words "not involving the carrying on of any activity for profit". [496 G 497 A] 3. It was clearly inconsistent with the settled principles to hold that if the dominant or primary object of a trust was 'charity ' under the fourth head 'any other object of general public utility ', it was permissible for such an object of general public utility to augment its income by engaging in trading or commercial activities.[497 B] 4. When the Government did not accept the recommendation of the Direct Taxes Laws Committee in Chapter 2 for the deletion of the words "not involving the carrying on of any activity for profit" occurring in Section 2(15) of the Act, it was impermissible for the Court by a process of judicial construction to achieve the same result. [496 F] 5. In the instant case, activities of the assessee in regard to holding of the Indian Trade Fair and sponsoring of the Conference of the Afro Asian organisation in the relevant accounting year were for the advancement of the dominant object and purpose of the trust, viz. promotion, protection and development of trade, commerce and industry in India. The income derived from such activities was therefore exempt under section 11(1)(a) read with section 2(15) of the Act. [498 G 499 A] 6. There is a distinction between the "purpose" of a trust and the "power conferred upon the trustees" as incidental to the carrying out of the purpose. If the primary or dominant purpose of a trust or institute is charitable, any other object which is merely ancillary or incidental to the primary or dominant purpose, would not prevent the trust or the institution being a valid charity. [498 G, 499 A] [Per Venkataramiah, J.] 1. It is open to the Legislature to give encouragement to objects which it considers to be laudable by means of fiscal exemptions. At the same time, it takes care to enact fresh provisions from time to time to suppress any mischief which may have resulted from the misuse of existing law. Parliament deliberately stepped in by adding the words "not involving the carrying on of any activity for profit" in the definition of 'charitable purpose ' in section 2(15) of the Act, when the tax exemptions available to charitable and religious trusts came to be misused by some for the unworthy purposes of tax avoidance. The law had been so restructured to prevent allergy to taxation masquerading as charity. The law was thus designed by Parliament to prevent this misuse of tax exemption in the name of charity. [500 F H] 2. This Court has enlarged the meaning "charitable purpose" in Section 2(15) beyond what it legitimately should mean in the Surat Art Silk Cloth Manufacturers Association 's case. It has virtually wiped off the restrictive words "not involving the carrying on or any activity for profit" occurring in section 2(15), thereby defeating the very object and purpose of the legislation. It is not the function of a court of law to give the words a strained and unnatural meaning. Judicial attitudes cannot be formed in isolation from legislative processes, particularly, in connection with tax avoidance provisions. [500 D, 501A, 500E] 492 3. Modern legislation has changed in pattern re casting provisions of taxation with very wide language, while at the same time dealing in much more detail with some areas of law. Judges while responding to general trends of law, but also reacting to the form of modern tax legislation, must be prepared to take account of the context and purposes of the change brought about.[501 E] Greenberg vs Inland Revenue Commissioners [1972] A.C. 109 (HL) referred to. When the Government had not accepted the recommendation of the Direct Taxes Laws Committee in Chapter 2 for the deletion of the words "not involving the carrying on of any activity for profit", by suitable legislation, it was impermissible by a process of judicial construction to achieve the same result. [501 B] 5. People who are truly charitable do not think of the tax benefits while making charities. Even the poor who do not pay income tax can be charitable and their charities are made at great personal inconvenience. Charitable persons are not amongst the tax payers only. [502 H 503 A]

Civil Appeal Nos. 1768 1769/ 72. Appeals by Special Leave from the Judgment and order dated 15 7 1971 of the Delhi High Court in Sales Tax Reference No. 8 of 1969. F. section Nariman, (In CA 1768/72), V. section Desai (in C.A. 1769). M. C. Bhandare (C.A. 1768/72) and Mrs. section Bhandare and Miss M. Poduval for the Appellants. P. A. Francis, R. N. Sachthey and Miss A. Subhashini for the Respondent. Y. section Chitale, Vinay. Bhasin, A. K. Srivastava and Vineet Kumar for the Interveners. The Judgment of the Court was delivered by PATHAK, J. This and the connected appeal are directed against the judgment of the High Court of Delhi disposing of a reference made to it under section 21(3) of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi on the following question: "Whether the service of meals to casual visitors in the Restaurant is taxable as a sale: (i) when charges are lumpsum per meal or (ii) when they are calculated per dish ?" The High Court has answered the question in the affirmative. The appellant runs a hotel in which lodging and meals are provided on "inclusive terms" to residents. Meals are served to non residents also in the restaurant located in the hotel. In the assessment proceedings for the assessment years 1957 58 and 1958 59 under the Bengal Finance (Sales Tax) Act, 1941, the appellant contended that the service of meals to residents and non residents could not be regarded as a sale and therefore sales tax could not be levied in respect thereof. The contention was rejected by the Sales Tax authorities, who treated a portion of the receipts from the residents and nonresidents as representing the price of the foodstuffs served. At the instance of the appellant, the High Court called for a statement of the case on two questions. One was whether the supply of meals to residents, who paid a single all inclusive charge for all services in the 559 hotel, including board, was exigible to sales tax. The second was the A question set forth above. The High Court answered the first question in favour of the appellant and the second against it. And now these appeals by special leave. Tax is payable by a dealer under section 4 of the Bengal Finance (Sales Tax) Act, 1941 on sales effected by him, and the expression "sale ' has been defined by section 2 (g) of the Act to mean "any transfer of property in goods for cash or deferred payment or other valuable consideration including a transfer of property in goods involved in the execution of a contract. ". The question is whether in the case of non residents the service of meals by the appellant in the restaurant constitutes a sale of foodstuffs. It appears to us that after the view taken by this Court in State of Punjab vs M/s Associated Hotels of India Ltd.,(1) the approach to the question before us is clearly indicated. This is a case where the origin and historical development of an institution as profoundly influenced the nature and incidents it possesses in law. In the case of an hotelier this Court proceeded on the footing that his position in law was assimilable to that of an inn keeper. At common law an innkeeper was a person who received travellers and provided lodging and necessaries for them and their attendants and employed servants for this purpose and for the protection of travellers lodging in his inn and of their goods(2). It was hospitality that he offered, and the many facilities that constituted the components of that hospitality determined the legal character of the transactions flowing from them. Long ago, in Crisp vs Pratt(3) it was pointed out that innkeepers do not get their living by buying and selling and that although they buy provisions to be spent in their house, they do not sell them but what they do is to "utter" them. "Their gain", it was added, "is not only by uttering of their commodities, but for the attendance of their servants, and for the furniture of their house, rooms, lodgings, for their guests. '`. This test went to the root and we find it repeated in Parker vs Flint.(4) In Newton vs Trigg(5) Holt, C.J., defined the true status of an inn keeper by reference to the services afforded by him? that he was an "hospitator", and was "not paid upon the account of the intrinsic value of his provisions, but for other reasons: the recompence he receives, is for care and pains and for protection and security. . but the end of an inn keeper in (1) ; (2) Halsbury 's Laws of England, 3rd Edn. 21 p. 442 paras 932. (3) [1639] Cro. Car. 549. (4) [1699] 12 Mod 254. (5) 3 Mod . 2 549SCI/78 560 his buying, is not to sell, but only a part of the accommodation he is bound to prepare for his guests. " And for the purpose of the question before us is would be relevant to quote Professor Beale(1): As an inn keeper does not lease his rooms, so he does not sell the food he supplies to the guest. It is his duty to supply such food as the guest needs, and the corresponding right of the guest is to consume the food he needs, and to take no more. Having finished his meal, he has no right to take food from the table, even the uneaten portion of food supplied to him, nor can he claim a certain portion of good as his own to be handed over to another in case he chooses not to consume it himself. The title to food never passes as a result of an ordinary transaction of supplying food to a guest." Having proper regard to those particular considerations, it is not surprising that the principle was extended in England to the service OF food at eating places or restaurants. The keeper of an eating house, or victualler, was regarded fundamentally as providing sustenance to those who ordered food to eat in the premises. That eminent and learned Judge, Lord Mansfield, saw no distinction, in Saunderson vs Rowles(2), between an innkeeper and a victualler. He observed: '. The analogy between the two cases of an inn keeper and a victualler is so strong that it cannot be got over. And we are all clear that this man (victualler) is not within these laws; upon the authority of a determined case of an inn keeper, and also upon the reason of the thing. He buys only to spend in his house, and when he utters it again it is attended with many circumstances additional to the mere selling price. " Like the hotelier, a restaurateur provides many services in addition to the supply of food. He provides furniture and furnishings, linen, crockery and cutlery, and in the eating places of today he may add music and a specially provided area for floor dancing and in some cases a floor show. The view taken by the English law found acceptance on American soil, and after some desultory dissent initially in certain states it very soon became firmly established as the general view of the law. The first edition of American Jurisprudence sets(3) forth the statement of the law in that regard, but we may go to the case itself, Electa B. Merrill vs James W. Hodson(4), from which the (1) Innkeepers & Hotels, para 169. (2) (3) Vol. 46 p. 207 para 13. (4) 561 statement has been derived. Holding that the supply of food or drink A to customers did not partake of the character of a sale of goods, the Court commented: "The essence of it is not an agreement for the transfer of the general property of the food or drink placed at the com command of the customer for the satisfaction of his desires, or actually appropriated by him in the process of appeasing his appetite or thirst. The customer does not become the owner of the food set before him, or of that portion which is carved for his use, or of that which finds a place upon his plate, or in side dishes set about it. No designated portion becomes his. He is privileged to eat, and that is all. The uneaten food is not his. He cannot do what he pleases with it. That which is set before him or placed at his command is provided tc enable him to satisfy his immediate wants, and for no other purpose. He may satisfy those wants; but there he must stop. He may not turn over unconsumed portions to others at his pleasure, or carry away such portions. The true essence of the transaction is service in the satisfaction of a human need or desire, ministry to a bodily want. A necessary incident of this service or ministry is the consumption of the food required. This consumption involves destruction, and nothing remains of what is consumed to which the right of property can be said to attach. Before consumption title does not pass; after consumption there remains nothing to become the subject of title. What the customer pays for is a right to satisfy his appetite by the process of destruction. What he thus pays for includes more than the price of the food as such. It includes all that enters into the conception of service, and with it no small factor of direct personal service. It does not contemplate the transfer of the general property in the food supplied as a factor in the service rendered. " Subsequent cases drew on these observations, notably Mary Nisky vs Childs Company. (1) The position was radically altered in the United States by the enactment of the Uniform Commercial Code, which provides in effect that the serving for value of food or drink to be consumed either on the premises or elsewhere constitutes a sale. Nonetheless it is affirmed in the second edition of American Jurisprudence(2) that where the Code does not operate, "in general the pre Code distinction between a contract for sale and one for the giving of services should continue. " (l) (2) Vol. 67 p. 142 para 33. 562 It has already been noticed that in regard to hotels this Court has in M/s. Associated Hotels of India Limited (supra) adopted the concept of the English law that there is no sale when food and drink are supplied to guests residing in the hotel. The Court pointed out that the supply of meals was essentially in the nature of a service provided to them and could not be identified as a transaction of sale. The Court declined to accept the proposition that the Revenue was entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs. If that be true in respect of hotels, a similar approach seems to be called for on principle in the case of restaurants. No reason has been shown to us for preferring any other. The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need. What has been said in Electa B. Merrill (supra) appears to be as much applicable to restaurants in India as it does elsewhere. It has not been proved that any different view should be taken, either at common law, in usage or under statute. It was urged for the respondent that in Associated Hotels of India Ltd. (supra) this Court drew a distinction between the case of meals supplied to a resident in a hotel and those served to a customer in a restaurant. We are unable to find any proposition of law laid down by the court there which could lead to that inference. We may point 13 out that in the view which appeals to us we find ourselves unable to agree with the observations to the contrary made by the Punjab High Court in M/s. Associated Hotels of India Ltd., Simla vs Excise and Taxation officer, Simla(1) and by the Delhi High Court in Municipal Corporation of Delhi vs Laxmi Narain Tandon and another. (2), In the result, we hold that the service of meals to visitors in the restaurant of the appellant is not taxable under the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi, and this is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered. In the circumstances of the case, we make no order as to costs. N.V.K. Appeals allowed (1) A. I. R. 1966 Punjab 449. (2) A, I. R. 1970 Delhi 244.

The Company Law Board by its order dt. 17th December, 1977 inducted several additional directors in addition to the existing directors of the respondent company, under section 408(1) of the , since it was of the opinion that the affairs of the company in question "are being conducted in a manner which is prejudicial to the interest of the company and to public interest". But the Delhi High Court passed an ad interim stay of the said orders, while admitting the writ Petition. Allowing the appeal by special leave, the Court ^ HELD: Where repercussions are incalculable and the basis of the direction, though interlocutory, is obscure, the ends of justice dominate and the Supreme Court may interfere, if public interest so dictates under article 136 of the Constitution. [736B] (2) A company of considerable financial dimensions and involved in operations using public resources as investment naturally becomes the concern not merely of the Company Law Board but also all of the economic process of the country. The specialised body with responsibility to watchdog corporate process is the Company Law Board. When it investigates and reaches a definite conclusion and makes a consequential direction, it is entitled to prima facie respect unless there are glaring circumstances to the contrary. It may well be that the order of the Board may be vitiated by infirmities, legal or other. It may also be that the reasoning of the Board and the factual foundation for it is sound. In such situations acting at an interlocutory stage, the benefit of reasonable doubt belongs to the specialised body. If there are good grounds to strike down the order certainly the High Court has jurisdiction to stay its operation. [737D G]

vil Appeal No. 262 (NC) of 1976. From the Judgment and Order dated 24.4.1975 of the Rajasthan High Court in D.B. Civil I.T.R. No. 45 of 1969. Mrs. Anjali Verma for JBD & Co. and D.N. Misra for the Appellant. O.P. Vaish, section Rajappa, Vinay Vaish, S.K. Aggarwal and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Rajasthan dated 24.4.1975 answering the question referred to it by the Income Tax Appellate Tribunal in the negative, in favour of the Revenue and against the assessee. The question referred to the High Court was as under: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act. 1961?" The circumstances leading to the reference and the appeal was necessary to be stated. The Natural Science (India) Ltd. predecessor ininterest of the assessee acquired a lease from the Maharaja of the 317 erstwhile Bikaner State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles at Jamsar. The lease was liable to be renewed after expiring of 20 years. The Natural Science (India) Ltd. by a deed of assignment dated December 11, 1948 assigned the rights under the lease to the Bikaner Gypsums Ltd., a compa ny wherein the State Government owned 45 per cent share. The Bikaner Gypsums Ltd. (hereinafter referred to as the asses see) carried on the business of mining gypsum in accordance with the terms of conditions stated in the lease. The asses see entered into an agreement with Sindri Fertilizers, a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5 per cent quality. Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic, convenient and beneficial manner and to treat the same by calcination and other proc esses. Clause 2 of Part II of the lease authorised the lessee to sink, dig, drive, quarry, make, erect, maintain and use in the said lands any borings, pits, shafts, in clines, drifts, tunnels, trenches, levels, water ways, airways and other works and to use, maintain, deepen or extend any existing works of the like nature in the demised land for the purpose of winning and mining of the mineral. Clause 3 granted liberty to erect, construction, maintain and use on or under the land any engines, machinery, plant, dressing, floors, furnaces, brick kilns, like kilns, plaster kilns etc. Clause 4 conferred liberty on the lessee to make roads and ways and use existing roads and ways. Clause 7 granted liberty to the assessee to enter upon and use any part of parts of the surface of the said lands for the purpose of stacking, heaping or depositing thereon any produce of the mines or works carried on and any earth materials and substance dug or raised under the liberties and powers. Clause 8 conferred liberty on the lessee to enter upon and occupy any of the surface lands within the demised lands other than such as are occupied by dwelling houses or farms and the offices, gardens and yards. Clause 9 conferred power on the lessee to acquire, take up and occupy such surface lands in the demised lands as were then in the occupation of any body other than the Government on payment of compensation and rent to such occupiers, and if the lessee is unable to acquire such land from the tenants and occupiers, the Government undertook to acquire such surface land for the lessee at the lessee 's cost. Clause 15 of Part II conferred liberty and power on the lessee to do all things which may be necessary for winning, working getting the said minerals and also for calcining, smelting, manufac turing, converting and making merchantable. 318 Part III of the lease contained restrictions and condi tions to the exercise of the liberties and powers and privi leges as contained in Part II of the lease. Clause 2 of Part III provided that the lessee shall not enter upon or occupy surface of any land in the occupation of any tenant or occupier without making reasonable compensation to such tenant or occupier. Clause 3 prescribed restriction on mining operation within 100 yards from any railway, reser voir, canal or other public works. It reads as under: "Clause 3: No mining operations or working shall be carried on or permitted to be carried on by the lessee in or under the said lands at or to any point within a distance of 100 yards from any railway, reservoir, canal or other public works or any buildings or inhabited site shown on the plan hereto annexed except with the previous permission in writ ing of the Minister, or some officer authorised by him in that behalf or otherwise then in accordance with such in structions, restrictions and conditions either general or special which may be attached to such permission. The said distance of 100 yards shall be measured in the case of a Railway Reservoir or canal horizontally from the outer of the bank or of outer edge of the cutting as the case may be and in the case of a building horizontally from the plinth thereof. " The above clause had been incorporated in the lease to protect the railway track and railway station which was situate within the area demised to the lessee. Clause 5 of Part VIII of the agreement stated as under: "Clause 5: If any underground or mineral rights in any lands or mines covered and leased to the lessee in accordance with the provisions of those presents be claimed by any 'Jagir dar ' 'Pattedar ', 'Talukdar ', tenant or other person then and in all such cases the Government shall upon notice from the lessee forthwith put the lessee in possession of all such lands and mines free of all costs and charges to the lessee and any compensation required to be paid to any such "Jagir dar", 'Pattedar ', 'Talukdar ', tenant or other person claim ing to have any underground or mineral rights shall be paid by the Government." The assessee company exclusively carried on the mining of 319 gypsum in the entire area demised to it. The Railway author ities extended the railway area by laying down fresh track, providing for railway siding. The Railways further con structed quarters in the lease area without the permission of the assessee company. The assessee company filed a suit in civil court for ejecting the Railway from the encroached area but it failed in the suit. The assessee company, there upon, approached the Government of Rajasthan which had 45 per cent share of it and the Railway Board for negotiation to remove the Railway Station and track enabling the asses see to carry out the mining operation under the land occu pied by the Railways (hereinafter referred to as the 'Rail way Area '). Since, on research and survey the assessee company found that under the Railway Area a high quality of gypsum was available, which was required as raw material by the Sindri Fertilizers. All the four parties namely, Sindri Fertilizers, Government of Rajasthan, Railway Board and the assessee company negotiated the matter and ultimately the Railway Board agreed to shift the railway station, track and yards to another place or area offered by the assessee. Under the agreement the Railway authorities agreed to shift the station and all its establishments to the alternative site offered by the assessee company and it was further agreed and all the four parties, Sindri Fertilizers, Govern ment of Rajasthan, Indian Railway and the assessee company shall equally bear the total expenses of Rs. 12 lakhs in curred by the Railways in shifting the railway station, yards and the quarters. Pursuant to the agreement, the assessee company paid a sum of Rs.3 lakhs as its share to the Northern Railway towards the cost of shifting of the Railway Station and other constructions. In addition to that the assessee company further paid a sum of Rs.7,300 to the Railways as compensation for the surface rights of the leased land. On the shifting of the Railway track and Sta tion the assessee carried out mining in the erstwhile Rail way Area and it raised gypsum to the extent of 6,30,390 tons and supplied the same to Sindri Fertilizers. The assessee company claimed deduction of Rs.3 lakhs paid to the Northern Railway for the shifting of the Railway Station for the assessment year 1964 65. The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure. On appeal by the assessee, the Appellate Assistant Commissioner confirmed the order of the Income Tax Officer. On further appeal by the assessee the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, instead it was a revenue expenditure. On an application made by the Revenue the Income Tax Appellate Tribunal (hereinaf ter referred to as the 320 Tribunal referred the question as aforesaid to the High Court under section 256 of the Income Tax Act, 1961. The High Court held that since on payment of Rs.3 lakhs to the Rail way the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs. 3 lakhs was a capital expenditure and it could not be a revenue expendi ture. On these findings the High Court answered the question in the negative in favour of the Revenue against the asses see and it set aside the order of the Tribunal by the im pugned order. Learned counsel for the appellant contended that since the entire area had been leased out to the assessee for carrying out mining operations, the assessee had right to win, the minerals which lay under the Railway Area as that land had also been demised. to the assessee. Since, the existence of railway station, building and yard obstructed the mining operations, the assessee paid the amount of Rs.3 lakhs for removal of the same with a view to carry on its business profitably. The assessee did not acquire any new asset, instead, it merely spent money in removing the ob struction to facilitate the mining in a profitable manner. On the other hand, learned counsel for the Revenue urged that in view of the restriction imposed by Clause 3 of Part III of the lease, the assessee had no right to the surface of the land occupied by the Railways. The assessee acquired that right by paying Rs.3 lakhs which resulted into an enduring benefit to it. It was a capital expenditure. Both the counsel referred to a number of decisions in support of their submissions. The question whether a particular expenditure incurred by the assessee is of Capital or Revenue nature is a vexed question which has always presented difficulty before the Courts. There are a number of decisions of this Court and other courts formulating tests for distinguishing the capi tal from revenue expenditure. But the tests so laid down are not exhaustive and it is not possible to reconcile the reasons given in all of them, as each decision is rounded on its own facts and circumstances. Since, in the instant case the facts are clear, it is not necessary to consider each and every case in detail or to analyse the tests laid down in various decisions. However, before we consider the facts and circumstances of the case, it is necessary to refer to some of the leading cases laying down guidelines for deter mining the question. In Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , 'this Court observed that in the great diversity of human affairs and the complicated nature of business opera tion, it is difficult to lay down a test which would apply to all situations. One has, therefore, to apply the criteria from the business 320 point of view in order to determine whether on fair appreci ation of the whole situation the expenditure incurred for a particular matter is of the nature of capital expenditure or a revenue expenditure. The Court laid down a simple test for determining the nature of the expenditure. It observed: the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring bene fit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into exist ence any such asset or advantage but for running the busi ness or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. " In K.T.M.T.M. Abdul Kayoom and Another vs Commissioner of Income Tax, , this Court after consider ing a number of English and Indian authorities held that each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. The Court observed that what is decisive is the nature of the business, the nature of the expenditure, the nature of the right acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases. In that case the assessee claimed deduction of Rs.6, 111 paid by it to the Government as lease money for the grant of exclusive rights, liberty and authority to fish and carry away all chank shells in the sea off the coast line of a certain area specified in the lease for a period of three years. The Court held that the amount of Rs.6,111 was paid to obtain an enduring benefit in the shape of an exclusive right to fish; the payment was not related to the chanks, instead it was an amount spent in acquiring an asset from which it may collect its stockin trade. It was, therefore, an expenditure of a capital nature. In Bombay Steam Navigation Co. Pvt. Ltd. vs Commissioner of Income Tax, Bombay, ; , the assessee pur chased. the 321 assets of another Company for purposes of carrying on pas senger and ferry services, it paid part of the consideration leaving the balance unpaid. Under the agreement of sale the assessee had to pay interest on the unpaid balance of money. The assessee claimed deduction of the amount of interest paid by it under the contract of purchase from its income. The court held that the claim for deduction of amount of interest as revenue expenditure was not admissible. The Court observed that while considering the question the Court. should con . sider the nature and ordinary course of business and the object for which the expenditure is in curred. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit earning process and not for acquisition of an asset or a right of a perma nent character, the possession of which is a condition for the carrying on of the business, the expenditure may be regarded as revenue expenditure. But, on the facts of the case, the Court held that the assessee 's claim was not admissible, as the expenditure was related to the acquisi tion of an asset or a right of a permanent character, the possession of which was a condition for carrying the busi ness. The High Court has relied upon the decision of this Court in R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , in rejecting the assessee 's contention. In Suganchand 's case the assessee was carrying on a mining business, he had paid a sum of Rs. 1,53,800 to acquire lease of certain areas of land bearing mica for a period of 20 years. Those areas had already been worked for 15 years by other lessees. The assessee had paid a sum of Rs.3,200 as fee for a licence for prospecting for emerald for a period of one year. In addition to the fee, the assessee had to pay royalty on the emerald excavated and sold. The assessee claimed the expenditure of Rs.3,200 paid by it as fee to the Government for prospecting licence as revenue expenditure. The assessee further claimed that the appropriate part of Rs. 1,53,800 paid by it as lease money was allow able as revenue expenditure. The Court held that while considering the question in relation to the mining leases an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature. But, where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material would be a revenue expenditure. The Court held that since the payment of tender money was for acquisition of capital asset, the same could not be treated as a revenue expenditure. As regards the claim relating to the prospecting licence 322 fee of Rs.3,200 the Court held that since the licence was for prospecting only and as the assessee had not started working a mine, the payment was made to the Government with the object of initiating the business. The Court held that even though the amount of prospecting licence fee was for a period of one year, it did not make any difference as the fee was paid to obtain a licence to investigate, search and find the mineral with the object of conducting the business, extracting ore from the earth necessary for initiating the business. The facts involved in that case are totally dif ferent from the instant case. The assessee in the instant case never claimed any deduction with regard to the licence fee or royalty paid by it, instead, the claim relates to the amount spent on the removal of a restriction which obstruct ed the carrying of the business of mining within a particu lar area in respect of which the assessee had already ac quired mining rights. The payment of Rs.3 lakhs for shifting of the Railway track and Railway Station was not made for initiating the business of mining operations or for acquir ing any right, instead the payment was made to remove ob struction to facilitate the business of mining. The princi ples laid down in Suganchand 's case do not apply to the instant case. In British Insulated and Helsby Cables Ltd. vs Atherton, , Lord Cave laid down a test which has almost universely been accepted. Lord Cave observed: ". when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circum stances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue out to capital." This dictum has been followed and approval by this Court in the cases of Assam Bengal Cement Co. Ltd. (supra); Abdul Kayoom (supra) and Seth Sugancha.nd (supra) and several other decisions of this Court. But, the test laid down by Lord Cave has been explained in a number of cases which show that the tests for considering the expenditure for the purposes of bringing into existence, as an asset or an advantage for the enduring benefit of a trade is not always true and perhaps Lord Cave himself had in mind that the test of enduring benefit of a trade would be a good test in the absence of special circumstances leading to an opposite conclusion. Therefore, the test laid down by Lord Cave was not a conclusive one as Lord Cave himself did not regard his test 323 as a conclusive one and he recognised that special circum stances might very well lead to an opposite conclusion. In Gotan Lime Syndicate vs C. I. T., Rajasthan & Delhi, 18, the assessee which carried on the busi ness of manufacturing lime from limestone, was granted the right to excavate limestone in certain areas under a lease. Under the lease the assessee had to pay royalty of Rs.96,000 per annum. The assessee claimed the payment of Rs.96,000 to the Government as a revenue expenditure. This Court after considering its earlier decision in Abdul Kayoom 's case (supra) and also the decision of Lord Cave in British Insu lated (supra), held that the royalty paid by the assessee has to be allowed as revenue expenditure as it had relation to the raw materials to be excavated and extracted. The Court observed that the royalty payment including the dead rent had relation to the lime deposits. The 'Court observed although the assessee did derive an advantage and further even though the advantage lasted at least for a period of five years there was no payment made once for all. No lump sum payment was ever settled, instead, only an annual royal ty and dead rent was paid. The Court held that the royalty was not a direct payment for securing an enduring benefit, instead it had relation to the raw materials to be obtained. In this decision expenditure for securing an advantage which was to last at least for a period of five years was not treated to have enduring benefit. In M.A. Jabbar vs C.I.T. Andhra Pradesh, Hyderabad; , , the assessee was carrying on the business of supplying lime and sand, and for the purposes of acquiring sand he had obtained a lease of a river bed from the State Government for a period of 11 months. Under the lease he had to pay large amount of lease money for the grant of an exclusive right to carry away sand within, under or upon the land. The assessee in proceedings for assessment of incometax claimed deduction with regard to the amount paid as lease money. The Court held that the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of permanent character instead the expenditure was for a specific object of ena bling the assessee to remove the sand lying on the surface of the land which was stock in trade of the business, there fore, the expenditure was a revenue expenditure. Whether payments made by an assessee for removal of any restriction or obstacle to its business would be in the nature of capital or revenue expenditure, has been consid ered by courts. In Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 13 the assessee carried on the business of iron founders which was incor 325 porated by a Charter granted to it in 1773. By passage of time many of its features had become archaic and unsuited to modern conditions and the company 's commercial performance was suffering a progressive decline. The Charter of the company placed restriction on the company 's borrowing powers and it placed restriction on voting rights of certain mem bers. The company decided to petition for a supplementary Charter providing for the vesting of the management in Board of Directors and for the removal of the limitation on compa ny 's borrowing powers and restrictions on the issue and transfer of shares. The company 's petition was contested by dissenting share holders in court. The company settled the litigation under which it had to pay the cost of legal action and buy out the holdings of the dissenting share holders and in pursuance thereof a supplementary Charter was granted. In assessment proceedings, the company claimed deduction of payments made by it towards the cost of obtain ing the Charter, the amounts paid to the dissenting share holders and expensed in the action. The Special Commissioner held that the company was entitled to the deductions. On appeal the House of Lords held that since the object of the new Charter was to remove obstacle to profitable trading, and the engagement of a competent Manager and the removal of restrictions on borrowing facilitated the day to day trading operation of the company, the expenditure was on income account. The House of Lords considered the test laid down by Lord Cave L.C. in British Insulated Company 's case and held that the payments made by the company, were for the purpose of removing of disability of the company trading operation which prejudiced its operation. This was achieved without acquisition of any tangible or intangible asset or without creation of any new branch of trading activity. From a commercial and business point of view nothing in the nature of additional fixed capital was thereby achieved. The Court pointed out that there is a sharp distinction between the removal of a disability on one hand payment for which is a revenue payment, and the bringing into existence of an advantage, payment for which may be a capital payment. Since, in the case before the Court, the Company had made payments for removal of disabilities which confined their business under the out of date Charter of 1773, the expendi ture was on revenue account. In Empire Jute Company vs C.I. T, [1980] 124 ITR I, this Court held that expenditure made by an assessee for the purpose of removing the restriction on the number of working hours with a view to increase its profits, was in the nature of revenue expenditure. The Court observed that if the advantage consists merely in facilitat ing the assessee 's trading operations of enabling the man agement and conduct of the assessee 's business to be carried on more efficiently or more profitably while leaving 326 he fixed capital untouched, the expenditure would be on revenue account even though the advantage may endure for an indefinite future. We agree with the view taken in the aforesaid two decisions. In our opinion where the assessee has an existing right to carry on a business, any expendi ture made by it during the course of business for the pur pose of removal of any restriction or obstruction or disa bility would be on revenue account, provided the expenditure does not acquire any capital asset. Payments made for remov al of restriction, obstruction or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset. In the instant case the assessee had been granted mining lease in respect of 4.27 square miles at Jamsar under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire money, licence fee and other charges for securing the right of mining in respect of the entire area of 4.27 square miles including the right to the miner als under the Railway Area. The High Court has held that on payment of Rs.3 lakhs, the assessee acquired capital asset of an enduring nature. The High Court failed to appreciate that Clause 3 was only restrictive in nature it did not destroy the assessee 's right to the minerals found under the Railway Area. The restriction operated as an obstacle to the assessee 's right to carry on business in a profitable man ner. The assesse paid a sum of Rs.3 lakhs towards the cost of removal of the obstructions which enabled the assessee to carry on its business of mining in an area which had already been leased out to it for that purpose. There was, there fore, no acquisition of any capital asset. here is no dis pute that the assessee completed mining operations on the released land (Railway Area) within a period of 2 years, in the circumstances the High Court 's view that the benefit acquired by the assessee on the payment of the disputed amount was a benefit of an enduring nature is not sustain able in law. As already observed, there may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit may not amount to acquisition of asset. The facts of each case have to be borne in mind in consider ing the question having regard to the nature of business its requirement and the nature of the advantage in commercial sense. In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered. In the instant case existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to 327 the assessee 's business of mining. The Railway Authorities agreed to shift the Railway establishment to facilitate the assessee to carry on his business in a profitable manner and for the purposes the assessee paid a sum of Rs.3 lakhs towards the cost of shifting the Railway construction. The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advan tage of an enduring nature. The Tribunal rightly allowed the expenditure on revenue account. The High Court in our opin ion failed to appreciate the true nature of the expenditure. We are, therefore, of the opinion that the High Court committed error in interfering with the findings recorded by the Income Tax Appellate Tribunal. We, accordingly, allow the appeal, set aside the order of the High Court and re store the order of the Tribunal. The appellant is entitled to its costs. N.V.K. Appeal allowed.

The appellant, a distiller of country liquor, carried on the business of selling liquor to licensed wholesalers. Due to shortage of bottles during the war a scheme was evolved, where under the distiller could charge a wholesaler a price for the bottles in which liquor was supplied at rates fixed by the Government, which lie was bound to repay to the wholesaler on his returning the bottles. In addition to this the appellant took a further sum from the wholesalers described as 'security deposit ' for the return of the bottles. Like the price of the bottles these moneys were also repaid as and when the bottles were returned with this difference that the entire sum was refunded only when go% of the bottles covered by it had been returned. The appellant was assessed to income tax on the balance of the amounts of these additional sums left after the refunds made there out. Held, that the amounts paid to the appellant and described as 'security deposit ' were trading receipts and therefore income of the appellant assessable to tax. These amounts were paid as an integral part of the commercial transaction of the sale of liquor in bottles and represented an extra price charged for the bottles. They were not security deposits as there was nothing to secure, there being no right to the return of the bottles. 684 K. M. section Lakshmanier & Sons vs Commissioner of Income tax and Excess Profits Tax, Madras, ; , followed. Davies vs The Shell Company of China Ltd., (1951) Tax Cas. 133; and Morley vs Tattersall, , distinguished. Imperial Tobacco Co. vs Kelly, , referred to.

ivil Appeal No. 1466 of 1987. From the Judgment and Order dated 8.12.1986 of the Calcutta High Court in Matter No. 1636 of 1985. A.K. Sen, Shanker Kumar Ghosh and D.P. Mukherjee for the Appellant. S.N. Kacker and G.S. Chatterjee for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. this is an application challenging the order of the learned single judge dated the 8th December, 1986 of the High Court of Calcutta. By the impugned judgment the said learned Judge has set aside the order dated the 19th April, 1983 of anoth er learned single judge on the ground, inter alia, that the first learned Judge, when she passed the order, acted with out 571 jurisdiction. There was an arbitration agreement. Clause 25 of the said Agreement, inter alia, was as follows: "except where otherwise provided in the contract all questions of disputes relating to the granting of specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship and materials used in the work or as to any question claims, rights, matters, or things whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the work or execution or failure to execute the same where arising during the progress of the work or after completion or abandonment thereof was to be referred to sole arbitration of the Director/Unit Head, C.M.D.A. not connected with the particular work as may be appointed by the authority. The award of the arbitrator shall be final, conclusive and binding on all the parties to the contract. " On that basis the appellant had moved an application for removal of the named arbitrator before the first learned Judge which came up for hearing on 19th April, 1983 and this was by filing of an application under Section 20 of the for an order for filing the arbitration agreement, for appointment of an arbitrator and for other consequential reliefs. By the order,dated 19.4.83 the said learned Judge has recorded the facts of this case and fur ther recorded that by virtue of the Clause 25 of the agree ment the appellant herein and prayed for appointment of an arbitrator for determination of the dispute that had arisen which had been set out in paragraph 15 of the petition. Inasmuch as according to the appellant the directors of all the units of Calcutta Metropolitan Development Authority had already expressed their opinion in respect of the disputes that had arisen between the appellant and the respondent and inasmuch as by the Central Tender Committee, the directors were members. Under the circumstances the appellant appre hended that the appellant might not get justice or proper relief under such circumstances. There was reasonable basis of the apprehension against the unnamed arbitrator, and it was urged that instead of appointing any officer of the respondent as arbitrator an independent member of the Bar be appointed as arbitrator. The learned Judge passed such order on 19th April, 1983 while recording these facts as alleged by the petitioner. These appear to have been reasons for appointing Sri Amitav Guha as the arbitrator in this case in terms of prayer (c) of the said petition. 572 The learned judge in the impugned order has observed that the Court was bound to enforce the particular agreement with which the parties came to the Court, and the parties were not entitled to have any fresh opportunity to appoint a new arbitrator as that would amount to a new agreement between the parties. This position is good in so far as it goes. But that does not solve the problem in all situations. The learned Judge also observed that no appointment can be made by the Court on the ground of disqualification of the arbitrator without having proper materials on record and without coming to a definite finding on this point. The learned Judge further observed that the Court either should have given effect to the agreed machinery for appointment of the arbitrator or it could have appointed afresh after coming to a clear finding that all directors of the Unit of C.M.D.A. were biased against the appellant herein as well as they had rendered themselves disqualified from being ap pointed as arbitrators. Until all of them were found dis qualified, the Court did not have the jurisdiction to ap point any new one and had to follow the correct machinery. It appears that the first learned Judge has in fact held that the arbitrator named had disqualified himself on the ground of bias and on that basis, appointed an outside Advocate, Shri Amitav Guha as the arbitrator. If the re spondents were not satisfied they could have moved an appeal against the order; instead respondents participated in the arbitration proceedings and acquiesced in such appointment. The order was made on 19.4.83 appointing Shri Amitav Guha an advocate of the Calcutta High Court as sole Arbitrator. The arbitrator appointed, started arbitration proceedings in which both the parties submitted to his jurisdiction and filed their respective claims and other documents in support thereof. It appears from the List of Dates submitted before us that respondent No. 1 moved three interlocutory applica tions at different points of time which were, however, disposed of with orders in favour of the appellant. Both parties got extention of the arbitration proceedings even by Hon 'ble Mrs. Justice Pratibha Bonnerjea at least 14 times and the last extention was granted upto November, 1985 by Justice Mrs. Bonnerjea. In the meantime the said Arbitrator had held 74 sittings which were attended by the parties of both sides and their counsel. A large amount of time and money, same at the cost of public have been spent on these. In the year 1985 the respondent No. 1 challenged the validity of the order of appointment of arbitrator passed by first learned judge Where she acted on the basis of the findings mentioned hereinbefore. Can a party be permitted to do that? In Arbn. Jupiter Gener al 573 Insce. Co. Ltd. vs Corporation of Calcutta, at 472) P.B. Mukherji, J. as the learned Chief Justice then was observed: "It is necessary to state at the outset that Courts do not favour this kind of contention and conduct of an applicant who participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees that the award has gone against him he comes forward to challenge the whole of the arbitration proceedings and without jurisdiction on the ground of a known disability of a party. That view of the Court is ably stated by the Editor of the 15th Edition of Russell on the Law of Arbitration at page 295 in the following terms: 'Although a party may by reason of some disability be legally incapable of submitting matters to arbitration that fact is not one that can be raised as a ground for disputing the award by other parties to a reference who were aware of the disability. If one of the parties is incapable the objection should be taken to the submission. A party will not be permitted to lie by & join in the submission and then if it suits its purpose attack the award on the ground. The presumption in the absence of proof to the contrary will be that the party complaining was aware of the disability when the submission was made. '" Mr. Kacker submitted that this principle could be in voked only in a situation where the challenge is made only after the making of an award, and not before. We are unable to accept this differentiation. The principle is that a party shall not be allowed to blow hot and cold simultane ously. Long participation and acquiescence in the proceeding preclude such a party from contending that the proceedings were without jurisdiction. Russell on Arbitration, 18th Edition,page 105 explains the position as follows: "If the parties to the reference either agree beforehand to the method of appointment, or afterwards acquiescence in the appointment made, with full knowledge of all the circum stances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings. 574 Attending and taking part in the proceedings with full knowledge of the relevant, fact will amount to such acquiescence." The Judicial Committee in decision in Chowdhury Murtaza Hossein vs Mussumat Bibi Bechunnissa, (31.A. 209) observed at page 220: "On the whole, therefore, their Lordships think that the appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceedings to make their awards, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as is stood before them, taking his chance of the decision being more or less favourable to himself; and that is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award. " Relying on the aforesaid observations this Court in N. Chellappan vs Secretary, Kerala State Electricity Board and Another, ; , acted upon the principle that acquiescence defeated the right of the applicant at a later stage. In that case the facts were similar. It was held by conduct there was acquiscence. Even in a case where initial order was not passed by consent of the parties a party by participation and acquiescence can preclude future chal lenges. In the grounds of appeal no prejudice has been indicated by the appointment of the second arbitrator. Mr. S.N. Kacker, learned counsel for the respondents drew our attention to the fact that the decision in the Chowdhuri Murtaza Hossein 's case was where the party chal lenged the appointment of the receiver after the award was made. He also submits that in this case the respondents herein had challenged the order of appointment of the arbi trator on 19.4.83 and not after the arbitrator had made the award. We are unable to accept this distinction. Basically the principle of waiver and estoppel is not only applicable where the award had been made but also where a party to the proceeding challenges the proceedings in which he partici pated. In the facts of this case, there was no demur but something which can be called acquiescence on the part of the respondents which precludes them from challenging the participation. 575 In that view of the matter, we are of the opinion that the judgment and impugned order cannot be sustained. In the premises the appeal is allowed. The order and judgment of the High Court dated the 8th December, 1986 are set aside. The arbitration proceedings will go on before the Arbitrator appointed by order dated 19th April, 1983. Time for making the award is extended for four months from today. For fur ther extention of time the party may apply to the High Court of Calcutta. The appeal is disposed of accordingly. The parties will bear their respective costs. P.S.S. Appeal allowed.

Clause 24 of the arbitration agreement between the parties provided for reference of all questions of dispute arising under the contract to the sole arbitration of the Director/Unit Heads of the respondent Authority, not con nected with the particular work. All such officers having already expressed their opinion in respect of the disputes that had arisen, the appellant apprehended that he may not get justice or proper relief. He, therefore, moved an appli cation under section 20 of the for appointment of an independent member of the bar as arbitrator instead of the named officer of the respondent Authority. A Single Judge of the High Court held that the arbitra tor named had disqualified himself on the ground of bias and appointed an outside advocate as the sole arbitrator on April 19, 1983. When arbitration proceedings commenced both the parties submitted to his jurisdiction and filed their respective claims and documents. Upto November 1985 the said arbitrator held 74 sittings which were attended by the parties of both sides and their counsel. Respondent No. 1 had moved three interlocutory applications. Both the parties got extension of arbitration proceedings at least 4 times upto November 1985. Respondent No. 1 challenged the validity of the order of appointment of arbitrator dated April 19, 1983 in the year 1985, when another Single Judge took the view that if the court was bound to enforce the particular agreement with which the parties came to the court, the parties were not entitled to have any fresh opportunity to appoint a new arbitrator as that would amount to a new agreement between the parties. He further observed that no appointment can be made by the Court on the ground of disqualification of the arbitrator without having proper materials on record and without coming to a definite finding on this point. Until then the Court did not have the jurisdiction to appoint 570 any new arbitrator and had to follow the correct machinery. This order of the Single Judge dated December 8, 1986 set ting aside the earlier order dated April 19, 1983 was as sailed in the appeal by special leave. Allowing the appeal, this Court, HELD: Long participation and acquiescence in arbitration proceedings preclude a party from contending that the pro ceedings were without jurisdiction. The principle is that a party shall not be allowed to blow hot and cold simultane ously. [573F] Basically the principle of Waiver and estoppel is not only applicable where the award had been made but also where a party challenges the proceedings in which he participated. In the instant case, there was no demur but something which can be called acquiescence on the part of the respondents or which precludes them from challenging the participation. [574G H] Arbn. Jupiter General Insce. Co. Ltd. vs Corporation of Calcutta, at 472; Chowdhury Murtaza Hossein vs Mussumat Bibi Bechunnissa, 3 I.A. 209; N. Chel lappan vs Secretary, Kerala State Electricity Board & Anr., ; and Russel on Arbitration, 18th Edn. p. 105, referred to.

Appeal No. 20 of 62. Appeal by special leave from the award dated September 29, 1960, of the Industrial Tribunal Punjab, Patiala in reference No. 13 of 1960. C.K. Daphtary, Solicitor General of India, Bhagirath Das and B. P. Maheshewari, for the appellants. M. K. Ramamurthi, B. K. Gary, D. P. Singh and section C. Aggarwal, for the respondent No. 2(i). September 7. The Judgment of Gajendragadkar and Das Gupta, JJ., was delivered by Gajendragadkar, J. Mudholkar J. delivered a dissenting judgment. GAJENDRAGADKAR, J. This appeal by special leave arises out of an industrial dispute in relation to a comparatively minor demand made against the appellants by the respondents their employees but in challenging the validity of the award passed by the Industrial Tribunal in favour of the 933 respondents on that demand the learned Solicitor General has raised a general question before us. He contends that in granting the demand made by the respondents, the award has illegitimately and unjustifiably trespassed on the appellants ' freedom of contract. The appellants as employers, are entitled tofix the terms of employment on which they would be willing to employ workmen and it is open to the workmen either to accept those terms or not; industrial adjudication should not interfere in such a matter. That is the nature of the general contention which has been raised before us in the present appeal. The facts leading to the dispute are few and they lie within a very narrow compass. The appellants are the Trustees of the Tribune Press and paper and the Trust is being worked in accordance with the terms of the will executed by Dyal Singh Majithia on June 15, 1895. In carrying out the policy of the Trust, the five appellants have executed a power of Attorney in favour of Mr. R. R. Sharma and the Press is managed and the paper is conducted to carry out the policy laid down by the will. It appears that before July 1, 1956, for the purposes of leave, the appellants had divided their employees into two categories (1) the Linooperators and (2) the rest of the workmen in the Press Section; and Rule 57 made provision for leave on the basis of the said classification. The effect of the said rule was that no Press worker other than the lino operator was entitled to any kind of paid leave although he was given the right to claim 30 days ' wages plus dearness allowance payable in January every year if he had worked for 11 Months. In addition, the said press worker was entitled to Quarantine leave on the terms mentioned in Rule 53. 934 This position was substantially altered on the July 12 1956, when the appellants framed a new Rule in respect of earned leave. This rule abolished the two categories of workers on which the earlier rule 57 was based and divided the workers into two categories (i) workers who were employed on or before 1.7.1956 and (ii) those who were employed after 1.7. 1956. In respect of the former category of workmen, the new Rule made the following provision: "Subject to the provisions of the Indian , every workman in the service of the Tribune on the 1st July, 1956, will be entitled to 30 days ' leave with wages after having worked for a period of 11 months. This leave shall cease to be earned, when it amounts to 60 days" In regard to the workmen falling under the latter category, earned leave was to be governed by the provisions of section 79 of the Indian . It is common ground that the provision for earned leave made by the said section is a provision for minimum earned leave which the employer is bound to give: whether or not additional leave should be granted by way of earned leave is a matter within the discretion of the employer. As a result of the new rule, the position was that the employees who had joined the service of the appellants on or before July 1, 1956, were entitled to 30 days ' earned leave with wages, whereas those who joined after the said date became entitled to the statutory minimum of 21 days of earned leave. At the time when this rule came into force there were 94 old employees to whom the rule applied and 27 new employees to them by virtue of the new Rule, section 79 of the was made 935 applicable. Gradually, new hands have also been employed and to all such new employees section 79 is applicable. It appears that by its resolution passed on January 8, 1960, the Tribune employees union sent to the Management a charter embodying about 20 demands. Attempts at conciliation were made but they failed and so, on April 4, 1960, eight of the said demands were referred by the Punjab Government to the Industrial Tribunal for its adjudication under section 10 of the Industrial Disputes Act. One of these demands was in rela tion to earned leave. The demand was that the employees in the Press Section should be allowed 30 days ' earned leave with full wages for every months ' service without any discrimination. The Tribunal has allowed this demand and it bad held that all workmen of the Press are entitled to 30 days ' earned leave without making any distinction a between workmen who joined before July 1, 1956, and those who joined subsequently. It is the validity of this award which is questioned before us by the appellants. The broad and general question raised by the learned Solicitor General on the basis of the employer 's freedom of contract has been frequently raised in industrial adjudication, and it has consistently been held that the said right is now subject to certain principles which have been evolved by industrial adjudication in advancing the cause of social justice. It will be recalled that as early as 1949, it was urged before the Federal Court in Western India Automobile Association vs The Industrial Tribunal Bombay(1) that the industrial Tribunal had no jurisdiction to direct an employer to reinstate his dismissed employees and the plea made was that such a direction was contrary to the known principles which govern the relationship between master and servant. This contention was negatived by the Federal Court. (1) ,120. 936 Speaking for the Court, Mahajan J. as he then was, observed that the award of the Tribunal may contain provisions for the settlement of a dispute which no Court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by these limitations. The same plea was again raised before this Court in The Bharat Bank Ltd., Delhi. vs The. Employees of The Bharat Bank Ltd., Delhi (1) and Mukherjea J. as he then was, emphatically rejected it. "Insettling the disputes between the employers and the workmen", observed the learned Judge, "the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any, existing agreement. It has not merely to interpret or to give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace. " This view has been consistently accepted by industrial adjudication since 1949. The doctrine of the absolute freedom of contract has thus to yield to the higher claims for social justice. Take, for instance, the case where an employer wants to exercise his right to employ industrial labour on any wages he likes. It is not unlikely that in an economically under developed country where unemployment looms very large. for Industrial work, employees may be found willing to take employment on terms which do not amount to a minimum basic wage. Industrial adjudication does not recognise the employer 's right to employ labour on terms below the terms of minimum basic wage. This, no doubt, is an interference with the employer 's (1) ; , 513. 937 right to hire labour, but social justice requires that the right should be controlled. Similarly the right to dismiss an employee is also controlled subject to well reorganised limits in order to guarantee security of tenure to industrial employees. In the matter of earned leave, s.79 of the prescribes a minimum in regard to establishments to which the Act applies. In the matter of bonus which is not regarded as an item of deferred wages, industrial adjudication has evolved a formula by the working of which employees are entitled to claim bonus, We have referred to these illustration to show bow under the impact of the demand of social justice, the doctrine of absolute freedom of contract has been regulated. It is, however, necessary to add that the general question about the employer 's right to manage his own affairs in the best way he chooses cannot be answered in the abstract without reference to the facts and circumstances in regard to which the question is raised. If a general question is posed and an answer must be given to it, the answer would be both yes and No. The right would be recognised and industrial adjudication would not be permitted or would be reluctant to trespass on that right or on the field of management functions unless compelled by over riding consi derations of social justice. The right would not be recognised and would be controlled if social justice and industrial peace require such regulation. That is why we think industrial adjudication always attempts not to answer questions in the abstract in order to evolve any general or inflexible principles. The eat course to adopt in dealing with industrial disputes is to consider the facts of the case, the nature of the demand made by employees, the nature of the defence raised by 938 the employer and decide the dispute without unduly enlarging the scope of the enquiry. If in the decision of the dispute, some principles have to be followed or evolved, that must be done: but care must be taken not to evolve larger principles which would tend to prejudge issues not directly raised in the case before the Industrial Tribunal. That is why we think we would not be justified in giving any general answer to the broad contention raised by the learned Solicitor General before us in the present appeal. The development and growth of industrial law during the last decade presents a close analogy to the development and growth of constitutional law during the same period. In some respects, itis well know that article 19 of the Constitutionhag guaranteed fundamental rights to individualcitizens and at the same time, has provided forthe regulation of the said fundamental rights subject to the provisions of cls. (2) to (6) of the said Article. Where a conflict arises between the citizen 's fundamental right to hold property and a restriction sought to be imposed upon that right in the interest of the general public, courts take the precaution of confining their decision to the points raised before them and not to lay down unduly broad and generaI propositions. As in the decision of constitutional questions of this kind, so in industrial adjudication it is always a matter of making a reasonable adjustment between two competing claims. The fundamental right of the individual citizen is guaranteed and its reasonable restriction is permissible in the interest of the general public, so, the claims of the interest of the general public have to be weighed and balanced against the claims of the individual citizen in regard to his fundamental right. So too, in the case of industrial adjudication 939 the claims of the employer based on the freedom of contract have to be adjusted with the claims of industrial employees for social justice. The process of making a reasonable adjustment is not always easy, and so, in reaching conclusions in such a matter, it is essential not to decide more than ' is necessary. If industrial adjudication pur ports to lay down broad general principles, it is likely ;to make its approach in future case#; inflexible and that must always be avoided. In order that industrial adjudication should be completely free from the tyranny of dogmas or the sub conscious pressure of pro conceived notion, it is of utmost 'importance that the temptation to lay down broad principles should be avoided. In these matters, there are no absolutes and no formula can be evolved which would invariably give an answer to different problems which may be posed in different cases on different facts. Let us, therefore, revert to the facts of this case and decide whether the appellant 's attack against the validity of the propriety of the award can be sustained. In dealing with the narrow dispute presented by this appeal, it is necessary to remember that all the employees of the appellants are governed by the same terms and conditions of ,service, except in regard to earned leave. It is only in respect of this term and condition of service that a distinction is made between workmen employed on or before 1.7. 56 and those employed after that date. Generally, in the matter of providing leave rules, industrial adjudication prefers to have similar conditions of service in the same industry situated in the same region. There is no evidence adduced in this case in regard to the condition of earned leave prevailing in the comparable industry in this region. But we cannot ignore the fact that this 940 very concern provides for better facilities of earned leave to a section of its employees when other terms and conditions of service are the same in respect of both the categories of employees. It is not difficult to imagine that the continuance of these two different provisions in the same concern is likely to lead to dissatisfaction and frustration amongst the new employees. It cannot be denied that the existence of industrial peace and harmony and the continuance of the said peace and harmony are relevant factors, but their importance should not be unduly exaggerated. If a frivolous demand is made by the employees and it is accompanied by a threat that non compliance with the demand would lead to industrial disharmony or absence of peace, it would be unreasonable to treat the thrust as relevant in deciding the merits of the demand. In this connection, it is necessary to remember that the continuance of harmonious relations between the employer and his employees is treated as relevant by industrial adjudication, because it leads to more production and thereby has a healthy impact on national economy, and so it is necessary that in dealing with several industrial disputes, industrial adjudication has to bear in mind the effect of its decisions on national economy. In their zest to fight for their respective claims, the parties may choose to ignore the demand of national economy, but industrial adjudication cannot. If the demand is plainly frivolous, it has to be rejected whatever the consequences may be. In the present case, the argument that the continuance of two different provisions would lead to disharmony cannot, however, be treated as frivolous. It is difficult to understand on what principle the discrimination is based. The only argument urged in support of the discrimination is the employer 's right to provide for new terms of service to the new entrants in service. In our 941 opinion, the validity of this argument cannot be accepted in the circumstances of this case. Take the case of the wages or dearness allowance which the Appellants paid to their employees. Would the appellants be justified in assertion of their right of freedom of contract to offer less favourable terms of wages or dearness allowance to employees who would be employed after a certain date ? If the general point raised by the learned Solicitor General is upheld without any qualifications, then it would be open to the employer to fix different wages for different sets of workmen who are doing the same kind of work in his concern. We have rarely come across A case where such a claim has either been made or has been upheld. It is well known that both industrial legislation and industrial adjudication seek to attain similarity or uniformity of terms of service in the same industry existing in the same region, as far as it may be practicable or possible, without doing injustice or farm to any particular employer or a group of employers That being so, we do not think the Tribunal was in error in holding that in the matter of earned leave, there should be uniformity of conditions of service governing all the employees in the service of the appellants. There is another aspect of this question to which reference must be made. This is not a case in which the financial liability imposed on the employer by the award when it directed the employer to grant the earned leave of 30 days to all the employees, is very heavy; and so, having regard to the fact that the appellants have been conducting their business in a profitable way and their financial position is distinctly good, no attempt has been made before us and rightly, to suggest that the burden imposed by the award is beyond their means. it is not disputed that the total annual liability which 942 may accrue as a result of the award may not exceed Rs. 1,000/ , and it is also common ground that the appellants are a flourishing concern and their not profits which were in the neighbourhood of a lac of rupees in 1949, have shown an upward tendency and have reached almost rupees eight lacs in 1959. That is another factor which has to be borne in mind in dealing with the present dispute. It is not suggested by the appellants that the provision made by them for earned leave in respect of old employees is unduly generous of extravagant and so, it has become necessary to invoke the provisions of section 79 of the in respect of new employees. On the other hand, earned leave provided by section 79 is the minimum statutory leave to which employees are entitled and if the appellants thought it necessary to provide for additional earned leave to their old employees, there is no reason why they should not make a similar provision in respect of the new employeesas well. We ought to add to that on the record, it does appear that the appellants are good employees and they are treating their employees in a liberal manner. It, however, appears that they have brought the present dispute to this Court more for asserting the general principle of the employer 's right to fix conditions of service with his new employees than for vindicating any real or substantial grievance against the award which would prejudicially affect their interest. In our opinion, having regard to the nature of the dispute raised in the present appeal and the other relevant facts and circumstances, it cannot be said that the Industrial Tribunal erred in law in directing the appellants to provide for the same uniform rule as to earned leave for all their employees. We are satisfied that the award under appeal cannot be set aside only on the academic or abstract point of law raised by the appellants. 943 The result is, the appeal fails and is dismissed with costs. MUDHOLKAR, J. This is an appeal by special leave from the award of the Industrial Tribunal, Punjab. The appellants before us are the trustees of 'The Tribune ' Ambala Cantt. and the opposite party to the appeal consists of the workmen of the Tribune through their two unions, one the Tribune Employees ' Union and the other the Tribune Workers ' Union. The Trust was founded in Lahore by the late Sardar Dayal Singh Majithia on February 1, 1881. It publishes the newspaper "Tribune". By the will of the founder dated June 15, 1895 the Management of the Tribune was vested in a public trust in September, 1898. After the partition of India the offices of the newspaper had to be shifted from Lahore and they are now located at Ambala. The Trust naturally had to leave the entire machinery and other equipment of the Tribune Trust along with its immovable property in Lahore. The value of that property is stated by the appellants to be Rs. 25 lakhs or so. The Trust was however, able to transfer its bank accounts and Government securities to India a few days before the partition. With the help of these assets it reestablished the Tribune Press and office at Ambala and established new machinery at a cost of Rs. 15 lakhs or so. Gradually the Trust has been able to rehabilitate its fortunes. It is not disputed before us that despite the heavy loss entailed by the Trust by reason of being uprooted from Pakistan, the employees quite a number of whom are old employees who were able to migrate to India, have been treated with a great deal of consideration. After the Tribune started making profits the employees are being given bonus every year. Moreover even before the Employees Provident Fund scheme applicable to newspaper 944 industry and even before the scheme of gratuity for all categories of employees were enforced by statute be Tribune had provided for both provident fund and gratuity to its employees. In addition to this it has provided free housing accommodation to its workmen in two colonies, one built in 1955 with the help of subsidy from the Government of India and the other in the year 1958 at a cost of Rs. 6 lakhs. The quarters in the two colonies are provided with modern sanitation Besides that, there are extensive recreation grounds, lawns etc., in these colonies. Even electricity is supplied free to the employees. Several other amenities are also provided by the Trust. It would thus appear that the welfare of the employees has been kept prominently in mind by the trustees. Even so, some disputes arose between the management and the employees. Ultimately eight demands made by the employees were referred by the Government of Punjab for adjudication under section 10(1) of the industrial Disputes Act, 1947 (14 of 1947) to the Industrial Tribunal, Punjab, Patiala constituted under s.7A of the Act. Four demands were rejected by the Tribunal as having been withdrawn, one was settled amicably and on the remaining three the Tribunal has made its award. One of those three demands is : "Whether the employees in the Press Section should be allowed 30 days ' earned leave with full wages for every 11 months ' service without discrimination ?" The Tribunal hold in favour of the workmen and it is only against this part of the award of the Tribunal that the trustees have come up in appeal before us. Certain facts have to be stated in connection with this demand. The Trust had framed certain rules governing the conditions of service of 945 its employees. Rule 57 of those rules deals with leave and reads thus : "The Lino Operators shall be entitled to 30 days ' leave of all description (luring the course of a calendar year, which will be with pay plus all allowances. Press employees, other than the Lino operators may be granted leave by the competent authority from time to time as the authority may determine. Such leave shall be without pay or allowance. They shall, however, be entitled to in the month of January every year to receive a sum amounting to the leave pay plus ordinary dearness allowance for the preceding month of December for the period of II months ' service or to a proportionate amount for a lesser period. In addition, Press workers will be entitled to quarantine leave on the terms mentioned in Rule 53". On July 1, 1956 a new rule was framed which reads as follows : "(1) Subject to the provisions of the Indian , every workman in the service of the Tribune on the 1st July, 1956, will be entitled to 31 days ' leave with wages,, after having worked for a period of II months. This leave shall cease to be earned, when it amounts to 60 days. (2) A workman joining the service of the Tribune after the 1st July, 1956 will be entitled to leave, in accordance with the provisions of section 79 of the Indian . " Under the old rule the Lino Operators in the press section were allowed 30 days ' leave on full wages 946 including dearness allowance. The other workers in the press section were, however, allowed not leave with pay, but 30 days ' wages in the month of January calculated on the basis of the full wages drawn in the preceding month provided that an employee had served for a period of II months till the beginning of the month of January. If he had served for a lesser period he was to be paid propor tionately less amount. Bearing in mind the fact that in industries leave, vacation and holidays with pay are regarded as supplemental pay practices (see Collective Bargaining principles and Cases by John T. Dunlop and James J. Healy, revised edn., p. 433), in substance even the employees in the press section other than lino operators got the same money equivalent of the leave allowed to lino operators. It may be mentioned that these other press section employees were also entitled to take leave but the rule provided that they will Dot be paid any pay and allowances for such leave. That was perfectly reasonable because they got pay in lieu of paid leave for an additional period in the month of January. However, even this slight distinction in the mode of conferring benefits on the two categories of employees was abolished by the new rule which came into force on July 1, 1956, and all employees in the press section upto that date were made eligible for the grant of 30 days ' leave with wages after having worked for a period of 11 months. It 'May be mentioned here that the of 1948 provided in a. 79 that every worker who has worked for a period of 240 days or more in a calendar year shall be given at least one days ' leave for every 20 days of service. No doubt this was the minimum provided by the Act but since the press section is governed by the it was open to the Trust to modify its rules with regard to all employees of this section and grant leave according to the provisions of this 947 section. There is no prohibition in law against doing so but still it did not wish to revise unfavourably its rules regarding the quantum of leave to its existing employees. It, however, felt that in view of the statutory provision there was no obligation upon it to provide for a longer leave than that laid down in section 79 of the . It was for this reason that it provided that all employees engaged on or after July 1, 1956, will be granted leave according to the provisions of section 79 of the , the idea being that eventually all employees should be governed by the rules. Apparantly, to forestall this consequence the employees contend that the new rule has introduced discrimination. That is why they raised a dispute relating to this matter and it was referred to the Tribunal along with the other disputes they had raised. The Tribunal, dealing with this matter, has observed as follows : "It may be of some importance to note that till 1st July, 1956 the workmen who had entered service before that date and those who had been employed thereafter were in the matter of leave compensation, treated alike. It was on 1st July, 1956 for the first time that the workmen who had been in service before that date were given 30 days ' paid leave but for now entrants the number of days of that leave was reduced to that permitted by section 79 of the . The Union 's contention is that to allow 3 days ' earned leave with full wages in an year to a certain group of workmen in Press Section and to deny that benefit to the rest of the workmen of that section simply on the score of their having entered service after 1st July, 1956, is to acknowledge the prominent element of discrimination which has been res 948 ponsible for the heart burning, resentment and dissatisfaction of the workmen. It is further urged with emphasis that all workers for the Press Section should in the matter of earned leave be treated equally. For the long space of seven years even after the had come into force the management had continued to treat all workmen of the Press Section alike irrespective of the date of their employment. There is no reason why a distinction of a discriminatory nature and effect be made between the two artificially created sets of workmen belonging to the same section. " It seems to me that the Tribunal 's ultimate finding is vitiated by a misconception entertained by it. The first sentence in the above quotation would show that the Tribunal thought that those persons who were employed after July 1, 1956 were treated in the matter of leave on par with those employed before July 1, 1956, ,till July 1, 1956" but were sought to be discriminated against only thereafter. It is difficult to understand how persons who were employed after July 1, 1956, could possibly be treated before July 1, 1956, equally with employees who were in service on that day. Apparently it is this confusion in the mind of the Tribunal which has influenced its ultimate conclusion. That apart, it is quite clear that what the Trust has done is to put in one category persons who enjoyed in substance the same kind of benefit uptil July 1, 1956 and permit them to enjoy the benefit they bad hitherto enjoyed. Then it put in a separate category those persons who could never possibly lay any claim to have enjoyed a similar benefit because they were not its employees till July 1, 1956, and decided that they will get leave only as provided in section 79 of the . All persons in each category are intended to be alike and, therefore the 949 question of discrimination does not in fact arise. It was, in my opinion, open to the management to offer to the new entrants now terms. When the new entrants entered service accepting the new terms and knowing fully well that one of those terms i. e., the one relating to annual leave was different and less beneficial from the one which obtained in the case of the old employees, it is not reasonable for them now to say that they are being discriminated against. The Tribunal, however, thinks otherwise. It has held that the Trust, by treating the now entrants less favourably in the matter of leave than its old employees has practiced discrimination and that this discrimination has caused heart burning. Presumably, therefore, the Tribunal felt impelled to interfere and direct that the new entrants should be treated ' in the matter of leave on par with the old employees in ' order to avoid industrial unrest which may result 'from ' heart burning amongst the new entrants. What we must first consider is whether the existing of heart burning has at all been established in this case. It is said that the continuance of different provisions in the same concern has caused heart burning, dissatisfaction and frustration among the new employees and this would lead to unrest in the industry. For one thing, there is no evidence before us to show that the new employees are making a very serious grievance of the fact that they would get a few days less of leave than the old employees. All that Mr. Ramamurti could point out to us was the statement in the evidence of Som Nath, A. W. 7. that he should also be given 30 days, privilege leave in a year. Merely saying that he should be given privilege leave does not mean that he is harbouring bitterness in his mind. Apart from that it would be extremely unreasonable to take notice of bitterness, if any, in the minds of 950 these new employees in regard to this matter because. as already stated, they voluntarily took up employment knowing that they would got less leave than the old employees. Som Nath 's statement is no evidence of the fact that there is any heart burning. To say that the very fact that two sets of people are governed by different rules will necessarily lead to heartburning, without establishing anything more, such as inadequacy of the benefit enjoyed by one set will be to ignore that such differences are a matter of common occurrence and no reasonable person is expected to magnify their consequences. It seems to me, further, that the workers as a body did not think much of the distinction between the extent of leave enjoyed by old and new employees because during all the four years while the rule has been in force they raised no protests. No doubt they did ultimately make a protest in the year 1960 when the dispute was referred to the Tribunal. But then, this was not the sole dispute but was one of eight disputes, at least four of which were withdrawn by the Unions, apparently after realising that there was no substance in them. The mere fact that they did not withdraw this dispute would not of itself indicate that they regarded it as of great importance. It may well be that they did not withdraw it in an erroneous belief that anything which is characterised as discrimination will at once earn the sympathy of Industrial Tribunals and the Courts. Even assuming that is creating heartburning amongst the employees the question arises whether they have a real grievance. They say that the Trust has discriminated against the new entrants and this is their grievance. In this connection it may be observed that the more refusal or failure of an employer to treat equally all its employees doing a particular kind of work would not necessarily amount to discrimination. The subject of is d 951 crimination has come up for consideration before this Court in a largo number of cases in which a complaint has been made that the equality clause of the Constitution, article 14, has been violated. This Court has held that It is open to the State to make reasonable classification both as regards persons and as regards things (see in particular Budhan vs State of Bihar(1) ; Khandige Sham Bhatt vs Agricultural Income tax Officer (2); This Court has laid down that a classification made by the, State will be reasonable provided that (1) it is founded on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the group; and (2) that the differentia has a rational relation to the object sought to be achieved by the statute. In the State of Madhya Pradesh vs Gwalior Sugar Co. Ltd. (4); it has been held that it is permissible to make classification on historical grounds, by putting in one class one set of persons or things and in 'other all those left out from the first class Court. In Ramjilal vs Income tax Officer, Mohindargarh(5) this Court has held that a taxing law may provide that a law imposing a new rate shall not apply to pending proceedings. In other words this Court has upheld the law where one rate of income tax shall be applicable to persons whose cases were pending for assessment and another rate to persons whose cases were not so pending. Thus, this Court has hold as reasonable classification made by reference to difference in time. In Sardar Inder Singh vs The State of Rajasthan (6) this Court has held that it is open to the legislature to decide the date from which a law should be given operation and that the law made by it cannot be challenged as discriminatory because it (1) ; (2) ; (3) C A. Nos. 98 & 98 of 1959 decided on November 30, 1960. (4) ; (5) ; 952 does not apply to prior transactions. Thus in this case also classification made on the basis of difference in time has been upheld. Finally in Hathising Mfg. Co. vs Union of (India (1) this Court has held that there is no discrimination if the law applies generally to all persons who come within its ambit as from the date on which it is made operative. This case likewise accepts that it will not amount to discrimination if one set of persons is treated differently from another by reference to a point of time. It would follow from these decisions that if the State as an employer provided that persons entering its service after a certain date will be governed by a set of condition which will be different and, may be less favourable than those governing the existing entrants that law will not be open to attack under article 14 of the Constitution on the ground that it discriminates between one set of employees and another. In my judgment the principle laid down by this Court that reasonable classification does not amount to discrimination is of general application. Therefore, when an employer 's action is challenged before an Industrial Tribunal as discriminatory, the Tribunal will also have to bear it in mind. For if an action cannot be regarded as discriminatory and violative of article 14 of the Constitution because it is based on a reasonable classification an identical action of a private employer affecting his employees can also not be regarded as discriminatory. The content and meaning of 'discrimination ', wherever the term is used, must necessarily be the same and we cannot adopt one standard for judging whether an action when it emanates from the State, is discriminatory or not and another standard for judging an identical action, when it emanates from a private citizen. Looked at this way, I have no doubt that the Trust has not practised what can in law be regarded as discrimination against its now entrants (1) A.I.R. 1960 S.C. 931. 953 by allowing them lesser leave than it has allowed to its old entrants. I may point out that it is not an unusual thing even in Government service to find new entrants being treated differently in the matter of leave, emoluments etc., from the old entrants. It is a well know fact that in most of the provinces of India in the year 1932 or 1933 pay scales in various categories of Government service were revised and new scales less favourable than the old ones were introduced. Therefore, a largo body of men were performing the same duties as other large body of men but were getting lesser pay than the latter. That happens often, is happening today in several of the recently reorganised States and may happen hereafter also. But merely because new terms of service are less favourable than the old ones, would it be correct to say that there is discrimination between the new entrants and the old entrants? As already pointed out, it is open to the employer to offer different and even less favourable terms to new entrants and if the new entrants entered service with their eyes wide open they cannot reasonably complain of being discriminated against. Mr. Ramamurthi who appears for the employees, however, contends that it is open to an employee to take up employment on the existing conditions of service and immediately start clamouring for improving his conditions of service. It is sufficient to say that without establishing that there was a change in circumstances subsequent to the time when a workman accepted service a demand for improvement in the conditions of service cannot, with justice, be entertained unless of course the original conditions of service were plainly unfair. Mr. Ramamurthi does not say that the term regarding leave in the rule applicable to the new entrants is unfair in the sense that the 954 leave allowed is inadequate. But, Mr. Ramamurthi said that where a service condition causes heartburning amongst two sections of employees discontent and unrest would be its natural outcome and so it is open to the Tribunal to revise the condition and thus eliminate that discontent. I am unable to accept the argument. No doubt, the provisions of the Industrial Disputes Act are wide enough, like those of other legislative enactments placed on the statute book, for promoting the welfare of the employees to permit an Industrial Tribunal to override the contract between an employer and his employees governing conditions of service of the employees. But it does not follow from this that no sooner a reference of a dispute is made to a Tribunal for adjudication than the contract of service ceases to have any force. The power to interfere with a contract of service can only be resorted to in certain limited circumstances. As has been pointed out by this Court in State of Madras vs C. P. Sarathy(1), the adjudication by a Tribunal is only an alternative form of settlement of disputes on a fair and just basis, having regard to the prevailing conditions of the industry. Bearing in mind this principle, it would follow that it is only for securing a fair and just settlement of an industrial dispute that the Tribunal can over ride the contract between the parties. For deciding what is fair and just, it is not enough for the Tribunal to say that a particular demand be granted for doing social justice. What it must ascertain is whether the grievance is a real one and whether it is of a type of which the employees can justly complain. In Muir Mills Co., Ltd. vs Suti Mills Mazdoor Union, Kanpur (2) it has been pointed out social justice is a very vague and indeterminate expression and no clear cut definition can be laid down which will cover all the situations and that the fancy of an (1) (2) ; 955 individual adjudicator is not social justice. But, of course. , that does not mean that social justice has no place in the settlement of industrial disputes. It is indeed a relevant consideration but it is well to bear in mind that doing social justice in an industrial dispute is not merely doing justice between the employer and the employee. The question of doing anything in the interest of social justice comes in when the State has a social interest in a situation or in an activity because of its repercussions on the community at large. Therefore, when the social interest of the community is involved in a situation or an activity, the interests of all parties who are affected by it have to be borne in mind, the parties being not merely the employers and the employees but also the community at large which includes also the consumers. So, where a direction in an award is sought to be sustained on the ground that it was made with the intention of promoting social justice it must be shown that the adjudicator had borne in mind also the interests of the community. This aspect of the matter has not been borne in mind by the Tribunal and, therefore, the relevant direction in its award cannot be sustained on the ground that it is actuated by the need of promoting social justice. The ground given by the Tribunal, as already stated, is that there is discrimination and the existence of the discrimination will be a perpetual source of unrest. Granting, again, that there is discrimination it is difficult to appreciate now it can be a perpetual source of bitterness for. with the efflux of time, the old employees will gradually be fading out till at last there will be left only that category of workers to which the provisions of is. 79 of the apply. 956 Nor again. do I think the fact that a dispute a comparatively of minor character and that the financial burden entailed on the employer is inconsiderable, a matter which would entitle the Tribunal to alter a contract between an employer and his employees. In fact these factors are not relevant for consideration. If the leave terms offered to new employees were on their face unfair, the mere fact that the employer did not have the capacity to pay would not have been allowed to influence the determination of the issue. I would go further and say that since the Trust has provided for its new entrants such leave facilities as are recognised by the itself as fair, it was not open to the Tribunal to revise the relevant term of the contract,. For all these reasons I am of opinion that the appeal must succeed and the award of the Tribunal should beset aside in so far as it refers to the demand made by the employees for grant of the same leave to new entrants as is being granted to old employees. By COURT. In accordance with the opinion, of the majority, the appeal fails and is dismissed with costs.

On July 1, 1956, the appellants made a rule that every workman employed on or before that date would be entitled to 30 days leave with wages after working for II months and workmen employed after that date would be entitled to earned leave in accordance with the provisions of s.79 of the Indian . The State Government referred for adjudication to the Industrial Tribunal the question whether all the employees should be allowed 30 days earned leave with full wages for every II months ' service without discrimination. The Tribunal held that ail the workmen were entitled to 30 days earned leave without making any distinc tion between workmen who joined before July 1, 1956, and those who joined subsequently. The appellants contended that they were entitled to fix the terms of employment on which they would employ the workmen and it was open to the workmen to accept those terms or not and the tribunal was not justified in interfering in such a matter. Held, per Gajendragadkar and Das Gupta, JJ., that the Tribunal was justified in directing the appellants to provide for the same uniform rule as to earned leave for all their employees. The doctrine of absolute freedom of contract had to yield to the higher claims for social justice and had to be regulated. In industrial adjudication no attempt should be made to answer questions in the abstract for evolving any general or inflexible principles. Each dispute has to be decided on its own facts without enlarging the scope of the enquiry. If some principles have to be followed or evolved, care has to be taken not to evolve larger 931 principles. In order that industrial adjudication should be free from the tyranny of dogmas or the sub conscious pressure of preconceived notions it is important that the temptation to lay down broad principles should be avoided. Accordingly it is not necessary to decide the broad contention whether industrial adjudication can interfere with the contract between the employers and the employees. In the present case, all the workmen were governed b the same terms and conditions of service, except in regard to earned leave. The discrimination was not based upon any principle and was bound to lead to disaffection amongst the new employees. The financial burden imposed by the award on the employers was slight. The provisions for earned leave in respect of old employees were not unduly generous or extravagant. Earned leave provided for by s.79 was the minimum statutory leave. If the appellants thought it necessary to provide for additional earned leave for their old employees, there was no reason why they should not make a similar provision in respect of new employees as well. Western Indian Automobile Association vs Industrial Tribunal, Bombay, and Bharat Bank Ltd. vs The Employees of Bharat Bank Ltd. , referred to. Per Mudholkar, J. The Tribunal was not justified in interfering with the rule made by the appellants. It was open to the appellants to grant leave according to s.79 , to all the employees but still they did not wish to reduce the leave of 30 days which they were already giving to the old employees. The appellants have put into one category persons who enjoyed the same kind of benefits until July 1, 1956, and have put in another category persons who did not enjoy such benefits. All persons in each category were treated alike, and the question of dis crimination did not in fact arise. If the State had pro vided that persons entering its service after a certain date would be governed by a set of conditions which were different and less favorable than those governing the existing servants its action would not be open to an attack under article 14 of the Constitution. An identical action of a private employer could also not be regarded as discriminatory. An award made with the intention of promoting social justice must take into consideration the interests of the community. Even if there was discrimination it could not be a perpetual source of bitterness as gradually the old employees would fade out 932 till only one category of workers would remain. The facts that the dispute was comparatively of a minor character and that the financial burden imposed on the appellants was small did not entitle the tribunal to alter the contract between the employer and employees. Since the appellant had provided for its new entrants such leave facilities as were recognised by the itself as fair, it was not open to the Tribunal to revise the relevant term of the contract. Budhan vs State of Bihar, A.I.R. 1956 section C. 191, Khandige Sham Bhat vs Agricultural Income Tax Officer [1963] 3 S.C.R. 809, State of M.P. vs Gwalior Sugar Co. Ltd. C.A. Nos. 98 & 99 of 1959, dated 30.1 1.60, Ramjilal vs Income tax Officer, Mohindargarh, ; , Sardar Inder Singh vs The State, of Rajasthan, ; and Hathisingh .Mfg. Co. vs Union of India, A.1 R. 1960S. C. 931 referred to.

Appeal No. 205 of 1952. Appeal from the Judgment and Order dated the 16th September, 1952, of the High Court of Judicature at Madras (Subba Rao J.) in Writ Petition No. 599 of 1952 filed under the Special Original Jurisdiction of the High Court under article 226 of the Constitution of India. M.C. Setalvad, Attorney General.for India (G. N. Joshi, with him) for the appellant and Intervener. Mohan Kumaramangalam, for the respondent. February 27. The judgment of the court was delivered by PATANJALI SASTRI C.J. This is an appeal from an order of a Single Judge of the High Court of Judicature at Madras issuing a writ of prohibition restraining the 1146 Election Commission, a statutory authority constituted by the President and having its offices permanently located at New Delhi, from enquiring into the alleged disqualification of the respondent for membership of the Madras Legislative Assembly. The respondent was convicted by the Sessions Judge of East Godavari and sentenced to a term of seven years ' rigorous imprisonment in 1942, and he was released on the occasion of the celebration of the ludependence Day on 15th August, 1947. In June, 1952, there was to be a by election to a reserved seat in the Kakinada constituency of the Madras Legislative Assembly, and the respondent, desiring to offer himself as a candidate but finding himself disqualified under section 7 (b) of the Representation of the People Act, 1951, as five years had not elapsed from his release, applied to the Commission on 2nd April, 1952, for exemp tion so as to enable him to contest the election. No reply to the application having been received till 5th May, 1952, the last day for filing nominations, the respondent filed his nomination on that day, but no exception was taken to it either by the Returning Officer or any other candidate at the scrutiny of the nomination papers. The election was held on 14th June, 1952, and the respondent, who secured the largest number of votes, was declared elected on 16th June, 1952. The result of the election was published in the Fort St. George Gazette (Extraordinary) on 19th June, 1952, and the respondent took his seat as a member of the Assembly on 27th June, 1952. Meanwhile, the Commission rejected the respondent 's application for exemption and communicated such rejection to the respondent by its letter dated 13th May, 1952, which however was not received by him. On 3rd July, 1952, the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice "for such action as he may think fit to take", the fact that the respondent 's application for exemption had been rejected. A question as to the respondent 's disqualification having thus been raised, the Speaker referred the question to the Governor of 1147 Madras who forwarded the case to the Commission for its "opinion" as required by article 192 of the Constitution. The respondent having thereupon challenged the competency of the reference and the action taken thereon by the Governor, the Commission notified the respondent that his case would be heard on 21st August, 1952. Accordingly, the Chief Election Commissioner (who wag the sole Member of the Commission for the time being) went down to Madras and heard the respondent 's counsel and the Advocate General of Madras on 21th August, 1952, when it was agreed that, in case the petitioner 's counsel desired to put forward any further representations or arguments, the same should be sent in writing so as to reach the Commission in Delhi by 28th August, 1952, and the Commission should take them into consideration before giving its opinion to the Governor. On the same day (21st August, 1952) the respondent applied to the High Court under article 226 of the Constitution contending that article 192 thereof was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an Election Tribunal. He accordingly prayed for the issue of a writ of mandamus or of prohibition directing the Commission to forbear from proceeding with the reference made by the Governor of Madras who was not, however, made a party to the proceeding. On receipt of the rule nisi issued by the High Court, the Commission demurred to the jurisdiction of the court to issue the writs asked for, on the ground that the Commission was not "with in the territory in relation to which the High Court exercised jurisdiction". A further objection to the maintainability of the application was also raised to the effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view of the immunity provided under article 361 (1), and that the Commission itself, which had not to "decide" the question of disqualification, but had merely to give its 1148 "opinion", could not be proceeded against under article 226. On the merits, the Commission contended that article 192 was, on its true construction, applicable to cases of disqualification arising both before and after the election and that both the reference of the question as to the respondent 's disqualification to the Governor of Madras and the latter 's reference of the same to the Commission for its opinion were competent and valid. The application was heard by Subba Rao J. who overruled the preliminary objections and held that article 192 on its true construction applied only to cases of supervening disqualifications and that the Commission had, therefore, no jurisdiction to deal with the respondent 's disqualification which arose long before the election took place. He accordingly issued a writ prohibiting the Commission from proceeding with the enquiry in regard to the question referred to it by the Governor under article 192. The learned Judge, however, granted a certificate under article 132 that the case involved substantial questions of law as to the interpretation of the Constitution, and the Commission has accordingly preferred this appeal. A preliminary objection was raised by Mr. Mohan Kumaramangalam, who argued the case for the respondent with marked ability, that the appeal brought from the judgment of a single Judge was barred under article 133(3) of the Constitution despite the certificate granted by the learned Judge overruling the same objection which was also raised before him. It has been urged that, so far as civil matters are concerned, the more comprehensive provisions in article 133(1) (c) for the grant of a certificate of fitness for appeal to the Supreme Court completely overlap article 132(1) which relates only to one specific ground, namely, a substantial question of law being involved as to the interpretation of the Constitution, and that the court 's power, therefore, to grant a certificate of fitness on any ground including the ground referred to above, must be deem ed to arise under article 133(1) (c), with the result that the exercise of such power is excluded by the opening 1149 words of clause (3) of that article which bars an appeal from the judgment, decree or final order of one Judge of a High Court. The argument was sought to be reinforced by reference to clause (2) of that article and the proviso to article 145(3) both of which contemplate appeals involving substantial questions of law as to the interpretation of the Constitution being brought without a certificate having been obtained under article 132. The argument has no force. While it is true that constitutional questions could be raised in appeals filed without a certificate under article 132, the terms of that article make it clear that an appeal is allowed from "any judgment, decree or final order of a High Court" provided, of course, the requisite certificate is given, and no restriction is placed on the right of appeal having reference to the number of Judges by whom such judgment, decree or final order was passed. Had it been intended to exclude the right of appeal in the case of a judgment etc., by one Judge, it would have been easy to include a reference to article 132 also in the opening words of article 133(3), as in the immediately preceding clause. If the respondent 's contention were accepted, not only would article 132 become redundant so far as it relates to civil proceedings, but the object of the Explanation to that article, which was designed to supersede the decision of the Federal Court in section Kuppuswami Rao vs The King (1) and thus to secure a speedy determination of constitutional issues going to the root of a case, would be defeated, as the Explanation is not made applicable to the same expression "final order" used in article 133(1). The whole scheme of the appellate jurisdiction of the Supreme Court clearly indicates that questions relating to the interpretation of the Constitution are placed in a special category irrespec tive of the nature of the proceedings in which they may arise, and a right of appeal of the widest amplitude is allowed in cases involving such questions. We accordingly overrule the preliminary objection and hold that the appeal is maintainable. (1) 149 1150 Turning now to the question as to the powers of a High Court under article 226, it will be noticed that article 225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the Constitution. Though there had been some conflict of judicial opinion on the point it was authoritatively decided by the Privy Council in the Parlakimedi case(1) that the High Court of Madras the High Courts of Bombay and Calcutta were in the same position had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and the power to issue such writs within those limits was derived by the court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other, High Courts in India had no power to issue such writs at all. In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States ' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King 's Bench in England. But wide as were the powers thus conferred, a two fold limitation was placed upon their exercise. In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued (1) 70 I.A, 129 1151 by the court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories. Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England. Such power formed no part of the original or the appellate jurisdiction of the Court of King 's Bench. As pointed out by Prof. Holdsworth (History of English Law, Vol. 1, p. 212 et seq.) these writs had their origin in the exercise of the King 's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King 's Bench habeas corpus, that the King may know whether his subjects were lawfully imprisoned or not; certiorari, that he may know whether any proceedings commenced against them are conformable to the law; mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition, to oblige the inferior tribunals in his realm to function within the limits of their respective jurisdiction. See also the introductory remarks in the judgment in the Parlakimedi case(1). These writs were thus specifically directed to the persons or authorities against whom redress was sought and were made returnable in the court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the court was asked to issue these writs should be within the limits of its territorial jurisdiction. We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its activities elsewhere exercises jurisdiction within those territorial (1) 70 I.A. 129, 140. 1152 limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as "function 'mg" within the territorial limits of the High Court and being therefore amenable to its jurisdiction under article 226. It was, however, urged by the respondent 's counsel that the High Court had jurisdiction to issue a writ to the Commission at New Delhi because the question referred to it for decision related to the respondent 's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute also resided in the State of Madras. The position, it was claimed, was analogous to the court exercising jurisdiction over persons outside the limits of its jurisdiction, provided the cause of action arose within those limits. Reliance was placed upon the following observations of the Privy Council in the Parlakimedi case(1): "The question of jurisdiction must be regarded as one of substance and that it would not have been within the competence of the Supreme Court to claim juisdiction over such a matter as the present of issuing certiorari to the Board of Revenue on the strength of its location in the town. Such a view would give jurisdiction to the Supreme Court in the matter of the settlement of rents of ryoti holdings in Ganges between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance. " We cannot accede to this argument. , The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories" in relation to which the High Court exercises jurisdiction. Nor is much assistance to be derived from the observations quoted above. That case arose out of proceedings before a special Revenue Officer for settlement of fair rent for certain holdings within the zemindary estate of Parlakimedi situated beyond the local limits of the original civil jurisdiction of the Madras High Court. Dissatisfied (1) 70 I.A. 129. 1153 with the settlement made by the Revenue Officer, the ryots appealed to the Board of Revenue which had its offices at Madras. The appeal was accepted by a single member of the Board who reduced the rent as desired by the ryots. The zemindar appealed by way of revision to the Collective Board which sanctioned an enhancement. Thereupon the ryots applied to the High Court for the issue of a writ of certiorari to bring up and quash the proceedings of the Collective Board which passed the order complained of in the town of Madras. The Privy Council considered the question of jurisdiction from two separate standpoints: "(a) independently of the local civil jurisdiction which the High Court exercises over the Presidency town; or (b)solely by reason thereof, as an incident of the location of the Board of Revenue within the town. " On question (a), they examined the powers of the Supreme Court at Madras to issue certiorari beyond the Presidency Town under clause 8 of the Charter of 1800, as it was suggested that the High Court succeeded to the jurisdiction and powers of the Supreme Court which had been granted the same powers of issuing prerogative writs as the Court of King 's Bench in England throughout the Province, and they recorded their conclusion thus: " Their Lordships are not of opinion that the Supreme Court would have had any jurisdiction to correct or control a country court of the company deciding a dispute between Indian inhabitants of Ganjam about the rent payable for land in that district. " Then, dealing with question (b) and referring to their decision in Besants case(1) that the High Courts of Calcutta, Madras and Bombay had power to issue certiorari in the exercise of their local jurisdiction, they held that the principle could not be applied "to the settlement of rent for land in Ganjam merely on the basis of the location of the Board of Revenue as a body which is ordinarily resident or located within (1) 46 I.A. I 76. 1154 the town of Madras, or on the basis that the order complained of was made within the town. if SO, it would seem to follow that the jurisdiction of the High Court would be avoided by the removal of the Board of Revenue beyond the outskirts of the town and that it would never attach but for the circumstance that an appeal is brought to, or proceedings in revision taken by, the Board of Revenue. " Then followed the passage already quoted on which the respondent 's counsel laid special stress. It will thus be seen that the decision is no authority for dispensing with the necessity of the presence or location, within the local limits of the court 's jurisdiction, of the person or authority to whom the writ is to be issued, as the basis of its power to issue it. Their Lordships considered, in the peculiar situation they were dealing with, that the mere location of the appellate authority alone in the town of Madras was not a sufficient basis for the exercise of jurisdiction whereas both the subject matter, viz., the settlement of rent for lands in Ganjam, and the Revenue Officer authorized to make the settlement at first instance were outside the local limits of the jurisdiction of the High Court. If the court in Madras were, recognised as having jurisdiction to issue the writ of certiorari to the appellate authority in Madras, it would practically be recognising the court 's jurisdiction over the Revenue Officer in Ganjam and the settlement of rents for lands there, which their Lordships held it never had. That was the "substance" of the matter they were looking at, and their observations lend no support to the view that if the subject matter or the cause of action and the parties concerned were within the territorial limits of the jurisdiction, the High Court could issue prerogative writs to persons or authorities who are not within those limits. In any case, the decision did not turn on the construction of a statutory provision similar in scope ' purpose or wording to article 226 of the Constitution, and is not of much assistance in the construction of that article. 1155 It was said that it could not have been contemplated that an inhabitant of the State of Madras, feeling aggrieved by a threatened interference with the exercise of his rights in that State by an authority located in Delhi and acting without jurisdiction, should seek his remedy under article 226 in the Punjab High Court. It is a sufficient answer to this argument of inconvenience to say that, the language of the article being reasonably plain, it is idle to speculate as to what was or was not contemplated. Our attention has been called to certain decisions of High Courts dealing with the situation where the authority claiming to exercise jurisdiction over a matter at first instance is located in one State and the appellate authority is located in another State. It is not necessary for the purposes of this appeal to decide which High Court would have jurisdiction in such circumstances to issue prerogative writs under article 226. In the view we have expressed above as to the applicability of article 226 to the present case, it is unnecessary to enter upon a discussion of the question whether article 192(1) applies only to members who, having been already elected, have become subject to a disqualification by reason of events happening after their election; but having heard the point fully argued before us, we think it right to express our opinion thereon, especially as both sides have invited us to do so in view of its general importance. The relevant provisions of the Constitution on which the determination of the question turns are as follows: 190. (3) If a member of a House of the Legislature of a State (a) becomes subject to any of the disqualifications mentioned in clause (1) of article 191 ; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant, 1156 191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds 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; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State. . when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State. As has been stated already, the respondent 's conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Assembly under article, 191 (1) (e) read with section 7 of the Representation of the People Act, 1951, 1157 passed by Parliament, the period of five years since his release on 15th August, 1947, not having elapsed before the date of the election. The respondent having thus been under a disqualification since before his nomination on 15th March, 1952, could he be said to have "become" subject to that disqualification within the meaning of article 192 ? The rival contentions of the parties centred round the true interpretation to be placed on that word in the context of the provisions quoted above. The Attorney General argued that the whole fasciculus of the provisions dealing with "disqualifications of members", viz., articles.190 to 193, should be read together, and as articles 191 and 193 clearly cover both preexisting and supervening disqualifications, articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word "become" in articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both preexisting and supervening disqualifications; but it does not necessarily follow that articles 190 (3) and 192 (1) must also be taken to cover both. Their meaning must de end on the language used which, we think, is reasonably plain. In our opinion these two articles go together and 150 1158 provide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words " becomes subject" in article 190(3) and "has become subject" in article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in article 190(3) can equally be applied to a pre existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney General admitted that if the word " is " were substituted for "becomes" or " has become ", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used. It was said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent 's construction of the constitutional provisions. On the other hand, the Attorney General 's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above. For the reasons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1) 1159 are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent 's disqualification which arose long before his election. As, however, we have held that the High Court was not competent under article 226 to issue any prerogative writ to the appellant Commission, the appeal is allowed and the writ of prohibition issued by the learned Judge is quashed. We make no order as to costs. Appeal allowed. Agent for the appellant and the Intervener: G. H. Rajadhyaksha.

The properties in suit had been sold by A to the appellants on May 31; 1956, but the respondents, as the owners of certain agricultural land in the patti claimed that they had a right of preemption under section 15 (c) (ii) and (iii) of the Punjab Preemption Act, 1913. In the suit instituted by the respondents for this purpose the appellants resisted the claim on the ground that the vendees from A had transferred by exchanges some of the items out of the lands purchased by them and that as a result of the said exchanges the appellants themselves had become entitled to preempt the said sales under the same statutory provision. The suit was, however, decreed by the trial court and the decision was confirmed by the High Court of Punjab. The appellants obtained special leave to appeal to the Supreme Court and during the pendency of 885 the appeal the Act was amended by Punjab Act 10 of 1960, by which, inter alia, (1) cls. (ii) and (iii) of section 15 (c) of the original Act were deleted, (2) cl.4 of section 15 (1)(c) provided that the right of preemption in respect of agricultural land and village immoveable property shall vest in the tenants who held under tenancy of the vendors or anyone of them the land or property sold or a part thereof, and (3) section 31 provided that no court shall pass a decree in a suit for preemption whether instituted before or after the commencement of the amending Act of 1960 which was inconsistent with the provisions of the said Act. In view of the new provisions introduced by the amending act the respondents raised a new contention that they were tenants who held under tenancy of the vendor of the lands in question and, as such, they were entitled to the right of preemption under cl.4 of s.15 (1)(c) of the Act, as amended, even if it be held that the right to claim pre emption under cls. (ii) and (iii) of s.15 (c) of the unmended Act was taken away retrospectively by the amending Act. The appellants pleaded that even assuming that cl.4 of s.15 (1)(c) was applicable, the respondents could not get a decree on the bassis of the new right of pre emption inasmuch as they had no such right on the date on which the suit was filed or when the sales were effected. Held, that (1 the provisions of s.31 of the Punjab Pre emption Act, 1913, as amended by Punjab Act 10 of 1960, are retrospective in operation and, therefore, the decree passed in favour of the respondents by the trial court and affirmed by the High Court under the unmended section could not be sustained. Ram Sarup V.Munshi [1963] 3 S.C.R. 858 followed. (2) The retrospective operation of s.31 necessarily involves effect being given to the substantive provisions of amended s.15 retrospectively, and hence the rights which the respondents now claim under the amended provisions must be deemed to have vested in them at the relevant time, with the result that they are entitled, on remand, to ask for a decree passed on the basis of the said rights,

l Appeal No. 191 of 1952. Appeal by special leave granted by the Supreme Court on the 21st May, 1951, from the Judgment and Decree dated the 13th December, 1949, of the High Court of Judicature at Madras (Rao and Somasundaram JJ.) in Appeal No. 529 of 1946 arising out of the Judgment and Decree dated the 20th February, 1946, of the Court of Subordinate Judge of Coimbatore in O.S. No. 138 of 1945. P.Somasundaram (R. Ganapathy Iyer, with him) for the appellant. B.Somayya (K. R. Chowdhury, with him) for respondent No. 1. 1953. October 14. The Judgment of the Court was deli vered by MUKHERJEA J. This appeal, which has come before us on special leave, is directed against a judgment and decree of a Division Bench of the Madras High Court dated December 13, 1949, affrming, with slight modification, those of the Subordinate Judge, Coimbatore, passed in O.S. No. 138 of 1945. The suit was commenced by the plaintiff, who is res pondent No. I in this appeal for specific allotment, on partition, of his one third share in the properties described in the plaint, on the allegation that they were the joint properties of a family consisting of himself, his father, the defendant No. 1, and his brother, the defendant No. 2, and that he was entitled in law to one third share in the same. It appears that the plaintiff and defendant No. 2, who are two brothers, are both sons of defendant No. I by his first wife who predeceased her husband. After the death of plaintiff 's mother, the defendant No. I married again and his second wife is defendant No. 3 in the suit. The allegations in the plaint, in 245 substance, are that after the step mother came into the house, the relation between the father and his sons became strained and as the father began to assert an exclusive title to the joint family property, denying any rights of his sons thereto, the present suit had to be brought. The properties in respect of which the plaintiff claims partition are described in Schedule B to the plaint. They consist of four items of agricultural land measuring a little over 5 acres in the aggregate, one residential house in the town of Erode and certain jewellery, furniture and brass utensils. In addition to these it is averred in paragraph I I of the plaint that there is a sum of about Rs. 15,000 deposited in the name of the first defendant in the Erode Urban Bank Limited; that money also belongs to the joint family and the plaintiff is entitled to his share therein. The defendant No. I in his written statement traversed all these allegations of the plaintiff and denied that there was any joint family property to which the plaintiff could lay a claim. His case was that items I and 2 of Schedule B lands as well as the house property were the self acquired properties of his father and he got them under a will executed by the latter as early as in the year 1912. The other items of immovable property as well as the cash, furniture and utensils were his own acquisitions in which the sons had no interest whatsoever. As regards the jewels mentioned in the plaint, it was said that only a few of them existed and they belonged exclusively to his wife the defendant No. 3. The defendant No. 2, who is the brother of the plaintiff, supported the plaintiff 's case in its entirety. The defendant No. 3 in her written statement asserted that she was not a necessary party to the suit and that whatever jewellery there were belonged exclusively to her. After hearing the case the trial judge came to the con clusion that properties bequeathed to defendant No. I by his father should be held to be ancestral properties in his hands and as the other properties were acquired by defendant No. 246 1 out of the income of the ancestral estate, they also became impressed with the character of joint property. The result was that the Subordinate Judge made a preliminary decree in favour of the plaintiff and allowed his claim as laid in the plaint with the exception of certain articles of jewellery which were held to be non existent. Against this decision, the defedant No. I took an appeal to the High Court of Madras. The High Court dismissed the appeal with this variation that the jewels such of them as existed were held to belong to defendant No. 3 alone and the plaintiff 's claim for partition of furniture and brass utensils was dismissed. The High Court rejected the defendant No. 1 's application for leave to appeal to this court but he succeeded in getting special leave under article 136 of the Constitution. The substantial point that requires consideration in the appeal is whether the properties that the defendant No. I got under the will of his father are to be regarded as ancestral or self acquired properties in his hands. If the properties were ancestral, the sons would, become co owners with their father in regard to them and as it is conceded that the other items of immovable property were mere accretions to this original nucleus, the plaintiff 's claim Must Succeed. If, on the other hand, the bequeathed properties could rank as self acquired properties in the hands of defendaant No. 1, the plaintiff 's case must fail. The law on this point, as the courts below have pointed out, is not quite uniform and there have been conflicting opinions expressed upon it by different High Courts which require to be examined carefully. For a proper determination of the question, it would be convenient first of all to refer to the law laid down in Mitakshara in regard to the father 's right of disposition over his self acquired property and the interest which his sons or grandsons take in the same. Placitum 27, chapter 1, section I of Mitakshara lays down: "It is settled point that property in the paternal or ancestral estate is by birth, though the father has independent 247 power in the disposal of effects other than the immovables for indispensable acts of duty and for purposes prescribed by texts of law as gift through affection, support of the family, relief from distress and so forth; but he is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessors since it is ordained, 'though immovables or bipeds have been acquired by man himself, a gift or sale of them should not be made without convening all the sons '. " Mitakshara insists on the religous duty of a man not to leave his family without means of support and concludes the text by saying: "They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made." Quite at variance with the precept which seems to restrict the father 's right of disposition over his self acquired property in an unqualified manner and in the same way as ancestral lands, there occur other texts in the commentary which practically deny any right of interference by the sons with the father 's power of alienation over his self acquired property. Chapter 1, section 5, placitum 9 says: "The grandson has a ri ght of prohibition if his un separated father is making a donation or sale of effects in herited from the grandfather: but he has no right of inter ference if the effects were acquired by the father. On the contrary he must acquisce, because he is dependent. " The reason for this distinction is explained by the au thor in the text that follows: "Consequently the difference is this: although he has a right by birth in his father 's and in his grandfather 's property; still since he is dependent on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father 's disposal of his own acquired property." 248 Clearly the latter passages are in flat contradiction with the previous ones and in an early Calcutta case(1) a reconciliation was attempted at by taking the view that the right of the sons in the self acquired property of their father was an imperfect right incapable of being enforced at law. The question came pointedly for consideration before the Judicial Committee in the case of Rao Balwant vs Rani Kishori(2) and Lord Hobhousel who delivered the judgment of the Board, observed in course of his judgment that in the text books and commentaries on Hindu Law, religious and moral considerations are often mingled with rules of positive law. It was held that the passages in Chapter 1, section 1, verse 27 of Mitakshara contained only moral or religious precepts while those in section 5, verses 9 and 10 embodied rules of positive law. The latter consequently would override the former. It was held, therefore, that the father of t joint Hindu family governed by Mitakshara law has full and uncontrolled powers of disposition over his self acquired immovable property and his male issue could not interfere with these rights in any way. This statement of the law has never been challenged since then and, it has been held by the various High Courts in India, and in our opinion rightly, that a Mitakshara father is not only competent to sell his self acquired immovable property to a stranger without the concurrence of his sons(2), but he can make a gift of such property to one of his own sons to the detriment of another(3); and he can make even an unequal distribution amongst his heirs(4). So far the law seems to be fairly settled and there is no room for controversy. The controversy arises, however, on the question as to what kind of interest a son would take in the self acquired property of his father which he receives by way of gift or testamentary bequest from him, vis a vis his own male issue. Does it remain self acquired property in his (1) Vide Muddun, vs Ram, (2) 25 I.A. 54. (3) Vide Sital vs Madho T.L.R. I All. 394. (4) Vide Bawa vs Rejeah, 249 hands also untrammelled by the rights of his sons and grandsons or does it become ancestral property in his hands, though not obtained by descent, in which his male issue be come co owners with him? This question has been answered in different ways by the different High Courts in India which has resulted in a considerable diversity of judicial opinion. It was held by the Calcutta High Court(1) as early as in the year 1863 that such property becomes ancestral property in the hands of his son as if he bad inherited it from his father. In the other High Courts the questions Ion is treated as one of construction to be decided in each case with reference to its facts as to whether the gifted property was intended to pass to the sons an ancestral or self acquired, property; but here again there is a sharp cleavage of judicial opinion. The Madras High Court has held(2) that it is undoubtedly open to the father to determine whether the property which be has bequeathed shall be ancestral or self acquired but unless he expresses his intention that it shall be self acquired, it should be held to be ancestral. The Madras view has been accepted by a Full Bench of the Patna High Court(3) and the latest decision of the Calcutta High Court on this point seems to be rather leaning towards it(4). On the other hand, the Bombay view is to hold such gifted property as self acquisi tion of the donee unless there is clear expression of intention on the part of the donor to make it ancestral(5), and this view has been accepted by the Allahabad and the Lahore High Courts(6). This conflict of judicial opinion was brought to the notice of the Privy Council in Lal Ram Singh vs Deputy Commissioner of Partabgarh(7), but the Judicial Committee left the question open as it was not necessary to decide it in that case. (1) Vide Muddan vs Ram (2) Vide Nagalingham vs Ram Chandra, I. (3) Vida Bhagwat vs Mst. Kaporni, I.L.R. 23 Pat. (4) Vida Lala Mukti Prasad vs Srimati lswari. 24 C.W.N. 938. (8) Vide Jugmohan Das vs Sir Mangal Das. (6) Vide Parsotam vs Janki Bai, I.L.R. 29 All 354; Amararanth vs Guran, A.I.R. 1918 La],. (7) 64 T. A. 265. 250 In view of the settled law that a Mitakshara father has absolute right of disposition over his self acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co ordinate interest. This extreme view, which is supposed to be laid down in the Calcutta case(1) referred to above, is sought to be supported on a two fold ground. The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of Yagnavalkya. The other ground put forward is that the definition of "self acquisition" as given by Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee and his sons. So far as the first ground is concerned, the foundation of the doctrine of equal ownership of father and son in an cestral property is the well known text of Yagnavalkya(2) which says: "The ownership of father and son is co equal in the acquisitions of the grandfather, whether land, corody or chattel. " It is to be noted that Vijnaneswar invokes this passage in Chapter 1, section 5 of his work, where he deals with the division of grandfather 's wealth amongst his grandsons. The father 's gradsons, it is said, have a right by birth in the grand estate equally with the sons and consequently are entitled to shares on partition, though their shares would be determined per stirpes and not per capita. This discussion has absolutely no bearing on the present question. It is undoubtedly true that according to Mitakshara, the son has a right, by birth both in his father 's and grandfather 's estate but as has been jointed out before. a distinction is made in this respect by Maitakshara itself. In the ancestral or grandfather 's property (1) Vide Muddun vs Ram, 6 NY. R. 71. (2) Vide Yagnavalkya. Book 2. 129. 251 in the hands of the father, the son has equal rights with his father; while in the self acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominent interest in the same(1). It is obvious, however, that the son can assert this equal right with the father only when the grandfather 's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it by partition, made by the Grandfather himself during his lifetime. On both these occasions the grand father 's property comes to the father by virtue of the latter 's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. But when the father obtains the grandfather 's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion. We think has arisen by not keeping this distinction in mind. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. The Mitakshara, we think, is fairly clear on this point. It has placed the father 's gifts under a separate category altogether and in more places than one has declared them exempt from partition. Thus in Chapter 1. section 1, placitum 19 Mitakshara refers to a text of Narada which says: (1) Vide Mayne 's Hindu Law 11th edition, page 336. 252 "Excepting what is gained by valour, the wealth of a wife and what is acquired by science which are three sorts of property exempt from partition , and any favour conferred by a father. " Chapter 1, section 4 of Mitakshara deals with effects not liable to partition and property "obtained through the father 's favour" finds a place in the list of things of which no partition can be directed(1). This is emphasised in section 6 of chapter I which discusses the rights of posthumous sons or sons born after partition. In placitum 13 'of the section it is stated that though a son born after partition takes the whole of his father 's and mother 's property, yet if the father and mother has affectionately bestowed some property upon a separated son that must remain with him. A text of Yagnavalkya is then quoted that "the effects which have been given by the father and by the mother belong to him on whom they are bestowed"(2). It may be noted that the expression "obtained through favour of the father" (pitr prasada labdha) which occurs in placitum 28, section 4 of Mitakshara is very significant. A Mitakshara father can make a partition of both the ancestral and self acquired property in his hands any time he likes even without the concurrence of his sons , but if he chooses to make a partition. he has got to make it in accordance with +the directions laid down in the law. Even the extent of inequality, which is permissible as between the eldest and the Younger sons, is indicated in the text(3). Nothing depends upon his own favour or discretion. When, however, he makes a gift which is only an act of bounty, he is unfetterd in the exercise of his discretion by any rule or dictate of law. It is in these gifts obtained through the favour of the father that Vijnaneswar, following the earlier sages, declares the exclusive right of the sons. We hold, therefore, that there is no warrant for saying that according to the Mitakshara, an (1) Vider C. Placitum 28 of Mitakshara. (2) Vide Yagnavalkya 2, 124. (3) Vide Mitakshara chapter 1, section 2. 253 affectionate gift by the father to the son constitutes ipso facto ancestral property in the hands of the donee. If this is the correct view to take, as we think it is, it ' would furnish a complete answer to the other contention indicated above that such gifted property must be held partible between the father and the sons as it does not come within the definition "self acquisition", as given by Mitak shara. In chapter 1, section 4 of his work, Vijnaneswar enumerates and deals with properties which are not liable to partition. The first placitum of the section defines what a "self acquisition" is. The definition is based upon the text of Yagnavalkya that "whatever is acquired by the coparcener himself without detriment to the father 's estate as present from a friend or a gift at nuptials, does not appertain to the co heirs. " What is argued is this, that as the father 's gift cannot be said to have been acquired by the son without detriment to the father 's estate, it cannot be regarded as selfacquisition of the son within the meaning of the definition given above and consequently cannot be exempted from partition. This argument seems to us to be untenable. Section 4 of the first chapter in Mitakshara enumerates various items of property which, according to the author, are exempt from partition and self acquisition is only one of them. Father 's gifts constitute another item in the exemption list which is specifically mentioned in placitum 28 of the section. We agree with the view expressed in the latest edition of Mayne 's Hindu Law that the father 's gift being itself an exception, the provision in placitum 28 cannot be read, as requiring that the gift must also be without detriment to the father 's estate, for it would be a palpable contradition to say that there could be any gift by a father out of the estate without any detriment to the estate(1). There is no contradition really between, placitum I and placitum 28 of the section. Both are separate and independent items of exempted properties, of which no partition can be made. (1) Mayane 's Hindu Law, 11th edition,paragraph 280,page 344 254 Another argument is stressed in this connection which seems to have found favour with the learned Judges of the Patna High Court who decided the Full Bench case(1) referred to above. It is said that the exception in regard to father 's gift as laid down in placitum 28 has reference only to partition between the donee and his brothers but so far as the male issue of the donee is concerned, it still remains partible. This argument, in our opinion, is not sound. If the provision relating to self acquisition is applicable to all partitions, whether between collaterals or between the father and his sons, there is no conceivable reason why placitum 28, which occurs in the same chapter and deals with the identical topic should not be made applicable to all cases of partition and should be confined to collaterals alone. The reason for making this distinction is undoubtedly the theory of equal ownership between the father and the son ancestral property which we have discussed already and which in our opinion is not applicable to the father 's gifts at all. Our conclusion, therefore, is that a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor. As the law is accepted and well settled that a Mitak shara father has complete powers of disposition over his selfacquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken (1) Vide Bhagwant vs Mst, Kaporni, I.L.R. 23 Pat. 255 along with the surrounding circumstances in accordance with the wellknown canons of construction. Stress would certainly( have to be laid on the substance of the disposition and not on its mere form. The material question which the court( would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other. It is in the light of these principles that we would pro ceed now to examine the facts of this case. The will of his father under which defendant No. I got the two items of Schedule B properties is exhibit P 1 and is dated the 6th of June. The will is a simple document. It recites that the testator is aged 65 and his properties are all his own which he acquired from no nucleus of ancestral fund. He had three sons, the eldest of whom was defendant No. 1. In substance what the will provides is that after his death, the A Schedule properties would go to his eldest son, the B Schedule properties to his second son and the properties described in Schedule C shall be taken by the youngest. The sons are to enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift, exchange, sale, etc. from son to grandson hereditarily. The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also. They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons. as indicated in the will. The D Schedule property 256 was set apart for the marriage expenses of his third son and an unmarried daughter. Authority was given to his wife to sell this property to defray the marriage expenses with its sale proceeds. It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst his heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers ' wives would not then come into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son and daughter. The testator certainly wanted to make a distribution of his properties in it way different from what would take place in case of intestacy. But what is really material for our present purpose is his intention regarding the kind of interest which his sons were to take in the properties devised to them. Here the will is perfectly explicit and it expressly vests the sons with absolute rights with full powers of alienation by way of sale, gift and exchange. There is no indication in the will that the properties bequeathed were to be held by the sons for their families or mate issues and although the will mentions various other relations, no reference is made to sons ' sons at all. This indicates that the testator desired that his sons should have full ownership in the properties bequeathed to them and he was content to leave entirely to his sons the care of their own families and children. That the testator did not want to confer upon the sons the same rights as they could have on intestacy is further made clear by the two subsequent revocation instruments executed by the testator. By the document Exhibit P 2 dated, the Z6th 257 of March, 1914, he revoked that portion of his will which gave the Schedule C property to his youngest son. As this son had fallen into bad company and was disobedient to his father,. he revoked the bequest in his favour and gave the same properties to his other two sons with a direction that they would pay out of it certain maintenance allowance to their youngest brother, or to his family if he got married. There was a second revocation instrument, namely, Exhibit P 3, executed on 14th April, 1914, by which the earlier revo cation was cancelled and the properties intended to be given to the youngest son were taken away from the two brothers and given to his son in law and the legatee was directed to hand them over to the third son whenever he would feel con fident that the latter had reformed himself properly. In our opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons as ancestral property. The result is that the appeal is allowed, the judgments and decrees of both the courts below are set aside and the plaintiff 's suit is dismissed. Having regard to the fact that the question involved in this case is one of considerable importance upon which there was considerable difference of judicial opinion that the plaintiff himself is a pauper, we direct that each party shall bear his own costs in all the courts. Appeal allowed. Agent for the respondent No. 1: M.S.K. Aiyangar.

Property gifted by a father to his son could not become ancestral property in the hands of the son simply by reason of the fact that he got it from his father. The father is quite competent when he makes a gift, to provide expressly either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family and if there are express provisions to that effect in the deed of gift or will, the interest which the son would take in such property would depend on the terms of the grant. If there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the established canons of construction. The material question in such cases would be whether the grantor really wanted to make a gift of the properties to his son or the apparent gift was only an integral part of a scheme to partition the same. There is no presumption that he intended either the one or the other, as it is open to the father to make a gift or partition his properties as he himself chooses. Muddun vs Ram , Nagalingam vs Ramachandra (I.L.R. , Bhagwat vs Mst. Kaporni (I.L.R. 23 Pat? 599), Jugmohan Das vs Mangal Das (I.L.R. , Parsottam vs Jankibai (I.L.R 29 All. 354), Amarnath vs Guran (A.I.R. Lal Ram Singh vs Deputy Commissioner, Partabgarh (64 I.A. 265) referred to. Where a testator who had 3 sons, after giving certain properties to his wife and other relations, provided that the properties in Schedules A,B and C of the will which were his self acquired properties shall be taken by his eldest, second and third son respectively, and that the sons shall enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift, exchange, sale etc. from son to grandson hereditarily: LB(D)2SCT 2(a) 244 Held, that as the will expressly vested the sons with abso lute rights with full powers of alienation, the property be queathed to them was not ancestral property in their hands vis a vis their own male issue.

Civil Appeal Nos. 1793 1798 (NT) of 1974. From the Judgment and order dated 5th April 1974 of the Orissa High Court in S.J.C. Nos. 211 to 216 of 1971. S.C. Manchanda, Ms. A. Subhashini, K.C. Dua and K.P. Bhatnagar for the Appellant. Devi Pal, J.B. Dadachanji, K.K. Patnaik, Sukummaran, M. Seal, A.K. Verma, J. Peres and D.N. Mishra for the Respondent. P.N. Gupta and P.N. Mishra for official Liquidator. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Whether, question of law referable to the High Court, arises out of the order of the Appellate Income tax Tribunal in this case, is, the question that arises in these appeals by special leave from the decision of the Orissa High Court. Several questions of law were sought for from the Tribunal to be referred out of the decision of the Tribunal under section 256(1) of Income tax Act, 1961 (hereinafter called the 'Act '). The Tribunal re fused to refer these questions. An application was made under section 256(2) of the Act asking for reference on those questions from the High Court. The High Court rejected the applications and refused to call for a statement of case on those questions. This appeal by special leave is from the said decision of the High Court. It is not necessary to refer to all the questions that were pressed before the High Court because all these questions were not pressed before this Court. The following questions were, however, canvassed before this Court: "1. Whether, the findings of the Appellate Tribunal, are 31 vitiated in law by reason of it having ignored relevant and admissible evidence and having relied on incorrect facts and mis statement of facts? 2. Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that the Kalinga Foundation Trust came into existence in 1947 and that it was distinct from the Trust created by the assessee in 1949 logically followed from the materials on record or it was perverse in the sense that no reasonable man could come to it on the said materials? 3. Whether, on the facts and in the circumstances of the case, in arriving at the finding that the Kalinga Foundation Trust had acquired property from donations from the public, the Tribunal erred in law in not giving due consideration to the several matters relevant for determination of the points which had been considered by the Income tax officer in the assessment order? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the income from dividend shown in the name of the Kalinga Foundation Trust, the interest on the loans advanced in the name of the Kalinga Foundation Trust and all investments, remittance, receipts and actual payments in the name of Kalinga Foundation Trust did not belong to the assessee and should therefore be deleted from the assessment of the assessee? 5. Whether, on the facts and in the circumstances of the case, there was any evidence in support of the Tribunal 's findings that the assessee had collected donation from the public for the Kalinga Foundation Trust? 6. If the answer to question 5 (rearranged by us) be in the negative, then whether the Tribunal was right in holding that the amounts donated by the assessee to the said Trust were satisfactorily explained and accordingly they were not to be included in the assessment of the assessee? 7. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the revenue authorities were bound to accept the decision of the 32 Supreme Court in S.P. Jain vs Kalinga Tubes Ltd. as to the ownership of 39,000 shares of Kalinga Tubes, Ltd. in spite of the materials collected by the Income tax Officer subsequent to the delivery of the judgment in the said case? 8. If the answer to question 7 (rearranged by us) be in the negative then whether the finding of the Tribunal that the persons in whose names the said shares stood were not the benamidar of the assessee was perverse and was arrived at without due consideration of the material considered by the Income tax Officer in detail on the point?" The controversy in these appeals related to the various additions made by the revenue to the total income of the assessee relating to the assessment years 1962 63, 1963 64 and 1964 65. The assessee claimed in his assessment, deduction in respect of payments of interest on loans taken from Kalinga Foundation Trust and others and certain dividend transactions relating to the shares of Kalinga Tubes Ltd. While examining the evidence in support of these claims, the Income tax Officer issued a detailed letter dated 17th October 1965 to the assessee informing him about the evidence available with the revenue against him and requesting him, inter alia, to produce evidence and prove (i) that the cash credits appearing in his account in the name of Kalinga Foundation Trust were genuine and (ii) that 39,000 shares of Kalinga Tubes Ltd. standing in the names of B.K. Mall, Sm. Swaran Oberoi, Shri K.C. Dalai, Shri G.C. Patnaik, etc. were not really his own investment. After examining the assessee 's evidence and on the basis of documentary evidence and government records and on the basis of local enquiries made, the Income tax Officer had come to the conclusion that no trust in the name of Kalinga Foundation Trust really existed and even if it existed, it had no funds of its own and that the name 'Kalinga Foundations Trust ' was used by the assessee as a camouflage to put through his unaccounted money. Accordingly, all cash credits appearing in the books of accounts of the assessee himself or in the books of other concerns or persons or remittances of actual payments in the name of trust were treated by the Income tax Officer as moneys coming out of the undisclosed sources of the assessee and accordingly assessed the same as his income from undiscolsed sources. All interest and dividend received in the name of the trust were included by the Income tax Officer in the assessment of the assessee as 33 his own income. The Income tax Officer was also of the opinion that the moneys advanced in the name of the trust to several persons in connection with the acquisition of 39,000 shares of Kalinga Tubes Ltd. which were issued in 1958, actually belonged to the assessee. Accordingly, the dividend of the said shares was treated as the income of the assessee and the expenses incurred in that connection were allowed as deduction. The persons in whose names the 39,000 shares of Kalinga Tubes Ltd. stood, were treated by the Income tax Officer as benamindars of the assessee. Thus, in respect of the assessment years under consideration several items were included as income in the hands of the assessee on this score. It is not necessary to set out the items. Against the orders of assessment, appeals were filed by the assessee before the Appellate Assistant Commissioner. As grievance was made before the Appellate Assistant Commisioner that there was violation of due opportunity being given to the assessee, the Appellate Assistant Commissioner disposed of the appeals by setting aside the assessments for the years under consideration and remanded the matters back, to Income tax Officer to frame issues and give due opportunity to the assessee to cross examine the witnesses in the light of the observations made in the order. Against the order of the Appellate Assistant Commissioner, the appeals were filed. A prayer was made that the appeals should be remanded back to the Appellate Assistant Commissioner. The Tribunal, however, disposed of the appeals on the relevant materials on record. It was contended on behalf of the revenue before the Tribunal that the Kalinga Foundation Trust had come into existence as alleged in 1947 at a public meeting held at Killa Maidan, Cuttack and it was registered long thereafter on 28 November 1959. It was stated that the trust was genuine and it had sufficient funds obtained by donations and consequently was in a position to lend the amounts found credited in the assessee 's books and in the books of other concerns. The accounting year followed by the said trust was the calendar year whereas the accounting year followed by the assessee was the financial year ending on 31st March 1962, 31st March 1963 and 31st March 1964, respectively for the three years in question. One of the points urged on behalf of the assessee was that if it was intended to use the trust as a camouflage, the accounting year of the Trust would have been the same as that of the assessee. It was further contended that the Minute Book and books of accounts were maintained by the Trust and that the Trust had its own written constitution by way of Memorandum and 34 Articles of Association and Rules. The funds of the Trust were lying in trust with the Maharaja of Sonepur as he was the honorary Treasurer of the Trust. It was further pointed out on behalf of the assessee that the eminent persons were members of the Trust. On behalf of the revenue, it was, however, contended before the Tribunal that on the basis of the facts emerging on an examination of assessee 's evidence and facts found on the basis of documentary evidence, the Appellate Assistant Commissioner should have confirmed the assessments. It was further stated by the revenue that local inquiries and oral testimony had been used by the Income tax Officer to support the conclusions already arrived at on an examination of assessee 's own evidence and corroborated by documentary evidence and therefore the Appellate Assistant Commissioner should not have set aside the assessment on the ground that the persons who were examined by the Income tax Officer should have been allowed to be cross examined by the assessee. It was submitted that the gist of the enquiries had been communicated to the assessee to enable him to meet the case against him and it was for the assessee to produce before the Income tax Officer the persons who had collected the funds for the Kalinga Foundation Trust as the Income tax Officer was not bound by the technical rules of evidence. So far as the acquisition of 39,000 shares of Kalinga Tubes Ltd. was concerned, it was submitted by the revenue that it had collected evidence to prove that these shares were purchased by the assessee benami in the names of Shri B.K. Mall, Shri G.C. Patnaik, etc. It was pointed out by the revenue that the assessee had created a private registered Trust in 1949 out of his own properties having the same name as Kalinga Foundation Trust and that a reference to Kalinga Foundation Trust in some of the documents produced by the assessee was to this private trust and not to any public trust of the same name alleged to have been created at a public function. After considering the materials, the Tribunal held that the Kalinga Foundation Trust came into existence in 1947 and continued after its registration in 1959 under the same name and style and the fund of the Trust was built up by collection of donation from the public at large. It may be pointed out and we are of the opinion that this is the core of the controversy in this case, i.e., whether there was no evi 35 dence substantial or reliable produced to indicate who were the persons who had contributed to the Trust, how much they had contributed to the Trust, the identity and the credit worthiness of the doners to the said trust. It was contended on behalf of the assessee that the said trust which came into existence was a separate and distinct entity and the assessee was only holding an executive post in that trust. It was held by the Tribunal that seven persons who were designed by the Income tax Officer as benamidars of the assessee for the purchase of the shares of M/s Kalinga Tubes Ltd. were not benamidars and the money required for the purchase of these shares had been raised by themselves. The Tribunal held that the investments made by the Trust in the assessee 's group of industries or with the assessee were from its own resources and funds and such investments were guided by business expediency and prudence. The finding of the Tribunal is that the Trust was comprised of persons of public repute and the control and management of the trust styled as 'Kalinga Foundation Trust ' were under the effective control of the Board of Trustees comprised of persons of public reputation. The Tribunal accordingly held that the income from interest, dividend, or any other usufruct arising out of the investments made by the trust in the various concerns and the investments of the Trust which were included in the assessments of the assessee in the years under reference should be excluded as appertaining to a separate and distinct entity and therefore directed the Income tax Officer to exclude these amounts from the assessments of the assessee in all these three years. The revenue did not accept the findings of the Tribunal as correct as mentioned hereinbefore and sought reference to the High Court on several questions. Before the questions involved in these appeals are considered, it is necessary to bear in mind the scope of the jurisdiction of the High Court in directing reference on question of law where the decision rests primarily on appreciation of facts. This question has from time to time troubled the courts both the High Courts and this Court and several decisions have laid down the principles guiding such a situation. Though not exhaustive, these may be referred to as illustrations. In Sree Meenakshi Mills Limited vs Commissioner of Income Tax Madras, , Venkatarama Ayyar, J. speaking for this Court said that findings on question of pure facts arrived at by the tribunal were not to be disturbed by the High Court on a reference unless it 36 appeared that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they had come; and this was so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal. The Court laid down the following propositions: (a) such a finding can be reviewed only on the ground that there was no evidence to support it or that it was perverse. (b) When a conclusion had been reached on an appreciation of a number of facts established by the evidence, whether that was sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole. (c) Where an ultimate finding on an issue was an inference to be drawn from the facts, on the application of any principles of law, that would be a mixed question of law and fact, and the inference from the facts found would in such a case, be a question of law. But where the final determination of the issue equally with the finding or ascertainment of the basic facts does not involve the application of any principle of law, an inference from the facts cannot be regarded as one of law. The proposition that an inference from facts was one of law was therefore correct in its application to mixed questions of law and fact, but no to pure question of fact. In the case of pure questions of fact an inference from the facts is as much a question of fact as the appreciation of the facts. Ayyar, J. noted that the observations contained in some judgments of the English Courts that what inference was to be drawn from the proved facts was question of law referred to this distinction. The position that emerges from the decided cases was that: (i) When the point for determination was a pure question of law, such as construction of a statute or document of title, the decision of the Tribunal was open to reference to the Court. (ii) When the point for determination was a mixed question of law and fact, while the finding of the Tribunal on the facts found was final, its decision as to the legal effect of those findings was a question of law which could be reviewed by the Court. (iii) A finding on a question of fact was open to attack under reference under the relevant Act as erroneous in law when there was no evidence to support it or if it was perverse. (iv) When the finding was one of fact, the fact that it is itself an 37 inference from other basic facts will not alter its character as one of fect. In Gouri Prasad Bagaria and Others vs Commissioner of Income Tax, West Bengal, , this Court held that when the assessee 's statement was believed in a particular case and the finding of the Tribunal was based on that, then there was obviously material on which the finding of the Tribunal could be based; and to seek for other material was tantamount to saying that a statement made by an assessee was not material on which a finding could be given. The Tribunal having believed the assessee 's statement, that was an end of the matter in so far as that fact was concerned, and if the finding was based upon a statement which was good material on which it could be based, no question of law really arose. In I.C.I. (India) Private Ltd. vs Commissioner of Income tax, West Bengal III, , this Court observed that the jurisdiction in the matter of reference could be exercised: (i) when the point for determination was a pure question of law such as construction of a statute of document of title; (ii) when the point for determination was a mixed question of law and fact. While, however, the finding on facts was final, its decision as to the legal effect of those findings was a question of law. A finding on a question of fact was open to attack as erroneous in law when there was no evidence to support it or if it was perverse. When, however, the finding was one of fact, the fact that it was an inference from other basic facts would not alter its character as one of fact. In Commissioner of Income tax (Central), Calcutta vs Daulat Ram Rawatmull, , this Court held that the onus of proving that the apparent was not the real was on the party who claimed it to be so. It is not necessary to discuss other details of the facts involved in that case. It is sufficient to note, however, as was observed by this Court that there should be some direct nexus between the conclusion of facts arrived at by the authority concerned and the primary facts upon which that conclusion was based. The use of extraneous and irelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material had influenced the authority in arriving at the conclusion of fact. Findings on questions of pure fact arrived at by the Tribunal were not to be disturbed by the High Court on a reference unless it appears that there was no evidence before the 38 Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this was so even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal. In other words, such a finding could be reviewed only on the ground that there was no evidence to support it or that it was perverse. Further, when a conclusion had been reached on an appreciation of a number of facts, whether that was sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole. When a court of fact acted on a material partly relevant and partly irrelevant, it was impossible, this Court observed, to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arose. Likewise, if the court of fact based its decision partly on conjecture, surmises and suspicions and partly on evidence, in such a situation an issue of law arose. In Commissioner of Income tax, Bihar and Orissa vs S.P. Jain, , this Court noted that the questions referred to the High Court did not challenge the validity of the findings in that case given by the Tribunal, as the Tribunal had failed to take into account the relevant material on record in arriving at its finding and had further acted on inadmissible evidence and misread the evidence and based its conclusion on conjectures and surmises, the court could ignore the findings of the Tribunal and re examine the issues arising for decision on the basis of the material on record. This Court further reiterated that the High Court and this Court had always the jurisdiction to interfere with the findings of the Appellate Tribunal if it appeared that either the Tribunal had mis understood the statutory language, because the proper construction of the statutory language was a matter of law, or it had arrived at a finding based on no evidence, or where the finding was inconsistent with the evidence or contradictory of it, or it had acted on material partly relevant and partly irrelevant or where the Tribunal drew upon its own imagination and imported facts and circumstances not apparent from the record or based its conclusions on mere conjectures or surmises or where no person judicially acting and properly instructed as to the relevant law could have come to the determination reached. In all such cases the findings arrived at were vitiated. This Court further observed that "Any crystallization of the view of this Court and its reluctance to interfere with the findings of the fact should not make the Tribunals or the Income tax authorities smug in the 39 belief that as the courts do not interfere with the findings which form the bed rock upon which the law will be based they can act on that assumption in findings facts or by their mere ipse dixit that they are findings of fact wish it to be so assumed irrespective of whether they are sustainable in law or on the materials on record". Now in the instant case, as mentioned hereinbefore, the first three questions challenge the genuineness of the donations alleged to have been contributed by the Kalinga Foundation Trust alleged to have come into existence as separate organisation at a public meeting in 1947 and the donations collected therefrom and the next question, i.e., question No. 4 challenges the finding that the dividend shown in the name of Kalinga Foundation Trust and the interest and loans in the name of Kalinga Foundation Trust did not belong to the assessee. The basic question is a next question whether the assessee had collected donations from the public. If the answer to that question is that it was from the public, the second aspect is whether the revenue is bound to accept the decision of this Court in S.P. Jain as to ownership of 39,000 shares, in view of the materials collected by the Income tax Officer subsequent to the delivery of the judgment in this case. Apparently the identity of the doners to the Trust has not been established and a large amount of materials have been collected subsequent to the decisions of this case in S.P. Jain 's case which had been adverted to be the Income Tax Officer and to which our attention was drawn. These did not appear to have received consideration by the Tribunal. We were taken through the evidence on record exhaustively about the foundation of the Trust. We were taken through the evidence as to who were present at the time of the inauguration of the Trust and whose evidence were there, there was a public meeting and whether this Trust was separate from the other Trust or not, whether particular persons were present or not; they are all set out in the orders of the Tribunal as well as the Income tax Officer. It is not necessary at this stage for the purpose of disposing of these appeals to exhaustively discuss this. The revenue has pointed out to the Tribunal as appears in para 22 at page 159 of the Tribunal 's order that there was omission of adjustment of entries. The Tribunal has held that the Income tax Officer and completely ignored the fact that the assessee has not 40 made this contribution plus Rs.1,29,331 which was one point at issue, out of his own funds but had deposited only the amount which he had collected from various persons and hence the question of showing this amount in the books of the assessee did not arise. This is however begging the question; was there any material that the collectors had collected these amounts from various persons, if so, who were those persons and if so, whether they were capable of making these contributions? This, in our opinion, is the core question. The significant fact has to be borne in mind that the Trust kept the money with the Maharaja of Sonepur without earning any interest. Apart from any question whether there was any scope of any application of section 20 of the Trust Act or not, such a conduct was highly improbable according to the revenue. The explanation of the assessee about the nature and source of various cash credits was that these were loans from Kalinga Foundation Trust. It was claimed that there was a society of the name of Kalinga Foundation Trust. This society, it was maintained, had received large amounts as donations but for over a decade, these donations were lying in cash and were not invested anywhere. These were not even deposited in any bank. It was explained that it was only from 1958 that the society had started investing its funds with Shri Patnaik and the concerns with which he was associated. This, it was urged by the revenue, was prima facie unacceptable for inter alia, the following reasons: (1) Funds exceeding a crore of rupees were claimed invariably to have been received in cash. (2) These were also claimed to have remained uninvested and the cash was said to have been lying idle all these years. (3) There was no tangible evidence of the existence of any part of these funds prior to 1958. (4) Although the Society is claimed to have been in existence from 1947, it did not apply for exemption under the Income tax Act. (5) Although the funds were said to have been collected all over Orissa yet there was no evidence of the money being brought from different places from Orissa to Cuttack. (6) There was no evidence of any receipt issued to the alleged donors. No lists of donors were maintained or supplied. 41 These important factors were pointed out to the assessee and no explanation was offered by the assessee. The assessee had sought to give an appearance of truth to the explanation offered and relied on certain letters. But there appears to be no evidence as to who were the persons from whom the money was collected, how was the money received and how was the money invested? This is conjunction with other factors, in our opinion, raises a question whether the Tribunal had acted without material evidence. It is not necessary nor it is proper at this stage for this Court to express any opinion whether on these facts what conclusion should properly be drawn but the basic question, in our opinion, on the first aspect of the matter as to whether the donations alleged were given by the assessee were the moneys raised by the Trust as donations from various people or not remains. That question, in our opinion, should be considered in its proper perspective but does not seem to have been done. This is the most material portion and in not appreciating the material portion and discussing the evidence in respect of the same, in our opinion, there was non consideration of a relevant factor on a factual aspect and on this the question is whether the Tribunal 's decision was perverse in the sense that no man instructed properly at law could have acted as the Tribunal did, and secondly whether there was ignoring of all the materials and relevant facts in considering this aspect, do arise. So far as the first aspect of the question is concerned, it is true that names of some collectors of money were given and some particulars were given but the persons from whom donations were collected, their particulars were not supplied nor examined nor were they produced to prove the genuineness of their donations, their capacity to make the donations. So the question remains whose money was donated by whom? There was evidence on record as to who has collected it to a certain extent, but no evidence on the other aspect. In our opinion, ignoring of that fact is a vital fact which influences the decision and a conclusion and must be judged in its proper perspective. Therefore, the questions which arise on this aspect are questions of law, on the principles enunciated by this Court in the decisions noted hereinbefore. The second aspect is about 39,000 shares of Kalinga Tubes Ltd. whether these belong to the assessee. The Revenue 's contention was that Kalinga Tubes Ltd. was controlled by Shri B. Patnaik and 42 Shri Loganathan and in 1954, the company was in need of capital and those two persons came to be introduced to Shri S.P. Jain. Early in 1956, the three groups considered the desirability of extending the business. This was converted into a public limited company. In 1956 when the company was still a private limited company, a request was made to the Controller of Capital Issues for raising the capital of the company and at a meeting held on 29th March 1958, resolution was moved and the move of Jain group was defeated. To appreciate this contention, the assessee asserted that Messrs. Kalinga Tubes Ltd. needed funds for capital expansion. The company was converted into a public limited company and Articles of Association were suitably amended. The company also made an application to the Controller of Capital Issues for the sanction of issue of further shares to the extent of Rs.39,00,000 at the General Meeting of the shareholders. The company decided to issue the new shares to the members of the public. Regarding the ownership of 39,000 shares in Kalinga Tubes Ltd.issued in 1958, this involved determination of two issues: (a) whether the ostensible holders of these 39,000 shares were real owners or benamidars and if they were benamidars, who were the real holders? The company was incorporated as a private limited company in 1950. From 1950 to 1954, it was controlled by Shri Biju Patnaik and Shri Loganathan. In 1954, the company was in need of capital and these two persons came to be introduced to Shri S.P. Jain. There was some agreement between Shri Jain and the existing shareholders. The Memorandum of Agreement was drawn up in July, 1954. According to this agreement, Patnaik, Loganathan and Jain group were to be equal shareholders of the company. Early in 1956, the three groups considered the desirability of extending the business and obtaining loan from Industrial Finance Corporation. The Industrial Finance Corporation did not give loan to private limited companies and, therefore, the company was converted into a public limited company in January 1957. In September 1956, when the company was still a private company, a request was made to the Controller of Capital Issues for raising the capital of the company. It is further stated that at a meeting held on 29th March 1958, Shrimati Gyan Patnaik, wife of Shri B. Patnaik moved a resolution providing that 39,000 shares should not be offered or allotted to the existing shareholders or to the public. Shri S.L. Aggarwal of the Jain group, however, moved a resolution which provided that the 39,000 shares be offered to the existing shareholders of 43 the company in proportion to their shareholdings. The resolution further provided that if the offer was not accepted by the existing shareholders within 15 days, the offer would be deemed to have been declined. It appears that on 18th April 1958, Shri S.P. Jain filed a suit. The suit was decided against the Jain group. But Shri S.P. Jain filed a complaint under sections 397, 398, 402 and 403 of the Indian Companies Act. An appeal was preferred from single judge 's judgment to the division bench. There was appeal to this Court. There is an observation in the judgment of Burman, J. of the Orissa High Court to the following effect: "In the present case, it is clear that the allotments, of the said 39,000 shares to the seven persons were not in interest of the Company, because records, including the balance sheets, show that even by 1960 share moneys Rs.39 lakhs were not realised from the said allottees. Although, it was given out, by those in the management of the Company, that the Company was in urgent need of funds, the said allotments of 39,000 new shares did not however bring immediate funds to the company. " The Income tax Officer was of the view that the facts suggested that the seven persons were benamidars of Shri Patnaik, whether they are so or not and what is the effect of the decision of this Court on this point is another question. But these facts were not properly considered by the Tribunal to come to the conclusion as to whether 39,000 shares of Kalinga Tubes Ltd. belong to the assessee and not to the shareholders named. The details of this are in Annexure 'B ' to the Income tax Officer 's order. The Income tax officer has categorically found that Shri Mall was not assessed to Income tax as an individual. He was assessed as a member of the joint family on an income of Rs.15,000 to Rs.17,000. The total wealth of the family was about half a lakh. It was not possible to purchase shares of the face value of Rs.9 lakhs on his own. The shares from 1959 to 1964 had gradually appreciated in value. In other words even after deducting the loan incurred by acquiring these shares, the net worth of these shares during 1959 to 1967 was Rs.21/2 lakhs to Rs.71/2 lakhs. Shri Mall never filed his wealth tax return which clearly showed that nowhere shares were treated as his own. These and 44 other factors taken in conjunction led the Income tax Officer to the conclusion that 39,000 shares belonged to Shri B. Patnaik. In that view of the matter the materials gathered by revenue subsequent to the decision in S.P. Jain 's case on the aforesaid lines should have been appreciated and considered by the Tribunal. In our opinion therefore on the principles enunciated by this Court in several decisions mentioned hereinbefore, these questions as questions of law mentioned above do arise. In our opinion the High Court, in the facts and circumstances of the case, was in error in not directing a reference on the abovenamed questions to the High Court under section 256(2) of the Act. The judgment and order of the High Court are, therefore, set aside. We direct the Tribunal to send a statement of case for the three years involved within six months of the date of receipt of this order on the questions mentioned hereinbefore to the High Court at Cuttack. Let the records be sent to the Tribunal immediately through the High Court. As the matter is very old, the reference when made should be disposed of as quickly as possible. The costs of these appeals will abide by the ultimate order made in the reference. M.L.A. Appeals allowed.

Section 16 G(2)(c) of the U.P. Intermediate Education Act, 1921 and regulations 55 to 62 in Chapter III of the Regulations framed thereunder provided for the transfer of service of Head of Institutions, teachers and other employees from one recognised institution to another. The State Government promulgated the U.P. Secondary Education Services Commission and Selection Boards ordinance on July 10, 1981 with a view to establish a Secondary Education Services Commission and Secondary Education Selection Boards for selection of teachers in institutions recognised under the Education Act. The ordinance was subsequently replaced by an Act in 1382 with retrospective effect. Section 16(1)(a) of that Services Commission Act, 1982 provides that notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder, every appointment of a teacher, sepcified in the Schedule thereto shall, on or after July 10, 1981, be made by the management only on the recommendation of the Commission. However, before the Services Commission and the Selection Boards could be constituted the State Government had to make a number of Removal of Difficulties orders pursuant to the powers conferred under the aforesaid ordinance thereafter under the Services Commission Act. The respondent in Civil Appeal No. 2072 of 1985 was directed by 2 the District Inspector of Schools to be appointed as an ad hoc Principal of an Intermediate College under the Removal of Difficulties order issued under the Services Commission Act. The Committee of Management of the College which intended to fill the vacancy by transfer of a Principal from some other Intermediate college under the Education Act filed a writ petition in the High Court against that order of the District Inspector of Schools. During the pendency of that petition, in an interim order the Court recognised that the respondent was working as an ad hoc Principal of that institution. About this time the appellant, a Principal of another Intermediate College, sought his release from that college and the Committee of Management through a resolution dated December 3, 1982 accepted him as Principal of their college on transfer. The District Inspector of Schools accorded approval to this transfer on February 19, 1983. The respondent thereupon filed a writ petition in the High Court against the appointment of the appellant by transfer under the Education Act. The High Court allowed the writ petition of the respondent on April 9, 1985 by a majority following the Full Bench decision in Raghunandan Prasad Bhatnagar vs Administrator, Gandhi Vidyalaya lntermediate College, Khekra, (Civil Misc. Writ Petition No. 10301 of 1983), wherein it had re examined the correctness of the views expressed by the Division Bench in Ratan Pal Singh vs Deputy Director of Education, (1983 U.P. Local Bodies & Educational Cases 34) and the Committee of Management, National Intermediate College Adali Indara, District Azamgarh vs The District Inspector of Schools, Azamgarh, (1983 U.P. Local Bodies & Educational Cases 198), holding that it was not permissible for the Committee of Management of an Intermediate College to fill the post of Principal of the College by transfer of a Principal from another Intermediate College after the commencement of the Services Commission Act. The appellant appealed to this Court. Civil Appeal Nos. 41)91 92 of 1985 were filed by the District Inspector of Schools in support of the claim of the appellant. Civil Appeal Nos. 2628 and 2696 of 1985 and Special Leave Petition No. 9542 of 1385 arise out of substantially similar facts. It was contended for the appellants (1) that s.16(1)(a) of the Services Commission Act, which provides for the appointment of a Principal by the management only on the recommendation of the Commission, did not in any way curtail the provisions regarding transfer of 3 a Principal from one college to another set forth in section 16 G(2)(c) of the A Education Act, (ii) that the right to apply for transfer from one institution to another under section 16 G(2)(c) of the Education Act was a condition of service of an employee which neither expressly nor by necessary implication could be said to have been abrogated by the Services Commission Act, and (iii) that the power of transfer under section 16 G(2)(c) should not be identified with the power of appointment. It was further contended that making of amendments to the Regulations relating to transfer of service under the Education Act by the State Government even after the coming into force of the Services Commission Act indicates that section 16 G(2)(c) of the Education Act continues to be operative. On the question: Whether in view of the enactment of the U.P. Secondary Education Services Commission and Selection Boards Act, 1382, the provisions of section 16 G(2)(c) of the U.P. Intermediate Education Act, 1321 and the Regulations made thereunder in respect of the transfer of a Principal from one Intermediate College to another continues to be operative and effective. Dismissing the appeals and the special leave petition, the Court ^ HELD: 1.(i) Upon the constitution of a Commission under the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 it is no longer possible for a vacancy in the post of Principal, Headmaster or teacher of the categories mentioned in the Schedule to that Act to be filled by the process of transfer under section 16 G(2)(c) of the U.P. Intermediate Education Act, 1921 and its Regulations. [16 B C] Raghunandan Prasad Bhatnagar vs Administrator, Gandhi Vidyalaya Intermediate College, Khekra, Civil Misc. Writ Petition No. 10301 of 1983, approved. Ratan Pal Singh vs Deputy Director of Education, (1983) U.P. Local Bodies and Educational Cases 34 and the Committee of Management, National Intermediate College Adali Indara District Azamgarh vs The District Inspector of Schools Azamgarh, (1983) U.P. Local Bodies and Educational Cases 198, overruled. (ii) The context in which section 16 G(2)(c) of the Education Act and its Regulations operated, the authority conferred for that purpose and 4 the conditions subject to which it could be exercised stood completely superseded by the corresponding provisions of the Services Commission Act, its Rules and Regulations. No duality in the source of power is contemplated. The control over all appointments is exercised by a single source of power, namely, the Commission under the Services Commission Act. [ 14 C D] (iii) The accuracy of the observation of the majority in Raghunandan Prasad Bhatnagar 's case that section 16 G(2)(c) of the Education Act should be limited to cases of mutual transfer of services between teachers serving in different institutions cannot be accepted having regard to the view taken that section 16 G(2)(c) cannot be pressed into service in regard to vacancies intended to be filled on the recommendation of the Commission under the Services Commission Act. [16 F G] 2. The scheme set forth in the Service Commission Act enacts a complete code in the matter of selection of teachers. Section 10(I) requires the management to notify the vacancy to the Commission. Section 16(1)(a) mandates that the appointment of a teacher specified in the Schedule to the Act shall be made only on the recommendation of the Commission notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder. Section 16(2) declares that every appointment made in contravention of section 16(1) shall be void. Section 22 provides for punishment for contravention of the provisions of the Act. Section 32 permits the provisions of the Education Act and its Regulations to continue in force in so far only as they are not inconsistent with the provisions of the Services Commission Act, its Rules and its Regulations. [14E, 13B, 14D E, 13G H] 3.(i) The provision to apply for transfer under section 16 G(2)(c) of the Education Act could not be said to be a condition of service. The scheme under that Act envisages the appointment of a Principal in relation to a specific college. There is no State level service to which Principals can be appointed. When a Principal is appointed in respect of a particular college and is thereafter transferred as a Principal of another college a new appointment comes into existence. His appointment then is in relation to that college alone and to no other. Different colleges may be owned by different bodies or organisations, so that each Principal serves a different employer. Therefore, on filling the office of a Principal of a college a new contract of employment with a particular employer comes into existence. [12 E G] 3.(ii) The power of transfer is encompassed within the power of 5 appointment in as much as in its essential nature the transfer of a teacher from one institution to another implies the cessation of his appointment in the former institution and his appointment to the latter. Although the process of transfer may be governed by considerations different from those for the appointment of a person ab initio as Principal and move through a different machinery, the nature of the transaction remains the same, namely, that of appointment, and that is so whether the appointment be through promotion from the teaching staff of the same institution or by transfer from another institution. [14 G H, 13A] 4. The amendments made to the Regulations framed under the Education Act relating to the transfer of service even after the coming into force of the Services Commission Act cannot alter the true construction of the scope of the enactments under consideration. If section 16G(2)(c) of the Education Act itself had been amended an inference would have been possible that the State Legislature when amending that provision never intended that the provisions of the Services Commission Act should supersede section 16 G(2)(c) of the Education Act. [15G H, 16A B] In the instant case, the appointment of the appellant in Civil Appeal No. 2072 of 1985 as Principal by transfer having been made after July 10, 1981, was governed by the provisions of s.16(1)(a) of the Services Commission Act and was thus void. It is, therefore, not open to him to challenge the continuation of the respondent in that office.

Appeal No. 301 of 1961. Appeal from the judgment and order dated March 10, 1960, of the Allahabad High Court (Lucknow Bench) in Special Appeal No. 40 of 1959. K. section Hajela, and C. P. Lal, for the appellant. K. L. Gosain and Naunit Lal, for the respondent. March 4. The short point of law which arises in this appeal relates to the construction of Rule 4 (2) of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter called the Rules). That question arises in this way. The respondent Jogendra Singh was appointed a Naib Tehsildar under the appellant, the State of U. P. in the year 1937. On August 4, 1952, he was suspended as complaints had been received against him and an enquiry into the said complaints was contemplated. Accordingly, charges were framed against him and his case was referred for investigation to the Administrative Tribunal appointed under the Rules. The Tribunal held an enquiry and exonerated the respondent from the charges framed against him, in August 1953. While the proceedings before the Tribunal were pending, additional complaints were received by the 199 appellant against the respondent 's conduct, and they were communicated by the appellant to the Tribunal with an intimation that the appellant proposed to send those further charges against the respondent for enquiry. The Tribunal did not wait for receipt of the said additional charges because it was asked by the government to proceed with the charge already with it and concluded its enquiry. That is why on October 28, 1955, the respondent was again suspended and charges framed on the additional complaints received against him were delivered to him on October 29, 1956. On November 12, 1956, the respondent submitted his explanation and pleaded that in case the appellant wanted to pursue the enquiry against him, it might be entrusted to the Administrative Tribunal in accordance with the Rules. On June 28, 1958, the Deputy Secretary, Board of Revenue, U. P., informed the respondent that in accordance with the orders passed by the appellant his case had been entrusted to the Commissioner, Gorakhpur Division, with directions to take disciplinary proceedings against him, and his request that the charges against him, should be entrusted for investigation to the Administrative Tribunal had been rejected. Thereupon, the respondent filed a writ petition in the High Court of judicature at Allahabad on July 14, 1958, and prayed that a writ, or a direction or an appropriate order should be passed against the appellant quashing the proceedings intended to be taken against him before the enquiring officer appointed by the appellant under Rule 55 of the Civil Services (classification, Control and Appeal) Rules. The learned single judge who heard the writ petition held that the respondent being a gazetted officer, the appellant was bound to grant his request that the enquiry against him should be 200 held by the Administrative Tribunal appointed Under the Rules. That is why the writ petition was allowed and the order directing the enquiry to be held by the appointed authority under Rule 55 of the said Civil Services Rules was quashed. This order was challenged by the appellant by an appeal under the Letters Patent before a Division Bench of the said High Court. The Division Bench agreed with the view taken by the learned single judge and dismissed the appeal. The appellant then applied for and obtained a certificate from the said High Court and it is with the said certificate that it has come to this Court. Mr. Hajela for the appellant contends that the conclusion reached by the Courts below is not supported on a fair and reasonable construction of Rule 4 (2) of the Rules. The appellant 's case is that in the State of U. P. it is competent to the Governor to direct that disciplinary proceedings against the officers specified in Rule 4 of the Rules should be tried before /an Administrative officer, but there is no obligation on the Governor in that behalf. The Governor may, if he so decides direct that the said enquiry may be held under Rule 55 of the Civil Services Rules and conducted by an appropriate authority appointed in that behalf. Whether the enquiry should be held by the Administrative Tribunal, or by an appropriate authority, is a matter entirely within the discretion of the Governor. On the other hand, the High Court has held that so far as cases of gazetted government servants arc concerned, they are covered by Rule 4 (2) of the Rules and on a fair construction of the said Rule, it is clear that if @ gazetted government servant requests that the enquiry against him should be held by the Administrative Tribunal, the Governor is bound to grant his request. So, the narrow point which arises 201 for our decision is which of the two views can be said to represent correctly the effect of Rule 4 (2) of the Rules. Rule 4 reads as follows: "4. (1) The Governor may refer to the tribunal cases relating to an individual government servant or class of government servants or government servants in a particular area only in respect of matters involving : (a) corruption; (b) failure to discharge duties properly . (c) irremediable general inefficiency in a public servant of more than ten years ' standing; and (d) personal immorality. (2) The Governor may, in respect of a gazetted government servant on his own request, refer his case to the Tribunal in respect of matters referred to in sub rule (1). " It would be noticed that Rule 4 (1) confers discretion on the Governor to refer to the Tribunal cases failing under clauses (a) to (d) in respect of servants specified by the first part of sub rule (1). In regard to these cases, the government servant concerned cannot claim that the enquiry against him should not be held by a Tribunal and the matter falls to be decided solely in the discretion of the Governor. It is also clear that amongst the classes of servants to whom sub rule (1) applies, gazetted government servants are included, so that if Rule 4 (1) had stood by itself, even gazetted government servants would have no right to claim that the enquiry against them should not be held by a Tribunal. 202 It is in the light of this provision that rule 4 (2) has to be considered. Rule 4 (2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be ' referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub rule (1). The question for our decision is whether like the word " may" in rule 4 (1) which confers the discretion on the Governor, the word ",may" in subrule (2) confers discretion on him, or does the word ,(may" in sub rule (2) really mean "shall" or " 'must" ? There is no doubt that the word " 'may" generally does not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must" or " 'shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of rule 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub rule (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the tribunal that the rule making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under rule 4 (1) and rule 4 (2) has been prescribed, otherwise rule 4 (2) would be wholly redundant. In other words, the plain and unambiguous object of enacting rule 4 (2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and 203 not otherwise. The rule making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an opinion to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that ' his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

Double Jeopardy Applicability of rule Law finally and authoritatively decided by Supreme Court as to interpretation of the constitution If a substantial question of law Constitution of India, Arta. 20 (2), 145 (3). After the discovery of the conspiracy, ten conspirators including the appellants were put to trial before the Sessions judge under section 120 B of the Indian Penal Code and also each one of them separately under section 409 read with section 109 of the said Code. The charge was that they, alongwith one Shankar Lal and Doshi, both of them deceased entered into a criminal conspiracy at Bombay and elsewhere between or about the period from September 20, 1950 to December 31, 1950, to commit or cause to be committed criminal breach of trust in respect of Government securities or proceeds thereof or the funds of the Empire of India Life Assurance Co. Ltd., Bombay, acquiring its management and control and dominion over the said property in the way of business as Directors, Agents or attorneys of the said company. The learned Sessions Judge convicted six accused persons under section 120 B, read with section 409 of the Indian Penal Code and sentenced them to various terms of imprisonment. The rest four accused persons were acquitted. Against the acquittal State preferred an appeal to the High Court and the convicted accused persons also filed appeals against their convictions. Government appeal was allowed and the appeals of the convicted accused persons were dismissed by the High Court. These appeals by special leave have been preferred only by five accused persons against their conviction and sentences. In these appeals, the Court pro ceeded on the basis as it was manifest and indeed not disputed 379 that there was a conspiracy and the only question for con sideration was whether all or some of the appellants were parties to it. Held, that the essence of conspiracy is that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. But section 10 of the Evidence Act intro. duces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co conspirators. The section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him after the intention was formed by any one of them; (4) if it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co conspirator and not in his favour. Held, that so far as the appellant in criminal appeal No. 82/62 is concerned, applying the test laid down by this Court, the two conspiracies are not the same offence. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of article 20 (2) of the Constitution and, therefore, that Article has no relevance to the present case. Further, there are no permissible grounds for upsetting the concurrent findings of both the courts below that the appellant was a member of the conspiracy. Leo Boy Prey vs The Superintendent, District Jail, Amritsar, ; and The State of Bombay vs section L. Apte, ; , relied on. Sardul Singh Caveeshar vs State of Bombay, [1958] S.C.R. 161, referred to. As the question raised regarding interpretation of article 20 (2) of the constitution has already been decided by this Court, it cannot be held that the question raised involves a substantial question of law as to the interpretation of the Constitution within the meaning of article 145 (3) of the Constitution. State of Jammu & Kashmir vs Thakur Ganga Singh, [1960] 2 section C. R. 346 relied on. 380 Held, that from the relevant provisions of section 53 and the Explanation to section 55 of the Evidence Act. , it is clear that the evidence of general reputation and general disposition is relevant in a criminal proceeding. Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition. Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public. There is a real distinction between reputation and disposition. A man may be reputed to be a good man, but in reality be may have a bad disposition. The value of evidence as regards disposition of a person depends not only upon the witness 's perspicacity but also on his opportunities to observe the person as well as the said person 's cleverness to hide his real traits. But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use. But, in any case, the character evidence is a very week evidence; it cannot out weight the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a background for appreciating his reactions in a given situation. It must give place to acceptable positive evidence. The opinion expressed by the witnesses does credit to the accused, but, in the face of the positive evidence it cannot turn the scale in his favour.

iminal Appeal No. 81 of 1952. Appeal by special leave from the Judgment and Order, dated 12th February, 1951, of the High Court of Judicature at Bombay in Criminal Application No. 644 of 1950. Petitions Nos. 170, 171 and 172, being Petitions under article 32 of the Constitution, were also heard along with Appeal No. 81 of 1952. Ishwarlal C. Dalal for the appellant. M. C. Setalvad, Attorney General for India (Porus A. Mehta, with him) for the State of Bombay. section M. Sikri, Advocate General of Punjab (Jindra Lal, with him) for the State of Punjab. Jagjit Singh, Petitioner in Petition No. 170 of 1951, in person. Other petitioners not represented. April 17. The Judgment of the Court was delivered by Bhagwati J. 95 732 BHAGWATI J. This appeal by special leave from a judgment and order of the High Court of Judicature at Bombay raises an important question as to the construction of article 20(2) of the Constitution. The appellant, a citizen of Bharat, arrived at the Santa Cruz airport from Jeddah on the 6th November, 1949. On landing he did not declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated the 25th August,1948. The Customs Authorities thereupon took action under section 167, clause (8), of the Sea Customs Act VIII of 1878, and confiscated the gold by an order dated the 19th December, 1949. The owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12,000, which option was to be exercised within four months of the date of the order. A copy of the order was sent on the 30th January, 1950, to the appellant. Nobody came forward to redeem the gold. On the 22nd March, 1950, a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay, against the appellant charging him with having committed an offence under section 8 of the Foreign Exchange Regulation Act VII of 1947, read with the notification dated the 25th August, 1948. The appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under article 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate was in violation of the fundamental right guaranteed to him under article 20(2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case, the case may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return it to the Chief Presidency Magistrate 's Court for disposal. A rule was issued by the High Court on 733 the 26th June, 1950, which came on for hearing on the 9th August, 1950, before Bavdekar and Vyas JJ. The rule was made absolute and the High Court directed that the proceedings pending against the appellant in the Court of the Chief Presidency Magistrate be withdrawn and brought before the High Court under article 228 of the Constitution. The case was thereupon withdrawn and brought before the High Court and was heard by the High Court on the 17th October, 1950. The learned Judges of the High Court, Chagla C.J. and Gajendragadkar J. were of the opinion that the appellant could claim the benefit of article 20(2) only if he was the owner of the gold which was confiscated and that before they decided as to whether there had been a prosecution and a punishment within the meaning of article 20(2) it was necessary that the Chief Presidency Magistrate should determine the question of fact as to whether the appellant was the owner of the gold which had been confiscated and in respect of which an option was given to him as stated above. They therefore sent the matter back to the Chief Presidency Magistrate directing him to find a; to whether the appellant was or was not the owner of the gold stating that they would deal with the application after the finding was returned. The Chief Presidency Magistrate recorded evidence and on the 20th January, 1950, recorded the finding that the appellant was the owner of the gold in question and returned the finding to the High Court. Chagla C.J. and Gajendra gadkar J. heard the petition further on the 12th February, 1951. They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency Magistrate for disposal according to law. The appellant obtained on the 1st November, 1951, special leave to appeal against the judgment and order passed by the High Court. The question that arises for our determination in this appeal is whether by reason of the proceedings 734 taken by the sea Customs Authorities the appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the Court of the Chief Presidency Magistrate, Bombay. There is no doubt that the act which constitutes art offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same, viz., importing the gold in con travention of the notification of the Government of ,India dated the 25th August, 1948. The appellant could be proceeded against under section 167(8) of the Sea Customs Act as also under section 23 of the Foreign Exchange Regulation Act in respect of the said act. Proceedings were in fact taken under section 167(8) of the Sea Customs Act which resulted in the confiscation of the gold. Further proceedings were taken under section 23 of the Foreign Exchange Regulation Act by way of filing the complaint aforesaid in the Court of the Chief Presidency Magistrate ' Bombay, and the plea which was taken by the accused in bar of the prosecution in the Court of the Chief Presidency Magistrate, was that he had already been prosecuted and punished for the same offence and by virtue of the provisions of article 20(2) of the Constitution he could not be prosecuted and punished, again. The word offence has not been defined in the Constitution. But article 367 provides that the (Act X of 1897), shall apply for, the interpretation of the Constitution. Section 3(37) of the defines an offence to mean any act or omission made punishable by any law for the time being in force and there is no doubt that both under the provisions of section 167 (8) of the Sea Customs Act and section 23 of the Foreign Exchange Regulation Act the act of the appellant was made punishable and constituted an offence. In order however to attract the operation of article 20(2) the appellant must have been prosecuted and punished for the same offence when proceedings were taken by the Sea Customs Authorities. The 735 High Court did not go into the question as to whether the appellant was prosecuted when proceedings were taken before the Sea Customs Authorities. It considered the question of punishment in the first instance and thought it necessary to arrive at a ' finding as to the ownership of the confiscated gold before it could consider the application of the appellant. In the opinion of the High Court the appellant could be said to have been punished only if it were established that he was the owner of the confiscated gold. If he was the owner, the confiscation was a punishment, which would not be so if he was not the owner of the gold. This question of the ownership of the gold was not in our opinion material. The gold was found in the possession of the appellant when he landed at the Santa Cruz airport. The appellant was detained and searched by the Customs Authorities and the gold was seized from his person. Proceedings under section 167(8) were taken by the Customs Authorities and after examining witnesses an order was passed on the 19th December, 1949, confiscating the gold and giving an option to the owner to pay a fine of Rs. 12,000 in lieu of such confiscation under section 183 of the Sea Customs Act. Copy of this order was forwarded to the appellant and for all practical purposes the appellant was treated as the owner of the confiscated gold. As a matter of fact when evidence was recorded before the Chief Presidency Magistrate on remand the Assistant Collector of Customs gave evidence that no one else had claimed the gold and had the appellant paid the penalty and obtained the Reserve Bank permit and produced the detention slip he would have been given the gold. Once the appellant was found in possession of the confiscated gold the burden of proving that be was not the owner would fall upon whosoever affirmed that he was not the owner. The complaint which was filed in the Court of the Chief Presidency Magistrate, Bombay, also proceeded on the footing that the appellant committed an offence in so far as he brought the gold without the permit from 736 the Reserve Bank of India, that no permit was ever applied for or granted to the appellant and that the appellant had been given an opportunity of showing whether he had obtained such permit but that he failed to produce the same. It appears therefore that the question of the ownership could not assume as much importance is the High Court attached to it. If the Court came to the conclusion that the appellant was prosecuted when proceedings were taken by the Sea Customs Authorities there was not much scope left for the argument that he was not punished by the confiscation of the gold and the option given to him to pay a fine of Rs. 12,000 in lieu of such confiscation. To be deprived of the right of possession of valuable goods may well be regarded in certain circumstances as by itself a punishment. We have therefore got to determine whether under the circumstances the appellant can be said to have been prosecuted when proceedings were taken by the Sea Customs Authorities. The fundamental right which is guaranteed in article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence." (Per Charles J. in Beg. vs Miles (1). To the same effect is the ancient maxim "Nemo bis debet punire pro uno delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "pro eadem causa", that is, for the same cause. This is the principle on which the party pursued has available to him the plea of autrefois convict" or " autrefois acquit". " The plea of 'autrefois convict ' or 'autrefois acquit ' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The question for the jury (1) 737 on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit 'is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury 's Laws of England, Hailsham Edition, Vol. 9, pages 152 and 153, paragraph 212). This principle found recognition in section 26 of the , "where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence," and also in section 403 (1) of the Criminal Procedure Code, 1898, " A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237. " The Fifth Amendment of the American Constitution enunciated this principle in the manner following: ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself. . . . 738 Willis in his Constitutional Law, at page 528, observes that the phrase "jeopardy of life or limb" indicates bat the immunity is restricted to crimes of the highest grade, and this is the way Black stone states the rule : " Yet, by a gradual process of liberal construction the courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanours.". . " Under the United States rule, to be put in jeopardy there must be a valid indictment or information duty presented to a court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impanelled and sworn. It is not necessary to have a verdict. The protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned. " These were the materials which formed the background of the guarantee of fundamental right given in article 20(2). It incorporated within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. The 'words "before a court of law or judicial tribunal" are not to be found in article 90(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal,required by law to decide the matters in con troversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or ail administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of article 20 and the words used therein:" convicted commission of 739 the act charged as an offence", "be subjected to a penalty ", " commission of the offence ", " prosecuted and punished ", " accused of any offence ", would indicate, that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the 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. The tests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi(1) in the following passage quoted with approval by Mahajan and Mukherjea JJ. from Cooper vs Wilson '(2) at page 340: "A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertaiment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) If the dispute between them is a question of law, the submission of legal argument by the parties; and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. " The question whether the Sea Customs Authorities when they entertained proceedings for confiscation of the gold in question acted as a judicial tribunal has got to be determined in accordance with the above tests. The , 'was enacted to consolidate and amend the law relating to the levy of sea customs duties. The hierarchy of the officials are the (1) ; , (2) 96 740 Customs Collector, who is the officer of Customs for the time being in separate charge of a custom house, the Chief Customs Officer who is the Chief Executive Officer of the Sea Customs for a port and the Chief Customs Authority which is the Central Board of Revenue. Sections 18 and 19 enact prohibitions. and restrictions on importation and exportation of goods and section 19(a) provides for detention and confiscation of goods whose importation is prohibited. After making various provisions for the levy of sea customs duties, Chapter XVI enacts offences and penalties and several offences mentioned in the first column of the schedule to section 167 are made punishable with penalties mentioned in the third column thereof. Item 8 relates to the offence committed by the importation of goods contrary to the prohibition or restriction imposed in that behalf under sections 18 and 19 of the Act and penalty prescribed for such an offence is: " Such goods shall be liable to confiscation ; any person concerned in any such offence shall be liable to a penalty not exceeding three. times the value of the goods, or not exceeding one thousand rupees. " Chapter XVII prescribes the procedure relating to offences, appeals, etc. Powers of search are given to the officers of customs but provision is made that a person about to be searched can, require the officer to take him previous to search before the nearest Magistrate or Customs Collector. Search warrant can only be issued by the Magistrate and can be executed in the same way and has the same effect as a search warrant issued under a law relating to criminal procedure. Powers are also given to the officers of Customs to arrest persons reasonably suspected of having committed an offence under the Act but the person arrested is to be forthwith taken before the nearest Magistrate or Customs Collector. The Magistrate is entitled either to commit such person to jail or order him to be kept in custody of the police for such time as is necessary to enable the Magistrate to communicate with the proper officers of Customs. No 741 such power is given to the Customs Collector. Section 181(A) also provides for the detention of packages containing certain publications imported into the States. Section 182 provides that except in the case of certain offences therein mentioned which involve proceedings before a Magistrate confiscation, increased rate of duty or penalty can be adjudged by the Customs Authorities therein mentioned and section 183 provides for option to be given to the owner of the goods confiscated to pay in lieu of confiscation such fine as the officer thinks fit, Section 186 provides that the award of any confiscation, penalty or increased rate of duty under the Act by an officer of Customs is not to prevent the infliction of any punishment to which the person affected thereby is liable under any other law. An appeal is provided under section 188 from a decision or order of the officer of Customs to the Chief Customs Authority who is thereupon to make such further enquiry and pass such order as he thinks fit confirming, altering or annulling the decision or order appealed against. Section 191 provides for a revision by the Central Government on the application of a person aggrieved by any decision or order passed by an officer of Customs or the Chief Customs Authority from which no appeal lies. Section 193 provides for the enforcement of the payment of penalty or increased rate of duty as adjudged against any person by an officer of Customs. If such officer is not able to realise the unpaid amount from other goods in charge he can notify in writing to any Magistrate within the local limits of whose jurisdiction such person may be, his name and residence and the amount of penalty or increased rate of duty unrecovered and such Magistrate is thereupon to proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself. It is clear on a perusal of the above provisions that the powers of search, arrest and detention are given to the Customs Authorities for the levy of sea customs duties and provision is made at the same time for a 742 reference to the Magistrate in all cases where search warrants are needed and detention of the arrested person is required. Certain offences of a serious nature are to be tried only by Magistrates who are the only authorities who can inflict punishments by way of imprisonment. Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty which can be inflicted is Rs. 1,000. Confiscation is no about one of the penalties which the Customs Authorities can impose but that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit. All this is for the enforcement of the levy of and safeguarding the recovery of the customs duties. There is no procedure prescribed to be followed by the Customs Officer in the matter of such ad judication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal procedure Code. The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness. The appeals, if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority. In the matter of the enforcement of the payment of penalty or increased rate of duty also the Customs Officer can only proceed against other goods of the party in the possession of the Customs Authorities. But if such penalty orincreased rate of duty cannot be realised therefrom the only thing which he, can do is to notify the matter to the appropriate Magistrate who is the only person empowered to enforce payment as if such penalty or 743 increased rate of duty had been a fine inflicted by himself. The process of recovery can be issued only by the Magistrate and not by the Customs Authority. All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act. The same view of the functions and powers of Sea Customs Officers was expressed in& decision of the Bombay High Court to which our attention was called. (See Mahadev Ganesh Jamsandekar vs The Secretary of State for India in Council(1). We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. It therefore follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have been "Prosecuted and punished" for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under section 23 of the Foreign Exchange Regulation Act. The result therefore is that the appeal fails and must be dismissed. Petitions Nos. 170, 171 and 172 of 1961. (1) (1922) L.L.R. 46 Bom. By an order of this Court dated the 26th November, 1952 these petitions were ordered to be heard by the Constitution Beach along with Criminal Appeal No. 81 of 1952, as the same point as regards "autrefois convict" or "double jeopardy" was also ' involved therein. Jagjit Singh, Vidya Rattan and Parma Nand, the three petitioners in the respective petitions were detenus under the , detained in the Central Jail, Ferozepur, and governed by the Punjab Communist Detenus Rules, 1950, framed by the Government of Punjab under section 4(a) of the Act. On the 6th February, 1950, it is alleged, a general assault on jail officials was made by the detenus including Jagjit Singh. An alarm was rung and the warder guard after some time overpowered the detenus who were responsible for the assault. Thirteen jail officials and twelve detenus sustained injuries and the detenus were all removed to cells. On the 7th February, 1950, the three detenus petitioners resorted to a hunger strike which continued upto the 10th April, 1950. They were separately confined from and after the 6th February, 1950. Their letters and interviews were stopped for two months with effect from the 7th February, 1950, and papers and books were stopped with effect from the 8th February, 1950, for the duration of the hunger strike. The hunger strike continued and they continued to be separately confined till the 10th April, 1960. It appears that more than 7 1/2 months after the hunger strike the Jail Superintendent, Shri K. K. Matta, filed a complaint against Jagjit Singh in the Court of Shri P. L. Sondhi, M.T.C.,Ferozepur, under rule 41(2) of the Punjab Communist Detenus Rules charging him with having committed a jail offence in resorting to hunger strike. He also filed a complaint before the same Magistrate against Jagjit Singh for having committed offences under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code. He further filed against Vidya Rattan and Parma Nand complaints under rule 41 (2) of the Punjab Communist Detenus Rules for having committed 745 a jail offence in resorting to hunger strike. On the 16th February, 1951, the three detenu petitioners,, filed before this Court petitions under article 32 of the Constitution asking for the issue of a writ of prohibition not to proceed with the prosecutions of the petitioners in the said cases on the ground that they had been prosecuted and punished for the same offence already by the Jail Superintendent and therefore they could not be prosecuted and punished for the same offence once again and that the prosecutions which were launched against them in the, Court of Shri P. L. Sondhi, M.I.C., Ferozepur, could not lie as being in contravention of the fundamental right guaranteed under article 20(2) of the Constitution. Jagjit Singh argued his own petition in person. Vidya Rattan had intimated to this Court that he would be satisfied with the decision on Jagjit Singh 's petition and wanted his absence to be excused. Parma Nand did not appear at the hearing even though notice of the hearing was served upon him. It was urged by Jagjit Singh that the proceedings which were adopted by the Jail Superintendent against the petitioners amounted to their prosecution and punishment for the same offence and that therefore the prosecution which was now launched against them was not competent as it exposed them to double jeopardy and violated the fundamental right guaranteed to them under article 20(2). It was on the other hand urged by the Advocate General of Punjab that the Jail Superintendent merely took disciplinary action against the petitioners and the punishment if any which was meted out to them was for breaches of discipline within the meaning of section 4(a) of the Act and the Punjab Communist Detenus Rules, 1950, framed thereunder, that there was no prosecution and punishment of the petitioners within the meaning of article 20(2) and that therefore the petitions were liable to be dismissed. Section 4 of the (Act No. IV of 1960), provides for power to regulate place and conditions of detention, 746 "Every person in respect of whom a detention order has been made shall be liable (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify The Punjab Communist Detenus Rules, 1950, were framed by the Government of Punjab in exercise of the powers conferred by section 4 (a) of the Act. Rules 39, 40 and 41 provide for offences and punishments. Rule 39 lays down certain rules of discipline and rule 40 provides that any detenu who contravenes any of the provisions of rule 39 or refuses to obey any order issued thereunder, or does any of the acts mentioned in the following portion of the rule 40, viz. : (i) assaults, insults, threatens or obstructs any fellow prisoner, any officer of the jail or any other Government servant, or any person employed in or visiting the jail, or. . (xii a) goes on hunger strike (other than a token strike), or. shall be deemed to have committed a jail off once. Rule 41 is important and bears particularly on the question which we have to decide. It provides:" (1) Where upon such enquiry as he thinks fit to make, the Superintendent is satisfied that a detenu is guilty of a jail offence, he may award the detenu one or more of the following punishments: (a) confinement in cells for a period not exceeding 14 days (d) cancellation or reduction, for a period not exceeding two months of the privilege of writing and receiving letters or of receiving newspapers an books, (e) cancellation or reduction, for a period not exceeding two months of the privilege of having interviews 747 (2) If any detenu is guilty of a jail offence which by reason of his having frequently committed such A offences or otherwise is in the opinion of the Superintendent not adequately punishable by him under the provisions of sub rule (1), he may forward such detenu to the Court of a Magistrate of the first class having jurisdiction, and such Magistrate shall thereupon inquire into and try the charge so brought against the detenu and upon conviction shall sentence him to imprisonment for a term not exceeding one year: Provided that where the act constituting the offence ' constitutes an offence punishable under the Indian Penal Code with imprisonment for a term exceeding one year, nothing in this rule shall preclude the detenu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code. " It is clear from the above rules that the Jail Super intendent is constituted the authority for determining whether a detenu is guilty of a jail offence and for the award to such a detenu of one or more of the punishments prescribed in rule 41. If this punishment is considered to be adequate the Jail Superintendent is to award him the appropriate punishment. No procedure is prescribed by the rules and the Superintendent is not required to act only on evidence given on oath. He can punish after such enquiry as he thinks fit to make. Thus he may not take any evidence or make any judicial enquiry at all but may yet punish. If however the detenu cannot in the opinion of the Jail Superintendent be adequately punished by him by reason of his having frequently committed such offence or otherwise the Jail Superintendent is empowered to forward such a detenu to the Court of a Magistrate of the First Class having jurisdiction and the jail offence in that case can be enquired into by the Magistrate who would try the charge brought against the detenu, convict him and sentence him to imprisonment for a term not exceeding one year. The proviso covers the cases where the offence is Punishable with imprisonment for a term exceeding 97 748 one year under the Indian Penal Code and nothing in rule 41 is to preclude the detenu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code. The whole scheme of rule 41 is to constitute the Jail superintendent only an administrative authority to maintain jail discipline and inflict summary punishment on the detenus for breach of that discipline by committing a jail offence. It is only when the Jail Superintendent considers that the offence is not adequately punishable by him that he, can send the case to the Magis trate. If he actually himself punishes he cannot, under this rule, refer the case again to the Magistrate. A reference by him after punishment it will be wholly unauthorised and without jurisdiction and the prosecution before the Magistrate would be illegal and not in accordance with procedure established by law. It was contended that under sections 45, 46 and 52 of the Prisons Act (IX of 1894) the Jail Superintendent was constituted an authority bound to act judicially for the purposes of enquiry into and trial of the prisoners for similar offences and the detenus under the Punjab Communist Detenus Rules, 1950, being put in the same category as civil prisoners the proceedings before the Jail Superintendent for having committed the Jail offences under rules 40 and 41 above amounted to a prosecution of the petitioners before him as a judicial tribunal. It was on the other hand contended by the Advocate General of Punjab that the Punjab Communist Detenus Rules, 1950, constituted a self contained code regulating the place and conditions of detention of these detenus, that the aforesaid sections of the , had. no application to their case and the proceedings which took place before the Jail Superintendent in the present case were therefore not judicial proceedings and there was no prosecution and punishment of the petitioners within the meaning of article 20 (2). We accept the contention of the AdvocateGeneral of Punjab. The petitioners were communist detenus and were governed by the Punjab Communist 749 Detenus Rules, 1950, which were framed by the Government of Punjab under section 4(a) of the set out above and which constituted the body of rules prescribing the conditions of their maintenance, discipline, etc. Their confinement in the prisons was for the sake of administrative convenience and was also prescribed by the rules themselves and the provisions of the did not apply to them. It could not therefore be validly contended that the proceedings taken against the petitioners by the Jail Superintendent constituted a prosecution and punishment of the petitioners before a judicial tribunal. So far as the jail offence alleged to have been committed by reason of the petitioners having resorted to hunger strike was concerned, the Jail Superintendent obviously considered that he could adequately punish the petitioners for that jail offence and he did not think it necessary to have resort to the provisions of rule 41 (2) and forward the petitioners to the Court of the Magistrate without having himself dealt with them. It is common ground that the Jail Superintendent acted under rule 41 (1), and having satisfied himself that the petitioners were guilty of that jail offence awarded them one or more of the punishments therein prescribed, viz., stopping the letters and interviews for two months with effect from the 7th February, 1950, and stopping the papers and books for the duration of the hunger strike. In our opinion this was tantamount to inflicting punishment on all the three petitioners for this jail offence and that having been done it was not competent to the Jail Superintendent after 7 1/2 months of the hunger strike to forward the petitioners to the Court of the Magistrate as be purported to do, and such reference was wholly unauthorised by the rule and without jurisdiction and the prosecution before ' the Magistrate is obviously not in accordance with procedure established by law and the petitioners may well complain of a breach or a threatened breach of the fundamental right guaranteed to them by article 21 of the Constitution in that the prosecution of the 750 petitioners before the Magistrate for the jail offence of having resorted to the hunger strike was not competent according to the procedure established by law. The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma Nand must ' therefore be accepted and their prosecution in the Court of Shri P. L. Soudhi, M.I.C., Ferozepur, under rule 41(2) of the Punjab Communist Detenus Rules, 1950, for having committed a jail offence in resorting to hunger strike must be quashed. The same order will also be passed in the petition of Jagjit Singh, being Petition No. 170 of 1951, in regard to the jail offence committed by him by having resorted to the hunger strike. Jagjit Singh however is being prosecuted in the Court of the Magistrate for having committed offences under sections 332 and 353 as also sections 147 and 149 of the Indian Penal Code. It was contended by the Advocate General of Punjab that there was no prosecution and no punishment awarded to Jagjit Singh in regard to there offences; and he relied upon the entries in the punishment register under the date 6th February, 1950, with reference to these offences. These entries in the punishment register show that Jagjit Singh was not punished for any of these offences but he was to be sent up for trial and in the meantime he was to be separately confined. Jagjit Singh on the other hand relied in particular on the evidence of Sher Singh who was the Assistant Superintendent of the Central Jail, Ferozepur, at all material times and his evidence would have helped Jagjit Singh considerably had it not been for the fact that the entries in the punishment register completely belie his version and he further states that Jagjit Singh was punished not only for the offence of assault but also rioting which could in no event have been done by the Jail Superintendent under the rules. So far as the prosecution under sections 147 and 149 of the Indian Penal Code is concerned that is an 751 offence which is not comprised in the jail offences enumerated in rule 40 nor could it have been dealt with by the Jail Superintendent under rule 41 (1). That offence was moreover covered by the proviso to rule 41(2) and was exclusively triable by the Magistrate. The prosecution of Jagjit Singh therefore before the Magistrate for the offences under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code is not in violation of article 20 (2) or article 21 of the Constitution and must therefore proceed. The result therefore is that the Petition No. 170 of 1961 filed by Jagjit Singh will be allowed only to the extent that the appropriate writ of prohibition shall issue against the respondent in regard to his prosecution for having committed a jail offence in resorting to hunger strike, but his prosecution under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code will not be affected by this order. The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma Nand respectively will be accepted and the appropriate writs of prohibition shall issue against the respondent as prayed for therein. Appeal No. 81 dismissed. Petitions Nos. 171 and 172 allowed. Petition No. 170 partly allowed. Agent for the appellant in Criminal Appeal No. 81: P. K. Chatterjee. Agent for the respondent in Criminal Appeal No. 81 and Petitions Nos. 170, 171 & 172: G. K. Rajadhyaksha.

The respondent who carried on business was prosecuted under section 13 of the Hoarding and Profiteering Ordinance of 1943 on a charge of selling goods at an unreasonable price. He was finally acquitted and claimed in his assessment for a subsequent year that the sum of Rs. 10,895 which he had spent in defending himself against the charge should be deducted from his income under section 10(2)(xv) of the Income tax Act as "expenditure laid out or expended wholly and exclusively for purposes of the business". The Appellate Tribunal held that in the absence of any evidence that personal liberty was likely to be jeopardised there was only a chance of his being fined, that the object of saving himself from fine was so inextricably mixed with the main purpose of the defence which was solely for the purpose of maintaining the respondent 's name as a good businessman and also to save his stock from being undersold, that it could be ignored, and that, therefore, the claim was allowable under section 10(2)(xv). On a reference the High Court held that the finding of the Tribunal was one of fact and was binding on it. On further appeal: Held (i) that the finding of the Tribunal was not one of fact and was not decisive of the reference; (ii) the finding of the Tribunal was vitiated by its refusal to consider the possibility of the prosecution ending in a sentence of imprisonment and throwing on the Income tax authorities the burden to prove that the prosecution might result in his imprisonment; and the finding was not therefore binding on the Court; (iii) in any event, the expenses could not be said to be " expenditure laid out or expended wholly and exclusively for the purposes of the business" within section 10(2)(xv) of the Act. Legal expenses incurred in civil litigation &rising out of matters incidental to the carrying on of a business stand on a different footing as in such a case no question could arise as to the primary or secondary purpose for which the expenses could be said to have been incurred. The deductibility of such expenses under section lO (2) (xv) must depend on the nature and purpose of the legal proceeding and not 715 on the final outcome of it and a distinction cannot therefore be drawn between expenses of a successful and unsuccessful defence for purposes of section 10 (2) (xv). J. B. Advani vs Commissioner of Income tax ([1950] referred to. Commissioner of Income tax vs Maharajadhiraj of Darbhanga ([1942] L. R. 69 I.A. 15) distinguished.

ition No. 96 of 1972. Under Article 32 of the Constitution of India. I. N. Shroff for the appellant/petitioner. B. B. Ahuja and section P. Nayar for respondents. The Judgment of the Court was delivered by SHINGHAL J. This is a petition under article 32 of the Constitution. Bhupendra Ratilal Thakkar, petitioner No. 1, is the managing partner of the other petitioner M/s Rajnikant Nareshchandra Shroff, which is a partnership firm carrying on the business of "shroffs and bankers". Its principal place of business is said to be at Mehmadabad, with branches at Surat and Bombay. The petitioners applied for registration of the firm on April 7, 1971, and had time to file their return of income upto June 30, 1972. It has been claimed that the firm had large sums of money in cash as well as 'hundis ' and other bills of exchange which formed its stock in trade and that there was no justification for thinking that it would not do what was required to be done under the law relating to income tax. The firm had a sum of Rs. 12,00,000/ as cash on January 10, 1972, which is said to have been duly entered in its books of account in the Bombay branch office. The grievance of the petitioners is that some of the 892 respondents entered these premises on January 10, 1972, "in purported exercise of the powers conferred by section 132", and seized the sum of Rs. 12,00,000/ along with the books of account and other documents. Searches are also said to have been carried out in Mehmedabad office and the branch office at Surat, and some more books of account, papers and documents are said to have been seized there. The petitioners have stated that as the sum of Rs. 12,00,000/ was the stock in trade of the firm, and it had not been secreted, there was no justification for the seizure of the money or the books and the other documents. They have accordingly stated that the seizure was an abuse of the authority conferred by sections 132 and 132 A of the Income tax Act, 1961, hereinafter referred to as the Act, and rules 112, 112 A, 112 B, 112 C and 112 D of the Income tax Rules, 1962, hereinafter referred to as the Rules. The petitioners have contended that sections 132 and 132 A of the Act are unconstitutional because they are violative of articles 14, 19(1)(f) and (g) and 31(1) of the Constitution. It has also been urged that the aforesaid rules are illegal as they are not backed by any legal authority. The aforesaid provisions have also been challenged on the ground that they are violative of article 14. In regard to sections 132 and 132 A of the Act, the petitioners have further stated that they should be struck down as they confer naked, arbitrary, unguided, discriminatory and uncanalised power on the executive authority. The petitioners have also prayed for the restoration of the property which has been seized by the income tax authorities. It has been pointed out in the petition that three similar writ petitions were pending in this Court, including writ petition No. 446 of 1971. Pooran Mal vs Director of Inspection Investigation. The respondents have admitted the search and the seizure of the property, but have stated that this was done because the Commissioner of Income tax, Gujarat I, respondent No. 1, had reasons to believe that the petitioners would not produce their books of account etc. even though they would be useful to the department for taking proceedings under the Act. It has also been stated that there was enough material before the Commissioner for exercising the power under section 132(1) of the Act. The respondents have made specific averments in this connection including the averment that books of account were unreliable, and that the claim that the sum of Rs. 12,00,000/ was shown as balance in the books of account was incorrect. They have also denied the allegation that any search was carried on in the Mehmedabad head office of the petitioner firm or that the sum of Rs. 12,00,000/ was kept as the firm 's stock in trade or that the firm was left with no other money whatsoever. The petitioners ' contention against the legality of sections 132 and 132 A of the Act and the Rules has also been controverted. It will be recalled that in their writ petition the petitioners have made a specific reference to Pooran Mal 's writ petition No. 446 of 1971. That case has been heard and decided by this Court on December 14, 1973 and the decision has been reported in Pooran Mal 893 etc. vs Director of Inspection (Investigation) of Income Tax, New A Delhi and others Mr. Shroff has frankly conceded that the points which have been raised in this petition have been considered in that case, and that he has nothing to say in regard to the validity of sections 132 and 132 A of the Act and rules 112 and 112 A of the Rules or the averments in the petition in that connection. In fact it has been held by this Court in Pooran Mal 's case that "it was impossible to hold that the impugned provisions were violative of articles 14, 19 or 31. " All that Mr. Shroff has argued is that the validity of rules 112 B and 112 C of the Rules was not the subject matter of examination in Pooran Mal 's case and that it would be necessary for this Court to examine that part of the controversy, as and when it is permissible to do so, with reference to the provisions of article 14 of the Constitution. We have gone through rules 112 B and 112 C of the Rules. Rule 112 B relates to the release of the articles seized under section 132(5) of the Act, and merely provides that where, in pursuance of that section, any assets or part thereof have to be released, the Income tax officer shall forthwith deliver the same to the person from whom custody they were seized. Rule 112 C provides for the release of the remaining assets, and it is to the effect that they shall be made out or paid to the person from whose custody they were seized, after the discharge of the liabilities referred to in cl (i) of sub section (1) of section 132 A of the Act. Both these are therefore beneficial rules, and there can be no satisfactory reason for challenging their validity with reference to article 14 of the Constitution. So when the present case is not different from Pooran Mal 's case, there is no merit in this writ petition. It is hereby dismissed. There will however be no order as to costs. P.H.P. Petition dismissed.

Section 60 of the empowers the State Transport Authority to cancel or suspend a permit granted by it under certain circumstances. The proviso to the section states that no permit shall be cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation. On receipt of reports and complaints regarding the appellant, the State Transport Commissioner issued a show cause notice to it without specifying therein the nature of complaints. Action was taken for cancellation of the permits. The High Court summarily dismissed the writ petition of the appellant filed under article 226 of the Constitution against the order of the State Transport Appellate Tribunal. Allowing the appeal to this Court, ^ HELD: (1) The High Court was not right in not interfering with the order of the authority cancelling the permits. A manifestly wrong procedure in a departmental action of this nature is obvious on the face of the notice resulting in violation of the principles of natural justice. [221D; 220A] (2) The proposed penal action has to be particularised with reference to each permit detailing the particular conditions for breach of which action is sought to be taken. Proviso to section 60(1) which requires mandatory compliance is nothing short of a reasonable opportunity to the permit holder to furnish his explanation. Unless the breaches of conditions or other allegations are particularised with reference to each permit in the show cause notice such notice is clearly invalid and no action can be taken under such a notice. [220G: 221D]

minal Appeal No. 109 of 1960. Appeal by special leave from the judgment and order dated April 18, 1958, of the Andhra Pradesh High Court in Criminal, Misc. Petition No. 1421 of 1957. H. J. Umrigar and T. M. Sen, for the appellant. The respondent did not appear. March 8. The Judgment of the Court was delivered by MUDHOLKAR, J. The State of Andhra Pradesh has come up in appeal against the order passed in revision by the high Court of Andhra Pradesh quashing the charges framed against nine persons by Mr. Syed Firasath Hussain, Special Judge, Vijayawada. The revision petition was preferred by only two of those persons. The accused No. 1 Parthasarathi, who was a lower division clerk in the Central Excise Circle Office at Narasaraopet was in charge of the TP 1 permit books (transport permit) intended for issue to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco. According to the prosecution two of those books containing 25 permit forms each were found missing from the aforesaid office. The allegation is that Parthasarathi sold those books to the remaining accused for a consideration of Rs. 400. It was found during the investigation that seven permit forms from out of these books bad been used for transport of non duty paid tobacco after blanks in those forms had been filled and the signa tures of certain Central Excise Officers forged on them. Further, according to the prosecution, accused nos. 2 to 8 got authorisation letters prepared with the help of accused No. 9 'by forging the signatures of the supposed consignors of the tobacco. With the help of 197 these documents the accused nos. 2 to 8 are said to have transported tobacco to the licensed premises of certain persons and received payments for the tobacco delivered to them. The prosecution alleged that all this was done by all the accused by entering into a conspiracy, the object of which was to procure and utilise blank TP 1 forms, fill them in, forge the signatures of Central Excise Officers and use them as genuine for the purpose of transporting tobacco without paying duty upon it. The charge sheet states that the accused nos. 1 to 9 have committed the offence under section 120 B, Indian Penal Code read with a. 5(2) of Prevention of Corruption Act, 1947 (II of 1947). It further states that the accused No. 1 had committed offenses under section 5(1)(c) and 5(1)(d) of Prevention of Corruption Act, 1947 as also offenses under sections 420, 463 and 464, Indian Penal Code. The accused nos. 2 to 8 are said to have abetted all these offenses. Each of these accused is in addition said to have committed offenses under section 420, Indian Penal Code. The Subordinate Judge, Vijayawada was appointed as Special Judge under the provisions of section 6 of the Criminal Law Amendment Act, 1952 (II of 1952) to try offenses under the Prevention of Corruption Act, 1947. He framed the following charges: "CHARGE NO.1. That you, Accused 1 to 9 on or about 19 9 1953 to 5 11 53 agreed to do by illegal means to wit, A 1 being a public servant in the Central Excise Department dishonestly sold two blank T.P. 1 books for Rs. 350 to one late Jogayya and obtained pecuniary advantage for himself and A 2 to A 8 and that A 9 forged 7 T.P. 1 forms, out of the above two books, which forged T.P. 1s were used by A 2, A 3, A 5, A 7, A 8 with the assistance of A 4 and A 6 and cheated the merchants of Markapur and Cumbum by using the said forged T.P. 1s for the above purpose of cheating; and that the above acts were done by all of you in pursuance of a conspiracy and that thereby you A 1 have committed an offence punishable under Section 120B of the I.P.C. read with and (d) punishable under Sec. 5(2) of the Prevention of Corruption Act and also under Sec. 109 I.P.C. read with Sec. 490, 466 and 467 of the I.P.C. and that you,A 2 to A 9 under See. 120 B read with Sec. 5(1)(c) and (d) punishable under See. 5(2) of Act 11 of 1947 and See. 420, 466 and 467 and 471 I.P.C. and within my cognizance. CHARGE NO. That you A 1, being a public servant in the Central Excise Department, being a Lower Division Clerk in the office of the Superintendent of Central Excise, Narasaraopet Circle, since 1951 and in such capacity were entrusted since 1951 with blank T.P. 1 books dishonestly sold two of the above said T.P. 1 books under your control to one late Jogayya for Rs. 350, in or about the month of April, 1953 and dishonestly, fraudulently misappropriated the said amount and thereby committed the offence of misconduct punishable under Section 5(2) read with See. 5(1)(c) of the Prevention of Corruption Act, 11 of 1947 and within my cognizance. CHARGE NO. 111. That you A 1, in the above capacity, by corrupt and illegal means, and by abusing your position as a public servant, obtained for yourself an amount of Rs. 350 being the sale proceeds of the two Blank T.P. 1 books, from one late Jogayya and obtained for A 2 to A 8, a pecuniary advantage of Rs. 10,120 14 0, th e amount of revenue due to the Central Govern ment and thereby committed the offence of Criminal misconduct punishable under See. 5(2) read with Sec. 5(1)(d) of the Prevention of Corruption Act 11 of 1947 and within my cognizance. CHARGE TO. That you, A 9, on or about the days between September and November, 1953 forged 7 blank T.P. ls Nos. 610432, 610443, 610460,610448,61044, 610468, 610446 as if they are documents to have been made by the Central Excise Officials in their official capacity by filling up the same within false particulars and fixing the signatures of different 199 Central Excise Officials so as to show that they are genuine T.P. 1 permits 'hat you thereby committed an offence punishable under Section 466 I.P.C. and within my cognizance. CHARGE No. V. That you, A p, on or about the days between September and November, 1953 forged the 7 T.P. 1 permits mentioned in Charge No, IV purporting to be valuable securities with intent and that they may be used for transporting tobacco as duty paid tobacco and that you thereby committed an offence punishable under Section 467 of the I. P. C. and within my cognizance. CHARGE No. VI. That you, A 2 to A 8, on, or about the days between 12 9 53 and 5 11 53 at Chodavaram, Satulur, Velpur and Tenali dishonestly used the above seven forged T.P. Is mentioned in Charge No. IV as genuine, Which you know at the time you used them as forged documents and transported 26,989 lbs. non duty paid tobacco as duty paid tobacco by quoting the above fictitious documents as proof of payment of duty and that you ' thereby committed an offence punishable under Section 465 and 471 of the I.P.C. and within my cognizance. CHARGE No. VII. That you, A 2 to A 8, on or about the days between 19 9 53 and 6 11 53 at Cumbum and Mar kapur cheated (1) B. Ranga Subbayya of Cumbum (2) P. C, h. Venkata Subbaiah and (3) Shri B. Seshaiah of Markapur and thereby dishonestly inducing them to deliver you, Rs. 10,994 10.3, was the property of the above said persons; and that you thereby committed an offence punishable under Section 420 I.P.C. and within my cognizance. " While seven of the accused persons were content with the charges,, two preferred an application for revision before the High Court which, as already stated, accepted it and quashed the charges and directed the Special Judge to frame fresh charges on the lines indicated in the judgment. 200 Mr. Umrigar, who appears for the State of Andhra Pradesh, while conceding that Charge No. 1 as it stands, is involved and obscure and requires to be reframed takes exception to the observation of the High Court that the charge is bad for multiplicity. ,It not quite clear what the High Court me ant. If it meant that separate charges should be framed for different offenses there can be no objection; but if it meant that all these accused cannot be tried at the same trial then we have no doubt that it was in error. The High Court pointed out that this is an omnibus charge containing as many as 203 offenses and that it is 'in direct violation of sections 234, 235 and 239 of the Code of Criminal Procedure. No doubt, sub section (1) of section 234 provides that not more than three offenses of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. But then section 235(1) provides that if in any one series of acts so connected together as to form the same transaction more offenses than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Therefore, where the alleged offenses have been committed in the course of the same transaction the limitation placed by section 2314(1) cannot operate. No doubt, the offence mentioned, in charge No. 1 is alleged to have been committed not by just one person but by all the accused and the question is ' whether all these persons can be jointly tried in respect of all these offenses". To this kind of charge s.239 would apply. This section provides that the following persons may be charged and tried together, namely: (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused 'of an offence and persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different, offenses committed in the course of the same transaction. Clearly, therefore, all the accused persons could be tried together in respect of all the offenses now comprised in charge No. 1. We, however, agree with 201 Mr. Umrigar that it would be desirable to split up charge No. 1 suitably go that the accused persons will not be prejudiced in answering the charges and in defending themselves. The learned Judge has hold, following a decision of a single Judge in In re Venkataramaiah (1) that no charge of conspiracy is permissible for committing which the conspiracy was entered into and which had actually been committed. In that case the learned Judge had observed as follows at p. 132: "Where the matter has gone beyond the stage of more conspiracy and offences are alleged to have been actually committed in pursuance thereof, these two sections are wholly irrelevant. Conspiracy, it should be borne in, mind, is one form of abetment (see section 107 I.P.C.) and where an offence is alleged to have been committed by more than two persons, such of them as actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under section 109 I.P.C. The Explanation to section 109 makes this quite clear. An offence is said to be committed in consequence of abetment, when it is committed in pursuance of the conspiracy, and the abettor by conspiracy in made punishable (under section 109) with the punishment provided for the actual offence. " We are unable to accept this view. Conspiracy to commit an offence is itself an offence and a person can be separately charged with, respect to such a conspiracy. There is no analogy between section 120B and section 109 I.P.C. There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment. Offences created by section 109 and 120B, I.P.C. are quite distinct and there is no warrant for limiting the prosecution to only one element of con spiracy, that is, abetment when the allegation is that what a person did was something over and above that. Where,& number of offences are committed by (1) A.I.R. 1935 Mad. 130, 132. 202 several persons in pursuance of a conspiracy it is usual to charge them with those, offences as well as with the offence of conspiracy to commit those offences. As an instance of this we may refer to the case in section Swaminatham vs State of Madras (1). Though the point was not argued before this Court in the way it appears to have been argued before the Madras High Court and before the High Court of Andhra Pradesh, this Court did not see anything wrong in the trial of several persons accused of offences under section 120B and section 420 I.P.C. We cannot, therefore, accept the view taken by the High Court of Andhra Pradesh that the charge of conspiracy was bad. If the alleged offences are said to leave flown out of the conspiracy the appropriate form of charge would be a, specific charge in respect of each of those offences along with the charge of conspiracy. Before leaving this point we would like to refer to the decision in R. vs Dawson (2) which Mr. Umrigar very fairly brought to our notice, respondents being ex parte. In that case Finnemore J. who delivered the judgment of the Court observed: "Now with regard to the first count for con spiracy. . this court feels it is desirable 'Jo say something. This court has more than once warned of the dangers of conspiracy counts, especially these long Conspiracy counts, which one counsel referred to as a mammoth conspiracy. Several reasons have been given. First of all if there are substantive charges which can be proved, it is in general undesirable to complicate matters and to lengthen matters by adding a charge of conspiracy. Secondly, it can work injustice because it means that evidence, which otherwise would be inadmissible on the substantive charges against certain people, becomes inadmissible. Thirdly, it adds to the length and complexity of the case so that the trial may easily be well High unworkable and impose a quite intolerable strain both on the Court and on the jury. The learned Judges in fact quashed the conviction (1) A.I.R. 1957 S.C. 340, 343, 344. (2) [1960] 1 All. E.R. 558, 563. 203 for conspiracy in the case before them. We agree that it is not desirable to charge the accused persons with conspiracy with the ulterior object of letting in an evidence which would otherwise be inadmissible and that it is undesirable to complicate a trial by introducing a large number of charges spread over a long period. But then this is only a question of propriety and it should be left to the Judge or the magistrate trying the case to adopt, the course which he thinks to be appropriate in the facts and circumstances of the case. It cannot be said as a matter of law that such a trial is prohibited by the Code of Criminal Procedure. The High Court has further held that the learned Special Judge had no jurisdiction to try the offences under section 120B read with sections 466, 467 and 420 because he was appointed a Special Judge under the Criminal Law Amendment Act only for trying offences under the Prevention of Corruption Act. No doubt, he was appointed in the circumstances stated by the High Court, and therefore he will have that jurisdiction which he is competent to exercise under the Prevention of Corruption Act or the Criminal Law Amendment Act. Section 6 of the former provides that the State Government may appoint a Special Judge to try the following offences: (a) an offence punishable under section 161, section 165 or section 165A of the Indian Penal Code (Act XLV of 1860) or sub section (2) of section 5 of the Prevention of Corruption Act, 1947 (11 of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). Sub section (1) of section 7 provides that notwithstanding any. thing contained in the Code of Criminal Procedure, 1898 or in any other law the offences specified in sub section (1) of section 6 shall be triable by special judges only. Sub section (3) of section 7 provides that when trying any case, a special judge may also try any offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure, 1898 be charged at the same trial. 204 Clearly, therefore, accused No. 1 could be tried by the Special Judge for offences under 'section ' 120 B read With sections 466, 467 and 420 I.P.C. Similarly the other accused who are, said to have abetted these offences could also be tried by the Special Judge. The view of the High Court is thus erroneous and its directions with respect to these offences are set aside. The High Court has further held that the provisions of a 196A(2) of the Code of Criminal Procedure have not been complied with and therefore the charges in respect of offences under as. 466 and 467 could not be enquired into by the Special Judge; section 196A(2) of the Code of Criminal Procedure reads thus: "No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Indian Penal Code, (2) in a case where the object of the conspiracy is to commit any non cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years, or upwards, unless the State Govern ment, or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government, has, by order in writing, consented to the initiation of the proceedings: Offences under sections 466 and 467 are admittedly non cognizable and, therefore, it would seem from the plain language of sub section (2) that for the offences under section 120 B read with sections 466 and 467, I.P.C. the sanction of the Government will be necessary. Mr. Umrigar referred us to the decision in Durgadas Tulsiram Sood vs State (1) and said that since the object of the conspiracy was to cheat the Government, that is, to commit an offence under section 420 I.P.C. and the offences under as. 466 and 467 were only means to that end, the trial was not vitiated simply because no sanction was obtained for prosecuting the accused for offences of criminal conspiracy to commit non cognizable offences; under as. 466 and 467 I.P.C. We do not think it necessary to say anything on the point because in (1) I.L.R. 205 any case the case has to go back to the Special Judge for re framing the charges and there is time enough for the Government to consider whether it should accord sanction to the prosecution of the various accused for the non cognizable offences alleged to have been committed by them in pursuance of conspiracy, assuming of course, that sanction is necessary. In the result we allow the appeal and set.aside the order of the High Court and direct the Special Judge to, frame fresh charges and proceed with the trial. The matter has been pending for a long time and we direct that the trial will proceed with. all expedition. Appeal allowed. Retrial ordered.

The assessee, a Hindu undivided family, owned a tea estate in Assam comprising a tea garden, factories, labour, quarters, staff quarters etc. On February 27, 1942, the military authorities requisitioned all the factory buildings etc., under the Defence of India Rules but the tea garden, however, was left in the possession of the assessee. The possession of the military continued till the year 1945 and during that period, though the assessee looked after its tea garden, its business as tea growers and tea manufacturers could not be continued. Under the Defence of India Rules, the military authorities paid the assessee as compensation a sum of Rs. 2,22,080 for the year 1944, which included Rs. 10,000 for repairs to quarters for labourers, and a sum of Rs. 2,46,794 for the year 1945, which included Rs. 15,231 for repairs. For the assessment years 1945 1946 and 1946 47 the question arose as to whether the aforesaid sums or any portion thereof were capital receipts or were revenue receipts and liable to tax. The facts showed that the business, which the assessee had been carrying on, consisted in growing tea plants and in making tea out of the leaves by a manufacturing process into a commercial commodity, that without the factory and the premises the tea leaves could not be dried, smoked and cured to become tea, and that the result of the requisition of the factories was to stop the business. Held, that the amounts paid by the military authorities were received by the assessee not as compensation for the loss of profits of the business which it had been carrying on but for the injury to the business as a whole, because the entire structure of business was affected to such an extent that no business was carried on by the assessee during the two years in question. Accordingly, the compensation could not bear the character of profits of a business and was not liable to tax under section Io of the Indian Income tax Act, 1922. Income tax Commissioner vs Shaw Wiallace & CO., (1932) L.R. 59 I.A. 206, referred to and applied. Case law reviewed. 33 258

ition (Civil) No. 849 of 1987. (Under Article 32 of the Constitution of India). Petitioner in person and M.S.Ganesh for the petitioner. 442 K. Parasaran, Attorney General and Ms. A. Subhashini for the Respondents. The following order of the Court was delivered: O R D E R This application has been filed by an Advocate of this Court by way of a public interest litigation. It had been listed earlier and learned Attorney General had entered appearance on behalf of the Union of India. We have heard the petition. It has been couched in unsavoury language and the petitioner seems to have made an intentional attempt to indulge in mud slinging against the advocates, this Court in particu lar as also other constitutional institutions. Many of the allegations in his writ petition are likely to lower the prestige of this Court as the apex judicial institution. At one place in the writ petition, he has alleged: "Thus the working of the Judges are cocktail based on Western Common Laws and American techniques, as such unproductive and out dated according to socio economic conditions of the country. " At one another place, the petitioner has stated that: "This Court has become a constitutional liability without having control over the illegal acts of the Government . Thus the people for whom the Constitution is meant have now turned down their faces against it which is a did illusionment for fear that justice is a will of the Wisp." Yet at another place the petitioner has stated that this Court is sleeping over the issues like 'Kumbhkarna. ' The reading of the writ petition gives the impression that it is clearly intended to denigrate this Court in the esteem of the people of India. We are of the priam facie view that the petition has been drawn up with a designed purpose of bringing the Court into contempt and the petitioner is, therefore, prima facie guilty of contempt. The writ petition has been drafted in a careless manner. At several places the pleadings are meaningless. At several other places 443 they are contradictory. The allegations are clumsy and several irrelevant facts have been put into the petition to inflate its size. The petitioner has left out no institution from his attempt of mud slinging. We have a feeling that while drawing up the petition the petitioner has considered himself to be the only blemishless person and everyone else including social institutions to be blame worthy. We are surprised that an advocate practising in this Court with considerable experience has choosen to act in such an irresponsible manner. The writ petition, in our opinion, therefore, deserves to be dismissed. We, accordingly, dismiss the writ petition. We direct the Registry to draw up an appropriate proceeding for contempt and issue notice to the petitioner calling upon him to show cause in person on 9.11.1987 as to why he may not be proceeded under the Contempt of Court Act. At page 41 of his petition, the petitioner has stated. "This is a public interest litigation in the interest of independence of judiciary and social justice . " We are of the view that the petition is an act against public interest. The petitioner has certainly over stepped the limit of self restraint, so much necessary in a public interest litigation. We direct the Registry not to entertain any application by way of public interest litigation by the petitioner in future.

The appellant Chhotu Singh, who had been granted C.L. III licence for vending country liquor in Village Sawli, applied for permission to shift his liquor shop from Village Sawli to Village Narsi Chaurasta as there was very little demand for country liquor in Sawli with a small population. The Collector recommended the transfer of the shop of the appellant after making due enquiries contemplated in the guidelines laid down in the government circular dated April 27, 1984 for shifting shops. The State Government granted the permission applied for by the appellant. Upon the appellant 's shop being shifted to Narsi Chaurasta, the respondent No. S in the appeals, who already had a liquor shop in Narsi Chaurasta, challenged by a Writ Petition the permission granted by the Government to the appellant to shift his liquor shop to Narsi Chaurasta. The High Court allowed the Writ Petition, quashing the order of the Government granting permission for shifting the liquor shop, on the ground that the said permission had been granted without the criteria laid down in the Government circular dated March 18,1982 being duly considered. A review petition against the order of the High Court, allowing the Writ Petition, was dismissed. The appellant Chhotu Singh has moved the Court by special leave against the orders of the High Court, allowing the Writ Petition and dismissing the review application, and the only question for consideration in the matter is whether the permission granted by the State Government for shifting the appellant 's C.L. III liquor shop from Village Sawli to Village Narsi Chaurasta is supported by the guidelines laid down in the latest government circular dated April 27,1984, which has superseded all the previous such circulars. Allowing the appeals, the Court, 304 ^ HELD: The Collector had recommended permission for shifting the liquor shop of the appellant from Village Sawli to Village Narsi Chaurasta after making due enquiries, with regard to the shifting of the said shop, in accordance with the guidelines contained in the latest government circular on the subject, dated April 27, 1984, which had superseded the guidelines in the previous such circulars. The sanction accorded to the shifting of the appellant 's shop is not in breach of the said latest circular dated April 27, 1984 and it cannot be assailed as arbitrary. [306G, B; 307E, B C]

No. 71 of 1949. Appeal from a judgment and decree of the High Court of Judicature at Bombay dated 11th April, 1947, (Sir Leonard Stone C.J. and Chagla J.) in Appeal No. 39 of 1946 reversing the judgment and decree of Bhagwati J., dated 27th March, 1946, in Civil Suit No. 1373 of 1944 of the said High Court in its Original Jurisdiction. Rang Behari Lal (Rajeswar Nath Nigam, with him) for the appellants. M.C. Setalvad (Ram Ditta Mal and B. Sen, with hirn) for the respondents. December 21. The Court delivered judgment as follows : KANIA C.J. This is an appeal from a judgment of the High Court at Bombay. Although the record is heavy and many points were argued in the trial court and in the court of appeal at Bombay, the important point argued before us is only one. The appellants (plaintiffs) are a firm of commission agents in Bombay. The respondents (defendants) 982 were their constituents. Accounts between the parties in respect of their dealings were made up and settled up to the 30th of October, 1943. Piecegoods and yarn continued to be purchased and consigned by the plaintiffs to the defendants joint family firm thereafter. One bale of piecegoods was purchased and despatched in November, 1943. In January, 1944, restrictions were imposed against the consignment of piecegoods and/or yarn outside Bombay by rail without. obtaining the necessary previous permit from the Textile Commissioner at Bombay. On or about the 8th February, 1944, Mohanlal of the defendants ' joint family firm came to Bombay and the plaintiffs purchased on their behalf 278 bales of piecegoods. Ninetyfour out of those were despatched accord ing to the defendants ' instructions. The plaintiffs, accord ing to the defendants ' instructions, applied for and ob tained permit to consign several more bales. On the permits being issued they were despatched on 14th February, 1944, to destinations given by the defendants. On the 10th April, 1944, the plaintiffs, after obtaining the necessary permits, despatched more bales as directed by the defendants. The dispute between the parties relates to the remaining 92 bales which were stored in godown No. 424, Baroda Street, Argyle Road, Bombay, pending the receipt of permit for consigning the same On the 14th April, 1944, there occurred a big explosion in the Bombay harbour which destroyed several immovable proper ties and godowns with moveable property covering a large area near the port. Fires were caused by the explosion and they also caused considerable destruction of moveable and immoveable properties. These 92 bales purchased by the plaintiffs on account of the defendants were also destroyed either by the fire or the explosion. The plaintiffs filed a suit to recover the price of these 9 '2 bales from the de fendants on the ground of the agent 's right to indemnity. The defendants contended that the plaintiffs were their pucca adatiyas, that the property in the goods did not pass to them and that they were not liable for the price 983 till delivery of the goods was given to them. In the alter native, in para. 4 of their written statement, they pleaded that when Mohanlal of the defendants ' firm was in Bombay and the plaintiffs stated that the goods could not be railed until permits were obtained, it was agreed between the plaintiffs and the defendants that the defendants were to pay annas four per bale per month to the plaintiffs for insurance charges and the goods were thus to remain insured till despatched according to their instructions. In para graph 21 of their written statement, they contended that if their plea that the plaintiffs were pucca adatiyas was not accepted. and the plaintiffs were held to be their commis sion agents, the plaintiffs were guilty of negligence and misconduct in the business of agency, as in spite of specific instructions and agreement they bad failed to insure the goods. They contended that owing to this negli gence and misconduct the plaintiffs were not entitled to the indemnity claimed. In the alternative they contended that the plaintiffs were liable to make good the loss caused to the defendants by their failure to insure the said bales. They contended that they were entitled to set off this loss against the claim for the price. They also counterclaimed the same amount if their set off was not allowed. On these pleadings the parties went to a hearing. Issue to covered the defendants ' plea about the plaintiffs ' negligence and misconduct in not insuring the 92 bales and the counter claim arising therefrom. Numerous witnesses were called before the trial court and the learned judge after considering their demeanour and hearing their evidence came to the conclusion that the plaintiffs ' witnesses were unreliable, except when they were corroborated by documentary evidence. He also disbelieved the defendants ' evidence. He held that the agreement to insure the goods was not proved and passed a decree in favour of the plaintiffs. On appeal, differing from the view of the trial court, the appeal court held that instruc tions were given by Mohanlal to insure the goods and that 984 the agreement was proved. In thus differing from the trial court 's decision, they accepted the well recognised princi ple to give full weight to the trial judge 's observations about the witness. They however found that on the documents the view of the learned trial judge was not correct. In doing so, they principally relied on statements of account sent by the plaintiffs to the defendants in respect of bales purchased in February, 1944, and despatched by them out of the lot of 278 bales previously and where the plaintiffs had charged the defendants insurance premia at the rates men tioned in the defendants ' written statement. They rejected the plaintiffs ' explanation, which was accepted by the trial judge, that these entries were foolishly made out of cupidity by the plaintiffs. After a brief discussion in which this point was halt ingly urged before us, the learned counsel for the plain tiffs did not very properIy dispute this conclusion of the appeal court. In our opinion, the finding of the appeal court, having regard to the documents, was correct. That left for decision the important question of damages to which the respondents were entitled. Before the appel late court in Bombay, it was conceded by the respondents ' counsel that the insurance which was to be effected by the appellants under the agreement was on the usual terms of fire insurance policies prevalent in Bombay. Clause 7 of that form of policy, inter alia, provided as follows : "Unless otherwise expressly stated in the policy, this insurance does not cover. (h) any loss or damage occasioned by or through or in consequence of explosion but loss or damage by explosion of gas used for illuminating or domestic purposes in a building in which gas is not generated and which does not form part of any gaswork will be deemed to be lost by fire within the meaning of this policy " The appellants urged that granting that they were in default and had committed a breach of duty in not 985 insuring the goods according to the instructions or the agreement, the respondents could not recover anything from them due to damage arising from the explosion, because the policy of fire insurance, if taken out, would not have given to the respondents the money claimed by them. For this purpose they relied on a statement n Mayne on Damages, (11th Ed.) at page 592, as follows : "Therefore if an agent is ordered to procure a policy of insurance for his principal and neglects to do it, and yet the policy, if procured, would not have entitled the princi pal, in the events which have happened, to recover the loss or damage, the agent may avail himself of that as a complete defence. " In the present case, after the explosion considerable discussion about the liability of the insurance companies under their policies of fire insurance and the liability of Government for alleged negligence in unloading high explosives from a ship on the docks appears to have taken place. On the 1st of July, 1944, the Governor General pro mulgated the Bombay Explosion (Compensation) (Ordinance, 1944. The preamble to that Ordinance runs as follows: " Whereas an emergency has arisen which makes it neces sary to provide for and regulate the payment of compensation for. damage to property due to, or arising out of, the explosions and fires which occurred in the Bombay Docks on the 14th April, 1944, to restrict litigation in connec tion with the said explosions and fires and to make certain other provisions in connection therewith. " The other relevant provisions may be also noticed at this stage. Uninsured property was defined to mean property which was not covered whether wholly or partially by any policy of fire, marine or miscellaneous insurance at the time of the explosion. After providing for the procedure according to which compensation may be claimed and dealt with by the Claims Committee to be set up under the Ordi nance and an appeal and review from their decision, section 14 provided as follows : 986 14. "Subject to the provisions of this Ordinance, there shall be paid by the Central Government compensation for explosion damage to property being (a) damage caused by fire to property insured whether wholly or partially at the time of the explosion against fire under a policy (other than a policy of marine insur ance) covering fire risk, or damage caused by blast without fire intervening to property insured whether wholly or partially at the time of the explosion under a pollcy (other than a policy of marine insurance) covering fire and explo sion risks, of an amount equal to the proved loss, or (b) damage caused by blast without fire intervening to property insured whether wholly or partially at the time of the explosion against fire under a policy (other than a policy of marine insurance) covering fire risk but not explosion risk, of an amount equal to 871/2 per centum of the proved loss, to the holder of the policy of insurance covering the damaged property, or if he is deceased, to his legal representatives. Section 15 provided for contribution by the insurers towards the payment of amounts to be paid under the Ordi nance. Section 18 of the Ordinance runs as follows : 18. (1) Nothing in this Ordinance shall prevent the recovery of compensation for death or personal injury under the (V/11 of 1923), or under any policy of life insurance or against personal accident or under any other contract or scheme providing for the payment of compensation for death or personal injury, or for damage toproperry under any policy ' of marine or miscel laneous insurance. (2) Save as provided in sub section (1), no person shall have, or be deemed ever to have had, otherwise than under this Ordinance any right whether in contract or in tort or otherwise to any compensation or damages for any death, personal injury or damage to or loss of any property, rights or interests, due to or in any way arising out of the explo sion; and no suit or other 987. legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any Court against the Crown or the Trustees of the Port of Bombay or the Municipal Corporation of the City of Bombay or against any servants or agents of the Crown or of the said Trustees or Municipal Corporation or againt any other person whomso ever; and no act or omission which caused or contributed to the explosion shall be deemed to have been done or omitted to be done otherwise than lawfully. (3) No suit, prosecution or other legal proceeding whatsoever shall lie against any person for anything in good faith done or ordered to be done in combating or mitigating the effects of the explosion, or for anything in good faith done or intended to be done in pursuance of this Ordinance or any rules or orders made thereunder. " It is common ground that in respect of uninsured merch andise fifty per cent. compensation was to be paid under the Ordinance. The appellants have recovered that amount and have now agreed to give credit of the same to the re spondents. The dispute is in respect of the remaining fifty per cent. It is not disputed that if the goods had been insured, under section 14 of the Ordinance, full compensa tion would have been recovered by the appellants and become payable to the respondents. The appellants ' contention is two fold. Firstly, that if they had insured the goods the ordinary fire insurance policy would not have covered the risk and therefore al though they had committed a breach of the agreement or been negligent in their duty as agents, they were not liable to pay anything more to the respondents. In the alternative it was argued on their behalf that the intervention of Govern ment in passing this Ordinance could not increase or add to the liability of the appellants for the breach of contract or breach of duty and therefore they were not liable to pay the compensation which would have been receivable by the respondents if the goods had been 988 insured. The second contention is that the counterclaim of the respondents is barred under section 18 (2) o[ the Ordi nance. In the Indian Contract Act, sections 211 and 212 provide for the consequences of an agent acting otherwise than according to his duty towards the principal. Under section 211 when an agent conducts the business of the principal otherwise than according to the directions given by the principal, ii any loss be sustained he must make it good to his principal and if any profit accrues he must account for it. In Smith vs Lascelles(1), it was held that if an agent was instructed to insure goods and neglected to do so he was liable to the principal for their value in the event of their being lost. Section 212 of the Indian Con tract Act provides as follows : "An agent is always bound to act with reasonable dili gence and use such skill as he possesses; to make compensa tion to his principal in respect of the direct consequences of is own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill or misconduct. " These sections make it clear that in case of the agent 's negligence he is liable to make good the damage directly arising from his neglect but not indirectly or remotely caused by such neglect or misconduct. The question there fore is whether in the present case the claim of the re spondents based on the neglect or misconduct can be stated to be a direct consequence of such neglect or misconduct or is only indirectly or remotely caused by such neglect. Two positions can be visualized as arising from the appellants ' neglect in this case. The appellants could be treated either as insurers themselves or can be considered as having agreed to cause the goods insured by a recognised insurance company on the usual fire insurance policy terms. In Tickel vs Short(2), the Lord Chancellor shortly stated the proposition of law in these terms : " The rule of equity is, that if an order (1) ; (2) 2 Ves. Sen, 239. 989 is sent by a principal to a factor to make an insurance; and he charges his principal, as i[ it was made; if he never in fact has made that insurance, he is considered as the insur er himself" If therefore, as in the present case, the appel lants were given instructions to insure the goods and they charged the respondents as if they had insured the goods, the law would throw upon them the liability of an insurer as if they stood in the position of insurers, i.e., the Court will then be entitled in equity to proceed on the footing as if an insurance had been effected by the appellants and the goods stood covered under a fire insurance policy. Whatever consequences follow from that position must be accepted and enforced in a court of equity against the appellants. Proceeding on that line of reasoning under section 14 of the Ordinance the only thing which is required to be considered is whether the goods were covered by a fire insurance policy. The terms of the policy are immaterial. If, therefore, the appellants are considered as having insured the goods and are precluded from saying that the goods were not covered by a fire insurance policy, the loss arising from the fact that the goods were not so covered is a direct consequence of their neglect and they must make it good. That will make them liable to pay what was claimed by the respondents. If, however, it is considered that they were not them selves insurers but that they had agreed only to keep the goods insured under a policy of insurance of a recognised insurance company on the usual fire insurance policy terms, the question is whether the damages claimed by the respond ents directly flow from their neglect of duty in not being able to produce such a fire insurance policy. Our attention has been drawn to an instructive judgment which makes the distinction between direct and remote damages clear. In In Re An Arbitration between Polemis & another and Furness Withy & Co. Ltd.(1) there is a discussion on this point in the judgment of Banks L.J. He drew attention to the obser vations of Lord Sumner in Weld Blundell vs 990 Stephens (1), who observed as follows: "What are natural, probable and necessary consequences ? Everything that hap pens, happens in the order of nature and is therefore natu ral. Nothing that happens by the free choice of a thinking man is necessary except in the sense of pre destination. To speak of probable consequences is to throw everything upon the jury. It is tautologous to speak of effective cause or to say that damages too remote from the cause are irrecover able, for an effective cause is simply that which causes, and in law, what is ineffective or too remote is not a cause at all. I still venture to think that direct cause is the best expression. . . What a defendant ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty of negligencee that is, of want of due care according to the circumstances; This however goes to capability, not to compensation. " Banks L.J., after noticing the above observations, stated as follows : " Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellants ' junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act. . I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the duty damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant," The question of what is remoteness of damages in a case of negligence has been reviewed in detail in a recent deci sion of the House of Lords in Monarch Steamship Co. Ltd. vs Karlshamns Oljefabriker(2). In that case the question arose in respect of damages due to the late delivery of goods shipped for a port in Sweden, but which ship, owing to its unseaworthiness, was delayed in its voyage and owing to the outbreak of war (1) (2) , 991 under orders of the British Admiralty, was directed not to proceed to the Swedish port but ordered to discharge the cargo at Glasgow. The assignees of the bills of lading from the shippers had to forward the goods in neutral ships chartered for the purpose to the Swedish port. A war risks clause in the charterparty exonerated the owners of the vessel in the event of compliance with any orders given by the government of the nation under whose flag the ship sailed, as to destination delivery or otherwise. The hold ers of the bills of lading claimed the re transport charges from Glasgow to the Swedish port. It was contended that these damages were too remote. The House of Lords rejected the contention. In the speech of Lord Wright most of the relevant authorities have been reviewed and the ratio decidendi has been set out. In Hadley vs Baxendale (1) Alderson B., giving the judgment of the CoUrt, thought that the proper rule in such a case consisted of two alternatives. He said: "Where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." In the opinion of Lord Wright this in truth gives effect to the broad general rule of the law of damages that a party injured by the other party 's breach of contract "is entitled to such money compensation as will put him in the position in which he would have been but for the breach." This rule was stated by Lord Blackburn in Livingstone vs Rawyards Coal Co. (2) as follows : "Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, (1) ; (2) , 39. 992 or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. " The 'rule stated by Alderson B. has consistently been accepted as correct;the only difficulty has been in applying it. The distinction drawn is between damages arising naturally (which means in the normal course of things) and cases where there were special and ex traordinary circumstances beyond the reasonable prevision of the parties. The dis tinction between these types is usually described in English Law as that between generaland special damages; the latter are such that if they are not communicated it would not be fair or reasonable to hold the defendant responsible for losses which he could not be taken to contemplate as likely to result from his breach of contract. Viscount Haldane L.C. in The British Westinghouse Electric & Manufacturing Co. Ltd. v, The Underground Electric Railways Co. of London (1), on the question of damages said :In some of the cases there are expressions as to the principles governing the measure of general damages which at first sight seem difficult to harmonize. The apparent discrepancies are, however, mainly due to the varying nature of the particular questions submitted for decision. The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance.in dealing with particular cases. The Judges who give guidance to juries in these cases have necessarily to look at their special character, and to mould, for the purposes of different kinds of claim, the expression of the general principles which apply to them and this is apt to give rise to an appearance of ambiguity. .It was necessary to balance loss and gain and no simple solution was possi ble. " The House of Lords in Liesbosch (Owners) vs Edison (Owners) (2) has stated at page 463 that it is impossible to lay down any universal formula. The dominant rule of law is the principle of restitutio in integrum and subsidiary rules can only be justified if (1) 689. (2) ; , 993 they give, effect to that rule. (The italics are mine). In Smith, Hogg & Co. Lid. vs Black Sea & Baltic General Insurance Co. Ltd. (1), the loss of a vessel occurred through the negligence of the master operating on conditions of unseaworthiness existing since the com mencement of the voyage. The loss was held to be caused by the breach of the warranty of seaworthiness and recoverable accordingly. There was an exception of negligence. At page 1005 in the judgment of that case it is stated "no distinction could be drawn between cases where the negligent conduct of the master is a cause and cases where any other cause, such as perils of the sea, is a co operating cause. A negligent act is as much a co operating cause if it is a cause at all. , as an act which is not negligent. " What was then being emphasized was that a voluntary act (negligent or not) of a human agent is not generally an independent or new cause for this purpose which breaks the chain of causation, as it is called, so as to exclude from consideration the causal effect of the unsea worthiness. In that case it was held that the unseaworthi ness created in the vessel instability which, combined with negligence of the master, caused the loss. No new law was laid down in that case. Similarly in The Standard Oil Co. o[ New York vs Clan Line Steamers Ltd. C"), the vessel capsized because the master not being instructed by his owners as to the peculiarities of a turret ship, so handled her that she capsized. That loss was immediately due to perils of the sea which overwhelmed her when she capsized, liability for which was excepted, but the dominant cause was her unseaworthiness in that her master, though ' otherwise efficient, was inefficient in not being aware of the special danger. In general, all the authorities are in agreement in this respect and embody the same rule. TIm shipowner, of course, under the familiar general rule, is debarred by his breach of duty from relying on the specific exception. Though he would not be liable for the conse quences caused by the specific excepted peril or the acci dent alone if he (1)[1940] A.G. 997. (2) 994 were not in default, though the unseaworthiness existing at the commencement Of the voyage might not be operative or known until the time when the accident occurs, yet then the breach of the warranty operates directly as a cause and, indeed, a dominant cause. Causation in law does not depend on remoteness or immediacy in time," These observations meet the appellants ' contention about the Government Ordinance intervening to fix the damages. They show that such inter vention does not break the chain of causation, nor does it make the loss, i.e., damages, remote. The statement of law in Mayne on Damages quoted above, only reproduces the prin ciple of law stated by Lord Blackburn in Livingstone vs Rawyards Coat Company(1). Bearing in mind this state of the law itappears clear that in the present case it was the duty of the appellants to insure the goods, as they had agreed to do. Once miscon duct is admitted or proved, the fact that the Ordinance did not exist and could not have been in the contemplation of the parties is irrelevant for deciding the question of liability. The liability was incurred by reason of the breach of their duty and the appellants made themselves liable to pay damages. The measure of damages was the loss suffered by the respondents on account of the goods not being insured. The next point to be decided is what differ ence the promulgation of the Ordinance makes in the liabili ty of the appellants. The relevant provisions are noted above. The scheme of the Ordinance clearly is, as stated in the preamble, to provide for and regulate the payment of compensation and to prevent litigation, amongst other things. It is thus a comprehensive legislation which re places the rights of parties either under the policy of insurance against insurance companies, or on the ground of negligence against Government by the owners of the goods, as also claims by insurance companies against Government. The validity of this legislation is not challenged. Section 18 gives it a retrospective effect. Therefore the Ordinance only (1) 995 substitutes a new basis for assessing compensation for the ordinary basis for assessing unliquidated damages. The compensation under the Ordinance is payable on proof of the existence of a fire insurance policy irrespective of the terms of the policy. The non recovery of half the amount of the respondents ' claim from the Government under the Ordi nance because of the absence of a fire insurance policy, thus directly arises from the neglect of the appellants to insure the goods, as they had been instructed to do or agreed to do and which in fact they represented that they had done. In our opinion, these are not indirect or remote damages. The contention that under the policy of insurance the assured could not have recovered anything for loss caused by the fire due to explosion cannot be accepted. Firstly, this contention of the assured 's inability to receive any compen sation because of clause 7 of the form of common policy was not raised in the trial court. No issue was raised in re spect thereof and no arguments in support or against it were heard. It was suggested for the first time, as appears from the judgment of Chagla J., in the court of appeal. The assumption that because of clause 7 of the policy no insur ance company would have paid the loss cannot be assumed to be necessarily and unquestionably sound and in view of the terms of the Ordinance not capable of being determined. There appears no reason under the circumstances to proceed as if an adverse decision on the interpretation of the policy had been given against the respondents and to hold the appellants free from liability for not recovering half the value of the goods which could have been recovered if the goods had been insured (irrespective of the terms on which the policy stood) as agreed to be done by them. I do not think when the relations between the parties are of a principal and an agent and the agent is found to have com mitted a breach of his duty, it is correct to take a narrow view of the situation. The agent chose to gamble in not insuring the goods and desired to charge the agreed premia, on the footing that the goods were covered by insurance. If so, he must take the 996 consequences of his default. The argument that their li ability as an agent who had agreed to insure should be ascertained as on the date of the explosion is no answer to the claim of the respondents. The position would be this. Assuming that the appellants had insured the goods on the terms of the usual fire insurance policy. the respondents could ask them either to assign the policy to the respond ents or to file a suit against the insurance company con tending that the fire, and not the explosion, was the; cause of the loss and was covered by the policy of insurance. Before the Court could decide the rights of the parties, the Ordinance promulgated by the Governor General prevented the decision of the dispute, but the Government undertook to pay the loss on the footing that the policy covered the risk. Tile misconduct gave rise to the liability to make good the damage and to put the respondents in the same position in which they would have been if their goods had beeen insured. On behalf of the appellants it was urged that because of the Government intervention in issuing the Ordinance they were sought to be made liable under a new liability. Their liability has been and exists on the basis that a fire insurance policy existed, as they were instructed to insure the goods and which they represented they had done. The liability arises not because of the Ordinance but because of the breach of their duty in failing to insure, which has taken place apart from the Ordinance and which is not af fected by the Ordinance. The utmost that they could urge is that the extent of their liability arising from their mis conduct was not anticipated by them when they agreed to perform their duty. That however is no defence in law if the damages directly flow from the breach of duty. The Ordinance only quantifies the damages instead of leaving the unliqui dated damages to be assessed in the usual way. The Ordi nance lays down the yardstick for fixing the damages under different circumstances, which cover all alternative situa tions, and the liability for failure to insure must now be measured by the new basis. It does not create any new li ability. 997 The appellants ' contention on this point therefore must be rejected. The only other point urged before us was based on the construction of section 18 of the Ordinance. It was argued on behalf of the appellants that apart from what could be recovered under clause (1) of section 18, the Ordinance extinguished all right, whether in contract or tort or otherwise, to any compensation or damage for loss of an), property due to, or in any way arising out of, the explosion and provided that no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any court against the Crown or against any other person whatsoever. It was urged that in establishing their claim, the respondents must plead the right to recover the amount due to explosion and that was barred under sec tion 18 (2). In our opinion, this contention is unsound. The appellants have filcd this suit to recover the price of the goods on the ground of indemnity. The respondents ' answer is that the appellants are not entitled to the indem nity because they are guilty of a breach of duty in the business of the agency. They contend that they would be liable to pay for the goods only if the appellants give them the goods or deliver the same according to their instruc tions. They counterclaim that if the appellants are unable to give them the goods, they must pay them the value there of. The appellants plead by way of defence to the counter claim that the goods were destroyed without any neglect on their part by fire caused by the explosion and therefore they were not liable. The respondents ' rejoinder is that they had asked the appellants to insure the goods and if the appellants had not failed in their duty they would have reimbursed the respondents. The appellants then plead that even if they had insured the goods the respondents could not have recovered anything from the insurance companies. It is in reply to this contention that the respondents say that the appellants ' liability to recover money from the insur ance company on the terms of the usual fire insurance policy is irrelevant 998 because they could have recovered the money if they had insured in fact, irrespective of the terms of the policy, under the Ordinance. The respondents are not thus claiming to recover money from the appellants otherwise than under section 18 (1) of the Ordinance. Their cause of action is the misconduct of the agent in the business of agency and is quite different. It is not for compensation arising from explosion. It was argued that damages formed part of the cause of action of the respondents in framing the counterclaim and therefore section 18 (2) stood in the way of the respond ents. The contention is unsound because the cause of action is completed by the averment that there was a duty or agree ment to insure, that there was a failure to perform that duty, that loss had occasioned to the respondents because of the failure to perform the duty and the appellants were therefore liable for the breach of the duty. The quantum of damages is not a part of the cause of action. It is a matter to be ascertained by the court according to well laid down principles of law. The result is that the appeal fails and is dismissed with costs. PATANJALI SASTRI J. I regret I am unable to agree with the judgment just delivered by my Lord which I have had an opportunity of reading. As the facts of the case have been fully stated in that judgment it is unnecessary to re state them here. The main question arising for determination is what damages are the appellants liable to pay to the respondents for their failure to insure the respondents ' goods which were destroyed by fire caused by the big explosions which occurred in the Bombay Docks on 14th April, 1944 ? The goods had been purchased by the appellants in Bombay as the commission agents of the respondents and were left in their godowns pending their despatch to the respondents ' place of business. It was found by the appellate bench of the Court below that the appellants had agreed to keep 'the goods insured against fire while in their custody 999 and had debited the respondents in their books with the insurance charges. A suggestion was made in the course of the arguments before us that the appellants agreed to be the insurers themselves, but the findings of the appellate bench leave no room for doubt that all that the appellants agreed to do was to procure a policy of fire insurance in the ordinary or common form and subject to the conditions usual ly stipulated in that form of policy. This is also made clear by the concession of the respondents ' counsel in the court below that "he was only relying on the agreement to the extent that the insurance was to be effected against fire on an ordinary fire insurance policy". It is common ground that one of the general conditions in that form of policy is that "it does not cover" among others any loss or damage occasioned by or through or in consequence of explo sion". Relying on that condition, it was contended for the appellants that even if they had effected an insurance on the goods according to the agreement, the loss of the goods by fire caused by the explosion would have been an excluded loss for which no damages could have been claimed from the insurer and that, therefore, the respondents would not be entitled to recover from the appellants anything more than nominal damages for failure to insure. This contention must, in my opinion, prevail. As pointed out by Mr. Mayne in his Treatise on Damages (p. 591, 11th Edition) "When the agent can show that under no circumstances could any benefit to the principal have followed from obedience to his orders, and therefore that disobedience to them has produced no real injury, the action will fail. There fore, if an agent is ordered to procure a policy of insurance for his principal, and neglects to do it, and yet the policy, if procured, would not have entitled the principal, in the events which have happened, to recover the loss or damage, the agent may avail himself of that as a complete defence." A complication, however, is introduced by an Ordinance promulgated by the Governor General known as the Bombay Explosion (Compensation) 1000 Ordinance (No. 32 of 1944) which came into force on 1st July, 1944. The preamble states ',Whereas an emergency has arisen which makes it necessary to provide for and regulate the payment of compensation for. . damage to property due to, or arising out of, the explosions and fires which occurred in the Bombay Docks on 14th April, 1944, to re strict litigation in connection with the said explosions. ". By section 2 "the explosion" is defined as meaning "the explosions which occurred in the Bombay Docks on 14th April, 1944, and the fire. which ensued there from. " An "explosion damage" is defined as "damage which occurred, whether accidentally or not, as the direct result of the explosion. " "Uninsured proPerty means "pro perty which was not covered whether wholly or partially by an policy of fire, marine or miscellaneous explosion" Section 14 insurance at the time of tile 1 . . so far as it is material here, provides that "there shall be paid by the Central Government compensation for explosion damage to property, being damage caused by fire to property insured whether wholly or partially at the time of the explosion against fire under a policy covering fire risk. of an amount equal to the proved loss. "Section 15 provides for coutribution to Government by insurance compa nies. Section 16 provides for compensation for such damage to uninsured property on a certain scale mentioned in that section. Section 18(2) enacts, subject to certain exccep tions not material here, "no person shall leave, or be deemed ever to have had, otherwise than under this Ordinance any right, whether in contract or in tort or otherwise to any compensation or damages for any. or damages to or loss of any property, rights or interests. due to or in any way arising out of the explosion; and no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid. be maintainable in any court against the Crown. or against any servants or agents of the Crown . or against any other person whomsoever; and no act or omis sion which caused or contributed to the explosion shall be deemed to have been done or omitted to be done otherwise than lawfully. " 1001 It is admitted that the appellants recovered from the Central Government under section 16 nearly one half of the value of the goods destroyed by fire while in their custody as compensation fox ' the loss of the respondents ' goods and have given credit to the respondents in their ac counts for the amount thus received. The dispute now re lates to the respondents ' claim to the balance of the value of the goods as damages for the appellants ' failure to keep them insured according to the agreement between the parties as the full value of the goods and have been obtained from the Government under section 14 without regard to any ex cepted risk if only they had been insured against fire. The scheme of the Ordinance appears to be that the Government, instead of having probably to fight out numerous law suits for compensation for loss or damage to property based upon alleged negligence of their officers in having allowed the explosion to take pleace, undertook to pay an amount equal to the "proved loss" in cases of loss or damage to goods which had been insured against fire, etc. and smaller amounts for loss or damage to uninsured goods, putting an end, at the same time, to all rights to compensation or damages arising out of the explosion, and barring all suits or legal proceedings for the same. On the basis of these provisions it was contended on behalf of the respondents that the appellants, by reason of their failure to keep the goods insured, were liable under the law to place the respondents, who had suffered the loss, in the same position as if the appellants had performed their agreement or carried out the instructions of the respondents. Learned counsel for the respondents based the claim on the neglect of duty on the part of the appellants as commission agents in carrying out the instructions of their principals, and relied on the provisions of section 212 of the Indian Contract Act, which provides, inter alia, that an agent is bound "to make compensation to his princi pal in respect of the direct consequence of his own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely 1002 caused by such neglect, want of skill or misconduct. " On the other hand, it was urged on behalf of the appellants that the question had to be determined on the basis of a breach of contract for the consequences of which provision is made in section 73 of the Indian Contract Act. That section says that "when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which natural ly arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote or indirect loss or damage sustained by reason of the breach. " I do not think that it makes much difference, so far as the assessment of general damages is concerned, whether the default of the appellants is treated as a breath of contract between two contracting parties or a neglect of duty by agents in failing to carry out the instructions of their principal. Although the Indian Contract Act makes separate provisions for the consequences in each case, the rule laid down as to measure of damages is s the same, namely, the party in breach must make compen sation in respect of the direct consequences flowing from the breach and not in respect of loss or damage indirectly or remotely caused, which is also the rule in English common law. The rule is based on the broad principle of restitutio in integrum, that is to say, that the party who has suffered the loss should be placed in the same position, as far as compensation in money can do it, as if the party in breach had performed his contract or fulfilled his duty. That principle was once carried to its utmost logical, if gro tesque, result as in an old English case to which Willes J. referred in British Columbia Saw Mill Co. vs Nettleship(1): ' ' Where a man going, g to be married to an heiress, his horse having cast a shoe on the journey, em ployed a blacksmith who did the work so unskilfully that the horse was lamed, and the rider not having (1) L. L. , 508 1003 arrived in time the lady married another; and the blacksmith was held liable for the loss of the marriage. " And the learned Judge warned "We should inevitably fall into a similar absurdity unless we applied the rules of commonsense to restrict the extent of liability for the breach of a contract of this sort." The commonsense point of view was thus put by Lord Wright in Liesbosch, Dredger vs Edison S.S. (Owners)(1): ,, The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection because 'it were infinite for the law to judge the cause of causes, ' or consequence of consequences. Thus the loss of a ship by collision due to the other vessel 's sole fault may force the shipowner into bankruptcy and that again may involve his family in suffering, loss of education or opportunities in life, but no such loss could be recovered from the wrongdo er. In the varied web of affairs the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons. " These considera tions have led the courts to evolve the qualifying rules of remoteness subject to which alone the broad principle of restitutio in integrum now finds its application. Applying these principles to the facts of the present case, what is the position ? The respondents lost their go ods by fires arising out of the explosion presumably due to the negligent conduct of the Government 's officers or serv ants at the docks. Even if the appellants had taken out a fire insurance policy in ordinary form it would not have covered the loss, for fire due to explosion would be an excepted peril. So, the appellants ' failure keep the goods insured produced no direct consequence for which damages could in law be claimed. It is true enough to say that if the appellants had taken out a fire policy covering the goods, the respondents could have obtained the full value of the goods from the Government. But did the respondents ' inability to recover such full value from the Government arise directly or naturally in the usual course ; 1004 of things out of the appellants ' failure to insure? I think not, since independent and disconnected events had to occur to produce the result, viz., the Government 's scheme of compensation embodied in the Ordinance, the agreement with the Insurance Companies regarding their contribution, and the consequent distinction made between insured and unin sured property in providing compensation for their loss. Suppose the fire was caused by an explosion due to the negligence of a private individual. The respondents would have their remedy by suing him for damages. But if he was insolvent, could the respondents ' inability to recover damages from him be a direct and natural consequence of the appellants ' failure to insure ? Surely not, for even if the appellants had insured the goods according to their agree ment with the respondents, the latter would be in no better position. Here, the Government, presumably being satisfied, or at any rate apprehending, that the explosion was due to the negligence of their servants, got the Ordinance passed providing for payment of compensation by the Government on the terms stated therein and at the same time putting an end to all rights to recover compensation save as provided in the Ordinance and barring all suits and other proceedings for that purpose. As any claim to compensation against the Government must be based upon the negligence of their serv ants, the Government took no note of excepted risks in insurance policies and undertook liability to pay full compensation in case of all insured property, doubtless because, under an arrangement with certain Insurance Compa nies the Government obtained a proportionate contribution as provided for in section 15, though on the hypothesis of their servants ' negligence their liability in law would be the same in respect of insured and uninsured property. if the Ordinance had provided for partial compensation in both cases, as it would probably have done if the Insurance Companies had not agreed to come into the scheme with their contributions, the respondents could have no claim to recov er the balance from the appellants, 1005 notwithstanding that the supposed direct causal connection between the appellants ' default and the respondents ' loss would still be there. The truth is there was no such con nection and it was because of the provisions of the Ordi nance which made a distinction between insured and uninsured property in the matter of compensation for explosion damage, and barred rights and remedies under the general law in relation theretto, that the respondents were unable to recover the balance of the value of their goods destroyed by fire. But such inability cannot be regarded as flowing naturally or directly from the appellants ' default. It was suggested that the provisions of the Ordinance must be taken to have displaced the ordinary rules of law as to remoteness of damage, as section 18 (2) extinguished, retrospectively from the date of the explosion, all rights and remedies under the general law for obtaining compensa tion for explosion damage and substituted the rights therein provided. The substituted right to compensation, so far as the Government and insured property were concerned, was not subject to any restrictive conditions in the policies, and therefore, it was claimed, the measure of damages in this case must be determined irrespectively of the existence of the clause excluding "explosion" from the scope of the common form of policy. The argument is, m my opinion, more ingenious than sound. The short answer to it is that the Ordinance did not purport to displace or supersede any rule of law as to measure of damages or to amend or abrogate any terms in insurance. policies. There is nothing in the Ordinance to indicate that the clause excepting explosion contained in the fire insurance policies issued in Bombay should be deemed to be null and void. As already stated, the Government, having accepted liability for explosion damage, were not really concerned with the restrictive conditions in the policies. Their liability did not arise out of such policies. In view of certain Insurance Compa nies having agreed to contribute a certain proportion, the Government undertook liability 1006 to pay full compensation for loss of insured property regardless of the terms o[ insurance, which had no relevance to the liability which they assumed. To suggest, in such circumstances, that the clause excepting explosion risk in all fire policies issued in common form in Bombay was legis latively abrogated is, in my opinion, extravagant and far fetched. The respondents ' goods were destroyed when the explosion occurred on the 14th April, 1944, and on that date they could have recovered nothing except perhap snominal damages for the appellants ' failure to insure the goods as they agreed to do. It is difficult to see how by virtue of the Ordinance passed more than two months later, their claim against the appellants, which the re spondents themselves are contending is not in any way af fected by the provisons of the Ordinance, could become enlarged. The next contention raised on behalf of the apellants before us relates to the maintainability of the respondents ' coun ter claim The contention is based upon section 18 (2) of the Ordinance which provides that "no suit or other legal proceedings for any such compensation or damages" (i.e., compensation or damages for any damage to or loss of any property, rights or interests due to or in any way arising out of the explosion)"shall, save as aforesaid" (exception snot material here) "be maintainable in any court against the Crown . . or against any other person whoms oever. ". The learned Chief Justice in the Court below makes no reference in his judgment to this contention, but Chagla J. repelled it thus. "Now, in my opinion, the defendants ' claim does not arise out of the explosion nor is it in any way due to the explosion. The plaintiffs have filed the suit as agents on an indemnity and the defendants ' answer is that they were entitled to set off against the amounts due to the plaintiffs, the loss incurred by them by reason of the fact that the plaintiffs as the defendants ' agents did not carry out the defendants ' instructions. If the plaintiffs ' claim on the indemnity does not arise out of the explosion equally so does the defendants ' set 1007 off not so arise. The defendants ' cause of action is fail ure by the plaintiffs to carry out their instructions and that cause of action has nothing whatever to do with the explosion '". With all respect I find it difficult to follow this reasoning. The appellants ' claim on the indemnity does not certainly arise out of the explosion, for their case is that they purchased the goods in question paying the price on the respondents ' instructions, and they claim to recover the price so paid notwithstanding the destroction of the goods by fire for which they say they were in no way respon sible. But the basis of the respondents ' counter claim is quite different. They say that if the appellants had kept the goods insured according to the agreement, they (the respondents) could have recovered the full value of the goods from the Government under section 14 of the Ordinance, and the appellants, having failed to do so, are liable to pay by way of damages the balance of the value of the goods. It is a little difficult to see how it could be said that the respondents ' claim "does not arise out of the explosion nor is it in any way due to the explosion". The bar under section 18 is not based upon the nature of the cause of action for the suit or proceeding barred, but upon the damage or loss of property having been "due to or in any way arising out of" the explosion. Indeed, the respondents appear to my mind to be in a dilemma in regard to this point. They must necessarily say, in order to have been able to claim the full value of the goods from the Government if they had been insured, that the damage to the goods was "explosion damage to property, being damage caused by fire to property insured whether wholly or partially at the time of the explosion against fire under a policy covering fire risk". For, unless they said that, no claim could be made against the Government under section 14, and so the very basis of their claim against the appellants that, but for the appellants ' neglect of duty, the respondents could have recovered the full value of the goods from the Govern ment, would fail. But if they had to say that the goods were lost by explosion damage within the meaning 1008 of section 14, it seems to me, they would be bringing them selves under the bar of section 18 (2). The respondents cannot therefore claim that the loss of the goods was explo sion damage within the meaning of the Ordinance so as to bring the case within section 14 and at the same time con tend that the loss was not "due tO or did not in any way arise out of the explosion" in order to avoid the bar under section 18. Both section 14 and section 18 have in view the physical cause for the loss or damage to property for which compensation is claimed and not the cause of action in relation to the person against whom relief is sought. The respondents cannot, in my opinion, be allowed to take up inconsistent positions in order to bring themselves within the one and to get out of the other. I would therefore allow the appeal and dismiss the counter claim. DAS J. agreed with the Chief Justice. Appeal dismissed. Agent for the respondents:/. N. Shroff.

The appellant was elected to the House of the People from a constituency in the State of Madhya Pradesh. The respondents were the ,other contesting candidates. Respondent No. 1 filed an election petition challenging the election of the appellant. That election petition was dismissed by the Election Tribunal. Against the order of the TribunaL the first respondent preferred an appeal to the High Court under section 116 A 134 159 S.C. 9. 130 of the Representation of the People Act, 1951. Admittedly, the appeal was filed more than 30 days after the order of the Election Tribunal. If the time requisite for obtaining a copy of the order of the Tribunal was excluded, the appeal was filed within 30 days. However, if that was not 'done, the appeal was out of time. The contention of the appellant before the High Court was that the respondent No. 1 was not entitled in law to exclude the time taken by him in obtaining the copy of the order of the Tribunal. That contention was rejected by the High Court. The High Court also found that the appellant was guilty of two, corrupt practices and hence his election was set aside. The appellant came to this Court by special leave. The only question raised before this Court was whether for 'the purpose of computing the period of 30 days prescribed under section 116 A(3) of the Act, the provisions of section 12 of the Limitation Act could be invoked or not. Dismissing the appeal, Held: (per B. P. Sinha, C.J., K. Subba Rao, Raghubar Dayal and N. Rajagopala Ayyangar JJ.) (i) The exclusion of time provided for by section 12 is permissible in computing the period of limitation for filing.the appeal in the High Court. Per B. P. Sinha, C.J., K. Subba Rao and N. Rajagopala Ayyangar JJ.) (ii) Though the right of appeal is conferred by section 116 A of the Representation of the People Act, 1951, and it is by virtue thereof that the appeal was filed by respondent in the High Court, it is still an appeal " under the Code of Civil Procedure, 1908, to the High Court". To attract article 156 of the First Schedule to the Limitation Act, it is not necessary for an appeal to be an "appeal under the Code of Civil Procedure" that the right to prefer the appeal should be conferred by the Code of Civil Procedure. It is sufficient if the procedure for the filing of the appeal and the power of the Court for dealing with the appeal, when filed, are governed by the Code. Per Raghubar Dayal and Mudholkar JJ. There is no warrant for holding that an appeal which is not given by the Code of Civil Procedure is still an appeal under the Code merely because its procedural provisions govern its course. Where a right of appeal is given by some other law, the appeal must be regarded as one udder that law and not under the Code of Civil Procedure. There is no reason for construing the words "under the Code of Civil Procedure" as meaning "governed in the matter of procedure by the Code of Civil Procedure". Held:(iii) (per B. P. Sinha, C.J., N. Rajagopala Ayyangar and Raghubar Dayal JJ.) The entire sub section (2) of section 29 of the Limitation. Act has to be read as an integrated provision and the conjunction "and" connects the two parts and makes it necessary for attracting cl. (a) that the conditions laid down by the opening words of sub section (2) should be satisfied. 131 Per Subba Rao and Mudholkar JJ. The second limb of sub section (2) of section 29 is wide enough to include a suit, appeal or an application under a special or local law which is of a type for which no period of limitation is prescribed in the First Schedule. Per Subba Rao J. The use of the word "any" clearly shows that the second part of sub section (2) of section 29 does not depend on the first part or vice versa. The second part of sub section (2) is an independent provision providing for that category of proceedings to which the first part does not apply. Held: (i) that section 116 A does not provide an exhaustive and exclusive code of limitation for the purpose of appeals against orders of Tribunals and also does not exclude the general provisions of the Limitation Act. Section 29(2)(a) of the Limitation Act speaks of express exclusion and there is no express exclusion in section 116 A(3) of the Representation of the People Act, 1951. Moreover, the proviso to section 116 A(3) from which an implied exclusion is sought to be drawn does not lead to any such necessary implication. The proviso only restores the power denied to the Court under section 29(2)(b) of the Limitation Act. If this proviso had not been there, section 29(2)(b) would have excluded the operation of section 5 of the Limitation Act with the result that even if a sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. (ii)S. 12(2) of the Limitation Act applies to an appeal to the High Court against the order of the Tribunal. An order made under section 98 of the Representation of the People Act, 1951, if it contains also the reasons for it, is a composite document satisfying the definition of a judgment as well as that of an order and thereby attracting the relevant provisions of section 12 of the Limitation Act. Section 12(2) does not say that the order mentioned therein shall be only such order as is defined in the Civil Procedure Code. If a statute provides for the making of an order and confers a right of appeal to an aggrieved party against that order within a prescribed time, the time requisite for obtaining a copy of the order can be excluded. The Act of 1951 empowers the Tribunal to make an order and gives a right of appeal against that order to the High Court and therefore section 12(2) is directly attracted without any recourse to the definition of an order in the Code of Civil Procedure. Per Mudholkar J. The first limb of section 29(2) is concerned only with the proceedings under special or local law for which a period of limitation is prescribed in the First Schedule to the Limitation Act. If for such a proceeding the period to be found in the First Schedule is different from that prescribed under a special or local law, certain consequences will follow under the provision. No inconvenience is to be caused by giving a literal and natural interpretation to the expression used by the legislature in the first portion of sub section (2) of section 29 because cases of other kind can easily come under the second portion thereof. Case Law referred to. 132

minal Appeal No. 141 of 1958. Appeal by special leave from the judgment and order dated November 28, 1957, of the Madhya Pradesh High Court in Criminal Revision No. 78 of 1957, arising out of the judgment and order dated August 21, 1957, of the Court of Special Judge at Gwalior in File No. 2/57 Special Case. G. C. Mathur and R. H. Dhebar, for the appellant. The respondent did not appear. February 3. The Judgment of the Court was delivered by SUBBA RAO, J. This is an appeal by special leave against the, Judgment of the High Court of Madhya Pradesh at Jabalpur directing the Special Judge, Indore, to order the Deputy Superintendent of Police to carry on the investigation afresh. The facts are simple. One Shri Mohinder Nath Bhalla was the manager of Daisy Sewing Machine Co. Ltd., Bhopal. On January 11, 1955, between 12 and 1 p. m., he contacted the Sub Inspector of Police, Special Police Establishment, Gwalior, and gave him the following information: The company had opened their stall in the Gwalior Mela and he (Shri Bhalla) had to book empty wooden cases of machine and machine parts from Gwalior Mela, to Now Delhi. When lie went to the station to enquire for booking the said cases, the Station Master demanded annas ten for each case as illegal gratification, but he did not agree to it. Subsequently, the Assistant Station Master agreed to accept annas eight for each case and asked him to bring the wooden cases between 2 and 4 p. m. on the same day, i.e., January 11, 1955. On this allegation lie requested the police to take action " to stop the said sort of 204 corruption ". The police officer went along with the informant to his stall at Gwalior Mela and saw the twenty wooden cases twelve big and eight small ready for booking. The said Shri Bhalla gave the police officer a typed complaint signed by him and duly attested by two witnesses. With the assistance of the police officer, a trap was laid. The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses. The said rupee notes were given to Shri Bhalla in the presence of the witnesses. Shri Bhalla was instructed to pay the amount to the Assistant Station Master when demanded by him in such a manner that the witnesses could overhear the conversation and also see the Assistant Station Master taking the bribe. He was also told that on his giving a signal, the police would come on the scene. The plan was carried out in detail as agreed. The Assistant Station Master, after some bargaining, took the bribe, and after the act of bribery was completed, Shri Bhalla gave the prearranged signal. The Sub Inspector then went to the Station Office and disclosed his identity to the Assistant Station Master in the presence of witnesses and asked him to produce the money taken by him as bribe. The Assistant Station Master, when questioned by the Sub Inspector, gave him his name and also produced the notes which he had kept in his pocket. The police officer took those notes and counted them. The numbers on those notes tallied with those noted in the memorandum. He then searched the person of the Assistant Station Master and secured the articles found on him. He also searched the person of Shri Bhalla and took from his shirt two currency notes, which he did not give to the Assistant Station Master, as the bargain was struck at a smaller amount, and secured the same. The numbers of those notes also tallied with the corresponding numbers noted in the memorandum. Thereafter, a memorandum of the articles recovered was prepared in the presence of the witnesses and was duly attested by them. The forwarding note, together with the record copy of the 205 R/R prepared in respect of the booking of the twenty wooden cases to New Delhi, was taken possession of and another memorandum was prepared in regard to them. An inventory of the twenty wooden cases lying on the platform near the weighing machine as booked by the Assistant Station Master was also prepared and the same was attested by the witnesses. The Sub Inspector, having regard to the aforesaid facts, came to the conclusion that the facts disclosed offences punishable under sections 120 B and 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947), had been committed by the Assistant Station Master, Shri Mubarak Ali, and the pointsman, Shri Mool Chand, of Golakamandir railway station. On the same day he sent a report of the aforesaid facts to the Special Police Establishment Office, Madhya Bharat. The office registered it on January 14, 1955, in its register. Seven days thereafter, on January 21, 1955, the Sub Inspector filed an application before the Additional District Magistrate (Judicial), Gwalior, asking for permission to investigate the offence under the aforesaid sections. The record does not disclose what further steps were taken by the Sub Inspector after he obtained the said permission from the Additional District Magistrate. On October 1, 1955, a charge sheet was filed before the Special Judge, Anti Corruption, Indore. It appears from the record that soon after the case was taken up for trial, the respondent filed objections questioning, inter alia, the validity of the order of the Additional District Magistrate giving permission to the Sub Inspector to make the investigation. But the scope of the objections is not clear as they have not been placed before us. It appears that the Special Judge intended to take evidence on the question of delegation of power of investigation, but the prosecution applied for adjournment on the ground that an appeal had been filed in the High Court against a similar order directing the prosecution to give evidence on the said question and the same was pending there. The learned Special Judge, though inclined not to give the adjournment, made an order giving an adjournment 206 of three weeks on December 3, 1955, on the ground that " the Special Police Establishment Office might not have any grievance on that account ". We do not know what transpired between December 3, 1955, and the date of disposal of the objections by the Special Judge, i. e., August 21, 1957. On August 21, 1957, the learned Special Judge made an order discharging Shri Mool Chand, the pointsman, and charging Shri Mubarak Ali, the Assistant Station Master, under section 161 of the Indian Penal Code. By the said order the learned Judge, presumably an officer different from the one who gave the adjournment in 1955, disallowed the objection of the accused on the ground that on the date when the Magistrate gave the sanction, there were many papers in connection with a case against the accused, on observing which the Magi strate could have satisfied himself whether there was a prima facie case or not against the accused and that there was no reason to believe that at the time of giving the sanction, the Magistrate did not peruse the papers. The accused preferred a Revision against the said order to the High Court of Madhya Pradesh. The High Court came to the conclusion that the Sub Inspector applied for permission ten days after investigation had started and that the Magistrate did not satisfy himself that there were good and sufficient reasons for authorising the officer of a lower rank to conduct the investigation but had given the permission as a mere matter of routine. In the result, the High Court set aside the order of the Special Judge with a direction that in order to rectify the defects and cure the illegality he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file ". The State, preferred the present appeal against the said order of the High Court. Learned Counsel, appearing for the State, raised before us two points: (i) the High Court was not justified in holding that the Magistrate gave the permission as a mere matter of routine without satisfying himself as to the advisability of giving such permission; (ii) the High Court was wrong in holding 207 that the investigation started ten days prior to the obtaining of permission of the Magistrate by the Sub Inspector. To appreciate the first contention, it is necessary to set out some of the relevant provisions of The Prevention of Corruption Act, 1947 (2 of 1947), hereinafter referred to as the Act. Section 3 (as it stood before the Prevention of Corruption (Amendment) Act, 1955 (50 of 1955): "An offence punishable under section 161 or section 165 or section 165A of the Indian Penal Code (Act 45 of 1860) shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898 (Act 5 of 1898), notwithstanding anything to the contrary contained therein ". Section 4. " (1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code (Act 45 of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate ". The Act was passed, as the preamble indicates, to make more effective provisions for the prevention of bribery and corruption among public servants. It introduced a definition of the offence of criminal misconduct in discharging an official duty and new rules of presumption against accused in the case of the said offence. But in the year 1952, by Act 59 of 1952, presumably on the basis of the experience gained, section 5A was inserted in the Act to protect the public servants against harassment and victimization. If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to 208 discharge their duties free from false, frivolous and malicious accusations. To achieve this object, sections 5A and 6 introduced the following two safeguards: (1) no police officer below the rank (a) in the presidency towns of Madras and Calcutta, of an assistant commissioner of police, (b) in the presidency town of Bombay, of a superintendent of police and (c) elsewhere, of a deputy superintendent of police, shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub section (2) of section 5 of the Act, without the order of a presidency magistrate or a magistrate of the first class, as the case may be, or make any arrest therefor without a warrant see section 5A; (2) no court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under section 5(2) of the Act, alleged to have been committed by a public servant, except with the previous sanction, of the appropriate Government see section 6. These statutory safeguards must be strictly complied with, for they were conceived in public interests and were provided as a against frivolous and vexatious prosecutions. While in the case of an officer of assured status and rank, the legislature was prepared to believe them implicitly, it prescribed an additional guarantee in the case of police officers below that rank, namely, the previous order of a presidency magistrate or a magistrate of the first class, as the case may be. The magistrate 's status gives assurance to the bonafide8 of the investigation. In such circumstances, it is self evident that a magistrate cannot surrender his discretion to a police officer, but must exercise it having regard to the relevant material made available to him at that stage. He must also be satisfied that there is sufficient reason, owing to the exigencies of administrative convenience, to entrust a subordinate officer with the investigation. This Court in H. N. Rishbud and Inder Singh vs The State of Delhi (1) emphasised the necessity to adhere strictly to the provisions of section 5A of the Act. Jagannadhadas, J., who delivered the judgment of the Court, observed at p. 1159: (1) ; 209 " When, therefore, the Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Act, by making them cognisable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank. Having regard therefore to the peremptory language of subsection (4) of section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory ". After adverting to the argument advanced on behalf of the State,learned Judge closed the discussion thus at p. 1162: "We are, therefore clear in our opinion that section 5(4) and provisoto section 3 of the Act and the corresponding section 5 A of Act LIX of 1952 are mandatory and not directory and that the investigation conducted inviolation thereof bears the stamp of illegality". This Court again considered the scope of section 6 of the Act in Biswabhusan Naik vs The State of Orissa (1). One of the questions raised there was that the sanction given by the Government was invalid. In rejecting that contention Bose, J., observed at p. 95 : " The judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, but the principles apply here. It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering. The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an (1)[1955] 1 S.C.R. 92. 27 210 omission to do so is not fatal so long as the facts can be, and are provided in some other way ". While the former decision emphasises the importance of the protection given by the Act to public servants against harassment, the latter decision points out the desirability of giving all the necessary facts in an order giving sanction the same applies to an order of a Magistrate and also the necessity of proof aliunde of the said facts in case the facts are not disclosed in the sanction. Applying the said two principles, we must hold that in a case where an officer other than the designated officer, seeks to make an investigation, he should get, the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission. For one reason or other, if the said salutary practice is not adopted in a particular case, it is the duty of the prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate police officer to investigate the case. In the present case, though objection was taken by the accused at the earliest stage in 1955 on the ground that the order giving permission was invalid no attempt was made by the prosecution, though years have elapsed between the date of the petition and that of the order of the Sessions Judge, to adduce any evidence to support the contention that the Magistrate gave the permission to the Sub Inspector only after satisfying himself on the advisability of doing so on the material placed before him. The only material that was placed before the Sessions Judge was the application filed by the Sub Inspector before the Magistrate seeking the said permission and the order made by him thereon. In that application the Sub Inspector stated that he had been deputed to investigate the case and therefore permission might be given to him to do so under section 5 A of the Act. On that application, the Magistrate passed the order " permission given ". Neither the application 211 nor the order made thereon discloses that any material was placed before the Magistrate on the basis of which he gave the permission. Ex facie, it appears to us, just like it appeared to the High Court, that the Magistrate did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section. A request was made before the High Court that an opportunity should be given to the prosecution to enable them to produce the necessary evidence to support the order of the Magistrate. But the learned Judge of the High Court rightly did not accede to that belated request. We, therefore, without any hesitation, agree with the High Court that the provisions of section 5A of the Act have not been strictly complied with in this case. In this view no other question arises for consideration. But as the learned Counsel appearing for the State contended that the observations of the learned Judge of the High Court that permission of the Magistrate was obtained ten days after the investigation was started was wrong, it would be as well that we considered the argument briefly. Section 4(1) of the Code of Criminal Procedure defines " investigation as to include all the proceedings under that Code for the collection of evidence conducted by the police officer or other persons other than a Magistrate who is authorised by the Magistrate in this behalf. Chapter XIV of the Code prescribes the procedure for investigation. Investigation starts after the police officer receives information in regard to an offence. Under the Code " investigation consists generally of the following steps: (i) proceeding to the spot; (ii) ascertainment of the facts and circumstances of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if 212 the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under section 173."See H. N. Rishbud and Inder Singh vs The State of Delhi (1). From the narration of facts given supra, it would be seen that in the present case Shri Bhalla gave information to the Sub Inspector on January 11, 1955, as regards the attempt by the Station Master as well as the Assistant Station Master to take bribe from him. Under section 5 of the Act, attempt to obtain from any person for himself or for any other person any gratification is in itself an offence and therefore the information certainly related to an offence. Thereafter, the Sub Inspector, after assisting Shri Bhalla to trap the accused, came on the scene, questioned the accused, searched his person and recovered the marked notes and other articles from him ; he searched the person of the informant and recovered the other notes marked but not given to the accused ; he took possession of the twenty wooden boxes intended to be booked and the forwarding note together with the record copy of the R/R; he got prepared relevant memoranda for the aforesaid recoveries and got them duly attested by witnesses; and thereafter on the basis of his investigation he sent a report to the Special Police Establishment Office, Indore. We do not know on the material placed before us what further things he did in the matter of investigation between the 14th and 21st when be obtained the permission of the District Magistrate. In the circumstances, we must hold, agreeing with the High Court that the investigation in this case was started by the Sub Inspector on the 11th, i.e., ten days prior to his obtaining permission of the Magistrate. The appeal fails and is dismissed. Appeal dismissed. (1)[1955] 1 S.C.R. 1150.

The appellant was initially appointed as Inspector of Motor Vehicles and was promoted as Assistant Regional Trans port Officer In 1976, when the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 were in force. Karnataka Civil Services (General Recruitment) Rules, 1977 came into being thereafter. The appellant was promoted as Regional Transport Officer in 1981. The General Rules of 1977 were amended in 1982 and sub rule (2) of Rule 3 was inserted, and as per the new Rule 3(2) the second Respondent was promoted as Deputy Commissioner of Transport on seniority cum merit basis. The appellant filed an Application before the State Administrative Tribunal questioning the promotion of the second Respondent on the ground that promotion to the post of Deputy Commissioner of Transport should have been made by selection and not on seniority cure merit basis. He also sought a declaration that the promotion of Respondent No. 2 was illegal and Respondent No.1 be directed to consider the case of the appellant for promotion to the post of Deputy Transport Commissioner with all consequential benefits. The Tribunal dismissed the application on 388 the ground that Rule 3(2) of the General Rules, which was introduced later, had the effect of overriding the earlier special Rules, and hence the promotion made as per Rule 3(2) of the General Rule was valid. Aggrieved by the Tribunal 's order, the appellant pre ferred the present appeal, by special leave. On behalf of the appellant it was contended that the Special Rules were exclusively meant to govern the recruit ment and promotion of officers of various cadres of the Motor Vehicles Department and the General Rules which gener ally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they were not meant to be so since the Special Rules were not superseded and were very much in force. The Respondent State contended that the non obstante clause in Rule 3(2) of the General Rules which was intro duced later clearly indicate the intention of the Legisla ture to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Com missioner of Transport could only be on the basis of senior ity cum merit and not by selection. Allowing the appeal, this Court, HELD: (By the Court) Sub rule (2) of Rule 3 of Karnataka Civil Services (General Recruitment) Rules, 1977 (General Rules) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (Special Rules). [400 D,E] Per Majority (By Reddy, J. Kuldip Singh, .1. concurring) 1. Examining the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear. It is not enacted to supersede the Special Rules. [403 G] 2.1 The non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non ob stante clause need not necessarily and always be co exten sive with the operative part so as to have the effect of cutting down 389 the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules. Courts should examine every word of a statute in its context and use it in its widest sense. [402 E G; 403 B] 2.2 There should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause. [403 G H] 23 Even the General Rules of which Rule 3(2) forms a part provide for promotion by selection. As a matter of fact Rules 1(3)(a), 3(1) and 4 also provide for the enforceabili ty of the Special Rules. The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the meth ods of recruitment shall be as specified in the Special Rules, if any. The object of these Rules is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular depart ment. In such a situation both the Rules including Rules 1(3)(a), 3(1) and 4 of General Rules should be read togeth er. If so read it becomes plain that there is no inconsist ency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules. The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves. The amendment cannot be read as abrogating all other Special Rules in respect of all departments. [403 H; 404 A D] 2.4 Where there are no special rules to naturally the General Rules would be applicable. Just because there is a non obstante clause in Rule 3(2) it cannot be interpreted that the said ammendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out. [404 D E] 390 Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and Ors., AIR 1966 SC 1931; Justiniane Augusto De Piedade Barre to vs Antonic Vicente Da Fonseca and Others etc. ; , relied on. Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved. Eileen Louise Nicolle vs John Winter Nicolle, (1922) I AC 284; In Re Chance, ; Kunter vs Phillips, , referred to. There is no doubt that a later statute may repeal an earlier one either expressly or by implication. In the instant case there is no express repeal of the Special Rule providing for promotion by selection. There is no patent inconsistency between the General and Special Rules but on the other hand they co exist. Therefore, there is no scope whatsoever to infer the repeal by implication. [405 B,F] Aswini Kumar Ghosh and Ant. vs Arabinda Bose and Ant, ; ; The Dominion of India (Now the Union of India) and Anr. vs Shrinbai A. Irani and Anr, ; ; Union of India andAnother vs G.M. Kokil and Ors. ; Chandavarkar Site Ratna Rao vs Ashalata section Guram; , ; State of West Bengal vs Union of India, [1964] 1 SCR 371; Reserve Bank of India etc. vs Peerless General Finance and Investment Co. Ltd. & Ors, ; ; Municipal Council Palai vs T.J. Joseph, ; , relied on. Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved. Maxwell on The Interpretation of Statutes, Eleventh Edition page 168, relied on. The Government is directed to consider the case of the appellant for promotion to the post of Deputy Commis sioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976. [405 F G] Per Yogeshwar Dayal, J. (dissenting): 1. It is clear from Rule 1 (3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State. A perusal of different rules in the General Rules makes it clear that the 391 general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruit ment relating to different departments. It would be impossi ble to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made. Thus Rule 1(3) of the General Rules which accepted the applicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself. [410 B D; 411 G] 2. By the wording of rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by adopting the criterion of "seniority cum merit". To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provision in the General Rules by incorporating a non obstante clause stat ing that it would apply to all services and posts not withstanding the provisions in the General Rules or in the Special Rules of the State. [410 E G] 3.1 The selection of 'best ' very often has an element of chance which may not be very conducive to proper climate and harmony in service. Probably because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cure merit. There is a clear mandate of latest intention of the rule making author ity contained in Rule 3(2) of the General Rules and this must be respected by the Court. Court is not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and imple mented even by violation of the Rule, will not be sound rule of construction of statute. [412 D F] 3.2 It is not the function of the Court to examine the efficacy of one form of selection or the other. It is for the recruiting authority, namely, the Government to examine it and enforce it in the way it Likes. [413 C] 392 3.3 In the present case the respondent No. 2 was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cum merit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given by a positive mandate. [411 G H] 3.4 As laid down by this Court in Ajay Kumar Baner jee 's case a prior special law would yield to a later gener al law if it satisfies either of the two conditions viz., that the two are inconsistent with each other;, that there is some express reference in the later to the earlier enact ment. In the instant case, the special law contemplated promotion by 'selection ' whereas the later law, viz., Rule 3(2) of the general law contemplated promotion by seniority cum merit. The two are inconsistent with each other and if fulfills the first condition. Since the non obstante clause in the later general law specifically men tions its efficacy inspite of the Special Law, the second condition is also fulfilled. Thus, in this case, the later general law prevails over the earlier Special Law, having fulfilled not one but both the conditions. [413 F H; 414 A B] 3.5 It was for the legislature to choose the method to indicate its intention. The Courts should not defeat their intention by over looking it. Respondent No. 2 has been selected for promotion by following the General Rules amend ing the Special Rules and it was strictly in accordance with law. [414 C D] Ajay Kumar Banerjee and Ors. vs Union of India and Ors., , relied on. Maharaja Pratap Singh Bahadur vs Man Mohan Dev, AIR 1966 SC 1931; Muniswamv vs Superintendent of Police, ILR 1986 Karnataka 344, referred to.

Municipal Corporation Act, cannot be interpreted so as to justify imposition of terminal tax even on goods which merely passed through the territory of Delhi, although their destination is not Delhi but places beyond Delhi. [908 F G] 3.2. Merely because the goods after having been unloaded in the godown of appellant Tuli are sorted, reloaded in different trucks and thereafter pass through the territory of Delhi, they do not become exigible to terminal tax. [908 G H] 3.3. Rule 26 of the Terminal Tax cannot be interpreted so that exemption could be granted only if the goods are exported immediately which means within a very short time irrespective of any other consideration. Terminal tax can be leviable only if it is proved that the goods remained at the godown for an indefinite and unexplained period which could not be said to be reasonable in the circumstances. [908 H, 909 A B] 3.4. Where the goods are carried by trucks into the territory of Delhi and unloaded there and are also meant for Delhi and soon thereafter may be re booked by the receiver of the goods to some other place, terminal tax would be leviable because in this case there are two separate transactions (i) by which the goods are meant for Delhi and (ii) by which after having reached and having been unloaded at Delhi they are rebooked and reloaded for some other place and which therefore is a fresh and different transaction. In such a case, terminal tax would be leviable at the entry point in the territory of Delhi. [909 B C] 3.5. The direction given by the High Court to the Terminal Tax Officer to fix a reasonable time for unloading, sorting and reloading the goods which are 897 meant for different destinations taking into consideration the quantity of the goods. the time for unloading, sorting etc. and for further reloading and transhipment should be done within a time to be fixed by a Terminal Tax Officer is correct. [909 E F] & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2004 2005 Of 1980. Appeals by Special Leave from the Judgment and Order dated 13 10 1978 of the Delhi High Court in LPA Nos. 73/77 and 103/77. Madan Bhatia and Sushil Kumar for the Appellant in both the appeals. R.B. Datar, Lalit Bhardwaj and Miss Madhu Mulchandani for Respondent Nos. P.R. Rao, S.R. Venkataraman, P.C. Kapur, R.C. Bhatia and S.L. Sharma for Respondent No. 5 in Civil Appeal No. 2004/80. N.B. Sinha and S.K. Sinha for Respondent No. 4. The Judgment of the Court was delivered by FAZAL ALI, J. These appeals by special leave are directed against a Division Bench common judgment dated October 13, 1978 of the High Court of Delhi by which the Letters Patent Appeals were allowed and the impugned Orders dated May 23, 1975 and July 7, 1975 passed by the Terminal Tax Officer, Municipal Corporation of Delhi were quashed. The facts of the case lie within a very narrow compass and may be summarized as follows. Manmohan Tuli, appellant in C.A. No. 2004/80, is the owner of a piece of land situate on the Grand Trunk Road near the sixth milestone as one goes from Delhi to Ghaziabad. Appellant Tuli has constructed various buildings on his land for use as godowns and has rented them out to various transport companies engaged in bringing good from other States and storing them before their transhipment to Delhi and other States beyond Delhi. The trucks carrying the goods for various destinations pass along the G.T. Road and move into Tuli 's land. It is not disputed that after the trucks enter the land, the goods are unloaded into the godowns, sorted out and reloaded into the respective trucks meant for various destinations. Thereafter the trucks move out of the land and passing through the Union Territory of Delhi after crossing the border line, proceed to their destinations. The Municipal Corporation of Delhi (hereinafter referred to as the Corporation,) by its Orders dated May 23, 1975 and July 7, 1975 (hereinafter referred to as the "inpugned orders ') directed that a Terminal Tax post be sets up at the entrance to Tuli 's land in order to collect 898 terminal tax on goods carried into that land. The Ghaziabad Nagar Palika also purported to levy terminal tax on such goods but this levy was neither assailed before the High Court nor has been challenged before us and is therefore left out of consideration. A writ was filed before the High Court by the owners of transport companies as also by Tull for quashing the orders of the Corporation seeking to levy terminal tax on the goods which were not meant for Delhi but for places beyond Delhi. Further details are not necessary for the decision of these appeals and both the appeals (C.A. Nos. 2004 and 2005 of 1980) will be disposed of by a common judgment. The High Court vide the impugned judgment was of the opinion that even though the goods were stored in the godown of Tull, sorted out and reloaded but as they while passing through the territory of Delhi undoubtedly entered the said territory, the Corporation was legally entitled to levy terminal tax at the point of entry into the Union Territory of Delhi. The case of the appellant was that the goods were not meant either to be used or consumed in Delhi nor was Delhi the final destination of the goods. It was a different matter that as the goods were to be sent to destination beyond Delhi the transport carrying the goods had perforce to pass through the territory of Delhi. It was thus contended that the goods were not carried into the territory of Delhi but were merely carried through the territory of Delhi to other destinations which were beyond Delhi. It was argued that section 178 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the 'Act ') had in terms no application to the case and that therefore the terminal tax imposed by the impugned orders was legally invalid. The counsel for the respondent, however, submitted that even though the goods may have been meant for other destinations but as they were unloaded in the godown and reloaded in various trucks and actually entered into the territory of Delhi, they were factually carried into the Delhi territory and that was sufficient to empower the Corporation to levy the terminal tax. According to the argument of the counsel for the Corporation, the question of destination was not at all germane for the purpose of adjudicating the competency of the Corporation to levy terminal tax at the point of entry into Delhi. Thus, the entire question turns upon the interpretation of s.178 of the Act and some Rules framed under the Act. Relevant portion of section 178 runs thus: "178(1). On and from the date of the establishment of the Corporation under section 3, there shall be levied on all goods carried by railway or road into the Union Territory of Delhi 899 from any place outside thereof, a terminal tax at the rates specified in the Tenth Schedule." (Emphasis supplied) The crucial words which have to be interpreted are: 'goods carried by railway or road into the Union Territory of Delhi from any place outside Delhi '. The contention of the appellant is that the words 'goods carried into the Union Territory ' clearly indicate that the final destination of the goods must be Delhi and by virtue of this fact, the natural consequence would be that the goods should be carried from other places either by rail or by road into the territory of Delhi. This argument was reinforced by the words 'terminal tax ' used in section 178 which imply that the terminus of the journey of the goods must be Delhi and only in that event the Corporation would be competent to levy a terminal tax. This argument was sought to be rebutted by the respondents on the ground that the words 'carried into the Union Territory of Delhi ' should be interpreted independently and literally so as to indicate that even if the goods passed through Delhi, the moment they entered into the territory of Delhi terminal tax became exigible. So far as this aspect of the argument is concerned, we are unable to accept the same because it is well settled that taxing statutes must be strictly interpreted giving every benefit of doubt to the tax payer. Before, however, examining the respective contentions of the parties it may be necessary to refer to the authorities dealing with the history of terminal tax or octroi duty. To begin with, it is not disputed that the power to subject the goods either to octroi or to terminal tax squarely falls within entries numbers 52 and 56 of List II to the Seventh Schedule of the Constitution. In Punjab Flour & General Mills vs Lahore Corporation the Court while drawing a distinction between the type of taxes referred to as terminal taxes in Entry No. 58 of List I of Schedule 7 to the Government of India Act, and those described as cesses in Entry No. 49 of List II thereof observed as follows: "There appears to us a definite distinction between the type of taxes referred to as terminal taxes in Entry No. 58 of List I of Sch. 7 and the type of taxes referred to as cesses on the entry of goods into a local area in Entry No. 49 of List II. The former taxes must be (a) terminal (b) confined to goods and passengers carried by railway or air. They must be chargeable at a rail or air terminus and be 900 referable to services (whether of carriage or otherwise) rendered or to be rendered by some rail or air transport organisation. The essential features of the cesses referred to in Entry No. 49 of List II are on the other hand simply (a) the entry of goods into a definite local area and (b) the requirement that the goods should enter for the purpose of consumption, use or sale therein. The grounds of taxation under the two entries are, as indicated above, radically different, and there is no case for suggesting that taxation under the one entry limits or interferes in any way with taxation under the other." In The Central India Spinning & Weaving & Manufacturing Co. Ltd., The Empress Mills, Nagpur vs The Municipal Committee, Wardha this Court examined the entire matter exhaustively and after giving the history of terminal tax or octroi observed as follows: "If `terminal ' besides the above meaning has an additional meaning also and that meaning signifies the termini or the jurisdictional limits of the municipal area even then the construction to be placed on the term should be the one that favours the tax payer, in accordance with the principle of construction of taxing statutes, which must be strictly construed and in case of doubt must be construed against the taxing authorities and doubt resolved in favour of the tax payer." . . "The legislative history of this tax thus shows that octroi was leviable on the entry of goods in a local area when the goods were for consumption, use or sale therein. The substituted tax was terminal tax on goods imported into or exported from a local area and by rules this tax in the case of Wardha Municipal Committee was imposed on certain class of goods imported and on others exported by railway or road." . . "That by the substitution of terminal tax on goods imported into a local area the nature of the tax had not been altered from what it was when octroi was in force or when instead of "terminal tax" octroi (without refund) was substituted . . Therefore terminal tax on goods imported or exported is similar in its incidence and is payable on 901 goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit through the municipal limits and had their terminus elsewhere." . . "Therefore, according to the Federal Court "terminal" has reference to the terminus of the railway or air, i.e., the end of journey. " A close analysis of this decision, therefore clearly discloses that a terminal tax signified that there must be a terminus for the journey of the goods. The word 'terminus ' according to Oxford Dictionary means a point situated at or forming the end or extremity of something, situated at the end of a line of railway. In other words, terminus means the point to which main action tends, goal, end, finishing point, the point at which something comes to an end. In Corpus Juris Vol. 62 at p. 729 the word 'terminal ' in connection with transportation means the fixed beginning or ending point of a given run. It would thus appear that a terminal tax could be levied only by the Corporation or the State which is the final destination of the goods sent from any other area. A similar view was taken by a later decision of this Court in Bangalore Woollen, Cotton & Silk Mills Co. Ltd. Bangalore vs Corporation of the City of Bangalore where Kapur, J., speaking for the Court observed as follows: "The history of these taxes therefore shows that in the Devolution Rules under the Government of India Act, 1915 octroi, terminal tax and taxes on professions and callings were three distinct heads of taxation. Therefore, when section 142 A was added in the Government of India Act, 1935, its operation was limited to entry 46 of List II and had no reference to entry 49 which deals with cesses on entry of goods. The position under the Constitution is exactly the same and therefore neither section 142 A of the Government of India Act, 1935 nor article 276 has any effect on entry 49 in the Government of India Act, 1935 or entry 52 in the Constitution. " In this case also a distinction between a terminal tax and octroi was clearly brought out. In Diamond Sugar Mills Ltd. & Anr. vs The State of Uttar Pradesh & Anr. while defining a local area within 902 the meaning of Entry 52 of List II of Seventh Schedule to the Constitution, the Court observed as follows: "We are of opinion that the proper meaning to be attached to the words 'local area ' in Entry 52 of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like." In Burmah Shell Oil Storage & Distributing Co. India Ltd. vs The Belgaum Borough Municipality this Court again fully discussed the matter and Hidayatullah, J., speaking for the Court stressed the essential distinction between octroi and terminal tax in the following words: "Octrois and terminal taxes were different taxes though they resembled in one respect, namely, that they were leviable in respect of goods brought into a local area. While terminal taxes were leviable on goods 'imported or exported ' from the Municipal limits denoting thereby that they were connected with the traffic of goods, octrois, according to the legislative practice then obtaining were, leviable in respect of goods brought into a Municipal area for consumption or use or sale. . The history of these two taxes clearly shows that while terminal taxes were a kind of octroi which were concerned only with the entry of goods in a local area irrespective of whether they would be used there or not; octrois were taxes on goods brought into the area for consumption, use or sale. They were leviable in respect of goods put to some use or other in the area but only if they were meant for such user." In Khyerbari Tea Co. Ltd. & Anr. vs The State of Assam Gajendragadkar, J. speaking for the Court drew a very apt distinction regarding the concept of import and observed as follows: "In that connection, the legislative history of the octroi duty was examined and it was held that the concept of import requires that the goods which are brought into must mix up with the mass of the property in the local area where the goods are alleged to have been imported. If the goods are just carried and not mixed with the mass of the property in the area through which they are carried, they cannot be said 903 to have been imported into that area. . The word "carried" is of much wider denotation, and it would be unreasonable to limit its scope by introducing considerations which are relevant in dealing with the question of import. " Thus, from a consideration of the cases cited above, the following propositions emerge: (1) Terminal tax and octroi are similar kinds of levies which are closely interlinked with (1) destination of the goods, (2) the user in the local area on arrival of the goods. Where the goods merely pass through a local area without being consumed therein the mere fact that the transport carrying the goods halt within the local area for transhipment or allied purposes would not justify the levy of either the terminal tax or octroi duty. This is because the halting of the goods is only for an incidental purpose to effectuate the journey of the goods to the final destination by unloading, sorting and reloading them at a particular place. (2) There is a very thin margin of difference between a terminal tax and octroi. In the case of the former (terminal tax) the goods reach their final destination and their entry into the area of destination immediately attracts payment of terminal tax irrespective of their user. In the case of octroi, however the tax is levied on goods for their use and consumption. (3) But at the same time, the goods while halting at a local area should leave for their destination within a reasonable time which may depend on circumstances of each case and if the goods are kept within the area for such a long and indefinite period that the purpose of reaching the final destination lying in a different area is frustrated or defeated, they may be exigible to terminal tax. (4) Where the goods enter into a local area which is also the destination of the goods either temporarily or otherwise, the terminal tax would be leviable. For instance, if A consigns goods from Patna in Bihar to Delhi in the name of X and X after having received the goods at Delhi re books or reloads the same on a transport for Chandigarh in the name of Y, terminal tax would be leviable by the Corporation at Delhi because the goods in the first instance was Delhi and that by itself would attract the imposition of terminal tax. The fact that X 904 rebooks them to Chandigarh would not make any difference because the act of rebooking by X at Delhi would constitute a fresh transaction by which the goods after having been carried into Delhi are further exported to Chandigarh. On the other hand, when there is one continuous journey of the goods from Patna to Chandigarh without any break, the final destination would be halted in Delhi for the purpose of unloading, sorting and reloading and may have to be kept in Delhi for a reasonable time. In such a case terminal tax would not be exigible. These principles are also spelt out by the American law on the subject which deals with inter state transport of goods. In American Jurisprudence (2d, Vol. 15, p.689, para 49) the following statement is made, which is spelt out from various American decisions including those of the U.S. Supreme Court: "In the determination of whether a transportation of persons or property constitutes interstate or intrastate commerce, the essential character or unity of the movement is the decisive factor, While the intention of the shipper or passenger is probably the most important single factor in determining whether transportation is interstate or intra state intention alone has been said not to be a controlling factor in making such determination. Inter state journeys are to be measured by the commonly accepted sense of the transportation concept. . The parties cannot, by descriptive terms of contract, convert a local business, serving as an agency of a transportation company, into an interstate commerce business, nor, conversely, may a through shipment be transformed into intrastate commerce by separating the rate into its component parts, charging local rates, and issuing local waybills" Similar observations are to be found in the same volume of American Jurisprudence (p. 697, para 56) which relate to the continuity of transit of goods, and may be extracted thus: "The crucial question to be settled in determining whether Personal property moving in interstate commerce is subject to local taxation is that of its continuity of transit and this question is to be determined by various factors, among which are the intention of the owner, the control he retains to change destination. the agency by 905 which the transit is effected, and the occasion or purpose of the interruption during which the tax is sought to be levied, Intent, while not alone conclusive, is probably the most important single determinant of continuous carriage. If a break in the interstate journey is caused by the exigencies or conveniences of the safety of the goods during transit, or natural causes over which the taxpayer has no control, the continuity of the transit remains unimpaired". The following statement of law occurs in the same volume(para 57, p. 698): "If during transit, property is stored for an indefinite time for other than natural causes or for lack of facilities for immediate transportation, it is subject to state or local laws, including inspection laws. On the other hand, if the entry of goods into a warehouse is a convenient in termediate step in the process of getting them to their final destination, they remain in interstate or foreign commerce until they reach those points". In the case of Champlain Realty Co. vs Town of Brattleboro one important aspect of the matter has been dealt with, viz., the fact that if the goods halt in an intermediate State whilst on their journey to their destination for a long period due to circumstances beyond the control of the owner, whether or not the goods lose the nature of the interstate transaction and could be free from the state taxation, was clearly highlighted by he following observations: "Longs of pulp wood which have been placed in a river to be floated into another state are in interstate commerce, so as to be free from state taxation, although, because of the high water in a connecting river into which they will ultimately pass, it is unsafe to permit them to enter that river, and they are temporarily held in a boom near the mouth of its tributary". In the same case, C.J. Taft indicated the various aspects of interruptions in the journey and the incidence thereof and observed as follows: "The doubt arises when there are interruptions in the journey, and when the property, its transportation, is 906 under the complete control of the owner during the passage If the interruptions are only to promote the safe or convenient transit, then the continuity of the interstate trip is not broken. . . . . Chief among these are the intention of the owner, the control he retains to change destination, the agency by which the transit is effected, the actual continuity of the transportation, and the occasion or purpose of the interruption during which the tax is sought to be levied". In Volume 78 L Ed at p. 138 the test laid down was that if the shipment was made in good faith to a destination and the interruption was not indefinite but reasonable the continuity of the journey cannot be said to be broken. It was also pointed out that where the interruption of the movement of commodities at an intermediate point is not incidental to the transportation, the shipment loses the character of interstate commerce so as to be exigible to local taxation. In this connection, the following observations were made: "If the shipment has been made in good faith to a destination the interruption is not indefinite, but is reason able and solely in furtherance of the intended transportation of the shipment to its ultimate destination, then the continuity of the journey is not broken by the delay nor by the mere power of the owner there to destroy its character as interstate commerce. .any interruption of the movement of commodities at an intermediate point between origin and final destination that is not incidental to the transportation or the means of transportation or, being so incidental, is used or extended for purposes of the owner not incidental to the transportation or the means used therefor, breaks the continuity in transit and subjects the shipment to local taxation at the point of interruption". We have laid special stress on the circumstances under which the terminal tax becomes leviable if the halt or interruption of the goods at an intermediate point is for an indefinite and unexplained period. The answer to the question as to what would be a reasonable time for interruption of the goods or halting in the instant case at the godown of Tuli, will naturally depend on the special features or circumstances of each case, viz., the nature of the goods, 907 the time taken in loading, sorting and unloading, the obstacles or difficulties which may be faced by the transporters and similar other factors. Normally, a time of two to three days or even a week should be sufficient to clear the goods for its journey to the ultimate destination. It may sometimes happen that goods may have to be kept in the godowns in the territory of Delhi for circumstances beyond the control of the consignee or the consignor, e.g., while the goods are lying in a godown at Delhi a dispute occurs between the concerned parties as a result of which an injunction is issued by a court restraining the transporters from moving the goods. In considering what is reasonable time these circumstances would have to be taken into consideration. It, was however, argued before us that according to the Terminal tax Rules framed under the Act, Rule 26 exempts goods from terminal tax if the same are exported immediately and are declared to be intended for immediate export. In view of the interpretation we have placed on section 178 it is obvious that the word "immediately "appearing in Rule 26 has to be liberally construed so as to imply a reasonable period and if the export is delayed the rules may apply if a reasonable explanation has been given. So far as rules regarding taking of passes, etc, at the barrier are concerned they would, of course, apply but subject to the conditions under which terminal tax can be imposed under s.178 of the Act which is the main charging section. The High Court appears to have placed some reliance on Amrit Banspati Co. Ltd. vs The Union of India in coming to the conclusion that in the instant case the Corporation was legally entitled to levy terminal tax. With due respect to the Judges of the High Court who decided the Appeals, we would like to point out that the case just above referred to is clearly distinguishable from the present appeals. The most crucial fact in the Delhi decision was that the goods were being carried into the Union Territory of Delhi for the purpose of sale at Delhi. Thus, the case proceeded on the admitted position that the goods were carried from Ghaziabad into the Delhi territory for sale at Delhi. The final destination of the goods being Delhi, there can be no doubt that the Corporation was fully entitled to levy terminal tax on such goods. In this connection, the High Court observed as follows: "The Petitioner company was incorporated under the companies Act, 1956, and it had its registered office at G.T.Road, Ghaziabad, in the State of Uttar Pradesh. 908 It has a factory, inter alia, at Ghaziabad for manufacturing the said Vanaspati products. In the course of its business, the company carried and still carries its products by railway and/or road into the Union Territory of Delhi from Ghaziabad for the purpose of sale at Delhi. . . . . The words "shall be levied on all goods carried by rail way or road" in sub section (1) show clearly that the section imposes terminal tax on the carriage or movement of goods from outside the Union Territory of Delhi into the said Territory. In other word, the taxable event is the carriage or movement of goods into the Union Territory of Delhi". The observations last extracted must be understood in the light of the admitted facts in Amrit Banaspati Company"s case (supra). We are unable to accept that case as an authority for the proposition that even if the final destination of the goods was not Delhi but as the goods were carried through the territory of Delhi, they would still be exigible to terminal tax. In the impugned Judgment the High Court, however, seems to have laid undue emphasis and special stress on the fact that the goods were carried into the Union territory of Delhi, the moment they passed through it even though the destination of the goods may be some other area. This appeared, according to the High Court. the real purport and intention of section 178. We are, however, unable to agree with this view which is patently wrong and does not at all flow from the plain and unambiguous language of section 178 of the Act nor does s.178 warrant such an interpretation. Thus, our conclusions are follows: (1) The High Court was wrong in interpreting section 178 of the Act so as to justify imposition of terminal tax even on goods which merely passed through the territory of Delhi, although their destination is not Delhi but places beyond Delhi. (2) The High Court was wrong in holding that merely because the goods after having been unloaded in the godown of appellant Tuli are sorted, reloaded in different trucks and thereafter pass through the territory of Delhi, they become exigible to terminal tax. (3) The High Court was wrong in interpreting Rule 26 literally and holding that exemption could be grant 909 ed only if the goods are exported immediately which means within a very short time irrespective of any other consideration. In view of our interpretation of section 178, Rule 26 must be interpreted in the light of the object of section 178 and terminal tax can be leviable only if it is proved that the goods remained at the godown for an indefinite and unexplained period which could not be said to be reasonable as discussed by us in the circumstances. (4) Where the goods are carried by trucks into the territory of Delhi and unloaded there and are also meant for Delhi and soon thereafter may be rebooked by the receiver of the goods to some other place, terminal tax would be leviable because in this case there are two separate transactions (1) by which the goods are meant for Delhi, and (2) by which after having reached and having been unloaded at Delhi they are rebooked and reloaded for some other place and which therefore is a fresh and different transaction. In such a case, terminal tax would be leviable at the entry in the territory of Delhi. We might mention that the High Court while holding that terminal tax is exigible has construed the word 'immediately ' in Rule 26 literally and directed the Terminal Tax Officer to fix a reasonable time for unloading, sorting and reloading the goods which are meant for different destinations taking into consideration the quantity of the goods, the time for unloading, sorting, etc., and has further directed that reloading or transhipment should be done within a time to be fixed by the Terminal Tax Officer. Though the directions given are correct but they will have to be construed in the light of the various factors which we have referred to. Rule 26 will have to be interpreted on the footing that section 178 of the fact does not contemplate levy of terminal tax for goods meant for destinations other than Delhi. For the reasons given above, we allow these appeals, set aside the impugned judgment except the portion quashing the impugned orders. That portion we uphold (though on grounds different from the ones given by the High Court) in the light of the decision given and the observations made by us regarding the interpretation of section 178 of the Act. In the special circumstances of the case there will be no order as to costs.

If the certificate granted by the Court under sub clauses (a) and (c) of clause (1) of Article 133 of the Constitution, as it then stood, did not conform to legal requirements in as much as it did not specify the substantial question of law which, according to High Court, required determination and no reasons in respect of issuance of the certificate appeared therein, the certificate could be revoked. [948 H] Sohan Lal Naraindas vs Laxmidas Raghunath Gadit ; Sardar Bahadur section Indra Singh Trust vs Commissioner of Income Tax, Bengal ; followed. In such a situation if it could be made out that a substantial question of law really required determination, this Court could treat the appeal as one by special leave after condoning the delay. In the instant case no such question is involved at all and, therefore, special leave cannot be granted. [949 B C]

ivil Appeal No. 3054 of 1988. From the Judgment and Order dated 16.3.1988 of the Rajasthan High Court in S.B. Civil Miscellaneous Appeal No. 240/1987. K. Parasaran, Attorney General, B.L. Saruparia and Badridas Sharma for the Appellant. Soli J. Sorabjee, Paras Kulad, Rohinton F. Nariman and Rathin Das for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Leave granted. Appeal is disposed of by the judgment herein. This appeal challenges the order of the High Court of Rajasthan, dated 16th March, 1988. The respondent 's tender for construction of complete masonry dam (Civil Engineering Works) Mahi Bajaj Sagar Project, Banswara, was accepted by the appellant for a sum of Rs.5,90,30,791 vide letter dated 29.4.1974 and a provisional agreement was entered into between the parties on 23.5.1975. The construction was commenced by the respondent company but it did not complete the same and, it is alleged, left the work unfinished in the year 1979, which was of the value of Rs. 1,79,80,054. The letter of acceptance was dated 23.5.1975. It is stated that the respondent did not start the work in spite of written notices and, ultimately, by a letter dated 24th December, l979 of the Executive Engineer (Dam Division), Banswara, the respondent was informed that as it had committed breach of the conditions of the contract, the same had been terminated and that the State Govt. would complete the work under the clauses and conditions of the contract. The work had to be completed departmentally at the cost and risk of the respondent company. After some litigation between the parties when the Civil Revision was pending in the High Court of Rajasthan at Jodhpur, a compromise between PG NO 444 the parties was arrived at on the 13th April, 1982. It was agreed that the dispute would be settled through arbitration. By an agreement dated 13th June, 1982 the parties named their arbitrators. The arbitrators entered upon the reference on 19th June, 1982. On 5th May, 1982, the respondent company presented its claims under 40 heads claiming a total sum of Rs. 1,90,53,059.28. This amount was later on revised to Rs. 1,82,20,261.02. The State filed a counter claim for a sum of Rs. 1,70,63,026.37 which was revised to Rs. 1,25,706,17. It is stated that the arbitration proceedings were conducted for 52 days during which the number of sittings was 25. Various issues were framed. Minutes of the proceedings were recorded. The arbitrators gave the award on 8.12.1982. It is stated that the award did not contain any reason as to why and how they had arrived at the figure of Rs. 75,41,755 in favour of the respondent company. The award, however, mentioned that the State of Rajasthan committed breach of contract and was also guilty of wrongful revocation of the agreement and the actions taken under Clauses 2 and 3 of the conditions of the Contract, were wrongful and unjustified. However. no reasons were indicated as to how the arbitrators arrived at those findings. The respondent filed an application in the Court of the learned District Judge for making the award Rule of the Court. The appellant, however, filed an objection on the grounds inter alia that no reasons had been given by the arbitrators for the award and the amount of interest awarded was unjustified. It was further averred that the award being ambiguous, showed non application of mind and the question as regards the plant machinery of the respondent company lying at the dam site, were beyond the scope of the arbitrator. The learned District Judge by his judgment and order dated 11th August, 1987 allowed the objection and set aside the award on the ground of ambiguity and non application of mind. The award also suffered from the vice of non statement of reasons, according to the learned District Judge. According to him, the award was not in accordance with law. He further held that the plant & machinery lying at the dam site was beyond the reference made to the arbitrators. He was of the opinion that the interest amount was ambiguous and thus liable to be set aside. THere was an appeal to the High Court. The High Court allowed the appeal and passed a decree for Rs. 75,41,755 being the amount of all claims and directed that the State should pay interest @ 5% p.a. on the said amount for the period from 1.8.1983 to 8.12.1985, being the period during which the arbitration proceedings were PG NO 445 pending. This decision of the High Court is under challenge in this appeal. It was contended before us that the question whether on the ground of absence of reasons, the award is bad per se, is pending consideration by a Constitution Bench of this Court in C.A. No. 3137 39/85, 3145/85 Jaipur Development Authority vs Firm Chhokhamal Contractor etc. It was, hence, urged that this should await adjudication on this point by the Constitution Bench. We are unable to accept this contention. In our opinion pendency of this question should not postpone all decisions by this Court. One of the cardinal principles of the administration of justice is to ensure quick disposal of disputes in accordance with law, justice and equity. In the instant case the proceedings have long procrasticated. Indeed, the learned Judge of the High Court, after narrating the incidents from 1975 to 1985, concluded his judgment in March 1988 by observing that that was the end of the journey. He was wrong. That was only the end of a chapter in the journey and the appellant wants to begin another chapter in the journey on the plea that the award is not a reasoned one. The bargaining between the parties was entered into in 1974 75 and the award was made on 8th December, 1985 i.e. a decade after the beginning of the transaction. The law as it stands today is clear that unless there is an error of law apparent on the face of the award, the award cannot be challenged merely on the ground of absence of reasons. This is settled law by a long series of decisions. Interests of justice and administration of justice would not be served by keeping at bay final adjudication of the controversy in this case on the plea that the question whether an unreasoned award is bad or not, is pending adjudication by a larger Bench. There have been a large number of sittings before the arbitrators. Parties have been heard. There was no misconduct in the proceedings. There has been no violation of the principles of natural justice. In such a situation it would be inappropriate to postpone the decision pending adjudication of this question by a larger Bench of this Court. We do not know how long it would take to decide that question, and whether ultimately this court would decide that unreasoned awards per se are bad or whether the decision would have prospective application only in view of the long settled position of law on this aspect in this country or not. Justice, between the parties in a particular case, should not be in suspended animation. Law as it stands today, as observed in Jivarajbhai Ujamshi Sheth & Ors. vs Chintamanrao Balaji & Ors., ; is that award made by an arbitrator is conclusive as a judgment between the parties and the Court is entitled to set aside an award only if the arbitrator has misconducted himself in PG NO 446 the proceedings or when the award has been made after the issue of an order by the Court superseding the arbitration or if the arbitration proceedings have become invalid under Sec. 35 of the or where an award has been improperly procured or is otherwise invalid under Sec. 30 of the Act. An award may be set aside by the Court on the ground of error on the face of the award, but an award is not invalid merely because by a process of inference and argument it may be demonstrated that the arbitrator had committed some mistake in arriving at some conclusion. In that decision Shah, J. and Sarkar, J. as the learned Chief Justices then were, were of the view that it was not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusions. They held the award not severable. Hidayatullah, J. as the learned Chief Justice then was, observed that if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him and the Court can find his auxiliary jurisdiction. Instant case before us is also not a severable award. In Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore ; Bachawat, J. speaking for the Court observed that an arbitrator could give a lump sum award. He was not bound to give a separate award for each claim. His award on both fact and law is final. There is no appeal from his verdict. The Court cannot review his award and correct any mistake in his adjudication, unless an objection to the legality of the award is apparent on the face of it. In the present case the arbitrator gave no reasons for the award. There is no legal proposition which is the basis of the award, far less any legal proposition which is erroneous. Also there is no allegation of any misconduct in the proceedings. It is an error of law apparent on the face of it and not mistake of fact which could be the ground for challenging the award. See in this connection the observations in Union of India vs Bungo Steel Furniture P. Ltd.; , Also see the observations of this Court in Allen Berry & Co. (P) Ltd. vs Union of India, New Delhi, [l971] 3 SCR 282. Hence, the High Court was right in the instant case. There is, however, one infirmity in the award as sanctioned by the High Court, that is to say, the grant of interest pendente lite. The arbitrators have observed as follows : "By adjustment of interest held to be due to the Respondents with that held to be due to the Claimants on their items of claims which were not in the nature of claim PG NO 447 for damages for breach, we hold that the Respondents do pay Rs. 17,92,957 (Rupees seventeen lacs ninetytwo thousand nine hundred fiftyseven only) as interest, to the Claimants upto the date of the AWARD. Claimants further do pay to the Respondents Rs. Nill. " This was awarding interest pendente lite. This is in violation of the principles enunciated by this Court in Executive Engineer (Irrigation), Balimela & Ors. vs Abhaduta Jena & Ors., [1988] 1 SCC 418. Our attention was drawn by Shri Soli J. Sorabjee, counsel for the respondent, to the decision of this Court in Food Corpn. of India vs M/s. Surendra, Devendra & Mohendra Transport Co., where at pages 555 556 of the report, the Court referred to certain decisions cited by Chinnappa Reddy, J. in Executive Engineer (Irrigation), (supra) in which he had expressed the view that those were cases in which the references to arbitration were made by the Court or in Court proceedings of the disputes in the suit. In that context it was held in those cases that the arbitrator had power to grant interest. It was contended before us that this was a similar case. There was a Court proceeding in this case regarding the appointment of the arbitrator and, as such, on the same analogy it should be treated that the arbitrator had power to grant interest. We are unable to accept this. What Mr justice O. Chinnappa Reddy meant to say by the latter judgment in Executive Engineer (Irrigation), case referred to in Food Corporation of India, (supra) was where the disputes regarding the merit of the case were pending in the Court and such disputes instead of being decided by the Court adjudication had been referred to an arbitrator by the Court, in such cases the arbitrators deciding in the place of the Court, would have the same powers to grant interest pendente lite as the Courts have under Section 34 of the Civil Procedure Code. Instant case is not such a proceeding. In that view of the matter this part of the award, which was affirmed by the High Court of granting of interest, must be deleted. We do so accordingly. Shri K. Parasaran, learned Attorney General, assures us that the amount awarded as modified, would be paid within 8 weeks from today. The appeal is thus disposed of without any order as to costs. R.S.S. Appeal disposed of.

The respondent Company took over, with the consent of the State Government, the licence granted to a private firm under the for supply and dis tribution of electricity in the areas covered by the li cence, and became entitled to the benefits and privileges of the licence. Under cl. (11) of the licence, Government had the option to purchase the undertaking on the expiry of the period of licence. The licence was to expire on 21st September, 1977. The State Electricity Board, in .exercise of its option, issued a notice to the Company on 26th August, 1976 and required it to sell and deliver the undertaking to the Board on the midnight between 21st and 22nd September, 1977. Under the provisions of the , as they stood at the time of option, the Company was entitled to be paid the 519 market value of the undertaking. But, by the Amending Act, 1976 the Bill for which had been introduced in the State legislature on 13.7.1976 the principle of market value in the relevant provisions of the 1910 Act was substituted by the concept of "Amount" legislatively fixed as a sum equal to the depreciated Book Value of the assets of the undertak ing to be taken over. The amended provisions were to govern cases where notices had been issued prior to the amendment. The respondent Company filed writ petitions before the High Court challenging the validity of sections 4, 5 and 6 of the Indian Electricity (Maharashtra Amendment) Act, 1976 and section 2 of the Indian Electricity (Maharashtra Amendment and Validity) Act, 1974 as violative of articles 14, 19(1)(f) and (g) and 31 of the Constitution. The appellants, the State and the Electricity Board, claimed protection of article 31 C to the Amending Act, 1976 and the consequent immunity from attack on the ground of violation of articles 14, 19 and 31. The High Court held that in the absence of a declaration in the Amending Act of 1976 that ,the law was one intended to give effect to the objects of article 39(b) and (c) of the Constitution, the Amending Act cannot have the protection of article 31 C. Declaring section 4 of the Amending Act as violative of article 19(1)(f) and article 14, it held that the State could not unilaterally reduce, even by legislation, its liability to pay the purchase price under a consensual transaction and that conferment on Government of power to fix instalments was grossly unreasonable and arbitrary and that provision for payment of interest at the Reserve Bank rate pins one per cent made more unreasonable the provisions of the Amend ing Act. The High Court also rejected the respondent Company 's claim as to the Constitutional infirmity attributed to section 2 of the 1974 Act and sections 5 and 6 of the Amending Act, 1976. It further rejected the Company 's contention that, upon the service of the notice exercising the option to purchase, the Company 's right to be paid the market value under the law as it then stood, was crystallised into an "actionable claim" or "A chose in action" and that What was sought to be ac quired was not the undertaking itself but a chose in action, and that the law was bad for excluding the service lines from computation of the amount. The appellants filed appeal in this Court assailing the correctness of the High Court 's view that section 4 of the Amend ing Act. was bad. The respondent Company, also filed a cross appeal, questioning the correct 520 ness of the judgment on the points held against it. It was contended on behalf of the appellants that the law was entitled to the protection of article 31C and that the High Court was in error in postulating that the absence of the express legislative declaration in the law that it was enacted for giving effect to the directive principles of State Policy in article 39(b) and (c), was itself conclusive against the attraction of article 31 C. It was urged that the presence of such a declaration merely furnished evidence of a reasonable and direct nexus between the legislation and the objects of article 39(b) and (c) but the declaration was by itself not conclusive either way, and the court was entitled to go behind the facade of the declaration and scrutinise whether there was really such a direct and reasonable nexus, and that the absence of such an express declaration did not preclude the State from showing the existence of the requi site nexus, and that apart altogether from the protection of article 31 C, the Amending Act of 1976 was justifiable as a reasonable restriction on the freedom under article 19(1)(f) and (g). On behalf of the Company, it was contended that any appeal to and reliance upon article 31 C was wholly misplaced, as the option to purchase the undertaking was in effectua tion of a purely consensual transaction and that the scheme of the Electricity Act, 1910, and the covenants in the license enabling the Government or the Board, as the case may be, to exercise the option to purchase did not amount to a compulsory acquisition of the undertaking, and that the provisions of the Amending Act, 1976, which had the effect Of bringing down the purchase price payable under a mutual agreement, could not be justified on any nexus with or for the effectuation of the objects of article 39(b). The point for consideration was whether Indian Electric ity (Maharashtra Amendment) Act, 1976, which statutorily modified the principles for the determination of the pur chase price for the undertaking from the principle of market value contained in the unamended section 7A of 1910 Act to the concept of "Amount" equal to the depreciated book value of the assets under section 7A as amended the Amending Act of 1976, could be said to be a law enacted for the acquisition of the undertaking with a reasonable and direct nexus with the object of article 39(b) of the Constitution and, therefore, had the protection of article 31 C. Allowing the appeals preferred by the appellants Maha rashtra State Electricity Board and dismissing the cross appeal of the 521 respondent Company, this Cpurt, HELD: The provisions of the Amending Act of 1976 have a direct and substantial relationship with the objects of article 39(b) and, therefore, are entitled to the protection of article 31 C. Therefore, all challenge to the law on the ground of violation of Articles 14, 19 and 31 must necessarily fail. That apart, there is no merit in the grievance that service lines had been omitted from computation of the amount. Similarly, there is no merit in the contention that the value of the "goodwill" has been omitted from computa tion of the amount. [542D F] The nexus between the law and the objects of article 39(b) could be shown independently of an express declaration by the legislature in the law that it was enacted for giving effect to the directive principles of State Policy contained in article 39(b). The absence of evidence of nexus, in the form of such an express declaration, was not by itself evidence of absence of such nexus. [534F G] State of Maharashtra vs Basantibai, ; at 1475 and Fazilka Electric Supply Co. Ltd. vs The Commis sioner of Income Tax, Delhi 1962 Supp. 3 S.C.R. 496, re ferred to. The business of an electricity supply undertaking, a public utility service, in pursuance of a license granted under the Electricity Act, 1910 is comprehensively con trolled by the terms of that Statute. The terms on which a franchise is created and conferred are amenable to unilater al modification by Statute, and include the term pertaining to the quantification of the price payable for the take over. The proposition that the right to the payment of the price gets crystallised into a 'chose in action ' independ ently of or even before the actual transfer of ownership of the undertaking, cannot be accepted. [539C D] Fazilka Electric Supply Company 's case, [1962] Supp. 3 S.C.R. 496 and Gujarat Electricity Board vs Girdharilal Motilal, ; , referred to. Even if the provisions of the Electricity Act, 1910 are held and understood to provide for take over by the State of a privately owned undertaking only by the adoption of the expedient of a consensual sale, that circumstance, by it self, would not be decisive of whether the amending Act of 1976 had no direct and reasonable nexus with the objects of Art 39(b). [539F] 522 The effect of the relevant provisions of the 1910 Act, as amended by the amending Act of 1976, is the transfer of the ownership and control of material resources of the community for purposes of ensuring that they are so distrib uted as best to subserve the common good. In effect, the provisions bring about nationalisation in the larger sense of that term. The Amending Act of 1976 sought to limit the economic burden of this reform. [540C D] The expression "nationalisation" means 'the acquisition and control of privately owned business by Government. ' [540D E] The idea of nationalisation of a material resource of the community cannot he divorced from the idea of distribu tion of that resource in the community in a manner which advanced common good. [540G] No doubt, the protection of article 31 C is accorded only to those provisions which are basically and essentially necessary for giving effect to the objects of article 39(b). [540H] But, the High Court, was in error in taking the view that, while the provision for the take over in the Principal Act might amount to a power to acquire, the objects the. Amending Act of 1976, which merely sought to beat down the price, could not be said to be part of that power and was. therefore, incapable of establishing any nexus with article 39(b). 1541A B] The amending Act of 1976, renders the cost of this economic reform brought about with the objects of article 39(b) in view an affordable one in terms of money. This can not he held to have no direct or reasonable nexus with the objects of Act. 39(b)? When a legislative enactment is challenged as not conforming to the constitutional mandate the judicial branch of the Government has only one duty to lay the Arti cle of the Constitution which is invoked beside the Statute which is challenged and to decide whether the latter squares with the former. [541B C] The community 's economic burden for social and economic reforms is an integral part of the exercise involved in social and economic change in the ushering in of an egali tarian and eclectic social and economic order in tune with the ethos of the Constitution. The cost in terms of monetary expenditure of economic change is a factor integrated with the objects of article 39(b). The Court must, on matters of economic policy, defer to legislative judgment as con 523 ditioned by time and circumstances. The wisdom of social change, is, dependant, in some degree, upon trial and error, on the left needs of the time. [542A C]

Civil Appeal No. 681 of 1985. From the Judgment and Order dated 24.8.84 of the High Court of Gujarat in S.C.A. No. 1286/1980. T.V. Mehta, M.N. Shroff and K.M.M. Khan for the Appellant. S.H. Sheth, Vimal Dave and S.C. Patel for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. In the course of an exercise in interpretation of a provision, Section 6(3B) of Gujarat Agricultural Land Ceiling Act of 1960 complains the appellant state, the High Court has misinterpreted the said provision which had been correctly interpreted by the Tribunal Gujarat Revenue Tribunal. The debate in the present appeal has centred on this plea the meritlessness of which will become evident presently. The provision in question viz, Section 6(3B) is embodied in Chapter III of the Ceiling Act which bears the caption "Fixation of Ceiling on Holding Land, Determination of Surplus Land and Acquisition thereof". The concerned provision in so far as material to the problem posed by the present appeal deserves to be quoted: "6(3B) Where a family or a joint family consists of more than five members comprising a person and other members belonging to all or any of the following categories, namely: (i) minor son, (ii) widow of a pre deceased son, 1071 (iii) minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five, so however that the total holding of the family does not exceed twice the ceiling area; and in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area: Provided x x x x x x" The philosophy of this provision stares one in the eyes. When a family is both large and comprises (which expression is employed in the sense of includes, Collins ' dictionary defines comprise as . . to include . amongst it members who are subject to one or other of the socio economic handicaps, fairness demands that such family is permitted to retain some more land than other families which are not so handicapped. The very nature of the three categories which are specified (minors, widow of a pre deceased son, minor son or unmarried daughter of a predeceased son who has lost both parents) conveys this message of plight. Understandable it is, that for such a family which has to carry the burden of misery, the community acting through the legislature has a soft corner and pours milk of human kindness into this benevolent provision aimed at relieving their distress to an extent. Such is the design. Two tests must be satisfied commulatively for being eligible to claim the benefit: (1) The size of the family (No. of members should exceed 5) (2) It must consist of members one or more of whom belong to one or other of the specified handicapped categories. Now the factual backdrop in which the problem of interpretation has surfaced needs to be traced. The family of the respondent landholder consisted of 9 members including himself. (The land holder, his mother, his wife, his three minor sons and his three minor daughters). The question which arose was whether the land holder was entitled to the benefit of Section 6(3B) which provides that where a family or a joint family consists of more than 5 members comprising a person and other persons belonging to all or any of the specified categories, such family shall be entitled to hold land in excess of the ceiling area to the extent of 1/5 of the ceiling area for each member of the specified 1072 category in excess of five, subject to the rider that the total holding of the family does not exceed twice the ceiling area. The Tribunal took the view that Section 6(3B) was not attracted to the case of the said land holder notwithstanding the fact that his family consisted of 9 members and also comprised of other members belonging to specified category (i) (minor son). The view taken by the Tribunal is reflected in the following passage extracted from its order dated January 24, 1978 which gave rise to the Writ Petition in the High Court which in turn has given rise to the present appeal by special leave: "As regards the other contention of Shri R.K. Panchal, it may be observed that for the purpose of section 6(3B) family of the applicant consisted of not more than five members eventhough as a matter of fact there are nine members in his family because the applicant and his wife will count as one unit and his minor sons will count as four units for the purpose of section 6(3B) of the Act, and thus there are only five members in the family for the purpose of counting the unit. Therefore, the family is not entitled to hold more than 45 acres of land on the ground that there are nine members in the family as argued by Shri R.K. Panchal. In this view of the matter, the findings of the Mamlatdar and confirmed by the Deputy Collector do not deserve to be interfered with. " Upon the jurisdiction of the High Court, under Articles 226/227 of the Constitution of India being invoked, the High Court reversed the Tribunal. Because, the reasoning unfolded in the aforesaid passage was inconsistent with the exposition of law made by the High Court in its earlier pronouncement. Reliance was placed on Nathekhan 's Gujarat Law Reporter Vol. XXV (3) p. 1473 (Nathekhan vs Mamlatdar, Vadgam) case wherein Ahmadi, J. had earlier taken a contrary view. Says Ahmadi, J. "With respect the Tribunal 's thinking is confused, Sub section (3B) of Sec. 6 merely lays down that where a family consists of more than five members comprising a person and other members of the categories mentioned therein, namely, (i) minor son, (ii) widow of a pre deceased son, (iii) Minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in 1073 excess of five provided the total holding of the family does not exceed twice the ceiling area. A bare perusal of this sub section makes it clear that in order to avail two conditions must be satisfied, namely, (i) the family should consist of more than five members and (ii) it should have amongst it the categories of members mentioned in the three sub clauses. If the family does not consist of more than five members but has amongst it any of the members mentioned in the three sub clauses, it will not be entitled to the benefit of enlargement of the ceiling area. Therefore, the benefit of enlargement of the ceiling area will ensure to only that family where the total number of members is more than five and amongst them are members belonging to the categories mentioned therein. However, there is nothing in the sub section wherefrom it can be inferred that the wife, widowed mother and unmarried daughters are intended to be excluded from the family, that is group or unit constituting the family. I am, therefore of the opinion that all the authorities including the Tribunal were wrong in coming to the conclusion that the aforesaid female members of the family had to be excluded for the purpose of determining the size of the family. " We fully concur with this view. The reasons are not far to seek. It is not in dispute that the family of the land holder consisted of 9 members if the heads of the members of the family are counted. The first condition required to be satisfied in order to attract Section 6(3B) is that the family must consist of more than 5 members. The debate has centred round the question as to how the number of the members constituting the family should be counted. In counting the members of the family the Tribunal has excluded from consideration the mother and the three minor daughters of the land holder. Excluding these four persons the family consisted of 5 members. In that event Section 6(3B) will not be attracted because one of the conditions precedent for the applicability of the provision is that the family must consist of more than 5 members. The High Court on the other hand has upheld the contention of the land holder that his family in fact consisted of 9 members inasmuch as his mother and his wife as also his minor daughters were members of his family. The Tribunal in terms observed that: "for the purpose of Section 6(3B) family of the applicant consisted of not more than 5 members eventhough as a 1074 matter of fact there are 9 members in his family." This reasoning is obviously fallacious. The expression 'family ' has not been defined in the Act. One has therefore to go by the concept of family as it is commonly understood, taking into account the dictionary meaning of the expression. Collins English Dictionary defines family as: "a primary social group consisting of parents and their offspring, the principal function of which is provision for its members." "a group of persons related by blood; a group descended from a common ancestor." "all the persons living together in one household. " Having regard to this definition it can be safely concluded that the land holder, his wife and his offspring consisting of three minor sons and three minor daughters would certainly constitute a family even if the mother of the land holder is excluded from consideration. Thus in any view the family of the land holder consisted of 8 members including himself, his wife, three minor sons and three minor daughters. The Tribunal was therefore clearly in error in taking the view that the family consisted of not more than 5 members. Learned counsel for the appellant however contended that in applying the test whether or not the family consisted of 5 members regard must be had only to the members of the family belonging to the specified category namely minor sons in so far as the composition of the family of the land holder in the present case is concerned. In other words the contention is that the land holder, his wife and his three minor sons are the only five persons of the family for the purposes of Section 6(3B). In our opinion there is no warrant for reading Section 6(3B) in this artificial and truncated manner. On a plain reading, Section 6(3B) is attracted where a family consists of more than 5 members "comprising a person and other members belonging to all or any one of the following categories viz. (i) minor son . ." In the present case the family of the land holder consists of more than 5 members. The family also includes persons of one of the specified categories viz. the minor sons. Thus, all the ingredients of Section 6(3B) are satisfied. In order to claim benefit of Section 6(3B) the test which must be satisfied is a two fold test. First, whether the claimant 's family consists of more than five persons. In the present case the answer to this test is in the affirmative. 1075 The second test that is required to be answered in favour of the person who claims the benefit of Section 6(3B) is that such family must also comprise of one individual and other members besides himself who must belong to all or any of the three specified categories. This test is also answered in favour of the respondent inasmuch as the family does comprise of the respondent and other members and from out of the other members, three belong to one of the specified categories viz. 'minor son '. In otherwords access to Section 6(3B) is barred by two doors. In order to secure entry the family must consist of more than 5 persons. If there are more than 5 persons including the land holder himself, the first door will be opened and the land holder will be entitled to have an access provided the second door does not bar his entry inside the beneficial area. The second door will also be opened provided that some of the other members meaning thereby members other than individual land holder belong to one of the three categories specified in the section. The second door would be opened provided he has got minor sons. Admittedly, the respondent has three minor sons. Therefore both the doors which bar the access of the land holder to the benevolent provisions are opened. It is not possible to accede to the submission that in ascertaining whether or not the pre condition is satisfied only the members of the specified category should be taken into account. For, to do so would be to kill the letter as well as the spirit of the concerned provision. We are therefore not prepared to uphold the plea of the appellant state that the High Court has not correctly interpreted the relevant provision in the case giving rise to the present appeal. Under the circumstances the appeal deserves to fail. But before we conclude we must set aright an inadvertent error made by the High Court in making computation of the extent of the additional land which the respondent was entitled to hold in excess of the prescribed ceiling in the context of section 6(3B). Computation in this behalf must be made by applying the formula embodied in Section 6(3B) viz. that the family shall be entitled to hold land in excess of the ceiling area to the extent of "one fifth of the ceiling area for each member in excess of five" subject to the rider that the total area does not exceed twice the ceiling area. It needs to be clarified that on a true interpretation of the provision "each member in excess of five" must of logical necessity mean each 'such ' member of the specified handicapped category. In the present case there were 3 members in the family and it comprised of three members of the specified category viz. 3 minor sons. Under the circumstances for each minor son in excess of the five members the holder was entitled to 1/5th of the ceiling area in excess of the pre 1076 scribed ceiling. That is to say he was entitled to 3/5th of the prescribed ceiling over and above the ceiling area subject to the rider that the total retainable holding of the family did not exceed twice the ceiling area. This aspect was lost sight of by the High Court in making the computation. Of course in the ultimate result in the facts of the present case nothing turns on it as in any view of the matter the extent of the land held by the family computed on this basis would not exceed twice the ceiling area. The holding of the family consisted of 60 acres and 4 gunthas. And making a computation on the aforesaid basis having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres (45/5=9x3=27). Thus he would be entitled to hold 72 acres (45+27=72) whereas the holding of respondent consisted of only 60 acres. Therefore the holding of the family was not in excess of the prescribed ceiling as computed in the aforesaid manner. While the High Court in terms followed its earlier decision in Nathekhan 's case (supra) it overlooked the ratio of the decision in this behalf. What was overlooked was the ratio reflected in the passage from para 6 of the decision extracted hereinbelow which is in accord with formula indicated by us: ". There were two minor sons in the family of Nathekhan and one minor son in the family of Majamkhan. Since the family unit of each brother exceeded five in number so far as Nathekhan is concerned, he was entitled to hold land in excess of the ceiling area to the extent of two fifth of the ceiling area and Majamkhan with one minor son was entitled to hold land in excess of the ceiling area to the extent of one fifth thereof. Since the excess land in the case of each brother was of 4 acres and 38.5 gunthas being less than even one fifth of the ceiling area, it could not be held that their holding exceeded the permissible ceiling. " We are therefore of the opinion that this appeal deserves to fail subject to the clarification in regard to the true position as regards computation of the permissible extent of land which can be held in the context of section 6(3B) of the Act. The appeal is disposed of accordingly. There will be no order regarding costs. P.S.S. Appeal dismissed.

The appellants were convicted under section 120B and section 224/109 of the Indian Penal Code and section 5(2) Of the Prevention of Corruption Act, 1947, by the Court of Special judge constituted under the Criminal Law (Amendment) Act, 1952. it was contended for them that the conviction was bad on the ground inter alia that the pardon tendered to the approver by the District Magistrate under section 337 of the Code of Criminal Procedure by virtue of which he was examined as a witness by the Special judge was without 1219 jurisdiction. The contention was that the provisions Of section 337 were not applicable to the case, as the offence under section 5(2) Of the Prevention of Corruption Act, 1947, was punishable with imprisonment which may extend to ten years, while section 337 Of the Code of Criminal Procedure enabled a District Magistrate to tender a pardon "in the case of any offence triable exclusively by the High Court or a Court of Session or any offence punishable with imprisonment which may extend to ten years. . But under sections 8(3) and 9 of the Criminal Law (Amendment) Act, 1952, for the purposes of the Code of Criminal Procedure, the Court of Special judge is deemed to be a Court of Session trying cases without jury : Held, that although the offence was triable exclusively by the Court of Special judge, the District Magistrate had authority to tender a pardon under section 337 of the Code of Criminal Procedure, as the Court of Special judge was, in law, a Court of Session.

100 of 1958. Petition under Article 32 of the Constitution for enforcement of fundamental rights. M. K. Nambyar, K. Mangachari, G. Suryanarayana and P. V. R. Patachari, for the petitioners and intervener. M. C. Setalvad, Attorney General for India, R. Ganapathi lyer, P. R. Ramachandra Rao and T. M. Sen, for the respondents. November 5. The Judgment of Das, C. J., Bhagwati and Subba Rao, JJ., was delivered by Subba Rao, J. Sinha and Wanchoo, JJ., delivered separate judgments. SUBBA RAO, J. This is an application under article 32 of the Constitution for the enforcement of the petitioners fundamental right to carry on the business of motor transport in Krishna District in Andhra Pradesh, and for prohibiting the respondents from taking over the routes on which the petitioners have been plying their stage carriages. 41 322 The petitioners have been carrying on motor transport business in Krishna District for several years past by obtaining permits under the (IV of 1939), as amended by Act 100 of 1956, hereinafter called the Act, in respect of various routes. They estimate the value of their investment in the business at a sum of Rs. 20,00,000. The amending Act inserted a new Chapter IV A in the Act providing for the State Transport Undertaking running the business to the exclusion, complete or partial, of all other persons doing business in the State. Chapter IV A provided for a machinery called the State Transport Undertaking, defined under section 68 A(b) as an undertaking providing road transport service, to run the transport business in the State. In exercise of the powers conferred by section 68 C of the Act, one Shri Guru Pershad, styled as the General Manager of the State Transport Undertaking of the Andhra Pradesh Road Transport, published a scheme for the purpose of providing an efficient, adequate, economical and properly coordinated transport service in public interest to operate the transport service mentioned therein with effect from the date notified by the State Government. Objections were in vited within 30 days from the date of the publication of the proposal in the Official Gazette, viz., November 14, 1957. 138 objections were received. Individual notices were issued by the State Government by registered post to all the objectors. On December 26, 1957, the Secretary to Government, Home Department, in charge of transport, heard the objections. 88 of the objectors represented their cases through their advocates ; three of them represented their cases personally and the rest were not present at the time of hearing. After considering all the objections and after giving an opportunity to the objectors, their representatives and the representatives of the State Transport Undertaking the State Government found that the objections to the scheme were devoid of substance. On that finding, the State Government approved of the scheme in G.O. Ms. 58, Home (Transport IV), dated January 7, 1958, and the approved scheme was published in the 323 Andhra Pradesh Gazette dated January 9, 1958. The scheme was ordered to come into force with effect from January 10, 1958. The Government of Andhra Pradesh also established a Road Transport Corporation under the (LXIV of 1950), called the Andhra Pradesh Road Transport Corporation, with effect from January I I, ' 1958, and by its order dated January 11, 1958, the said Corporation was empowered to take over the management of the erstwhile Road Transport Department. The said Transport Corporation is now implementing the scheme of nationalisation of bus transport under a phased programme. The petitioners, who are plying their buses on various routes in Krishna District, apprehending that their routes would be taken over by the Corporation pursuant to the aforesaid scheme, seek the aid of this Court to protect their fundamental right to carry on their business against the action of the State Corporation on various grounds. Mr. M.K. Nambiar, appearing for the petitioners, contends that the scheme, in pursuance of which the bus routes operated by the petitioners are sought to be taken over by the State Road Transport Corporation, is ultra vires and illegal on two grounds, viz., (a) that the provisions of Chapter IV A of the Act violates the fundamental rights secured to the citizens by the Constitution and (b) that the scheme frained under the, Act is ultra vires the Act. The first ground is sought to be supported by the contention that Chapter IV A of the Act, in substance and effect, authorizes the State to acquire the undertakings of citizens without providing for compensation for the entire undertakings and therefore it is a fraud on the Constitution, particularly on article 31 thereof. Shortly stated, his argument is that under article 31 of the Constitution no law shall be made for the transfer of ownership or right to possession of any property to the State or to a Corporation without fixing the amount of compensation or specifying the principles on which compensation is to be determined and given, and that Chapter IV A of the Act is a colourable legislation enabling such a transfer of ownership without providing 324 for compensation for the property transferred, under the guise of cancellation of a permit. To appreciate this argument it would be convenient, at this stage, to read the relevant provisions of the Articles of the Constitution, omitting the words unnecessary for the purpose of this case. article 191 : All citizens shall have the right (g) to practise any profession, or to carry on any occupation, trade or business. (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to (i). . . . . . . . . . (ii) the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. article 311: No person shall be deprived of his property save by authority of law. (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any 'Court on the ground that the compensation provided by that law is not adequate. (2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a Corporation owned or controlled by the State, it shall not be deemed to 325 provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. " The Constitution (First) Amendment Act of 1951, which came into force on June 18, 1951, amended cl. (6) of article 19 by adding sub cl. (ii) to that clause, along with other amendments. Clause (2) of article 31 has been amended, and cl. (2A) has been inserted by the Constitution (Fourth) Amendment Act, 1955. Clause (2A) has been inserted with a view to supersede the majority decisions of this Court in the cases of State of West Bengal vs Subodh Gopal Bose (1), Dwarkadas Shriniwas of Bombay vs Sholapur Spinning and Weaving Co. Ltd. (2) and Saghir Ahmed vs State of U.P. (3). In Subodh Gopal 's case, a majority of a Bench of this Court held: Clauses (1) and (2) of article 31 are thus not mutually exclusive in scope and content, but should in my view, be read together and understood as dealing with the same subject, namely, the protection of the right to property by means of the limitations on the State power referred to above, the deprivation contemplated in clause (1) being no other than the acquisition or taking possession of property referred to in clause (2). " In Dwarkadas 's case (1),this Court, while confirming the aforesaid principle, held that the word 'acquisition ' has quite a wide concept, meaning the procuring of property or the taking of it permanently or temporarily and need not be confined to the acquisition of legal title by the State in the property taken possession of In Saghir Ahmed 's case (3) applying the said principles, this Court held (at p. 728): " If the effect of prohibition of the trade or business of the appellants (citizens) by the impugned legislation amounts to deprivation of their property or interest in a commercial undertaking within the meaning of article 31 (2) of the Constitution, does not the legislation offend against the provision of that clause inasmuch as no provision for compensation has been made in the Act? " (1) ; , 608. (2) ; (3) ; , 728. 326 It may be noted that though the said decision was given after the Constitution (First) Amendment Act 195 1, amending article 19 (6), it dealt with a matter that arose before the said amendment came into force. In the aforesaid decisions, this Court by a majority broadly laid down the two principles: (a) that both cls. (1) and (2) of article 31 dealt with the doctrine of 'eminent domain '; they dealt with the topic of 'compulsory acquisition of property '; and (b) that the word `acquisition ' does not necessarily imply acquisition of legal title by the State in the property taken possession of, but may comprehend cases where the citizen has been 'substantially dispossessed ' of the right to onion the property, with the result that the right to enjoy property has been seriously ' impaired or the value of the property has been 'materially ' reduced by the impugned State legislation. The Constitution (Fourth) Amendment Act, 1955, amended cl. (2) of article 31 and inserted cl. (2A) in that Article. The amendments, in so far as they are relevant to the present purpose, substitute in place of the words 'taken possession of or acquired ' the words 'compulsorily acquired or requisitioned ' and provide an explanation of the words `acquired and requisitioned ' in cl. The result is that unless the law depriving any person of his property provides for the transfer of the ownership or right to the possession of any property to the State, the law does not relate to 'acqtuisition or requisition ' of property and therefore the limitations placed upon the legislature under cl. (2) will not apply to such law. While realising this legal position brought about by the amendment to the Con stitution, the learned counsel contends that the right to do business is property as held in Saghir Ahmad 's case(1) and that Chapter IV A of the Act in effect transfers ownership of that business to the Corporation, owned or controlled by the State, though not directly but by the dual process of preventing the citizen from doing the business and enabling the Corporation to do the same business in his place and that that result is effected by a device with a view to avoid payment of (1) [1955] i S.C.R. 707, 728. 327 compensation for the entire business so transferred. The colourable nature of the legislation, the argument proceeds, lies in its device or contrivance to evade limitations imposed under article 31 (2). To solve the problem presented, it is necessary to have a correct appreciation of the phrase `colourable legislation '. This Court considered this question in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga(l). In that case the constitutional validity of the Bihar Land Reforms Act, 1950 (Bihar 30 of 1950), was questioned. In the context of the Bihar Land Reforms Act, 1950 (Bihar 30 of 1950), it was contended that the impugned Act was a fraud on the Constitu tion and therefore void. It was stated that the Act, while pretending to comply with the Constitutional provisions when it provided for the payment of compensation, in effect produced a scheme for non payment of compensation by shift or contrivance. Mahajan, J., as he then was, in rejecting the argument observed at p. 947, thus: " All these principles are well settled. But the question is whether they have any application to the present case. It is by no means easy to impute a dishonest motive to the legislature of a State and hold that it acted mala fide and maliciously in passing the Bihar Land Reforms Act or that it perpetrated a fraud on the Constitution by enacting this law. It may be that some of the provisions of the Act may operate harshly on certain persons or a few of the zamindars and may be bad if they are in excess of the legislative power of the Bihar Legislature but from that circumstance it does not follow that the whole enactment is a fraud on the Constitution. From the premises that the estates of half a dozen zamindars may be expropriated without payment of compensation, one cannot jump to the conclusion that the whole of the enactment is a, fraud on the Constitution or that all the provisions as to payment of compensation are illusory." The aforesaid observations lend support to the argument that the doctrine of colourable legislation imputes dishonest motive or mala fides to the State (1) 328 making the law. But, Mukherjea, J., as he then was, clarified the legal position in K. C. Gajapati Narayan Deo vs The State of Orissa (1). It was contended in that case that the Orissa Estates Abolition Act, 1952, was a colourable legislation and as such void. Adverting to that argument, Mukherjea, J., as he then was, says at p. 10 thus: " It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. . . If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamedtal rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression 'colourable legislation ' has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears on proper examination, to be a mere presence or disguise. As was said by Duff, J., in Attorney General for Ontario vs Reciprocal Insurers at p. 337): " Where the law making authority is of a limited or qualified character it may be necessary to examine (1) [1954] S.C.R. i. 329 with some strictness the substance of the legislation for the purpose of determining what is that the legislature is really doing. ' In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is, something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method. " We have quoted the observations in extensor as they neatly summarise the law on the subject. The legal position may be briefly stated thus: The legislature can only make laws within it legislative competence. Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution. The legislature cannot over step the field of its competency, directly or indirectly. The Court will scrutinize the law to ascertain whether the legislature by device put ports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. If, in fact, it has power to make the law, its motives in making the law are irrelevant. The learned counsel for the petitioners can only succeed if he can establish ' that the provisions of Chapter IV A constitute colourable legislation within the meaning of the aforesaid definition. To test the validity of the argument, it may be summarised thus : Business is I property ' within the meaning of article 191 (g) of the Constitution. Chapter IV A of the Act transfers the business to the Corporation controlled. by the State Government. Such a law should have provided for payment of compensation for the business transferred to the State Corporation ; instead, it adopted the device of cancelling the permit of the citizen and giving it to the Corporation and providing compensation to the citizen only for tile unexpired period of the permit. 42 330 We shall now proceed to ascertain whether any of the aforesaid ingredients of device or contrivance are established in this case. Does Chapter IV A, in effect and substance, authorize, in law or fact, the transfer of the business of the citizens to the State or a Corporation, owned or controlled by the State ? Under article 191 of the Constitution, every citizen has a fundamental right to carry on any business subject to reasonable restrictions imposed by the State under cl. (6) of article 19 in the interest of the general public. The Constitution (First) Amendment Act, 1951, reserved to the State the right to make law for carrying on by the State or by a Corporation, owned or controlled by the State, any business to the exclusion, complete or partial, of the citizens or otherwise. The Constitution, therefore, enables the State to make a law placing reasonable restrictions on the right of a citizen to do business or to create a monopoly or to make a law empowering the State to carry on business to the exclusion of a citizen. The right to carry on business in transport vehicles on public pathways is certainly one of the fundamental rights recognized under article 19 of the Constitution. The (IV of 1939), regulates the right of a citizen to carry on the said business for protecting the rights of the public generally. 'Permit ' is defined under cl. (20) of section 2 of the Act to mean the document issued by the Commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle. Section 57 of the Act prescribes the procedure for applying for and granting permits to carry on the business in transport vehicles on public highways. Section 47 lays down the matters to be considered by the Regional Transport Authority in the disposal of applications for such transport carriers. Section 59 gives the conditions of every permit and also prohibits the transfer of permit. from one person to another except with the permission of the Transport Authority. Under section 60, the Transport Authority which granted permit may cancel the permit or may suspend it for 331 such period as it thinks fit for any of the reasons mentioned therein. Section 61 provides for cases where, a permit holder dies. That section enables the success . sor to use the permit for a period of three months and to get the permit transferred to him subject to the conditions laid down therein. Section 68 F authorises the Regional Transport Authority, for the purpose of giving effect to an approved scheme in respect of a notified area or notified route, to refuse to entertain any application for the renewal of any other permit, to cancel any existing permit, to modify the terms of any existing permit so as to render the permit ineffective beyond a specified date, and to reduce the number of vehicles authorised to be used under the permit. It is manifest from the aforesaid provisions that the Regional Transport Authority can, in exercise of its regulatory power conferred on it in the interest of the public, issue a permit to a 'person in regard to a stage carriage authorising him to use the same in a particular route for a particular period subject to the conditions laid down in the permit, suspend or cancel the same under specified conditions, and renew or refuse to renew the same after the expiry of the period subject to the conditions laid down in the Act. Under Ch. IV A, if a scheme has been promulgated empowering the State Transport Undertaking to take on hand the transport service in relation to any area, route or portion thereof to the exclusion of any person, who has been carrying on the business in that route, the Transport Authority is empowered to cancel the existing permit and issue a permit to the State Transport Undertaking. It cannot be said that if the Transport Authority cancels the permit of a person carrying on his transport business in a route and gives it to another, the process in. volves a transfer of business or undertaking of the quondam permit holder to the new entrant. Indeed the process does not involve even a transfer of the permit from one to another. The true position is that one permit comes to an end and another permit comes into being. The power of cancellation of a permit in favour of one and issuing a new permit to another are 332 necessary steps in the regulatory jurisdiction entrusted to the Regional Transport Authority. The business of one has nothing to do with the business of another; they are two independent businesses carried on under two different licences. If that be the true legal position in the case of issue of permits before Chapter IV A was inserted in the Act, we cannot see that the power of cancellation of an existing permit and issuing one to the State Transport Undertaking should involve a transfer of the previous permit holder 's business to the State Transport Undertaking. The argument that the process contemplated by section 68 F of the Act involves two integrated steps, viz., cancelling the existing permit and preventing the previous permit holder from doing the business and then issuing a permit to a nominee of the State to enable it to do the same business and thereby, in effect and substance, transferring the business of the existing permit holder to the State or its nominee, appears to be attractive, but, in our view, it is fallacious. It may be that by the said process the existing permit holder is precluded from doing his business and it may also be that the State Transport Undertaking carries on a similar business; but by no stretch of language or extension of legal fiction can it be said that the State Transport Undertaking is doing the same business which the previous permit holder was doing. If there is no transfer in the case of cancellation of a permit in favour of one and issue of a new permit to another, equally there cannot be any such transfer in the case of issue of a permit to the State Transport Undertaking. Looking at the business not simply from the standpoint of the right to do it or the activity involved in it, but also from the standpoint of its assets, it becomes clear that no assets pertaining to the business of the quondam permit holder are transferred to the State Transport Undertaking. Though the cancellation of the permit has the effect of crippling his business, none of the assets of the business is taken over by the State Transport Undertaking; he is left in the possession of the entire assets of the business. It is no doubt true that in the context of the scheme of nationalisation he may not be able to make 333 use of his assets in other routes or dispose of them at a great advantage to himself; but, it cannot be said that by cancelling the permit, what is left with him is only the ' husk '. In fact the entire assets of the business are left with him and the State Transport Undertaking has not taken over the same. Lastly it is said that sections 68 G of the Act which provides for payment of compensation to the holder of the permit, indicates that the legislature proceeded on the basis that the cancellation of a permit involved a transfer of property ' from the previous permit holder to the State. In our view, no such irresistible conclusion flows from the said provision; as the permit is cancelled before the expiry of the term fixed therein, the legislature thought it fit and proper to give some compensation to the permit holder who is prevented from doing his business for the unexpired period of the permit. Whether it is enacted by way of abundant caution, as the learned Attorney General says, or the provision is made by the legislature to mitigate the hardship that is caused to the permit holder by the premature cancellation of the permit, we find it difficult to draw the inference from the said provision that the legislature assumed that a transfer of the business is involved in the process laid down in Chapter IV A. We therefore bold that Chapter IV A of the Act does not provide for the transfer of ownership or the right to possession of any property to the State or to a Corporation, Owned or controlled by the State. Under article 31 of the Constitution unless there is such a transfer, the law shall be deemed not to provide for compulsory acquisition or requisition of property ; and therefore, in such a case, no compensation need be provided for under article 31(2) of the Constitution. We therefore hold that Chapter IV A of the Act does not infringe the fundamental right of the petitioners under article 31 of the Constitution of India. The next argument of the learned counsel for the petitioners is that even if Chapter 1V A of the Act is constitutionally valid, the petitioners could be deprived of their rights only in accordance with the law enacted for the purpose and in the manner provided 334 therein, and that in the present case, the scheme was promulgated in derogation of the provision of the said Chapter. The learned counsel contends that the provisions of Bs. 68 C and 68 D have not been complied with in framing the scheme. The learned counsel 's contentions in this regard fall under different sub heads, and we shall proceed to consider them seriatim. The first contention is that no State Transport Undertaking is constituted under the Central Act and therefore the scheme initiated by the said Transport Undertaking constituted under the Motor Vehicles (Hyderabad Amendment) Act, 1956, ",as bad. To appreciate this argument some of the facts may be stated. Before the State of Andhra Pradesh was formed in November 1956, eight districts, popularly called the Telengana, which are now in the Andhra Pradesh State, were formerly part of the Hyderabad State. On September 29, 1956, the Motor Vehicles (Hyderabad Amendment) Act, 1956, became law, whereunder Chapter IV A was inserted in the Central Act in its application to the State of Hyderabad. Under section 68_ A of Chapter IV A of that Act, the State Transport Undertaking was defined to mean the Road Transport Department of the State providing road service. Under that Act, therefore, the Road Transport Department of the Hyderabad State was functioning as a statutory authority. After the States Reorganisation Act came into force, the said eight districts of the Hyderabad State became part of the State of Andhra Pradesh; with the result that the Road Transport Department of the Hyderabad State became the Road Transport Department of the State of Andhra Pradesh, though it was exercising its powers only in respect of that part of the Andhra Pradesh State, popularly known as Telengana. After the Andhra Pradesh State was formed, Sri Guru Pershad, styled as the General Manager of the Andhra Pradesh Road Transport Undertaking, published the scheme under section 68 C of the Act. The argument is that the State Transport Authority constituted under Chapter IV A of the Hyderabad (Amendment) Act was not legally 335 constituted as the State Transport Undertaking under the Central Act and, therefore, the initiation of the scheme by the Hyderabad State Transport Undertaking, which has no legal status under the Central Act was bad. It is also pointed out that the State Transport Authority under the Hyderabad Act differs from that under the Central Act in the following three, respects: (1) statutory parentage; (2) character and constitution ; and (3) territorial jurisdiction; and therefore the authority constituted under the Hyderabad Act cannot function under the Central Act. This argument has no relevancy to the facts of the present case. We are not concerned in this case with a statutory authority created under one Act and pressed into service for the purpose of another Act, when the latter has adopted the said statutory authority as one constituted under that Act. Here there is the Andhra Pradesh Road Transport Department providing road transport service in Telengana, which is a part of that State, and that Department, when it was a part of the Hyderabad State was functioning as part of the Hyderabad State Secretariat. The mere fact that the Road Transport Department of the Andhra Pradesh State was originally part of a department of another State and came under the definition of the State Transport Undertaking of the Hyderabad Act could not make the said department any the less the Road Transport Department of the Andhra Pradesh State. Assuming. for a moment that the Hyderabad Act is still in force in the Telengatia area, there is nothing in law which prevents a department coming under the definition of two statutes. Under the Act, the State Transport Undertaking means an Undertaking providing road trasport service where such undertaking is carried on by a State Government. This section does not prescribe the parentage of the undertaking or impose a condition that the undertaking should be providing transport service throughout the State. The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking. The citation from Salmond on, 336 Jurisprudence to the. effect that the law in creating legal persons always does so by personifying some real thing does not touch the question that falls to be decided in this case; for, the real thing, viz., the department, falls under the definition of both the Acts and therefore it can function as a statutory authority under both the Acts. We therefore hold that the Road Transport Department of the Andhra Pradesh Government is a State Transport Undertaking under the Central Act and therefore it was within its legal competence to initiate the scheme. The next objection raised is that the scheme was published by Sri Guru Pershad, the General Manager of the State Transport Undertaking and that it has not been established that he had been legally authorized to represent the State Transport Undertaking, the statutory authority constituted under the Act. We have already held that the Transport Department of the disintegrated Hyderabad State continued to function as the Transport Department of the Andhra Pradesh State after the merger of Telengana areas with the Andhra State. In the affidavit filed by the petitioners, it is stated that Sri Guru Pershad was the General Manager of the Road Transport Department of the erstwhile Hyderabad State, that he was never appointed as the General Manager of the State Transport Undertaking of the Andhra Pradesh State and that, therefore, he had no legal authority whatever to publish the scheme. In the counter affidavit filed on behalf of the first respondent, it is averred that the General Manager of the Andhra Pradesh Road Transport, which was a State Transport Undertaking within the meaning of section 68 B of the Act, prepared a scheme and that was published in the Andhra Pradesh Gazette on November 14, 1957. It is therefore a common case that Sri Guru Pershad was the General Manager of the Road Transport Undertaking of the erstwhile Hyderabad State. It is not denied that Sri Guru Pershad continued to be the General Manager of that Department functioning in Andhra Pradesh. We have already held that the same department was the statutory authority functioning under 337 the Central Act. Sri Guru Pershad was also the General Manager of that undertaking. In the circumstances, there is no substance in the contention that Sri Guru Pershad should have been appointed as the General Manager of the Undertaking under the Central Act. This is the first argument under a different garb. The preexisting Road Transport Department of the erstwhile Hyderabad State, with its General Manager, Sri Guru Pershad, continued to function as a statutory authority under the Central Act and therefore he had the legal authority to represent the State Transport Undertaking, which was a statutory authority. lie published the scheme and subscribed it as Guru Pershad, the General Manager of the State Transport Undertaking (Andhra Pradesh State Road Transport). The notification, therefore, must be held to have been issued by the State Transport Undertaking functioning under the Central Act. The learned counsel then contends that the scheme published does not disclose that the State Transport Undertaking was of the opinion that the scheme was necessary in the interests of the public and, therefore, is the necessary condition for the initiation of the scheme was not complied with, the scheme could not be enforced. Section 68 C says that where any State Transport Undertaking is of opinion that for specified reasons it is necessary in the public interest that road port service should be run or operated by the Transport Undertaking, it may prepare a scheme giving particulars of the scheme and publish it in the Official Gazette. An express recital of the formation of the opinion by the Undertaking in the scheme is not made a condition of the validity of the scheme. The scheme published in terms of the section shall give particulars of the nature of the service proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto. It is true that the preparation of the scheme is made to depend upon the subjective opinion of the State Undertaking as regards the necessity for such a scheme. The 43 338 only question, therefore, is whether the State Transport Undertaking formed the opinion before preparing the scheme and causing it to be published in the Official Gazette. The scheme published, as already noticed, was signed by Guru Pershad, General Manager, State Transport Undertaking, Andhra Pradesh Road Transport. The preamble to the scheme reads : " In exercise of the powers conferred by section 68 C of the , it is hereby proposed, for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service in public interest, to operate the following transport services as per the particulars given below with effect from a date to be notified by the Government. " We have already held that Guru Pershad represented the State Transport Undertaking. The scheme was proposed by the said Undertaking in exercise of the powers under section 68 C of the Act for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service in public interest. Except for the fact that the word 'opinion ' is omitted, the first part of the section 68 C is incorporated in the preamble of the scheme ; and, in addition, it also discloses that the scheme is proposed in exercise of the powers conferred on the State Transport Undertaking under section 68 C of the Act. The State Transport Authority can frame a scheme only if it is of opinion that it is necessary in public interest that the road transport service should be run or operated by the Road Transport Un dertaking. When it proposes, for the reasons mentioned in the section, a scheme providing for such a transport undertaking, it is a manifest expression of its opinion in that regard. We gather from a reading of the scheme that the State Transport Undertaking formed the necessary opinion before preparing the scheme and publishing it. The argument of the learned counsel carries technicality to a breaking point and for the aforesaid reasons, we reject it. The next attack of the learned counsel centres round the provisions of section 68 D (2) of the Act. It would be convenient, before adverting to his argument, to read 339 section 68 D and the relevant rules made under the Act. They read : Sec. 68 D : (1) Any person affected by the scheme published under section 68 C may, within thirty days from the date of the publication of the scheme in the Official Gazette, file objections thereto before the State Government. (2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify the scheme. (3) The scheme as approved or modified under sub section (2) shall then be published in the Official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route. Provided that no such scheme which relates to any inter State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette with previous approval of the Central Government. Rule 8 : Filing of objections (procedure) Any person, concern or authority aggrieved by the scheme published under section 68 C may, within the specified period, file before the Secretary to Government in charge of Transport Department, objections and representations in writing setting forth concisely the reasons in support thereof Rule 9 : Conditions for submission of objections No representation or objection in respect of any scheme published in the Official Gazette shall be considered by the Government unless it is made in accordance with rule 8. Rule 10 : Consideration of scheme (Procedure regarding) : After the receipt of the objections referred to above, the Government may, after fixing the date, time and place for holding an enquiry and after giving if they so desire, at least seven clear days ' notice of 340 such time and place to the persons who filed objections under rule 8, proceed to consider the objections and pass such orders as they may deem fit after giving an Opportunity to the person of,being heard in person or through authorised representatives. " Under the section, the procedure prescribed for the approval of a scheme may be summarized thus : The State Transport Undertaking prepares a scheme providing for road transport service in relation to an area, to be run or operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons, and publishes it in the Official Gazette. Any person affected by the scheme may, within thirty days from the date of its publication, file before the Secretary to Government in charge of Transport Department objections and representations in writing with reasons in support thereof. After receiving the objections and representations, the Government fixes a date for the hearing and after giving an opportunity to the persons of being heard in person or by authorized representatives, considers the objections and then modifies or approves of the scheme. The following procedure was in fact followed by the Government in this case: After the scheme was prepared and published in the Official Gazette, the petitioners and others filed objections before the Secretary to Government Transport Department, within the time prescribed. 138 objections were received and individual notices were issued by the Government by registered post to all. the objectors fixing the date of the hearing for December 26, 1957. The Secretary to Government, Home Department, in charge of Transport, heard the representations made by the objectors, some in person and others through their advocates, and also the representation is made by the General Manager of the Road Transport Undertaking. The Secretary, after hearing the objections, prepared notes and placed the entire matter, with his notes, before the Chief Minister, who considered the matter and passed orders rejecting the objections and approving the scheme; and the approved scheme was thereafter issued in the name of the Governor. 341 On the aforesaid facts, the first contention raised is that the State Government in approving the scheme was discharging a quasi judicial act and therefore the Government should have given a personal hearing to the objectors instead of entrusting that duty to its Secretary. Secondly, it is stated that a judicial hearing implies that the same person hears and gives the decision. But in this case the hearing is given by the Secretary and the decision by the Chief Minister. Thirdly, it is contended on the same hypothesis, that even if the hearing given by the Secretary be deemed to be a hearing given by the State Government, the hearing is vitiated by the fact that the Secretary who gave the hearing is the Secretary in charge of the Transport Department. The Transport Department, it is stated, in effect was made the judge of its own cause, and this offends one of the fundamental principles of judicial procedure. Lastly, it was pointed out that though the enquiry was posted for hearing on December 26, 1957, even before the enquiry was commenced, the Chief Secretary to the Government gave an interview to the 'Deccan Chronicle ' and the I Golconda Patrika ' to the effect that the Government bad already taken a decision to nationalize the road transport in Krishna District and some routes had been chosen, including the Guntur Vijayawada route, thereby indicating that the Government has prejudged the case before holding the enquiry. The learned Attorney General counters the said argument by stating that the State Government strictly followed the procedure prescribed under section 68 C of the Act, that the said Government, being an impersonal body, (gave the hearing through the machinery prescribed by law, that the said Government was discharging only an administrative act and not a judicial act in the matter of approving the scheme, that even if it did perform a judicial act, the Home Secretary in charge of Transport Department had only collected the material and the final orders were made only by the Chief Minister and that the Secretary 's press interview was nothing more than a mere indication of the factum of the proposed scheme. 342 At the outset it would be convenient to consider the question whether the State Government acts quasijudicially in discharging its functions under section 68 C of the Act. The criteria to ascertain whether a particular act is a judicial act or an administrative one, have been laid down with clarity by Lord Justice Atkin 'in Rex vs Electricity Commissioners, Ex Parte London Electricity Joint Committee Co. (1) elaborated by Lord Justice Scrutton in Rex vs London County Council, Ex Parte Entertainments Protection Association Ltd. (2) and authoritatively re stated by this Court in Province of Bombay vs Khusaldas section Advani (3) . They laid down the following conditions: (a) the body of persons must have legal authority; (b) the authority should be given to determine questions affecting the rights of subjects and (c) they should have a duty to act judicially. In the last of the cases cited supra, Das, J., as he then was, analysed the scope of the third condition thus at page 725: " (i) that if a statute empowers an authority not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; and (ii)that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to the act and the subject opposing it, the final determination of the authority will yet be a quasi. judicial act provided the authority is required by the statute to act judicially. " In the case In re Banwarilal Roy (4) Das, J., as he then was, said much to the same effect at page 800: " A judicial or quasi judicial act, on the other hand, implies more than mere application of the mind (1) (3) ; (2) (4) 343 or the formation of the opinion. It has reference to the mode or manner in which that opinion is formed. It implies a proposal and an opposition ' and a decision on the issue. It vaguely connotes 'hearing evidence and opposition ' as Scrutton, L. J., expressed it. The degree of formality of the procedure as to receiving or hearing evidence may be more or less according to the requirements of the particular statute, but there is an indefinable yet an appreciable difference between the method of doing an administrative or executive act and a judicial or quasi judicial act. " This statement is practically in accord with the first proposition extracted above. This Court again, in Nagendra Nath Bora vs Commissioner of Hills Division (1) in the context of the provisions of Eastern Bengal and Assam Excise Act, 1910 (I of 1910), considered the scope of the concept of 'judicial act '. Sinha, J., who delivered the. judgment of the Court, made the following observations at page 408: " Whether or not an administrative body or authority functions as a purely administrative one or in a quasi judicial capacity, must be determined in each case, on an examination of the relevant statute and the rules framed thereunder." In Express Newspapers Ltd. vs The Union of India (2) this Court again reviewed the law on the subject to ascertain whether the Wage Board functioning under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955) was only discharging administrative functions or quasijudicial functions. Bhagwati, J., made the following observation at page 613: " If the functions performed by the Wage Board would thus consist of the determination of the issues as between a proposition and an opposition on data and materials gathered by the Board in answers to the questionnaire issued to all parties interested and the evidence led before it, there is no doubt that there would be imported in the proceedings of the Wage Board a duty to act judicially and the functions (1) ; (2) 344 performed by the Wage Board would be quasi judicial in character. " The aforesaid three decisions lay down that whether an administrative tribunal has a duty to act judicially should be gathered from the provisions of the particular statute and the rules made thereunder, and they clearly express the view that if an authority is called upon to decide respective rights of contesting parties or, to put it in other words, if there is a lis, ordinarily there will be a duty on the part of the said authority to act judicially. Applying the aforesaid test, let us scrutinize the provisions of sections 68 C and 68 D and the relevant rules made under the Act to ascertain whether under the said provisions the State Government performs a judicial act or an administrative one. Section 68 C may be divided into three parts: (1) The State Transport Undertaking should come to an opinion that it is necessary in public interest that the road transport service in general or any particular. class of such service in relation to any area or route or portion thereof should be run or operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise ; (ii) it forms that opinion for the purpose of providing an efficient, adequate, economical and properly co ordinated road transport service; and (iii) after it comes to that opinion, it prepares a scheme giving particulars of the nature of the services proposed to be rendered, area or route proposed to be covered and such other particulars respecting thereto as may be prescribed and causes it to be published in the Official Gazette. The section, therefore, makes a clear distinction between the purpose for which a scheme is framed and the particulars of the scheme. To state it differently, though the purpose is to provide an efficient, adequate, economical and coordinated road transport service in public interest, the scheme proposed may affect individual rights such as the exclusion, complete or partial, of other persons or otherwise, from the business in any particular route or routes. Under section 68 C, therefore, the State Transport Undertaking may propose a scheme affecting the proprietary rights 345 of individual permit holders doing transport business in a particular route or routes. The said proposal threatens the proprietary right of that individual or individuals. Under section 68 D read with Rules 8 and 10 made under the Act, any person affected by the aforesaid proposed, scheme may file objections within the prescribed time before the Secretary of the Transport ' Department. Under the said provisions,. the State Government is enjoined to approve or modify the scheme after holding an enquiry and after giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard in the matter in person or through authorised representatives. Therefore, the, proceeding prescribed is closely approximated to that obtaining in courts of justice. There are two parties to the dispute. The State Transport Undertaking, which is a statutory authority under the Act, threatens to infringe the rights of a, citizen. The citizen may object to the scheme on public grounds or on personal grounds. He may oppose the scheme, on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from the scheme for various reasons. , There is, therefore, a proposal and an opposition and the third party, the State Government is to decide that lis and prima facie it must do so judicially. The position is put beyond any doubt by the provision in the Act and the Rules which expressly require that the State Government must decide the dispute according to the procedure prescribed by the Act and the Rules framed thereunder, viz., after considering the objections and after hearing. both the parties. It therefore appears to us that this is an obvious case where the Act imposes a duty on the State Government to decide the act judicially in approving or modifying the scheme proposed by the Transport Undertaking. The learned Attorney General argues that sections 68 C and 68 D do not contemplate the enquiry in regard to the rights of any parties, that the scheme proposed is 44 346 only for the purpose of an efficient, adequate, economical and properly coordinated bus transport service and should relate only to that purpose and that, therefore, the enquiry contemplated under section 68 D, though assimilated to a judicial procedure, does not make the approval of the scheme any the less an administrative act. To put it shortly, his contention is that the Government is discharging only an administrative duty in approving the scheme in public interest and no rights of the parties are involved in the process. There is some plausibility and attraction in the argument, but we cannot accept either the premises or the conclusions. The scheme proposed may exclude persons, who have proprietary rights in a route or routes. As we have pointed out, the purpose must be distinguished from the particulars in the scheme. The scheme propounded may exclude persons from a route or routes and the affected party is given a remedy to apply to the Government and the Government is enjoined to decide the dispute between the contesting parties. The statute clearly, therefore, imposes a duty upon the Government to act judicially. Even if the grounds of attack against the scheme are confined only to the purpose mentioned in section 68 C we cannot agree with this contention the position will not be different, for, even in that case there is a dispute between the State Transport Undertaking and the person excluded in respect of the scheme, though the objections are limited to the purpose of the scheme. In either view the said two provisions, sections 68 C and 68 D, comply with the three criteria of a judicial act laid down by this Court. Support is sought to be drawn for this contention from the decision of the House of Lords in Franklin vs Minister of Town and Country Planning (1). As strong reliance is placed on this decision, it is necessary to consider the same in some detail. The facts of that case are: On August 3, 1946, the respondent, Lewis Silkin, as Minister of Town and Country Planning, prepared the draft Stevenage New Town (Designation) Order, 1946, under para. 1 of Schedule 1 to the New (1) ; 347 Towns Act, 1946, and on or about August 6, 1946, he caused the same to be published and notices to be given as prescribed by paragraph 2 of Schedule I to the Act. Thereafter objections were received from a number of persons, including the appellants. Accordingly, the respondent instructed Mr. Arnold Morris, an Inspector of the Ministry of Town and Country Planning, to hold a public local inquiry as prescribed by paragraph 3 of the said Schedule. Mr. Morris held the inquiry at the Town Hall, Stevenage, on October 7 and 8, 1946, and on October 25, made a report to the respondent in which he set out a summary of the sub. missions made and the evidence given by and on behalf of the objectors and attached thereto a complete transcript of the proceedings, which began with an opening statement by Mr. Morris giving a brief recapitulation of the reasons that had led to the designation of Stevenage as the site of a New Town. On November 11, 1946, the respondent made the order in terms of paragraph 4 of Schedule I to the Act. The appellants applied to the High Court to have the order quashed. It was contended, inter alia, that the said order was not within the powers of the New Towns Act, 1946, or alternatively, that the requirements of the said Act have not been complied with; that the Minister who made the order had stated, before the Bill was made into law, that he would make the said order, and therefore he was biassed in any consideration of the said objections. The House of Lords held that the respondent 's functions under the Act were only administrative and that he had complied with the provisions of the statute. In that view, the order of the Court of Appeal dismissing the applications filed by the appellants was confirmed. Lord Thankerton in his speech at page 102, observed thus: "In my opinion, no judicial, or quasi judicial, pinion, no duty was imposed on the respondent, and any reference to judicial duty, or bias, is irrelevant in the present case. The respondent 's duties under section 1 of the Act and sch. 1 thereto are, in my opinion, purely administrative, but the Act prescribes certain methods of or steps in, discharge of that duty. . . . it 348 seems clear also, that the purpose of inviting objections, and, where they are not Withdrawn I of having a public inquiry, to be held by someone other than the respondent, to whom that person reports, was for the further information of the respondent in order to the final consideration of the Soundness of the scheme ' of the designation. . . . I am of opinion that no judicial duty is laid on the respondent in discharge of these statutory duties, and that the only question is whether he has complied With the Statutory directions to appoint a person to hold the public inquiry, and to consider that person 's report. At first sight the facts of this case may appear to have some analogy to those in the present case, but on "a deeper scrutiny of the facts and the provisions of the New Towns Act, 1946, and Chapter IV A of the Act, they disclose essential differences in fundamentals. Under the New Towns Act, 1946, the following steps for developing a new town have been laid down: (1) It is left to the Minister 's Subjective satisfaction, after consulting local authorities, who appear to him to be concerned, to make an order designating. a particular area as the site of the proposed new town ; (2) when he proposes to make an order, he prepares a draft of that order giving the necessary parti culars and publishes it in the London Gazette calling for objections to the, proposed order within a prescribed time; (3) if any objection is made to the proposed order, he shall cause a public local enquiry to be held and shall consider the report of the person by whom the enquiry was held; and (4) any person desiring to challenge the validity of that order may apply to the High Court and he can get that order set aside only if he satisfies the Court that the order is not within the powers of that Act or that his interests have been substantially prejudiced by any requirements of that Act not having been complied with. The steps to be taken for nationalising the Road Transport under the Act are as follows: (1) The State Transport Undertaking, which is a statutory authority under the Act, proposes a scheme; (2) the scheme may provide that the road transport services 349 should be run or operated by the State Transport Undertaking to the exclusion of a person or persons; (3) any Person, affected may file objections before the Government;(4) the Government following the rules of judicial procedure decides the dispute between the Undertaking and the person or persons affected; (5)the dispute is not necessarily confined only to the question whether the 'statutory requirements have been complied with, but may also relate to the question whether a particular person or persons should not. be excluded; and (6) a personal hearing should be given to both the parties by the Government. A comparison of the procedural steps under both the Acts brings out in bold relief the nature of the enquiries contemplated under the two statutes. There, there is no lis, no personal hearing and even the public enquiry contemplated by a third party is presumably confined to the question of statutory requirements, or at any rate was for eliciting further information for the Minister. Here, there is a clear dispute between the two parties. The dispute comprehends not only objections raised on public grounds, but also in vindication of private rights and it is required to be decided by the State Government after giving a personal ' hearing and following the rules of judicial procedure. Though there may be some justification for holding, on the facts of the case before the House of Lords that that Act did not contemplate a judicial act on that question we do not propose to express our opinion there is absolutely none for holding in the present case that the Government is not performing a judicial act. Robson in 'Justice and Administrative Law ', commenting upon the aforesaid decision, makes the following observation at page 533: " It should have been obvious from a cursory glance at the New Towns Act that the rules of natural justice could not apply to the Minister 's action in making an order, for the simple reason that the initiative lies wholly with him. His role is not to consider whether an order made by a local authority should be confirmed, nor does he have to determine a controversy between a, public authority and private interests. 350 The responsibility of seeing that the intention of Parliament is carried out is placed on him. " The aforesaid observations explain the principle underlying that decision and that principle cannot have any application to the facts of this case. In I Principles of Administrative Law by Griffith and Street, the following comment is found on the aforesaid decision : After considering the provisions of section 1 of the New Towns Act, 1946, the authors say " Like the town planning legislation, this differs from the Housing Acts in that the Minister is a party throughout. Further, the Minister is not statutorily required to consider the objections. It is obvious, as the statute itself states, that the creation of new towns is of national interest. " At page 176, the authors proceed to state: Lord Thankerton did not analyse the meanings of I judicial ' and I administrative nor did he specify the particular factors which motivated his classification. It is permissible to conclude that he looked at the Act as a whole, applying a theory of interpretation similar to the rule in Heydon 's Case ; , 7b). " At page 178, they conclude thus: " It is submitted, however, that the thoroughness with which the Courts analysed the statutes in the Errington, Robinson, Johnson and Franklin Cases and the emphasis which they have placed on the fact that their decisions have been based solely on the statute under consideration makes such an approach inevitable. " It is therefore clear that Franklin 's Case is based upon the interpretation of the provisions of that Act and particularly on the ground that the object of the enquiry is to further inform the mind of the Minister and not to consider any issue between the Minister and the objectors. The decision in that case is not of any help to decide the present case, which turns upon the construction of the provisions of the Act. For the aforesaid reasons, we hold that the State Government 's order under section 68 D is a judicial act. 351 The next question is whether the State Government disposed of the objections of the petitioners judicially in the manner prescribed by the Act. It is said that under the Act and rules framed thereunder, the State Government should hear the dispute, but in this case the Secretary in charge of the Transport Department, who is not the State Government, gave the hearing. The State Government is an impersonal body and it can only function through the machinery and in the manner prescribed by law. Clause (60) of section 2 of the , defines I State Government ' as respects anything done or to be done after the commencement of the Constitution (VII Amendment) Act, 1956, to mean, in a State, the Governor, and in a Union Territory, the Central Government. Under article 154(1) of the Constitution, I the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution '. Article 163 enacts that ' there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion '. Article 166(1) enjoins that I all executive action of the Government of a State shall be expressed to be taken in the name of the Governor '. Sub clause (2) of that Article says that 'orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor '. And under sub cl. (3), 'the Governor shall make rules for tile more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion '. In exercise of the powers conferred by cls. (2) and (3) of article 166 of the Constitution, the Government of Madras made rules styled as 'The Madras Government Business Rules and Secretariat Instructions '. Rule 9 thereof prescribes 352 that without prejudice to the provisions of r. 7, the Minister in charge of a. department shall be primarily responsible for,the disposal of the business appertaining to that department. Rule 21 enacts that except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may, by means of standing orders, give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief Minister. Rule 11 says that I all orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor '. Under r. 12, every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a draftsman, a Deputy Secretary, an, Under Secretary or an Assistant Secretary to the Government of the State or such other officers as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument '. After the formation of the Andhra State on, October 3, 1953, the rules made by the Governor of Madras, under the provisions of the States Reorganization Act, Continue to be the rules of the Andhra State till they are amended in accordance with ', such law. The Governor of Andhra State, in exercise of the powers conferred by cls. (2) and (3) of article 166 of the Constitution directed that until other provisions are made in this regard, 'the business of the Government of Andhra be transacted in accordance with the Madras Government Business Rules. and Secretariat Instructions in force on the first day of October, 1953 '. On October 26, 1956, after the formation of the Andhra Pradesh State, as the Andhra Pradesh was not a new State but a continuation of the Andhra State, though there is change, in its name, the business rules of the Andhra state continue to govern the Secretariat of the AndhraPradesh Government. The effect of the aforesaid provisions may be stated thus: A State Government 353 means the Governor; the executive power of the State vests in the Governor; it is exercised by him directly or by officers subordinate to him in accordance with the provisions of the Constitution; the Ministers headed by the Chief Minister advise him in the exercise of his functions; the Governor made rules enabling the Minister in charge of particular department to dispose of cases before him and also authorizing him, by means of standing orders, to give such directions as he thinks fit for the disposal of the cases in the department. Pursuant to the rule, the record discloses, the Chief Minister, who was in charge of Transport, had made an order directing the Secretary to Government, Home Department, to hear the objections filed against the scheme proposed by the State Transport Autho rity. The aforesaid machinery evolved by the rules for the disposal of cases by the State Government has been followed in this case. The petitioners and others filed objections to the proposed scheme before the Secretary to the Government Transport Department. He gave a personal hearing to the parties some of them appeared in person and others by representatives; the entire material recorded by him was placed before the Chief Minister in charge of Transport, who made his order approving the scheme; and the order was issued in the name of the Governor, authenticated by the Secretary in charge of the Transport Department. It may therefore be said that the State Government gave the hearing to the petitioners in the manner prescribed by the rules made by the Governor. At this state, the argument hinted at but not seriously pressed, may be noticed. The Rules the Governor is authorised to make, the argument proceeds, are only to regulate the acts of the Governor or his subordinates in discharge of the executive power of the State Government, and therefore will not govern the quasi judicial functions entrusted to it. There is a fallacy in this argument. The concept of a quasijudicial act implies that the act is not wholly judicial; 45 354 it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power. The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi judicial acts, provided those 'Rules conform to the principles of judicial procedure. The mode of performing quasi judicial acts by administrative tribunals has been the subject of judicial decisions in England as well as in India. The House of Lords in Local Government Board vs Arlidge (1) in the context of the Housing, Town Planning Etc., Act, 1909, made the following observations at page 132: " My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. " In New Prakash Transport Co., Ltd. vs New Swarna Transport Co., Ltd. (2) this Court reviewed the case law on the subject and came to the conclusion that the rules of natural, justice vary with varying constitutions of statutory bodies, and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act. This Court re affirmed the principle in Nagendra Nath Bora vs Commissioner of Hills Division (supra) (3). With this background we shall proceed to consider the validity of the three alleged deviations of the State Government from the fundamental judicial procedure. In the present case, the officer who received (1) (2) ; (3) ; 355 the objections of the parties and heard them personally or through their representatives, was the Secretary of the Transport Department. Under the 'Madras Government Business Rules and Secretariat Instructions ' made by the Governor under article 166 of the Constitution, the Secretary of a department is its head. One of the parties to the dispute before the State Government was the Transport Department functioning as a statutory authority under the Act. The head of that department received the objections, heard the parties, recorded the entire proceedings and presumably discussed the matter with the Chief Minister before the latter approved the scheme. Though the formal orders were made by the Chief Minister, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. It is one of the fundamental principles of judicial procedure that the person or persons who are entrusted with the duty of hearing a case judicially should be those who have no personal bias in the matter. In Ranger vs Great Western Ry. Co.(1) Lord Cranworth, L.C., says: 'A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other In ordinary cases it is just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent. " In Rex vs Sussex Justices Ex Parte McCarthy (2) Lord Hewart, C. J., observed: " It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance (1) ; , 89; ; , 827. (2) , 258. 356 but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspects as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done, but upon what might appear to be done. " This was followed in Rex vs Essex Justices Ex Parte Perkins(1).In Franklin 's Case (2), though on a construction of the provisions of that Act under consideration in that case it was held that the Minister was not acting judicially in discharging his duties, his Lordship accepted the aforesaid principle and expressd his view on the doctrine of 'bias ' thus, at page 103: " My Lords, I could wish that the use of the word 'bias ' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute. " The aforesaid decisions accept the fundamental principle of natural justice that in the case of quasi judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute. It is also a matter of fundamental importance that a person interested in one party or the other should not, even formally, take part in the proceedings though in fact he does not influence the mind of the person, who finally decides the case. This is on the principle that (1) (2) ; 357 justice should riot only be done, but should manifestly and undoubtedly be seen to be done. The hearing given by the Secretary, Transport Department, certainly offends the said principle of natural justice and the proceeding and the hearing given, in violation of that principle, are bad. The second objection is that while the Act and the ' Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure. The learned counsel further contends that the mind of the State Government was foreclosed before the hearing was given and therefore no real enquiry was held by it as contemplated by the Act. This argument is based upon the reports published on 27 12 1957 in the 'Deccan Chronicle ' and 'Golconda Patrika '. Therein it was stated under date December, 26, as follows : " The Chief Secretary, Mr. M. P. Pai, told pressmen today that the Government has already taken a decision to nationalize the road transport in Krishna District and some routes had been chosen. The Guntur Vijayawada route also comes under the nationalisation scheme. About 65 buses would be plying oil these routes. " The Chief Secretary was giving this information on December 6, 1957, even before the enquiry was commenced. On the basis of this publication, it is contended, that the Government had already taken a decision to nationalize the road transport before the scheme 358 was approved by the Government and that the entire procedure was put through to implement the decision already taken to meet the requirements of the technicalities of law. In the counter affidavit filed by the first respondent it is stated that the scheme was published in the Andhra Pradesh Gazette dated 24 12 1957 and that the alleged statement only referred to the said proposal under section 68 C of the . Though the wording of the information published speaks of the decision of the Government, the Chief Secretary obviously must have been referring to the contents of the notification published two days earlier, on 24 12 1957. We cannot from this publication in the newspapers come to the conclusion that the Government having finally decided to reject all possible objections, went through a farce of an enquiry. We therefore hold, for the first two reasons, that the quasi judicial enquiry held by the State Government was vitiated by the, violation of the aforesaid fundamental principles of natural justice. The last argument of the learned counsel for the petitioners is that the Road Transport Corporation, i.e., the first respondent, cannot implement the scheme proposed by the defunct State Transport Undertaking. Some of the relevant facts are as follows The State Transport Undertaking published the scheme in the Andhra Pradesh Gazette dated November 14, 1957. It also appeared through its representative, the General Manager, who made his representation to the Secretary of the Transport Department on 26 12 1957. The State Government approved of the scheme on 7 1 1958 and the approved scheme was published in the Andhra Pradesh Gazette dated 9 1 1958 and it was directed to come into force with effect from 10 1 1958. The Government of Andhra Pradesh established a Road Transport Corporation under the (Act LXIV of 1950), for the State of Andhra Pradesh, with effect from 11 1 1958. The State Government transferred the business of the Road Transport Department to the said Corporation for management. Thereafter, the said Corporation was taking subsequent steps to implement the scheme. 359 The argument is that the Road Transport Corporation has no power under the to take over the business of the State Transport Undertaking and to implement the scheme initiated by that Undertaking. The said Corporation admittedly comes under the definition of 'State Transport, Authority ' under the Act. But the question is whether ' the said Corporation is also a successor to the State Transport Authority that initiated the scheme. It would certainly be the successor if the Corporation was legally entrusted with the duty of carrying on the business the Road Transport Department was doing before. On January 9, 1958, in exercise of the powers conferred by section 3 of the , the Governor of Andhra Pradesh established with effect from January 11, 1958, a Road Transport Corporation called the Andhra Pradesh Road Transport Corporation for the State of Andhra Pradesh. In exercise of the power conferred by section 34 of the , the Governor of Andhra Pradesh made an order dated 11th January, 1958, for the following administrative arrangements to come into force "(I) The Andhra Pradesh Road Transport Corporation (hereinafter referred to as the Corporation) shall take over the management of the existing Road Transport Department of the Government of Andhra Pradesh. (2)All land and all stores, articles and other goods of the Road Transport Department shall pass to the Corporation. (3) (a) Subject to the provisions of sub paragraphs (b)and (c), all the assets and liabilities of the Road Transport Department shall pass to the Corporation. The other clauses need not be read as they are only consequential to the aforesaid clauses. It is therefore clear from the said order that the Government entrusted the management of the Road Transport Department to the Road Transport Corporation and directed the transfer of all assets and liabilities to the said Corporation. The effect of the said order is that the State 360 Corporation carries on the Road Transport business in the place of the State Transport Department which was functioning as the State Transport Undertaking under the Act before the said order. If there was no legal impediment in the Government transferring the business carried on by one of its departments and its assets to the Corporation, the Corporation would be a successor to the pre existing State Transport Undertaking. The petitioners contest the position that the Government has any such power under section 34 of the Road Transport Corporations. Act, 1950. Section 34 reads: "(1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment,, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits and stocks. (2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under subsection (1) except with the previous permission of the State Government. " The Road Transport Corporation Was constituted for extending and improving the facilities of the road transport in the Andhra Pradesh area. The Government transferred the Undertaking and its assets to that Corporation and gave it directions under section 34 of the , to take over the management of the said undertaking. The fact that under the Road Transport Corpora tions Act the Corporation can acquire an undertaking after paying compensation is not of much relevancy for, in this case, the Corporation does not purport to acquire any transport undertaking of the petitioners. It has not been brought to our notice that the said direction is inconsistent with any of the provisions of the . We, therefore, hold that the first respondent is the successor to the State Transport Undertaking which 361 proposed the scheme and as admittedly it satisfied the requirements of the definition of I Road Transport Authority ' under the Act, it is within its rights in implementing the scheme approved by the Government. In the result, for the reason that the State Government did not make the enquiry consistent with the principles of natural justice in approving the scheme, the order approving the scheme is hereby quashed and a direction issued to the first respondent to forbear from taking over any of the routes in which the petitioners are engaged in transport business. This judgment will not preclude the State Government from making the necessary enquiry in regard to the objections filed by the petitioners in accordance with law. The petitioners will have liberty to file additional objections if any. As the petitioners have failed on substantive points in the case, the parties are directed to bear their own costs. WANCHOO, J. This petition under Article 32 of the Constitution challenges the scheme of road transport introduced in the Krishna district of Andhra Pradesh. The petitioners raise two main contentions, namely, (1) that the provisions of Chapter IV A of the , violate their fundamental rights guaranteed under the Constitution, and (2) that the scheme introduced is ultra vires Chapter IV A. I have had the advantage of reading the judgment prepared by my brother Subba Rao, J. I agree with what he has said on the first contention and therefore do not propose to repeat the facts and the reasons given by him. I have, however, been unable, with utmost respect, to persuade myself to agree fully with what has been said on the second contention. I, therefore, proceed to deal with that only. The second contention of the petitioners is that the scheme of road transport, which is sought to be put into effect, is ultra vires Chapter IV A of the , (IV of 1939), (hereinafter called the Act), inasmuch as the provisions of that Chapter have not 46 362 been strictly followed. Before I deal with the contentions of the petitioners in this matter, I may indicate briefly the steps required to be taken before a scheme of road transport is finalised under Chapter IV A of the Act. The first step is the preparation of the Scheme under section 68C, which lays down that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Transport Undertaking may prepare a scheme for the purpose. After the scheme is prepared, it has to be published in the Official Gazette and also in such other manner as the State Government may direct. The next step is that any person affected by the scheme published under section 68C may, within thirty days from the date of publication, file objections thereto before the State Government; [section 68D(l)]. The third step is that the State Government has to consider the objections and after giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard in the matter, to approve or modify the scheme; (section 68D (2)). Finally, the scheme as approved or modified is published in the Official Gazette as the approved scheme; (section 68D(3)). Then comes the provisions for putting. this approved scheme into effect. Section 68F provides that the Regional Transport Authority shall thereupon issue permits to the State Transport Undertaking on its application in pursuance of the approved scheme. The Regional Transport Authority is also given power to cancel or modify any existing permit or refuse to renew any existing permit for this purpose. Section 68G provides for compensation where any existing permit is cancelled or its terms are modified. The main attack of the petitioners is that sections 363 68C and 68D were not complied with. The particulars of the attack may be summarised as below: (1) There was no State Transport Undertaking in existence which could have published the scheme (68C) (2) Even if a State Transport Undertaking was there, it did not form an opinion as required by section 68C and in particular, the General Manager, who acted for the State Transport Undertaking, had no authority to do so; (3)S. 68D(2) contemplates a hearing by the State Government of the objections filed. There was no such hearing, as the Home Secretary in charge of Transport Department, who heard the objectors must be deemed to be one of the parties who have to be heard by the State Government, and in any case, the hearing by the Secretary was no hearing by the State Government. (4)There was no real bearing at all and no genuine consideration of the objections by the State Government as the issue bad already been prejudged, (vide speech of the Chief Secretary on the 26th of December, 1957); and (5)The scheme could not be enforced by the Road Transport Corporation, which replaced the Road Transport Department soon after the scheme had been approved by the State Government. It is necessary in order to appreciate and decide the point raised on behalf of the petitioners to mention briefly the facts relating to the preparation of the scheme and subsequent steps taken for its approval and enforcement. The scheme was published on November 14, 1957, under the authority of Shri Guru Pershad, General Manager of the State Transport Undertaking Andhra Pradesh Road Transport. Chap ter IV A of the Act had come into force from the 15th of February, 1957. Before that Hyderabad State, as it then was, had passed Act XLV of 1956, amending the locally and incorporating in it provisions similar to the present Chapter IV A. Under the Hyderabad Act, the State Transport Undertaking was defined as the Road Transport 364 Department of the State providing road transport services. When the Hyderabad State came to end and what was known as the Telengana area of that State was merged in the State of Andhra Pradesh, the Road Transport Department of Andhra Pradesh took over the road transport services in the Telengana area which were being run by the former Hyderabad State. The present scheme was published, as already stated, on the 14th of November, 1957, by Shri Guru Pershad on behalf of the Road Transport Department of Andhra Pradesh. The objections to the scheme were received by the Secretary to Government in charge of the Road Transport Department, and the objectors were heard by the Home Secretary in charge of the Transport Department on the 26th and 27th of December, 1957. The scheme was finally approved by the Governor of Andhra Pradesh on the 7th of January, 1958, and was to come into force from the 10th of January, 1958. The approved scheme was published in the Gazette on January 9, 1958. In the meantime, the Government of Andhra Pradesh decided to establish a Road Transport Corporation under the , No. LXIV of 1950, for the State of Andhra Pradesh. This decision was published on the 20th of December, 1957, and the Road Transport Corporation was to come in existence from the 11th of January, 1958. It was to take over the business of the Road Transport Department of the State. The members of the Road Transport Corporation were appointed on the 9th of January, 1958, and the Corporation was established with effect from the 11th of January, 1958. It was this Corporation, which took over the duty of implementing the approved scheme, which was published on the 9th of January, 1958, and was to come into effect from the 10th of January, 1958. The steps necessary under sections 68F, 68G and 68H of the Act to put the scheme into force were taken by this Corporation. The argument of the petitioners under this head is put thus: There was a State Transport Undertaking under Hyderabad Act, which was operating in the present Telengana area of Andhra Pradesh. This 365 was the Road Transport Department of the Hyderabad State, which became the statutory body under the Hyderabad Act. When, however, the Hyderabad State came to end and the Telengana area was merged in Andhra Pradesh on the 1st of November, 1956, the State Transport Undertaking of the Hyderabad State continued to function as such for the Telengana area of Andhra Pradesh. There was no extension of the Hyderabad Act to the rest of Andhra Pradesh, and the present scheme relates to Krishna District which is not in the Telengana area; consequently, it was not open to the State Transport Undertaking which was existing under the Hyderabad Act to frame this scheme for an area which was not in Telengana. It was also urged that no State Transport Undertaking was formed as such after the coming into force of Chapter IV A of the Act in February, 1957. I am of the opinion that there is no force in this argument. It is true that tinder the Hyderabad Act, the State Transport Undertaking was defined as " the Road Transport Department of the State providing road transport service ". When Hyderabad State came to end on the 1st of November, 1956, the Road Transport Department of Andhra Pradesh became the State Transport Undertaking within the meaning of the Hyderabad Act, though, as that Act was in force only in the Telengana area, road transport services could only be run in that area. When, however, Chapter IV A of the Act came into force from the 15th of February, 1957, and applied to the whole of the State of Andhra Pradesh, the Hyderabad Act must be deemed to have been repealed by necessary implication, as Chapter IV A of the Act covered exactly the same field as was covered by the Hyderabad Act. On the 15th of February, 1957, there was only Road Transport Department of Andhra Pradesh, which was in existence and which was providing transport services in certain areas of the State. Now, under section 68A, a State transport undertaking is defined as any undertaking providing road transport service, where such undertaking is carried on by the Central Government or the State Government. " The Road Transport Department 366 of Andhra Pradesh was obviously an undertaking providing road transport service though only in a part of the State, and was carried on by the State Government of Andhra Pradesh. Therefore, the Road Transport Department of Andhra Pradesh became the State Transport Undertaking under the definition in Is. The fact that this undertaking which came in existence by virtue of the definition on the 15th of February, 1957, was at that time providing road transport services only in a part of the State, would not make it any the less a State Transport Undertaking within the meaning of that term and there is nothing in Chapter. IV A, which precludes a State Transport Undertaking, which is for the time being providing transport services in a part of the State, from extending its activities and framing a scheme for other parts of the State. I am, therefore, of opinion that a State Transport Undertaking was in existence in November, 1957, when the scheme was prepared and published, and it was the Road Transport Department of Andhra Pradesh. The contentions on this head are two fold. In the first place, it is urged that the General Manager, who acted for the State Transport Undertaking had no authority to do so on its behalf This is a question of fact and should have been specifically raised in the petition. All that, however, is said about the authority of Shri Guru Pershad is to be found in paragraph 11 (e) of the petition in these words: "Mr. Guru Pershad was the General Manager of the Road Transport Department of the erstwhile Hyderabad State. He was never appointed as Manager of the State Transport Undertaking of Andhra Pradesh, and therefore, he has no legal authority whatever to publish a scheme ". Now, it is obvious that this objection was only confined to one point, namely, that Shri Guru Pershad had no authority to act for the State Transport Undertaking of Andhra Pradesh, as he was never appointed as manager of that undertaking. It was not the case of the petitioners that even if he had been appointed as Manager of the Andhra Pradesh State Transport 367 Undertaking, he would have no authority to frame and publish a scheme on behalf of that undertaking. It appears that Shri Guru Pershad, who was the Manager of the road transport services when they were run by the former Hyderabad State, continued to be such after the Telengana area of the Hyderabad State was merged in Andhra Pradesh. It is unthinkable that Shri Guru Pershad should have issued a notification in the Gazette on the 14th of November, 1957, styling himself as " General Manager, State Transport Undertaking, Andhra Pradesh Road Transport ", if he was not in fact the General Manager of the Andhra Pradesh Road Transport. It must, therefore, be held that Shri Guru Pershad was the General Manager of the Andhra Pradesh Road Transport, and, therefore, of the State Transport Undertaking. His authority to publish the scheme, if he was the Manager of Andhra Pradesh State Transport Undertaking, has not been attacked. The scheme was published on the 14th of November, 1957, by Shri Guru Pershad as such Manager. The petitioners cannot at this stage be allowed to challenge his authority to do so, when they did not specifically raise this point in their petitions. When, therefore, he prepared and published the scheme, it must be held that he did so on behalf of the State Transport Undertaking. The second part of this contention is that the notification of the 14th November, 1957, does not say that the State Transport Undertaking was of opinion that it was necessary in the public interest that the road transport services should be run and operated by the State Transport Undertaking. The actual words used in the notification are these: "In exercise of the powers conferred by section 68C of the , it is hereby proposed, for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service in public interest, to operate the following transport service as per the particulars given below with effect from a date to be notified by the Government. " No doubt, the words " that the State Transport Undertaking is of opinion " are not expressly to be found in this notification ; but at the same time it is impossible that a proposal like this should be prepared and published on behalf of the State Transport Undertaking without its forming an opinion that it was necessary in the public interest to do so. I am of opinion that the State Transport Undertaking must have formed the opinion necessary under section 68C before it published its proposal and invited objections to the same. There 175 no exact form of words provided for this purpose, and it would be quite in order to draw the inference from the words used in the notification that it was published after the State Transport Undertaking had formed the opinion necessary under section 68C. In this connexion, reference may be made to paragraph 2 of the counter affidavit filed on behalf of the Andhra Pradesh State Road Transport Corporation, where it is said that the General Manager of the Andhra Pradesh Road Transport which was the State Transport Undertaking, was of opinion that the transport services in the Krishna District of Andhra Pradesh should be operated in the public interest by the Andhra Pradesh Road Transport. It was, however, urged on behalf of the petitioners that this only disclosed the opinion of the General Manager and not of the State Transport Undertaking; but, as I have already said above, the authority of the General Manager to speak on behalf of the State Transport Undertaking was never specifically challenged in the petition. There is, therefore, no force in this contention, and it must be rejected. This contention relates to the hearing by the State Government under section 68 D(2). In order to determine this question, it is necessary to consider whether the State Government, when it gives a hearing under section 68 D(2), is acting as a quasi judicial tribunal or is merely performing administrative functions. If the State Government acts as a quasi judicial tribunal certain considerations apply to the nature of the hearing granted ; if, on the other hand, the State Government acts administratively, certain other 369 considerations apply in determining the propriety of the hearing in fact given in this case. The contention on behalf of the petitioners is that the hearing contemplated is as a quasi judicial tribunal. The learned Attorney General, on the other hand, contends that the State Government merely acts administratively when it gives a hearing under this provision. What constitutes a quasi judicial act has been considered by this Court in Province of Bombay vs Kusaldas section Advani (1). The principle has been summarised by Das J. (as he then was) at p. 725, in these words: The principles, as I apprehend them are: (i)that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; and (ii)that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi judicial act if the authority is nevertheless required by the statute to act judicially. " Now, it may be mentioned that the statute is not likely to provide in so many words that the authority (1) ; 47 370 giving the hearing is required to act judicially; that can only be inferred from the express provisions of the statute. In the present case, it is urged by Mr. Nambiar appearing for the petitioners that there were two parties before the State Government, which was the deciding authority under section 68D(2), namely, the objectors and the representatives of the State Transport Undertaking. Therefore, according to him, prima facie, there would be a duty to act judicially and there is no other factor which would take away the inference to be deduced from the presence of two parties before the State Government, which has to decide the matter. Whether there is any other factor will, however, depend upon the circumstances of each case, and the nature of the matter under hearing and the scope of the hearing. The learned Attorney General contends that if one looks at the nature of the matter to be heard and considers the scope of the hearing before the State Government in this case the only conclusion possible is that the State Government acts administratively when it gives a hearing under section 68(2). What then is the nature of the hearing before the State Government ? Article 19(6)(ii) is of help in this connection. It provides that nothing in sub clause (g) of article 19(1), which deals among other things with the right to carry on trade or business shall prevent the State from making any law relating to the carrying on by the State or by a corporation owned or controlled by the State, of any trade, or business, whether to the exclusion, complete or partial, of citizens or otherwise. Chapter IV A has been inserted in the Act to carry out this purpose, so that the State may operate transport services to the exclusion, complete or partial, of citizens. The scheme which has been published provides that there will be a complete exclusion of citizens when the scheme is enforced in the area to which it relates. Now, the question is whether the exclusion of citizens as a whole is also an issue to be decided by the State Government when it hears objections. Mr. Nambiar submits that the most important thing for the State Government to decide is whether there should be complete exclusion of citizens 371 on the enforcement of the scheme. The learned Attorney General on the other hand contends that all that the State Government has to do is to see whether the scheme published is in the interest of the public and also whether it will provide an efficient, adequate, economical and properly coordinated road transport service. The argument continues that if the State Government comes to that conclusion, the complete exclusion which the scheme provides ipso facto follows, and the State Government has not to decide the matter of exclusion as a separate issue. In other words, the argument is that the State Government is not to decide between the competing claims of citizens providing transport privately and the State Transport Undertaking providing transport to the exclusion of citizens, and there is, therefore, no real lis in this case. It is also pointed out that objection can not only be filed by the bus operators of that area who are to be excluded but also by anybody who is affected by the scheme, including the members of the travelling public. Giving, my best consideration to the arguments on either side on this aspect of the matter, I have come to the conclusion that the scope of the hearing before the State Government is of a limited character, though the decision may affect citizens providing transport, the question whether private citizens should or should not be allowed to provide transport is really not a matter in issue before the State Government. What is in dispute before the State Government is only whether the scheme that is proposed by the State Transport Undertaking is an efficient, adequate, economical and properly coordinated scheme for road transport service and whether it is in the interest of the public. If the State Government comes to the conclusion that it is so, a complete exclusion proposed automatically follows and the question of exclusion is not to be determined as a separate issue as between the objectors and the State Transport Undertaking. It is true that the State Government has the right to modify the scheme and in so doing it may drop a part of the scheme; but here again it is not modifying the scheme because of any right of a 372 private citizen to carry on road transport service in a particular area but because it considers that the scheme so far as that particular area is concerned is not efficient, adequate, economical or properly coordinated or in the public interest. Unless it comes to that conclusion with respect to any part of the area. comprised in the scheme and modifies it, the consequence of complete exclusion ipso facto follows. What I wish to emphasise is that the State Government is not determining whether there should be Statemonopoly or private enterprise when it is considering objections under section 68D(2); it is only deciding whether the scheme put forward before it is such as can be approved with or without modifications within the four corners of the law laid down under section 68C. If it comes to that conclusion, the complete or partial exclusion follows. If on the other hand it modifies any part of the scheme, exclusion fails to that extent. Considering, therefore, the nature and the scope of the hearing under section 68D(2) it seems to me that there is really no lis. Even though there may be two parties before the State Government at the bearing, there is no determination of the rights of the parties before it. The determination is only of the efficiency etc. of the scheme. proposed and whether it is in the public interest. Therefore, it cannot be said that the nature of the hearing in this case makes the State Government a quasi judicial tribunal and the decision a quasijudicial act within the meaning of the principles laid down in Advani 's Case(1). I may in this connexion refer to Franklin vs Minister of Town and Country Planning (2). The facts there were these: Under the New Towns Act, 1946, the Minister prepared a draft order for a new town and caused it to be published, and notices were given to the persons affected. Thereafter objections were received from a number of persons who were the owners and occupiers of dwelling houses and lands in the affected area. The Act provided that on receipt of the objections, an inspector was to hold a public local inquiry into the objections and make a report to (I) ; (2) ; 373 the Minister. Thereupon, the Minister made the order under the Act. These proceedings, as provided by the Act, were taken with respect to a place called Stevenage in 1946 and the Minister passed the necessary order eventually. Some of the owners and occupiers of dwelling houses and lands situate at Stevenage applied to the Court to have the order quashed, on the ground, among others, that the requirements of the said Act had not been complied with and the interests of the appellants had been substantially prejudiced. According to them, the New Towns Act, 1946, impliedly required that the objections of the appellants should be fairly and properly considered by the Minister and that the Minister should give fair and proper effect to the result of such consideration in deciding whether the said order should be made and that such implied requirements were not complied with. It was held in that case that the Minister of Town and Country Planning had no judicial or quasi judicial duty imposed on him and the procedure followed was according to the requirements of the Act. Now, substitute in the place of the New Towns Act, 1946, Chapter IV A of the Act; substitute in the place of the draft order of the Minister, the draft scheme of the State Transport Undertaking ; and substitute in place of the final order, the final approval of the State Government after hearing the objections. It would seem, therefore, that the parallel between the present case and Franklin 's case (1) is complete. There a draft order was published, followed by objections and an inquiry and hearing and a final order. Here also a draft scheme is published, followed by objec tions and hearing, and final approval. There the interest of persons occupying lands and houses in the area proposed to be affected by the order were involved. Here also the interests of the bus operators at least, if not also of the travelling public, are involved. In spite of that it was held that the Minister had no judicial or quasi judicial duty imposed on him by the Act, and the reason was that he was merely considering whether the scheme should go through. Once he came to that conclusion after following the procedure (1) ; 374 provided in the Act, the ' effect on those occupying lands and dwelling houses would follow, according to the provisions of the Act. Here also once the State Government decides that the scheme should be approved, the effect would be complete or partial exclusion of the bus operators of that area, as envisaged in the scheme. To my mind, therefore, the present case is parallel to Franklin 's case (1) and on a parity of reasoning I would hold that the function of the State Government was administrative when it considered the objections under section 68D(2) and not quasi judicial. The only difference that I see between the two cases is that the New Towns Act provided specifically for hearing of the objections by an Inspector and not by the Minister while this is not so in the present case. I shall consider the effect of this later; but this has in my opinion, little, if any, bearing on the question whether the State Government was acting quasi judicially when deciding objections under section 68D(2). I may also in this connexion refer to Nagendra Nath Bora vs Commissioner of Hills Division (2), where it was held by this Court that the question whether or not an administrative body or authority functions as purely administrative or in a quasi judicial capacity, must be determined in each case on an examination of the relevant statute and rules framed thereunder. Similar was the view expressed by this Court in Express Newspapers Ltd. vs The Union of India (3), when considering the functions performed by a wage Board, and it was observed that whether the wage Board exercised judicial or quasi judicial functions is to be determined by the relevant provisions of the statute incorporating it and it would be impossible to lay down any universal rule which would help in the determination of this question. Applying, therefore, the principles laid down by this Court in these cases and taking into account the express provisions contained in Chapter IV A and the Rules framed thereunder, the conclusion at which I arrive is that the hearing under section 68D(2) was not before a quasi judicial tribunal and the decision was not a quasi judicial act and (I) ; (2) A. I.R. 1958 S.C. 398. (3) A.I.R. 1958 S.C. 878. 375 the State Government was acting purely administratively. Having reached this decision, let me see what actually happened in this case. The matter pertains to the Road Transport Department which was in charge of the Chief Minister. The Home Secretary works under the Chief Minister and was in charge of the Road Transport Department. The Chief Minister ordered, when the objections were put up before him, that the representation should be heard by the Home Secretary, and thereupon, the Home Secretary heard the objectors and a note of the hearing was placed before the Chief Minister for orders. The Chief Minister then passed the order approving the scheme. The main attack on this kind of hearing is two fold. It is urged in the first place that rule 10 framed under Chapter IV A of the Act provides that the objectors will be given an opportunity of being heard in person or through authorised representatives. It is said that in view of this rule it was not open to the Chief Minister to direct the Home Secretary to bear the objections when the decision was to be made by the Chief Minister. It is pointed out that in Franklin 's case (1) there was a specific provision that an Inspector will hold an inquiry and hear the objections and make his report, and thereafter the Minister will pass the final order on the report of the Inspector. There is no such specific provision in the Act or the Rules in this case, and, therefore, the hearing by the Home Secretary in these circumstances cannot be said to be a hearing by the State Government or the Chief Minister who had to decide the objections. The learned Attorney General relies in this connexion on the Rules of Business framed under article 166(3) of the Constitution which provides for the making of rules for the more convenient transaction of the business of the Government of the State, a copy of which was shown to us. It is said in paragraph 13(1) of the counter affidavit that these Rules do not provide for personal hearing; but it is open to the Minister to pass a standing order as he thinks fit for the disposal of business in his Ministry. Consequently, in exercise of this power, the (1) ; 376 Chief Minister passed an order that the Home Secretary should hear these representations in order to comply with the provision of Chapter IV A and Rule 10, even though there is no provision in the Rules of Business for oral hearing by the Minister or the Secretary. It is urged by Mr. Nambiar that the order passed by the Chief Minister in this case that the hearing should be given by the Home Secretary was not a standing order but an order in this particular case. That seems to me to be correct ; but the question is whether, when an administrative hearing of this nature is being given under a rule which provides that the State Government should give a hearing to objectors, it is necessary that the Minister who decides must also hear. It seems to me that where the hearing is administrative, it is not essential that the Minister must hear, so long as a hearing is given by an officer of the Government. I may in this connexion refer to article 154 of the Constitution, which provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. This being an ad ministrative hearing comes within the executive power of the State and there would be no infirmity if the Governor, who in view of the provisions of the , is the State Government, authorised through the Chief Minister a subordinate officer to give the hearing. Reference in this connection may also be made to Local Government Board vs Arlidge (1), which dealt with the manner of hearing of an appeal by the Local Government Board under the Housing, Town Planning &c., Act, 1909. The following observations of Lord Haldane at p. 132 are apposite in this context : " In the case of a Court of Law tradition in this country has prescribed certain principles to which in the main the procedure must conform. But what that procedure is to be in detail must depend on the nature of the tribunal. In modern times it has become increasingly common for Parliament to give an appeal (1) , 132. 377 in matters which really pertain to administration, rather than to the exercise of the judicial functions of an ordinary Court, to authorities whose functions are administrative and not in the ordinary sense judicial. Such a body as the local Government Board has the duty of enforcing obligations on the individual which are imposed in the interest of the community. Its, character is that of an organization with, executive functions. In this it resembles other great departments of the State. When, therefore, Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow the procedure which is its own, and is necessary if it is to be capable of doing its work efficiently. " These observations show that when one is dealing with a body like the State Government one has to take into account the procedure usually followed by the State Government in matters that come before it. In these circumstances if the Minister ordered, in the absence of specific rules on the point, that the hearing should be by the Secretary, he was, in my opinion, complying with the essential requirement, namely, that there should be an oral hearing by the State Government before the decision of the objections. The bifurcation of the function of hearing from the function of deciding cannot in the circumstances, when the hearing was administrative, be said to be improper or against rule 10, and was necessary in order that the Government may function efficiently. Therefore, I am of opinion that the hearing by the Secretary was sufficient compliance of rule 10, which required a personal hearing before the decision of the objections. The second ground of attack under this head is that in any case the Home Secretary who was also in charge of the Road Transport Department was not the right person to hear the objections on the ground that the scheme was put forward by his department. Here again the fact that the hearing was of an administrative nature has to be borne in mind. Bearing that in 48 378 mind and also considering that it was the Chief Minister who finally decided the matter and approved the scheme, it cannot be said that the Home Secretary in charge of the Transport Department was an improper person to give the hearing. After all, the scheme was put forward as a proposal. It was open to approval or modification after hearing the objections. The body which put forward the scheme was the State Transport Undertaking which was a limb of the Government. The Government has in a case of this kind to hear objections against a scheme prepared by one of its own limbs. In these circumstances, if the Head of the Department, namely, the Secretary hears the oral objections on a scheme prepared by some one in that department who would necessarily be under him, like the General Manager of the Road Transport Department, it does not follow that the Secretary is an improper person to give the hearing because he hears his subordinate who put forward the scheme also, along with the objectors. Further, the Secretary in this case is not the deciding authority which is the Chief Minister ' He made notes of the hearing and conveyed the arguments to the Chief Minister, and as the matter was purely administrative, the procedure cannot be said to be improper. I am, therefore, of opinion that the contentions under this head must be rejected. It is said that there was no real hearing at all and no genuine consideration of the objections as the issue had already been pre judged, and reliance in this connexion is placed on the statement of the Chief Secretary dated the 26th of December, 1957. It appears that the Chief Secretary said that the Government had already taken a decision to nationalise transport in Krishna District and some routes had been chosen. Learned Attorney General contends that this only refers to the scheme which had already been published on the 14th of November, 1957. Mr. Nambiar on the other hand contends that it goes much further and shows that the Government had already made up their mind to nationalise road transport in Krishna District and therefore the hearing which the State Government gave to the objectors to the scheme was 370 a farce. Now, taking into account what I have said above about the scope of the hearing under section 68D(2), it would be clear that there was no prejudging of the issue so far as the scheme was concerned. It is true that the Chief Secretary said that there would be nationalisation in Krishna District, which meant of course complete exclusion of the private bus operators; ' but I have already said that the scope of the hearing under section 68D(2) is to consider whether the scheme is efficient, etc., and is in public interest. If the answer is yes, complete exclusion follows. Therefore, when the Chief Secretary said that the Government had decided to nationalise road transport in Krishna District, he was certainly not saying that the Government was wedded to the scheme which was published and to which objections had been invited. The speech merely emphasises the aspect of complete exclusion; but it nowhere says that the scheme which was to bring about the exclusion into effect had already been approved. I may again in this connection refer to Franklin 's case (ibid), where also an argument was raised that the Minister was biased so far as any consideration of the draft order was concerned, as he had said in an earlier speech that he would make the said order. It was held that as the Minister had no judicial or quasi judicial duty imposed on him, consideration of bias in the execution of this duty was irrelevant, the sole question being whether or not he genuinely considered the report and the objections. In the present case also, the sole question was whether the objections to the scheme were genuinely considered. If after genuine consideration they were approved, complete exclusion would follow. Simply because the Chief Secretary said that the Government had decided to nationalise road transport in Krishna District, it did not follow that the Government was not prepared to consider fairly the objections to the scheme on the approval of which nationalisation would follow through complete exclusion. Considering, therefore, that the hearing before the State Government under section 68D(2) was purely administrative, there is no force in this objection. 380 Re. It is urged that the scheme was proposed by the Andhra Pradesh Road Transport Department as the State Transport Undertaking within the meaning of section 68A and was approved while that undertaking was still in existence. But immediately after the scheme was approved the Undertaking came to an end and the Road Transport Corporation came into existence and that Corporation could not carry out the scheme which had been approved before it came into existence. The argument seems to be that the body which prepared the scheme and got it approved is the body which can enforce it, and as the Road Transport Corporation neither prepared it nor got it approved, it cannot enforce it. I am of opinion that there is no force in this contention. The Road Transport Corporation came into existence oil the 11th of January, 1958. On the same date the State Government passed an order under section 34 of the Road Transport Corporation Act No. LIV of 1950 by which it directed that the Corporation shall take the management of the Road Transport Department of the Government of Andhra, Pradesh and all assets and liabilities of the Department shall pass to the Corporation. The staff of the Road Transport Department were given option to serve under the Corporation and direction was given that those who opt to serve the Corporation shall be employed by the Corporation subject to the regulations made under the Act and the assurance given by the Government to the employees. It was urged in the first place that such an order could not be passed under section 34 of the Road Transport Corporation Act. Section 34, however, gives very wide powers to the State Government to give directions to the Corporation, including directions relating to the recruitment, condition of service and training of its employees, wages to be paid to the employee, reserve to be maintained by it and disposal of its profits or stocks. In the circumstances, it was open to the State Government, under the wide powers Conferred by section 34 of the Road Transport Corporation Act, to ask the Corporation which was being created to take over the assets, liabilities and the employees of the Road Transport 381 Department which was being wound up. Now, the effect of this order was to make the Road Transport Corporation a successor of the Road Transport Department. It is true that there is nothing in Chapter IV A of the Act which provides for succession of one kind of undertaking as defined in section 68A(b) by another kind of undertaking as defined therein, but when in fact it happens that the Road Transport Corporation is ordered under section 34 of the Road Transport Corporation Act to take over everything from the Road Trans port Department, there is no reason why it should not be considered to be the successor of the Road Transport Department which was at that time the State Transport Undertaking. If the Road Transport Corporation is thus a successor of the State Transport Undertaking from the 11th of January, 1958, I do not see why it cannot enforce the scheme which had already been approved at the instance of its predecessor. I can see no sense in requiring the Road Transport Corporation to go through all these steps which had been gone through by its predecessor, except that it would delay the coming into force of the scheme ; probably, the argument has been raised merely for the sake of delay. But I am of opinion that the Road Transport Corporation in this case being the successor of the State Transport Undertaking which got the Scheme prepared and approved is en titled to enforce it under section 68 F of Chapter IV A in the absence of any provision to the contrary in the Chapter. This contention also fails. In view of what I have said above on the second contention, the petition fails and I would dismiss it with costs. SINHA, J. I have had the advantage of perusing the judgments prepared by our brothers, Subba Rao and Wanchoo, JJ. After giving my best consideration to the opinions expressed in the two judgments, I have come to the conclusion that I am not in a position to agree with all the conclusions arrived at by our brother Subba Rao. Two main controversies were raised on behalf of the petitioners, namely, (1) that the provisions of Chapter 382 IVA of the (which will be referred to in the course of this judgment as the Act), violate the fundamental rights guaranteed to citizens of India under the Constitution, and (2) that the scheme framed under the Act, was ultra vires the Act. I agree with my brother Subba Rao that the said Chapter IVA of the Act does not infringe any fundamental rights of the petitioners, and that those provisions are constitutionally valid. I also agree with him in holding that the Road Transport Department of the Andhra Pradesh Government, is a State Transport Undertaking under the Central Act; that the Notification publishing the scheme had been validly done, and that the conditions precedent to the initiation of the scheme, had been fulfilled. But I do not agree with him in his conclusion that the State Government, in approving the published scheme, was discharging any judicial or quasi judicial function. On the other hand, I agree with my brother Wanchoo in his conclusion that in so doing, the State Government was only performing its normal administrative function. As my learned brothers aforesaid have stated the relevant facts in detail, it is not necessary for me to repeat them, but as I differ from my learned brother Subba Rao, with whom some of my colleagues on the Constitution Bench have agreed, and for whose opinions, I have the greatest respect, I should state my reasons for differing from them and for agreeing with our brother Wanchoo. It may be taken as the settled view of this Court that the question whether a certain decision envisaged in a statute, is judicial or quasijudicial or only administrative in character, must de pend upon the terms of the statute law itself, apart from any pre conceived notions about the functions of a court or other tribunals vested with the duty and jurisdiction to decide controversies as a judicial body, vide Province of Bombay vs Kusaldas section Advani (1), Nagendra Nath Bora vs Commissioner of Hills Division(2) and Express Newspapers Limited vs Union of India (3). Now, let us see what has been envisaged by the im (1) ; (2) ; (3) 383 pugned provisions of Chapter IVA of the Act. The first step in the process is the preparation of a scheme of road transport service by a State Transport Undertaking "for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service. " Such a scheme may be to the exclusion, complete or partial, of other persons or otherwise. The second step would be to publish such a scheme in the Official Gazette and also in such other manner as the State Government may direct, giving particulars of the nature of the service proposed to be rendered, area or route proposed to be covered and other prescribed particulars (section 68 C). The third step in that process is the filing of objections to the scheme by any person affected by the scheme so published. Those objections have to be filed before the State Government within thirty days from the date of the publication of the scheme (section 68 D (1)). The fourth step is to be taken by the State Government, of considering the objections after giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking, to be heard (section 68 D(2) ). And the last step is that after hearing all concerned, the State Government may approve or modify the scheme. It is noteworthy that this section does not contemplate an outright rejection of the scheme but only a modification, if it is necessary. The scheme as approved or modified, has then to be published in the Official Gazette, and thereupon, the scheme becomes final. Such a scheme is called the "approved scheme ", and the area or route to which it relate,,;, is called the "notified area" or "notified route" Is. 68 D(3) ). The approved scheme may at any time be cancelled, or modified by the State Transport Undertaking, according to the procedure already indicated, as contained in section 68 C and section 68 D, if it is proposed to modify it (section 68 E). The provisions of Chapter IV, relating to the grant of stage carriage permits, etc., have been abrogated so as to make it obligatory on the Regional Trans port Authority to issue permits applied for by a State Transport Undertaking, in pursuance of the approved scheme. Not only that, with a view to giving effect 384 to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority has been authorized to refuse renewal of any permit, to cancel any existing permit, or to modify the terms of any existing permit (section 68 F). The provisions of section 64, relating to appeals by aggrieved persons against orders of refusal to grant a permit, or of revocation or suspension of a permit, or of refusal to renew a permit, etc., have been abrogated in so far as those orders have been passed under section 68 F. A review of the provisions aforesaid, contained in sections 68 C to 68 F in Chapter IV A, leads to the following conclusions: (1)A State Transport Undertaking has been authorized to determine whether or not it is in the public interest that road transport services in general, or any particular class of service, should be run and operated by the State Undertaking, in relation to any area or route or a portion thereof, keeping in view the purpose of providing an efficient, adequate, economical and properly coordinated road transport service. It is for the State Transport Undertaking to prepare a scheme in furtherance of its determination in favour of such a service, and to publish the same in the Official Gazette and elsewhere, with a view to informing the public, including those who may be affected by such a scheme. (2) Objections to such a scheme may be taken by parties interested, but such objections are not claims. (3) The State Government is authorized to decide the question whether the proposed scheme should be approved or modified, after hearing the parties or their representatives in support of their objections to the scheme. As the objections have to be directed to the merits of the scheme proposed by the State Transport Undertaking, there is no question of any lis between conflicting claims. (4) No particular person or body of persons in the Governmental hierarchy of officers, has been designated as the Authority to hear the objections and to pronounce upon them, unlike the provisions in Chapter IV. Neither the provisions in Chapter IV A nor the rules made in pursuance of section 68 1, contemplate 385 adducing evidence or calling witnesses in support of or in opposition to the proposed scheme. (5)The right of appeal as contemplated by section 64 in Chapter IV, has been expressly abrogated by section 68 F(3). Nor is there any provision in Chapter IV A, requiring reasons to be given in writing for an order. passed by a Regional Transport Authority under section 68 F(1) and (2), as contrasted with section 57(7) in Chapter IV, which requires the Authority to give its reasons in writing for refusing an application for a permit of any kind, because such an order is open to appeal, revision or review. The question now arises whether, in view of the provisions of Chapter IV A, summarized above, and the conclusions as indicated above, the determination by the State Government is judicial or quasi judicial in character, as contended for the petitioners, or only of an administrative character, as contended on behalf of the respondents. In order that a determination may be characterized as judicial or quasi judicial, it is essential that it should be objective, based on evidence pro and con (not necessarily given in accordance with the strict rules of evidence) by a determinate authority who should not have the right to delegate such a function of a judicial character. Section 68 D(2) authori zes the State Government to decide whether or not the proposed scheme should be approved or modified. ' The "State Government" may mean the Governor himself or any of his Ministers or Deputy Ministers or any officers in the Secretariat, according to the rules of business promulgated under article 166 of the Constitution. Section 68 D(2) could not have meant that the Governor himself or any of his Ministers should personally hear the objections that would be throwing too great a burden on them. The objections may be heard by any one who has been delegated that power. If that is correct, the function to be performed under section 68 D(2), does not satisfy the test of a judicial hearing. Under that section, the objections may be heard by 'A ' and the decision arrived at by 'B '. If that is 49 386 a regular procedure under that section, that is not an index of a judicial process. Another very important consideration pointing to the conclusion that the determination under section 68 D(2) is not of a judicial character (using it in the comprehensive sense, including 'quasi judicial ', which expression has not been approved by high judicial authorities), is that no objective tests have been laid down in Chapter IV A with reference to which, the determination has to be arrived at. The expressions "efficient", "adequate", "economical", "properly coordinated" and "public interest", are matters of opinion and policy as section 68 C itself indicates, and do not lay down any objective tests. If I am right in that conclusion, there cannot be any question of evidence forthcoming in proof of something which is subjective to the authority determining that matter. A very fundamental consideration in this connection, is whether sections 68 C and 68 D contemplate any lis. In other words, what is the proper scope and ambit of the inquiry envisaged by those sections ? The scheme prepared and published in accordance with section 68 C, by a State Transport Undertaking, is placed before the public only after the Undertaking has reached the conclusion that it is necessary in the public interest. After the scheme has been prepared and published as aforesaid, the objections to be filed under section 68 D have reference to the basic question whether or not the scheme as published, was in public interest. Such objections are open to any person or organization, e.g., an Automobile Association, and are not limited only to persons who are providing road transport services. In my opinion, it is a mistake to suppose that the objections contemplated by section 68 D(l), could be on grounds personal to the objectors who are engaged in the business of providing road transport services. It is not open to any particular individual carrying on the business of providing road transport services, to claim that his route should be excluded from the operation of the published scheme. I am led to that conclusion by the effective words of section 68 D(l), namely, "file objections thereto", that is, to the scheme published under section 68 C. 387 The objections have to be limited to the merits of the scheme as propounded by the State Transport Undertaking. It will, therefore, be opening the gates too wide to hold that the objections have reference to particular routes or portions of routes covered by private transport services. The underlying purpose of inviting objections, is not to invite "claims" by individual businessmen engaged in providing road transport services, but to bring out useful information bearing on the feasibility and soundness of the scheme, as propounded by the Undertaking. Once, the Government has decided upon a policy of nationalization of road transport facilities, the question of safeguarding the interest of individual businessmen in that line, is no more relevant. What is relevant. for the purpose of the inquiry by the Government, on receipt of objections, is whether the published scheme is in the interest of the public. In my opinion, therefore, it is erroneous to suppose that the object of section 68 D(l) is to afford any remedy to a private individual in his personal interest. Particulars of the scheme required to be published under section 68C, are meant for the information of the public, so that persons feeling interested in a public venture like that, may offer intelligent and constructive criticism with reference to the merits of the scheme. It is equally erroneous to suppose that there are two parties one, represented by the Undertaking, and the other, represented by persons who are engaged in the business of providing road transport services and that the Government is the third party, which is the arbitrator between the two contesting parties. That, in my opinion, is not a correct reading of the provisions of Chapter IV A of the Act. The whole aim and object of that Chapter is to replace individual businessmen engaged in that trade, by nationalised road transport services which are meant to be run in the interest of the community as a whole, and thus to serve the best public interest. The Government is as much interested in the scheme as the Road Transport Undertaking which is a creature and a limb of the Government, brought into existence with a view to implementing the policy of the Government to provide nationalised 388 road transport services. That being the whole scheme of the policy of nationalisation, it is not correct to represent the State Transport Undertaking as entering into competition with other individuals or incorporated bodies whose business it is to provide the same kind of transport facilities. That is made clear by the provisions of section 68 F, which, as indicated above, make it obligatory on the Regional Transport Authority to issue permits as applied for by the State Transport Undertaking. It follows from the foregoing observations that there is no question of the Government functioning as an adjudicating authority as between the rival claims of the Undertaking and private persons engaged in the same kind of activity, or that the Secretary to Government in the Department of Road Transport, when he personally heard the objections, was functioning as a judge, or that he was disqualified, by any bias, from hearing those objections. If we carry this line of reasoning to its logical conclusion, then even the Minister in charge of the Department, may be said to be equally interested, and therefore, equally biased, and thus, disqualified from hearing those objections and coming to his own determination, as contemplated in section 68 D(2). In my opinion, the concept that a person should not be a judge in his own cause, is wholly foreign to the scheme and provisions of Chapter IV A of the Act. The scheme as prepared and published, may have proposed, as it did in the instant case, completely to exclude other persons from providing road transport service in the notified area by the notified routes. But the State Government is not concerned with determining whether any or some or all of the objectors could be permitted to provide or continue to provide their own road transport service. The State Government under section 68 D(2) has only to decide whether or not the proposed scheme should be approved or modified in any way. The decision to be arrived at by the State Government, is confined to the scheme, and is not concerned with rival claims by persons providing road transport service in the same area or by the same routes. That, in my opinion, is the reason why under that section, the State Government has not been authorized altogether to. 389 cancel the scheme, but only to approve or modify it. The State Government has to examine the soundness of the declaration made by the Road Transport Undertaking that the proposed scheme is in public interest. The stage of cancellation comes, if at all, later under section 68 E, when experience gained in working the approved scheme, may lead the State Transport Undertaking to the conclusion that it should be cancelled or modified. But at the initial stage, that is to say, under section 68 D, the proposed scheme is already there only to be approved or modified in the light of the objections raised, if any. It has been held and it may be taken as well settled that when there is a competition between a number of applicants for a particular route for supplying road transport service, the Regional Transport Authority or any other Authority deciding between those conflicting claims, has to determine the matter in a quasijudicial way, because they are determining questions affecting the rights of individuals. But in the proceeding before the State Government, no such rival claims have to be decided upon. What has to be determined is whether the proposed scheme will serve public interest. Thus, in proceedings under Chapter IV of the Act, individual claims have to be decided upon, whereas under Chapter IVA, it is the collective interest of the community as a whole, which is the subjectmatter of determination by the State Government. In other words, the proposed scheme is the outcome of the decision by a limb of the State Government (State Transport Undertaking), which has come to the con clusion that it is in the public interest that road trans port service should be run and operated by the State. The calling of objections by persons affected by the scheme, is not with a view to deciding between the rival claims of the State Undertaking and individuals providing road transport services in the areas or routes proposed to be covered. The State Transport Undertaking has not made any claim at this stage. Such a claim arises after the determination by the State Government Under section 68D(2). That stage is reached when the State Transport Undertaking applies for permits under section 68F. Such a claim for a permit, once 390 made by the Undertaking, is no more a rival claim to be treated along with the claims of other individuals providing such road transport services, but an absolute claim which under that section shall be granted by the Regional Transport Authority which is authorized even to cancel an existing permit or modify the terms of an existing permit, or to refuse renewal of permits, with a view to implementing the approved scheme. In my opinion, therefore, it is not correct to view the proceedings under Chapter IVA before the State Government as a lis between any rival claims, unlike proceedings under Chapter IV of the Act. In view of these considerations, I would hold that there is no lis between rival claims, no determinate tribunal to determine any lis, and no procedure prescribed in Chapter IVA approximating or even simulating judicial procedure. That being so, there is no question of any bias, because there can be none in a determination which is come to by officers of the Government in the discharge of their administrative duties. As already indicated, the question now under consideration, does not admit of a general answer. The answer must depend upon the relevant statutory provisions, and one case decided on its own basic statutory provisions, cannot be a controlling authority for another; but, by way of illustration, reported cases dealing with similar questions, have been referred to. My learned brother Wanchoo, J., has referred in detail to Franklin 's case, hence, I need not add any observations with reference to that case. But another case, namely, Robinson vs Minister of Town and Country Planning (1), perhaps, not referred to at the bar, seems to me to be instructive in so far as it has discussed this very question with reference to the provisions of section 1(1) of the Town and Country Planning Act, 1944, which is in these terms: : " Where the Minister of Town and Country Planning (in this Act referred to as 'the Minister ') is satisfied that it is requisite, for the purpose of dealing satisfactorily with extensive war damage in the area of a local planning authority, that a part or parts of their (I) , 853, 854. 391 area, consisting of land shown to his satisfaction to have sustained war damage or of such land together with other land contiguous or adjacent thereto, should be laid out afresh and redeveloped as a whole, an order declaring all or any of the land in such a part of their area to be land subject to compulsory purchase for dealing with war damage may be made by the Minister if an application in that behalf is made to him by the authority before the expiration of five years from such date as the Minister may by order appoint as being the date when the making of such applications has become practicable. A part of the area of a local planning authority as to which the Minister is satisfied as aforesaid is in this Act referred to as an 'area of extensive war damage '. " Lord Greene, M. R., who delivered the leading judgment of the Court of Appeal, reversing that of Henn Collins, J. thus summarized the procedure laid down in the Act : " The procedural provisions in connection with the obtaining of an order under the sub section may, so far as relevant, be summarised as follows: (a) Under sub section (4) at least two months before the application is made the authority must publish a notice in a local newspaper; (b) under sub section (5) the application must 'designate ' the land to which the application relates by reference to a map with or without descriptive matter ; (c) under sub section (6) the a application must be accompanied by a statement illustrated by a map, for indicating the manner in which it is intended that the land in the area of extensive war damage should be laid out as respects its internal arrangement and in relation to the existing or intended lay out of the surrounding locality, and the manner in which it is intended that such land should be used whether for purposes requiring the carrying out of development or otherwise '; (d) under sub section (7) if the Minister is satisfied that these particulars are adequate for enabling the expediency of the making of an order ' to be properly considered, he notifies the authority who must then advertise for objections; (e) under sched. I unless the Minister, apart from an objection (which must be accompanied by a 392 written statement of its grounds) decides to refuse the application or to make an agreed modification to meet the objection, he must 'consider the grounds of the objection as set out in the statement ' and may call for a further statement. Under para. 4 of the schedule the Minister, 'if satisfied that he is sufficiently informed, 'for the purpose of his deciding as aforesaid (sc. whether or not to make the order applied for), as to the matters to which the objection relates ' he may decide to make the order without further investigation. Subject, to this, the Minister (para. 5) must give the objector an opportunity of appearing before a person nominated by the Minister and, if the objector avails himself of this, a similar opportunity to the authority. Under para. 6, if it appears to the Minister that the matters to which the objection relates call for investigation by a public inquiry, he must cause such an inquiry to be held, in which case, the requirements of para. 5 as to a private hearing need not be complied with; (f) under section 1(8), subject to the provisions of sched. 1, the Minister may make the order with or without modification, except that he cannot extend the area unless all persons interested consent. " In the case of Phoenix Assurance Co., Ltd. vs Minister of Town and Country Planning (1), Henn Collins, J. considered the nature of the order to be passed under section I (I) of the Town and Country Planning Act, 1944, and came to the conclusion that the Minister 's function was of a quasi judicial character. He followed that decision in the case which came up before the Court of Appeal in Robinson vs Minister of Town and, Country Planning (2). The Court of Appeal reversed the decision of the learned Judge, and did not approve of his decision in Phoenix Assurance Co., Ltd. vs Minister of Town and Country Planning (1). In the course of his judgment, Lord Greene, M. R., observed as follows at page 859: " It is the case of an original order to be made by the Minister as an executive authority who is at liberty to base his opinion on whatever material he thinks fit, (I) (2) , 853, 854. 393 whether obtained in the ordinary course of his executive functions or derived from what is brought out at a public inquiry if there is one. To say that, in coming to his decision, he is in any sense acting in a quasi judicial capacity is to misunderstand the nature of the process altogether. I am not concerned to dispute that the inquiry itself must be conducted on what may be described as quasi judicial principles, but this is quite a different thing from saying that any such principles are applicable to the doing of the executive act itself, i.e. , the making of the order. The inquiry is only a step in the process which leads to that result, and there is, in my opinion, no justification for saying that the executive decision to make the order can be controlled by the courts by reference to the evidence or lack of evidence at the inquiry which is here relied on. Such a theory treats the executive act as though it were a judicial decision (or, if the phrase is preferred, a quasi judicial decision) which it most emphati cally is not. " I have devoted considerable space to the decision of the Court of Appeal, (supra), to show the close resemblance between the procedure envisaged in the Act of the British Parliament, and the law as laid down in Chapter IV A of the Act. In the reported case also, there had to be an inquiry if objections were raised to the notified scheme of town planning, and the Minister concerned had to consider all the evidence led on behalf of the objectors. In that case, unlike the instant case, there was a provision for receiving evidence pro and con, but even then, the Court of Appeal did not hold that the function of the Minister was of a judicial or quasi judicial character, chiefly on the ground that no objective tests were possible in coming to his conclusions before passing the order under the relevant section of the Act of Parliament. For the reasons given above, I have come to the conclusion, in agreement with my brother Wanchoo, J., that the Government or the Minister concerned, when passing an order under section 68 D(2), had not to discharge a quasi judicial function, but was acting only in its or 50 394 his administrative capacity. It follows from this con clusion that all considerations flowing from the basic idea of the proceedings before the State Government being of a quasi judicial character, are wholly out of the way. It must, therefore, be held that the order of the State Government, impugned in this case, is not open to any interference by the courts. I would, therefore, dismiss the petition with costs. ORDER In view of the opinion of the majority the order approving the scheme is hereby quashed and a direction issued to the first respondent to forbear from taking over any of the routes in which the petitioners are engaged in transport business. This will not preclude the State Government from making the necessary enquiry in regard to the objections filed by the petitioners in accordance with law. The petitioners will have liberty to file additional objections, if any. The parties to bear their own costs.

The appellant was appointed as a Tracer in the Municipal Corporation in 1955. with the appointment of a Town Planning Officer in 1957. the appellant came to be appointed as a Tracer in the Town Planning Establishment. Later, the post of Junior Draftsman fell vacant in the Town Planning Estab lishment. Respondent No. 6 was posted to fill the vacancy. However, his appointment was cancelled shortly thereafter and the appellant was appointed as Junior Draftsman with effect from 4.12. The next higher post of Surveyor cum Draftsman fell vacant in 1962. Meanwhile, the appellant was suspended. The Industrial Court granted approval for his removal from service, but suggested that he may be reappointed. Accord ingly. the appellant was appointed afresh as junior Drafts man in the Estates Department of the Municipal Corporation where he was previously working. Aggrieved, the appellant filed a writ Petition before the High Court. Setting aside the order. the High Court remanded the matter to the Industrial Court for fresh dis posal. The Special Leave Petition preferred by the employer, viz., the Municipal Corporation against the High Court 's order was dismissed. The Industrial Court reheard the matter and declined approval for the removal of the appellant from service. The appellant was reappointed as Junior Draftsman in the Town Planning Establishment which was abolished subsequently, and he was reverted to the service of the Municipal Corporation as a Tracer, and not as a Junior Draftsman. The appellant filed an appeal against the said order. but it was rejected on the ground that direct recruits were already working as Junior Draftsmen and that there was no vacancy against which the appellant could be appointed. 581 The appellant moved the High Court by way of a Writ petition. contending that since he had been appointed as junior Draftsman in the Town Planning Establishment, he could not be repatriated to a lower post, viz. Tracer in the Municipal Corporation. It was also contended that the Deputy Municipal Commissioner, was a person lower in rank than the appointing authority viz., the Municipal Commis sioner and hence the order passed by him was without juris diction. The High Court proceeded on the footing that the appel lant was on deputation from Municipal Corporation to the Town Planning Establishment and dismissed the writ Petition. The appellant has preferred this appeal against the High Court 's order dismissing his Writ Petition. Dismissing the appeal, this Court. HELD: 1. I The appellant 's promotion as junior Draftsman and proposed promotion as Surveyor cum Draftsman in the Town Planning Establishment cannot confer any rights on him in his parent department. When he left the Municipal Corpora tion and joined the Town Planning Establishment he was a Tracer and he can go back to the Estate Department or any other Department of the Municipal Corporation only to his original post i.e. as Tracer, subject to the modification that, if in the meantime he had qualified for promotion to a higher post. that benefit cannot be denied to him. 1.2 The order dated 16.8. 1965 was passed in pursuance of the recommendation of the Industrial Court, while approv ing the appellant 's removal, that he may be reconsidered for appointment. In view of this order of the Industrial Court, the appellant had to be given a posting and since he had been discharged from service when he was a Junior Draftsman. orders were passed appointing him as junior Draftsman. This again was made as an order of fresh appointment and the appellant 's representation that he should be given seniority was rightly not accepted. There is also the further fact that the appellant was relieved from this post with effect from October 1, 1967. There has been, apparently, no chal lenge to this order. Moreover, theses orders lost their basis once the petitioner was restored to his post in the Town Planning Establishment. In these circumstances the order dated 16.8.65 or the determination of his seniority in 1966 are of no relevance to the present case. 2.1 What the appellant is really attempting is to challenge the 582 appointments of Respondents 6 to 11, which had been made in 1963 64, by a Writ Petition filed in 1978, more than a decade after the above selections and appointments had been made. It is true that, at that time the appellant, was under a cloud because he had been suspended and subsequently removed from service. But all the same, if he had desired to challenge those appointments, he should have taken immediate steps. Anyhow, these obstacles had disappeared when the tribunal, on remand by High Court, had and disapproved the appellant 's removal from service by the order dated 13.5.1964. Atleast in 1971, when the order was passed re storing him to the position of Junior Draftsman in the Town Planning Establishment, he could and should have taken steps to Obtain his "pro forma" promotion in the parent depart ment. The fact remains that he took no effective steps to challenge the appointment of respondents 6 to 11 from 1963 64 right upto 15.2.1978, when he filed the Writ Petition or atleast upto 1.10.1976, when he made a representation against the order of reversion. 2.2 section 54(2) of the Municipal Act, dispenses with the Staff Selection Committee when it is proposed to fill the appointment from among persons already in municipal service. But the nature of the recruitment that took place is not known. That apart, the constitution of a Staff Selection Committee to decide upon the selections cannot be said to be illegal even though not mandatory in the situation. The High Court has found that respondents 6 to 11 had been directly selected as Junior Draftsmen after proper scrutiny by the Staff Selection Committee. Admittedly there was a circular among the Municipal employees in regard to these appoint ments and selections. The appellant should have made an application for selection at that time or, if he thought it more appropriate, should have challenged the constitution of Staff Selection Committee and the direct recruitment and put forward his claim for promotion as Junior Draftsman by virtue of his seniority. That he tailed to do at the crucial time. It may be that this was because he had certain diffi culties facing him by way of suspension and subsequent expulsion from service. But even in 1971, after his original order of suspension and removal had been set aside, he took no immediate steps to claim his rights in the parent depart ment. He.was apparently satisfied with his restoration as Junior Draftsman in the Town Planning Establishment. Having regard to the circumstances of the appointment of respond ents 6 to 11, the appellant was not entitled to any promo tion in preference to them and he cannot claim appointment as Junior Draftsman when there was no such post in 1976 to which he could he appointed.

Appeal No. 761 of 1976. (Appeal by Special Leave from the Judgment and Order dated 28 5 1976 of the Karnataka High Court in Writ Appeal No. 665/75 ). CIVIL APPEAL No 'section 845 854 of 1976. (Appeals by Special Leave from the Judgment and Order dated 28 6 1976 of the Karnataka High Court in Writ Appeal Nos. 247, 237, 241,243 246, 248 and 250/76 respectively.) S.V. Gupte, S.B. Wad, A.K. Ganguli and Mrs. Jayashree wad, for the Appellants in all the Appeals. M.P. Chandrakantraj Urs and B.R.G.K. Achar, for Respond ents 1 to 3 in CA 761/76. Narayan Nettar, for Respondent 4 in CA. No. 761/76. A.K. Sen, M.P. Chandrakantraj Urs and Narayan Nettar, for the respondents in CA. No. 845/76. M.P. Chandrakantaraj Urs and Narayan Nettar, for Re spondents 1 3 in CAs 846 849/76. B.R.G.K. Achar for Respondent 1 in CAs. 850 854/76. M.P. Chandrakantaraj Urs and Narayan Nettar, for Re spondents 1 3 in CAs. 850 854/76. Narayan Nettar for Respondent 7 in CAs. 845 846/76. The Judgment of the Court was delivered by BHAGWATI, J. This group of appeals raises a common question of law affecting Senior Health Inspectors on deputation with the Municipal Corporation of the City of Bangalore (hereinafter referred to as the Corporation). The facts giving rise to the appeals are identical and may be briefly stated as follows. The appellants are Senior Health Inspectors in the Karnataka State Civil Service. It seems that prior to 3rd March, 1971, when the City of Bangalore Municipal Corpora tion Services (General) Cadre and Recruitment Regulations, 1971 (hereinafter referred to as the Cadre and Recruitment Regulations) came into force, the practice 793 of the Corporation was to have one half of the cadre of Senior Health inspectors manned by deputation of Senior Health Inspectors from the Karnataka State Civil Service and in accordance with this practice, the appellants were taken on deputation by the Corporation from the Karnataka State Civil Service. While the appellants were working as Senior Health Inspectors on deputation, the Corporation passed a resolution dated 30th December, 1974 approving the report of the Commissioner that sixteen Senior Health Inspectors, including the appellants, who were working under the Corpo ration on deputation should "be absorbed in the interest of work if they are :willing on then ' own pay and accept their seniority as Juniors to the Senior Health Inspectors of the Corporation. " It is the case of the appellants that on the same day, immediately :after the passing of this Resolution, they addressed a communication to the Mayor of the Corpora tion intimating to him that they were willing to be absorbed as Senior Health Inspectors under the Corporation on their own pay and with ranking below the Senior Health Inspectors of the Corporation. The factum of this communi cation was disputed by the Corporation as well as by the State Government, but in the view we are taking, it will not be necessary for us to examine this question. continue further with the narration of facts, the Corporation sent the Resolution dated 30th December, 1974 to the State Gov ernment for according its sanction and the State Government by an order dated 6th May, 1975 accorded sanction "to the Corporation 's resolution dated 30th December, 1974 regarding the absorption of the Senior Health Inspectors" mentioned the Resolution under section 89 of the City of Bangalore Municipal Corporation Act, 1949 (hereinafter referred to as the Act). The term of the Corporation in the meantime came to an end and since fresh elections were not held to elect the members of the Corporation, an administrator was ap pointed ' by the Government to manage the affairs of the Corporation. The administrator requested the State Government to defer implementation of the proposal contained in the Resolution dated 30th December, 1974 since the perma nent officials of the Corporation were considerably dis turbed by this proposal as it prejudicially affected their chances of promotion by reason of the absorption of sixteen deputationist Senior Health Inspectors from the Karnataka State Civil Service. The State Government on the basis of the communication addressed by the Administrator in this behalf passed another order dated 25th August, 1976 with drawing the sanction accorded under the earlier order dated 6th May, 1975. The appellants being prejudicially affected by the withdrawal of the sanction. preferred writ petitions in the High Court of Karnataka contending that as soon as the State Government gave its sanction on 6th May, 1975 to the Resolution of the Corporation dated 30th December, 1974, they were absorbed as permanent employees of the Corporation and they ceased to be Government servants and the State Government thereafter had no authority to withdraw the sanction granted by it under the earlier order dated 6th May, 1975 and the subsequent order dated 25th August 1975 was invalid and inoperative. These writ petitions came up for hearing before a Single Judge of the High Court who rejected them by a judgment dated 22nd September, 1975. The appellants thereupon preferred appeals under section 4 of the Karnataka High Court Act. 794 1961, but the appeals 'were unsuccessful and they were rejected by a Division Bench of the High Court by a judgment dated 28th May, 1976. Hence the present appeals by the appellants with special leave obtained from this Court. The principal question which arises for determination in these appeals is whether the appellants who are Senior Health Inspectors mentioned in the Resolution of the Corpo ration dated 30th December, 1974 became permanent employees of the Corporation and ceased to be Government servants as soon as the State Government passed the order dated 6th May, 1975 according its sanction to the Resolution of the Corpo ration. There can be no doubt that if the effect of the Government order dated 6th May, 1975 was to snap the status of the appellants as Government servants and to absorb them as permanent employees of the Corporation, the State Govern ment could not thereafter by its unilateral action reverse the process and annihilate the relationship of employer and employee between the Corporation and the appellants and restore their status as Government servants. The main issue which, therefore, falls for determination is as to what legal effect flowed from the Government order dated 6th May, 1975: did it have the effect of absorbing the appellants as permanent employees of the Corporation with simultaneous termination of their employment as Government servants ? To answer this issue it is necessary to refer to a few relevant provisions of the Act and the Cadre and Recruitment Regula tions. The provisions in regard to the establishment of the Corporation are to be found in sections 84 to 95 of the Act. Section 84 provides for appointment of a Health Officer, an Engineer, a Revenue Officer and other heads of departments working under the Commissioner while section 85 deals with special superior appointments. We are not concerned with either of these two sections since Senior Health Inspectors do not fall within the categories of officers dealt with in these two sections. Section 86 provides that if a. vacancy occurs in any office specified in sections 84 and 85 or in any office under the Corporation the maximum monthly salary of which exceeds two hundred and fifty rupees, the Corporation shall, subject to the confirmation of the Gov ernment, within two months of the date of occurrence of the vacancy, appoint a duly qualified person to hold such of fice. The office of Senior Health Inspector is undoubtedly an office the maximum monthly salary of which exceeds two hundred and fifty rupees and therefore, a vacancy in that office is liable to be filled by the Corporation, subject to confirmation by the Government, under this section. Sections 87 and 88 are not material for our purpose and we need not pause to consider them. Section 89 says that, subject to the provisions of sections 84, 85, 86 and 88, appointments to the Corporation establishment shall be made by the Corpo ration if the maximum monthly salary of the office exceeds two hundred and fifty rupees. It is clear on a conjoint reading of sections 86 and 89 that it is the Corporation which is entitled to make appointment to the office of Senior Health Inspector and such appointment is subject to confirmation by the Government. Then comes section 90 which provides that the Commissioner shall from time to time lay before the Standing Committee 795 a Schedule setting forth the designations and grades of officers and servants who should in his opinion constitute the Corporation establishment and embodying his proposals in regard to salaries, fees and allowances payable to them and the Standing Committee may either approve or amend such Schedule as it thinks fit and shall lay it before the Corpo ration and the Corporation shall then sanction such Schedule with or without modifications and may also from time to time amend it at the instance of the Commissioner and the Stand ing Committee. There is a proviso to this section which says that no new office shall be created without the sanction of the Government, if the maximum monthly salary exceeds two hundred and fifty rupees. This proviso, however, has no application in the present case, since the Schedule sanc tioned by the Corporation set out the office of Senior Health Inspector and the absorption of the appellants as Senior Health Inspectors on the Corporation establishment did not involve the creation of any new office which was not already enumerated in the Schedule. Section 91 provides that no officer or servant shah be entertained on the Corporation establishment unless he has been appointed under section 84, 85, 86 or 88 or unless his emoluments are included in the Schedule sanctioned under section 90. But this section also does not stand in the way of the absorption of the appel lants as Senior Health Inspectors on the Corporation estab lishment, since they are purported to be absorbed by the Corporation by its resolution dated 30th December, 1974 and the Government Order dated 6th May, 1975 is tantamount to confirmation of such absorption and hence section 86 is complied with and the office and emoluments of Senior Health Inspector are also included in the Schedule sanctioned under section 90. The other sections dealing with the establish ment of the Corporation are not material except section 94 which confers power on the Standing Committee to frame regulations in respect of the Corporation establishment in regard to various matters. It will, therefore, be seen that there is nothing in the Act which debarred absorption of the appellants as permanent employees of the Corporation under the Corporation Resolution dated 30th December, 1974 read with the Government Order dated 6th May, 1975. But the argument of the State Government and the Corpo ration was, and this argument found favour with the Division Bench of the High Court, that until the Cadre and Recruit ment Regulations were amended, it was not competent to the Corporation to absorb the appellants as permanent Senior Health Inspectors on the establishment of the Corporation and the Resolution of the Corporation dated 30th December, 1974, though sanctioned by the Government by its order dated 6th May, 1975, was not effective to bring about absorption of the appellants as permanent employees of the Corporation with simultaneous termination of their service as Government servants. This argument requires consideration of some of the relevant provisions of the Cadre and Recruitment Regula tions. The Cadre and Recruitment Regulations were framed under sections 7, 84, 85, 88 and 94 of the Act and they were sanctioned by the State Government under section 94(g) of the Act and they came into force with effect from 3rd March, 1971 being the date on which they were published in the Government 19 1234SCI/76 796 Gazette. Regulation 3 laid down the method of recruitment and minimum qualifications for recruitment to various posts enumerated in the Schedule. One of the posts enumerated in the Schedule was the post of Senior Health Inspector and it was provided in Column 2 of the Schedule that the method of recruitment to the post of Senior Health Inspector shall be: "50% by promotion from the Cadre of Junior Health Inspectors of the Corporation, 50% by deputation from the State Directorate of Health Services. " The Cadre and Recruitment Regulations thus recognised only two modes of recruitment to the post of Senior Health Inspector, namely, promotion from the cadre of Junior Health Inspectors and deputation from the State Directorate of Health Services and one half of the cadre was to be drawn from each of these two sources. No other mode of recruitment could be resorted to by the Corporation under the Cadre and Recruitment Regulations. it is difficult to see how in the face of this provision which has admittedly statutory effect, the posts of Senior Health inspector could be filled in by absorption of deputationist Senior Health Inspectors from the Karnataka State Civil Service. Senior Health In spectors from the State Directorate of Health Services could only be on deputation to the extent of one half of the number of posts of Senior Health Inspectors on the Corpora tion establishment and they could not be absorbed as perma nent Senior Health Inspectors under the Corporation without violating the aforesaid statutory provision. This statu tory provision does not contemplate any Senior Health Inspectors on the establishment of the Corporation who are drawn from the State Directorate of Health Services other wise than on deputation and to absorb Senior Health Inspec tors from the State Directorate of Health Services as perma nent employees of the Corporation (otherwise than on deputa tion), would be plainly contrary to its express mandate. It was, however, contended on behalf of the appellants that when they were absorbed as permanent Senior Health Inspec tors on the establishment of the Corporation, they were already in the cadre of Senior Health Inspectors under the Corporation, filling 50% of the posts and their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Cadre and Recruitment Regulations. The position, accord ing to the appellants, was similar to that of an employee Who is initially OffiCiating in a pOSt in a cadre and is subsequently confirmed in the post. This contention, we do not think, is well founded. It is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the Cadre of Senior Health Inspectors on the establishment of the Corporation. Not only their entry but also their continuance in the cadre of Senior Health Inspectors on the Corporation establishment depends on their being on deputation. There is no scope under the Cadre and Recruitment Regulations for their ab sorption as permanent Senior Health Inspectors under the Corporation. In fact, it is impermissible to do so. The category of Senior Health Inspectors, who are regular em ployees of the Corporation, can be drawn only by promotion from Junior Health 797 Inspectors and that too, to the extent of only one half the number of posts. It is, therefore, obvious that without amendment of the Cadre and Recruitment Regulations permit ting appointment and absorption is really nothing but appointment of Senior Health Inspectors drawn from the State Directorate of Health Services as permanent Senior Health Inspectors under the Corporation, the appellants could not be absorbed as permanent Senior Health Inspectors on the Corporation establishment. The conclusion must irresistibly follow that the Resolution of the Corporation dated 30th December, 1974 read with the Government order dated 6th May, 1975 did not operate to put an end to the status of the appellants as Government servants and to create the relationship of master and servant between the Corporation and the appellants and in the circumstances, it was competent to the State Government to pass the Order dated 25th August, 1975 withdrawing the sanction granted by it under the earlier Order dated 6th May, 1975. This view taken by us renders it unnecessary to consider whether the communication dated 30th December, 1974 was addressed by the appellants to the Mayor of the Corporation expressing their willingness to be absorbed as Senior Health Inspectors under the Corporation on the terms set out in the Resolution dated 30th December, 1974. Even if any such communication was sent, it could have no legal effect because, as already pointed out by us. the appellants could not be absorbed as permanent Senior Health Inspectors under the Corporation, unless and until the Cadre and Recruitment Regulations were first amended so as to permit such absorption. The appeals are accordingly dismissed, but in the pecul iar facts and circumstances of the ease, we make no order as to costs.

Certain lands were sought to be acquired by the State Government under the provisions of the Land Acquisition Act, 1894, the public purpose stated being the development and utilisation of the lands as a residential and industrial area. Identical notifications under section 4 were issued in all the cases. In one group of lands, declarations that the provisions of section 5A shall not apply in respect of the lands were issued under section 17(4). With respect to a second group, declarations under section 17(4) were issued but were not fol lowed up with the section 6 notification. With respect to a third group no notification under section 17(4) was issued but after the petitioners filed objections, the section 6 notifica tion was issued accompanied by the declaration of urgency under 8. 17(4). The owners of the land sought to have the proceedings quashed on the grounds that, (1) there was no public pur pose, and that (2) there was no urgency justifying the notification under section 17(4) and dispensing with the enquiry under section 5A. The High Court held that, (1) the notifications under section 4(1) were valid, and that (2) the State had not discharged its burden of showing facts constituting the urgency which impelled it to issue the declarations under section 17(4) dis pensing with the enquiry under section 5A, and, therefore, those declarations were invalid, and that the parties were rele gated to the position they could take up in the absence of declarations under section 17(4). Both sides appealed to this Court. In the appeals by the State, it was contended by the appellant State that the burden of proving that there was No. urgency was on the owners of the. lands. Dismissing all the appeals, HELD: (1) The notifications under 8. 4(1) of the Act were valid in all the cases. [769 G] (2) (a) The rules regarding burden of proof are set out in the . Section 101 of the Evi dence Act lays down that whoever desires any Court to, give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist, and section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the 'Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Section 106 lays down that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by the Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. [774 C E; 775 C E] (b) The result of a trial or proceeding is determined by a weighing of the totality of facts, circumstances and presumptions operating in favour of one party as against those which may tilt the balance in favour of another. Such weighment always takes place at the end of a trial or pro ceeding which cannot, for purposes of this final weighment be split up into disjointed and disconnected parts. What is weighed at the end is one totality against another and not 17 1234SCI/76 764 selected bits or scraps of evidence against each other. Such total effect of evidence is determined at the end of a proceeding not merely by considering the general duties imposed by sections 101 and 102 but also by the special or par ticular ones imposed by other provisions such as sections 103 and 106. In judging whether a general or particular or special onus has been discharged the Court will not only consider the 'direct effect of the oral and documentary evidence led but also what may be indirectly inferred because certain facts have been proved or not proved though easily capable of proof if they existed at all and such proof of other facts may raise either, a presumption of law or fact. The party against which a presumption may operate can and must lead the evidence to show why the presumption should not be given effect to. If the party which initiates the proceed ing or comes with a case to Court offers no evidence in support of it. the presumption is that such evidence does not exist and if some evidence is shown to exist on a ques tion in issue but the party which has it within its power to. produce it does not, despite notice to do so, produce it, the natural presumption is that it would, if produced, have gone against it. Similarly, a presumption arises from failure to discharge a special or 'particular onus. The doctrine of onus of proof becomes unimportant when there is sufficient evidence before the Court to enable it to reach a particular conclusion in favour of or against a party. The principle of onus of proof becomes important in cases of either paucity of evidence or where evidence given by two sides is so equivalenced that the Court is unable to hold where the truth lay. The question whether an onus probandi has been discharged is one of fact. Sufficiency of evidence to discharge the onus probandi is not examined by this Court as a rule in appeals by special leave granted under article 136 of the Constitution,. but placing an onus where it did not lie may be. so examined in appropriate cases. [775 H; D G; 778 C D; 774 G] Swadeshi Cotton Mills Co. Ltd. vs The State of U.P. & Ors. ; 434 and Raja Anand Brahma Shah vs State of U.P. & Ors. ; at 381 referred to. I. G. Joshi etc. vs State of Gujarat & anr. ; held inapplicable. (c) Section 17(4) of the Land Acquisition Act has to be read with sections 4(1) and 5A of the Act. The immediate purpose of a notification under section 4(1) of the Act is to enable those who may have any objections to lodge them for purposes of an enquiry under section 5A. Considering the nature of the objections which are capable of being successfully taken under section 5A, the enquiry should be concluded quite expedi tiously. The purpose of section 17(4) is obviously not merely to confine action under it to waste and arable land but also to situations in which an enquiry under section 5A will serve no useful purpose, or, for some overriding reason, it should be dispensed with. The mind of the officer or authority con cerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under section 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under section 5A which has to be considered. [781 G H; 782] (d) Even a technically correct recital in an order or notification stating that the conditions precedent to the exercise of a power have been fulfilled may not debar the Court in a given case from considering the question whether, in fact, those conditions have been fulfilled. And, a fortiori the Court may consider and decide whether the authority concerned has applied its mind to really relevant facts of a case with a view to determining that a condition precedent to the exercise of a power has been fulfilled. If it appears upon an examination of the totality of facts in the case, that the power conferred has been exercised for an extraneous or irrelevant purpose or that the mind has not been applied at all to the real object on purpose of a power, so that the result is that the exercise of power could only serve some other or collateral object, the Court will interfere. [779 E F] (e) The High Court was wrong in the present case in laying down a general proposition that the presumption of regularity attaching to an order containing a technically correct recital did not Operate in cases in which section 106, Evidence Act, was applicable. An order or notification containing a recital technically correct on the face of it raises a presumption of fact under section 114, illustration 765 (e) That presumption is based on the maxim omain praesumun tur rite esse acta, that, is, all acts are presumed to have been rightly and regularly done. 'This presumption, however, is one of fact. It is an optional presumption which can be displaced by circumstances indicating that the power lodged in an authority or official has not been exercised in ac cordance with tile law. The totality of circumstances has to be examined including the recitals to determine whether and to what extent each side had discharged its general or particular onus. [777 E F] (f) The High Court had, however, correctly stated the limited grounds on which even a subjective opinion as to the existence of the need to take action under section 17(4) of the Act can be challenged, namely, main fides, no application of mind and total want of material on which the opinion is formed. Therefore, it is for the petitioner to substantiate the grounds of his challenge under sections 101 and 102. That is, the. petitioner has to either lead evidence or show that some evidence has come from the other side to indicate that his challenge to a notification or order is made good. If he does not succeed in discharging that duty his petition will fail. [776 B C] In the present case, in addition to the bare assertions of the owners of the land that the particular urgency contem plated 'by section 17(4) did not exist there were other facts and circumstances including non disclosure of any facts and circumstances which could easily justify the use of section 17(4) and which could have been disclosed if they existed; and, therefore, the petitioners should be held to have discharged their general onus under section 101 of the Evidence Act. Thus the High Court was right in quashing the notifications under section 17(4).[778 E] (g) In the present case, the public purpose. was suffi ciently specified to he prima facie a legally valid purpose. The High Court thought it vague; but, that did not really affect the judgment of the High Court so much as the total absence of facts and circumstances which could possibly indicate that this purpose. necessarily to be carried out in such a way as to .exclude the application of section 5A of the Act. Therefore, a .triable issue did arise in these cases and was decided by the High Court. This issue was whether the conditions precedent to exercise of power under section 17(4) had been fulfilled or not. Such a question can only be decided rightly after determining what was the nature of compliance with the conditions of section 17(4) re quired by the Act. [776 D E] (i) The public. purpose indicated is. the development of an area for industrial and residential purposes. This, in itself, did not make the taking of immediate possession imperative without holding even a summary enquiry under section 5A. On the other hand, the execution of such .schemes generally take sufficient period of time to enable at least summary inquiries under section 5A of the Act to be completed without any impediment to the execution of the scheme. (ii) All schemes relating to development of industrial and resi dential areas must be urgent in the context of the. coun try 's need for increased production and more residential accommodation. Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquiries under section 5A. (iii) There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination of the enquiry under section 5A. The recitals in the notification on the contrary indicate that elimination of the enquiry under section 5A was treated as an automatic consequence of the opinion formed on other matters. The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under section 5A. [782 G; 783 C D] The burden, therefore, rested upon the State to remove the defect, if possible, in recitals by evidence to show that some exceptional circumstances existed which necessi tated the elimination of an enquiry under section 5A and that the mind of the Commissioner was applied to this essential question. [783 E] (h) The High Court has thus correctly applied the provi sions of section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances, although the High Court was not quite correct in stating that 766 some part of the initial burden of the petitioners under sections 101 and 102 of the Evidence Act had been displaced by the failure of the State to discharge its duty under section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under section 106 of the Evidence Act, taken together with other evidence and the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burdens under sections 101 and 102 Of the Evidence Act in these particular cases. [783 F G] ARGUMENTS For the Appellant: It was urged on behalf of the appellant State that the High Court was in error in placing the burden of proof on the State. Reliance was placed on the decision of the Su preme Court in ; (pages 432, 433 and 434). In particular it was urged that where a statute prescribes something as a condition precedent for the exercise of statutory power, and there is a recital of existence of that condition in the notification then it is presumed that the statutory condition exists and it is for the ' other side to bring material before the Court to show that recital is not supported on any evidence or is made malafide. Similarly, in ; Raja Anands case the very scope of section 17(4) was discussed and the State relied on the observations at page 381 indicating the scope of judicial review original petitioners have not brought their case within the grounds mentioned in this case. The Barium Chemicals case and other cases cited can be easily distinguished on the ground that the statutory re quirements for the exercise of particular power, for example under section 237 of the Companies Act are differently worded where certain circumstances are required to be present. The Land Acquisition Act does not require the existence of any such circumstances. Besides, a decision of the Supreme Court has clearly indicated the scope of judi cial review in [967] 1 S.C.R. 373 and the respondents have not shown why any different view should not be taken. Cases like ILR 67 Gujarat 620, AIR 1964 Punjab 477 and ILR 1970 Cuttack 21 can be easily distinguished. There specific allegations were made by the petitioners giving reasons as to why they challenged the notifications. In reply thereto the State was bound to bring the material to negative those charges. In the present case if such allega tions were made by the writ petitioners the State would have certainly placed all the necessary materials to negative those allegations. In the absence of any such allegation the correct rule to apply was the one stated in ; & 433. Apart from this it may be noticed that by amending paragraph XVI (ARP) was introduced which made some effort to make concrete allegations regarding the invalidity of the notification under section 17(4). The ' substance of these allegations is that out of the whole area which is to be acquired urgency clause has been applied only to some areas and, therefore, petitioners prayed that an inference of ' exercise of powers in a casual and lighthearted manner should be drawn. To this averment, and since such concrete allegation was made a concrete reply has been given by the State in para 6 at Record Page 55 explaining why some lands were selected for urgency clause and why some notifications were issued earlier and why others came to be issued later. It is not open to. the respondents to enlarge their attack on grounds other than those which are stated in para. 16A. Lastly it was urged that the satisfaction under section 17(4) is not subjective satisfaction but must be an objec tive test because section 17(4) should be deemed to be controlled by section 17 sub sections 1 and 2. In the first place such a, contention was never raised in the High Court. Secondly, there are number of decisions of the Supreme Court where the opinion which is to be formed on section 17(4) is held to be subjective satisfaction. Thirdly, 767 the contention does not interpret complete provisions of section 17(1), 17(2) and 17(4). It is submitted under section 17(1) and 17(2) on one ' hand ,and the power under 17(4) are two separate and independent powers which can be exercised at different stages of the Land Acquisition pro ceedings. Vide AIR 1970 Allahabad 151 Hakim singh versus State of Uttar Pradesh, under 17(1) possession can be taken without there being an award under section 11 but there has to be a publication of a notice under section 9(1) and also a notification under section 6 preceded by an inquiry under section 5(a). In such cases and the cases covered by 17(2) the urgency may be determined on an objec tive basis but the whole purpose of section 17(4) is to dispense with an enquiry under section 5(a) which is to be followed again by a notification under section 6 and for such a purpose all that is required is that in the case of any land in the opinion of the appropriate Government the provision of sub section 1 or sub section 2 are applica ble. In other words the lands must be either waste of arable lands (which is, of course to be determined objec tively) but so far as the question of urgency is concerned it is the opinion that the Government has to form and that is not to be established by any objective test but its subjective satisfaction. For the Respondents: The Appellant (the State of Maharashtra) tried to argue that lack of bonafides were not argued in the Court below. In the pleadings of the Respondents (the writ petitioners) it was urged at pages 10 and 11 of the record that in fact it is significant that in some cases the lands which are sought to be acquired for the same purpose vis a vis for development and utilisation of the land as industrial and residential area the urgency clause has not been applied. It was further stated at page 11 that the power under Section 17(4) has 'been exercised in casual and light heart ed manner . without there being any proper application of mind to the condition requisite for the exercise of that _power. The said point was argued before the High Court and the High Court dealt with the same at pages 61 to 70 of the record. It was argued before this Honble Court that the circumstances under Section 17(4) is not subjective satis faction but an objective test since Section 17(4) is con trolled by Section 17(1) and (2). It was further argued that the Government never applied its mind nor did it place before the High Court any material to show that there was any urgency with respect to some of the lands and no urgency in respect to the others. It is admitted that the lands in all these cases were acquired for the same purpose inter alia for the development and utilisa tion of the said lands as an industrial and residential area. It was further argued that the burden of proof on the facts of these cases would be on the State since the reasons for urgency are only in the knowledge of the authority issuing the Notification. The cases cited by the Counsel for the State have no application since in those cases the petitioners could establish that the impugned notification was not bona fide. In this case the respondent, land owners, had in their Writ Petitions specifically raised the question that the authority had not applied its mind and treated it light heartedly 'and the Notification was not bona fide. The State however did not place any material before the Court to show that the authority had applied its mind or there was any clue to the urgency. The respondents have 'been deprived of their right to prefer objections under Section 5A of the Act and those objections are to be filed within 30 days. The notifications in this case have been made at the interval of months and even more than a year. The notification under Section 17(4) was made with respect to some lands and it was not made with respect to other. The State has not satisfactorily ex plained the reasons for this. From all these facts and circumstances the respondents argue that the notification under 768 Section 17(4) was not bonafide and the authority had not applied its mind, and the High Court was right in setting aside the said notification.

iminal Appeal No. 47 of 1966. Appeal by special leave from the judgment and order dated September 6, 1965 of the Patna High Court in Government Appeal No. 23 of 1962. B. P. Singh and D. N. Misra, for the appellant. D. P. Singh and K. M. K. Nair, for the respondent. 173 The Judgment of the Court was delivered by Vaidialingam, J. On behalf of the sixth accused, the appel lant herein, in this appeal, by special leave, Mr. B. P. Singh, learned counsel, challenges the order of the Patna High Court, dated September 6, 1965, setting aside the order of acquittal, passed by the Second Additional Sessions Judge, Muzaffarpur and convicting him for an offence, under section 467, read with section 109, IPC., and passing a sentence of three months ' rigorous imprisonment. For the relief and rehabilitation, of people who had suffer ed, in 1954, by the heavy floods in Sitamarhi Sub Division, the Government of Bihar was granting loans to needy and suitable persons, under the Agriculturist 's Loan Act, 1884. The appellant was a Mukhtear, practising at Sitamarhi. There are certain formalities, to be gone through, in the matter of obtaining the loans, under that Act. One of the requirements was that an applicant had to put his signature, on an agreement form and, that he should be identified, by a lawyer, who should also attest his signature. Several officers, connected with this Loan Department, including the Mukhtears practising at Sitamarhi, one of whom was the appellant, were alleged to have entered into a conspiracy, between November 19, 1955 and December 22, 1955, to cheat the Government, by inducing it to grant loans, in the names of fictitious persons, and, in pursuance of that conspiracy, two applications, for loans in the names of two fictitious persons, Durga Singh and Hari Shankar Singh, were filed before the Sub Divisional Officer, Sitamarhi. According to the prosecution, the appellant and another Mukhtear. Devendra Prasad, had certified, in the loan applications of Durga Singh and Hari Shankar Singh, that they knew those parties and that they had signed, in their presence. The amounts were drawn, in the usual course, from the treasury, by the said two persons; and, ultimately, it came to light that the two persons were fictitious persons, got up by the several accused. The appellant admitted having attested, in the loan applications of the two individuals concerned, but he stated that he did so, on the assurance of one Sheojee Prasad Karpardaj. It may be stated that this Sheojee Prasad Karpardaj was also charge sheeted, but he has been discharged, even by the committal Court. The learned Sessions Judge found, on the evidence,, that Durga Singh and Hari Shankar Singh were fictitious persons and a fraud was committed, on the Sub Divisional Officer, Sitamarhi, and the Sub treasury, as a result of which the Government sustained a loss of Rs. 1,000/ . The learned Sessions Judge accepted the appellant 's plea that he had made the endorsement on the 174 assurance of Sheojee Prasad Karpardaj and, in view of the fact that other Mukhtiar, Devendra Prasad, had also attested the loan applications, and acquitted him. This Devendra Prasad had also charged, for the same offence. While admitting, having attested the signatures of the applicants for the loan, Devendra Prasad had set up a plea that he did so, on the assurance, given by one Rudradeo Singh. This explanation has been accepted, by the trial Court and Devendra Prasad was acquitted. But, when the State appeal, against acquittal, was pending in the High Court, Devendra Prasad died. But, we have to refer to certain observations, made by the High Court, regarding this Devendra Prasad, which have, more or less, formed the grounds, for setting aside the order of acquittal of the appellant also. The High Court, on appeal, by the State Government, has set aside the order of acquittal of the appellant. Two reasons so far as we could see, have been given, by the High Court, for interfering with the order of acquittal, viz. : (i) that though the appellant raised a defence that he attested the loan applications, on the representation and assurance of Sheojee Prasad Karpardaj, no evidence has been let in, by the appellant, to support this defence: and (ii) Devendra Prasad, with whose case the appellant 's also was closely connected, had raised a plea that he attested the loan applications, on the assurance and representation of Rudradeo Singh and that Devendra Prasad has not examined himself as a witness, under section 342A, Cr.P.C., nor did he adduce any other evidence, in support of his claim. It is really, on these grounds, that the appellant has been convicted, for the offence under section 467 read with section 109, IPC., and sentenced to undergo rigorous imprisonment, for a period of three months. We are satisfied that the order of the High Court cannot be sustained. Regarding the first point, mentioned above, the High Court has really thrown the burden of proof on the appellant, instead of finding out whether the prosecution has proved its case and whether the order of acquittal is erroneous. Regarding the second point the High Court has really committed a breach of the proviso to section 342A, when it has commented upon the nonexamination of Devendra Prasad, that he has not examined himself, as a defence witness. Under cl. (b), of the proviso to section 342A, Cr. P.C., it is specifically provided that the failure of an accused to give evidence, shall not be made the subject of any comment, by any of the parties, or the Court, or give rise to any presumption against himself, or any person charged, together with him, at the same time. The High Court has stated that the case of the appellant is closely connected with that of Devendra Prasad. In fact, the appellant had pleaded that he had attested the signatures of the applicants, for the loans, because Devendra Prasad, another Mukhtear, had attested the same 175 and also on the assurance of one Sheojee Prasad Karpardaj. Devendra Prasad had taken a plea that he had attested the signatures of the applicants, on the assurance of one Rudradeo Singh, a class mate of his. It is in considering this plea that the High Court has commented upon the failure of Devendra Prasad to give evidence under section 342A, and the High Court has also taken the view that the same reasons will apply to the appellant 's defence also. That is, the failure of the appellant, to give evidence, has been commented upon, by the High Court, and it has also drawn a presumption, against him. , both of which are illegal, under clause (b) of the proviso to section 342A, Cr. In view of this serious infirmity, in the judgment of the High Court, the order, under attack, is set aside, and the order of the Second Additional Sessions Judge, Muzaffarpur, acquitting the appellant,, will stand restored. In the result, the appeal is allowed. G.C. Appeal allowed.

The appellant occupied an office cabin in Bombay on leave and licence from respondent No. 1. In an application under section 145 of the Code of Criminal Procedure the appellant alleged that on June 11, 1966 respondent No. 1 wrongfully took possession of the cabin and gave in to respondents 2 and 3 who forcibly presented his re entry. He also lodged a report of the incident with the, police as a result of which respondent No. 1 was arrested for an offence under section 351 Indian Penal Code but was released on bail. Respondent No.1 filed a civil suit and took out a notice of motion for restraining the appellant from interfering with the possession of the cabin, but the same was dismissed. The Magistrate trying the application under section 145 of the Code of Criminal Procedure passed a preliminary order on June 20, 1966 recording his satisfaction that a dispute existed. After considering the affidavits and the evidence led by the parties the Magistrate accepted the appellant 's version of facts and on June 22, 1967 passed the final order under sub section (6) directing restoration of possession to the appellant tin evicted in due course of law. The High Court in revision set aside the order ,of the Magistrate on the following grounds : (i) That the Magistrate had not recorded his reasons for passing the preliminary order; (ii) that the Magistrate had passed the said order without calling for a police report, merely on the basis of the appellant 's allegations; (iii) That the dispossession of the appellant was completed and a report of assault was lodged by the appellant with the police before the preliminary order was passed, and therefore there was no longer any dispute on the day of the order likely to lead to a breach of the peace. HELD : (i) The satisfaction under sub section (1) of section 145 is that of the Magistrate. The question whether on the materials before him be should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules in that behalf. The High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of material which had satisfied the Magistrate. [86A B] In the present case the Magistrate had expressed his satisfaction on the basis of the facts set out in the application before him after he had examined the appellant on oath. That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction [86C D] (ii) The jurisdiction under section 145 being of an emergency nature, the Magistrate must 'act with caution but that does not mean that where on an application by one of the parties to the dispute he is satisfied that the requirements of the section 'are existent he cannot initiate proceedings 81 without a police report. The other view limits the discretion of the Magistrate and renders the words , other information ' in section 145(1) either superfluous or qualifies them to mean other information verified by the police. 187D E] Phutania vs Emperor, (1924) 25 Cr. L.J. 1109, Ganesh vs Venkataswara and Raja of Karyentnagar vs Sowcar Lodd Govind Doss, Mad. 561, disapproved (iii) The High Court erred in holding that merely because dispossession of the appellant was completed before June 20, 1966, there was no dispute existing on that day which was likely (to lead to breach of peace or that the Magistrate was, therefore, prevented from passing the preliminary order and proceeding thence to continue the enquiry and pass his final order. This reasoning would mean that if a party takes the law into his hands and deprives forcibly and wrongfully the other party of his possession and wrongfully completes his act of dispossession, the party so dispossessed cannot have the benefit of section 145. as by the time he files his application and the Magistrate passes his order, the dispossession would be complete and therefore, there would be no existing dispute likely to cause a breach of the peace. Such a view does not take into consideration the second proviso to sub section (4) which was introduced precisely to meet such cases. [87F H; 88A] The word 'dispossessed ' in the second proviso means to be out of possession, removed from the premises, ousted, ejected or excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession. [88 D Reading section 145 as a whole it is clear that even though respondent 1 had taken over possession of the cabin, since that incident took place within the prescribed period of two months next before (the date of the preliminary order, the appellant was deemed to be in possession on the date of that order and the Magistrate was competent to pass the final order as he did. [89 D] Edwick v, Hawkes, , Jiba vs Chandulal, A.I.R. , A. N. Shah vs Nageswara Rao, A.I.R. 1947 Mad. 133 and Subarna Sunami vs Kartika Kudal, (1954) I.L.R. Cuttk. 215, applied.

Civil Appeal No. 1843 of 1974. Appeal by special leave from the judgment and order dated the 6th September, 1972 of the Allahabad High Court in Civil Misc. Writ No. 27 of 1972. S.C. Manchanda, Champat Rai and Miss A. Subhashini for the Appellants. Pramod Swarup for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The question which arises for consideration in this appeal by special leave is whether under section 52 of the (hereinafter referred to as the Act) the Central Government is bound to accept in satisfaction of the whole or any part of the duty payable under the Act at such price as may be agreed upon between the Central Government and the person accountable for estate duty any property passing on the death of the deceased when an application is made for that purpose by such person. On the death of Lala Beni Madho Agarwal which took place on September 29, 1964 his son Prayag Dass Agarwal, the respondent 579 herein filed a statement of account under the Act of the estate passing on the death of the deceased. The estate duty payable in respect of the estate in question was determined at Rs. 3,37,543.40 by the Assistant Controller of Estate Duty, Allahabad by his order dated November 30, 1970. When the appeal filed against the said order was still pending, the respondent made an application under section 52(1) of the Act on February 15, 1971 to the Central Board of Direct Taxes offering one of the items of property passing on the death of the deceased, namely premises No. 1, Phaphamau Road, Allahabad, whose principal value had been determined by the Assistant Controller at Rs. 2,53,655 in part payment of the balance of estate duty which was still payable by him under the order of assessment. The said application elicited a cryptic reply dated September 16, 1971 from the Under Secretary of the Central Board of Direct Taxes, the relevant part of which read as follows: "I am directed to refer to your petition dated 16.2.1971 on the subject mentioned above and to say that your offer is not acceptable. " The Assistant Controller, however, wrote to the respondent on October 21,1971 stating that the respondent could pay the arrears of estate duty payable by him in monthly instalments of Rs. 10,000 each beginning from October 29, 1971 subject to payment of interest @ 9% per annum on the arrears outstanding. Thereupon the respondent filed a writ petition before the High Court of Allahabad under Article 226 of the Constitution against the Assistant Controller, the Central Board of Direct Taxes and the Union of India requesting the High Court to issue a writ in the nature of mandamus to the Union of India to consider the application made by him under section 52(1) on its merits, to negotiate and settle the price of the property offered by him in settlement of part of duty payable by him and to give credit to the extent of the price so determined under the Act. The respondent contended inter alia that section 52 of the Act conferred a right on an accountable person, if he chose to do so, to offer an item of property passing on the death of the deceased in respect of whose estate, duty was payable under the Act in discharge of the whole or part of such duty and that it imposed a reciprocal obligation on the Central Government to accept such property and adjust its price as may be agreed upon between the Central Government and the accountable person towards the duty payable. He further contended that the Central Government had no right to refuse to accept the offer so made by the accountable person and that he 580 having made the offer to pay the duty by transfer of the property in question he could not be compelled to pay the duty to the extent of its price. He, therefore prayed for the issue of appropriate direction to the Central Government to comply with section 52 of the Act accordingly. On behalf of the Union Government it was inter alia urged that it was not bound to accept an offer made under section 52(1) of any property and it was within the discretion of the Union Government to reject the offer. The High Court held that if the accountable person exercised the option to pay the estate duty by transferring property, the Central Government could not refuse to accept the offer and insist upon payment by another mode when there was agreement about the price between it and the accountable person. It, however, held that it was not necessary to decide the question whether it was open to the Central Government to refuse the offer of property on a ground other than the price as the impugned order had not disclosed any reason at all for rejecting the offer. Accordingly the High Court directed the Union Government and the Central Board of Direct Taxes to dispose of the application of the petitioner afresh in accordance with law. This appeal is filed against the said decision of the High Court under Article 136 of the Constitution. Section 5(1) of the Act provides that in the case of every person dying after the commencement of the Act there shall, save as expressly provided in the Act, be levied and paid upon the principal value ascertained as per the relevant provisions of the Act of all property, settled or not settled, including agricultural land situate in the territories which immediately before November 1, 1956 were comprised in the States in the First Schedule to the Act which passes on the death of such person, a duty called 'estate duty ' at the rates fixed in accordance with section 35 of the Act. The rates of estate duty are set out in the Second Schedule to the Act. The principal value of the property liable for estate duty has to be ascertained in accordance with the provisions in Part V of the Act. The estate duty levied under the Act can be collected as per provisions in Part VII of the Act. Section 51 of the Act states that estate duty may be collected by such means and in such manner as the Central Board of Direct Taxes may prescribe. Rule 18 of the Estate Duty Rules (hereinafter referred to as 'the Rules ') made by the Central Board of Direct Taxes in exercise of the powers conferred by sub section (1) of 581 section 85 of the Act deals with payment of estate duty. That Rule provides inter alia that payment of any duty may be made by delivery of a cheque on a scheduled bank or by a bank draft issued by a scheduled bank or by depositing the amount of duty in the Government Treasury or by adjustment of any refund of income tax, excess profits tax, business profits tax or excess profits tax deposit. Section 52 of the Act as it was originally enacted provided that the Board might prescribe that Government securities could be accepted in payment of estate duty on such items as it thought fit. When it was suggested that a provision corresponding to section 56(1) of the Finance as it stood at the time when the Act was enacted could be introduced into the Act, it was not accepted by the Indian Finance Minister. Section 49 of the British Finance Act 1946 (9 & 10 Geo 6 C. 64) provided that the Commissioners of Inland Revenue could accept any property under section 56 of the Finance in satisfaction or part satisfaction of any estate duty and amended the latter Act accordingly. Section 56(1) of British Finance which was again amended by the British Finance Act of 1949 read thus: "56(1) The Commissioners may, if they think fit, on the application of any person liable to pay estate duty or settlement estate duty accept in satisfaction of the whole or any part of such duty any such real (including leasehold) property as may be agreed upon between the Commissioners and that person." The legal position in the United Kingdom as it existed in 1965 in so far as transfer of real and leasehold property in payment of estate duty is concerned is summarized in Dymond 's Death Duties (14th Edition) at pages 720 721 thus: "D Transfer of Property in Payment of Duty : (1) Real and leasehold property: By section 56(1) of the Finance , as extended and amended by section 49 of the Finance Act, 1946 (which applies to deaths at any time) and the Finance Act, 1946 (which applies to deaths at any time) and the Finance Act, 1949, Sched. XI, Pt. IV the Commissioner 's may, if they think fit, on the application of any person liable to pay any Death Duties, accept in satisfaction of the 582 whole or part of such duty any such real (including leasehold) property as may be agreed upon between the Commissioners and the accountable person. The Commissioners have the right to accept foreign real or leasehold property, but they are scarcely likely to do so. The property accepted need not itself be liable to duty. It may be accepted in satisfaction of duty on any property, real or personal. No Stamp Duty is to be payable on the transfer of such property (Finance , section 56(2) . The disposition of any property accepted by the Commissioners is provided for by sections 50 and 51 of the Finance Act, 1946, under which the Treasury may direct that the land be transferred direct to a body of persons (e.g. the National Trust) or to trustees for such a body, etc,. instead of to the Commissioners, and the duty receivable by the latter may be paid out of the National Land Fund established by section 48 of the Act. It is within the discretion of the Commissioners whether they will accept property under this provision, but the Chancellor of the Exchequer in his Budget statement for 1946 said that he expected the power (which hitherto had not in practice been used) to operate on a substantial scale in the future: it is understood that seventy properties had been taken over up to the 31st March, 1963. He referred also to the National Trust and the Youth Hostels Association as examples of the bodies not established for profit, and having for their object "the provision, improvement or preservation of amenities enjoyed, or to be enjoyed, by the public or the acquisition of land to be used by the public" to which the land may be transferred. Particulars of properties accepted are given in the Commissioner 's Annual Reports. There is no provision for the transfer of land by a person other than the accountable person, and the acquisition price cannot exceed the amount of the duty. The Commissioners ' powers extend to the acquisition of foreign immovable property, but are scarcely likely to be exercised in respect of it. " The position in the United Kingdom appears to be more or less the same even after the former estate duty was replaced by the new tax known as capital transfer tax by the British Finance Act 583 1975 (vide section 22 of the Finance Act 1975). The relevant part of paragraph 17 of Schedule 4 to that Act reads thus: "17 (1) The Board may, if they think fit on the application of any person liable to pay tax, accept in satisfaction of the whole or any part of it any property to which this paragraph applies. (2) This paragraph applies to any such land as may be agreed upon between the Board and the person liable to pay tax. (3) This paragraph also applies to any objects which are or have been kept in any building (a) If the Board have determined to accept or have accepted that building in satisfaction or part satisfaction of tax or estate duty, or . . " (See Halsbury 's Statutes of England (Third Edition) Vol. 45 at page 1870). Section 52 of the Act was substituted by a new section 52 by the Direct Taxes (Amendment) Act, 1964. The new section reads thus: "52. Payment of duty by transfer of property (1) The Central Government may, on an application of the person accountable for estate duty, accept in satisfaction of the whole or any part of such duty any property passing on the death of the deceased at such price as may be agreed upon between the Central Government and that person, and thereupon such person shall deliver possession of the property to such authority as may be specified by that Government in this behalf. (2) Notwithstanding anything contained in any other law for the time being in force, on the date the possession of the property is delivered to the authority under sub section (1) (i) the property shall vest in the Central Government; and (ii) the Central Government shall, where necessary, intimate the registering authority concerned accordingly; and the authority shall administer the property in such manner as the Central Government may direct. 584 (3) Where the price referred to in sub section (1) exceeds the aggregate of the amounts due under this Act in respect of the estate of the deceased, the excess shall be applied in the following order to the payment of any tax, penalty, interest or other amount (i) which the legal representative of the deceased is liable to pay in respect of the income, expenditure or wealth of, or gift made by, the deceased under any of the Acts referred to in clause (c) of section 2 of the ; (ii) which the executor is liable to pay under any of the Acts aforesaid in respect of the estate of the deceased for the period of the administration of the estate; (iii)which the person beneficially entitled to the property in question is liable to pay under any of those Acts; and the balance, if any, shall be paid to the accountable person. " In the Notes on clauses annexed to the Bill which ultimately became the Direct Tax (Amendment) Act 1964, it was stated: "Sub clause (b) seeks to substitute the provisions of section 52 of the by a new provision, enabling the Central Government to accept at an agreed price, the assets comprised in an estate passing on the death of the deceased towards payment of the estate duty, if the accountable person so offers. Provision is also made that any balance of the price left after satisfying the amounts due under the will be adjusted against amounts due under the other Direct Taxes Act from the deceased, his estate and the accountable person beneficially entitled to the asset in question in that order. " Let us now analyse section 52 of the Act. A proceeding under section 52 does not commence until an application is made by the person accountable for estate duty. It is entirely at his option whether a property passing on the death of the deceased should be transferred so that its price can be adjusted towards payment of the estate duty. The Central Government cannot compel him to do so. When the accountable person voluntarily applies to the Central 585 Government, the section says that the Central Government 'may ' accept the property offered in satisfaction of the estate duty at such price as may be agreed upon between it and the accountable person. Section 52 of the Act does not say that the Central Government shall do so but it may do so. The question in this case is whether the Central Government is bound to do so. We shall revert to this question later on. Then the price of the property has to be agreed upon between the Central Government and the accountable person. The price so agreed upon should naturally relate to the date on which agreement takes place and it cannot certainly be the principal value of the property determined in the estate duty proceedings. This provision may perhaps indirectly act as a deterrent against excessive valuation of the property in the estate duty proceedings because when the question of determination of its price under section 52 of the Act arises there ought not to be a wide disparity between the principal value determined in the estate duty proceedings and what is offered by the Central Government as the price under section 52. When once the price is agreed upon, then the accountable person is bound to deliver possession of the property to such authority as may be specified by the Central Government. On such delivery the property vests in the Central Government without any further formality. Sub section (3) of section 52 of the Act provides that where the price agreed upon exceeds the amount due as estate duty, the excess amount shall be applied to the payment of any tax penalty, interest or other amount payable in the order mentioned in clauses (i) to (iii) thereof. If after adjusting all such dues, any balance still remains, such balance shall be paid to the accountable person. The Act is a fiscal statute principally intended to levy and collect estate duty which when collected has to be disbursed in accordance with Part XII of the Constitution. It is not a law providing for acquisition of a property forming part of the estate of the deceased. Part VII of the Act in which sections 51 and 52 occur only provides the machinery for collection of the duty. Whereas section 51 of the Act authorises the Board to prescribe the means and manner in which the estate duty may be collected, section 52 gives the option to the accountable person to offer a property passing on the death of the deceased so that its price may be adjusted towards the payment of the estate duty. Rule 18 of the Rules made by the Board pursuant to section 51 enables the accountable person to discharge his liability in one or more ways mentioned therein and there the Central Government is left with no choice 586 about them. Payment of duty in any of the said ways discharges the liability of the accountable person under the Act. Section 52 of the Act however, appears to be an alternative mode by which such liability can be discharged but it has some distinguishing features. Indisputably the price of the property offered thereunder has to be agreed upon between the Central Government and the accountable person which introduces an element of consensus into the proceeding. But the point on which the parties are at issue in this case is whether the Central Government is bound to accept a property offered by the accountable person under section 52 and initiate proceedings to settle its price by negotiation. The language of the statute prima facie does not compel the Central Government to do so. The section is in the nature of an enabling provision which authorises the Central Government to accept a property in lieu of estate duty payable subject to the conditions mentioned in it. It is true that even enabling words in a statute which confer a discretionary power may have to be interpreted as compulsory where they amount to words clearly intended to effectuate a legal right. But ordinarily such words are permissive only. In the instant case the very fact there is a need for an agreement upon the price of the property between the Central Government and the accountable person makes the power of the Central Government under section 52(1) of the Act discretionary and permissive. Any other meaning may lead to impractical and incongruous result. The Central Government cannot be compelled to accept the properties in discharge of the estate duty when no agreement is possible on its price, and when law does not provide for a machinery to determine the price when there is no agreement. The history of the corresponding legislation in the United Kingdom and the language of section 52 read with the 'Notes on clauses ' attached to the relevant Bill extracted above suggest that the Central Government has the option either to accept or reject the offer made by an accountable person under section 52. This has to be so having regard to the administrative difficulties involved in the matter. As mentioned earlier, the Act is a fiscal statute intended to collect duty and not to acquire property. If section 52 of the Act is held to be mandatory then the Central Government will be obliged to acquire properties in several parts of India where it may not find any use for them and spend money on their management and upkeep and arrange for their disposal. The cost of administration involved in the Act in that case possibly may be much more than the duty realisable under the Act. Further if such is the construction to be placed then what happens if the price of the property offered is more than the duty payable ? Then in every such case, the Government would be compelled to acquire property by paying 587 to the accountable person the amount which is in excess of the duty and other sums payable under section 52(2)(i) to (iii) even when it does not need such property. Surely such could not have been the intention of the Parliament. We are of the view that on a plain construction of section 52 of the Act, the Central Government may at its discretion either accept the property offered under section 52 or may not if the circumstances so warrant. The accountable person cannot claim that the Central Government is bound to accept to such property. The power of the Central Government under section 52 is purely administrative and discretionary. The High Court was in error in holding that if an assessee wanted to pay the estate duty by transferring property, the Government could not refuse to accept the offer and insist upon payment by another mode, provided there was agreement on the price of the property between the Government and the assessee. When once it is held that the power of the Government under section 52 of the Act is administrative and discretionary, it follows that the said power should be exercised subject to the same limitation which govern all such administrative and discretionary powers. The Central Government or the authority which is competent to take a decision should exercise its discretion bona fide and in good faith by addressing itself to the matter before it and should not allow itself to be influenced by extraneous and irrelevant considerations. The question should not be disposed of in an arbitrary or capricious way. In this case, the Court can only ask the authority concerned to exercise the discretion vested in it but it cannot be asked to exercise it in a particular way. On this question we approve the decision of the Andhra Pradesh High Court in Chella Rama Bhupal Reddy vs Central Board of Direct Taxes & Anr. The true legal position may be summarised thus. What section 52(1) does is to set forth one more mode in which estate duty may be recovered. It is a provision made specially for the recovery of estate duty. It enables the Government to recover the duty in accordance with that mode. The other statutory modes prescribed under section 51 and specified in the Rules are those where recourse by the accountable person obliges the Revenue to accept the payment made in any of those modes and to treat it, by compulsion of statute, as satisfaction of the dues. The peculiarity of the mode provided under section 52(1) is that while recourse to it by the accountable person does not automatically imply satisfaction of the 588 dues, there is the duty cast on the Revenue to consider the application by the accountable person offering an item of property as a mode for satisfying the dues. The Government must consider the application on its merits and in the exercise of sound administrative judgment. Ordinarily in every contract for the purchase of property there are two stages. (1) In the first stage, there is complete freedom to the parties to decide whether one should enter into negotiations with the other at all and in that regard the law takes no account of reason of any party for not choosing to entertain the proposal for sale made by the other however arbitrary, illogical or irrelevant the reason may be. (2) The second stage follows the entertaining of the proposal and the actual negotiations between the parties which may or may not fructify in a contract. Section 52(1) now under consideration concerned with the first stage, and differs in this from the complete freedom to entertain the proposal in that the proposal made under section 52(1) by the accountable person must be considered by the Central Government and any decision taken by it on that question must proceed on considerations which are relevant and bona fide. The price of the property is, however, left to be determined by agreement in the event of the Government deciding to accept the offer made by the accountable person. This forms part of the second stage. In the instant case, the High Court was, however, right in holding that it had not been shown that the competent authority had properly exercised its discretion. In the counter affidavit filed by the Assistant Controller of Estate Duty, some reasons were given in support of the decision of the Board. That counter affidavit is of no use for the deponent could not speak on behalf of the Central Government or the Board. In the counter affidavit of Balbir Singh, Secretary, Central Board of Direct Taxes and Deputy Secretary to the Government of India, two principal grounds were mentioned for rejecting the offer one, that the Central Government was not bound to accept the offer and two, that it had been shown that "the cash in hand, cash in bank, book debts, business profits, rent and share of the deceased in the firm of Ramnarain Lal Beni Madho amounted to Rs. 4,57,462 which amount was more than sufficient to pay the entire estate duty demand". On the other hand the respondent contended in his reply affidavit that he had no liquid cash to pay the estate duty as it had been invested in business. But there appears to have been no further probe into the question. It is also obvious that the Board proceeded on the assumption that its discretion was unfettered even by considerations relevant to administrative 589 law. In these circumstances, we feel that there was no proper exercise of the discretion by the Board. We, therefore, affirm the direction issued by the High Court but subject to the observations made above and direct the Board to dispose of the application afresh in accordance with law. The appeal is accordingly disposed of. No costs.

On the death of his father which took place on September 29, 1964 the respondent filed a statement of account under the of the estate passing on the death of the deceased. The estate duty payable in respect of the estate in question was determined at Rs. 3,37,543.40 by the Assistant Controller of Estate Duty, Allahabad, by his order dated November 30, 1970. When the appeal filed against the said order was still pending, the respondent made an application under section 52(1) of the Act on February 16, 1971 to the Central Board of Direct Taxes offering one of the items of property passing on the death of the deceased, namely, premises No. 1, Phaphamau Road, Allahabad, whose principal value had been determined at Rs. 2,53,625 in part payment of the balance of estate duty which was still payable by him under the order of assessment. The said offer was not accepted by the Central Board of Direct Taxes but the appellant herein wrote to the respondent stating that the respondent could pay the arrears of estate duty payable by him in monthly instalments of Rs. 10,000 each beginning from October 29, 1971 subject to payment of interest @ 9% per annum on the arrears outstanding. Thereupon the respondent filed a writ petition before the High Court of Allahabad requesting the High Court to issue a writ in the nature of mandamus to the Union of India to consider the application made by him under section 52(1) on its merits, to negotiate and settle the price of the property offered by him in settlement of part of duty payable by him and to give credit to the extent of the price so determined under the Act. The High Court held that if the accountable person exercised the option to pay the estate duty by transferring property, the Central Government could not refuse to accept the offer and insist upon payment by another mode when there was agreement about the price between it and the accountable person. The High Court, however, held that it was not necessary to decide the question whether it was open to the Central Government to refuse the offer of property on a ground other than the price as the impugned order had not disclosed any reason at all for rejecting the offer. Accordingly, the High Court directed the respondents before it to dispose of the application afresh in accordance with law. Hence the appeal after obtaining special leave of the Court. Affirming the High Court directions, the Court 577 ^ HELD :1:1. What section 52(1) of the does is to set forth one more mode in which estate duty may be recovered. It is a provision made specially for the recovery of estate duty. It enables the Government to recover the duty in accordance with that mode. The other statutory modes prescribed under section 51 and specified in the Rules are those where recourse by the accountable obliges the Revenue to accept the payment made in any of those modes and to treat it, by compulsion of statute, as satisfaction of the dues. The peculiarity of the mode provided under section 52(1) is that while recourse to it by the accountable person does not automatically imply satisfaction of the dues, there is the duty cast on the Revenue to consider the application by the accountable person offering an item of property as a mode for satisfying the dues. The Government must consider the application on its merits and in the exercise of sound administrative judgment. [587 F H, 588 A] 1:2. Ordinarily in every contract for the purchase of property there are two stages. (i) In the first stage, there is complete freedom to the parties to decide whether one should enter into negotiations with the other at all and in that regard the law takes no account of the reason of any party for not choosing to entertain the proposal for sale made by the other however arbitrary, illogical or irrelevant the reason may be. (ii) The second stage follows the entertaining of the proposal and the actual negotiations between the parties which may or may not fructify in a contract. Section 52(1) is concerned with the first stage, and differs in this from the complete freedom to entertain the proposal in that the proposal made under section 52(1) by the accountable person must be considered by the Central Government and any decision taken by it on that question must proceed on considerations which are relevant and bonafide. The price of the property is, however, left to be determined by agreement in the event of the Government deciding to accept the offer made by the accountable person. This forms part of the second stage. [588 A D] 1:3. The is a fiscal statute principally intended to levy and collect estate duty which when collected has to be disbursed in accordance with of the Constitution. It is not a law providing for acquisition of a property forming part of the estate of the deceased. Section 52 is in the nature of an enabling provision which authorises the Central Government to accept a property in lieu of estate duty payable subject to the conditions mentioned in it. It is true that even enabling words in a statute which confer a discretionary power may have to be interpreted as compulsory where they amount to words clearly intended to effectuate a legal right. But ordinarily such words are permissive only. C D] In the instant case, the very fact that there is a need for an agreement upon the price of the property between the Central Government and the accountable person makes the power of the Central Government under section 52(1) of the Act discretionary and permissive. Any other meaning may lead to impractical and incongruous result. [586 D E] 1:4. On a plain construction of section 52 of the Act the Central Government may at its discretion either accept the property offered under section 52 or may not if the circumstances so warrant. The accountable person cannot claim 578 that the Central Government is bound to accept such property. The power of the Central Government under section 52 is purely administrative and discretionary. Therefore, the said power should be exercised subject to the same limitations which govern all such administrative and discretionary powers. The Central Government or the authority which is competent to take a decision should exercise its discretion bonafide and in good faith by addressing itself to the matter before it and should not allow itself to be influenced by extraneous and irrelevant considerations. The question should not be disposed of in an arbitrary or capricious way. In this case, the Court can only ask the authority concerned to exercise the discretion vested in it but it cannot be asked to exercise it in a particular way. [587 A B, D F] Chella Rama Bhupal Reddy vs Central Board of Direct Taxes and Anr., Andhra Pradesh, approved. In the instant case, the High Court was right in holding that it had not been shown that the competent authority had properly exercised its discretion. The Board proceeded on the assumption that its discretion was unfettered even by considerations relevant to administrative law and did not probe into the question of the availability of liquid cash in the hands of the respondent to pay tee estate duty and the averment of the respondent that the entire liquid cash had been invested in business. [588 E, H, 589 A]

Appeal No. 325 of 1962. Appeal from the judgment and decree dated August 4, 1959 of the Andhra Pradesh High Court in Appeal Suit No. 489 of 1954. K.Bhimsankaram and R. Ganapathy Iyer, for the appellants. P.Ram Reddy, T. V. R. Tatachari and B. R. G. K. Achar, for respondent No. 1. January 23, 1964. The Judgment of the Court was delivered by MUDHOLKAR J. This is an appeal against the judgment of the High Court of Andhra Pradesh by which it reduced the amount of compensation awarded to the appellants by the Subordinate Judge, Vijayawada in respect of certain lands belonging to them which were acquired by the State. The lands in question are survey Nos. 281/2, 339/1 to 8 and 338/1 to 3 which are situate at a short distance from the town of Vijayawada and lie alongside the Vijayawada Eluru Road. The Land Acquisition Officer had fixed Rs. 3,500 per acre for the first two of these survey Nos. and Rs. 4.000 per acre for the third survey number. The learned Subordinate Judge granted a uniform rate of Rs. 10,000 per acre for the lands comprised in all the survey numbers. There were some disputes with regard to 296 the entitlement to the compensation for survey No. 339/1 to 3 and the Land Acquisition Officer, therefore, made a reference to the Court for the apportionment of the com pensation amount among the various claimants. Six of the appellants did not accept the award of the Land Acquisition Officer and made applications in writing to him within the time allowed by law for referring the matter for deter mination of the court. It is common ground that no refer ence was made by the Land Acquisition Officer in pursuance of these applications. When the matter came up before the Court it proceeded on the footing that the reference made to it by the Land Acquisition Officer was not merely limited to the apportionment of compensation but was also with respect to the amount of compensation. No objection was, however, raised on behalf of the State that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter. When the matter went up before the High Court by way of an appeal from the judgment of the Subordinate Judge, the Government pleader raised the question that in the absence of a reference on the question of quantum of compensation by the Land Acquisition Officer, the Court had no jurisdiction to consider that matter at all. The High Court, though it ultimately reversed the finding of the court as to the amount of compensation, unfortunately allowed the plea to be raised before it but ultimately upon a consideration of certain decisions, negatived it. We say unfortunately because this is not 'a kind of plea which the State ought at all to have taken. Quite clearly applications objecting to the rates at which compensation was allowed were taken in time by persons interested in the lands which were under acquisition and it was no fault of theirs that a reference was not made by the Land Acquisition officer. Indeed, whenever applications are made under section 18 of the Land Acquisition Act, it is the duty of the Land Acquisition Officer to make a reference unless there is a valid ground for rejecting the applications such as for instance that the applications were barred by time. Where an officer of the State is remiss in the performance of his duties in fairness the State ought not to take advantage of this fact. We are further of the 297 opinion that the High Court, after the plea had been raised, would have been well advised to adjourn the matter for enabling the appellants before us, who were respondents in the High Court, to take appropriate steps for compelling the Land Acquisition Officer to make a reference. All the same since the point was permitted to be urged before it by the High Court and has been raised before us on behalf of the State it is necessary to decide it. On behalf of the appellants it was contended before the High Court that by reason of the failure of the State to raise the plea before the Subordinate Judge as to the absence of a refer ence the State must be deemed to have waived the point. The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived. In our opinion the view of the High Court is not correct. Section 12(1) of the Land Acquisition Act provides that after an award is filed in the Collector 's office it shall, except as provided in the Act, be final and conclusive evidence as between the Collector and the persons interested of the true area and value of the land and the apportionment of the compensation among the persons interested. The only manner in which the finality of the award can be called into question is by resort to the provisions of section 18 of the Land Acquisition Act, sub section (1) of which reads thus: "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 for 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. " The proviso to sub section (2) prescribes the time within which an application under sub section (1) is to be made. Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that 298 reference. Thus the matter goes to the court only upon a reference made by the Collector. It is only after such a reference is made that the court is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the court to consideration of the contentions of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under section 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the court with the jurisdiction to consider a matter not directly connected with it. This is really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pestonjee & Ors. vs Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor(1) wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore, a case of lack of inherent jurisdiction and the failure of the Slate to object to the proceedings before the court on the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence. In Alderson vs Palliser & Anr. (2) the Court of Appeal held that where the want of jurisdiction appears on the face of the proceedings. it cannot be waived. In Seth Badri Prasad & Ors. vs Seth Nagarmal and Ors. ( 3) this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in (1) 6 M. 1. A. 134 at 155. (2) (1901)2 K.B.833. (3) [1959] supp.(1) S.C.R. 769. 299 the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu vs Secretary of State(1). In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings. In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisi tion Officer, in that case the Collector had made a reference though in making it he had committed an error of law in that he acted upon the application of a person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the Court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer. Upon this short ground the appeal must be dismissed. We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would justify interference with the conclusions arrived by the High Court. For determining the amount of compensation seven sale deeds were filed, Exs. Al to A4, on behalf of the State and B1 to B3 on behalf of the appellants. A synopsis of the sale deeds has been made by the High Court in its judgment and we can do no better than to reproduce it: Sl. Exhi Date Extent of Amount Rate per Proximity of No. bit land acre site acquired Acs. Rs. Rs. 1. A 1 15 2 46 0 40 1/2 1,750 4,240 Opposite to thesuit land and abutting the main road. A 2 25 8 46 0 65 1/2 2,500 3,800 Some distance away from the site of the acquired land towards Eluru. A.I. R. 1939 P. C. 39; 60 M. L. J. 399. 300 3. A 3 9 10 46 1 004,5OO 4,500 Very near the acqu ired land the same vendee. 4.A 4 9 10 46 1 004,500 4,500 Partof the same site, and the vendee. B 1 14 10 46 0 707,000 10,0005 furlongs away from the suit site and nearer Bezwada. B 2 14 2 47 1 09 just over 5 furlongs away to 12,000 12,000 wards Bezwada. 7.B 3 24 1 46 0 36 1,850 5,000 Itis a part and parcel of the same land that is sought to be acqui red. Out of these sale deeds Exs. Al and A2 were rejected by the High Court, Al on the ground that it is several months earlier than the date of notification under section 4 of the Act and exhibit A2 on the ground that the land comprised in it is some distance away from the land under acquisition and is also further away from Vijayawada than this land. The High Court similarly rejected exhibit B2 2 on the ground that the transaction was entered into four months after the publi cation of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs from the land acquired. It has apparently rejected also exhibit B3, though the land sold thereunder is a part and parcel of the same land which is sought to be acquired. The ground appears to be that the land sold thereunder is only 36 cents in area. It has accepted Exs. A3 and A4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands. In so far as exhibit B1 is concerned the High Court has taken the view that though it bears the date of October 14, 1946 the cir cumstances that it was actually registered on February 13, 1947 and some of the stamp papers used were in the names of persons unconnected with the transaction shows that it has really been ante dated so as to make it appear to be earlier in point of time than the notification. In our opinion what the High Court has said about these three exhibits, B1, B2 and B3, seems to have consi 301 derable force. At any rate we do not think that there are any substantial grounds upon which we can look at these transactions in a different way. If these documents go away, as also Exs. Al and A2, we are left with only Exs. A3 and A4. Some argument was advanced before us to the effect that the lands comprised in the transactions repre sented by these documents have no direct access to the road and that, therefore, they could not have fetched a good price. Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate. As regards access, it is sufficient to say that they are parts of the same field which abut on the road, though the portions sold do not themselves abut on the road. Since the lands sold under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road. In the circumstances we hold that the appeal is without substance. Accordingly we dismiss it with costs. Appeal dismissed.

On a dispute with regard to the entitlement to the compensation awarded to the appellants in respect of certain land acquired by the State, the Land Acquisition Officer made a reference to the court for the apportionment of the compensation amount among the various claimants. Six of the appellants did not accept the award of the Land Acquisition Officer and made applications to him for referring the matter, for determination by the court. No reference was made by him in pursuance of these applications. When the matter came up before the Court it proceeded on the footing that the reference made to it was not merely limited to the apportionment of compensation but also with respect to the amount of compensation. No objection was raised by the State before the Subordinate Judge that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter. When the matter went up in appeal before the High Court, the Government Pleader raised the question that in the absence of a reference on the question of quantum of compensation, the Court had no jurisdiction to consider that matter at all. The High Court, allowed this plea to be raised before it but ultimately negatived it. and it also modified the finding of the Court as to the amount of compensation. The appellants contended before the High Court that by reason of thefailure of the State to raise the plea before the Subordinate Judge asto the absence of a reference the State must be deemed to have waivedthe point. The High Court accepted this 'argument upon the view thatthis was not a case of inherent lack of jurisdiction and that the defectin the procedure was such as could be waived. Held:(i) On consideration of the relevant provisions contained in P 18 of the land Acquisition Act, the jurisdiction of the court arises solely on the basis of a reference made to it. Wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. Therefore, it was a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the Court on the ground of an absence of 295 reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquisition. (ii)The court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer. Nusserwanjee Pestonjee and others vs Meer Mynoodeen Khan Wullud Meer Subroodeen Khan Bahadur, 6 M.L.A. 134, Alderson vs Paliser and another, and Seth Badri Prasad and others vs Seth Nagarmal and others,[1959] Supp. (1) S.C.R. 769, relied on. Venkata Krishnayya Garu vs Secretary of State, A.I.R. 1939 (P.C. distinguished.

minal Appeal No. 698/85 with 59/86. From the Judgment and Order dated 30.4.1985 of the Punjab and Haryana High Court in Crl. A. No. 345 DB of 1984. R.L. Kohli and Prem Malhotra for the Appellants in Crl. A. No. 698/85. O. P. Sharma R.C. Gunbrele, K.R. Gupta, Mrs. Nanita Sharma, Vivek Sharma and. Kamaljeet Singh for the Appellant in Crl. A. No. 59/86. K.C. Bajaj and Ms. Indu Malhotra (NP) for the Respondent. J One appeal is on behalf of Hari Singh and the other is on behalf of Satbir and Gulbir. They were put on trial along with 67 Suresh, Vijender and Virender for having committed the murder of Mange Ram on 7th October, 1982. Virender being a minor his trial was separated so that the said may be conducted by Children Court. The remaining five accused were convicted for offences under section 302 read with 149, Section 148 and Section 323 read with 149. Sentence of imprisonment for life was imposed against all the five accused persons under Section 302 read with 149. Whereas under Section 148 each one of them was sentenced to undergo rigorous imprisonment for one year, and rigorous imprisonment for three months under Section 323 read with 149. The Sentences were directed to run concurrently. The High Court dismissed their appeal. Special Leave Petition (Criminal) No.2160 of 1985 was filed on behalf of accused Hari Singh, Suresh and Vijender. On 23rd September, 1985 this Court granted special leave to appeal to appellant Hari Singh, but dismissed the said Special Leave Petition so far Suresh and Vijender were concerned. Leave was granted to appellants Satbir and Gulbir on a separate Special Leave Petition filed on their behalf. The case of the prosecution is that in the night intervening 6th and 7th October, 1982 Mange Ram (hereinafter referred to as "the deceased") and Ram Kishan PWI6, who is the first cousin of the deceased, were returning after witnessing the Ram Leela. At that very time Suresh, Satbir, Vijender, Virinder and Gulbir were also returning after the show. Near the baithak of Jit Ram, the accused persons teased some girls of the village who had also gone to see the Ram Leela. The deceased and PW 16 objected to the behaviour of the accused persons towards the girls of their own village. On this it is said that the accused persons abused them which was followed by exchange of abuses from both the sides. Budhi PW 13 intervened and pacified them, Next day at about 2.30 PM. the deceased and PW 16 went to their flour mill to bring back their bullocks and fodder cart. Suresh and Satbir with Pharsas, Hari Singh with a Ballam, Virinder, Vijender and Gulbir with sticks came there. Suresh abused the deceased and PW16 saying that they would teach them a lesson for abusing them i.e. accused persons on the previous night. Having said so accused Suresh gave a Pharsa blow from the blunt side. on the head of the deceased. Satbir also gave a Pharsa blow from the blunt side, on the head of the deceased. PW 1 6 raised an alarm Virinder, Vijender and Gulbir gave stick blows to the 68 deceased. It is further the case of the prosecution that when PW16 tried to intervene Hari, Singh gave a Ballam blow from the blunt side on his head and Vijender gave a stick blow on the left elbow of PW16. Thereafter an alarm was raised and accused persons fled away from the place of occurrence. The victim was taken to B.K. Hospital, Faridabad on a tractor. From there he was referred to A.I.I.M.S., New Delhi, by Dr. O.P. Sethi PW 1.PW 1 also sent information to the Police Post No. 5, Faridabad, at about 4.15 P.M. the victim reached the A.I.I.M.S. At about 7.25 P.M. where he was examined. Raghbir Singh, A.S.I., PWI7 who had got the information about the occurrence at the Police Station Chhainsa at 5.35 P.M. the same evening from the Police Station, New 'Township, Faridabad, went to the Institute aforesaid and recorded the statement of PWI6 at 8.30 P.M. which was forwarded to the Police Station, Chhainsa, where a case was registered at 11.30 P.M. the same night PW 1 7 took up the investigation and visited the place of occurrence and collected blood stained earth. The victim died in the Institute the next morning at 7.00 A.M. The postmortem examination was held by PW 1 5 on 8th October, 1982 at 4.30 P.M. He found three stitched wounds, one on the right varietal region, second on the middle of the scalp and the third on the left varietal region. One out of three wounds, was an operational (surgical) wound. From internal examination, fracture of right occipital bone and right frontal base was found. He also found contusions on the right thigh, left eye and left fore arm of the victim. According to the opinion of PWI 5 the injuries found on the deceased had been caused "by application of blunt force" and were sufficient in ordinary course of nature to cause death. The Pharsas from which according to the prosecution case the aforesaid injuries had been caused, were shown to PW 1 5, the doctor, and he stated as follows: "I have seen the alleged weapon of offence, Pharsa EX.P. 1 and the ante mortem injuries which are noted on the head cannot be inflicted by this weapon. On the opposite side of Pharsa, there are two projecting devices for holding the Pharsa with Bamboo, having a distance of 15 cm. from each other. Even if Pharsa EX.P. 1 is used from any of its two sides (Between iron blade and the two iron projections referred above) 69 even then head injuries mentioned above are not likely to cause. At this stage another sealed parcel containing a Pharsa EX.P.2 opened at the instance of defence counsel. It was found containing a Pharsa exhibit P.2 1 have been this Pharsa also. The distances between two projections holding iron blade with bamboos is about 11.5 cm. and as such the injuries in question could not be caused by this weapon also, either used iron blunt side or iron any of the two sides, as stated by me with reference to EX. P. 1 It is correct that the injury No. 2. is a operational (Surgical) wound which correspond with internal examination of head and corresponding piece of bone was absent having a size of 12 cm. X 10 cm. " On the person of PWI6 only few superficial injuries were found. On 12th October, 1982 the aforesaid Dr. O.P. Sethi PWI of B.K. Hospital, Faridabad, examined accused Suresh under the orders of Shri Raj Kumar, HCS, Judicial Magistrate, Faridabad, and found the following injuries on the persons of Suresh: "1. A diffused and tender swelling over back of left hand all over the wrist joint and lower half of left fore arm. There were bluish mark of two bruises (abraised, each 1/2" x 1/2" over back fore arm). Xray were advised for left wrist joint including lower half of the fore arm and the hands. It was advised for posterior, interior and lateral views. A partially healed injury 1 " x 1/8" placed at the top of head 5" above the pinna of right ear. X ray advised for skull in superior view. A partially healed injury 3/4" x 1/8" at the left half of head 2" behind the interior hair line. X ray was also advised. A liniar injury having 3/4" x 1/8" at right half of head, 1 1/2" behind interior hair line. X ray skull was advised. A vertical injury mark 2" x 1/2 at the left shin 5" 1/2 above left ankle joint. " The duration of the time in respect of the injuries aforesaid was three to six days. PWI stated in the Court that accused Suresh had been medically examined at the request of the Police and a copy of the medical report was also handed over to the Police. It was urged on behalf of the appellants that on the materials on record the Courts below should have come to the conclusion that prosecution has suppressed the real manner, of occurrence and has disclosed a version of the occurrence which cannot be accepted. It was pointed out that accused Suresh, Vijender and Virinder are the sons of accused Hari Singh who was aged about 60 years, as such, it was highly improbable on the part of Hari Singh to join his sons for commiting the murder of Mange Ram who had protested the behaviour of the sons of Hari Singh, the previous night with the girls of the village. From the evidence of Rang Lal PW7 it appears that the flour mill of the deceased and the fields of the accused persons are across the same road. The tube well of accused Hari Singh is situated adjoining the mill where Hari Singh has also got tile residential unit. It was urged that in view of the admitted position that the residential unit, tube well are by the side of the flour mill of the deceased there was no question of the accused persons going to the flour mill of the deceased to assault the deceased and PWI6. The accused persons and the deceased both having their flour mill and residential unit side by side, most probably clashed as a result of a sudden fight in which injuries were caused to the victim as well as to PW16 on the side of the prosecution and on Suresh on the accused side. It may be mentioned that in the First Information Report, only the name of Suresh, one of the six accused was mentioned in connection with the previous night 's incident saying that he along with four or five boys were coming after seeing the Ram Leela and then they started teasing the girls and thereafter an exchange of abuses took place. In the First Information Report it was also stated by PWI6 that accused Suresh and Satbir gave Pharsa blows on the 71 head of the deceased. In the First Information Report PWI6, the informant, did not state that the injuries on the head on the head of the victim were caused by the back side of the Pharsa. On behalf of the appellants, it was pointed out that this change was introduced after it was found during the postmortem examination that injuries had been caused by application of blunt force ' which was inconsistent with the case of assault on the head of the deceased by Pharsa. But merely on the ground that PWI6, the informant. did not mention the name of any other accused in connection with the previous _night incident except Suresh or in the First Information Report having said that Suresh and Satbir gave Pharsas blows on the head of the deceased. Modified the same in court by saying that they gave one Pharsa blow each by the back side of the Pharsa, his evidence cannot be rejected outright. But at the same time the case of the prosecution that Hari Singh along with Five accused including a child. went to the flour mill of the deceased, with an intention to cause the death of the victim, because of the previous night abuses and altercations, also does not appear to be the real version of the occurrence. If the intention of the accused persons was to commit the murder, then they would not have given blows by the back side of the Pharsa on the head of the deceased. In all probabilities because of the previous night 's incident, at about 2.30 P.M. a sudden fight took place, in which accused Suresh and Satbir are alleged to have given blows from the back side of the Pharsa on the head of the deceased. PW 15, the doctor, who held the postmortem examination, has stated that those injuries had been caused "by application of blunt force" and has emphatically repudiated that injuries on the head of the deceased could have been caused by two Pharsas Ex, P. 1 and P2 which had been seized and shown to him during the course of his examination. The injuries from the back side of the Pharsa can be said to have been caused by "blunt force". It has been rightly submitted that on basis of the evidence adduced including the evidence of PW 16, the informant, it cannot be said be said that accused persons had an intention to cause such injuries on the victim which may result in his death. When they caused those injuries by the blunt side of the Pharsa it will be presumed that they had knowledge that those injuries can cause the death, but there was no intention on their part to cause death. As such the Trial Court and the 72 High Court should not have convicted the appellants under Section 302 read with Section 149. On behalf of the State an objection was taken that in view of the dismissal of the Special Leave Petition filed on behalf of two accused Suresh and vijender against whom similar allegations had been made, it is not open to this Court now to entertain any plea on behalf of the three appellants because it will be deemed that while dismissing the Special Leave Petition filed on behalf of Suresh and Vijender this Court has affirmed the findings recorded by the Trial court and the High Court in respect of manner of occurrence and participation of the accused persons including the three appellants. It was also pointed out that if any of the appellant is acquitted or the convictions and sentences imposed against them are altered in any manner it will lead to inconsistency in the different orders passed by this Court. It is true that system of the justice which is being administered by the Courts, one of the basic principles which has to be kept in view, is that Courts of co ordinate jurisdiction, should have consistent opinions in respect of an identical set of facts or on question of law. If Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy. But before any such principle is appliedit must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the coaccused amounts to a judgment or an affirmness of the findings of the High court, about the manner of the occurrence, participation of the different accused persons and the nature of offence committed by them. Article 136 (1) of the Constitution confers overriding and extensive powers of granting special leave to appeal or rejection thereof in the discretion of this Court. Article 136 does not confer a right to appeal, it confers only a right to apply for special leave toappeal, which taking all facts and circumstances into consideration may be granted or rejected. Even in a case where special leave application is rejected, the Order of the High Court does not merge in the Order of this Court, as is the case while exercising the appellate power. Similarly when Special Leave Petition is entertained against any final or interlocutory 73 order this court does not convert itself in a court of appeals. It was said in the case of Gain chand V. Kunjbeharilal; , Chandrachud, J (as he was then): "With regard to the first submission it may he pointed out that an application for special leave under Article 136 of the Constitution against a judgement or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law. It is an extraordinary right conferred under the constitution, within the discretion of this Court, and such an application for special heave does not come within the contemplation of appeal pending before the Court under Section 13 A (a). " It is a basic principle of the administration of justice that like cases should be decided alike. It is a very sound rule and practice otherwise on same question of law or same set of facts different persons approaching a Court can get different orders. But can the appeal of an accused. who has been granted special leave to appeal, be dismissed on the ground that the Special Leave Petition filed on behalf of a coaccused with more or less similar charges has already been rejected by this court. althouhgh this Court is satisfied that either such accused whose appeal is being heard is entitled to acquittal or ought to have been convicted for a different offence with a different sentence. The doctrine of precedent is not applicable to an order passed by this Court rejecting a Special Leave Petition. Any such order cannot be held to be stare decisis so that it is a binding on us. If it is held that as the Special Leave Petition filed on behalf of Suresh and Vijender having been rejected, this Court cannot alter the conviction or sentence passed against the three appellants. including the acquittal of any one of them. althogh the Court is satisfied on the materials on record, then what was the purpose, while rejecting the Special Leave Petition of the co accused Suresh and Vijender, to grant leave to appeal so far the present three appellants are concerned? At the same time it need not be impressed that rejection of the Special Leave Petition gives a finality to an order of the High Court, inasmuch as the same accused cannot file more then one Special Leave Petition. 74 But in rare and exceptional cases this Court has exercised power under Article 32 of the Constitution so that there should not he miscarriage of justice and to avoid a direct conflict and confrontation between two orders of this Court. In the case of Harbans Singh vs State of U. P., ; , two accused persons had been sentenced to death by a common judgment. Special Leave Petition filed on behalf of one of the accused persons was dismissed. So far the other accused, who had also been sentenced to death. is concerned his Special Leave Petition was entertained on question of sentence. Ultimately his death sentence was commuted to imprisonment for life. The other accused person whose Special Leave petition had been dismissed filed it petition under Article 32. His death sentence was also commuted by the Supreme Court. In that connection it was said: "Since Kashmira Singh 's death sentence was commuted by this Court. it would be unjust to confirm the death sentence imposed upon the petitioner. That will involve the Court as well as the authorities concerned in the violation of rudimentary norms governing the administration of justice. " In the well known case of A.R. Antulay vs R.S. Nayak. AIR 1988 SC 153 1. it was pointed Out that the Supreme Court is not Powerless to correct its error affairs Court is satisfied that if such power is not exercised it will lead to manifest injustice because no man can suffer for the mistake of the Court. Again in the case of Pyare Singh vs State of Madhya Pradesh [1992] Supp. 3 SCC 45, this Court in exercise of power under Article 136 of the constitution while altering the convictions and reducing the sentences of the four out of six accused persons who had filed Special leave petitions before this Court. extended the same benefit and relief to other two accused persons who had not even filed any Special Leave petition against their convictions and sentences because this court felt that if the same benefit of alteration of conviction and modification in sentence is not given to other two convicted accused persons. it will lead to gross injustice. 75 The mere rejection of the Special Leave Petition of co accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court. The appellants to whom leave has been granted can urge all questions within the frame work of Article 136 of the Constitution for consideration by this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that Special Leave Petition in respect of co accused persons with more or less similar charges, evidence and convictions has already been rejected. On materials on record, the prosecution has not been able to prove and establish (hit appellants had the common object or shared the common intention to cause the murder of the victim. From the evidence of the prosecution itself it appears that the flour mill of the deceased and the residential unit of the accused persons being adjacent to each other, suddenly a fight took place in which the appellant Satbir gave a blow by the back side (wooden part) of the Pharsa, which caused one of the two injuries on the head of the deceased. It cannot be held that appellant Satbir had an intention to cause the death of the victim. In the circumstances of 'the case. It can he said that he had only knowledge that such blow may cause an injury resulting in the death of the victim. Accordingly he should have been convicted under Section 304, Part 11, of the Penal Code. So far appellant Gulbir is concerned, according to the prosecution case, he was carrying a stick and he is alleged to have given a stick blow to the deceased on a non vital part of ' the body. In this background, according, to us, he can he held to have committed the offence on under Section 325 of the Penal code. As already pointed out according to the prosecution case itself, the appellant Hari Singh, who was aged about 60 years at the time of the occurrence is said to have given a stick (lathi) blow to the informant PW 16. tie is not alleged to have given any blow to the deceased. Once it is held that different accused persons neither had any common object nor any common intention which they shared together to commit an offence under Section 302 or alike, the appellant Hari Singh has to he held guilty for an offence only under Section 323 of the Penal Code. In the result the conviction of the appellants under Section 302 read with Section 149 of the Penal Code is set aside. The conviction under Sections 148 and 323 read with 149 is also set aside. The appellant Satbir is convicted for an offence under 76 Section 304 Part 11 and is sentenced to undergo rigorous imprisonment for seven years. The appellant Gulbir is convicted for an offence under Section 325 of the Penal Code and is sentenced to undergo rigorous imprisonment for three years. So far the appellant Hari Singh is Concerned, he is convicted for an offence under Section 323 of the Penal Code and is sentence to the period of imprisonment already under gone. Accordingly the appeals are allowed in part to the extent indicated above. N. V. K. Appeal allowed.

The name of the respondent auction purchaser was entered as raiyat in respect of certain lands on the basis of auction sales dated 6.11.1954 and 3 12 1954 in execution of the decree for arrears of rent in respect thereof. In 1970 the Assistant Settlement Officer initiated proceedings under section 44(2a) of the West Bengal Estate Acquisition Act, 1953 for revision of the record of rights in respect of the lands, taking the view that the rent execution sales being effected after 1.6.1954 were invalid under section 5B of the Act. Accordingly, he ordered correction of the record of rights by substituting the names of the original raiyats for the auction purchaser. The respondent filed appeals which were allowed by the appellate authority holding that section 5B of the Act had no application to raiyati interests. The State filed writ petition under Article 227 of the Constitution before the 344 High Court. The Special Bench of the High Court, confirming the decision of the appellate authority, held that the effective date in section 5B of the Act in respect of sale of raiyati and under raiyati holdings under the relevant statutes mentioned therein was 1.6.1954; that section 5B did not operate as a bar to execution of decree for arrears of rent as a money decree against raiyati or under raiyati interests, and section 168A (1) of the Bengal Tenancy Act, 1885 was impliedly repealed by the vesting of the interests of the intermediary including raiyats and under raiyats in the State; and that the initiation of the proceedings unders. 44(2a)of the Act was without jurisdiction. The State filled the appeals by special leave. The State challenged the judgment of the High Court on the ground that the High Court was not right in holding thats. 5B of the Act would not operate as a bar against the sale of raiyati or under raiyati interests if the execution of the rent decree is treated as an execution of money decree under the Code of Civil Procedure; and that the sale made pursuant to the execution of the money decree under the Code even though for rent, and of the raiyati or under raiyati interest holder, would not he a sale under the statutes men tioned in section 5B including the Tenancy Act. Allowing the appeals, this Court, HELD:1.1 The proceedings initiated by the Assistant Settlement Officer to revise the entries in the record of rights made in favour of the respondent auction purchaser and the orders passed by him recording the names of the former raiyats as raiyats with possession of the lands and deleting the name of the auction purchaser, were valid as the raiyati interests were sold after 1.6. 1954 in execution of the decree for arrears of rent in respect of the lands in question. (360 C E) 1.2By virtue of the notification issued under section 49, section 52 makes the provisions of sections 4, 5, 5A and 5B, among others, of Chapter 11 of the Act applicable to the raiyati and the under raiyati interests on the issuance of such notification. (351 H) 1.3In the instant case the Notification No. 680 dated 9.4.1956 issued under section 49 was brought into force with effect from 10.4.1956. It was not given retrospective effect from 15.4.1955. The effect of this notification was that by 345 virtue of section 4 the intermediary interests stood vested in the State at the latest from 15.4.1955 while the raiyati and under raiyati interests stood vested in the State with effect from 10.4.1956. The restriction on transfer of the said interests, however, came into effect retrospectively on or from 1.6.1954 by virtue of section 5B, since that date is mentioned in the section itself. (352 AB) 1.4. In view of section 5B of the Act, no estate, tenure or under tenure including raiyati and under raiyati interests could be sold under the statutes mentioned in s 5B including the Tenancy Act on and after 1.6.1954 and a sale after that date under any of those statutes would he void and have no effect under that section. (352 C) 1.5 The present auction sales being of raiyati interests and effected on 6.11.1954and 3.12.1954 in execution of the decrees for the arrears of rent under the Tenancy Act were obviously invalid. (352 D) 2.1 The decree pursuant to the suit under the Tenancy Act cannot he executed except under the provisions of that Act. There cannot, therefore, be sale of the property in question pursuant to such decree under the provisions of the Code of Civil Procedure. (358 B) 2.2 The intention of the legislature in enacting section 5B was to prevent sales of the intermediary interests after 1.6.1954. In view of the provisions of the Tenancy Act, the said interests could be sold only under and in accordance with the provisions of that Act. The sale of such interests in the land pursuant to a decree for arrears of rent in respect of that land could not therefore, he made under the Code of Civil Procedure. (360 D) 2.3 The Bengal Tenancy Act, 1885 is a self contained code governing the relations between the landlord and the tenant and for resolution of their disputes. The Act incorporates certain provisions of the Code of Civil Procedure in toto while others with modification. The Tenancy Act by implication prevents any suit between landlord and tenant to be filed otherwise than under its provisions. All proceedings in the suit filed under the Bengal Tenancy Act from its inception to the satisfaction of the decree are to be governed by its provisions and the provisions of the Code are applicable to such proceedings only to the extent and subject to the conditions stated therein. The Code as such is not applicable to the proceedings or to any part of it and hence no part of the proceedings can be prosecuted under the Code. Even if simple money decree is obtained for the arrears of rent, no interest of 346 the tenant can he brought to sale in execution of such decree except under Abe provisions of the Tenancy Act. In other words, no such interest can be sold under the Code and independently of the Tenancy Act. (357 H, 358 A C) 2.4 Besides, Section 168A of the Tenancy Act removes the doubt, if any, and provides the procedure for attachment and sale of tenure or holding for arrears of rent due thereon, and liability of purchasers thereof. The nonobstante clause of the Section excludes all other provisions of the Tenancy Act itself as well as of any other law and the provisions of any contract as well. Clause (a) of the Section states that a decree for arrears of rent whether having the effect of a rent decree or a money decree or even a certificate for such arrears under the Bengal public Demands Recovery Act, 1930 shall not be executed by the attachment and sale of any movable or immovable property other than the entire tenure or holding to which the decree or certificate relates. That provision will not apply only if the term of the tenure has expired before an application is made for the execution of such decree or certificate. When the entire tenure or holding is purchased in execution of a decree for arrears of rent in respect thereof, clause (b) of section 168A (1) provides that the purchaser shall pay to the decree holder the deficiency, if any, between the purchase price and the amount due under the decree together with the cost incurred for the auction sale and also the rent which may have become due between the date of the institution of the suit and the date of confirmation of the sale. This provision in inconsistent with the provisions of the Code. (358 C F) 2.5 The High Court was not right in holding that the sales can be treated as being pursuant to a money decree and, therefore, under the Code and independently of the Tenancy Act. The High Court unfortunately missed the vital fact that whether it is a money decree or rent decree, the entire raiyati interests of the judgement debtor in the land in question had to be sold under Section 168A of the Tenant Act but could not be sold in view of the bar imposed by Section 5B of the Act. The bar cannot be over come by treating the sale under the Code to circumvent the provisions of the Tenancy Act and in particular of Section 168A of that Act. (359 H, 360 A B) 2.6 After the intermediary interests vest in the State, they cannot be brought to sale and the remedy of the decree holder is to proceed against other property of the judgment debtor if any. In that event, Section 168A would not come in the picture. (358 G H)

ppeal No. 23 of 1954. Appeal under article 133(1) of the Constitution of India from the Judgment and Decree dated the 28th February, 1952, of the High Court of Judicature at Allahabad in Writ Application No. 7297 of 1951. C. P. Lal for the appellant. N. C. Chatterjee (Radhey Lal Aggarwal, with him) for the respondent. May 3. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This is an appeal by the Sales Tax Officer, Pilibhit, against the judgment of the High Court of Allahabad granting firstly, a writ of certiorari quashing certain assessment orders made against the respondent, and secondly, a writ of prohibition in respect of certain other proceedings for 244 assessment of tax under the provisions of the Uttar Pradesh Sales Tax Act (Act XV of 1948). The respondent is a firm doing business in forward contracts, and was assessed in respect of such contracts to a tax of Rs. 1,082 8 0 for the year 1948 1949 by an order dated 27th February, 1950, Exhibit A, and to a tax of Rs. 7,369 for the year 1949 1950 by an order dated 23rd May, 1950, Exhibit B. For the period, 1st April, 1950, to 31st January, 1951, the respondent paid a sum of Rs. 845 4 0 as tax. Assessment proceedings were also started by the appellant in respect of certain forward contracts relating to gur and peas. The respondent challenged the legality of these proceedings and of the assessment orders on the ground that the Act in so far as it imposed a tax on forward contracts was ultra vires the powers of the Provincial Legislature. The learned Judges agreed with this contention, and issued a writ of certiorari quashing the orders of assessment, Exhibits A and B, and a writ of prohibition in respect of the proceedings for assessment of tax on forward contracts in gur and peas. The matter now comes before us in appeal under a certificate of the ' High Court under article 133(1) of the Constitution. Under the Government of India Act, 1935, the Pro vincial Legislature derived its power to impose a tax on the sale of goods under entry 48 in List 11 of the Seventh Schedule, and the Uttar Pradesh Sales Tax Act, XV of 1948, was enacted in exercise of this power. Section 2(h) of the Act defines "sale" as follows : "Sale" means within its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration and includes forward contracts but does not include a mortgage, hypothecation, charge or pledge. " It is the extended definition of sale as including forward contracts in this section that is relied on as conferring authority on the appellant to make the orders in Exhibits A and B. The point for decision in this appeal is whether the power to impose a tax on the sale of goods under entry 48 includes a power to impose a tax on forward contracts. 245 Under the statute law of India which is based on English law on the subject, a sale of goods and an agreement for the sale of goods are treated as two distinct and separate matters. Section 4 of the Indian Sale of Goods Act (Act III of 1930), runs as follows: (1) "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part owner and another. (2) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. " It will be noticed that though the section groups both sales and agreements to sell under the single generic name of "contracts of sale" following in this respect the scheme of the English Sale of Goods Act, 1893, it treats them as separate categories, the vital point of distinction between them being that whereas in a sale there is a transfer of property in the goods from the seller to the buyer, there is none in an agreement to sell. When the contract is to sell future goods, and under section 6(3)of the Sale of Goods Act even if "the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods", there can be no transfer 'of title to the goods until they actually ' come into existence ; and even then, the conditions laid down in section 23 of the Act should be satisfied before the property in the goods can pass. That was also the law under the repealed provisions in Chapter VII of the Indian Contract. Act, 1872. Section 77 of the Contract Act defined "sale" as follows: "Sale" is the exchange of property for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer. " 246 Section 79 enacted that, "Where there is a contract for the sale of a thing which has yet to be ascertained, made or finished, the ownership of the thing is not transferred to the buyer, until it is ascertained, made or finished. " The corresponding provisions of the English Act are sections 1, 16 and rule 5 of section 18. Section I is as follows: (1)"A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another. (2)A contract of sale may be absolute or conditional. (3)Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4)An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. " Section 16 enacts that, "Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. " Section 18, rule 5, provides for the passing of property is future goods after they are ascertained. The distinction between a sale and an agreement to sell under section 1 of the English Act is thus stated by Benjamin on Sale, Eighth Edition, 1950: "In order to constitute a sale there must be (1)An agreement to sell, by which alone the property does not pass; and (2) an actual sale, by which the property passes. It will be observed that the definition of a contract of sale, above cited includes a mere agreement to sell as well as an actual sale. " 247 This distinction between sales and agreements to sell based upon the passing of the property in the goods is of great importance in determining the rights of parties under a contract. The position is thus stated in Halsbury 's Laws of England, Volume 29, page 15, paragraph 13: "An agreement to sell, or, as it is often stated, an executory contract of sale, is a contract pure and simple, whereas a sale, or, as it is called for distinction, an executed contract of sale, is a contract plus a conveyance. Thus, by an agreement to sell a mere jus in personam is created, by a sale a jus in rem is transferred. Where goods have been sold, and the buyer makes default in payment, the seller may sue for the contract price, but where an agreement to buy is broken, usually the seller 's only remedy is an action for unliquidated damages. Similarly, if an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are the property of the seller and he can dispose of them. They may be taken in execution for his debts, and if he becomes bankrupt they pass to his trustee in bankruptcy. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller, but also the usual proprietary remedies in respect of the goods them selves, such as the actions for conversion and detinue. Again, if there be an agreement for sale and the goods perish, the loss as a rule falls on the seller, while if there has been a sale the loss as a rule falls upon the buyer. " Thus, there having existed at the time of the enactment of the Government of India Act, 1935, a welldefined and well established distinction between a sale and an agreement to sell it would be proper to interpret the expression sale of goods" in entry 48 in the sense in which it was used in legislation both in England and India and to hold that it authorises the imposition of a tax only when there is a completed sale involving transfer of title. This conclusion is further strengthened, when regard is hood to the nature of the levy, Section 3 of the, Act 248 provides for a tax being imposed at three pies in the rupee on the turnover of the assessee, and "turnover" is defined in section 2 (i) as "the aggregate of the proceeds of sale by a dealer", and that would consist of the price and any charges paid at the time of the delivery of the goods, as provided in Explanation I. The substance of the matter is that the sales tax is a levy on the price of the goods, and the reason of the thing requires that such a levy should not be made, unless the stage has been reached when the seller can recover the price under the contract. It is well settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell, then the remedy of the seller is to sue for damages for breach of contract and not for the price of the goods. The law was thus stated in Colley vs Overseas Exporters(1): In former days an action for the price of goods would only lie upon one or other of two counts. First, upon the indebitatus count for goods sold and delivered, which was pleaded as follows: 'Money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendants ': Bullen and Leake, Precedents of Pleading, 3rd ed., p. 38. This count would not lie before delivery: Boulter vs Arnott(2). The count was applicable when upon a sale of goods the property has passed and the goods had been delivered to the purchaser and the price was payable at the time of the action brought. Secondly, upon the indebitatus count for goods bargained and sold, which was pleaded as follows: Money payable by the defendant to the plaintiff for goods bargained and sold by the plaintiff to the defendant ': Bullen and Leake, p. 39. This count was applicable where upon a sale of 'goods the property had passed to the purchaser and the contract had been completed in all respects except delivery, and the delivery was not a part of the consideration for the price or a condition precedent to its payment. If the property had not passed the count would not lie: Atkinson vs Bell(3). In my view the law as to the (1) at 309 310, (2) (1833) 1 Cr, & M. 333. (3) ; , 249 circumstances under which an action will lie for the price of goods has not been changed by the Sale of Goods Act, 1893. " That is also the law in this country under section 55 of the Sale of Goods Act. The only exception to this rule is when, under an agreement between the parties, the price is payable on a day certain irrespective of delivery, and that is not material for the purpose of the present discussion. The position therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell, which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as sale price. The power conferred under entry 48 to impose a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods, and not when there is a mere agreement to sell. The State Legislature cannot, by enlarging the definition of " sale " as including forward contracts, arrogate to itself a power which is not conferred upon it by the Constitution Act, and the definition of "sale" in section 2(h) of Act XV of 1948 must, to that extent, be declared ultra vires. For the same reason, Explanation III to section 2(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon for delivery", and section 3 B which enacts that, "Notwithstanding anything contained in section 3, the turnover of any dealer in respect of transactions of forward contracts, in which goods are not actually delivered, shall be taxed at a rate not exceeding rupees two per unit as may be prescribed " must also be held to be ultra vires. In the result, the decision of the High Court must be affirmed and this appeal dismissed with costs.

Held, that there is a well defined and well established distinction between a sale and an agreement to sell. The words "Taxes on the sale of goods" in entry No. 48, List II, Schedule VII of the Government of India Act, 1935, confer power on the Provincial Legislature to impose a tax only when there has been a completed sale and not when there is only an agreement to sell. Accordingly section 2(b) of the Uttar Pradesh Sales Tax Act, XV of 1948, enlarging the definition of "sale" so as to include forward contracts must, to that extent, be declared ultra vires. For the same reason Explanation III to section 2(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon for delivery" and section 3B of the Act must also be held to be ultra vires. Colley vs Overseas Exporters ([1921] 3 K. B. 302 at 309, 310 referred to.

ivil Appeal No. 2705 of 1977. From the Judgment and Order dated 28.10.1975 of the Madras High Court in Tax Case No. 492 of 1975. AND Civil Appeal No. 512(NT) of 1989. From the Judgment and Order dated 13.2.1978 of the Madras High Court in Tax Case No. 332 of 1975. R. Mohan and R.A. Perumal for the Appellant. A.T.M. Sampath for the Respondent in C.A. No. 2705 of 1977. Mrs. Janaki Ramachandran for the Respondent in C.A. No. 5 12 (NT) of 1989. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. The question involved in these two matters is the same. So we ant leave in SLP 2440 of 1979 and proceed to dispose of both the appeals together. The respondent assessee in each of these cases acquired a reserve forest. It is common ground that the acquisition was effected with a view to raise a coffee and cardamom plantation thereon. For doing this, the assessee had to clear a portion of the forest and in the process fell the unwanted trees standing thereon as natural growth. The cut trees were sold by the assessee in the form of firewood as well as in the form of cut sizes of timber as well as sleep ers. Some of the growth was also converted into charcoal and the resultant charcoal sold. On these facts, the question arose in each of these cases whether the price 411 realised by the assessee on the sale of firewood, timber, sleepers and charcoal was assessable to sales tax. We are concerned with the assessment year 1969 70. The assessee 's turnover, in respect of these items in the case of Shanmugha Estate was Rs.3,00,396.16 which included a turnover in charcoal of Rs.86,829.24. In the case of Shakti Estate, the disclosed turnover was as follows: Firewood 1,98,687.08 Sized timber 83,490.89 Sleepers 28. 164,00 _____________ 3,10,47.97 _____________ The Deputy Commercial Tax Officer added 5% towards omissions and assessed a turnover of Rs.3,25,859.07. The further facts disclosed in the case of Shakti Estate are these. The assessee is a firm of 10 individuals. It had not purchased the forest but had got a lease which entitled them to enjoy the usufruct of the forest by its exploita tion. Clause (4) of the partnership deed recites that "the firm will carry on the development and exploitation of the lands". The firm had been functioning for the past 7 years and had been paying sales tax on its sales of firewood, timber and sleepers. But for the first time in assessment year 1968 69, it put forward a claim that the above turnover was not assessable in its hands. The full facts in the case of Shanmugha Estate are not on record but, except for the fact that this was a case of a purchase of a forest by the assessee, and that the plantation does not seem to have started yielding crops, the facts are broadly similar to those in the case of Shakti Estate. The assessing officers and the first appellate authorities held the turnover in question to be taxable. But the Tribunal reversed this and held that the turnover was not liable for assessment to sales tax. The High Court had dismissed the revision filed by the State in the case of Shakti Estate in respect of assessment year 1968 69 by a short order which read: "We are of the view that the Tribunal was right in its order. This was a case of a lease. It did not involve any sale of trees. Merely because the trees cut were sawn to sizes, that would not by itself make out a sale. " 412 In respect of assessment year 1969 70 also, the States revision was dismissed following the above order. In the case of Shanmugha Estate the department challenged the Tribunals finding only in respect of sales of sized timber. The suggestion that the sizing of trees into timber or their conversion into sleepers would make a difference was not accepted by High Court, which, following the decision of the Kerala High Court in Kuttirayin & Co. vs State, [1976] 38 STC 282, affirmed the Tribunals order by its judgment re ported in (1979) 43 STC 226. The State appeals from the judgments in both the cases. The answer to the question posed depends on the inter pretation of the expressions "dealer" and "business", as defined under the Tamil Nadu General Sales Tax Act. These definitions read thus: "Business includes: (i) any trade, or commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, com merce, manufacture, adventure or concern; and (ii) any transaction in connection with, or incidental to ancillary to such trade, com merce, manufacture, adventure Or COnCern. " "Dealer means: any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes (i) a local authority, company or Hindu undi vided family, firm or other association of persons which carries on such business; (ii) a casual trader . . " It is seen that, in the case of Shakti Estate, the planta tion has 413 started functioning and there is turnover in coffee and cardamora to the extent of Rs.58,000 while it is stated that the Shanmugha Estate has not yet started deriving income from its plantation. The principal contention of the asses sees is that they are, or may, no doubt, become, dealers in coffee or cadamore or other crops grown, or to be grown, on the estates but that they are by no means dealers in fire wood, timber, sleepers or charcoal. They say that their intention in acquiring the forest or rights therein was not to deal in the forest produce whether as firewood, timber, charcoal or otherwise but to start a plantation thereon. That business could not be started or carried on without clearing the forest trees and so the activity of clearing the jungle was one that was not only unconnected with the assessees business as such but was something the assessees were constrained to indulge in. This amounted to nothing more than a mere realisation by an owner of a part of his property to the best advantage and cannot be described as a trading activity or as partaking of the character of an adventure or concern in the nature of trade. We do not, however, think that the above contention of the assessees can be accepted. The facts show that each of the assessees has acquired a huge forest area which contains a large number of trees. When the asseessee purchased the forest or got it on lease for starting a plantation thereon, it was aware of the existence of trees (some of them quite valuable) on the land and the price paid must inevitably have included some value for these trees as well. The asses sees also knew full well that before they could start the plantation, as well as during the running of it, they would have to clear the forest in stages by cutting off the trees standing thereon and disposing of the same from time to time. Each of these assessees is a firm the purpose of which is to carry on business. It will be quite proper and natural to infer that the intention of the assessees at the time of purchase included not only an intention to grow and sell coffee and cardamom and other crops but also an intention to dispose of the trees standing on the land to the best advan tage in the circumstances. Indeed the lease deed in the case of Shakti Estate clearly talks of an intention of "develop ment and exploitation of the lands", words which cannot be merely confined to the cultivation of commercial crops thereon. In the face of such a declared purpose, it is of no relevance whether the exploitation and development was under the terms of a lease deed or a purchase deed and the dis tinction made by the High Court between the two would appear immaterial. The extent of the lands acquired or leased out is so vast that the clearance has to be done in stages and the sale of forest trees extends over several years. Indeed, it is bound to be a 414 recurring feature even after the plantation starts working as there will always be a certain number of trees retained in the plantation as shade trees and the like. The nature of the task undertaken by the assessee is really one in the nature of a venture to carry out sustained, systematic and organised activities in the nature of business. These activ ities do not merely cover the running of a plantation. They commence right from the beginning when the assessee went in for the land with a view to developing it. They fully in tended, as a first stage in the business which they intended to start, to exploit the trees standing on the land to the maximum advantage. Moreover, they did not merely sell the forest trees haphazardly. They took steps to exploit them in a commercial manner. When the trees yielded timber, the assessee not only had them sawn and cut to sizes but even converted them into sleepers and sold them. They reduced a part of the jungle growth to charcoal and sold the same. Taken all together, one is left in no doubt that when the assessees went in for a purchase or lease of the forest for starting a plantation they also knowingly let themselves in for engaging in a trade in the forest produce. The fact that the assessees are business entities, the size of the tract developed, the extent and value of the trees standing on the land, the inevitability of the jungles having to be cleared and the standing trees disposed of before commercial crops could be grown, the manner in which the forest trees were disposed of are all, we think, insignia that mark out the entire set of activities as a concern in the nature of trade. It is true that, in the area of income tax law, it has been held that no adventure in the nature of trade can be spelt out where all that a person does amounts to a mere realisation of his capital assets. It has been held thus that an owner of a huge estate who does not want to retain it any longer cannot be taxed on the surplus accruing to him on the sale of his capital assets even though he might carry out the realisation to best advantage in a commercial manner such as by forming a company, developing the lands, plotting them out, advertising them for sale, waiting for a favour able market and selling them over a period of several years. But this line of cases is of no help in the context of the facts of the present case and in the view we have taken above of the assessees transactions. Here the assessees did not merely realise the value of a capital asset belonging to them. They went in for the acquisition of an asset fully realising its potentialities for exploitation not merely as a plantation but also, incidentally, by disposing of the existing growth on the land. It seems impossible to say that they did not intend to do this also while going in for the acquisition. If one purchases an asset with a view to turn it to account in such manner, we 415 think, one is certainly carrying out an adventure in the nature of trade. Moreover, we have also to give full effect to the defi nitions in the statute we are concerned with. The definition of a "business" also includes "any transaction in connection with or incidental to or ancillary" to a trade and thus, even on the assessees own arguments, these activities were incidental and ancillary to the business which the assessee was carrying on or definitely intended to carry on. It is also immaterial, on this definition, that the assessees may not have had a "motive of making a profit or gain" on these sales though on the facts, it is clear that such motive must have existed and, in any event could not be ruled out. The reference to a "casual" dealer in the second definition also renders it immaterial that the assessees may not have in tended to be regular dealers in sleepers, timber, firewood or charcoal but that this was something casual or incidental to the acquisition and exploitation of a forest for running a plantation. Before concluding, we may refer to the decisions cited before us. The decisions of the High Court in the present cases and in Kuttirayin 's case (supra) support the assesses contention but, for reasons given above, we are unable to accept them as correct. The decision of the Madras High Court in L.N. Plantation Co. vs State, [1981] 47 STC 210 supports the department 's contention and we approve of the same. In Tamil Nadu Trading Co. vs State, [1981] 52 STC 7 the Madras High Court was dealing with a case where the assessee was found to be a dealer in timber. But, in the course of their judgment, the Court made the following observations which support the case of the department: "Even if it were to be assumed, without ac cepting, for the sake of argument, that the assessee purchased the land for the purpose of coffee plantation, the sale of timber and firewood fall under "any transaction" in connection with or incidental or ancillary to the business of coffee plantation and would therefore, fail within the definition of "business" under section 2(d) of the Act. " We agree. There decisions of this Court were also referred to by counsel. State vs Burmah Shell, [1973] 31 STC 426 and Dis trict Controller of Stores vs Assistant Commercial Tax Officer, [1976] 37 STC 423 were cases where an assessee, carrying on a business, had to dispose of unserviceable or useless material and such disposals were held taxable 416 as "business" sales, the transactions being incidental or ancillary to the principal business carried on by the asses see. The disposals effected by the Shakti Estate whose plantation business had started in full swing will certainly fall squarely within the principle of these decisions. But, as we have discussed above, in our view, even the sales effected before the plantation started yielding results would be covered by the definitions as the venture undertak en by the assessee has to be considered as an integral whole and there can be no doubt that the sale of the forest pro duce was part of the activities in the contemplation of the assessees right from the beginning. As against the above decisions, reliance was placed, on behalf of the assessees, on Deputy Commissioner vs Palampa dam Plantation, [1969] 24 STC 231 where, it is said, it was held that an assessee could not be held taxable as a dealer on the sale of trees of spontaneous growth in a plantation. But that decision clearly turned on the specific language of the definition of "dealer" contained in section 2(viii)(e) of the Kerala General Sales Tax Act, 1963, and does not lay down any general proposition as contended for on behalf of the assessees. For the reasons discussed above, we allow the appeals and set aside the order of the High Court and Tribunal in these cases. In the result, the turnovers in dispute in the two cases before the High Court will stand included in the assessees turnover and the assessments modified accordingly. We, however, make no order regarding costs. N.V.K. Appeals allowed.

The respondent had entered into contracts with Universi ties and other educational institutions for printing of question papers for them. In the demand notes prepared the respondent gave the charges for printing, blocks, packing handling, delivery, postal and also value of paper and value of packing materials separately in the relevant assessment years. On re examination the Assessing Officer noticed that printing charges and block making charges escaped assessment and brought them to tax. In respect of subsequent assessment also claims for exemption towards printing charges and block making charges were disallowed. The appeals preferred by the Respondents were dismissed by the Appellate Assistant Commissioner, who reached a finding that the contracts were only for supply of printed question paper as a finished product and that there was no scope to disintegrate cost of paper with separate charges for printing and block making though the bills were made out in a different way. The respondent preferred appeals to Sales Tax Appellate Tribunal. The Tribunal held that the respondent was assessa ble only on the sale value of paper and that printing and block making charges were not to be included in the assess ment. Against the Tribunal 's Orders, the appellant preferred tax cases before the High Court. The High Court dismissed the cases and held that the contract between the assessee and the Universities is of highly confidential nature and that the printing of question papers could be entrusted only to those in whom the institutions got the highest confi dence, and that the price paid for such confidentiality and trust is not 302 the price for the sale of goods. The present appeals by Special Leave are against the High Court 's Orders. In this appeal, it was argued on behalf of the appellant that printing charges and block making charges are includi ble in the assessable turnover of the Respondent. On behalf of the Respondent it was argued that the contract entered into between her and the educational institutions was a contract of work and labour and in the performance of the contract, indicentally she had to sell paper to them and hence except to the extent of the cost of paper she was not liable to pay sales tax in respect of the other amounts receive by her. Dismissing the appeals, HELD: 1.1 Contract for work in the execution of which goods are used may take one of three forms. The contract may be for work to be done for remuneration and for supply of material used in the execution of works in which the use of materials is accessory or incidental to the execution of the work; or it may be a contract for work and use or supply of materials, though not accessory to the execution of the contract, is voluntary or gratuitous. In the last class there is no sale because though property passed it did not pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances; if it is of the first, it is a composite contract for work and sale of goods; where it is of the second category, it is a contract for execution of work not involving sale of goods. [307H; 308A B] 1.2 In each case the nature of the contract and the transaction must be found out. And this is possible only when the intention of the parties is found out. The fact that in the execution of a contract for work some materials are used and the property/goods so used, passes to the other party, the contractor undertaking to do the work will not necessarily be deemed, on that account, to sell the materi als. Whether or not and which part of the job work relates to that depends on the nature of the transaction. [316G H] 1.3 Normally, it may be that the goods prepared by the assessee which could not be exhibited for sale, would not be decisive of the matter and could in certain circumstances be sales liable to sales tax, but in all circumstances it depends upon the nature of the sale and the nature of the transaction involved. Printing of question papers at the 303 behest of University or educational institutions is rather a delicate and confidential type of work and the price paid for supplying such printed question papers or printed mat ters entails primarily the confidence, and secondly the skill and to a very small measure the material. If that is the position, it cannot be categorised as entailing sale of goods but it is rather a contract for works done. [309G H; 310A] Government of A.P. vs Guntur Tobaccos Ltd., XVISTC 240 relied on. Hindustan Aeronautics Ltd. vs State of Kerala, [1984] ISCC 706 and P.T. Varghese vs State of Kerala, 37 STC 1171 approved. Saraswati Printing Press vs CST, Eastern Division Nag put, X STC 286 and State of A.P. vs Sri Krishna Power Press, Vizianagaram, XI STC 498. P.M. Venkatachalam Pillai vs State of Madras, XXIII STC 72; State of Orissa vs Ramnath Panda, XXVII STC 98; S.R.P. Works and Ruby Press vs State of A.P., XXX STC 195 and STO, Special Circle 11, Palghat vs I. V. Somasundaram, 33 STC 68. A.S. Hameed Bharath Press vs State of Tamil Nadu, 54 STC 379; CST vs Uma Art Press, 56 STC 300; Chandra Bhan Gosain vs State of Orissa, XIV STC 766; CST vs M/s Sabarmati Reti Udvog Sanakari Mandali Ltd., 38 STC 203 and Marcel (Furri ers) Ltd. vs Tapper, referred to. 2.1 The primary difference between a contract for work or service and a contract for sale is that in the former there is in the person performing or rendering service no property in the thing produced as a whole, notwithstanding that a part or even the whole of the material used by him may have been his property. Where the finished product supplied to a particular customer is not a commercial com modity in the sense that it cannot be sold in the market to any other person, the transaction is only a works contract. [316E] 2.2 When the questions are set on a piece of paper and sent for printing, the University remains the owner until it divulges these to the intending candidates or the students. But that is a matter which is relevant in the method of communication of the question to the candidates appearing in the examination. The means employees for such communication entail use of mind, confidence, trust for the material, 304 paper and the technical skill of printing. It is a combina tion of these various factors that results in printing the question papers and the payment made in the process entails a composite payment for all these. Question papers as such, after being printed are neither available commercially nor available to any community commercial or otherwise save under specific circumstances for the candidates appearing at a particular time in an examination. [308D E; 309C] Court Press Job Branch, Salem vs State of Tamil Nadu, 54 STC 382 and CST vs M.P.V. Ratna Fine Arts Printing Press, 56 STC 77 approved. State of Madras vs Gannan Dunkerlay & Co. (Madras) Ltd., IX STC 353; Patnaik & Co. vs State of Orissa, XVI STC 364 and T.V. Sundaram lyengar & Sons vs State of Madras, 35 STC 24 referred to. The contract in the present case is one, having regard to the nature of the job to be done and the confi dence reposed, for work to be done for remuneration and supply for paper was just incidental. Hence, the entire price for the printed question papers would have been enti tled to be excluded from the taxable turnover, but since the demand notes prepared by the assessee showed the costs of paper separately, it appears that it has treated the supply of paper separately. Except the materials supplied on the basis of such contract, the contract will continue to be a contract for work and labour and no liability to sales tax would arise in respect thereof. [317A C]

VIL Appeal No. 3717 of 1986. From the Judgment and Order dated 12.9.1986 of the Gauhati High Court in Civil Rule No. 428 of 1986. Ms. Lira Goswami and D.N. Mishra for the Appellant. Shankar Ghosh, S.K. Hom Choudhary and S.K. Nandy for the Respondent. The Judgment of the Court was delivered by PG NO 510 RAY, J. The respondent, Rev. Fr. Paul Petta was appointed as Principal of St. Anthony 's ' College by Salesian Provincial on April 16, 1982 and on the recommendation of the Governing Body of the College, the Director of Public Instruction, Meghalaya, Shillong accorded approval to his appointment with effect from 1st May, 1982. St. Anthony 's College was established by Salesian Congregation, a Catholic religious Society of imparting general education. It is a religious minority institution under Article 30 of the Constitution of India and it is receiving Government grants in aid since the scheme of deficit grant in aid colleges was intoduce by the government of Assam in 1959. After creation of Meghalaya it has been grants in aid under the same system as adopted by th Government of Meghalaya. By Memo No. EDN. 75/74/280 dated 4th November, 1976 the Government of Meghalaya, Education Department conveyed to the Director of Public Instucion, the sanction of the Government of Meghalaya to the implementation of the Instruction. scales of pay, as indicated thereunder to all the deficit college teachers including the Principals, Professors in the State with effect from 1st April, 1975. By Memo No. EDN> 75/74/51 dated December 7, 1979 the Government of Meghalaya laid down the procedure for appointment of Principals, Vice Principals and Lectuers and other staff in Religious Minority Colleges in the State with refernce to Article 30 of the Constitution. Paragraph 1 which is relevant is quoted below: "In the matter of appointment of Principals and Vice Principals in the colleges belonging to th religious minorities, the governing Body of the College concerned shall select a Principal and Vice Principal from a panel of names submitted by th sponsoring Church Organisation concerned subjects to th condition that the educational qualifications of the persons selected shall be in accordance with the conditions laid down in the Government 's letter No. EDN/75/74/280 dated 4.11.76. Other conditions in respect of age of super annuation etc. shall be as prescribed by the State Government from time to time. " The respondent after his appointment had been working as Principal of the College. While working as such, differences arose between him and the church authorities more particularly the appellant Nos. 2,3 and 4 i.e. the President and the members of the Government Body of the College regarding certain matters relating to the management of the college. PG NO 511 On December 14, 1985, Fr. John Kalapura, SDB, the Appellant No. 2, President, Governing Body of St. Anthony 's College and Salesian Provincial sent a letter to the respondent intimating him of his transfer from the power of Principal of the College. The letter states : "After due consultation with the Provincial Council I am transferring you from the post of Principal of St. Anthony 's College, Shillong and am appointing Rev. Fr. J. Kenny as Acting Principal of the same college with effect from 2 f. 12. 85. Kindly hand over the charge to Rev. Fr. J. Kenny by 21st Dec. 1985. " On receiving the said letter the respondent on that very day sent a letter to the appellant No. 2 stating that he had no authority to appoint or dismiss or transfer the Principal of the College as the Principal and Vice Principal in the College belonging to the minorities are to be selected by the Governing Body and to be approved by the Director of Public Institution in accordance with Government instructions mentioned in its letter dated December 7, 1979. The respondent sent a letter to the Director of Public Instruction (in short D.P.l.) intimating that he had been removed from the Principalship of St. Anthony 's College by the appellant No. 2, the Salesian Provincial of Cauhati Province and Rev. Fr. Kenny had been appointed as the Acting Principal and requested him to intimate if the Government has given any power to Sponsoring Authority for St. Anthony 's College in contravention of the Memo dated December 7, 1976. The D.P.I. has informed the respondent by his letter dated 23rd December, L985 that "this office is not aware of any such power given to the Church Authority concerned". The Salesian Provincial by its letter dated March 7, 1986, proposed the name of Fr. Stiphen Mavely as Principal of the said College. The Governing Body at its meeting held on 17th March, 1986 resolved that Fr. Stephen Mavely be appointed Principal cum Secretary of St. Anthony 's College with effect from March 10, 1986. The said appointment was approved by D.P.l., Meghalaya with effect from 10th March, 1986. The respondent filed a suit being T.S. No. l (T) of L986 in the Court of the Assistant District Commissioner with a prayer for temporary injunction. An interim order of maintaining status quo was obtained. But as in the meantime the office of the Principal was and taken possession of, the suit was withdrawn and a writ petition being Civil Rule No. PG NO 512 428 of 1986 was filed challenging that Salesian Provincial has no power to transfer the respondent, viz. the Principal of the College to Don Bosco Technical School, Maligaon, Gauhati. The respondent was appointed as Principal of the said College by the Governing Body of the College with the approval of D.P.I. and so the Governing Body with the approval of D.P.I. can transfer him under the statutory rules. It was also contended that the respondent acquired a satutory right to hold the post of Principal till his attaining the age of super annuation. The purported order of transfer is illegal and without jurisdiction It has also been contended that the purported order of transfer tantamounts to removal of the respondent from the post of Principal and the said order being issued without recording any reason and without giving any opportunity to show cause to him is arbitrary, illegal and mala fide. The purported order of transfer is thus violative of principles of natural justice and as such it is liable to be quashed. An affidavit in opposition was filed on behalf of appellant Nos. 2, 3 and 4 denying that the administration and management of the said college including the appointment, discipline etc. are governed by the Assam Aided College Management Rules. 1965, Assam Aided College Employees ' Rules, 1960 for appointment of Principals and Vice Principals and conditions of grants in aid aided colleges in 1956. It has been stated that St. Anthony 's College is a minority institution and the Salesians Provincial is the only Competent Authority to make any appointment to the rank of Principal in the said College and no advertisement before making any appointment is necessary. This relaxation of restriction in regard to Minority College availing of deficit grants in aid has been made by Memo dated December 7, 1979. The petitioner is a member of the Salesian of Don Bosco and his appointment to the said post of Principal could never have been permanent. As a priest he is transferable from time to time different institutions of the Society. The Constitution of the Salesians of Don Bosco provides that such transfer is binding on the petitioner as a priest and a member of the Salesian Don Bosco. The transfer of the petitioner and other priests are matters of normal routine as members of Salesian Society. It has also been stated that any money drawn by a priest has to be given to the order of Salesian of Don bosco and no priest maintains any private fund. It is the responsibility of the Salesian Society to look after the needs and requirements of any member of the community and is responsible for the upkeep of such members. The petitioner has taken a vow of obedience when he was ordained as a priest and was admitted as a member of Don bosco. The petition is liable to be dismissed as no statutory right of the petitioner has been violated. PG NO 513 After hearing the learned counsels for the parties as well as considering the facts and circumstances the High Court held that the Governing Body of the College was not a Statutory Body. The Court further held that: "To our mind there is violation of the principles of natural justice in dislodging the petitioner from his post of Principal without hearing him." The High Court further held that: "So long as the members of the Salesian Body obeyed the rules and regulation of the Body, accepted transfers in good spirit this Court would have nothing to do. But if the petitioner having been appointed as Principal feels aggrieved that his transfer is not in accordance with the rules of the body and comes to the Court, this Court has to look and listen to him. By appointing the petitioner as Principal of the College, the organisation has exposed the petitioner to the judicial gaze of the Court and if the petitioner makes grievances, it is for the Court to redress it." ". . The petitioner was appointed by the Governing Body and that was subject to the approval of the D.P.I. There is no reason as to why his removal from the post of the Principal should not have been made by the Governing Body and subject to the approval of the D.P.l. However, the College Governing Body has got no control over the School whereto the petitioner has been transferred. " The High Court therefore made the rule absolute to the extent indicated in the directions quoted below: "We accordingly keep the impugned order in abeyance forthwith and direct the Governing Body of the College to give the petitioner an opportunity to show cause as to why he should not be transferred as stated in the impugned transfer order dated 14.12. 1985 (Annexure 10) and after hearing the petitioner on the cause shown, shall decide the matter of transfer within one month from receipt of this order, and act according to the decision so taken and in PG NO 514 conformity with the Government instructions (Annexure 8). If the impugned order is revoked, the petitioner shall automatically be reinstated in his post of principal of the College, and shall be given all the emoluments and benefits thereof. The Respondent No. 11 shall correspondingly cease to be Principal of the College, but shall not be disentitled to the pay and allowances for the services already rendered by him to the College prior to this date. In case the Governing Body decides to give effect to the impugned transfer order it shall revive and the petitioner shall be free to pursue his remedies under the law. In the interest of fair hearing and reasonable opportunity, we direct the Governing Body to make available to the petitioner all the records which he may need for the purpose of his defence; the petitioner shall, not, however function as Principal during the period of one month pending decision. The decision shall be taken within a month from today. " Aggrieved by the said order made in Civil Rule No. 428 of 1986, a special leave petition has been filed by the Governing Body and some of the members of the Governing Body of the College. After hearing the learned counsel for the parties special leave was granted. The St. Anthony 's College is admittedly a minority institution within the meaning of Article 30 of the Constitution and as such the Salesian Don Bosco Society is competent to administer the said college. This College is getting deficit grants in aid from the Government of Meghalaya and the instructions contained in Memo No. EDN. 75/74/S1 issued by the Government of Meghalaya on 7th December, 1979 laying down the procedure of appointment of Principal, Vice Principal, Lecturers and other staff in religious minority colleges in the State will apply to this Institution. The respondent who was a lecturer of St. Anthony 's College was sponsored by Salesian Provincial, the appellant No. 2 for appointment of Principal of the College and the Governing Body of the College recommended the same to the Director of Public Instruction, Meghalaya for approval as required under the above instructions. The D.P.I. duly approved the appointment of the respondent, Rev. Fr. Paul Petta as Principal of the College with effect from May 1, 1982. The appellant worked as Principal of St. Anthony 's College since the date of his appointment till the impugned order of transfer made by the appellant No. 2 Rev. Fr. John Kalapura as Salesian Provincial from the post of Principal of the said College to the post of Teacher, Don Bosco Technical School, Maligaon, Gauhati on December 21, PG NO 515 1985 without asking him to show cause against the order of transfer and without giving him any opportunity of hearing. It has been urged that the respondent being ordained as a priest of the society has taken vow of servie to any post where he will be asked by the Society to work. As a priest he was sponsored by the Church Authority for appointment as Principal and the Governing Body of the College also recommended his appointment as made by Salesian Provincial for approval. The petitioner cannot have any grievance against the order of transfer as he has no statutory right to remain as Principal of the College. It has also been contended by refering to certain Articles of Constitution of the Society of St. Francis de Sales that the respondent being ordained as priest of the Society took the vow of service and the Salesian Provincial can transfer him to serve in any of institutions of the Society as his service is transferable. It has also been submitted that as a priest the respondent cannot keep any money with him and whatever salary he gets will have to be given to the Society which will look after him and meet his needs. The respondent question the order of transfer. The respondent so long as he to the order of transfer and complies with it, the court has nothing to do. But if he does not comply with it and questions it before the Court, the Court will have to consider his grievances and to decide if the impugned order of transfer is legal and valid. The respondent was appointed as Principal of St. Anthony 's College by the Governing Body of the College and the same was duly approved by the Director of Public Instruction, Meghalaya in accordance with the procedure laid down in the Government 's letter dated December 7, 1979. The impugned order of transfer purports to transfer the respondent from the post of Principal of the College to the post Teacher in the Don Bosco Technical School at Maligaon within the State of Gauhati over which the Governing Body of St. Anthony College has no control. This order of transfer has prejudicially affected the status of the respondent as Principal of St. Anthony 's College. The main question that arises for consideration in this appeal is whether the Salesian Provincial, the appellant No. 2, is competent to transfer the petitioner who has been appointed as Principal of the College by the Governing Body of the College and approved by the D.P.I. as per Government instructions applicable to minority college. There is no dispute that the respondent is a member of Salesian Don Bosco Society as a priest. It is also not in dispute that as a priest of the society h was sponsored by the Church Authorities for the post of Principal of th College and the Governing Body of the College recommended to the D.P.I. for approval of his appointment as Principal of the College. In such PG NO 516 circumstances it is required to be considered whether the Salesian Provincial has power to transfer him from the post of Principal of the College to the post of Teacher in a Technical School of the Society. It is apparent from the aforesaid Government instructions that the Principal whose appointment has been duly approved by the D.P.I. can work as Principal in the minority college till he attains the age of super annuation as determined by the Government. The impugned order of transfer in substance amounts to removal of the respondent from the post of Principal of the College. It has been held by the High Court that the respondent has been condemned unheard as he was not given any opportunity to show cause for the purported order of transfer whih seriously prejudiced him. The principles of natural justice and fair play mandate that in administrative actions the audi alterum partem rule is applicable and the person affected by the order to be given an opportunity of hearing against the purported order apart from the question whether the Assam Aided College Management Rules, l965 and Assam Aided College Employees ' Rules. 1965 are applicable to minority institutions. We do not consider it necessary for the purposes of this appeal to make any observations on the question whether the Assam Aided College Management Rules, 1965 and Assam Aided College Employees ' Rules, 1960 are applicable to minority institutions or to consider the question whether the rules concerning the terms and conditions of appointment as well as prescribing qualification for appointment the post of lecturers and principals as well as prescribing condition for service are regulatory in nature and they do not contravene the fundamental right guaranteed under Article 31 of the Constitution to the minority institutions at has been observed in the case of Frank Anthony Public School Employees Association vs Union of India & Ors., [1987] I SCR 238. It has been contended on behalf of the learned counsel for the appellants that the appellant No. 2, Salesian Provincial is the appointing authority of the respondent and as such he has the right to make the impugned order of transfer though there is nc, express provision conferring such power. The case of Kutoor Vengayil Rayarappan Nayanar vs Kutoor Vengayil Valia Madhavi Amma and Ors., AIR 1950 (Federal Court) 140 has been cited at the bar for the proposition that the power to terminate flows naturally and as a necessary sequence from the power to create. This proposition is a well established proposition but the question is whether the Salesian Provincial is the appointing authority of the respondent or the Governing 8body of the said College appointed the respondent and recommended his appointment for approval to the D.P.I. As stated earlier D.P.I. pursuant to the recommendation of the Governing Body approved the appointment of the respondent as PG NO 517 Principal of the said College. So this question has to be gone into and determined by the Governing Body as has been directed by the order of the High Court. It has been contended that the impugned order of transfer has seriously affected the status of the respondent as Principal of the College and this has been made by the appellant No. 2, Salesian Provincial without giving him any opportunity of hearing. Now in so far as the Respondent is transferred in his capacity as priest from one division of the religious order to another the matter pertains to the internal management of the religious order and it is not justiciable. However, in so far as the order of transfer has been made by the Governing Body of the St. Anthony 's College transferring the respondent from the post of Principal of the College to the post of Teacher of Don Bosco Technical School which is in another State the respondent can complain against it. Since the respondent has not been given any opportunity of hearing against the purported order of transfer outside the State which seriously affected his status, the High Court, in the facts and circumstances of the case has directed the Governing Body of the College to give the respondent an opportunity to show cause against the impugned order of transfer dated 14. 1985 and to give him a hearing and decide the transfer matter in accordance with law. The judgment and order passed by the High Court in the circumstances of the case cannot be faulted. We therefore, uphold the order passed by the High Court and the appeal is dismissed with costs quantified at Ks. 5,000. S.L. Appeal dismissed.

The respondent had been appointed Principal of St. Anthony 's College by Salesian Provincial and his appointment had been approved by the Director of Public Instruction (D.P.I.) on the recommendation of the governing body of the College. Due to differences between the Principal and the Church authorities, and particularly, the appellants Nos 2, 3 and 4, i.e. the President and the members of the governing body of the College, the appellant No. 2, the President of the governing body and the Salesian Provincial intimated to the respondent of his transfer from the post of Principal of the College. The respondent contended that the appellant No. 2 had no authority to appoint or dismiss or transfer the Principal, as the Principal of the College belonging to minorities was to be selected by the governing body and to be approved by the D.P.I. in accordance with the government instructions contained in its Memo dated December 7, 1979. But the Salesian Provincial proposed another person as Principal, to which the governing body agreed and his appointment was approved by the D.P.I. The respondent filed a writ petition in the High Court, contending that the Salesian Provincial had no power to transfer him, as he had been appointed Principal by the governing body of the College with the approval of the D.P.I., and so the Governing Body with the approval1 of the D.P.I. could transfer him under the statutory rules. and that the order of transfer, having been passed without giving him any opportunity to show cause, was arbitrary, illegal and mala fide and violative of the principle of natural justice. The High Court held that there was no reason why the respondent 's removal from the post of Principal should not PG NO 507 PG NO 508 have been by the governing Body and subject to the approval of the D.P.I., and directed inter alia that the impugned order of transfer be kept in abeyance and that the governing body would give the respondent an opportunity to show cause why he should not be transferred as stated in the impugned transfer order, and decide the matter of transfer after hearing him. Aggrieved by the order of the High Court, the governing body and others moved this Court by special leave. It was contended by the appellants inter alia that the respondent could not have any grievance against the order of transfer as he had no statutory right to remain as Principal and that he, being ordained as priest according to the Articles of the constitution of the Society of St. Francis de Sales, the Salesian Provincial could transfer him to serve in any of the institutions of the Society as his service was transferable, and he could not question the transfer. Dismissing the appeal, the Court, HElD: The St. Anthony 's College was a minority institution within the meaning of Article 30 of the Constitution, and the instructions contained in the Government Memo dated 7th December, 1979, laying down the procedure of appointment of Principal, vice Principal, etc, in religious minority Colleges in the State would apply to this Institution. [514E F] The impugned order of transfer was passed without asking the respondent to show cause against the transfer and giving him an opportunity of hearing. The impugned order purported to transfer the respondent from the post of Principal of the College to the post of Teacher in a school. This order of transfer prejudicially affected the status of the respondent. [5I5E F] The main question for consideration was whether the Salesian Provincial, appellant No. 2 was competent to transfer the respondent who had been appointed by the governing body of the college and approved by the D.P.I. as per the Government instructions applicable to a minority college. [515G] According to the Government instructions aforesaid, the Principal whose appointment had been approved by the D.P.I., could work as Principal in the minority college till the age of superannuation as determined by the Government. The impugned order of transfer amounted to removal of the respondent from the post of Principal. The principles of natural justice and fair play mandate that in administrative actions the audi alteram partem rule is applicable; the person affected by the order had to be given an opportunity PG NO 509 of hearing against the purported order apart from the question whether the Assam Aided College Management Rules and Assam Aided College Employees, Rules are applicable to minority institutions. [516B D] The appellants contended that Salesian Provincial, appellant No. 2, was the appointing authority of the respondent and as such he had the right to make the impugned order of transfer though there was no express provision conferring such a power. [5l6F] The question was whether the Salesian Provincial was the appointing authority of the respondent, or the governing body of the College appointed the respondent and recommended his appointment for approval to the D.P.I. The D.P.I. had approved the appointment of the respondent pursuant to the recommendation of the governing body. So this question had to be gone into and determined by the governing body, as had been directed by the order of the High Court. In so far as the respondent was transferred in his capacity as a priest from one division of the religious order to another, the matter pertained to the internal management of the religious order and it was not justiciable, but in so far as the order of transfer had been made, transferring the respondent from the post of Principal of the College to the post of Teacher of a school in another State, the respondent could complain against it. Since the respondent had not been given an opportunity of hearing against the purported transfer which seriously affected his status, judgment of the High Court which directed the governing body to give the respondent an opportunity to show cause against the impugned order of transfer and to give him a hearing and decide the transfer matter in accordance with law, could not be faulted. [516G H; 517A D]

ivil Appeal No. 1589 of 1988 etc. From the Order dated 6.1.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 2085 of 1985A in Order No. 5 of 1988 A. K. Parasaran, Attorney General, A.K. Ganguli, K. Swamy, P. Parmeswaran and Sushma Suri for the Appellant. R.N. Bajoria, S.K. Bagaria, Padam Khaita, Vivek Gambhir, Praveen Kumar, S.K. Bagga and R.K. Mehta for the Respond ents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals are at the in stance of the revenue under section 35 L of the Central Excises & Salt Act, 1944 (hereinafter referred as to 'the Act '). Civil Appeal No. 1589 appeal arises out of Order No. 5 of 1988 A passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal '). The. respondent used to manufacture different varieties of printing paper including wrapping paper falling under Item No. 17(1) of the erstwhile Central Excise Tariff in their factory at Bansberia, District Hubli. It is the appel lant 's case that the respondent had violated the 1020 provisions of Rule 9(1), Rule 173 F and Rule 173 G of the Central Excise Rules, 1944 inasmuch as they had removed 4,000 kgs. of wrapping paper under Gate Pass No. A 460 dated 9th February, 1984 and 485 dated 17th February, 1984 valued at Rs. 13,200 without payment of central excise duty. Show cause notice was issued to the respondent as to why appro priate duty of excise amounting to Rs.3,600 (basic), Rs. 180 (special) and Rs. 16.50 (cess) totalling Rs.3,796.50 should not be recovered from them on the said quantity at the rate of Rs.900 per M.T. and special duty at the rate of 5% of basic duty and cess 1/8% on value. Notice to show cause as to why penalty should not be imposed was also issued. Cause was shown by the respondent. It was the contention of the respondent that there was no infringement of the impugned provision and no duty was required to be paid on the excisa ble goods if it was captively consumed or utilised in the same factory as component part of the finished goods falling under the same tariff item and specified in Rule 56(a) of the Central Excise Rules, 1944. It was further stated that in the instant case, wrapped paper manufactured was captive ly consumed and utilised as component part of other varie ties of paper. Wrapping, it was contended, of finished product by wrapping paper is a process incidental and ancil lary to the completion of manufactured product under section 2(f) of the Act and wrapping is used as a component part of finished excisable goods attracting the benefit of the notification No. 18A 83 CE dated 9th July, 1983. The Super intendent (Technical) of Central Excise held otherwise. The respondent preferred an appeal before the Collector (Ap peals), Calcutta. The respondent contended before the Col lector that they were entitled to the benefit of notifica tion and it is well settled law in view of several judgments of High Court and orders of the Tribunal that wrapping of paper was a process incidental or ancillary to the comple tion of manufacture of paper, as the printing and writing paper could not be sold in the market without being packed and wrapped by wrapping paper. The Collector (Appeals), however, rejected the claim to exemption in respect of such wrapping paper in terms of the proviso to Rule 9(1). There was an appeal to the Tribunal. The Tribunal referred to its own decision in the case of Collector of Central Excise, Bhubneshwar vs Orient Paper Mills, Brajraj Nagar, 135, which is the subject matter of the other appeal involved herein, and set aside the order of Collector. Similar is the case in Civil Appeal Nos. 3760 62 of 1988. In that case, M/s. Orient Paper Mills, Brajraj Nagar, respondents, were manufacturers of various types of paper and paper board. They were also the manufacturers of wrap ping paper for packing or wrapping of 1021 other varieties of paper. Under the relevant notification, the Central Government had exempted duty in respect of goods if these were consumed or utilised in a place where such goods were produced or manufactured under relevant rule either as raw materials or component parts for the manufac ture. Therefore, in order to get the benefit of non levy of excise duty on wrapping paper, it had to be established in both these appeals that the wrapping papers were consumed or utilised by the respondent assessees as component parts or raw materials for the finished products. The Collector (Appeals) in his order observed that when wrapping paper was used for making paper reams/reals, it lost its original identity as wrapping paper and became a part and parcel of the paper ream/real and as such available for the benefit of amended Rules. Revenue disputed this finding. It was contended that the wrapping paper was not utilised or consumed in the manufacture of other paper. On behalf of the revenue, it was contended before us in these appeals that in order to be non dutiable, the wrapping paper must be either component part or raw material and must be consumed or utilised in the manufacture of the finished products. Wrapping paper cannot, it was contended, be deemed to be component part because it did not become an integral part of the packed paper. In this connection, on behalf of the revenue, learned Attorney General drew our attention to the fact that reliance had been placed on the decision of the Kerala High Court in Paul Lazar vs State of Kerala, [1977] 40 STC 437. On behalf of the respondent, however, Shri Bajoria placed reliance on section 2(f) of the Act which includes any process incidental or ancillary to the completion of a manufactured product. Therefore, it was urged that all processes leading upto the stage of goods, when the goods become completed for marketing would be within the process of marketing. In that view of the situa tion, it was urged that wrapping paper was raw material or component part of the wrapped paper. It was further urged that revenue had itself considered the stage of wrapped or packed paper as the R.G.I. stage, i.e., the stage at which goods should be entered in the statutory production regis ter. 'Manufacture ' in the sense it is used in the excise law, was not complete until and unless wrapping was done. It is law now that excise is a duty on manufacture. Manufacture is the process or activity which brings into existence new, identifiable and distinct goods. Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or marketable in the market as such. See in this connection the observations of this Court in Bhor Industries Ltd., Bombay vs Collector of Central Excise Bombay, 602; South Bihar Sugar Mills Ltd., etc. vs Union of India & Ors. , ; ; Union of India vs Delhi Cloth & General Mills Ltd., [1963] Supp. 1 SCR 586 and Union Carbide India Ltd. vs Union of India and Ors., See also the decision of this Court in Civil Appeal No. 2215(NA) of 1988 Collector of Central Excise, Baroda vs M/s Ambalal Sarabhai Enterprises, judgment delivered on 10th August, 1989. The finished goods were cut to size and packed paper which, according to the Indian Standard and trade practice, consisted of the wrapping paper and the wrapped paper. In South Bihar Sugar Mills Ltd. 's, case (supra), it was held by this Court that the duty is levied on goods. As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning of the expression is that to become 'goods ' it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such. The Tribunal found, and there was material for the Tribunal to do so, that the market in which articles in question were sold were paper packed and wrapped in paper. Therefore, anything that enters into and forms part of that process must be deemed to be raw material or component part of the end product and must be deemed to have been used in completion or manufacture of the end product. This Court in the case of Empire Industries Ltd. & Ors. vs Union of India & Ors. , ; has explained the concept of 'process ' in Excise Law. In view of the principle laid down therein and other relevant decisions, processes incidental or ancillary to wrapping are to be included in the process of manufacture, manufacture in the sense of bringing the goods into existence as these are known in the market is not complete until these are wrapped in wrapping paper. In J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs Sales Tax Officer, [1965] 16 STC 563 (SC), this Court while construing the expression 'in the manufacture or processing of goods for sale ' in the context of Sales Tax Law, though the concept is different under the Excise Law, has held that manufacture of goods should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. Where any particular process, this Court further emphasised, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, articles required in that process, would fall within the expression 'in the manufacture of goods '. The Tribunal on the appraisement of all the relevant facts in the light of the principles indicated before, upheld its own decision in the case of Orient Paper Mills. and in both the appeals accepted 1023 the manufacturer 's contentions and dismissed the appeal. The revenue contends that the Tribunal has erred. Shri Bajoria for the respondent, drew our attention to the decision of this Court in Collector of Central Excise vs Jay Engineering Works Ltd., There the respondent was the manufacturer of electric fans, and brought into its factory nameplates under Tariff Item 68 of the erstwhile Central Excise Tariff. The nameplates were affixed to the fans before marketing them. The respondent claimed the benefit of proforma credit in terms of notifica tion No. 201/79 dated 4th June, 1979, which was for the purpose of relief on the duty of excise paid on goods fall ing under Tariff Item 68, when these goods were used in the manufacture of other excisable goods. The said notification stated that in supersession of the Notification No. 178/77 of the Central Excise dated 18th June, 1977, all excisable goods on which duty of excise was leviable and in the manu facture of which any goods falling under Item No. 68 have been used, were exempt from so much of the duty of excise leviable thereon as was equivalent to the duty of excise already paid on the inputs. In that case, the question before the Tribunal was whether the nameplates could be considered as component part of the electric fan, so as to be eligible for proforma credit under the exemption notifi cation. It was found by the Tribunal that no electric fan could be removed from the factory for being marketed without the nameplate. The Tribunal also noted in that case that even though it could be said that electric fans could func tion without the nameplates, for actual marketing of the fans, the affixation of the nameplate was considered an essential requirement. To be able to be marketed or to be marketable, it ap pears to us, in the light of facts in the appeals, that it was an essential requirement to be goods, to be wrapped in paper. Anything required to make the goods marketable, must form part of the manufacture and any raw material or any materials used for the same would be component part for the end product. In our opinion, the Tribunal was right in the view it took. There is no ground to interfere in these appeals. Before we conclude, we must further observe that Shri Bajoria drew our attention to the judgment and order of the Tribunal in Appeal No. ED(SB)A. No. 2734 83C (Collector of Central Excise vs Orient Paper Mills), where the appeal has been preferred and in the ' petition in appeal to this court by the revenue under section 35L(b) of the Act, where the question involved was whether the proforma credit under rule 56A of the Central Excise Rules, 1944 in respect of said 1024 packing and wrapping paper used for packing admissible or not is punishable or not, the revenue has pleaded that the unit of paper for sale was 'ream ' duly packed in wrapping paper and the real is cured and such real is also wrapped in the wrapping paper. Therefore, from that statement, it further appears that such ream or real are wholesale pack ages and are stored in packed condition. If that is the stand of the then it cannot be contended that wrapping paper is not integral part of the manufacture. If that is so, any material utilised must be component part of the raw material used or consumed in the finished products. Apart from that, under rule 56A of the Rules, the assessee would be entitled to the benefit of deduction of the duty to be charged on all wrapping papers, if any. Nothing contrary to the aforesaid was indicated to us by the revenue though asked to do so. In the aforesaid view of the matter, this question involved in these appeals is really of academic interest. These appeals, however, have no merit for the reasons indicated above and are accordingly dismissed without any order as to costs. G.N. Appeals dismissed.

The appellant company carried on the business of manu facture and sale of paper. It claimed exemption from payment of excise on paper core which, accordingly to the appellant, was used in the manufacture of paper. The case of the appel lant was that the paper cores used in the manufacture of paper constituted "component parts" within the meaning of Notification No. 201/79 dated June 4, 1979 as amended. The case of the respondent on the other hand was that the paper cores were really used by the appellant as packing material after the paper had already been manufactured for taking it to the market and did not constitute "component parts" of paper. The Assistant Collector, Central Excise, rejected the claim of the appellant but its claim on appeal as regards exemption from duty on paper cores was allowed by the Appel late Collector. The Customs, Excise and Gold (Control) Appellate Tribunal however allowed the appeal of the Reve nue. Partly allowing the appeal, this Court, HELD: 1. Even though the term "component parts" has not been defined either by the Act or by the Notification, the term "manufacture" has been defined in section 2(f) of the . This definition contem plates that "manufacture" includes any process, incidental or ancillary to the completion of a manufactured product. [895D] 2. In the absence of any definition of the term "compo nent partS" it is permissible to refer to the dictionary meaning of the word "component". Accordingly to the diction ary meaning, the word "component" inter alia means a con stituent part. [895F] 3. If the use of paper core is necessary in "any process incidental 893 or ancillary to the completion of" paper as marketable goods and it would consequently be commercially inexpedient to sell paper without the use of paper core, it would certainly be a constituent part of paper and would thus fall within the purview of the term "component parts" used in the Noti fication. [896F] M/s J.K. Cotton Spinning & Weaving Mills vs Sales Tax Officer, Nagpur and another, [1965] 1 S.C.R. Page 900 and Bhor Industries Ltd. Bombay vs Collector of Central Excise, Bombay, ; , referred to. Paper is made (1) in the form of rolls and (2) in the form of sheets and the paper which is sold in the form of sheets is cut in desired sizes. Even though rewinding has to be done both for manufacturing roll paper as well as sheet paper, use of paper core in rewinding is necessary only with regard to manufacture of roll paper, inasmuch as it is the paper as rolled on paper core which is delivered to the customer in the form of rolls and unless in the process of rewinding paper core is used, paper cannot come out of the machine in rolls so as to be sold as a marketable commodity known as roll paper. The use of paper core, however, is not necessary for the manufacture of paper sheets. [897E, 899G 900A] 5. Use of paper core would come within the purview of the expression "any process incidental or ancillary to the completion of manufactured products" used in the definition of the term "manufacture" in section 2(f) of the Act and for the same reason paper core would also be constituent part of paper and would thus fail within the term "component parts" used in the Notification in so far as manufacture of paper in rolls is concerned. Paper core, however, cannot be said to be used in the manufacture of paper in sheets as compo nent parts. [900E F]

ivil Appeal No. 778 of 1966. Appeal by special leave from the order, dated May 25, 1965 of the Punjab High Court in Letters Patent Appeal No. 146 of 1965. S.V. Gupte and Naunit Lal, for the appellant. A.K. Sen, S.C. Mohatta and A.D. Mathur, for respondent No 1. V. C. Mahajan and R.N. Sachthey, for respondent Nos. 2, 3 and 4. The Judgment of the 'Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment and order of the High Court of Punjab in Letters. Patent Appeal No. 146 of 1965 whereby the High Court dismissed in limine the Letters Patent Appeal filed by the appellant Surja against the judgment of the learned Single Judge allowing the writ petition filed by the respondent, Hardeva. The relevant facts for determining the points raised before us are as follows; Hardeva, respondent before us, is a big landlord of village Panniwala Mota in Sirsa Tahsil of Hissar District. Surja, the appellant, was an old tenant of Hardeva and had been cultivating the land in dispute since about 1949. Section 18 of the Punjab Security of Land Tenures Act, 1953 (Punj. Act X of 1953) hereinafter referred to as the Act entitles a tenant of a land owner other than a small land owner to purchase from the land owner .the land held by him, but not included in the reserved area of the land owner if he satisfies the conditions laid down in that section. Section 18(1) & (2) may be set out. 450 "18(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 (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 laud comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts 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, and 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 fight 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 w an Assistant Collector of the First Grade having jurisdiction over the land concerned, and the Assistant Collector, after giving notice to the land over and to all other persons interested in the land and after making such inquiry as he thinks fit, shall. determine the value of 451 the land which shall be the average of the prices obtaining for similar land in the locality during 10 years immediately preceding the date on which the application is made. " Surja accordingly applied on August 5, 1957, to the Collect or,Hissar District, stating that he intended to purchase the land in dispute and that the land is outside the reserved area of the landowner. He further alleged that he had been in possession of the land for the last eight years. Hardeva in his written statement, inter alia, stated that Surja was in possession of the land only for three or four years. He alleged that Surja had already 150 bighas of cultivable land. He further stated that the land is reserved and for that reason Surja was not entitled to purchase it. In his evidence before the Assistant Collector given on March 25, 1958, Hardeva deposed: "The land is reserved. I do not know whether the land in dispute is reserved or not.", By his order, dated March 31, 1959, the Assistant Collector, Sirsa, held that Surja was entitled to purchase the land in dispute, and, accordingly, fixed the price. Regarding reservation he observed: "It is admitted by the respondent that they are big land owners and got this land reserved, but later on during his very cross examination, he denied any knowledge about the reservation. The respondent produced no evidence with regard to having this land got reserved though they are big land owners. " Hardeva thereupon filed an appeal before the Collector, and one of the grounds taken was that the Assistant Collector erred in holding that the land in dispute was not reserved land. The Collector, by his order, dated July 20, 1960, dismissed the appeal. It was common ground before him that Hardeva was a big landowner and that Surja had been in continuous possession of the land in dispute for more than six years, and the only point he determined was whether with the addition of the 28 bighas and 12 biswas of land which Surja had been permitted to purchase his total area would exceed the permissible area or not. On this point he held in favour of Surja and accordingly dismissed the appeal, . Hardeva then filed a revision before the Commissioner. In the grounds of revision dated October 27, 1960, various grounds were taken but there was no ground regarding reservation of land or selection of land under section 5 B of the Act. On February 1, 1961. Hardeva filed an application in the Court of the Commissioner. In this application he stated that the entire land in dis 452 pute was included in the permissible area selected bY him under section 5 B of the Act by submitting form "E". He further stated that the Financial Commissioner had in Karan Singh vs Angraz Singh (1). held that selection under section 5 B(1) had the same force as. reservation under section 5 of the Act, and this disentitled. Surja from purchasing the land in dispute. He prayed that he may be allowed to raise the plea of selection under section 5 B (1). He stated, that tiffs plea involved a question of jurisdiction and in the interest of justice he may be permitted to raise this plea as an additional ground of revision. The Commissioner allowed the ground to be taken but as Surja 's counsel suspected the bona fides of the selection, the Commissioner sent for the original file and he satisfied himself, after examining the original form "E" and the affidavit in relation to form ' "E", that. Hardeva had duly submitted the selection document to the Collector within time on June 19, 1958. It appears that the Financial Commissioner had held in Dhanpat Raf vs State Punjab(2) that the period of six months allowed by section 5 B for making selection would start from March 22, .1958, the date when the Punjab Government Notification proscribing the form was issued. The Commissioner felt that the selected land could not be purchased under section 18 by the tenant. lie accordingly submitted the case to the Financial Commissioner with the recommendation. that the revision petition be accepted and that the orders of the Assistant Collector and the Collector be set aside. The Financial Commissioner dismissed ,the revision. He held that as Hardeva had not put forward the plea of selection before the Assistant Collector or the Collector he could not be allowed to do so at that stage. lie observed: "In other words the consideration that reservation of area under section 5 and selection of area under section 5 B are identical in their effect has no relevance in the present. cases for the reasons that it was never claimed (except in revision) that the .area .had .been selected under section 5 B. If such a claim had been made and substantiated, the position would have been .different, but since this. ' was not done, the 'decision against the petitioner cannot be challenged. it is also clear that there is no question in these eases of authorities concerned having acted without jurisdiction or having exercised. it with illegality 'or material .irregularity which alone could justify interference 'in revision. " Hardeva then filed a petition under articles 226 and 227. of the Constitution. The Court held that the Financial Commis (1) (1960) 39 Lahore Law Times, 57, (2) (1961) Lahore Law 453 sioner should have accepted. the recommendation made by. the Commissioner and accordingly allowed the petition and declared that Surja was not entitled to purchase the land in dispute selected by the land owner under the provisions of 'section 5 B of the Act. The learned Single Judge was of the view that the disputed question related. to junsdiction and .went to the root of the whole matter. It appears that there was some dispute before the learned Single Judge about the date of the selection, because the learned Judge observed: "There is a slight dispute on the question whether the intimation of selection was given on 19th or ' 20th of June, 1958". He, however. preferred to accept the finding of the learned Commissioner on the point and gave the land.owner the benefit of it. He further observed that the question could not have been raised before the Assistant Collector and the Collector because "the prevailing view up till 1960 appears to have been that the selected area had. not been equated with the reserved area" and it was because of this that Hardeva had not placed it before the Assistant Collector and the Collector although he had placed the point that the area was part of the reserved area. It seems to us that the High Court was right in holding that the, question whether the land sought to be purchased by Surja was part of the reserved or selected area was a jurisdictional fact. Under section 18 of the Act a tenant is only entitled to purchase land which as not included in the reserved or selected area of the landowner. Under section 18(2) the Assistant Collector is only authorized to determine the value of the land after making such enquiries as he thinks fit. He is not authorized expressly to go into the question whether the land sought to be purchased is included in the reserved or selected area of the land owner or not. But, obviously it must be the intention that he should go into these questions before embarking on determining the price. But by wrongly deciding that question he cannot finally confer on himself jurisdiction to deal with the matter. In exercise of the powers under section 24 of the Act, read with section 84 of the Tenancy Act, the Financial Commissioner had jurisdiction to go into the question whether the Assistant Collector or the Collector had rightly assumed jurisdiction. It was urged before us that the orders of the Assistant Collector and the Collector were final and could not be assailed on the ground that they had wrongly assumed jurisdiction. Reliance was placed on authorities. like Rai Brij Raj Krishna vs section K. Shaw(1) where (1) ; 454 this Court referred to Queen vs Commissioners for Special Purposes of Income Tax (1) and Colonial Bank of Australia vs Willan,(2) That was a case of a suit whereby the order of the Commissioner under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (section 11) was sought to be declared illegal, ultra vires and without jurisdiction, but we are concerned with the revisional power.of the Financial Commissioner which is the same as that of the High Court. As observed by Kapur, J., speaking for the Court, in Chaube Jagdish Prasad vs Chaturvedi,.(3) these cases have no application to the exercise of revisional power. He observed: "The appellant also relied on Rai BrijRai Krishna vs S.K. Shaw and Bros.(4) where this Court quoted with approval the observations of Lord Esher in Queen vs Commissioner for pecial Purposes of the Income Tax(1) and Colonial Bank of Australia vs Willan(a), where Sir James Colville said: "Accordingly the authorities. establish that an adjudication by a Judge having jurisdiction over the subject matter is, if no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queen 's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however, essential, has been erroneously found." But these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case iS to be determined by the provisions of section 5 (4) of the Act. And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of section 115. H there is an error which falls within this section the High CoUrt will have the power to interfere, not otherwise. The only question to be decided in the instant case is as to whether ,the High Court had correctly interfered under section 115 of the Code of Civil Procedure with the order of the Civil Judge. As we have held above, at the instance of the landlord the 'suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jUrisdictional fact to be found was the date of the construction of the accommodation and if the court wrongly decided (1) (2) (3) [1959] Supp. 1 S.C.R. 733, 746. (4) ; 455 that fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it and the matter fell within the. rule laid down by the Privy Council in Joy Chandlal Babu vs Kamalksha Chaudhury(1). ' The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly ,or wrongly decided. The High .Court held that the Civil Judge had wrongly decided that the conStruction was of a date after June 30, 1946, and therfor fell within section 3 A." Similarly, in Jagannath Ramchandra Datar vs Dattaraya Balwant Hingmire(2) this Court observed: "Therefore if it can be shown that the subordinate court without any evidence whatsoever held that the ' transaction in question was not a sale but a mortgage and that the relationship between the parties was that of a debtor and a creditor and on that. footing proceeded to exercise its power under section 3 and 10 A of the Dekhan Agriculturists Relief Act the High Court would be entitled to interfere with such a decision under both the parts of section 115. It would then ' be possible to say that the subordinate court had clutched at jurisdiction which it had not under the said section and it would also be possible to say that court had exercised its jurisdiction illegally or with material irregularity. " It seems to us that the Financial Commissioner did not appreciate the content of his powers of revision under section 24, read with section 84 of the Tenancy Act. It was obvious from the report of the Commissioner that if the finding arrived at by the Commissioner was accepted the Assistant Collector and the Collector had no jurisdiction in the matter. In our opinion the Financial Commissioner should have gone into the question whether the Commissioner 's report was acceptable or not on merits. It is urged by the learned counsel for Surja that the High Court did not decide the question whether the selection had been properly made within time, but it merely, accepted the report of the Commissioner. He, therefore, still disputes the fact that the selection was made within time. He also says that it is not a genuine and valid selection. These points should be gone into by the Financial Commissioner. Under these circumstances we allow the appeal, set aside the orders passed by the High Court (1) 1949 L.R. 76 I.A. 131. (2) Civil Appeal No. 585 of 1964 judgment delivered on September 9, 1966. 456 and the Financial Commissioner and remit the case to the Financial. Commissioner to dispose of the revision filed before him in accordance with law. There will be no order as to Costs in this appeal. ' Y.P. Appeal allowed.

The appellant a tenant of. the respondent l(a big, land owner). applied. for purchase of the.land cultivated by him under section 18 of the Punjab Security of Land Tenures Act, 1953 alleging that he had been in possession of the land for more than. six years and the land was outside the reserved area of the land oWner. The respondent alleged. that th land was reserved. The Assistant Collector .held that the appellant was entitled. to purchase the land '. The respondent filed an appeal t the Collector. The Collector dismissed the appeal. The responder then filed a revision to the Commissioner. While the revision was pending the Financial Commissioner gave a decision in another matter that a selection by land owner under s2 5B(1) for permissible area under the Act had the same force as. 'reservation.under section 5, of the Act. There respondent thereupon filed an application stating that the entire land dispute was included in the permissible area selected by him under section 5 B and as this disentitled the tenant from purchasing the land prayed that he may be allowed to raise this plea which involved a question of jurisdiction. The Commissioner satisfied himself that the selection document was filed within time and felt that the land could not purchased and submitted the case to the Financial Commissioner with the recommendation that the. revision be accepted. The Financial Commissioner however dismissed the revision holding that as the respondent had not put the plea of selection before Assistant Collector or Collect he could not be allowed to do so at that stage. The respondent filed a petition in the High Court and the High Court allowed the petitioning that the Financial Commissioner should have accepted the recommendation made by the Commissioner. In appeal this Court, HELD: The Financial Commissioner should have gone into question whether Commissioner 's report was acceptable or not on merits The question whether the land sought to be purchased by the appellant was part of the reserved or selected area was a jurisdictional f Under section 18 of the Act a tenant is only entitled to purchase land is not included in the reserved or selected area of the land ow Under section 18(2) the Assistant Collector is only authorized to determine the value .of the land after making such enquiries as he thinks fit. is not authorized expressly to go into the question whether the sought to be purchased is included in the reserved or selected are the land owner or not. But he should go into these questions be embarking or determining the price and by wrongly deciding. 449 tion he cannot finally confer on himself jurisdiction to deal with the matter. The revisional power of the Financial Commissioner under section 24 of the Act read with section 84 of the Tenancy Act being the same as that of the High Court in exercise of that power the Financial Commissioner had jurisdiction to go into the question whether the Assistant Collector or the Collector had rightly assumed jurisdiction. [453 E G] As the question whether the selection by the land owner was made in time and whether it was genuine and valid had to be decided the matter must be remanded to the Financial Commissioner for decision on these points. Chaube Jagdish Prasad vs Chaturvedi, [1959] Supp. 1 S.C.R. 733, 746 and Jagannath Ramchandra Datar vs Dattaraya Balwant Hingmire, C.A. No. 585 of 1964 dated 9 9 1966, followed. Rai Brij Raj Krishna vs S.K. Shaw ; , Queen vs Commissioners for Special Purposes of Income tax, and Colonial Bank of Australia vs Willan L.R. , held inapplicable.

Civil Appeal No. 224 of 1979. Appeal by Special Leave from the Judgment and Order dated 6 12 1978 of the Delhi High Court in C.W. No. 1361/78. P. Parameswara Rao and R. Nagarathnam for the Appellant. K. Parasaran, Sol. Genl., V. Gauri Shanker, K.L. Hathi and Mrs. Hemantika Wahi for the Respondents. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by special leave is directed against a Division Bench judgment dated December 6, 1978 of the High Court of Delhi and arises under the following circumstances. The appellant was inducted as a tenant by one Mithanlal who was the owner of the premises in question and the rent payable at the time of the tenancy was Rs 55 per month. The premises were, however, purchased by the Life Insurance Corporation of India (for short, LIC) at a court auction on July 19, 1958 and the appellant in view of the same attorned to the new landlord, namely, the LIC. The Delhi Rent Control Act of 1958 (hereinafter referred to as the 'Rent Act ') came into force on February 9, 1959 and on July 24, 1969 the new landlord gave a notice under section 106 of the Transfer of Property Act to the appellant determining the tenancy. This notice, however, was subsequently withdrawn and after some correspondence with the appellant the rent was increased by the LIC from Rs. 55 to Rs. 125 per month. Sometime towards the end of July 1966, the LIC gave a fresh notice under section 106 of the Transfer of Property Act purporting to determine the tenancy. Thereafter, there were some parleys between the LIC and the appellant and ultimately the LIC agreed to accept the enhanced rent of Rs. 300 per month from the appellant with effect from December 1, 1976. On April 23, 1977 the LIC gave another notice under section 106 superseding the previous notice and directing the appellant to vacate the premises on or before May 31, 1977. As the appellant did not vacate the premises, the LIC filed a complaint with respondent No. 2, the Estate Officer, LIC under the provisions of the (hereinafter referred to as the 'Premises Act '). Thereafter, the second respondent issued a notice to the appellant under section 4(1) of the Premises Act to show cause why the appellant be not evicted. The appellant appeared before the Estate Officer and raised certain preliminary objections which having been decided against him, the appellant filed a writ petition in the Delhi High Court against the order of the Estate Officer and reiterated the preliminary objections taken by him before 501 the Estate Officer. After considering the preliminary objections which mainly related to the question of jurisdiction of the Estate officer to proceed under the Premises Act, the High Court overruled all the objections and dismissed the writ petition in limine, though by a reasoned order. Hence, this appeal to the Supreme Court. Before dealing with the contention raised by counsel for the respondent we might mention that the proceedings before the Estate officer under the Premises Act have only been stayed and not yet decided on merits because the appellant wanted the Estate officer to decide the question of jurisdiction as a preliminary issue. In support of the appeal, Mr. Parmeshwar Rao submitted three main contentions before us. In the first place, he submitted that the provisions of the Premises Act would have no application to the present premises because the appellant could not be described as an unauthorised occupant as he had entered into possession of the premises long before they were purchased by the LIC. It was argued that the condition precedent for the assumption of jurisdiction by the Estate officer was that the appellant must be an unauthorised occupant, and if the possession of the appellant was lawful, though the property changed hands subsequently, the appellant could not be dubbed as an unauthorised occupant. In this connection, reliance was placed on a decision of this Court in Rajkumar Devindera Singh & Anr. vs State of Punjab & Ors We have gone through the decision cited before us and we find that the provisions of the Punjab Act, which was the subject matter of interpretation by this Court in that case, were substantially and materially different from section 2(2)(g) of the Premises Act which defines unauthorised occupation. Mr. Rao, however, strongly relied on the following observations made by this Court in the case supra: "If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises. Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh. The property was not public premises before it was sold to the Government. " If these observations of this Court are torn from the context they may presumably support the argument of the appellant but we have to read these observations in the light of the specific provisions of the Punjab, Public Premises and Land (Eviction and Rent Recovery) Act, 502 1959 (hereinafter referred to as the 'Punjab Act '). Relevant portion of section 3 of that Act may be extracted thus: "For purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises: (a) where he has whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant." [Emphasis Ours] It would be seen that before a person could be said to be in an unauthorised occupation, the Act required the following conditions: (1) that the occupant had entered into possession before or after the commencement of the Act. (2) that he had entered into such possession otherwise than under and in pursuance of any allotment, lease or grant. That Act, therefore, lays special stress on only one point, namely, the entry into possession. Thus, if the entry into possession had taken place prior to the passing of the Act, then obviously the occupant concerned would not be an unauthorised occupant. What made the occupancy unauthorised was his entry into possession at a particular point of time. It was in construing these provisions that this Court held that if the appellants in that case were in possession before the sale of the property to the Government, their entry into possession could not be said to be unauthorised. These observations, however, would have absolutely no application to the instant case where section 2(2)(g) defines unauthorised occupation thus: "unauthorised occupation ', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." To begin with, it is manifest that section 2(2)(g) does not use the word 'possession ' or the words 'entry into possession ' at any point of time at all. The section merely requires occupation of any public premises. Entry into possession connotes one single terminus, viz., the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues until he leaves the premises. What is germane for the purpose of interpretation of section 2(2)(g) is whether or not the person concerned was in occupation of the public premises when the 503 Premises Act was passed. In the instant case, it is not disputed that the appellant continued to occupy the property even after the Premises Act came into force and in fact accepted the LIC as his landlord. In these circumstances, therefore, the case of the appellant squarely falls within the ambit of the definition of 'unauthorised occupation ' as contemplated by section 2(2)(g). There is yet another aspect of the matter which distinguishes the present case from the language employed in the Punjab Act. Section 2(2)(g) is an inclusive definition and consists of two separate limbs (1) where a person is in occupation in relation to any public premises without authority for such occupation, and (2) even if the possession or occupation of the tenant continues after the lease is determined. In the instant case, the lease was doubtless determined by the landlord by a notice under section 106 of the Transfer of Property Act whose validity for purposes of deciding the question of law has not been questioned by the learned counsel for the appellant. Therefore, there can be no doubt that the appellant was in unauthorised occupation of the premises once the lease was determined. The second limb mentioned in section 2(2)(g) is conspicuously absent from the provisions of the Punjab Act. For these reasons, we overrule the first contention raised by the counsel for the appellant and we hold, agreeing with the High Court, that the appellant was undoubtedly in unauthorised occupation of the premises. The second contention put forward by Mr. Rao was that in view of the provisions of the Rent Act which override the provisions of the Premises Act, section 14 of the Rent Act completely bars recovery of possession of any premises except in accordance with the procedure laid down in the Rent Act. It was contended by Mr. Rao that although the Premises Act was passed in 1971, it has been given retrospective effect from 16th September 1958 and, therefore, should be construed as a law having been passed in 1958 and as the Rent Act was passed in 1959 it overrides the Premises Act. We are, however, unable to agree with this argument. In the first place, the Premises Act was passed in 1971 and came into force on the 23rd of August 1971, that is to say, long after the Rent Act was passed in 1959. The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is to say August 23, 1971. In these circumstances, therefore, the Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act. It was further contended by Mr. Rao that the Rent Act being a special law as compared to the Premises Act, it will override the Premises Act without going into the question as to which of the two Acts were prior in point of time. In support of his contention the 504 counsel relied on a decision of this Court in Sarwan Singh & Anr. vs Kasturi Lal where this Court observed as follows: "When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration." (emphasis supplied) It is true that in both the Acts there is a non obstante clause but the question to be determined is whether the non obstante clauses operate in the same field or have two different spheres though there may be some amount of overlapping. The observations cited above clearly lay down that in such cases the conflict should be resolved by reference to the object and purpose of the laws in consideration. In Shri Ram Narain vs The Simla Banking & Industrial Co. Ltd.,(2) this Court made the following observations: "It is therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein. " In the light of the principles laid down in the aforesaid cases we would test the position in the present case. So far as the Premises Act is concerned it operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like companies, corporations or the Central Government. Thus, the Premises Act has a very limited application. Secondly, the object of the Premises Act is to provide for eviction of unauthorised occupants from public premises by a summary procedure so that the premises may be available to the authorities mentioned in the Premises Act which constitute a class by themselves. That the authorities to which the Premises Act applies are a class by themselves is not disputed by the counsel for the appellant as even in the case of Northern India Caterers Pvt. Ltd. & Anr. vs State of Punjab & Anr. such authorities were held to form a class and, therefore, immune from challenge on article 14 of the Constitution. Similarly, the summary procedure prescribed by the Premises Act is also not violative of Art, 14 as held by this Court in 505 Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors.(1). Thus, it would appear that both the scope and the object of the Premises Act is quite different from that of the Rent Act. The Rent Act is of much wider application than the Premises Act inasmuch as it applies to all private premises which do not fall within the limited exceptions indicated in section 2 of the Premises Act. The object of the Rent Act is to afford special protection to all the tenants or private landlords or landlords who are neither a Corporation nor Government or Corporate Bodies. It would be seen that even under the Rent Act, by virtue of an amendment a special category has been carved out under section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity. Thus, section 25B itself becomes a special law within the Rent Act. On a parity of reasoning, therefore, there can be no doubt that the Premises Act as compared to the Rent Act, which has a very broad spectrum, is a Special Act and overrides the provisions of the Rent Act. It was also suggested by Mr. Rao that in view of section 3(a) of the Rent Act, which is extracted below, it would appear that the intention of the legislature in passing the Rent Act was merely to exclude from its operation only premises belonging to the Government and if the intention was to exclude other premises belonging to corporate Bodies or Corporations, then section 3(a) should have been differently worded: "3. Nothing in this Act shall apply: (a) to any premises belonging to the Government. " This in our opinion, does not advance the case of the appellant any further because once the Premises Act becomes a special Act dealing with premises belonging to Central Government, Corporations and other statutory Bodies, the Rent Act stands superseded. We have to consider the provisions of the two Acts, they having been passed by the same legislature, viz., Parliament, and the rule of harmonious construction would have to apply in such cases. For these reasons, we overrule the second preliminary objection taken by the appellant. Lastly, it was argued that apart from the Rent Act, section 19 of the (hereinafter referred to as the 'Slums Act '), which also would have to be construed as a Special Act applying only to such places which are declared to be slums under the Act, would override the provisions of both the 506 Rent Act and the Premises Act. This argument appears to us to be without substance. The Slums Act was passed as far back as 1956 and the Premises Act was subsequent to the Slums Act and would, therefore, prevail over the Slums Act. Relevant portion of section 19 of the Slums Act may be extracted thus: "19. (1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority, (a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964 any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area;" A perusal of section 19 of the Slums Act clearly shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in section 2 of the Premises Act. The Premises Act being subsequent to the Slums Act, as amended in 1964, and again being a special Act having a very limited sphere, must necessarily override the Slums Act on the same lines of reasoning as we have indicated in the case of the Rent Act. For these reasons, therefore, the last contention put forward by the counsel for the appellant is also overruled. The High Court had also overruled all these preliminary objections more or less on the same reasons as given by us though not in such details. It is, however, not necessary for us to remand the matter to the trial court for decision of the case on merits because the Solicitor General having agreed to give two years ' time to the appellant to vacate the premises on filing the usual undertaking, the appellant does not want to contest the proceedings before the Estate officer, LIC and has undertaken to give vacant and peaceful possession to the respondent on August 1, 1982. Meanwhile, the appellant shall keep on paying the usual rent. The appellant shall also file an undertaking accompanied by an affidavit to the effect that it shall hand over vacant and peaceful possession to the respondent on or before August 1, 1982 and shall not induct any tenant on the premises. The undertaking shall be filed within three weeks from today. The subject matter of the appeal is accordingly disposed of finally. N.V.K. Appeal dismissed.

The L.I.C. (respondent No. 1) purchased a building at a court auction. The appellant was inducted as a tenant by the prior owner of the premises. The L.l. C. gave notice under section 106 of the Transfer of Property Act directing the appellant to vacate the premises. As the appellant did not vacate the premises the L.I.C. filed a complaint with the Estate Officer, L.I.C. (respondent No. 2) under the provisions of the Public Premises (Eviction of Unauthorised occupants) Act 1971, who issued a notice to the appellant under section 4(1) of the Act to show cause why the appellant be not evicted. Before the Estate Officer the appellant raised preliminary objections which related to th equestion of jurisdiction of the Estate Officer to proceed under the Premises Act. The Estate Officer decided the question against him and the High Court confirmed the order. In appeal to this Court on behalf of the appellant it was contended: (1) The appellant could not be described as an 'unauthorised occupant ' within the meaning of section 2(2)(g) of the 1971 Act because he had entered into possession of the premises long before they were purchased by the L.I.C.; (2)(i). The Premises Act of 1971 which had been given retrospective effect from the 16th September, 1958 should be construed as a law having been passed in 1958 and so construed the Rent Act (The Delhi Rent Control Act) passed in 1959 over rides the Premises Act; (ii) The Rent Act which is a special law would override the Premises Act and (iii) The intention of the Legislature in passing the Rent Act as seen from section 3(a) was merely to exclude from its operation only premises belonging to the Government and if the intention was to exclude other premises belonging to corporate bodies or Corporations then section 3(a) would have been differently worded. Apart from the Rent Act section, Section 19 of the which is also a Special Act applying only to such places which are declared to be slums under the Act, would override the provisions of both the Rent Act and the Premises Act. 499 Dismissing the Appeal: ^ HELD: (1)(a) The appellant was undoubtedly in unauthorised occupation of the premises. [503 D] (b) Section 2(2)(g) does not use the word 'possession ' or the words 'entry into possession ' at any point of time at all. The section merely requires occupation of any public premises. Entry into possession connotes one single terminus, viz., the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues until he leaves the premises. [502 G H] In the instant case the lease was determined by the landlord by a notice under section 106 of the Transfer of Property Act. Therefore, there can be no doubt that the appellant was in unauthorised occupation of the premises once the lease was determined. [503 Cl Raj Kumar Devendra Singh & Anr. vs State of Punjab and Ors. ; distinguished. 2(i) The Premises Act was passed in 1971 and came into force on 23rd August, 1971 that is long after the Rent Act was passed in 1959. The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is August 23, 1971. The Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act. [503 G] (ii) The scope and the object of the Premises Act is quite different from that of the Rent Act. The Rent Act is of much wider application, inasmuch as it applies to all private premises, which do not fall within the limited exceptions indicated in section 2 of the Premises Act. The object of the Rent Act is to afford special protection to all the tenants or private landlords who are neither a Corporation nor Government or Corporate Bodies. Even under the Rent Act, a special category has been carved out by section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity. Section 25B, therefore, becomes a special law within the Rent Act. Therefore, the Premises Act as compared to the Rent Act, is a Special Act and overrides the provisions of the Rent Act. [505 B C] Sarwan Singh & Anr. vs Kasturi Lal ; & Shri Ram Narain vs The Simla Banking & Industrial Co. Ltd. ; referred to. (iii) once the Premises Act becomes a Special Act dealing with the premises belonging to the Central Government, Corporations and other statutory bodies, the Rent Act stands superseded. [505 F] 3. Section 19 of the Slums Act shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in section 2 of the Premises Act The Premises Act, being subsequent to the Slums Act, as amended in 1964, and again being a special Act having a very limited sphere, must necessarily override the Slums Act. [506 D]

Civil Appeal No. 3952 of 1983 Appeal by Special leave from the Judgment and order dated the 6th October, 1982 of the Allahabad High Court in Civil Misc. Writ Petition No. 7029 of 1981. A.K. Sen and Pramod Swarup for the Appellants. O.P. Malhotra and Mrs. S.Dikshit for Respondent No.2. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave seeks to assail the decision of the Allahabad High Court in a proceeding under Article 226 of the Constitution refusing to quash an order of the IIIrd Additional District Judge, Kanpur, holding that Ceiling Appeal No. 189 of 1976 under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, had abated for non substitution of the sole appellant 's legal representatives. The ceiling appeal in question had been carried by one Rameshwar and during its pendency the sole appellant died on January 9, 1980. Balram, Ram Bahadur and Jugal Kishore who are the three sons of Rameshwar moved the appellate Court for substitution of their names as legal representatives in place of Rameshwar 736 On October 25, 1980. They applied for setting aside of abatement and condonation of delay. The Additional Distt. Judge took the view that there was no sufficient cause for condonation of delay and good reasons had not been shown for vacating abatement. Accordingly the appeal was dismissed. An application under article 226 was made before the Allahabad High Court for quashing of the appellate order. It was contended that there was no period of limitation prescribed in respect of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 ( 'Act ' for short) for applying for substitution, nor was there any period prescribed in Rule 3 of Order XXII of the Code of Civil Procedure ( 'Code ' for short) which became applicable in view of section 38 of the Act. Therefore, on the expiry of 90 days from the date of death of Rameshwar no abatement set in and the application for substitution made on October 25, 1980 could not have been rejected as being barred by limitation. The High Court referred to section 38 (1) of the Act and to Rules 3, 9 and 11 of Order XXII of the Code and held that Article 120 of the First Schedule of the , was applicable and the petition for substitution should have been filed within 90 days from the date of death. The writ application was, therefore, dismissed. The decision of the Allahabad High Court is assailed before this Court. When on the special leave petition notice was given it was indicated that the case would be disposed of on merits. The respondents have, however, not appeared to contest. Mr. Sen appearing in support of the appeal says that section 38 (1) of the Act makes it clear that the procedure in the Code has been made applicable for hearing and disposal of appeals. Under section 42 of the Act, sections 4, 5 and 12 of the , have been made applicable to proceedings including appeals under the Act. According to Mr. Sen, in view of the provisions in sections 38 and 42 of the Act the appellate authority and the High Court should have accepted the contention of the appellants that the Code was applied only for the disposal of appeals and the provisions of the excepting sections 4, 5 and 12 were not applicable to proceedings under the Act. Section 38 (1) of the Act provides: "In hearing and deciding an appeal under this Act, the appellate court shall have all the powers and the privileges of a civil court and follow the procedure for the 737 hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908". Under the Code when death occurs at an appellate stage, substitution is effected in accordance with the procedure laid down in Order XXII. In terms of sub section (1) of section 38 of the Act, if death occurred of one of the parties at the appellate stage of a Ceiling Appeal, substitution had also to be made according to the procedure laid down in Order XXII of the Code. Rule 3 of order XXII of the Code provides: "(1) where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit". Rule 11 of order XXII of the Code indicates that the provisions of that Order do apply to appeals. There is another aspect which militates against Mr. Sen 's argument. Sub rule (2) of rule 3 of that order provides: "where within the time limited by law no application is made under sub rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff".(Emphasis is added by us by underlining the words in the provision). Obviously, time has been limited by law in Article 120 of the First Schedule of the to which we shall presently refer. Article 120 of First Schedule of the provides that an application under the Code to have the legal representatives of the deceased appellant made a party has to be made within 90 days from the date of death of the appellant and Article 121 provides 60 days ' period for the application for an order to set aside abatement from the date of abatement. It is not disputed that the application for substitution of the legal representatives of Rameshwar when made was beyond 150 days from the date of his death. If the Code and the applied at the time when the application for substitution was made, the legal representatives had to ask for substitution, setting aside of abatement and condonation of delay in terms of rule 9 (3) of order XXII of the Code. Whether there was sufficient cause for the delay to be condoned and for abatement 738 to be vacated were matters for the appellate court and Mr. Sen has rightly not canvassed before us that discretion which vested in the appellate court had not been properly exercised. The sole ground pressed before us, as we have already stated, is as to whether to an appeal under the Act the provisions of the Code and the referred to above would apply. There is little room to dispute that if Order XXII of the Code applies necessarily Articles 120 and 121 of the First Schedule of the would also apply. The contention that only three sections of the have been specially extended to proceedings under the Act by section 42 thereof is of no consequence once it is held that order XXII of the Code is applicable to appeals under the Act. Section 38 (1) of the Act in our view clearly extends the procedure applicable to appeals under the Code to appeals under the Act. The extension of the procedure available under the Code to appeals under the Act attracts the entire procedure of the Code relevant for the purpose of disposing of an appeal under the Act. There is no scope to reckon an exception unless the statute indicates any. We are, therefore, not inclined to accept the submission advanced before us by Mr. Sen that the principles of abatement and delay were not applicable to the case in question and the appellate judge as also the High Court had gone wrong in applying the provisions of the Code and the to deal with the application for substitution. The appeal fails and is dismissed without any direction for costs. P.B.R. Appeal dismissed.

The petitioner Bhagwant Singh a member of the Indian Revenue Service applied to the Court for intervention and necessary relief in the matter of the death of his married daughter Gurinder Kaur alleging that due to several circumstances he was convinced that his daughter was murdered in the house of her parent 's in law by burning her and that the police investigation was improper and irregular and ineffective. According to the petitioner: (i) that he and his daughter were opposed to the evils of the dowry system and therefore, with a stipulation that no dowry should be demanded at the time of the marriage he gave his daughter to one Amarjit Singh, son of his colleague Kartar Singh Sawhney and a friend for over thirty years; (ii) that after the marriage his daughter came to be ill treated by her mother in law hinting that gifts and jewellery were expected from her parents and such oppressive tensions at home resulted in the mis carriage of a child, from which time onwards the mother in law taunted her saying that unless she observed the family tradition of presenting a necklace to her mother in law she would remain without a child; (iii) that sometime later, the son in law got it conveyed to Bhagwant Singh that he required Rs. 50,000 for financing his business which was not acceded to; (iv) that on August 9, 1980 i.e. ten months after the marriage his daughter was found dead of third degree burns from a kerosene fire in the bath room and was admitted in the Ram Manohar Lohia Hospital by her father in law at 12.15 P.M.; (v) that the police did not get the statement of his daughter recorded though she was able to speak; (vi) that the police added section 4 of the Dowry Prohibition Act to the charge on November 29, 1980 and only on May 15, 1981 a reference to section 306 IPC was included in the F.I.R.; and (vii) that the police failed to examine material witnesses and recover material objects and proceeded in a leisurely manner. 110 The Court admitted the writ petition and called for full details from the Inspector General of Police about the investigation of the case and the circumstances leading to the non filing of the report under section 173(2) of the Code of Criminal Procedure. Disposing of the Writ Petition and directing the C.B.I. to complete the investigation within three months, the Court ^ HELD: 1:1 Disappointing as it may seem to those who have desired the institution of criminal action on the basis that a crime has been committed, the material on record does not, however, justify an order to that effect by the Supreme Court. The investigation of the case now stands transferred to the C.B.I. at the instance of the petitioner. [123 E F] 1:2. It is not possible, in this case, nor indeed would it be right for the Court to do so, to enter into the question whether Gurinder Kaur committed suicide or was murdered. That is a matter which is properly involved in the trial of a criminal charge by a court possessing jurisdiction. [114 G H] 2:1. The police did not display the promptitude and efficiency which the investigation of the case required. There is much that calls for comment. Though the CD entry made on August 9, 1980 indicates the visit of a sub inspector to the place of occurrence and seizure of several things, the blanket with which the fire is said to have been put out has not been seized. On the next day when the experts from the Central Forensic Science Laboratory visited the place for getting any chance prints, the mirror was not taken possession of, nor was the report obtained for full five weeks. In cases such as this, it would have been of the essence that on visiting the place of occurrence immediately on information of the incident, the mirror should have been taken into possession by the police and handed over forthwith to the Central Forensic Science Laboratory experts for an urgent report in regard to the existence and identification of the prints. Delay in such a matter is vital and can often result in the loss of valuable clues. Since Ramu the servant was reported to have helped in forcing open the door of the bathroom, he was a material witness for deposing whether the bathroom was latched from inside and had to be forced open or was in fact latched from outside. It was only as late as January 25,1981, according to entry CD 13 of that date, that Ramu was examined by the Station House Officer. Strangely he was allowed to leave the town and go to his village before he could be fully examined by the police. There is no evidence that the police expressed any anxiety to put him through a thorough examination immediately or shortly after the date of the occurrence or at least before Shri Kartar Singh 's family allowed Ramu to leave the town for his village. The fact that the investigation by the Delhi Police does not inspire confidence is clear from the memorandum dated May 12, 1981 issued by the Crime Branch to the Deputy Commissioner of Police to the effect that the statement of several material witnesses had not been recorded. [118 B H, 119 A B, 120 B] 2:2 The investigation by the police following the occurrence was desultory and lackadaisical, and showed want of appreciation of the emergent need 111 to get at the truth of the case. Whatever may be the reason, there is no doubt that the investigation of the case suffered from casualness, lack of incisiveness and unreasonable dilatoriness, and this is demonstrated most effectively by the manner in which the case was passed from one police official to another, being entrusted successively to sub Inspectors and Inspectors each of whom already had his hands full with the investigation of several other cases. There is the admission that these police officers were not only preoccupied with numerous other cases in their hands but they were officers who were also required to look after the day to day work of the police station. It was only when on the repeated and insistent petitions of Shri Bhagwant Singh the case passed into the control of the Crime Branch that the investigation showed some signs of speeding up. Secondly, the haphazard maintenance of a police case diary not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained. It is of the utmost importance that the entries in a police Case Diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity. [120 E H, 121 A.B] 2.3 In a case such as this, the death of a young wife must be attributed either to the commission of a crime or to the fact that. mentally tortured by the suffocating circumstances surrounding her, she committed suicide. Young woman of education, intelligence and character do not set fire to themselves unless provoked and compelled to that desperate step by the intolerance of their misery. Such cases evidence a deep seated malady in our social order. The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation lt is evident that legislative measures such as the Dowry Prohibition Act have not met with the success for which they were designed. Perhaps, legislation in itself cannot succeed in stamping out such an evil, and the solution must ultimately be found in the conscience and will or the social community and in its active expression through legal and constitution methods. [121 C E] 3. The Court suggested the following (i) Where the death in such cases is due to a crime, the perpetrators of the crime not infrequently escape from the nemesis of the law because of inadequate police investigation. It would be of considerable assistance if an appropriately high priority was given to the expeditious investigation of such cases, if a special magisterial machinery was created for the purpose of the prompt investigation of such incidents, and efficient investigative techniques and procedures were adopted taking into account the peculiar features of such cases; [121 F G] (ii) A female police officer of sufficient rank and status in the police force should be associated with the investigation from its very inception. There are evident advantages in that. In a case where a wife dies in suspicious circumstances in her husband 's home its invariably a matter of considerable difficulty to ascertain the precise circumstances in which the incident occurred. As the incident takes place in the home of the husband the material witnesses are 112 usually the husband and his parents or other relations of the husband staying with him. Whether it was cooking at the kitchen stove which was responsible for the accident or, according to the inmates of the house, there was an inexplicable urge to suicide or whether indeed the young wife was the victim of a planned murder are matters closely involving the intimate knowledge of a woman 's daily existence. [121 H, 122 A B] If the incident is the result of a crime by the husband or his family, the problem of ascertaining the truth is burdened by the privacy in which the incident occurred. In the circumstances where it is possible to record the dying declaration of the victim, it would be more conducive to securing the truth if the victim made the declaration in the presence of a female police officer who can be expected to inspire confidence in the victim. Psychological factors play their part, and their role cannot be ignored. A young wife can be the subject of varying psychological pressures, and because that is so the nuances of feminine psychology support the need for including a female police officer as part or the investigating force; and [122 C E] (iii) The need to extend the application of the to other cities besides those where it operates already. The application of the will make possible an immediate inquiry into the death of the victim, whether it has been caused by accident, homicide, suicide or suddenly by means unknown. lt contains provisions which are entirely salutary for the purpose of such inquiry, and an inquiry under that enactment would be more meaningful and effective and complete than one under sections 174 and 175 of the Code of Criminal Procedure. The procedure contemplated by the , ensures that the inquiry into the death is held by a person of independent standing and enjoying judicial powers, with a status and jurisdiction commensurate with the necessities of such cases and the assistance of an appropriate machinery. [122 F H, 123 B C]

Appeal No. 216 of 1952. Appeal from the judgment and decree dated September 15, 1959 of the Bombay High Court in First Appeal No. 600 of 1955 from Original Decree. A.V. Viswanatha Sastri, Rameshwar Nath, S.N. Andley and P.k. Vohra, for the appellant. S.N. Pershad, M.H. Chhatrapati, 1. B. Dadachanji, O.C. Mathur and Ravinder Narain, for respondents Nos. 1 and 2. K.L. Hathi and R.H. Dhebar, for respondent No. 3. The Judgment of the Court was delivered by Raghubar Dayal, J. There is a temple known as Shri Chandraprabhu Khandelwal Jain Temple at Dhulia. Gulabchand Hiralal, father of appellant Hukumchand Gulabchand Jain, a leading member of the Khandelwal Jain Community at Dhulia, looked after the temple for over 40 years till his death sometime in 1950.The appellant looked after it after his father 's death. Two members of the community interested in the temple, held to be a public temple, instituted the suit against the appellant and the Charity Commissioner, Bombay, praying for the removal of the appellant from possession of the trust properties, for the rendering of true and faithful accounts of all the assets and income of the trust property and for the framing of the scheme for the administration of the trust. It was alleged in the plaint that the appellant 's father was maintaining all accounts of income and expenditure concerning the temple and that the funds of the temple were many times advanced at interest and that the temple had come to hold large properties, movable and immovable. It was further alleged that the temple had a large income from offerings, house rent etc., but the appellant and his deceased father had not been maintaining the accounts properly and that the. funds of the temple were being advanced at interest, though no such income was shown as received recently by the appellant. The appellant, in his written statement, denied that the amount was so advanced at interest as alleged by the plaintiffs and stated that his father had been keeping a ledger in the name of the temple in the accounts in which its income and expenditure had been duly entered since over 40 years and that the appellant himself had kept separate account books for the temple since October 30, 1951. He denied that any income recently received had not been shown in the accounts. The trial Court held that the appellant had committed minor irregularities in the maintenance of the accounts, that he was liable to render accounts and that the Commissioner was to ascertain the 93 amount due from the appellant on taking the accounts. It definitely held it not established that income, if any, derived by way of interest on loans advanced out of the funds of the temple had not been credited to the account of the temple and that no instance of fraudulent or dishonest misappropriation of temple funds on the part of defendant No. 1 or his father had been established. It found that the meeting of the community had passed a resolution on August 22, 1958, by an overwhelming majority, sanctioning the accounts submitted by the appellant and that only two persons who opposed against the resolution were the two plaintiffs of the suit. The Commissioner found that on the date of the institution of the suit, i.e. on February 17, 1954, Rs. 10.088 10 3 were due for principal and Rs. 16,853 6 0 were due for interest, from the appellant. The plaintiffs admitted the report to be correct but the appellant contended that under the rule of damdupat interest exceeding the amount of principal could not be allowed. The appellants contention was accepted and the trial Court passed a decree on April 23, 1955, for Rs. 20,177 4 6 against the appellant, with future interest at 6 per cent per annum. We are not now concerned with the other items of the decree and therefore we make no reference to them. The appellant deposited the amount due under the decree on July 18, 1955. The plaintiffs appealed and claimed a larger amount on various grounds, including the one that the principle of damdupat should not have been applied and that interest on the balance of the trust fund should have been calculated and compound interest allowed in place of simple interest on the amount of the trust fund in the hands of the defendant or his father. The appellant filed a cross objection against the allowing of interest on the balance of the trust funds with his father and himself. The High Court agreed with the plaintiffs that the principle of damdupat could not be applied in the circumstances of the case and that compound interest should have been charged against the appellant. It therefore set aside the decree passed by the trial Court in so far as it determined the amount due to the temple and referred the case back to the trial Court for reassessment of the amount due to the temple having due regard to the observations made in its judgment. On an application by the appellant, certificate under article 133(1) of the Constitution was granted. The appellant has then filed this appeal and questioned the correctness of the order of the High Court holding him liable to pay compound interest and holding that the principle of damdupat was not applicable in this case. The High Court said in its judgment that it was the contention of the plaintiffs that the appellant 's father and the appellant 3(D)2SCI 8 94 used the funds of the temple in their business and that they were therefore liable to account on that footing. There was no such allegation in the plaint or in the memorandum of appeal to the High Court. The High Court referred to the khulasa submitted to the Commissioner by the plaintiffs and stated that it was specifically alleged therein that the amount was being used by the defendant and his father in business. Support for such an allegation was found in the statement Exhibit 24 of the appellant 's father in 1931. Reference was also made to the fact that the appellant had nowhere denied the fact of the moneys of the temple being used for the purpose of the business and to the non production of certain books of account by the appellant. His statement that they were not available was not accepted. The High Court recorded the finding in this form (at p. 43 of the appeal record): "Under these circumstances it would not be an unreasonable inference to draw that the amounts belonging to the temple were being utilised by Defendant No. 1 (the appellant) and before him by his father in their business." Having come to this conclusion and to the view that the position of the appellant 's father and the appellant vis a vis the temple funds was that of a trustee, the High Court considered whether the plaintiffs could claim interest on equitable grounds and held that they could claim compound interest with yearly rests, as the money had been used in the business or had been so mixed up with their own funds that it was impossible to say that they had not so used it. The High Court did not apply the rule of damdupat as the liability of the appellant was not rounded on loans or on any contract. It is contended for the appellant that there was neither an allegation nor evidence to the effect that the trust funds had been used in his business by the appellant 's father or the appellant and that therefore the appellant was not liable to pay compound interest on the trust funds in his hands or in the hands of his father. It was further urged that if interest was payable by the appellant 's father or the appellant on the balance of trust funds, it should be simple interest and the amount of interest could not be more than the amount of principal due on the date of the institution of the suit on the principle of damdupat. It has not been established in this case that the trust funds with the appellant or his father were used in their trade or business. We have already referred to the finding Of the High Court in this respect. It is a very halting finding. The High Court has not definitely held it proved that the funds were used in the business. We say so, as the High Court has said (at p. 46 of the appeal record): "Since we are of the view that the defendant No. 1 and his father have used the monies of the temple in their business or have so mixed it up with their own funds that it is impossible to say that they have not so used it . " 95 This is not a clear cut definite finding that the funds had been used in business or trade. The earlier finding noted at p. 43 of the appeal record and quoted by us earlier, loses its force in view of what has been said later. There is no evidence about such use of the money. There was no such allegation in the plaint. It was said in the khulasa dated December 22, 4954 and included in the Additional Report of the Commissioner of even date: "Because the amount that was received by the defendant in respect of the temple could be utilised by the defendant in his business he used to pay interest thereon at the rate of annas 8. " This too, is not, as stated by the High Court, a specific allegation that the amount was being used in business. The plaint did not even say that the amount had been always advanced on loan. What it said in para l is that the funds of the temple were many times advanced at interest and that no income from interest recently received had been shown in the accounts. No evidence has been led about the regular advance of the trust funds as loans. On the other hand, the accounts show only a few entries about the receipt of interest on the trust funds. The statement, Exhibit 24, made by the appellant 's father on October 26, 1931, in Regular Suit No. 377 of 1931, was in a suit instituted by the appellant 's father for the recovery of money advanced on a mortgage at compound rate of interest. Gulabchand, father of the appellant, stated in examination in chief, that the funds lent were of the temple, the transactions of the temple were in his name and that interest at compound rate had been agreed upon. In cross examination he stated that he had with him funds of the temple and that he paid for them compound interest at 8 annas. This statement does not necessarily mean that the appellant 's father had been crediting the temple accounts with compound interest, at the rate of 8 annas, on the temple funds in his hands. Gulabchand made another statement on January 12, 1950. It is exhibit 23. This statement was made in proceedings on Miscellaneous Application No. 110 of 1949. He stated: "Suit No. 377 of 1931 had been filed. In the same my deposition has been recorded. I have made a statement that the amount was of the temple. But I gave a statement to that effect as that amount has been set apart for the temple. I have given a statement that after the mortgage deed was executed and before the suit was filed, I set apart this amount for the temple and that the transaction of the temple was in my name. That statement is correct, 96 If it is the amount of the Mandir, I credit it to the Khata of the Mandir. I do not pay interest for the amount of the Mandir. As there was interest in the mortgage deed, I have taken interest at eight annas from Mangilal. I have made a statement that I have with me the amount of the temple and that I pay interest for it at eight annas. " These statements, taken together, lead to the inference that Gulabchand was not crediting interest on the temple funds in the accounts except when he received interest on the amounts lent and that this statement made in 1931 was in connection with the amount lent on a mortgage deed. He charged compound interest from the mortgagor and therefore credited that interest in the accounts. It is significant to note that the four entries about interest were for the years 1927 to 1931 when Suit No. 377 of 1931 was filed. The fact that no interest appears to have been credited after 1931 bears out the inference we derive from the statements of Gulabchand. There is another matter which throws light on this question and tends to support our conclusion. The report submitted ' by the Commissioner on November 29, 1954 shows that the balance at the beginning of samvat year 1996, corresponding to 1939 40, was Rs. 7,649 14 3. The amount credited during the year was Rs. 573 12 0 and the amount debited was Rs. 769 3 6. If the opening balance be ignored, there would be a deficit of Rs. 195 7 0 and the accounts for the samvat year 1997 opened with a debit balance of Rs. 195 7 0. This shows that the opening balance of samvat year 1996, i.e. Rs. 7,649 14 3, had been taken out of the accounts. It appears that this amount was taken over to some Bhandara account and was credited again in the temple accounts for samvat year 2009, i.e., 1952 53, after being brought out from Bhandara account. Such dealing with this amount does not appear to be consistent with its being used in business. In view of the shaky finding of the High Court about the funds being used in business by the appellant 's father or the appellant and in view of what we have said above, we hold that it has not been proved that these funds had been used in business and that therefore the appellant is not liable to pay compound interest on the balance of the trust funds with his father or himself. We may now consider whether the appellant is liable to pay simple interest on the balance of trust money with his father or himself. Two questions arise for consideration and they are whether the trustee is liable to pay simple interest on the trust capital in his hands and if he is so liable what rate of interest be charged from him in the present case. Interest can be allowed on equitable grounds only as no statutes in force during the period in suit and dealing with public charitable trusts made the trustee liable to pay 97 interest. The Indian Trusts Act does not apply to public or private religious or charitable endowments and therefore the provisions of section 23 thereof cannot be used for charging interest from the appellant trustee. The Charitable and Religious Trusts Act has no provision which provides for charging the trustee with interest. Reference may therefore be made in this connection to what is stated in para 1691 of Halsbury 's Laws of England, III Edition. 38: "Subject to this, or unless a trustee is expressly otherwise authorised or required under the terms of his trust. he must duly and promptly invest all capital trust money coming to his hands, and all income which cannot be immediately applied for the purposes of the trust; and he is liable for any loss which may result from its being improperly invested or being left uninvested for an unreasonable length of time, and for interest during the period of its being so left. " This is so because the trustee has to conduct the affairs of the trust in the same manner as an ordinary prudent man of business would conduct his own affairs. In para 1812 are set out the circumstances in which a trustee, besides being required to account for the principal trust money, can also be charged with interest on it and one of the circumstances is when the Court considers that the trustee ought to have received interest. Such could be the case when the trustee, in breach of his duty, retains the trust money in his own hands uninvested or mixes it with his own money or property. It appears from the Commissioner 's report that the trustee in this case had over Rs. 10,000 in his hands from samvat year 1988 commencing from November 10, 1931, upto February 17, 1954, when this suit was instituted. The trustee kept such a large sum uninvested for a long time extending over 22 years. The accounts show that reasonably he could not have expected to require this amount for any current purpose of the trust during these years. He should have invested the amount. His failure to do so makes him liable to pay interest. It appears from what is said in para 1814 of Halsbury 's Volume 38 that where a trustee simply fails to invest trust money which he ought to have invested or there are no other special circumstances in the case, he is in general charged simple interest at the rate of 4 per cent per annum. We consider it reasonable to charge interest at 4 per cent per annum in this case. We have now therefore to decide what had been the amount of trust funds in the hands of the appellant 's father at different times and what would be the amount due from the appellant on the date of the institution of the suit, both for principal amount of trust money and for accumulated interest with him. We do not 98 consider it desirable that the case be sent back to the trial Court for these calculations, in the light of our finding, as this litigation has been pending for over 10 years and as the accounting is to be done for a period commencing from November 10, 1931, from which date the accounts are available to the Court. The Additional Report of the Commissioner, dated December 22, 1954, shows that the amount of principal on February 17, 1954, the date on which the suit was filed, was Rs. 10,088 10 3 and that the accumulated amount of interest due on that date was Rs. 16,853 6 0 at the rate of 6 per cent per annum. The plaintiffs respondents admitted this report to be correct. The defendant also admitted the correctness of the principal amount found due by the Commissioner. He, in fact, did not even dispute that the amount of interest at 6 per cent per annum would be what has been found by the Commissioner. What he contended was that he was not liable to pay interest in excess of the amount of principal found due, in view of the rule of damdupat. In these circumstances, these figures can be accepted as correct. When the Commissioner had submitted his first report on November 29, 1954. both the parties objected to the accounts prepared by him. The defendant had objected to the Commissioner 's including a sum of Rs. 7,648 14 3 twice over in his accounts. This sum represents the balance at the close of samvat year 1995 corresponding to 1938 39. It was not taken over in the accounts for the samvat year 1996. The Commissioner, in preparing the account, took this amount into consideration without making up the accounts for the samvat year 1996. He found and noted in his accounts that the amount credited to the temple during the samvat year 2009 corresponding to 1952 53 was Rs. 9,978 5 3 and that this amount included a sum of Rs. 7,648 14 3 which had been brought from the Bhandara account. He however did not consider this sum to be the sum which had been not included in the accounts of the temple from the samvat year 1996. The learned District Judge agreed with the objection of the defendant and held that this amount had been included twice in the Commissioner 's accounts. The respondents did not dispute the correctness of this finding in the High Court and therefore we do not consider it a sound contention that this sum of Rs. 7,648 14 3 be further added to the balance found due by the Commissioner. The appellant stated that the statement of the balance in hand submitted by him to the meeting on August 22, 1953 was arrived at by adding an amount of Rs. 7,000 to the balance shown in the accounts as he had found a sum of Rs. 7,000 in a bag marked 'Dharmadya ' inside a safe. The High Court has not considered the statement of the defendant about so finding a sum of Rs. 7,000 reliable. It was not urged before the High Court, as has been urged 99 before us, that this sum of Rs. 7,000 be included in the amount of trust money in the hands of the appellant on the date of the institution of the suit. The High Court merely dealt with the complaint for the respondents that the Commissioner had not taken this sum into account for the purpose of computation of interest on funds in possession of the defendant. The High Court considered this complaint to be justified. We therefore do not accept the respondent 's contention that Rs. 7,000 be added to the balance found due by the Commissioner and hold that the High Court was in error in ordering interest to be calculated on this amount as well. According to the report of the Commissioner, the amount of interest on the principal amount of trust money in the hands of the trustee worked out to Rs. 16,853 6 0 up to February 17, 1954 at 6 per cent annum. We have held that the interest be calculated at 4 per cent per annum. If follows that at this rate the amount of interest found due by the Commissioner would be reduced to Rs. 1 I,235 9 4. The principal due on that date was Rs. 10,088 10 3. The question now arises whether the amount of interest be limited 10 the amount of principal, on the basis of the principle of Damdupat, or not. The High Court has held that the principle of Damdupat will not apply in this case. We agree with that opinion. The rule of Damdupat applies to cases where a loan is advanced. This is clear from Colebrooke 's Digest on Hindu Law. Part I, Vol. I, of the Digest deals with Contracts. Book I of this Part deals with Loans and Payment. Section I of Chapter I of Book I deals with Loans in General and describes what may or may not be loaned by whom, to whom and in what form, with the rules for delivery and receipt. These matters are comprised under the title 'loans delivered (rinadana) ', which means the complete delivery of a loan or debt by whom, where and to whom made. Chapter II deals with Interest and states at the commencement of Section I: "Such interest, as may be taken without a breach of duty on the part of the creditor, is a rule (dherma) for delivery by the creditor. Or . for it is the nature of a loan, that it should produce to the lender the principal sum advanced, and interest in addition thereto. " The various Articles in this Section use the expressions 'creditor '. 'render '. 'Joan ', 'principal ', 'lent ', 'borrowers ' and thus make it amply clear that it deals with interest on the amounts advanced by a creditor to a debtor. Section I deals with the rates of interest to be charged. Section 1I deals with Special Forms of Interest. Paragraph 53 thereof states: "Interest on money, received at once, not year by year, month by month, or day by day, as it ought, must never be more than enough to double the debt, that is, more than the amount of the principal paid at the same time. " 100 This is what is known by the rule of Damdupat and has been rightly construed, as long ago as 1863, by the Bombay High Court in Dhondu Jagannath vs Narayan Ramchandra(1). Section III deals with Interest Specially Authorized and Specially Prohibited. Article II of this Section deals with Limits of Interest. Paragraph 59 thereof states: "The principal can only be doubled by length of time, after which interest ceases. " The limit of interest is different under other paragraphs for loans advanced in different circumstances. Paragraph 61 repeats what has been stated in paragraph 53 of Section II and adds a special rule to the effect: "On grain, on fruit, on wool or hair, on beasts of burden, lent to be paid in the same kind of equal value, it must not be more than enough to make the debt quintuple. " It is therefore clear, as stated earlier, that the rule of Damdupat applies in respect of interest due on amounts lent by a creditor to the borrower, the debtor. The question then is whether the funds in the hands of a trustee can be said to be such loans nationally advanced by the trustee to himself as an individual. If their character can be deemed to be such, there may be a case for applying the rule of Damdupat to the interest on such funds and that if it is not so, this rule of Damdupat will not apply to the interest ordered to be paid on such funds. It has been urged for the appellant that the trustee is a debtor with respect to the trust money in his hands. Reference has been made to Halsbury 's Laws of England, III Edition, Vol. 38, 1044 where it is stated at para 1801: "A breach of trust is, in equity, regarded as giving rise to a simple contract debt. " In the foot note is stated: "Strictly speaking, the relation of debtor and creditor does not subsist between a trustee and his cestui que trust (per Lindley, L.J. in Lewin on 'Trusts ', 15th Edition, states at p. 745: "The debt constituted by a breach of trust is, even after it has been established by a decree, an equitable debt only, and until the Bankruptcy Act, 1869, would not have supported a petition in bankruptcy. " It was said by the Earl of Halsbury, L.C., in Sharp vs Jackson(2): "It has been suggested that there was a proposition which could be maintained, as to which I confess I entertain grave doubts whether any decision goes to that extent, namely, that the relation between a cestui que trust 101 and a trustee who has misappropriated the trust fund is not that of debtor and creditor. That it may be something more than that is true, but that it is that of debtor and creditor. 1 can entertain no doubt. As that question has been mooted and brought before your Lordships ' House as one question for decision here, I certainly have no hesitation in saying that in my opinion no such proposition can properly be maintained, and that although there are other and peculiar elements in the relation between a cestui que trust and a trustee, undoubtedly the relation of debtor and creditor can and does exist." No other Lord expressed an opinion on this point. The correctness of this expression of the Earl of Halsbury has been doubted in Lake, in re. Dyer, Ex Parte( ') by Rigby L.J., who remarked at the hearing: "How is a trustee a debtor '? Can he be sued at common law '? I do not see how he can be a 'debtor ', for the money he is fraudulently dealing with is, at law, his own money. No doubt he can be called upon to replace the money, but that must be by a suit in equity, not at law. Notwithstanding the high authority of the statement that has been referred to, I confess I do not understand it. " We are of opinion that though a trustee., who has custody of trust funds, has a pecuniary liability to make good those funds if he has used them and may, on the basis of such a liability, be said to be a debtor of the trust, yet he, as an individual, is not a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds. His liability to pay interest, when ordered by the Court on equitable grounds, does not come within the provisions dealing with interest in Hindu Law, as mentioned in Colebrooke 's Digest. There is no fixed rate of interest which a trustee be liable to pay as there is no contract between him as a trustee and as an individual to pay interest. He simply uses the money in his custody. It is only when the Court determines his liability to pay interest that interest is to be calculated on the principal amount due from him. It is not the case of a creditor letting interest accumulate and thus make the debtor pay interest much more than what he had borrowed as principal. The principle of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at one and the same time in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realising the debt from the borrower within reasonable time so that there be not such accumulation of interest as would be in excess of the principal amount due, as in that case he would have to forego the excess amount. There may be justification for the (1) ,715. 102 principle of Damdupat applying in the case of an ordinary creditor and a debtor, but there seems no justification for extending that principle to the case of a trustee who has to pay interest on the funds in his hand with respect to which on certain grounds he is held liable to pay interest. We therefore hold that the rule of Damdupat will not apply with respect to the interest adjudged payable by a trustee on his committing breach of trust with respect to the trust funds in his hands . The result then is that the appellant is liable to pay Rs. 10,088 10 3 for principal and Rs. 11,235 9 4 as interest, upto the date of the institution of the suit, i.e. upto February 17, 1954. We therefore allow the appeal, set aside the decree of the High Court and modify the decree of the trial Court accordingly. The result will be that the suit temple will be entitled to get from defendant No. 1 a sum of Rs. 21,324 3 7 upto the date of the suit, together with future interest at 4 per cent per annum on Rs. 10,088 10 3 from the date of the suit till the date of payment. The appellant will bear his costs throughout. The costs of the respondents will come out of the estate. Appeal allowed.

A Samaradhanai Fund was started for the purpose of feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam (in Madras State) on the occasion of Rathotsavam festival. On the enactment of the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 the Deputy Commissioner of Hindu Religious and Charitable Endowments initiated proceedings under section 57(d) of the Act and held that the aforesaid fund was a religious charity ' within the meaning of section 6(13) of the Act. His order was upheld by the Commissioner. The Trustees of the Fund then filed a suit to set aside the order of the Commissioner contending that the Samaradhanai Fund was neither a public charity nor a religious charity '. In section 6(13), 'religious charity ' is defined as a "public charity associated with a Hindu festival or observance a religious character, whether it be connected with a math or temple or not". The trial court decided against the trustees but the High Court held in their favour. According to the High Court feeding the Brahmins was a public charity but it was not a 'religious charity in as much as those who conducted the celebration of the Rathotsavam at the shrine had no control over the feeding of Brahmins out of the Samaradhanai Fund. On appeal to the Supreme Court by the Commissioner, with special leave. HELD: Feeding of Brahmins out of the Samaradhanai fund was associated with the celebration of the Rathotsavam at the Venkatachalapathiswami shrine. The expression "associated" in section 13 of Act 19 of 1951 is used having regard to the history of the legislation the scheme and objects of the Act and the context in which it occurs, as meaning "being connected with" or "in relation to". The expression does not import any control by the authorities who manage or administer the festival. There are many Hindu festivals which are celebrated by the public generally without any connection with any temple or math. The definition of "religious charities" includes such general festivals and observances. It cannot be said that there must always be a set of persons who control the celebration of a festival or an observance. F171 D G] Nor can it be contended that the expression "associated with a Hindu festival or observance of a religious character" in the definition of "religious charity" implies that the public charity must be an integral part of the Hindu religious festival or observance. There is nothing in the Act which indicates any such intention on the part of the legislature. [171 H]

l Appeal No. 135 of 1958. Appeal from the judgment and order dated 114 394 September 4, 1956, of the Punjab High Court in Civil Writ Case No. 325 of 1965. N. A. Palkhivala and J. B. Dadachanji, for the appellant. C. K. Daphtary, Solicitor General of India, K. N. Rajagopal Sastri and D. Gupta, for the respondents. September 27. The Judgment of the Court was delivered by HIDAYATULLAH J. The appellant firm, L. Hazarimal Kuthiala of Kapurthala, moved the High Court of Punjab under article 226 of the Constitution for writs of prohibition, certiorari, quo warranto etc., against the Income tax Officer, Special Circle, Ambala and the Commissioner of Income tax, Punjab (1), Himachal Pradesh, Bilaspur and Simla in respect of reassessment of the income of the firm for the account year, 1945 1946. The High Court dismissed the petition, but granted a certificate under articles 132 and 133 of the Constitution, and this appeal has been filed on that certificate. The firm carried on business as forest lessees and timber merchants at Dhilwan in the former Kapurthala State. In that State, an Income tax law was in force, and prior to the integration of the State, on April 10, 1947, the income of the firm for the account year 1945 1946 (Samvat. 2002) was duly assessed, and the tax was also paid. Subsequently, political changes took place, Kapurthala integrated into what was known as Pepsu, and the Rajpramukh issued two Ordinances in Samvat. 2005, by which all laws in force in Kapurthala including the Income tax law ceased to be operative from August 20, 1948. The two Ordinances instead applied laws in force in the Patiala State to the area of the new State which included Kapurthala, and the Patiala Income tax Act, 2001, came into force. Later still, the Indian Finance Act, 1950 (26 of 1950), applied the Indian Income tax Act to the Part B States, which had emerged as a result of political changes. Section 13 of the Indian Finance Act, 1950, repealed the Income tax laws obtaining in the area of the Part B States except for the purposes 895 of levy, assessment and collection of income tax and super tax in respect of the period defined therein. On March 12, 1955, the Income tax Officer, Special Circle, Ambala, issued a notice purporting to be under section 34 of the Patiala Income tax Act of Samvat. 2001 to the appellant firm calling upon it to file a return of its income and total world income, because he had reason to believe that the income had been underassessed. Previous to this, on November 4, 1953, the Commissioner of Income tax, Punjab (1), Himachal Pradesh, Bilaspur and Simla, purporting to act under section 5, sub sections (5) and (7A) of the Indian Income tax Act, ordered that the assessment of the appellant firm would be done by the Income tax Officer, Special Circle, Ambala and not by the Income tax Officer, B Ward, Patiala, who ordinarily would be the competent authority under section 64 of the Indian Income tax Act to assess the appellant firm. The appellant firm raised objections, but failed, and then filed the petition under article 226 of the Constitution, out of which the present appeal arises. Numerous objections were taken in respect of the competency of the proceedings before the taxing authorities, but some of them are no longer pressed. An argument under article 14 of the Constitution has now been abandoned, though it figured at earlier stages of the present case. A second point that the reassessment cannot be made under the Patiala In. come tax Act is not in dispute, because the respondents before us stated that the reassessment, if any, would have to be done in accordance with the Kapurthala law, as it existed in the assessment year (Samvat. 2002). A third argument, namely, that the words of section 13 of the Indian Finance Act, 1950, did not include reassessment, has also been abandoned, in view of the decisions of this Court in Lakshmana Shenoy vs The Income, tax Officer, Ernakulam (1) and The Income tax officer, Bangalore vs K. N. Guruswamy (2). Only one point has been pressed before us, and it is that the Income Tax Officer, Special Circle, Ambala, had no jurisdiction to issue a notice under section 34, and (1) [1959] S.C.R. 751. (2) ; 896 that only the Income tax Officer, B Ward, Patiala, was the competent authority. Reliance is placed in this connection upon the provisions of section 64(1) of the Indian Income tax Act, under which the locally situated Income tax Officer would have had jurisdiction in this case. The transfer of the case by the Commissioner of Income tax by his order dated November 4, 1953, is characterised as ultra vires and incompetent, and it is this argument alone to which we need address ourselves in this appeal. The Patiala Income tax Act contained provisions almost similar to sections 5(5) and 5(7A) of the Indian Income tax Act. Sub section (5) differed in this that the Commissioner of Income tax was required to consult the Minister in charge before taking action under that sub section. The only substantial difference in the latter sub section was that the Explanation which was added to section 5(7A) of the Indian Income tax Act as a result of the decision of this Court in Bidi Supply Co. vs Union of India (1) did not find place in the Patiala Act. The Commissioner, when he transferred this case, referred not to the Patiala Income tax Act, but to the Indian Income tax Act, and it is contended that if the Patiala Income tax Act was in force for purposes of reassessment, action should have been taken under that Act and not the Indian Income tax Act. This argument, however, loses point, because the exercise of a power will be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory. This principle is wellsettled. See Pitamber Vajirshet vs Dhandu Navlapa(2). The difficulty, however, does not end there. The Commissioner, in acting under section 5(5) of the Patiala Income tax Act, was required to consult the Minister in charge. It is contended that the Central Board of Revenue which, under the Indian Finance Act, 1950, takes the place of the Minister in charge was not consulted, and proof against the presumption of regularity of official acts is said to be furnished by the fact that under the Indian law no such consultation was necessary, and the Commissioner, having purported (1) [1056] S.C.R. BOM. 486, 489. 897 to act under the Indian law, could not have felt the need of consultation with any higher authority. This, perhaps, is correct. If the Commissioner did not act under the Patiala law at all, which enjoined consultation with the Minister in charge and purported to act only under the Indian law, his mind would not be drawn to the need for 'Consultation with the Central Board of Revenue. Even so, we do not think that the failure to consult the Central Board of Revenue renders the order of the Commissioner ineffective. The provision about consultation must be treated as directory, on the principles accepted by this Court in State of U. P. vs Manbodhan Lal Srivastava (1) and K. section Srinivasan vs Union of India (2). In the former case, this Court dealt with the provisions of article 320 3)(c) of the Constitution, under which consultation with the Union Public Service Commission was necessary. This Court relied upon the decision of the Privy Council in Montreal Street Railway Company vs Normandin (3), where it was observed as follows: ". . The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Ed., p. 596 and the following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. " The principle of the Privy Council case was also applied by the Federal Court in Biswanath Khemka vs The King Emperor (4), and there, as pointed out by this (1) [1058] S.C. R. 533. (3) ; (2) ; , 1321. (4) 898 Court, the words of the provision were even more emphatic and of a prohibitory character. The essence of the rule is that where consultation has to be made during the performance of a public duty and an omission to do so occurs, the action cannot be regarded as altogether void, and the direction for consultation may be treated as directory and its neglect, as of no consequence to the result. In view of what has been said in these cases, the. failure to consult the Central Board of Revenue does not destroy the effectiveness of the order passed by the Commissioner, however wrong it might be from the administrative point of view. The power which, the Commissioner had, was entrusted to him, and there was only a duty to consult the Central Board of Revenue. The failure to conform to the duty did not rob the Commissioner of the power which he exercised, and the exercise of the power cannot, therefore, be questioned by the assessee OD the ground of failure to consult the Central Board of Revenue, provision regarding which must be regarded as laying down administrative control and as being directory. Learned counsel, however, contends that even if all this be decided against him, he is still entitled to show that the transfer of the case can only take place under sub section (7A) of section 5 and not under sub section According to him, the former subjection deals with the transfer of individual cases, and that inasmuch as there was no pending case at the time, then, as was ruled by this Court in the Bidi Supply case (1), the transfer could not be valid. In the absence of an Explanation similar to the one added to the Indian Income tax Act, he contends that a case which was not pending, could not be transferred under sub section He contends also that sub section (5) deals not with the transfer of individual cases but with the distribution of work. The two sub sections of section 5 of the Patiala Income tax Act read as follows: " (5) Income tax officers shall perform their functions in respect of such persons or classes of persons or of such incomes or classes of income or in respect of (1) ; 899 such areas as the Commissioner of Income tax may in consultation with the Minister Incharge direct, and, where such directions have assigned to two or more Income tax Officers, the same persons or classes of persons or the same incomes or classes of income or the same area, in accordance with any orders which the Commissioner of Income tax may in consultation with the Minister Incharge make for the distribution and allocation of work to be performed. The Minister Incharge may, with the previous approval of the ljlasi Khas, by general or special order in writing, direct that the powers conferred on the Income tax Officer by or under this Act shall, in respect of any specified case or class of cases, be exercised by the Commissioner, and, for the purposes of any case in respect of which such order applies, references in this Act or in any rules made hereunder to the Income tax Officer shall be deemed to be references to the Commissioner. (7A) The Commissioner of Income tax may transfer any case from one Income tax Officer subordinate to him to another, and the Minister Incharge may transfer any case from any one Income tax Officer to another. Such transfer may be made at any stage of the proceedings, and shall not render necessary the re issue of any notice already issued by the Income tax Officer from whom the case is transferred. " There can be no doubt that sub section (7A) authorises ,the Commissioner to transfer individual cases. The words " any case from one Income tax Officer subordinate to him to another ", " such transfer may be made at any stage of the proceedings " etc., clearly indicate this. Sub section (7A) is, however, not applicable here, because in respect of the cognate sub section of the Indian Income tax Act it was ruled by this Court that it could apply to a pending case only. It was to overcome this lacuna that the Explanation was added by the Indian Parliament. This amendment came in 1956, and the Patiala Act did not include a similar Explanation, because prior to 1956 the question had not arisen. There is one other difference between the Patiala Act and the Indian Act. Whereas sub section (7A) was introduced in the Indian Act by an 900 amendment, the corresponding sub section was enacted at the same time as the rest of the Patiala Act. Now, it is quite clear that a case which was not pending at the time of transfer could not be transferred under sub section (7A) of section 5 of the Patiala Act. The same reasoning must be applied to that subsection, as it was applied to the Indian Act. Learned counsel referred us to an affidavit by the Under Secretary, Central Board of Revenue, reproduced in Pannalal Binjraj vs Union of India (1), which stated the reason for the introduction of sub section It is a little difficult to accept the affidavit as an aid to find out the intention why a particular law or amendment was enacted, more so where the affidavit concerns quite another Act of a different legislature. It is, however, pertinent to remember that sub section (7A) expressly gave the power to transfer pending cases, but said nothing about cases which were riot pending. The power to transfer such cases before they came into being must, therefore, be found in some other enactment. The Department contends that it would fall within sub section (5) of section 5, and points out that this Court was not required to consider that sub section, because the transfer of the cases dealt with in the Bidi Supply case (2) was by an authority not named in sub section (5) and therefore the transfer in those instances could not be held to be under that sub section. The Department contends that the Commissioner of Income tax is mentioned both in sub section (5) and sub section (7A) and could derive his power from one or the other or both. The short question thus is whether an individual case which was not a pending case could be transferred from one Income tax Officer to another under sub section (5) of section 5 of the Patiala Act, which was kept alive for assessment and reassessments relating to previous assessment years. Mr. Palkhivala argues that the words of the sub section " such persons or classes of persons or of such incomes or classes of income or in respect of such areas " denote, by the plural employed, a dealing with a group rather than (1) ; 246. (2) ; 901 an individual case. He further contends that if individual cases were held to be included in sub section (5), then sub section (7A) would be unnecessary and otiose. He argues that harmonious construction thus requires that the two sub sections must be taken to cover different situations. The last argument is hardly open after the decision of this Court adverted to already. If pending cases alone were within sub section (7A), those cases which were not pending could not be said to have been provided for, there. There is thus no overlapping at least in so far as cases not pending were concerned. An arrangement for their disposal would be a subject of distribution of work and nothing much turns upon the employment of the plural number, because the plural includes the singular. Indeed, a single case might well be in a class separate from others. Duplication of powers is sometimes noticeable in statutes, and does not destroy the effectiveness of the powers conferred. Section 24 of the Civil Procedure Code dealing with transfers of cases and the provisions of the Letters Patent of the High Court are instances in point. If a particular action is valid under one section, it cannot be rendered invalid because the identical action can also be taken under another section, and it makes no difference if the two empowering provisions are in the same statute. In any event, sub section (7A) would cut down sub section (5) only to the extent the former provides, and it has been held that it was confined to pending cases only. Sub section (5) was thus available for cases which were not pending, and the case which was 'the subject matter of the Commissioner 's order was not a pending case. Mr. Palkhivala contends that sub section (5) merely enables distribution of work, and does not deal with transfers. But where a case is not pending, an order relating to it may take the form of transfer or an arrangement for its disposal. There is nothing to prevent the Commissioner, acting under sub section (5), to arrange that the case of an assessee shall be disposed of by a particular Income tax Officer. The words of 115 902 sub section (5) that " Income tax Officers shall perform their functions in respect of such persons as the Commissioner may direct " only show that the Commissioner may direct that one Income tax Officer shall not and another Income tax Officer shall, perform the functions in respect of such and such person or persons. The plural including the singular, the order of the Commissioner was valid, because he arranged and distributed work, and did not seek to transfer any case. It is, however, contended that this renders sub section (7A) otiose. In our opinion, it does not. Special provision for transfer of pending cases is all that is provided there, and if such a transfer takes place, the provisions of sub section (7A) will be invoked. Those provisions are to be read as not pre judicing the general powers granted by sub section (5) and vice versa. For these reasons, the appeal fails, and will be dismissed with costs. Appeal dismissed.

The respondent delivered certain sums of money to the appellant bank at Lahore for transmission to Calcutta, with instructions to await his directions regarding the opening of accounts for keeping the money in fixed deposit in the Calcutta Branch of the bank which was proposed to be opened in the near future. The respondent did not however give any instruction for opening any account, fixed deposit or otherwise in regard to the amounts after they reached Calcutta. Within a few days after the opening of the Calcutta branch of the bank it ceased making payments and a moratorium for a limited period was declared under an ordinance issued by the Governor General restraining the bank from making payments to its depositors. After the expiry of the period of the moratorium the Calcutta branch of the bank raised objections to the respondent 's application for withdrawal of the amount 218 whereupon the respondent filed a suit in the Calcutta High Court for a decree for refund of the amount. During the pendency of the suit the High Court of East Punjab sanctioned a scheme under sections 153 and 153A of the Indian Companies Act, 1913 for settlement of the liabilities of the Bank. The courts below decreed the respondent 's suit. On appeal by the bank by special leave, the questions which arose for decision were whether the bank was a trustee for transmission of the amounts to Calcutta and whether in the absence of any instruction for opening a fixed deposit account the bank was liable to refund the full amount or a reduced amount according to the scheme sanctioned by the Punjab High Court. ^ Held, that when a person dealing with a bank delivers money to the bank an intention to create a relation of creditor and debtor between him and the bank is presumed, but the presumption may be rebutted by proof of special instructions. When money is paid to a bank with special instructions to retain the same pending further instructions, a trust is created and the presumption which ordinarily arises by reason of payment of money to the bank is rebutted. Held, further, that the money delivered by the Respondent remained in trust with the bank and was not held by it as a deposit subject to any scheme for the settlement of the liabilities of the bank sanctioned by the High Court under the Companies Act. The Official Assignee, Madras vs Natesam Pillai, I.L.R. , Arbuthnot vs D. Rajan Ayyar, I.L.R. and Farley vs Turner, , applied.

Civil Appeal No. 2411 of 1978. Appeal by Special Leave from the Judgment and order dated 26 7 1978 of the Karnataka High Court in Writ Petition No. 10203/ 77. And ORIGINAL JURISDICTION: Writ Petitions Nos. 4473 4474, 4415, 4488, 4528, and 4539 of 1978. (Under Article 32 of the Constitution). D G. B. Rikar, K. R. Nagaraja and Mrs. Gayathri Balee for the Petitioner (In WP. 4473 4474, 4488, 4539/78). R. B. Datar and Navin Sinha for the Petitioner (In WP. 4415 and 4528 and for Appellant in CA 2411/78). V. A. Sayield Mohammad and N. Nettar for the State of Karnataka and for Respondent No. 3 in WPs. 4473 4474, 4488, 4528 and 4539 and C.A. 2411/78. L. N. Sinha, Attorney General, K. K. Venugopal, Additional Solicitor General, V. A. Sayied Mohammad and Vineet Kumar for Karnataka State Road Transport Corporation (in All W.P.s & C.A.). It would, therefore, be convenient to dispose them of by this common judgment. The short question involved in these cases is, whether the employees of the erstwhile contract carriage operators in the State of Karnataka acquired a vested right of absorption in service with the Karnataka State Road Transport Corporation under sub cl. (3) to cl. 20 of the Karnataka Contract Carriages (Acquisition) ordinance 1976. 688 It will be convenient to refer in the first place to the legislative changes. On January 30, 1976 the Karnataka Contract Carriages (Acquisition) ordinance, 1976 was promulgated by the Governor of Karnataka under cl. (1) of article 213 of the Constitution. The said ordinance was promulgated with the object of acquiring contract carriages operating in the State and for certain matters connected therewith. On the same day, i.e., on January 30, 1976 the State Government issued a notification under cl. 4(1) of the ordinance vesting every contract carriage owned or operated by such contract carriage operator, along with permit, in the State Government absolutely free from all encumbrances. On the same day, the State Government made an order under sub cl. (1) to cl. 20 of the ordinance transferring all the contract carriages that vested in the State Government under the notification issued under sub cl. (1) to cl. 4 of the ordinance, to the Karnataka State Road Transport Corporation (hereinafter referred to as 'the Corporation '). Sub clause (3) to cl. 20 of the ordinance provided for absorption of certain categories of employees of contract carriage operators in the service of the Corporation. It also provided the ratio for absorption for different categories of employees that were entitled to be absorbed in the service of the Corporation. The ordinance was subsequently replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976, Which was published in the gazette on March 12, 1976. The ordinance was repealed by the Act, and it re enacted the provisions of the repealed ordinance, with a saving clause in sub section (2) of section 31, for preservation of anything done or action taken. The Act was substantially in similar terms except for the difference that the ratio prescribed by proviso to sub cl. (3) to cl. 20 of the ordinance, which laid down the categories of persons who could be absorbed in the service of the Corporation, was substantially altered and a new ratio was inserted in the proviso to sub section (3) of section 19 of the Act. Otherwise, sub section (3) of section 19 of the Act and sub cl. (3) to cl. 20 of the ordinance were identical in every respect. Under proviso to sub cl. (3) to cl. 20, the total strength of the employees of the erstwhile contract carriage operators allowable for absorption was 7.9 per vehicle, while under proviso to sub section (3) of section 19 of the Act the same works out to 4.45 per vehicle. Further, while under the ordinance conductors were entitled to be absorbed, the ratio provided under the Act shows that conductors are not included in the categories of persons who can be absorbed in the service of the Corporation. 689 It appears that although as many as 785 contract carriages were A notified for acquisition, only 601 vehicles were actually acquired. The change in the ratio of absorption from 7.9 per vehicle under sub cl. (3) to cl. 20 of the ordinance to 4.45 per vehicle under sub section (3) of section 19 of the Act adversely affected a large number of employees of the erstwhile contract carriage operators. A large number of writ petitions were, therefore, filed in the High Court challenging the vires of the proviso to sub section (3) of section 19 of the Act on various grounds, but by the judgment under appeal the High Court has repelled all the contentions. Thereafter, the remaining writ petitions were all withdrawn. The appeal is against the judgment of the High Court and the employees have also directly approached the Court under article 32. Before dealing with the contention advanced in the appeal, it is necessary to set out the relevant provisions. Sub clause (3) to cl. 20 of the ordinance read as follows: "20.(3) Every person who is a workman within the meaning of the (Central Act 14 of 1947) and has been immediately before the commencement of this ordinance exclusively employed in connection with the acquired property, shall ', on and from the notified date, become an employee of the corporation on the same terms and conditions applicable to the employees holding corresponding posts in the corporation. Any person not willing to become such an employee of the corporation shall be entitled to retrenchment compensation as provided in the : Provided that the number of workmen that shall become employees of the corporation under this sub section shall not exceed the following scale, the junior most being excluded: Scale per vehicle 1. Drivers . . 1.5 2. Conductors . 2.65 3. Supervision . 0.125 4. Higher Supervision staff and Managers . 0.075 5. Ministerial and Secretariat staff . 0.8 6. Technical staff including Foreman . 2.75 690 Sub section (3) of section 19 of the Act, which replaced sub cl. (3) to cl. 20 of the ordinance, provides: "19.(3) Every person who is a workman within the meaning of the (Central Act 14 of 1947) and has been immediately before the commencement of this Act exclusively employed in connection with the acquired property, shall, on and from the notified date, become an employee of the corporation on the same terms and conditions applicable to the employees holding corresponding posts in the corporation. Any person not willing to ' become such an employee of the Corporation shall be entitled to retrenchment compensation as provided in the . Provided that the number of workmen that shall become employees of the Corporation under this sub section shall not exceed the following scale, the junior most being excluded: Scale per vehicle 1. Drivers . . . 1.5 2. Supervision staff and managers . 0.1 3. Ministerial and Secretariat Staff. 0.1 4. Technical staff including foreman. 2.75 4.45" The saving clause to be found in sub section (2) of section 31 of the Act, so far as material, runs thus: "31 (2) Notwithstanding such repeal: (i) anything done or any action taken under the said ordinance, shall be deemed to have been done or taken under the corresponding provisions of this Act. " It is strenuously argued that it is clear from the language of subcl. (3) to cl. (20) of the ordinance that there was, by operation of law, automatic absorption of the employees of the erstwhile contract carriage operators to the extent provided therein with effect from January 30, 1976, the date on which the notification was issued under sub cl. (1) to cl. 4 and the date on which the Government made an order under sub cl. (1) to cl. 20. It is submitted that the words "shall become an employee of the Corporation", ill sub cl. (3) to cl. 20 are clear and unambiguous and they must result in the consequence that all persons employed in connection with the acquired 691 contract carriages, became employees of the Corporation. It is said A that, though the process of absorption may take time, as and when the necessary steps were taken to fit in such employees falling within the categories mentioned in the proviso to sub cl. (3) to cl. 20, their absorption relates back to the notified date, i.e. January 30, 1976. In other words, the submission was that the legal effect of absorption of such ' employees under sub cl. (3) to cl. 20 of the ordinance is automatic. That being so, their right of absorption could not be whittled down by the subsequent enactment of the new proviso to sub section (3) of section 19 of the Act, inasmuch as they had acquired a vested right to absorption in the ratio mentioned in sub cl. (3) to cl. 20 of the ordinance. C The ordinance promulgated by the Governor in the instant case was a 'legislative act ' of the Governor under article 213(1) and, therefore, undoubtedly a temporary statute, and while it was still in force the Repealing Act was passed containing the saving clause in section 31(2) (i) providing that, notwithstanding such repeal, 'anything done ' or any 'action taken ' under the repealed ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act. The enquiry is, therefore, limited to the question whether anything was done or action taken under the repealed ordinance. If that be so, a further question arises on the submission whether the words 'things done ' in section 31 (2) (i) reasonably interpreted can mean not only things done but also the legal consequences flowing therefrom. In considering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule. It certainly requires very clear and unmistakable language in a subsequent Act of the legislature to revive or re create an expired right. If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. In order to see whether the rights and liabilities under the repealed ordinance have been put an end to by the Act, 'the line of enquiry would be not whether ', in the words of Mukherjea J. in State of Punjab vs Mohar Singh(1), 'the new Act expressly keeps alive old rights and liabilities under the repealed ordinance but whether it manifests an intention to ' destroy them '. Another line of approach may be to see as to how far the new Act is retrospective in operation. It is settled both on principle and authority, that the mere right existing under the repealed ordinance, to take advantage of the pro 11 visions of the repealed ordinance, is not a right accrued. Sub section 692 (2) of section 31 of the Act was not intended to preserve abstract right conferred by the repealed (ordinance. The legislature has the competence to so re structure the ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services. It could re enact the ordinance according to its original terms, or amend or alter its provisions. What were the 'things done ' or 'action taken ' under the repealed ordinance ? The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub cl. (3) to cl. 20. The employees of the former contract carriage operators in normal course filled in the pro form giving their service particulars and reported to duty. This was in the mere 'hope or expectation ' of acquiring a right. The submission of these 'call reports ' by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. As a matter of fact, nothing was done while the ordinance was in force. The Act was published on March 12, 1976. on May 29, 1976, the Corporation sent up proposals for equation of posts to be filled in by the employees of the former contract carriage operators. The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter se seniority, met on June 2, 1976. The Committee decided that even in the case of helpers cleaners, there should be a 'trade test ' and ' the staff cleared by the Committee for the posts of helper 'B ' helper 'A ' and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators who were, eligible for absorption, should be interviewed by that p Committee for the purpose of absorption on the basis of experience, ability, duties and responsibilities. These norms were not laid down till June 2, 1976. Till their actual absorption, the employees of the erstwhile contract carriage operators had only an incohate right. The distinction between what is, and what is not a right preserved by the provisions of section 6 of the General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of ', or liberty to apply for, acquiring a right. In Director of Public Works vs Ho Po Sang( ') Lord Morris speaking for the Privy Council observed: "It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, some 693 investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether so to right should be or should not be given. On a repeal the former is preserved by the Interpretation Act. The latter is not." (Emphasis supplied) It must be mentioned that the object of section 31(2) (i) is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforced. Further, it is significant to notice that the saving clause that we are considering in section 31(2) (i) of the Act, saves things done while the ordinance was in force; it does not purport to preserve a right acquired under the repealed ordinance. It is unlike the usual saving clauses which preserve unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. It is also clear that even section 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute. Employees in excess of the scale prescribed for the categories specified under proviso to sub section (3) of section 19 of the Act are clearly not entitled for absorption. Though sub cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it does not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning of the ; (2) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub cl. (3) to cl. 20. The whole object of inserting sub cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicants. It is necessary to mention that cl. 5 of the Ordinance, which corresponds to section 5 of the Act, provided that every contract carriage 8 625SCI/79 694 operator shall within 15 days from the notified date or within such further time as the State Government may allow, furnish to the State Government or any officer authorised by it in this behalf, complete particulars among others of persons who were in their employment immediately before the notified date. It was only after such information was received that steps had to be taken for the purpose of ascertaining as to who were entitled to be absorbed in the service of the Corporation in accordance with sub cl. (3) to cl. 20 of the ordinance. The authorities after collecting the necessary information had to determine not only the corresponding posts to which the erstwhile employees of the contract carriage operators could be absorbed in the service of the Corporation but also their relative seniority, for the purpose of excluding the employees who were in excess of the scale for the purpose of absorption. As sub cl. (3) to cl. 20 itself provides that a person who is not willing to become an employee of The Corporation is entitled to retrenchment compensation as provided for in the , the authorities were also required to ascertain as to whether the employee, who was entitled to be absorbed in service, was willing to become an employee of the Corporation or not. It was only if the employee was willing to be absorbed in the service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub cl. (3) to cl. 20 were satisfied. Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub cl. (3) to cl. 20 of the ordinance. The very fact that all these Various steps were necessary to be taken, which necessarily takes time, shows that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore, stepped in and reduced the scale of absorption in the proviso to sub section (3) of section 19 from 7.9 per vehicle to 4.45 per vehicle. This is, in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of 695 the Corporation by virtue of sub cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken away by the proviso to sub section (3) of section 19. Even if contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub section (1) of section 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a 'new ' proviso in sub section (3) of section 1 in place of the old proviso to sub cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub cl. (3) to cl. 20 laying down a particular ratio of absorption, is pro tanto avoided by an express enactment of a 'new ' proviso to sub section (3) of section 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected. In the result, the appeal as well as the writ petitions must fail and are dismissed. There shall be no order as to costs. N.V.K. Appeal and Petitions dismissed.

The Karnataka Contract Carriage (Acquisition) ordinance, 1976 was promulgated on January 30, 1976 with the object of acquiring the contract carriages operating in the State. Sub clause (3 ) to cl. 20 of the ordinance provided for absorption of certain categories of employees of contract carriage operators in the service of the Corporation, and the ratio for absorption for the different categories of employees that were entitled to be absorbed. On the same day, the State Government made an order under sub cl. (I) to cl. 20 of the ordinance transferring the contract carriages that vested in the State Government to the Karnataka State Road Transport Corporation. This ordinance was subsequently replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976 which was published in the Gazette dated March 12, 1976. The ordinance was repealed by the Act, which re enacted the provisions of the repealed ordinance, with a saving clause in sub section (2) of section 31 for presentation of any thing done or any action taken. The Act was substantially in similar terms, except for the difference that the ratio prescribed by proviso to sub cl. (3) to cl. 20 of the ordinance which laid down the categories of persons who could be absorbed in the service of the Corporation, was substantially altered and a new ratio was inserted in the proviso to sub section (3) of section 19 of the Act. Otherwise, sub section (3) of section 19 of the Act and sub cl. (3) to cl. 20 of the ordinance were identical in every respect. Under the Proviso to sub cl. (3) to cl. 20, the total strength of the employees of the erstwhile Carriage operators allowable for absorption was 7.9 per vehicle while under the proviso to sub section (3) of section 19 of the Act, the ratio worked out to 4.45 per vehicle. Further, while under the ordinance, conductors were entitled to be absorbed, the ratio provided under the Act showed that conductors were not included in the categories of persons who could be absorbed in the service of Corporation. The change in the ratio of absorption from 7.9 per vehicle under. sub cl. (3) to cl. 20 of the ordinance to 4.45 per vehicle under sub section (3) of section 19 of the Act adversely affected a large number of employees of the erstwhile contract carriage operators who filed writ petitions in the High Court, 685 challenging the vires of the proviso to sub section (3) of section 19 of the Act, which dismissed the writ petitions. In the appeal and the writ petitions to this Court the question for consideration was, whether the employees of the erstwhile contract carriage operators in the State of Karnataka acquired a vested right of absorption in the service with the Karnataka State Road Transport Corporation under sub cl. (3) to cl. 20 of the Karnataka Contract Carriage (Acquisition) ordinance 1976. Dismissing the appeal and writ petitions; ^ HELD: 1. The High Court rightly observed that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub cl. (3) to cl. 20. [692 C] 2. The ordinance promulgated by the Governor in the instant case was a 'legislative act ' of the Governor under article 213(1) and, therefore, undoubtedly a temporary statute, and while it was still in force the repealing Act was passed containing the saving clause in section 31(2)(i) providing that, notwithstanding such repeal, 'anything done ' or any 'action taken ' under the repealed ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act. [691 C D] 3. In considering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule. It requires very clear and unmistakable language in a subsequent Act of the legislature to revive or re create an expired right. If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. In order to see whether the rights and liabilities under the repealed ordinance have been put an end to by the Act, 'the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities under the repealed ordinance but whether it manifests an intention to destroy them. Another line of approach may be to see as to how far the new Act is retrospective in operation. [691 F G] State of Punjab vs Mohar Singh, ; , referred to 4. (i) Sub section (2) of section 31 of the Act was not intended to preserve abstract rights conferred by the repealed ordinance. The legislature had the competence to so re structure the ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services. It could re enact the ordinance according to its original terms, or amend or alter its provisions. [692 A] (ii) When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore stepped in and reduced the scale of absorption in the proviso to sub section (3) of section 19 from 7.9 per vehicle to 4.45 per vehicle. [694G] 5. The object of section 31(2)(i) is to preserve only the things done and action taken under the repeated ordinance and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability 686 incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforced. It is unlike the usual saving clauses which presented unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. [693 C, D] 6. (i) Every person eligible for absorption had to fulfil three conditions, viz., (1) he had to be a workman within the meaning of the ; (2) he should have been, immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub cl. (3) to cl. 20. The whole object of inserting sub cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment, for which purpose, the Corporation had necessarily to screen the applicants. [693 G] (ii) It was only if the employee was willing to be absorbed in the service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub cl. (3 ) to cl. 20 were satisfied. [694 E] (iii) Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub cl. (3) to cl. 20 of the ordinance, which indicates that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. [694 F] 7. The distinction between what is and what is not a right presented by the provisions of section 6 of the General Clauses Act. is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of ', or liberty to apply for acquiring a right. [692 G] Director of Public Works vs Ho Po Sang, [1962] 2 All. ER 721 PC, referred to. The Act substitutes a 'new ' proviso in sub section (3) of section 19 in place cf the old proviso to sub cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it holds the field from the notified date i.e., January 30, 1976. The proviso in subcl. (3) to cl. 20 laying down a particular ratio of absorption, is pro tanto avoided by an express enactment of a 'new ' proviso to sub section (3) of section 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected. [695 C] 9. (i) The employees of the former contract carriage operators in normal course filled in the pro forma giving their service particulars and reported to duty. This was in the mere 'hope or expectation ' of acquiring a right. The submission of these 'call reports ' by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. [692 C] (ii) The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter sc seniority, met on June 2, 1976. The Committee decided that even in the 687 case of helpers cleaners, there should be a 'trade test ' and the staff cleared by the Committee for the posts of helper 'B ', helper 'A ' and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators, who were eligible for absorption, should be interviewed by that Committee for the purpose of absorption on the basis of experience, ability duties and responsibilities. These norms were not laid down till June 2, 1976 Till their actual absorption, the employees of the erstwhile contract carriage operators had only an inchohate right. [692 E F]

Special Leave Petition (Civil) Nos. 6887 88 of 1987. From the Judgment and Order dated 5.2. 1987 of the Andhra Pradesh High Court in Writ Appeal Nos. 892 and 893 of 1983. P.R. Ramachandra Rao, Dr. D.Y. Chandrachud, P.H. Parekh and M.K.S. Menon for the Petitioner. V.J. Rao and Y. Prabhakara Rao for the Respondents. The Order of the Court was delivered by VENKATARAMIAH, J. The question arising for decision in this case is whether an employer whose establishment is governed by the Andhra Pradesh Shops & Establishments Act, 1966 (hereinafter referred to as 'the State Act ') is re quired, while retrenching any worker, to comply with the provisions of section 25F of the (hereinafter referred to as ' the central act ') or with section 40 of the State Act. The petitioner in this case is a co operative society carry ing on 732 business at Vijayawada in the State of Andhra Pradesh. It retrenched nine of its clerks Respondents 1 to 9 herein. Respondents 1 to 4 Were retrenched on 1.10.1978 and Respond ents 5 to 9 were retrenched on 22.9. 1978 on the ground that the business of the management did not warrant the continu ance of its heavy establishment. All the respondents chal lenged the orders terminating their services in an appeal filed under section 41(1) of the State Act before the appel late authority. The appellate authority set aside the orders of retrenchment by nine separate judgments delivered on August 1, 1979 and directed the reinstatement of the re spondents with full back wages. Aggrieved by the decision of the appellate authority the management, the petitioner herein, filed nine appeals before the Labour Court, Guntur under section 41(3) of the State Act. The Labour Court allowed the appeals filed against Respondents 5 to 9 and set aside the orders which had been passed by the first appel late authority. It, however, dismissed the appeals filed against Respondents 1 to 4 holding that the orders of re trenchment were bad in law since employees junior to these respondents had been retained in service. It, however, directed that any amount paid to Respondents 1 to 4 as notice pay and gratuity etc. under section 40 of the State Act on account of the termination of their services may be deducted from the back wages payable to them. Aggrieved by the decision of the Labour Court Respondents 5 to 9 filed Writ Petition No. 163 of 1981 on the file of the High Court of Andhra Pradesh and the management, the petitioner herein, filed Writ Petition No. 6151 of 1980 before the High Court against Respondents 1 to 4. The learned Single Judge who heard the said two writ petitions dismissed Writ Petition No. 163 of 1981 filed by Respondents 5 to 9 and allowed Writ Petition No. 6151 of 1980 filed by the management against Respondents 1 to 4. The learned Single Judge took the view that Respondents 5 to 9 could not claim the benefit of section 25F of the Central Act in a proceeding initiated under section 41 of the State Act and dismissed their writ petition. He, however, allowed the writ petition filed by the management and remanded the case to the Labour Court to reheat the case after permitting Respondents 1 to 4 to implead four other employees, namely, Seetharamaiah, Rajago pal Rao, Krishna Murthy and Khader Hussain, who were alleged to be seniors to Respondents 1 to 4 and hearing them on the question of inter se seniority between them and the said four other employees. The learned Judge, however, observed that if section 25F of the Central Act was applicable to the cases 'I have no doubt that these orders of termination would have to be set aside, because section 25F denies the rights of the employer to terminate the service of an em ployee without payment of retrenchment compensation ' and that compensation had 733 not been paid in accordance with section 25F. But he found that section 25F of the Central Act was not applicable to proceedings under the State Act. Aggrieved by the decision of the learned Single Judge Respondents 1 to 4 and Respond ents 5 to 9 filed Writ Appeal Nos. 892 Of 1983 and 893 of 1983 respectively before the Division Bench of the High Court. The common contention urged by both the groups of employees, who were appellants in these two appeals, was that the question of their retrenchment, was governed by section 25F of the Central Act and since the orders of retrenchment had not been passed in conformity with the provisions of section 25F of the Central Act the said orders were liable to be Set aside and they were entitled to be reinstated. The Division Bench accepted the above contention of Respondents 1 to 9 and allowed both the appeals holding that the orders of termination were unsustainable. Aggrieved by the decision of the Division Bench of the High Court the petitioner has filed these Special Leave Petitions under Article 136 of the Constitution. The only question which arises for decision in this case, as mentioned above, is whether the retrenchment of an employee in an establishment governed by the State Act is governed by the provisions of section 40 of the State Act or by the provisions of Chapter V A of the Central Act which deals with lay off and retrenchment. For purposes of conven ience section 40 of the State Act is set out below: "40. Conditions for terminating the services of an employee and payment of gratuity: (1) No employer shall without a reasonable cause and except for misconduct terminate the serv ice of an employee who has been in his employ ment continuously for a period of not less than six months without giving such employee, at least one month 's notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment con tinuously for a period of not less than five years, a gratuity amounting to fifteen days ' average wages for each year of continuous employment. Explanation: For the purpose of this sub section, (a) the expression 'wages ' does not include overtime wages; (b) the expression 'average wages ' means the daily average of wages for the days an employee actually worked during the thirty days immediately preceding the date of termi nation of service; 734 (c) an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months, if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee; (d) where the total continuous employment is for a fraction of a year or extends over a fraction of a year in addition to one or more completed years of continuous employment, such fraction, if it is not less than a half year shall be counted as a year of continuous employment in calculating the total number of years for which the gratuity is to be given. (2) Where a gratuity is payable under sub section (1) to an employee, he shall be entitled to receive his wages from the date of termination of his service until the date on which the gratuity so payable is actually paid subject to a maximum of wages for two months. An employee, who has completed the age of sixty years or who is physically or mentally unfit having been so declared by a medical certificate, or who wants to retire on medical grounds or to resign his service, may give up his employment after giving to his employer notice of at least one month in the case of an employee of sixty years of age, and fifteen days in any other case; and every such employee and the dependant of an employee who dies while in service shall be entitled to receive a gratuity as provided in sub section (1). He shall be entitled to receive the wages from the date of giving up the employment until the date on which the gratuity so pay able is actually paid, subject to a maximum of wages for two months. (4) The services of an employee shall not be terminated for misconduct except, for such act or omissions and in such manner, as may be prescribed. " Sub section (1) of section 40 of the State Act imposes a restriction on the right of the employer of an establishment governed by the State Act to terminate the services of an employee. It says that an employer shall not without a reasonable causes (except for miscon 735 duct) terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee, at least one month 's notice in writing or wages in lieu thereof and in respect of on employee who has been in his employment con tinuously for a period of not less than five years, a gratu ity amounting to fifteen days ' average wages for each year of continuous employment. In the case of misconduct neither one month 's notice or wages in lieu thereof nor gratuity need be paid on the termination of his services. There are no other restrictions on the right of the management to terminate the services of an employee in an establishment governed by the State Act which is enacted by the State legislature in exercise of the powers conferred on it under Entry No. 22 of List III of the Seventh Schedule to the Consititution. The Central Act was enacted by the Central Legislature before the commencement of the Constitution and it is also traceable to an Entry in the Government of India Act, 1935 corresponding to Entry No. 22 of List III of the Seventh Schedule to the Constitution. When the Central Act was originally enacted, it merely provided for investigation and settlement of industrial disputes by establishing a machinery for collective bargaining, mediation and concilia tion, investigation, arbitration, adjudication and other allied matters. Chapter V A lay off and retrenchment, making provision for payment of compensation for lay off, retrenchment and closure and on transfer of undertakings was not there. It was introduced by way of amendment in the year 1953. Sections 25F, 25G, 25H and 25J of the Central Act which are relevant for purposes of this case read as fol lows: "25F. Conditions precedent to retrench ment workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workmen has been paid, at the time of retrenchment, compensation which shall be equivalent to fir 736 teen days ' average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may he specified by appro priate Government by notification in the Official Gazette." "25G. Procedure for retrenchment. Where any workman in an indus trial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that estab lishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman." "25H. Re employment of retrenched workmen. Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re employment, and such retrenched workmen who offer themselves for re employment shall have preference over other persons." "25J. Effect of laws inconsistent with this Chapter.(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law [including standing orders made under the ]. Provided that where under the provi sions of any other Act or rules, orders, notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, no withstanding that he receives benefits in respect of other matter under this Act. 737 (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provi sions of any other law for the time being in force in any State insofar as that law pro vides for the settlement of industrial dis putes, but the rights and liabilities of employers and workmen insorfar as they relate to lay off and retrenchment shall be deter mined in accordance with the provisions of this Chapter." Section 25F of the Central Act deals with the conditions precedent to retrenchment of workmen non compliance with which will be fatal to any order of retrenchment. Section 25G of the Central Act prescribes the procedure for re trenchment and under it an employer shall ordinarily re trench a workman in accordance with the rule of 'last come, first go ' unless for reasons to be recorded the employer retrenches any other workman. Section 25H of the Central Act requires the management to show preference to retrenched workmen over others, where any workman is retrenched and the management proposes to take into its employ any person again for work, where the retrenched workman offers himself for re employment. This indeed is a substantial right. Section 25J of the Central Act which is very material for our pur pose provides that provisions of Chapter V A of the Central Act shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Or ders) Act, 1946. The proviso to sub section (1) of section 25J of the Central Act provides that where under the provi sions of any other Act or rules, orders, notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is enti tled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under the Central Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matter under the Central Act. Sub section (2) of section 25J of the Central Act is more categorical as re gards the effect of Chapter V A of the Central Act on any other law which may be in force in any State. It provides that nothing contained in Chapter V A of the Central Act shall be deemed to affect the provisions of any other law for the time being in force in any State insofar as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen insofar as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Chapter V A of the Central Act. 738 The learned Single Judge who decided the writ petitions formulated three points for his consideration, namely, (i) whether Respondents 1 to 9 were 'workmen ', (ii) whether the management could be treated as an 'industry ' and (iii) whether the three conditions laid down by section 25F of the Central Act would be applicable to the proceedings under the State Act. He found that both the authority under section 41(1) of the State Act and the authority under section 41(3) of the State Act had proceeded on the assumption that the Central Act was applicable to proceedings under the State Act. On a consideration of the submissions made on behalf of the management, the learned Single Judge felt that it was not possible to hold that Respondents 1 to 9 were not 'wor kmen ' and, the management was not an 'industry ' as defined in the Central Act. Having said so the learned Single Judge proceeded to decide the third question namely whether sec tion 25F of the Central Act could be enforced under the provisions of the State Act. The learned Single Judge held that 'there is no scope either in the language of section 40 or its implication making it obligatory to read the condi tion of section 25F as a part of section 40 of the Shops and Establishments Act. ' Then he proceeded to hold that since the conditions under section 40 of the State Act had been fulfilled in the case of the Respondents 5 to 9, the termi nation was legal. But in the case of Respondents 1 to 4 since it had been alleged that their juniors had been al lowed to continue in service the learned Judge felt that the matter required further consideration and hence remanded the case because he was of the view that the above question had to be decided before recording a finding on the question whether the termination was for a reasonable cause. The learned Single Judge was however of the view that if section 25F of the Central Act was applicable 'I have no doubt that these orders of termination would have to be set aside because section 25F denies the right of the employer to terminate the services of an employee without payment of retrenchment compensation. ' The learned Single Judge gave the following reasons for holding that section 25F was not applicable to proceedings under the State Act: (i) that the statutory authorities created under section 41(1) and sec tion 41(3) of the State Act being creatures of the statute had no right to apply the provisions of section 25F of the Central Act to proceedings before them, and (ii) that where as the rights under the Central Act could be agitated by a reference to a Labour Court, the right agitated under sec tion 41(1) and section 41(3) was a personal right. We find it difficult to agree with the learned Single Judge on both these grounds. It is already seen that the learned Single Judge has found that the Respondents were 'workmen ' and the management was an 'industry ' as defind in the Central Act. We have explained earlier 739 the effect of section 25J of the Central Act. Sub section (1) of section 25J of the Central Act lays down that Chapter V A shall have effect notwithstanding anything inconsistent therewith contained in any other law. The proviso to that sub section however saves any higher benefit available to a workman under any law, agreement or settlement or award. Sub section (2) of section 25J however makes a distinction between any machinery provided by any State law for settle ment of industrial disputes and the substantive rights and liabilities arising under Chapter V A of the Central Act where a lay off or retrenchment takes place. It provides that while section 25J would not affect the provisions in a State law relating to settlement of industrial disputes, the rights and liabilities of employers and workmen insofar as they relate to lay off and retrenchment shall be determined in accordance with Chapter V A of the Central Act. It is thus seen that section 41(1) and section 41(3) of the State Act prescribe alternative authorities to settle a dispute arising out of a retrenchment. Those authorities may exer cise their jurisdiction under the State Act but they have to decide such dispute in accordance with the provisions of Chapter V A. The learned Single Judge omitted to notice the effect of section 25J of the Central Act. Sub section (2) of section 25J of the Central Act which makes the procedure for securing relief under section 41(1) and (3) of the State Act available to a workman emphasises that the rights and li abilities arising out of retrenchment shall be decided in accordance with Chapter V A of the Central Act. The said rights can be enforced by a workman personally by himself filing an appeal under section 41(1) of the State Act. It is not necessary that a reference should be sought under the Central Act by collective action of workers. The effect of section 25J(2) of the Central Act has been considered by this Court in Sawattain Ramprasad Mills Co. Ltd. vs Baliram Ukandaji and Another, ; In that case the question for decision was whether the C.P. and Berar Indus trial Disputes (Settlement) Act, 1947 was applicable to the case involving the determination of the rights and liabili ties of the management and workmen in the case of lay off or whether the provisions of Chapter V A of the Central Act were applicable. The Court found that the C.P. and Berar Industrial Disputes (Settlement) Act, 1947 contained no provisions either for recovery of money or for compensation for lay off and held that if a workman had a claim arising in a lay off it could only be dealt with under the Central Act. In that case no question similar to the one involved here was however in issue. In Pest Control India Pvt. Ltd. vs The Labour Court, Guntur and Another, [1984] 1 Andhra Weekly Reporter 277 the Andhra Pradesh 740 High Court has very recently laid down that in considering whether the termination of service of an employee by way of retrenchment is legal or justified, it is open to the au thority under section 41 of the State Act to determine whether section 25F and section 25G of the Central Act were complied with or not and to set aside the orders of termina tion and to grant appropriate relief if it is found that there was no compliance with sections 25F and 25G of the Central Act. The Division Bench of the High Court while reversing the decision of the learned Single Judge has relied on the above decision. We shall now proceed to consider the merits of the contention that the State Act which is a later Act and which has received the assent of the President should prevail over the provisions of Chapter V A of the Central Act. The above contention is based on Article 254(2) of the Constitution and the argument is that the provisions of section 40 which deal with termination of service, in a shop or an establish ment contained in the State Act which is enacted by the State Legislature in exercise of its powers under Entry 22 of List III of the Seventh Schedule to the Constitution being repugnant to the provisions contained in Chapter V A of the Central Act which is an earlier law also traceable to Entry 22 of the List II1 of the Seventh Schedule to the Constitution should prevail as the assent of the President has been given to the State Act. It is true that the State Act is a later Act and it has received the assent of the President but the question is whether there is any such repugnancy between the two laws as to make the provisions of the Central Act relating to retrenchment ineffective in the State of Andhra Pradesh. It is seen that the State Act does not contain any express provision making the provisions relating to retrenchment in the Central Act ineffective insofar as Andhra Pradesh is concerned. We shall then have to consider whether there is any implied repugnancy between the two laws. Chapter V A of the Central Act which is the earlier law deals with cases arising out of lay off and retrenchment. Section 25J of the Central Act deals with the effect of the provisions of Chapter V A on other laws incon sistent with that Chapter. Sub section (2) of section 25J is quite emphatic about the supremacy of the provisions relat ing to the rights and liabilities arising out of lay off and retrenchment. These are special provisions and they do not apply to all kinds of termination of services. Section 40 of the State Act deals generally with termination of service which may be the result of misconduct, closure, transfer of establishment etc. If there is a conflict between the spe cial provisions contained in an earlier law dealing with retrenchment and the general provisions contained in a later law generally dealing with terminations of service, the existence 741 of repugnancy between the two laws cannot be easily pre sumed. In Maxwell on the Interpretation of Statutes, (12th Edn. ) at page 196 it is observed thus: "Now if anything be certain it is this, "said the Earl of Selborne L.C. in The Vera Cruz, at p. 68 "that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular inten tion to do so. " In a later case, Viscount Haldane said: "We are bound . . to apply a rule of construction which has been repeat edly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to. " We respectfully agree with the rule of construction expounded in the above passage. By enacting section 25J(2) Parliament, perhaps, intended that the rights and liabili ties arising out of lay off and retrenchment should be uniform throughout India where the Central Act was in force and did not wish that the State should have their own laws inconsistent with the Central law. If really the State Legislature intended that it should have a law of its own regarding the rights and liabilities arising out of re trenchment it would have expressly provided for it and submitted the Bill for the assent of the President. The State Legislature has not done so in this case. Section 40 of the State Act deals with terminations of service general ly. In the above situation we cannot agree with the conten tion based on Article 254(2) of the Constitution since it is not made out that there is any implied repugnancy between the Central law and the State law. The result of the above discussion is that if the employees are 742 'workmen ' and the management is an 'industry ' as defined in the Central Act and the action taken by the management amounts to 'retrenchment ' then the rights and liabilities of the parties are governed by the provisions of Chapter V A of the Central Act and the said rights and liabilities may be adjudicated upon and enforced in proceedings before the authorities under section 41(1) and section 41(3) of the State Act. We may incidentally observe that the Central Act itself should be suitably amended making it possible to an individ ual workman to seek redress in an appropriate forum regard ing illegal termination of service which may take the form of dismissal, discharge, retrenchment etc. or modification of punishment imposed in a domestic enquiry. An amendment of the Central Act introducing such provisions will make the law simpler and also will reduce the delay in the adjudica tion of industrial disputes. Many learned authors of books on industrial law have also been urging for such an amend ment. The State Act in the instant case has to some extent met the above demand by enacting section 41 providing for a machinery for settling disputes arising out of termination of service which can be resorted to by an individual work man. In this connection we have one more suggestion to make. The nation remembers with gratitude the services rendered by the former Labour Appellate Tribunal which was manned by some of our eminent Judges by evolving great legal princi ples in the field of labour law, in particular with regard to domestic enquiry, bonus, gratuity, fair wages, industrial adjudication etc. The Industrial Disputes (Appellate Tribu nal) Act, 1950 which provided for an all India appellate body with powers to hear appeals against the orders and awards of Industrial Tribunals and Labour Courts in India was repealed in haste. If it had continued by now the labour jurisprudence would have developed perhaps on much more satisfactory lines than what it is today. There is a great need today to revive and to bring into existence an all India Labour Appellate Tribunal with powers to hear appeals against the decisions of all Labour Courts, Industrial Tribunals and even of authorities constituted under several labour laws enacted by the States so that a body of uniform and sound principles of Labour law may be evolved for the benefit of both industry and labour throughout India. Such an appellate authority can become a very efficient body on account of specialisation. There is a demand for the revival of such an appellate body even from some workers ' organisa tions. This suggestion is worth considering. All this we are saying because we sincerely feel that the Central Act passed forty years ago needs a second look and requires a compre hensive amendment. 743 It is not disputed that section 25F of the Central Act has not been complied with in this case and hence the Divi sion Bench of the High Court was right in holding that all the terminations were illegal. All the respondents are, therefore, entitled to be reinstated in service with furl back wages as held by the authority under section 41(1) of the State Act. These petitions are dismissed. P.S.S Petitions dismissed.

The appellant made an application before the Rent Con troller on or about July 15, 1976 to let out the premises to the respondent for residential purposes for a period of two years under section 21 of the Delhi Rent Control Act, 1958 as he did not require the premises for that period. The respondent agreed before the Rent Controller to the above statement of the appellant and undertook to vacate the premises after the expiry of two years from July 15, 1976. Accordingly, the Rent Controller made an order allowing creation of a limited tenancy for a period of two years from July 15, 1976. The respondent having refused to vacate the premises after two years, the appellant filed an application under section 21 on behalf of himself and his family members claiming possession of the premises for their bona fide need and use. The Rent Controller passed an eviction order and the Appellate Tribu nal upheld the same. The High Court allowing the appeal of the tenant re spondent held that the order under section 21 of the Act was a mindless order inasmuch as no reason had been stated as to why the premises in question was not required for a limited period, that it was not stated as to how the premises in question was dealt with before creating the said tenancy and that there was no writing and no lease registered after the permission was granted. Allowing the appeal by special leave, 766 HELD: 1.1 The permission granted by the Rent Controller under section 21 of the Delhi Rent Control Act was valid. The order permitting limited tenancy was not a mindless order but one passed by him after taking the relevant facts into consideration. [780D] 1.2 In order to attract section 21 of the Act, it is necessary firstly that the landlord must not require the premises either in whole or part for a particular period; secondly, the landlord must obtain the permission of the Controller in the prescribed manner; thirdly, letting of the whole or part of the premises must be for residence, and fourthly such letting out must be for such period as may be agreed in writing. These and these alone are the conditions which are required to be fulfilled. [772G 773B] 1.3 Section 21 only gives sanction if the landlord makes a statement to the satisfaction of the Court and the tenant accepts that the landlord does not require the premises for a limited period. This statement of the landlord must be bona fide. The purpose must be residence. There must not be any fraud or collusion. There is a presumption of regulari ty. But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing court that there was collusion or conspiracy between the landlord and the tenant and the landlord did not mean what he said or that it was a fraud or that the tenant agreed because he was wholly unequal to the landlord. [776F H] 1.4 In the instant case there was no permission previ ously. This was the first letting. There was no evidence that when the landlord stated that he did not require the premises in question for a particular period, he did not mean what he said or that he made a false statement. There was no evidence at any stage that the tenant did not under stand what the landlord was stating or that he did not accept what the landlord stated. There was no evidence that either the tenant was in collusion or perpetrating any fraud with the landlord or the tenant was unequal to the landlord in bargaining powers. There was thus no evidence to show that the Controller did not apply his mind. [779F, 776H 777B] S.B. Noronah vs Prem Kumari Khanna, ; ; Nagindas Ramdass vs Dalpatram Ichharam, ; ; V.S. Rahi and another vs Smt. Ram Chambeli; , ; J.R. Vohra vs India Export House Pvt. Ltd. and another; , and Smt. Dhanwanti vs D.D. Gupta, [1986] 3 SCC 1, referred to 2. It is not necessary to state under section 21 the reasons why the 767 landlord did not require the premises in question for. any particular period. The landlord or the tenant may be able to show that cogent reasons did exist or were within the knowl edge of the parties as to why the landlord did not require the whole or a part of his premises for a specified period. [777BC, 782B] 3. There is no presumption that in all cases the tenants are the weaker sections. The presumption is, on the con trary, in favour of sanction. It is he who challenges the statement and the admission of the landlord or the tenant who has to establish facts. In the instant case the onus was on the tenant to show that the sanction under section 21 was a nullity. He did not make any attempt to dislodge the pre sumption in favour of the permission. [777C, 779F] 4.1 An agreement in writing submitted along with the application under section 21 of the Act is really a proposed agreement. It comes into effect only after the grant of permission. It does not require registration. [782CD] S.B. Noronah vs Prem Kumari Khanna, , referred to. Vijay Kumar Bajaj vs Inder Sain Minocha, [1982] 2 Rent Control Reporter 392, approved. 4.2 It has been consistently held by the Delhi High Court that section 21 is a code by itself, that the order of permission is itself an authority and that no lease was necessary. This view has been acted upon for long and trans actions have been completed in the Union Territory on the basis of permission and it was never doubted that there was any requirement of any lease or any agreement subsequent to the order and the same required registration. The view taken by the High Court over a number of years should normally be adhered to and not to be disturbed. A different view would not only introduce an element of uncertainty and confusion but it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. [780A C] Raj Narain Pandey and others vs Sant Prasad Tewari & others; , and Kasturi Lal vs Shiv Charan Das Mathur, [1976] 8 Rent Control Reporter 703, referred to.

N: Criminal Appeal No. 483 of 1980. From the Judgment and Order dated 6.11.79 of the Andhra Pradesh High Court in Crl. A. No. 789 of 1979. T.V.S.R. Krishna Sastry, Vishnu Mathur and V.B. Saharya, Amicus curiee (NP) for the Appellants. G. Prabhakar for the Respondent. The Judgment of the Court was delivered by KASLIWAL, J. Twelve persons were challaned for the murder of Nethala Veeraswamy, a resident and Sarpanch of village Ramaraogudem in Eluru Taluq, West Godavari District (A.P.) in the night of 31.12.1977. Learned Sessions Judge, West Godavari Division, Eluru tried the case and relying on the evidence of P.Ws. 1,2 and 7 in toto and the evidence of P.W.3 to some extent convicted all the accused persons for the offences charged under Section 302 read with Section 149 I.P.C. and awarded each one of them sentence of imprisonment for life and other minor terms of imprisonment for other offences. On appeal the High Court set aside the conviction and sentence of seven accused persons, namely, Dasari Bhaskara Rao (A 4), Kali China Krishna (A 5), Namburi Lakshmana (A 8), Namburi Ramulu (A 9), Namburi Prasada Rao (A 10), Mada Govardhana Rao (A 11) and Kali Kamaka Rao (A 12). The High Court confirmed the conviction of the remaining five accused persons Mullagiri Vajram (A 1), Mada Lakshmandas (A 6) and Gandi Abraham (A 7) under Section 302 read with Section 149 I.P.C. and sentenced them to imprisonment for life. The High Court further held that as these accused had been sentenced for the main offence under Section 302 read with Section 149 I.P.C. there was no need of separate sentence under Sections 148 and 147 I.P.C. The five accused A 1, A 2, A 3, A 6 & A 7 have come before this Court in appeal against the order of the High Court by grant of Special Leave. Mada Lakshmandas (A 6) expired during the pendency of appeal before this Court as such the appeal filed by him was dismissed as having abated by order dated 8.4.1992. We are now concerned in this appeal with the four accused appellants A 1, A 2, A 3 and A 7. We have gone through the Judgment of the lower courts and have perused the record and have considered the arguments advanced by learned counsel for the parties. The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws. 1,2,3 and 4 as eye witnesses of the incident. The High Court has placed implicit reliance on the testimony of P.W.2 and who was a clerk working in the panchayat office of Ramaraogudem and had accompanied the deceased in an autorickshaw and had seen the incident. We find no infirmity in the statement of P.W.2 and the High Court has rightly placed reliance on his evidence. Learned counsel for the accused persons submitted that even if the statement of P.W.2 is taken to be correct, no offence is made out so far as accused (A 3) is concerned. Learned counsel in this regard submitted that P.W.2 in the cross examination has admitted that he did not state the name of A 3 in his statement recorded under Section 164 Cr. It was also submitted that though P.W. 2 stated that he had given the name of A 3 in his statement recorded at the inquest but the name of A 3 does not find mention in exhibit D 7, the statement of P.W.2 recorded at the inquest. We see force in the aforesaid contention. A perusal of the statement of P.W.2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr. P.C. and also in his statement exhibit D 7 recorded at the inquest. In view of these circumstances the accused A 3 is also entitled to the benefit of doubt. It was next contended by learned counsel on behalf of the accused A 2 and A 7 that P.W.2 in the cross examination admitted that after the incident he had gone to police station seven or eight times. He had gone to the police station as he was asked by the police. He also admitted that at that time accused persons were in police lock up. On the basis of the aforesaid statement of P.W.2 it was contended that when P.W.2 had gone to the police station scene or eight times after the incident the possibility of his seeing the accused (A 2) and (A 7) in the police station cannot be ruled out. It was thus contended that any identification parade held on 25.1.1978 and 26.1.1978 has no value as P.W.2 had already seen the accused persons in the police station. We find no force in this contention. Exhibits P 16 and P 17 are the proceedings of identification parade held on 25.1.1978 and 26.1.1978 respectively. A perusal of these documents shows that P.W.2 Garapati Krishnavatharam had himself stated that he had prior acquaintance with Mullagiri Yesupadam (A 2) and Gandi Abraham (A 7). The High Court has examined this aspect of the matter and has rightly arrived to the conclusion that P.W.2 in his evidence has stated that he came to know the names of the accused from the children of the deceased and it was not unnatural for a person, who resides in a village for a period of two months and especially when they reside opposite to the residence of the president(deceased) in whose office he was working as a clerk to know the names of the persons residing nearby. P.W.2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7. P.W.2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony. He had identified A 1, A 2 and A 7 in the Court. Their conviction is not based on the identification parade but on the statement of P.W.1 AND P.W.2 made during the trial as eye witness. It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the Village. The accused persons belonged to the group headed by A 6, A 7 and the deceased was the leader of the other group. Nethalaveeraswamy the deceased was given merciless beatings and was done to death in the midnight of 31.12.1977. He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor. It has also been found established by the learned trial court as well as by the High Court that A 1 inflicted injuries by and axe and A 2 by a spear and A 7 was Court that A 1 inflicted injuries by an axe and A 2 by a spear and A 7 was among the other persons who inflicted injuries by a stick. It has also come in the evidence of P.W. 19, Inspector of Police that the accused persons had absconded and on 9.1.1978 on information by 5.00 A.M., he along with mediators visited Ramaraogudem and the absconded accused were hiding in the house of A 7. He surrounded the house with his staff, guarded the house and in that house he found the twelve persons against whom the case was challaned. It has also been proved by the prosecution that A 7 was the leader of the rival faction against the deceased. Thus we find that there is no infirmity at all in the reasoning and conclusion arrived at by the High Court so far as accused A 1, A 2 and A 7 are concerned. In the result we allow the appeal so far as Dasari Bhima Rao (A 3) is concerned and he is acquitted of all the charged levelled against him his bail bonds shall stand discharged. The appeal filed by Mullagiri Vajram (A 1), Mullagiri Yesupadam (A 2) and Gandi Abraham(A 7) is dismissed. They shall surrender to their bail bonds and serve out the sentence awarded to them by the High Court. N.P.V. Appeal disposed of .

The appellant 's father let out the disputed building wherein the tenant respondent carried out the hotel business. The appellant landlord filed an eviction petition on 15.1.81 before the Rent Controller stating that after his retirement from service on 30.9.1981, he wanted to settle down in that town and as he had no other house to reside, the disputed building was required by him bona fide for his occupation; that the respondent tenant was using the property in such a manner as to materially and permanently reduce its value, utility and purpose. The respondent contended that the building was not suitable for residential purposes; that the appellant had a house and plot in his wife 's name within the town; that there was a lot of vacant land on the back side of the tenanted building, which was suitable for house construction and that the property was not being used in such a way as to reduce its utility. The trial court dismissed the eviction petition of the landlord, holding that as he failed in proving his bona fide need of the building, the landlord was not entitled to an order of eviction under Section 11(3) of the 71 Kerala Buildings (Lease & Rent Control) Act, 1965 and as the landlord failed to prove that the tenant was using the building in such a way to destroy its value and utility, he was not entitled to an order under section 11(4)(ii) of the Act. On appeal, the Appellate Authority reversed the order of the Rent Controller. The High Court in revision set aside the order of the Appellate Authority, against which the present appeal by special leave was filed before this Court by the landlord. On the question, whether the respondent was liable to be evicted on the ground of bona fide need of the appellant for his personal occupation under section 11(3) of the Act, this Court allowing the landlord 's appeal, HELD:1.1. The scope of the revisional jurisdiction conferred under section 20 is wider than that conferred under section 115 CPC. But at the same time, a revision under section 20 cannot be equated with an appeal. [75 C] 1.2. The revisional power conferred on the High Court is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings. [75 E] Dattonpant Gopalverao Devakate vs Vithabrao Maruthirao Janagaval, [1975] Supp. SCR 67; M/s. Sri Raja Lakshmi Dyeing Works & Ors. vs Rangaswamy Chettiar, AIR 1980 SC 1253, followed. The revisional court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own,so long as the evidence on record admitted on and supported the one reached by the court below. [75 F] Rajbir vs section Chokesiri & Co., at p.37, followed. The question whether the building is required bona fide by the appellant for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on 72 record could not be interfered with by the High Court in exercise of the revisional jurisdiction under Section 20 of the Act because it could not be said that the said finding recorded by the Appellate authority was not supported by the evidence on record. [77 E] 2.2. The fact that the appellant has been living with his son in the house belonging to him (son) cannot head to the inference that the claim of the appellant that he want to live in a house of his own is false and not bona fide. The same is true about the building in question not having the requisite facilities and being not in a fit condition for residence because the appellant can make suitable repairs and alterations in the same to make it fit for residential purposes. [78 B C] 2.3. The claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground the the building requires repairs and alterations before the landlord can occupy the same. [78 D] 2.4. There is no prohibition that a landlord must occupy the house for residence without making any alterations in it. [78 H 79A] Devaky vs Krishnankutty, , approved. Ramniklal Pitambardas Mehta vs Indradaman Amratlal Sheth, ; , followed. Before passing a decree for eviction on the ground of bona fide need of the landlord under section 11(3) of the Act, it was necessary for the Appellate Authority to consider whether the tenant was entitled to the benefit of the second proviso to sub section (3) of section 11 of the Act which precludes the passing of an order for eviction of a tenant who is depending for his livelihood mainly from the trade or business carried on in such building and there is no other suitable building available in the locality for him to carry on such trade or business. [79 C] 3.2. Since the Appellate Authority has omitted to consider the matter from this angle the matter should be remanded to the Appellate Authority for considering the question whether the respondent can invoke the protection of the second proviso to section 11(3) of the Act. [79 G 80A] 73

Appeals Nos. 1919 1920 of 1966. Appeals from the judgment and order dated October 12, 13, 1962 of the Bombay High Court in Income tax Reference No. 2! of 1959. section T. Desai, 0. P. Malliotra, and 0. C. Mathur, for the appellant (in C.A. No. 1919 of 1966) and the respondent (in C. A. No. 1920 of 1966). D. Narsaraju and R. N. Sachthey, for the appellant (in C.A. No. 1920 of 1966) and the respondent (in C.A. No. 1919 of 1966. The Judgment of the Court was delivered by Shah, J. These are cross appeals from the order passed by the High Court of Bombay recording answers to questions sub mitted in a reference under section 66 of the Indian Income tax Act, 1922. Messrs Killick Nixon & Co. hereinafter called "the assessee" was a firm which carried on diverse trading activities in Bombay. The assessee agreed to sell on November 28, 1947 to a Company called "Killick Industries Ltd.", the benefit of managing agency contracts held by it, shares of limited Company (including 240 shares of the Cement Agencies Ltd.) and debentures, and book and other debts in consideration of 79,993 shares of the face value of Rs. 100/ each or Killick Industries Ltd. and Rs. 700/ in cash. By another agreement dated January 29, 1948 the assessee agreed to sell to "Killick Nixon & Co. Ltd." goodwill of the business of the. assessee freehold and leasehold hereditaments, plant and machinery, stock in trade and book debts, Government securities and shares and full benefit of all shipping and general agencies, distributorships etc. in consideration of 9,996 shares in the Vendee Company of the face value of Rs. 100/each and Rs. 400/ in cash. The assessee was dissolved and its business was discontinued with effect from February 1, 1948. In a proceeding for assessment to tax payable by the assessee for the year 1949 50 (the relevant previous year being the year ending June 30, 1948) the Income tax Officer assessed the capital gains made by the assessee, on the transfer of its capital assets to the two Companies, ,it Rs. 32,01,747/ . In appeal, the Appeal 9 7 3 late Assistant Commissioner modified the order. He was of the view that the assessee had made capital gains amounting to Rs. 25,40,737/ by sale of shares to the two companies and other assets transferred to Killick Nixon & Co. Ltd. and had suffered a capital loss of Rs. 4,00,530/ , being the difference between the market value of the managing agencies, 240 shares of the Cement Agencies Ltd. and the goodwill on January 1, 1939 estimated at Rs. 51,40,802/ and the market value of those assets on February 1, 1948 estimated at Rs. 47,4Q,272 /. Debiting the loss against the capital (rains made by sale of shares, the Appellate Assistant Commissioner brought to tax an amount of Rs. 21,06,455/ . The Appellate Assistant Commissioner rejected the claim of the assessee to the benefit of section 25(3)) & (4) of the Income tax Act, 1922. The Appellate Tribunal confirmed the, order passed by the Appellate Assistant Commissioner. The Tribunal drew up a statement of the case and referred two questions numbered (I) & (2) below to the High Court of Judicature at Bombay. Two more questions numbered (3) & (4) were submitted pursuant to the order made by the High Court under section 66(2) of the Act. The questions were : "(1) Whether on the facts and circumstances of the case, the assessee firm is entitled to the benefit contained under section 2 5 ( 3 ) in respect of capital gains assessed to tax under section 12B of the Income tax Act ? (2) Whether on the facts and in the circumstances of the case, the assessee firm is liable to pay capital gains in respect of profits and gains arising from the sale of its assets to the limited companies ? (3) Whether section 12B of the Indian Income tax Act, 1922, at all applied to the applicant 's case ? (4) Whether on the facts and in the circumstances of the case, the Tribunal misdirected itself in law and or acted without evidence or in disregard of the most material evidence on record in making the valuation of the applicant 's assets on first day of January one thousand nine hundred and thirtynine ?" The High Court answered the first question in the negative, and the second, the third and the fourth questions in the affirmative. The assessee has appealed against the answers recorded on the first three questions; against the order recording the answer on the fourth question, the Commissioner has appealed. The appeal filed by the Commissioner may first be considered. The assessee contended before the Tribunal, relying upon the evidence on record, that the value of the managing agencies, 240 9 7 4 shares of the Cement Agencies Ltd. and the goodwill on January 1. 1939 considerably exceeded Rs. 51,4O,8O2/ . The Tribunal observed in paragraph 10 of its judgment "We do not think it is necessary to deal with in detail the evidence produced before the Income tax authorities in respect of the valuation as on 1 1 1939. The stand taken by the assessee, in our opinion, is in consistent. A uniform method must be adopted both as on, the date of the transfer and as on 1 1 1939. It is not open to the assessee to value an asset by applying one method on 1 2 1948 and another on 1 1 1939. " The Tribunal then observed that since the assets were transferred to a company in which the partners of the assessee were interested, and the transfer was made for a consideration which was less than the market value, it was not open to the assessee to contend that the market value of the assets on January 1, 1939 should be taken into account; that the assessee was not entitled to reduce the capital gain by adopting the valuation of those assets which had a market quotation and in respect of assets which had no market quotation by adopting the sale price,; and that "if the goodwill of the business on January 1, 1939 was worth Rs. 8 lakhs its value on February 1, 1948 should be higher." The Tribunal recorded its conclusion that : "For the purpose of this appeal, it is enough to say that if the value of the assets in question was Rs. 46,40,279/ on 1 2 1948, it could not be higher than Rs. 51,40,802/ as on I. I 1939. Speaking for ourselves, we think, the Income tax authorities by allowing the loss of Rs. 4 lakhs have taken a liberal view of the whole question. " The Tribunal also observed "The valuation placed by the Department, in our opinion, is reasonable. Even if the business was to be valued is a whole, it could not affect the assessment made. The valuation has to be done on the same basis both on 1 1 1939 and 1 2 1948." .LM0 The High Court in dealing with the questions referred observed that under the third proviso to section 12B(2), of the Income tax Act, 1922 the assessee was entitled to substitute the fair market value ,of the assets as on January 1, 1939, if the capital assets had been held by the assessee before January 1, 1939 in place of the cost ,of the assets for the purpose of determining the capital gain, and that it was common ground that the full value of the consideration for which the assets were transferred was Rs. 1,16,75,108/ . The High Court then observed : 97 5 .LM15 "it is clear beyond any doubt that the assessee was entitled to take the fair market value of the three assets, viz. the managing agencies, 240 shares of the Cement Agencies Limited and the goodwill of its busi. ness as on 1 1 1939 for the purpose of the computation of the capital gains and the said capital gains,, if any, had to be determined by deducting the said valuation as on 1 1 1939 from the full value of the consideration. , which the assessee, had received and which, it was common ground between the parties, was Rs. 1,16,75,108/ . The Appellate Assistant Commissioner had proceeded to determine the value of its assets as on 1 1 1939. As against the said valuation arrived at by the Appellate Assistant Commissioner, the assessee has raised o@jections before the Tribunal which objections the Tribunal had to consider on their merits. In so far as the Tribunal has failed to do so and has proceeded on the erroneous view, which it has taken that it was not necessary to deal in detail with the evidence produced before the Income tax authorities, the Tribunal has clearly misdirected itself and had also not applied its mind properly to the material on record. " Section 12B which was introduced in the Indian Income tax Act, 1922 with effect from the 31st day of March, 1947, omitting parts not material reads as follows : "(1) The tax shall be payable by an assessee under the bead 'Capital gains ' in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March 1946; and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place (2) The amount of a capital gain ' shall be computed after making the following deductions from the full value of the consideration for which the sale, exchange or transfer of the capital asset is made, namely; (i) expenditure incurred solely in connection with such sale, exchange or transfer; (ii) the actual cost to the assessee of the capital asset, including any expenditure of a capital nature incurred and home by him in making any additions or alterations thereto, but excluding any expenditure in respect of which any allowance is admissible under any provision of sections 8, 9, 10 and 12. 97 6 Provided that where a person who acquires a capital asset from the assessee, whether by sale, exchange or transfer, is a person with whom the assessee is directly or indirectly connected, and the Income tax Officer has reason to 'believe that the sale, exchange or transfer was effected with the object of avoidance or reduction of the liability of the assessee under this section, the full value of the consideration for which the sale, exchange or transfer is made shall, with the prior approval of the Inspecting Assistant Commissioner of Income tax, be taken to be the fair market value of the capital asset on the date on which the sale, exchange or transfer tookplace : Provided further. . Provided further that where the capital asset became the property of the assessee before the 1st day of January 1939, he may, on proof of the fair market value thereof on the said date to the satisfaction of the, Income tax Officer, substitute for the actual cost such fair market value which shall be deemed to be the actual cost to him of the asset, and which shall be reduced by the amount of depreciation, if any, allowed to the assessee after the said date and increased or diminished, as the case may be, by any adjustment made under clause (vii) of sub section (2) of section 10;" Computation of the capital gains under section 12B is to be made by deducting from the market value of the consideration of the sale, exchange or transfer, expenditure incurred in connection with such sale, exchange or transfer and the actual cost to the assessee of the capital asset or at his option, where the capital asset became the property of the assessee before January 1, 1939, the fair market value of the asset on January 1, 1939. It is open to the Income tax Officer, if it appears to him, that with the object of avoidance or reducing of the liability of the assessee to pay tax, the full value of the consideration for which the sale, exchange or transfer is made is understated and the person acquiring the capital asset is a person with whom the assessee is directly or indirectly connected, to determine the fair market value of the capital asset on the date on which the sale, exchange or transfer tool, place. The difference between proviso one and proviso three may be noticed. By virtue of the first proviso the Incometax Officer is, in the conditions set out therein, entitled to determine the fair market value of the asset at the date of the sale, exchange or transfer. Under the third proviso, the assessee when he has exercised the option to adopt the value on January 1, 1939 is, for computation of the ictual cost to him of an asset 97 7 transferred, required to prove the fair market value of the asset on January 1. 1939, when the asset transferred belonged to him before that date. There was no dispute in the present case about the market value at the date of the, transfer of the assets conveyed. The first proviso therefore did not come into play. The dispute related to the value to the assessee on January 1, 1939 of three assets ', the managing agencies, 240 shares of the Cement Agencies Ltd. and the goodwill. The capital gain or loss had to be determined by deducting from the market value of the asset on February 1. 1948 the fair market value of those assets oil January 1. 1939, proved by the assessee to the satisfaction of the Income tax Officer. The Appellate Assistant Commissioner estimated the value of the three assets on January 1, 1939 at Rs. 51,40,802/ . The assessee contended that the evidence on the record showed that the market value exceeded the estimated value. It is true that the onus lay upon the assessee to prove the fair market value of the assets on January 1, 1939 to the satisfaction of the Income tax Officer and therefore of the Tribunal. The Tribunal did not consider the evidence and disposed of the claim of the assessee after observing that the value of the assets could not exceed the amount at which it was estimated by the Appellate Assistant Commissioner. Under the scheme of the Incom tax Act, the Tribunal is the final authority on questions of fact. The Tribunal in deciding an appeal is bound to consider all the evidence, and the argumerits raised before it by tile parties. The Tribunal apparently did not consider the evidence : it merely recorded a bare conclu. ,ion without setting out any reasons in support thereof. It is therefore not possible to say whether the Tribunal considered the evidence and the contentions raised 'by the assessee :it cannot be assumed merely because a conclusion is recorded that the Tribunal considered the evidence. The High Court was, therefore, right in recording an answer in the affirmative on the fourth question. It will be the duty of the, Tribunal in disposing of the appeal undeir section 66(5) of the Income tax. Act to hear the parties and to determine on a consideration of the evidence the value of the three assets on January 1, 1939 in the light of the third proviso to section 12B(2). In the appeal filed by the assessee, counsel for the assessee has not challenged the finding recorded on questions Nos. (2) & (3) and nothing more need be said in respect of those questions. Counsel claimed that by virtue of section 25(3) of the Indian Incometax Act, the assessee is exempted from paying tax in the. year in which the business was closed. Reliance is placed upon section 25(3)) 978 of the Indian Income tax Act. It provides, insofar as it is material "Where any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Income tax Act, 1918, (VII of 1918), is discontinued, then, unless there has been a succession by virtue of which the provisions of sub section (4) have been rendered applicable, no tax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of .such discontinuance It is common ground that the assessee was assessed to tax in respect of the income from business under the Indian Income tax Act 7 of 1918 and the case is not one of succession by virtue of which the provisions of sub section (4) of section 25 are rendered applicable. Prima facie, the assessee was entitled to the benefit of section 25(3) i.e. it was exempted from payment of tax in respect of the income, profits and gains earned by carrying on business for the period between the end of the previous year and the date of discontinuance of the business. This Court observed in Commissioner of Income tax Bombay City I vs Chugandas and Co.(1) that 'the exemption under section 25(3) is not restricted only to income on which tax was payable under the head "Profits and gains of business, profession or vocation" under the Act of 1918. Counsel for the assessee contended that even though under the Act of 1918 capital gain was not charged to tax under the Income tax Act, 1922, as amended in 1947, since capital. gains earned by the assessee form part of the income of the assessee as defined in section 2(6C) of the Act, and are on that account exigible to tax as income of the business, the assessee is entitled to the benefit of exemption prescribed by section 25 (3) of the Act. Counsel for the Commissioner contended that on income earned from business which is discontinued, the assessee is en titled to exemption from payment of tax for the period during which the business was carried on in the year in which the business was discontinued. He conceded that income which qualifies for exemption is income earned by carrying on business and not merely income computed for purposes of tax under section 10 of the Act. ' but he contended that the exemption does not apply to receipts which are not earned by carrying on the business, and are only fictionally deemed income for the purpose of the Incometax Act. He said that in any event capital gains cannot be said to be income resulting from the activity styled "business", and on that account capital gains are not admissible to exemption under section 25(3) of the Act. (1) ; 979 Chugandas & Company 's case(1) has, in our judgment, no application to the present case. In that case the assessee firm was charged to tax on its income from business under the Indian Income tax Act, 1918. The assessee firm discontinued its business on June 30, 1947, and in respect of interest on securities which formed part of the assessee 's business income, exemption was claimed under section 25(3). This Court accepted the contention of the assessee. It was observed at p. 338 : "When, therefore, section 25(3) enacts that tax was charged at any time on any business, it is intended that the tax was at any time charged on the owner or any business. If that condition be fulfilled in respect of the income of the business under the Act of 1918, the owner or his successor in interest qua the business, will be entitled to get the benefit of the exemption under it if the business is discontinued. The section in terms refers to tax charged on any business, i.e., tax charged on any person in respect of income earned by carrying on the business. Undoubtedly, it is not all income earned by a person who conducted any business, which is exempt under sub section (3) of section 25 non business income will certainly not qualify for the privileges. It is not necessary for the purpose of these appeals to decide whether an assessee is entitled to exemption under section 25(3) in respect of a receipt which was not chargeable as income under the Act of 1918, for, in our view, capital gains though they are income within the meaning of section 2(6C) as incorporated by Act 7 of 1939, and modified by Act XXII of 1947, are not income earned from trading activity carried on by an assessee, and therefore cannot be admitted to exemption under section 25(31). In Commissioner of Income tax, Madras vs Express Newspapers Ltd.(1) this Court expounded the true nature of capital gains at p. 202 : "Under that section (section 12B) the tax shall be payable by the assessee under the head 'capital gains ' in respect of any profits or gains arising from the sale of a capital asset effected during the prescribed period. It says further that such profits or gains shall be deemed to be income of the previous year in which the sale etc., took place. This deeming clause does not lift the capital gains from the sixth head in section 6 and place it under the fourth head. It only introduces a limited (1) ; (2) 1. T. R. '50 980 fiction, namely, that capital gains "accrued will be deemed to be income of the previous year in which the sale was effected. This fiction does not make them the profits or gains of the business. " Capital gains by the definition under section 2(6C) are income, and they are liable to tax by virtue of section 6 read with section 12B; and if they are not income arising from a trading activity, the benefit of exemption from taxability arising from the discontinuance of the business will not, in our judgment, be available in respect of that head of income. it is only income which is earned by carrying on business which is entitled to exemption under section 25 (3) and capital gains not being income which arise from trading activity, they are not entitled to exemption. Both the appeals therefore fail and are dismissed with costs. V.P.S. Appeals dismissed.

The assessee firm sold its assets to two companies and discontinued its business with effect from 1st February 1948. For the assessment year 1949 50 the income tax department sought to assess, under section 12B of the Indian Income tax Act, 1922, the capital gains made by the asessee. Capital gains under the section are computed, in a case (a) where there is no dispute about the market value of the asset on the date of transfer and (b) where the assessee has exercised the option under the third proviso to the section to adopt the value of the asset on 1st January 1939 as its actual cost, by deducting from the market value of the asset on the date of transfer the value of the asset on January 1, 1939. In the present case the department accepted the market value of the assets on February 1, 1948, the date of transfer, and estimated the value of the assets on 1st January 1939, at a certain figure, and brought to tax the difference between the two, rejecting the assessee 's claim under section 25(3) to the benifit of exemption from taxability arising from discontinuance of the business. The Appellate Tribunal confirmed the order. It rejected the contention of the assessee that the evidence on the record showed that the market value of some of the assets on 1st January 1939 exceeded the value as estimated by the department and that therefore the capital gains to be taxed would be much less, by merely recording a bare conclusion that the value of the assets on 1st January 1939 could not be more than the estimated value, without considering the evidence. The High Court, on reference, (1) held against the.assessee that it was not entitled to the benefit under section 25(3), and (2) held aginst the department that the Tribunal misdirected itself in not considering the evidence produced before the Income tax Authorities regarding the valuation on 1st January 1939. The assessee and the Commissioner of Income tax appealed to this Court. HELD : (1) It is only income earned by carrying on business that is entitled to exemption under section 25(3). Capital gains, though by the definition in section 2(6C) are income and liable to tax by virtue of section 6 read with section 12B, not being income which arises from a trading activity, are not entitled to such exemption. [98OB C] Commissioner of Income tax, Bombay City I vs Chugandas & Co. ; and Commissioner of Income tax, Madras vs Express Newspapers Ltd. , referred to. [Whether an assessee was entitled to exemption under section 25(3) in respect of a receipt, such as capital gains, which was not chargeable is income under the Income tax Act 7 of 1918, not decided.] [979E] (2) Under the scheme of the Income tax Act, the Appellate Tribunal is the final authority on questions of fact. While the onus lies upon the 9 7 2 assessee to prove the market value of the assets on January 1, 1939 the Tribunal, in disposing of the appeal under section 33(4) of the Act, is bound to hear the parties and consider the entire evidence produced before the Income tax Authorities. In the present case, therefore, the Tribunal bad to determine, on a consideration of all the evidence, the value of the assets of the assessee on 1st January 1939. [977E G]

Appeal No. 176 of 1956 and Petition No. 165 of 1955. Appeal by special leave from the judgment and order dated March 15/23,1955 of the Orissa High Court, in Civil Reference No, 4 of 1954, 169 N. C. Chatterji, D. N. Mukherjee and R. Patinaik, for the appellant. Porus A. Mehta and R. H. Dhebar, for respondent No. 1. 1956. November 29. The Judgment of the Court was delivered by S.K. DAS J. The appellant is Shri Lalit Mohan Das, a pleader of about 25 years ' standing. who ordinarily practiced in the Courts at Anandapur in the district of Mayur bhanj in Orissa. The Munsif of Anandapur, one Shri L. B. N. section Deo ' drew up a proceeding under sections 13 and 14 of the , against the pleader for grossly improper conduct in the discharge of his professional duty and submitted a report to the High Court through the District Judge of Mayurbhanj on December 12, 1953. The District Judge forwarded the report, accompanied by his opinion, to the High Court of Orissa on March 9, 1954. The recommendation of the Munsif was that the pleader should be suspended from practice for one year. The reference was heard by the High Court of Orissa ' and by its order dated March 15, 1955, the High Court came to the conclusion that the pleader was guilty of grave professional misconduct and suspended him from practice for a period of five years with. effect from March 15,1955, Shri Lalit Mohan Das then obtained special leave from this Court to appeal against the judgment and order of the Orissa High Court dated March 15 /23, 1955. He also filed a petition under article 32 of the Constitution. Learned counsel for the petitioner has not pressed the petition under article 32 and nothing more need be said about it. We proceed now to deal with the appeal which has been brought to this Court on special leave. The charges against the appellant were the following On July 15, 1953, the appellant was appearing on behalf of the defendant in Suit No. 81 of 1952 pending before the Munsif of Anandapur. On that date, there were two other suits pending before the same Munsif. There were petitions for time in all the three suits. 22 170 The Munsif wanted to take up the oldest suit for hearing, and the oldest suit being Suit No. 54 of 1952, it was taken up first and five witnesses for the plaintiff were examined. Suit No. 81 of 1952 was postponed to August 18, 1953. The appellant, who appeared for the defendant in that suit, was informed of the postponement. When so informed, the appellant made a remark in open Court and within the hearing of the Munsif to this effect: " If the Peshkar is gained over, he can do everything." He then left the Court. The Munsif was surprised at the remark made and asked the appellant to explain his conduct, by means of a letter sent the same day. As the appellant sent no reply, the Munsif wrote again to the appellant on July 18, 1953. To this letter the appellant sent the following reply: "Dear Sir, I am painfully constrained to receive memo after memo for some imaginary act of mine not in any way connected with my affairs for which if any explanation is at all warranted officiallv. For your second memo I felt it desirable as a gentleman to reply. Further I may request you to be more polite while addressing letters to lawyers. Yours faithfully, Sd. L. M. Das. Pleader. " It is obvious that the letter of the appellant was couched in very improper terms and considerably strained the relation between the Munsif and the appellant. The appellant, it may be stated here, was at that time the President of the Anandapur Sub Divisional Bar Association which consisted of about 14 legal practitioners. On July 21, 1953, Shri B. Raghava Rao, who was the predecessor in office of Shri Deo, came to Anandapur. He was the guest of Shri A. V. Ranga Rao, the Sub Divisional Officer. One Shri N. C. Mohanty, a pleader of. Anandapur and who was related to the appellant, came to invite the two Munsifs to a luncheon on the occasion of a housewarming ceremony. On hearing about the trouble between Shri Deo 171 and the appellant, Shri B. Raghava Rao interceded and it appears that the appellant was persuaded to come to the house of the Sub Divisional officer and to ,say that he was sorry for what had happened in court on July 15, 1953, and that he did not happean to insult Shri Deo; Shri Deo, it appears, accepted the apology and for the time being. the trouble between the two was smoothed over. A second incident, however, took place on September 25, 1953. The appellant was appearing for a defendant in another suit before the Munsif It was Suit No. 101 of 1952. This suit was fixed for hearing on September 21, 1953. As that date was a holiday, the suit was taken up 'on September 22, 1953. Another suit, Suit No. 86 of 1952, was also fixed for hearing on that date but Shri N. C. Mohanty, pleader for the defendants in that suit, took time on the ground of the illness of one of the defendants, which ground was supported by a medical certificate. In Suit No. 101 of 1952 also, the defendants applied for time. on the ground of illness of their witnesses; but there being no medical certificate in support of the allegation of illness and no witnesses having been summoned in that suit, the learned Munsif refused to grant time, and one Shri P. N. Patnaik who also represented the defendants agreed to go on with the suit. The suit was then heard for two days, i. e., on September 22 and 23, 1953, and at the request of the defendants ' lawyers the hearing of arguments was postponed to September 25, 1953. On that date the appellant came to Court accompanied by his junior Shri P. N. Patnaik, for the purpose of arguing the case on behalf of the defendants. At the very outset of his arguments the appellant made the follwing remarks:The Court is unfair to me, while the Court was fair to Mr. Misra (meaning Shri Bhagabat Prasad Misra who was appearing for the plaintiffs in that suit). The Court is accommodating and granting adjournments to Mr. Misra while it was not accommodating me.". The Munsif took objection to these remarks but nothing untoward happened. The appellant concluded his arguments. 172 A third incident brought matters to a climax, and this incident took place on September 29, 1953. The appellant was appearing for the defendants in Suit No. 6 of 1951. In that suit a preliminary point of jurisdiction and sufficiency of court fees was raised and Shri B. Raghava Rao, the predecessor in office of Shri Deo, had dealt with the point and decided it against the appellant 's client. A Civil Revision taken to the High Court was also rejected. 'The appellant, however, again pressed the same preliminary point and on September. 29, 1953, Shri Deo passed an order dismissing the preliminary objection. When this order was shown to the appellant, he stood up and shouted at the top of his voice I 'I on behalf of the Bar Association, Anandapur, challenge the order of the Court,. The Court has no principle as it is passing one kind of order in one suit and another kind of order in another suit. " The Munsif, it appears, was disgusted at the conduct of the appellant and he stood up and, left the Court room, directing the bench clerk to send a telegram to the District Judge. , A telegram was accordingly sent to the District Judge asking him to come to Anandapur. The District Judge asked for a detailed report which was sent on October 1, 1953. On October 5, 1953, the Munsif drew up a proceeding against the appellant on a charge under section 13 of the referring therein to the three incidents mentioned above. The appellant was asked to show cause by October 26, 1953. On November 3, 1953, the appellant denied the allegations made and took up the attitude that the Munsif was not competent to hold the enquiry on the ground that the Munsif was in the position of a complainant. The appellant gave a different version of what happened on the three dates in question. With regard to the incident of July 15, 1953, the appellant 's plea was that some other client had come to him. in connection with a criminal case pending in another Court and to that client the appellant had said that an enquiry should be made from the Peshkar as to the date fixed. With regard to the incident, on September 25, 1953, the plea of the appellant was^ total denial, and with regard to the last incident, the appellant said 173 that the Munsif behaved rudely and wanted to ' assault the appellant, for which the appellant appears, to have filed a petition to the Governor of Orissa on September 30, 1953, for according sanction for the prosecution of the Munsif. It may be stated here that on October 8, 1953, a resolution was passed, numbered Resolution 6, which purported to be a resolution on behalf of the Bar Association, Anandapur. The resolution was in these termis: "Resolved that on September 29, 1953, the Court 's (Munsif) action on the. dais in rising from the chair, thumping on the table, shouting at the top of his voice, and using the words 'shut up ' against one honourable member (President) of this Bar Association is quite unprecedented. , undesirable and affecting the prestige of the Bar and may cause apprehension in the mind of the litigant public to get fair justice. " It may be stated that some other members of the Bar dissociated themselves from the a id resolution at a later date. The proceeding against the appellant under the stated, as we have said earlier, on October 5, 1953, and the appellant filed his written statement on November 3, 1953. On November 5, 1953, the Munsif sent the record to the District Judge in connection with the plea of the appellant that the enquiry should be made by some other judicial officer. The District Judge, however, took the view that under the provisions of sections 13 and 14 of the the enquiry should be made by the Munsif himself and the records were accordingly sent back to the Munsif. Thereafter, the appellant non co operated and did not appear at the enquiry though more than one communication was sent to ham The enquiry was concluded on December 11, 1953, and the Munsif submitted his report. the High Court through the District Judge on December 12, 1953. On December 22, 1953, the appellant filed an application to the Additional District Judge for time to move the High Court to get an order to have the matter heard by some other judicial officer. One month 's time was 174 accordingly granted and the Additional District Judge, for some reason which is not very apparent, sent the record back to the learned Munsif In the meantime, the Additional District Judge, it appears, made an effort to settle the trouble. On December 23, 1953, he met the members of the Bar Association and the Munsif at the inspection bungalow at Anandapur on his way to Mayurbhanj. At a meeting held there, a copy of a draft resolution to be passed by the members of the Bar Association, Anandapur, was made over. This draft resolution was in these terms: "This Association re rets very much that an incident relating to the bench clerk of the Civil Court. should have led to the subsequent unhappy differences between the Bench and the members of the Bar. As in the interest of the litigant public it is felt not desirable to allow these strained feelings to continue further, this Association unanimously resolves to withdraw Resolution No. 6 dated October 8, 1953, passed against the Court and communicate copies of the same to the addressees previously communicated. It is further resolved to request the Court to see to the desirability of withdrawing the proceedings that had been started against the various members of the Bar and their registered clerks on their expressing regret to the Court individually in connection with those proceedings. It is further resolved that the members of the Bar involved in the proceedings be requested to take immediate steps in this direction. The Association hopes that the bench clerk who has to some extent been the cause for this friction between the Bench and the Bar would be replaced by a person from a different place at an earlier date. " On January 8, 1954, the appellant appeared in the Court of the Munsif and filed a written apology and expressed his regret. His signature wag taken on the order sheet and the order of that date reads: "Sri L. M. Das, pleader, appears and expresses his regret. So the proceeding No. 2 of 1952 is dropped. Intimate Additional District Judge. " No resolution, however, was passed in the terms 175 suggested by the Additional District Judge. On January 19, 1954, two resolution,% were passed in the following terms: "No. 1. In view of the fact that past misunderstandings between the Munsif and members of the Bar caused by an incident relating to the bench clerk of the Civil Court, have been removed by amicable settlement of differences existing between both parties, it is unanimously resolved that resolution No. 6 dated October 8, 1953, stands withdrawn. No. 2. It is further resolved that the copies of the above resolution be sent to the addressees previously communicated of resolution No. 6 of October 8, 1953. " The learned Munsif, it appears, wanted to see the minute book of the Bar Association, presumably to find out in what terms the proposed resolution was passed. There was again trouble between the Munsif and the appellant over the production. of the minute book. Ultimately, the minute book was produced, and on February 2,1954, the Munsif expressed the view that the resolution passed did not fully carry out the terms of settlement suggested by the Additional District Judge. Accordingly, the proceeding was re opened and the record was re submitted to the District fudge. The District Judge thereupon sent the report of the Munsif to the High Court accompanied by his opinion. The High Court dealt with the report with the result which we have already indicated. The main contention of Mr. N. C. Chatterji, who has appeared on behalf of the appellant is this. He has submitted that there was no valid reason for reviving the proceeding against the appellant, after the proceeding had been dropped on January 8, 1954, on the submission of an apology and expression of regret by his client; because, in substance and effect, the terms of the settlement suggested by the Additional District Judge had been complied with. According to Mr. Chatterji an expression of regret having been made earlier than the passing of the resolutions on January 19, 1954, by the Anandapur Bar Association and the bench clerk having already been transferred from 176 Anandapur, the resolutions could not be in the same terms as were suggested by the Additional District Judge; but the two resolutions passed on January 19, 1954 coupled with the expression of individual regret made on January 8, 1954, complied in substance with the essential terms of the draft resolution which the Additional District Judge had made over on December 23, 1953. Mr. Chatterji has contended that this view of the matter has not been properly considered by the High Court. He has submitted that in view of the order passed by the learned Munsif himself on January 8, 1954, the proceeding against the appellant should be treated as having been dropped and concluded on that date. Mr. Chatterji has also drawn our attention to ground No. VI in the petition for special leave dated May 9, 1955, in which the appellant said that he was " willing and prepared to submit before this Court expressions of unreserved regret and apology for his error of judament and indiscretion, if any, in the discharge of his professional duties. " We cannot accept the contention of Mr. Chatterji that the order passed by the learned Munsif on January 8, 1954, had the effect of terminating and bringing to an end the proceeding against the appellant. The learned Judges of the High Court rightly pointed out that the report of the Munsif dated December 12, 1953, was a report which was submitted to the High Court. Under the provisions of section 14 of the , such a report had to be forwarded to the High Court by the District Judge accompanied by his opinion. It was not open to. the Additional District Judge to send back the record to the Munsif The efforts of the Additional District Judge were, indeed, well intentioned; but at that stage, after the Munsif had made his report to the High Court, the High Court alone Was competent to pass final orders in the matter. Apart, however, from that difficulty, we are not satisfied that the terms of settlement suggested by the Additional District Judge were fully complied with in this case. It is true, that the appellant did express his 177 regret and to that extent the settlement suggested by the Additional District Judge was carried out. It is also true that by the resolutions passed on January 19, 1954, the earlier resolution of October 8, 1953, was cancelled, but one essential and important part of the terms of settlement suggested by the Additional District Judge was that the Association should express regret at what had happened. Resolution No. I dated January 19, 1954, was so worded as to give the impression that the misunderstanding between the Munsif and the appellant was all due to the bench clerk and that misunderstanding having been removed Resolution No. 6 dated October,$, 1953, should be withdrawn. There is nothing in the resolution to show that the appellant was in any way at fault, a fault which he had expiated I by an expression of regret. It may be pointed out that the earlier ,resolution, Resolution No. 6 dated October 8, 1953, had been communicated to a large number of persons and authorities and the later resolution dated January 19, 1,954, passed in the diluted form in which it was passed, could hardly undo the damage which had been made by the earlier resolution. On merits we agree with the High Court that the appellant was undoubtedly guilty of grave professional, misconduct. A member of the Bar undoubtedly owes a duty, to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct land may ask for a review of that order. At the same time, a member of the 'Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must phold the dignity and decorum of the Court and must not do any thing to. bring the Court itself into disrepute. The appellant before us grossly ' overstepped the limits of proprieety when he made imputation$; of partiality and unfairiness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders the appellant was adding insult to injury, because the 'Munsif had merely up held an order of his predecessor on the preliminary point of jurisdiction and Court fees, 23 178 which order had been upheld by the High Court in s revision. Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From that point of view, the conduct of the appellant was highly reprehensible. The appellant gave no evidence in support of his version of the incidents, though he had an opportunity of doingso, if he so desired. The only point left for consideration, is the question of punishment. On a matter of this nature, this Court would be reluctant to interfere with the order of the High Court as respects the disciplinary action to be taken against a member of the Bar who has been guilty of professional misconduct. There are, however, two mitigating circumstances. One is that the learned Munsif himself recommended suspension of practice for one year only. The appellant was suspended from practice with affect, from March 15,1955. The order of suspension has now lasted for a little more than a year and eight months. The second mitigating circumstance is that the appellant did file la written apology and expressed regret to the learned Munsif onJanuary 8, 1954. It is unfortunate that the appellantdid not take up a more contrite attitude in the High Court. In this Court, the appellant tried to make out that the proceeding against him should not have been revived; he however showed his willingness to offer an apology and ex pression of regret Having regard to all the circumstances, we think that the punishment imposed errs on the side of excess. We would accordingly reduece the period of susppusion to, two years only. In the result, the petition, under article 32 is dismissed and the appeal is,also dismissed subject to the reduction of the period of suspension as indicated above. In the circumstances of this case, there will be, no 'order for costs.

The appellant pleader who already had strained relation with the Munsif made certain objectionable remarks in open Court, suggesting partiality and unfairness on the part of the Munsif. The Munsif drew up a proceeding under sections 13, 14 Of the , against the pleader and submitted a report to the High Court through the District judge. An application to the Additional District judge was filed by the pleader, for time to move the High Court to get an order to have the matter heard by some judicial Officer other than the 168 Munsif who had made the report. One month 's time was accordingly granted, and for some reason which is not very apparent, the Additional District judge sent the record back to the Munsif. The Additional District judge made an effort to settle the trouble. It was arranged that the pleader should apologise and a resolution should be passed by the members of the local Bar Association. Accordingly, the pleader appeared in the Court of the Munsif and filed a written apology and expressed his regret, and the Munsif dropped the proceeding. It was later found that the resolution was not passed in the terms suggested by the Additional District judge, and the terms of settlement suggested by the latter were not fully carried out. Accordingly, the proceeding was re opened and the report was re submitted to the District judge who with his opinion forwarded the same to the High Court. The High Court suspended the pleader for 5 years. It was contended on behalf of the appellant that there was no valid reason for reviving the proceeding, after it had once been dropped on the submission of an apology and expression of regret. Held, that the report under section 14 of the is a report which is submitted to the High Court. When a report is made to the High Court by any Civil judge subordinate to the District judge, the report shall be made through the District judge and the report must be accompanied by the opinion of such judge. Once the report has been made, it is not open to the District judge to send back the record to the Subordinate Civil judge, and no order passed by the Subordinate Civil judge can have the effect of terminating or bringing to an end the proceeding. The High Court alone is competent to pass final orders on the report. A member of the Bar is an officer of the Court, and though he owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client, he also owes a duty to the Court and must uphold the dignity and decorum of the Court in which he is appearing. Making amputations of partiality and unfairness against the subordinate Civil judge in open Court is scandalizing the Court in such a way as to pollute the very fount of justice ; such conduct is not a matter between an individual member of the Bar and a member of the judicial Service. With regard to disciplinary action against a member of the Bar, the Supreme Court would be reluctant to interfere with the order of the High Court unless there are clear mitigating circumstances.

Appeal No. 1622 of 1985 From the Judgment and Order dated 26.9.1984 of the Allahabad High Court in Writ Petition No. 5892 of 1983. R.B. Mehrotra for the Appellant. Raja Ram Agarwal, D.N. Mukharjee and M.M. Kashtriya for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. In the administration of justice process often makes a mockery of the purpose. This appeal is an example of the same. This appeal by special leave arises out of the judgment and order of the High Court of Allahabad dated 26th Septem ber, 1984. The question involved in this appeal is whether the appellant is entitled to take advantage of the procedure under section 24 C of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 as amended from time to time (hereinafter called the said Act) in respect of the First floor of House No. 217 218 415 Machhli Bazar, Sadar, Meerut Cantonment, of which the appel lant is the owner and the landlord. The first floor of the said building was in the tenancy of respondent No. 1 on a monthly rent of Rs. 60. The appellant was at the relevant time posted as Superintendent, Military Farm, Meerut Canton ment. In that capacity he was allotted Government quarter No. 47 belonging to the Union of India. On 8th November, 1979 he was given a notice to vacate the Government quarter by the Deputy Assistant Director intimating that since the appellant had his own house at Meerut Cantonment, he should vacate the government quarter allotted to him by the order dated 8th August, 1979. In view of that the appellant moved an application under section 24 C of the said Act. It is the case of the appellant that he owns no other house except the one involved in the present appeal. Section 24 B(1) of the said Act which gives the right to move under section 24 C of the said Act provides as follows: "S.24 B(1) Where a landlord who, being a person in occupation of any residential public building is required, by, or in pursuance of, any general or special order made by the Government or other authority concerned, to vacate such building, or in default, to incur certain obligations, on the ground that he owns, in the same city, municipality, notified area or town area, a residential building either in his own name or in the name of any member of his family, there shall accrue, on and from the date of such order. to such landlord, a right to recover immediately possession of any building let out by him: Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the same city, municipality, notified area or town area, two or more dwelling houses, whether in his own name or in the name of any member of his family, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover." In this appeal we are not concerned with other sub sections and other provisos of the said section. The said application was contested by the tenant on number of grounds including the ground that the accommoda tion in the possession of the appellant was sufficient to accommodate his family members. By an order dated 17th August, 1981, the application of the appellant was allowed by the Delegated Authority. He held that the appellant was in the government service and he was due to retire on 30th June, 1980 and he had moved an application under the 416 provisions of section 24 B for getting his house vacated and getting possession of the same. It was further held by him that in this house there was a joint latrine which created difficulty for the appellant. Therefore the appellant had prayed that the possession of the first floor of the house in dispute should be delivered to him at an early date. On this, notice having been given to the respondent, he stated in his counter that the application was not maintainable and had further contended that the present proceedings under section 24 C of the Act could not be taken, according to him, because the appellant did not need any residential accommodation whereas the tenant objector and respondent in this case was a poor man and had no other house. It was contended before the Delegated Authority that the applicant landlord had two residential houses one in which the appellant landlord was living and the other in which the respondent/tenant objector was living. It was the submission of the respondent tenant that the appellant landlord was in possession of residential accommodation and as such he had no right to get another residential accommodation vacated from the tenant. The Delegated Authority observed as fol lows: "It is admitted by both the parties that the entire house is one and in its first floor tenant is living and the ground floor is in possession of the landlord. Both the portions of the house are parts of one house and there fore there is no question of accepting it as a separate residential unit particularly when the tenant objector has himself in his own affidavit and objections stated that the bath room and the latrine is on the ground floor i.e it is situated in the portion of the landlord. " It may be stated that respondent tenant had filed an affidavit showing his need. The Delegated Authority who was the Addl. District Magistrate held by his order dated 17th August, 1981 that the application of the appellant should be allowed and there should be an order for eviction. There was an appeal from the said order before the Additional District Judge. He, in his order, set out the facts referred to hereinbefore. He also referred to a report dated 11th Decem ber, 1979 by the Inspector who supported the appellant 's case. Before the appellate authority two points were urged namely, that the application was not maintainable under section 24 B or under section 24 C of the said Act, and secondly that the accommodation in the occupation of the landlord was sufficient for his need. The tenant respondent contended before the learned District Judge that as the landlord was already in occupation of the ground floor of the house in question, he was not entitled to move an appli cation under the relevant sections. Reliance was placed on the definition of 'building ' and the interpretation of the 'dwelling house '. It was contended on behalf of the 417 landlord that the building as a whole had to be considered and not in part. The Delegated Authority was unable to accept the contention urged on behalf of the tenant and held that the building meant a single structure and might be in occupation of more than one person. It has also been held that the house having a common courtyard and a common en trance would be a single house and a landlord should not be forced to live with an outsider or with a person with whom he had no happy relations. The Appellate Authority held that the building in question was just on the head of the portion of the ground floor in occupation of the landlord. The tenant had to pass daily from the courtyard on the ground floor in order to attend the call of nature. It was contended that no eviction of the landlord from the premises in his occupation had taken place but merely action had been indicated. Therefore, recourse to section 24 B and section 24 C of the Act was unwarranted. The learned District Judge was unable to accept those conten tions. He accordingly dismissed the revision application. An application was moved under Article 226 of the Con stitution before the High Court and the High Court by the impugned judgment and order has set aside the order of eviction. It held that the building was situated within the Cantonment of Meerut. The U.P. Act No. 28 of 1976 added Chapter IV A as to the question whether this Act would apply to buildings constructed and situated within the cantonment limit, it was observed that by the notification issued in exercise of the powers conferred by section 3 of the Canton ments, (Extension of Rent Control Laws) Act, 1957, the Central Government had extended to all the cantonments in Uttar Pradesh the provisions of the present Act in question as in force on the date of notification, and as a result of the issuance of the said notification Chapter IV A, became applicable to the building in question, according to the High Court. It was, however, urged before the High Court on behalf of the respondent that Chapter IV A had been applied to the Cantonment areas on a subsequent date, i.e. 27th February, 1982, the Act being not applicable to the accommo dation in question in November, 1979 when the application under section 24 B of the Act was filed by the respondent and as such the same was liable to be dismissed. It was, however, conceded by respondent that the revision order had been passed by the Additional District Judge on 27th April, 1983. It was therefore submitted that the proper course in the circumstances of the instant case would have been to send back the case for fresh decision. Reliance had been placed by the appellant on the decision in the case of Jai Singh Jairam Tyagi etc. vs Mamanchand Ratilal/Igarwal and Ors., ; However, as the learned judge felt that on the second point the respondent was entitled to succeed, he did not decide this point taken in the writ petition by the respondent. The second point urged before the learned judge was that as the appellant landlord was living in 418 the ground floor of the said house, section 24 B was not maintainable. The learned judge found 'that the central idea of conferring the power on such a landlord to recover imme diately possession was that he was being evicted from his government quarter for residence. The learned judge observed that the legislature did not want to leave such a person at the mercy of the laws delay. Such a landlord was a class by himself and was entitled to take summary proceedings. His case had to be urgently dealt with. But, according to the High Court, if he had any house in the same, building then he would not come within the purview of section 24 B of the Act. He was, however, not without a remedy. He can take recourse to section 21(1A) of the said Act. It was noted while chapter IV A which incorporated section 24 B and 24 C provided summary trial, the object of the two provisions namely section 21 on the one hand and section 24 B and 24 C of the said Act on the other differ from each other. In this connection reliance was placed on certain decisions of this Court. After referring to certain decisions, it was held that the expression "to recover immediately" indicated the ground where section 24 B could be applied there, there was consequential urgency to recover the possession of the building. According to the learned judge, there would be no consequential urgency to recover if he was already in pos session of a dwelling house or where it could be made avail able to him at his choice. The High Court accordingly al lowed the application under article 226 and set aside the orders of the delegated authority and the appellate authori ty. Aggrieved by the said decision, the appellant has come up to this Court. Two questions, therefore, arise in this appeal namely, firstly, whether the building with which we are concerned and which is situated in Cantonment of Meerut would be governed by the provisions of section 24 B and section 24 C of the Act, and secondly, whether in view of the facts and circumstances found, have the grounds been made out under section 24~B of the Act for eviction of the respondent from the premises in question in summary manner? It is not dis puted that the building in question is within the cantonment limits. In the Act of 1972 (Act No. 13 of 1972), there was an amendment in 1976 and Chapter IVA was added by the U.P. Act. No. 28 of 1976 with effect from 1976. Section 24A, section 24 B and section 24 C are contained in the said chapter. The said Amendment Act No. 28 of 1976 did not state whether the said chapter would be applicable to buildings constructed and situated within the cantonment limit. The first question posed before the High Court but not answered by it was whether in view of the answer given to the second question, the provisions of those sections would be applica ble to the building in question. By notification issued in the exercise of section 3 of the , the Central Government had 419 extended to all the Cantonments in Uttar Pradesh the provi sions of the Act in question, as in force on the date of that notification, in the State of U.P. The said notifica tion being Notification No. S.R.O. 259 was issued in exer cise of the powers conferred by section 3 of the said Act and in supersession of the notification of the Government of India in the Ministry of Defence. The said Notification extended to all the Cantonments in the State of Uttar Pra desh the Act (U.P. Act. No. 13 of 1972), as in force on the date of the notification with certain modifications with which we are not concerned. It was, therefore, contended that it could not have by virtue of that notification intro duced the provisions of Chapter IV A of the said Act to the Cantonment area which themselves were introduced by Amend ment Act No. 28 of 1976. There was another notification dated 17th February, 1982 being Notification No. S.R.O. 47. The said notification was also issued under section 3 of the aforesaid Act of 1957, mentioned hereinbefore and it stated that in supression of the previous notification, the Govern ment extended to all the cantonments in the State of Uttar Pradesh the provisions of the Act, with certain modifica tions with which we are not concerned in this case. The 1957 Act authorises the Government to issue the notification as contemplated therein. In the instant case, as noted hereinbefore, the appel lant had moved an application under section 24 C of the Act on 14th December, 1979 in respect of the premises in ques tion on receipt of notice to quit the government premises in his occupation. The delegated authority made the order of release on 17th August, 1981. There was a revision applica tion and it was disposed of by the Additional District Judge dismissing the revision on 27th April, 1983. Therefore when the order was made in this case and the application was filed the building in the cantonment area did not come within the ambit of the Act in question. When, however, the revisional order was passed by the Additional District Judge, the Act had come into operation and the building. in question was within the purview of the operation of the Act. In view of the ratio of Jai Singh Jairam Tvagi Etc. vs Mamanchand Ratilal Agarwal and Ors. (supra) it must be held that the provisions of Chapter IVA of the Act would be applicable. The amending Act was passed for the express purpose of saving decrees which had already been passed. Therefore action under section 24 C of the Act in this case was justified. The High Court did not decide this point because it was of the opinion that the second point which we shall note presently, the High Court was in favour of the respondent. We are, however, of the opinion that the first point urged on behalf of the respondent cannot be accepted in view of the position in law as discussed hereinbefore. It was submitted on behalf of the respondent that section 24 B gave substantive rights to the appellant and section 24 C was the procedure for enforcing those substantive rights. Therefore, these were not only procedural 420 rights. Therefore, there was no question of retrospective operation to take away vested fight. We are, however, of the opinion that it would be an exercise in futility if the application is dismissed on this ground it can be fried again and in view of the subsequent legislation as noted hereinbefore it was bound to succeed on this point. In exercise of our discretionary power under article 136 of the Constitution it would not be proper to interfere in the facts and circumstances of the case on this ground. In the premises in view of the ratio of the decision of this Court in Jai Singh 's case (supra) and reason mentioned hereinbe fore this contention urged on behalf of the respondent must be rejected. The second question which is the substantial question in this appeal is, whether in view of the fact that respondent No. 3 was in occupation of the ground floor of premises No. 217 218 Machhli Bazar, Sadar, Meerut Cantt. the first floor of which was in the tenancy of the appellant, the applica tion under section 24 B of the Act was maintainable? We have noted the provisions of section 24 B of the Act. It may be mentioned that section 24 A of the Act indicated that the provisions of Chapter IV A or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary. The whole purpose behind section 24 A or section 14 A of the Delhi Rent Con trol, 1958 which are in pari materia is that when a landlord or a person is in occupation of a government accommodation and has to leave that accommodation and yet he has residen tial building in the area in his own name or in the name of any member of his family, then such a person or landlord will have a right accrued to him to recover immediate pos session of the building let out by him. The rationale behind these provisions or similar provisions is that when a gov ernment servant lets out his house and is without residen tial premises then if he is the owner of any residential building either in his name or in the name of any member of his family then he has a fight to ask for immediate recovery of the said residential building. It is an urgency provision to help the government servant to have residential accommo dation vacated if he is obliged to vacate his governmental residential accommodation. The proviso to section 24 B deals with the situation where the landlord has more than one dwelling house, he will exercise a choice in respect of one. This is not the situation in the instant case. But it may be noted that sub section (1) of section 24 B uses the expres sion 'if the landlord owns residential building ' and the proviso uses the expression 'dwelling houses '. Our attention was drawn to the definition of 'building ' and 'dwelling house ' appearing in some Acts. In the Act in question, however, there is no definition provided, except that 'building ' is defined in clause (i) to section 3 which is not relevant for our present purpose. It is therefore necessary to 421 determine what kind of a residential building or dwelling house must a landlord possess to be entitled to the urgency procedure of section 24 A to 24 C of the Act to recover immediate possession. In this connection it will be neces sary to examine the type of 'building ' in question in this case. Counsel for the appellant drew our attention to sec tion 3(i) and he further drew our attention to section 12(4), section 16(1)(b), section 21(1), section 21(1 A) of the Act in aid of the submission that whenever the legisla ture intended to mean part of the building the legislature has said so expressly. Sarwan Singh & Anr. vs Kasturi Lal, ; was dealing with the . Dealing with section 14A of the Delhi Rent Act, this Court observed that section 14A provided that where the landlord who, being in occupation of residential premises allotted to him by the Central Government, was required to vacate such residential accommodation on the ground that he owns residential accommodation within the Union Territory, there shall accrue to such a landlord notwithstanding any thing contained in any other law for the time being in force fight to recover immediately possession of the premises. In view of the facts in the case involved before us, where the landlord, the appellant was in possession of a par1 of the building in question which could be considered in certain circumstances to be a residential unit by itself, the obser vations made in that decision are not relevant for the present purpose. In this case we are concerned with the question whether the type of accommodation which was in the possession of the landlord would constitute residential building or dwelling unit in order to disentitle him to seek recourse to the urgency procedure of section 24 A of the Act. In Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., ; section 14A of Delhi. Rent Control Act,, 1958 came up for consideration. This Court held in the said decision that section 2(i) of the Delhi Act covered any building or part of the building leased for use, residen tial, commercial or other. To attract section 14A of that Act the landlord must be in occupation of residential prem ises allotted to him by the Central Government. He must be required by order of that Government to vacate the said residential accommodation. Residential premises are not only plots which are let out for residential purposes not do all kinds of structures where humans may manage to dwell are residential. Use or purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential use, even by making some changes. can be designated residential premises. We are of the opinion that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabili ties of technology and life style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the 422 meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd 's case (supra) that legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on the context and purpose of the statute of the project promoted. Our attention was drawn to the decision of the learned single judge of the Delhi High Court in Smt. V.L. Kashyap vs R.P. Puri (Delhi), 1977 (1) Rent Control Reporter Vol. 9 page 449. The decision was dealing with section 14A of the Delhi Rent Control Act, 1958 which is more or less similar to section 24 A to 24 C of the Act under consideration. The learned judge observed that in respect of exercise of fight under section 14A of the Delhi Act, an important proviso had been inserted. It was with the effect that fight of eviction under section 14A of the Delhi Act was confined only to one dwelling house and the landlord has no right to recover possession of more than one dwelling house in exercise of section 14A of the Delhi Act. Reference has to be made to another decision under the Delhi Rent Control Act by a learned single judge of the Delhi High Court in S.S. Makhij ani vs V.K. dotwani, 1977 Rajdhani Law Reporter 207. There the learned judge referred to another decision and expressed concurrence with the said decision where it was held that in order to determine whether two pans of a building consist of one or more dwelling houses, the tests to be applied were thus: (1)consider the building and see whether it constitut ed a whole house or a part of the house; (2)if one part was reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building then both the parts of the building constituted one dwelling house within the meaning of proviso to section 14A of Delhi Act. To arrive at this finding, the learned judge observed that the relevant factors to be taken into consideration were (a)the situation; (b)entrance; (c)the Municipal Number; (d) the nature of the construction; (e) inter communication between the two parts; (f)completeness and independence of each unit; and (g) other relevant material circumstances. None of these taken singly was decisive but the cumulative effect should be considered. We are of the opinion that the tests indicated above provide workable guide. Stroud in his "Judicial Dictionary" Vol. 2 at page 858 (4th Edition) noted that 'dwelling house ' is obviously a house with the super added requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi. In this connection reference may be made to the meaning of 'dwelling house ' in Corpus Juris Secundum Vol, 28 pages 604 605 where dwelling place is mentioned. See also in this connection 'dwelling ' or 'dwelling house ' where it was mentioned that the term was not free from ambiguity, multi ple meanings and many definitions have been given. The meaning must suit the purpose and 423 the idea behind the statute in question in a particular case. For the meaning of 'dwelling house ' it may be instruc tive to refer to the Words and Phrases Legally Defined Second Edition, Volume2 page 127 wherein it has been men tioned, inter alia, that 'dwelling House ' meant a building used or constructed or adapted to be used wholly or princi pally for human habitation and 'dwelling house ' included any part of a house where that part was occupied separately as a dwelling house. Black 's Law Dictionary 1979 Edn. (Fifth Edition) page 454 defines 'Dwelling ' as the house or other structure in which a person or persons live. Narain Khamman vs Parduman Kumar Jain, ; , was dealing with section 14A of the Delhi Rent Control Act, 1958 which is more or less similar to the section involved in the present appeal. At page 1032 of the report the position has been discussed. There it was observed that if a person had, however, other premises which he owned either in his own name or in the name of his wife or depend ent child, which were available to him for residential accommodation or into which he had already moved in, he could not maintain an application under section 14A of the Delhi Rent Control Act. We have considered the maps at Annexure 4 as well as at page 108 of the Paper Book. It appears that there is a staircase in the front which leads to the first floor and one need not go to the ground floor. There are two latrines in ground floor. There is,; however, a common passage and in Order to come down to that passage, one has to use another staircase which is a common staircase. In this context the question is whether the premises in question could be sepa rately used. In our opinion, the High Court in the facts of this case was not in error in holding that the two pans could be separately enjoyed. After 1962 the mother of the appellant resided in the portion in the occupation of the landlord now used separate ly and independently and the same is in occupation of the appellant and at that time when the mother of the appellant was alive the appellant used to occupy the said portion. In our opinion the conduct of the parties is relevant in con sidering whether parts or portions of a building could be a dwelling house. It may also be mentioned that after the death of the mother of the appellant the portion was sepa rately let out and a tenant used to occupy the said portion separately. Here in the instant case, Shri Melhrotra, coun sel for the appellant however, stressed that in order to be a dwelling house or residential accommodation, it must be capable of being separately enjoyed and separately locked up. , is true that without that facility, the concept of safe and separate dwelling gets hampered. Yet in view of the fact that premises can be enjoyed with common facilities for dwelling purposes would constitute a separate and independ ent dwelling houses. It has to be borne 424 in mind that in this case the issue is not whether the premises is sufficiently comfortable or whether the portion in question was sufficiently comfortable for dwelling or residence of the appellant or a party but the question is whether the house or the portion can be separately consid ered to be dwelling. If the portion in the occupation of the appellant could not be separately dwelled in by the appel lant, it was only then that the extra ordinary provisions of section 24A, 24 B and 24 C could be resorted to. Otherwise the owner or the landlord is entitled to take recourse to other provisions of Rent Act contending that the premises in question is reasonably required bona fide for the landlord 's use but in the situation like the present the landlord was not entitled to take recourse to the urgency provisions in section 24 A, 24 B and 24 C of the Act. In our opinion to be the dwelling house or residential accommodation it must be capable of being separately enjoyed and whether or not the premises in question can be so enjoyed does not depend merely because that a portion cannot be locked up independ ently or separately. In that view of the matter, having regard to the nature of the user, we are of the opinion that the High Court was right. Therefore while we affirm the decision of the High Court, in terms of the observations made by this Court in Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., (supra), we direct that the appellant if he so wants or desires can make arrangements for separation of the two units and to this the respondent tenant would not be enti tled to take any objection. This, however, will not prevent the appellant to seek eviction by other provisions of the Act or by any other appropriate legal proceeding if he is otherwise entitled to. In the premises this appeal fails with the aforesaid observations. In the facts and in the circumstances of this case, the parties will pay and bear their own costs. M.L.A. Appeal dismissed.

The U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act of 1972 was amended in 1976 and Chapter IV A was added. Section 24A, section 24B and section 24C are contained in the said Chapter. They provide for summary trim of eviction petitions in certain circumstances. By a Notification dated 17th February, ' 1982 issued under s.3 of the Cantonments (Extension of Rent Control Laws) Act of 1957, the Government extended to all the cantonments in the State of Uttar Pra desh the provisions of the Rent Act. The appellant a government servant, was in occupation of the government accommodation at Meerut. He was also owner of a house situated in the cantonment area in Meerut. The house had a ground floor and a first floor with common bathroom and latrine situated on the ground floor. It had also a common courtyard and a common entrance. The ground floor of the house was in his possession while the first floor had been let out to the respondent tenant. Pursuant to a notice received by the appellant landlord to vacate the government quarter, he filed an eviction petition against the respondent tenant in respect of the first floor of the premises under section 24 C of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on 14th December, 1979. The respondent tenant contested the application on the ground that the appellant landlord had two residential houses one in which he was living and the other in which the respondent tenant was living and since the appellant landlord was in possession of a resi dential accommodation, he had no right to get another resi dential accommodation vacated from the tenant under the provisions of section 24B or 24C of the said Act. The Delegated Authority 412 allowed the petition by its order dated 17th August, 1981 and its order was confirmed in revision by the Additional District Judge. Aggrieved by the order of the Additional District Judge, the respondent tenant moved the High Court under Article 226 of the Constitution. It was contended by the respondent tenant before the High Court that (i) Chapter IV A had been applied to the Cantonment areas on a subsequent date, i.e. 27th February, 1982, the Act being not applicable to the accommodation in question in November, 1979 when the appli cation under s.24B of the Act was filed by the respondent and as such the same was liable to be dismissed; and (ii) that as the appellant landlord was living in the ground floor of the said house, petition under s.24B was not main tainable. The High Court upheld the second contention of the respondent tenant and set aside the order of eviction with out deciding the question as to whether the Act would apply to buildings constructed and situated within the cantonment limit. Dismissing the appeal, this Court, HELD: 1(i) The whole purpose behind s.24A or s.14A of the Delhi Rent Control Act, 1958 which are in pari materia is that when a landlord or a person who is in occupation of a government accommodation and has to leave that accommoda tion and yet he has residential building in the area in his own name or in the name of any member of his family, then such a person or landlord will have a right accrued to him to recover immediate possession of the building let out by him. The rationale behind these provisions or similar provi sions is that when a government servant lets out his house and is without residential premises then if he is the owner of any residential building either in his name or in the name of any member of his family then he has a right to ask for immediate recovery of the said residential building. It is an urgency provision to help the government servant to have residential accommodation vacated if he is obliged to vacate his governmental residential accommodation. The proviso to s.24B deals with the situation where the landlord has more than one dwelling house, he will exercise a choice in respect of one. [420 E F] 1(ii) Subs. (1) of s.24B uses the expression "if the landlord owns residential building" and the proviso uses the expression "dwelling houses". In the Act in question, howev er, there is no definition provided except that 'building ' is defined in clause (i) to section 3 which is not relevant for the present purpose. It is therefore necessary to determine what kind of a residential building or dwelling house must a landlord possess to be entitled to the urgency procedure of section 24A to 24C of the Act to recover immediate possession. [420 G, H 421 A] 2(i) Law should take pragmatic view of the matter and re spond to the 413 purpose for which it was made and also take cognizance of the current capabilities of technology and life style of the community. The purpose of law provides a good guide to the interpretation of the meaning of the Act. The legislative futility is to be ruled out so long as interpretative possi bility permits. [421 H 422 A] 2(ii) A dwelling house means a building used or con structed or adapted to be used wholly or principally for human habitation and dwelling house includes any part of a house where that part is occupied separately as a dwelling house. Therefore, to be a dwelling house or residential accommodation it must be capable of being separately enjoyed and whether or not the premises in question can be so en joyed does not depend merely because that a portion cannot be locked up independently or separately. Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., ; , relied upon. Stroud 's "Judicial Dictionary. " Vol. 2 at page 858 (4th Edition); Corpus Juris Secundum Vol. 28 pages 604 605, Words and Phrases legally defined, 2nd Edition, Vol. 2 page 127 and Black 's Law Dictionary 1979, 5th Edition page 454, referred to. In order to determine whether two parts of a building consist of one or more dwelling houses, the tests to be applied are; (i) consider the building and see whether it constitutes a whole house or a part of the house; (ii) if one part is reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building then both the parts of the building constitute one dwelling house and to arrive at this finding the relevant factors to be taken in consideration are: (a) the situation; (b) en trance; (c) the Municipal Number; (d) the nature of the construction; (e) inter communication between the two parts; (f) completeness and independence of each unit; and (g) other relevant material circumstances. None of these taken singly is decisive but the cumulative effect should be considered. [422 D F] In the instant case, after the death of the mother of the appellant the portion was separately let out and a tenant used to occupy the said portion separately. There fore, in view of the fact that the premises can be enjoyed with common facilities for dwelling purposes, it would constitute a separate and independent dwelling houses and the High Court in the facts of the case was not in error in holding that the two parts could be separately enjoyed. If the portion in the occupation of the appellant could not separately dwelled in by the appellant, it was only then that the extraordinary provisions of section 24A, 24B and 24C could be resorted to. Otherwise the owner or the landlord is entitled.to take recourse to other provisions of the Rent Act contending that the premises in 414 question is reasonably required bona fide for the landlord 's use but in the situation like the present, the landlord was not entitled to take recourse to the urgency provisions in section 24A, 24B and 24C of the Act. [423 F 424 C] Jai Singh Jairam Tvagi etc '. vs Mamanchand Ratilal Agarwal and Ors., ; , relied upon. Sarwan Singh & Anr. vs Kasturi Lal, ; , inap plicable. V.L. Kashyap vs R.P. (Delhi), 1977 (1 ) Rent Con trol Reporter Vol. 9 page 449, S.S. Makhijaniv. V.K. Jotwa ni, 1977 Rajdhani Law Reporter 207, and Narain Khamman vs Parduman Kumar Jain; , , referred to. The provisions of Chapter IV A of the Act would be applicable. When the order was, made in this case and the application was filed the building in the cantonment area did not come within the ambit of the Act in question. When, however, the revisional order was passed by the Additional District Judge, the Act had come into operation and the building in question was within the purview of the operation of the Act. [419 D F]

n entry 23 although it incidentally touches land. [115 C E] (b) Union consists of its three limbs namely, Parliament, Union Government and Union Judiciary. Control by Parliament is therefore control of the Union within the meaning of entry 54 and for the purpose of ousting jurisdiction under entry 23. [115 F G] (c) The entire legislative field relating to minor minerals having been withdrawn from the State legislature it could not be said that because section 15 did not deal with modification of leases the State was free to legislate in this field. [117 A C] & CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 685 to 688 of 1967. Appeals from the judgments and orders dated November 1, 1966, December 21, 1966 and December 23, 1966 of the Patna High Court in C.W.J.C. Nos. 1036, 686, 1200 and 778 of 1965 respectively. A.K. Sen and P.K. Chatterjee, for the appellants (in all the appeals). Lal Narain Singha, Lakshman Saran Sinha and D. Goburdhun, for the respondents (in C.A. No. 685 o.f 1967). B.P. Jha, for the respondents (in C.A. No. 686 of 1967). U.P. Singh, for the respondents Nos. 1 to 3 (in C.As. 687 and 688 of 1967). 103 Krishna Sen, M.M. Kshatriya and G.S. Chatterjee, for respondent No. 4 (in C.A. No. 687 of 1967) and respondents Nos. 5 to 8 (in C.A. No. 688 of 1967). R.C. Prasad, for the intervener (in C.A. No. 685 of 1967). The Judgment of the Court was delivered by Hidayatullah, C.J. This judgment will also govern the. disposal of Civil Appeals 686 (Kanti Prasad Pandey vs State of Bihar and others), 687 (Shri Krishna Chandra Gangopadhya vs State of Bihar and others) and 688 (M/s. Pakur Quarries Private Ltd. & Ant. vs State of Bihar and others) of 1967. These four appeals have been brought against a common judgment, November 1, 1966, of the High Court of Patna and arise out of four petitions under article 226 of the Constitution filed to question the validity of Proviso (2) to section 10(2) added by Bihar Land Reforms (Amendment) Act 1964 (Bihar Act 4 of 1965), and the operation of the second sub rule of r. 20 added on December 10, 1964 by a notification of the Governor in the Bihar Minor Mineral Concession Rules, 1964. The facts of all the four cases are similar and the same points arise ,for determination. It is, therefore, sufficient to state the facts in Civil Appeals 685 and 686 as illustrative of the others as well. One Jyoti Prakash Pandey obtained on March 23, 1955 from Babu Bijan Kumar Pandey and Smt. Anita Devi acting for herself ' and also as legatee under the will of one Baidyanath Pandey, registered leases to quarry stone ballast, boulders and chips from and upon Blocks Nos. 32, 45/1 45/2 and 45/3 in tauzi No. 1452, khata No. 1 in Mouza Malpahari No. 89 in Pakur SubDivision of Santhai Parganas. The leases were to commence from November 1, 1954 and to end on October 31, 1984, that is to say, they were for a total period of 30 years. Jyoti Prakash Pandey was working under the name and style of 'Stone India '. He sold his rights, title and interest by a registered sale deed on September 9, 1963 to the present appellant. It is admitted that rent under the terms of the original lease was deposited upto September 1965. On the passing of the Bihar Land Reforms Act, 1950 (Act 30 of 1950) the ex landlords ceased to have any interest from the date of vesting and in their place the State of Bihar became lessor under section 10(1) of the Land Reforms Act. The terms of section 10 were as given below. After the vesting of the estate of the inter "10. Subsisting leases of mines and minerals: (1)Notwithstanding anything contained in this Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been 104 mediaries, the State of Bihar as the new lessor recognised the lease for the quarrying of stones for the remaining period and the Deputy Commissioner, Santhal Parganas asked for the rent from the date of vesting to 30 April, 1965 at the rate of Rs. 200/per year as stated in the original lease. This was by a letter issued from his office on February 2, 1963. On December 10, 1964 the appellants received a letter which gives the gist of the facts on which the present controversy starts and the relevant part may be quoted here: "Government have been pleased to amend the section 10 of Bihar Land Reforms Act, 1950, and according to which the terms and conditions in regard to leases for minor minerals stand statutorily substituted by the corresponding terms and conditions by the Bihar Minor Mineral Concession Rules, 1964. As a result of this, rent and royalty etc. in respect of minor minerals in the State irrespective of the date on which the lease was granted are to be paid by all categories of leases according to the rates given in the aforesaid Rules with effect from 27 10 64". 'The 'appellants denied their liability to pay. The Government informed them by letter as follows: "This is to inform you that the terms and conditions of your mining lease in so far as they are inconsistent with the Bihar Minor Mineral Concession Rules, 1964, framed by the State Government under section 15 of the Mines & Minerals (Regulation & Development) Act, 1957, stand substituted by the corresponding terms and conditions prescribed by the Bihar Mineral Concession Rules, 1964, from 27 1 1964. Accordingly, leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease and such holder shall be entitIed to retain possession of the lease hold property. (2) The terms and conditions of the said lease by the State Government shall mutatis mutandis be the same as the terms and conditions of the subsisting condition that, if in the opinion of the State Government the holder of the lease had not, before the date of the commencement of this Act, done any prospecting or development work, the State Government shall be entitled at any time before the expiry of one year from the said date to determine the lease by giving three months ' notice in writing: Provided that nothing in this sub section shall be deemed to prevent any modifications being made in the terms and conditions of the said lease in accordance with the provisions of any Central Act for the time being in force regulating the modification of existing mining leases. (3) The holder of any such lease of mines and minerals as is referred to in subsection (1) shall not be entitled to claim any damages from the outgoing proprietor or tenure holder on the ground that the terms of the lease executed by such proprietor or tenure holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act. 105 dead rent, royalty and surface rent in addition to the other substitution as per Bihar Mineral Concession Rules, 1964, will be as follows : 1. Dead rent . Rs. 50/ per acre perannum. Royalty . Rs. 3/ per 100 cft. of stone chips. Rs. 2/ per 100 cft. of stone ballast and boulders. Rs. 4/ per 100 cft. on building stones. 1/ per 100 Nos. of stones 'setts '. Surface rent 3 . Rs. 10 per acre per year. " It is this additional demand and the liability to pay, which is the subject of controversy here. The Bihar Government contends that the terms of the original lease have been validly altered by the operation of the second proviso to section 10 (2) of the Bihar Land Reforms Act added first by Ordinance III of 1964 and later incorporated again by the Bihar Land Reforms (Amendment) Act, 1964 (Act 4 of 1965) and the addition of section 10A to the Act by the same enactments. The material part of the second section of Act 4 of 1965 is quoted below. Section 10A provided for the vesting of the interest of leases of mines or minerals which were subject to such leases and need not be read here. The State Government also relied upon the Bihar Mineral Concession (First Amendment) Rules, 1964 by which a second sub rule was added to Rule 20. The twentieth rule, purporting to be framed under section 15 of the Mines and Minerals (Regulation 'and Development) Act, 1957 (67 of 1957) was amended on December 19, 1964 and now reads: Rule 20. ( 1 ) Dead rent, royalty and surface rent. When a lease is granted or renewed. (a) dead rent shall be charged at the rates specified in Schedule 1, (b) royalty shall be charged at the rates specified in Schedule II, and (c) surface rent shall be charged at the rates specified by the Govt. in the Revenue Department from time to time. Amendment of section 10 of Bihar Act XXX of 1950. In Section 10 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) (hereinafter referred to as the said Act). (a) in sub section (2), the following second proviso shall be added, namely : "Provided further that the terms and conditions of the said lease in regard to minor minerals as defined in the (Act LXVII of 1957), shall, in so far as they are inconsistent with the rules made by the State Government under section 15 of that Act, stand substituted by the corresponding terms and conditions prescribed by those rules and if further ascertainment and settlement of the terms will become necessary then necessary proceedings for that purpose shall be undertaken by the Collector"; and (b) after sub section LISup. Cl/70 8 106 (2) On and from the date of commencement of these rules, the provisions of sub rule (1) shall also apply to leases granted or renewed prior to the date of such commencement and subsisting on such date. " The contention is that the amendment of section 10 of the Bihar Land Reforms Act is ultra vires the Constitution and that rule 20(2) does not legally entitle the recovery of the dead rent, royalty etc. as in the Schedules to the Bihar Minor Mineral Concession Rules, 1964. To understand fully the argument on behalf of the appellants a resume of the legislation on the subject of mines and minerals is necessary. Under the Government of India Act, 1935, the subject of Mines and Minerals was covered by Entry 36 of the Federal Legislative List I and entry No. 23 of the 'Provincial Legislative List II of the 7th Schedule. These entries read as follows: "Entry 36. Regulation of mines and oil fields and mineral developments to which such regulation and development under a Federal control is declared by Federal law to be expedient in the public interest." "Entry 23. Regulation of mines and oil fields and mineral development subject to the provisions of List I with respect to regulation and development under Federal control. " When the Indian Independence Act, 1947 was passed the word federal ' where it occurs for the first time in entry 36 and in entry 23 was changed to 'dominion '. The entries are practically repeated in the present Constitution and may be read immediately here: "Entry 54, of List H Union List reads: "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. " Entry 23 of List II State List reads: "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. " The difference between the entries of the Government of India Act, 1935 and the present Constitution lies in the removal of oilfields from the entries and the declaration now must be by Parliament. Entry 53 in List I deals with oilfields and mineral resources. 107 In 1948 the Legislative Assembly enacted the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948). It received the assent of the Governor General on September 8, 1948. It was an Act to provide for the regulation of mines and oilfields and for the development of minerals. In section 2 of that Act is to be found the declaration contemplated by entries 36 and 23, 7th Schedule of the Government of India Act, 1935. That declaration reads as follows: "2. It is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation of mines and oil fields and the development of minerals to the extent hereinafter provided. " Section 3 of the Act of 1948 contained definitions. There were definitions of 'mine ' and 'minerals '. The former meant an excavation for the purpose of searching for or obtaining minerals and included an oil well and the latter included natural gas and petroleum. Section 4 provided that no mining lease would be granted after the commencement of that Act otherwise than in accordance with the rules made under that Act and that a mining lease granted contrary to the provisions would be void and of no effect. Section 5 empowered the Central Government, by notification to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. In particular the rules could provide for the manner in which, the minerals or areas in respect of which and the persons by whom, 'applications for mining leases could be made and the fees payable, the terms on which and the conditions subject to which, mining leases might be granted, the areas and the period for which any mining lease might be granted and the maximum and minimum rent payable by a lessee, whether the mine was worked or not. Under section 6 the Central Government had power to make rules as respect mineral development. Section 7 then provided as follows: "7. (1) The Central Government may, by notification in the official Gazette, make rules for the purpose of modifying or altering the terms and conditions of any mining lease granted prior to the commencement of this Act so as to bring such lease into conformity with the rules made under sections 5 and 6: Provided that any rules so made which provide for the matters mentioned in clause (c) of sub section (2) shall not come into force until they have been approved, either with or without modification 's, by 'the Central Legislature. 108 (2) The rules made under sub section (1) shall provide (a) for giving previous notice of the modification or alteration proposed to be made thereunder to the lessee, and when the lessor is not the Central Government, also to the lessor and for affording them an opportunity of showing cause against the proposal. (b) for the payment of compensation by the party who would be benefited by the proposed modification or alteration to the party whose rights under the existing lease would thereby be adversely affected; and (c)for the principles or which, the manner in which and the authority by which the said compensation shall be determined. " Section 8 provided that the Central Government might by notification direct that 'any power exercisable under that Act might be exercised, subject to such conditions if any, as might be specified by such officer or authority or might be specified in the direction. In furtherance of the powers conferred the Central Government framed the Mineral Concession Rules 1949 and they came into force on the twenty fifth day of October 1949. These rules for the first time defined minor minerals and after amendments from time to time the term meant: "3 (ii) 'minor mineral ' means building stone, boulder, shingle, gravel, Chalcedony pebbles (used ,for ball mill purposes only), limeshell, kankar and limestone used for lime burning, murrum, brick earth (Fuller 's earth), Bentonite, ordinary clay, ordinary sand (used for non industrial purposes), road metal, reh matti, slate and shale when used for building material. " Rule 4 however provided: "4. Exemption. These rules shall not apply to minor minerals, the extraction of which shall be regulated by such rules as the Provincial Government may prescribe. " The word "provincial" was later changed to 'State '. Although some of the Provinces (now States) made Minor Mineral Concession Rules, it is admitted that Bihar Government did not frame any such rules. The leases of the appellants ' predecessors were granted in 1955 during the subsistence of the Act of 1948 and the Rules of 1949. It is also to be noticed that a fresh declaration was made by Parliament as required by entry 54 List I Union List of the 7th 109 Schedule of the Constitution. The existing laws, however, continued. Without a declaration by Parliament the field of legislation might have been open to the State Legislatures under entry 23 of List II State List of the Constitution but no law was made except what was enacted by the Bihar Legislature in the Land Reforms Act about vesting of mines in the State and the emergence of the State as a lessor in place of all original lessors. Further rules were made by the Central Government in 1955 and 1956. In 1955 Minerals Conservation and Development Rules were made which were later replaced in 1958. On September 4, 1956, the Central Government in exercise of the powers conferred by section 7 of the Act of 1948 made the Mining Leases (Modification of Terms) Rules 1956. Under these rules existing Conservation 'and Development Rules. The expression 'existing mining leases were to be brought into conformity with the Minerals Conservation and Development Rules. The expression 'existing mining leases ' was defined as a mining lease granted before 25th day of October 1949 and subsisting at the commencement of those rules 'but did not include any lease in respect of any minor mineral within the meaning of clause (c) of section 3 of the Act of 1948. We now come to the year 1957. In that year Parliament enacted the (Act 67 of 1957). It came into force from December 28, of 1957 made amendments in the Act of 1948 so as to make the latter relate to oilfields only. All references to minerals other than oil were removed, with the result that it became legislation exclusively relating to oil and gas. Since the Act of 1948 was thus altered, Parliament enacted new provisions for minerals in Act 67 of 1957. We are primarily concerned with this Act in these appeals. A glance at some of the provisions of Act 67 of 1957 is necessary. The Act 67 of 1957 came into force on 1st June, 1958 and extended to the whole of India. It contained the following declaration in section 2: "It is hereby declared that it is expedient in the public interest that the Union should take under the control the regulation of mines and the development of minerals to the extent hereinafter provided. " By definition minerals excluded mineral oils because the Act of 1948 exclusively dealt with oil. 'Minor minerals ' were defined to mean building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. Act 67 of 1957 contained 33 sections which were separated by general headings 110 showing the topics dealt with. The first group of sections 4 9 contained general restrictions on undertaking prospecting and mining operations. of this group we may quote here section 4 which will be considered later: "4. Prospecting or mining operations to be under license or lease (1 ) No person shall undertake any prospecting or mining operations in ,any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder: Provided that nothing in this sub section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement. (2) No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. " Section 5 lays down restrictions on the grant of prospecting licences or mining leases. Section 6 prescribes. the maximum area for which a prospecting license or mining lease may be granted and section 7 the periods for which prospecting licences may be granted or renewed and section 8 the periods for which mining leases may be granted or renewed. Section 9 fixes the royalties in respect of mining leases. Then follows another group of sections 10 12 which lays down the procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government. The next group of sections 13 16 is headed Rules for regulating the grant of prospecting licences and mining leases. Section 13 gives power to the Central Government to make rules in respect of minerals. Section 14 however excludes the application of sections 4 13 to minor minerals. It reads: "The provisions of sections 4 to 13 (inclusive) shall not apply to prospecting licences and mining leases in respect of minor minerals." Section 15 gives power to the State Governments to make rules in respect of minor minerals. It reads: 111 "15 (1 ). The State Government may, by notification in the official Gazette, make rules. for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. (2) Until rules are made under sub section (1 ), any rules made by a State Government regulating the grant of prospecting licences and mining leases m respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force. " Section 16 gives power to modify mining leases granted before 25th October, 1949. It reads: "16(1 ). All mining leases granted before the 25th day of October, 1949, shall, as soon as may be after the commencement of this Act, be brought into conformity with the provisions of this Act and the rules made under sections 13 and 18: Provided that if the Central Government is of opinion that in the interests of minerals development it is expedient so to do, it may, for reasons to be recorded, permit any person to hold one or more such mining leases covering in any one State a total area in excess of that specified in clause (b) of section 6 or for a period exceeding that specified in sub section (1 ) of section 8. (2) The Central Government may, by notification in the official Gazette, make rules for the purpose of giving effect to the provisions of sub section (1) and in particular such rules shall provide (a) for giving previous notice of the modification or alteration proposed to be made in any existing mining lease to the lessee and where the lessor is not the Central Government also to the lessor and for affording him an opportunity of showing cause against the proposal. (b) for the payment of compensation to the lessee in respect of the reduction of any area covered by the existing mining. lease; and (c) for the principles on which, the manner in which and the authority by which, the said compensation shall be determined. " Section 17 stands by itself as a group and contains special powers of Central Government to undertake prospecting or minning operations in certain cases. Section 18 deals with mineral development 'and gives additional rule making power to the Central 112 Government. Next follow some miscellaneous provisions; of these, only two interest us. Section 19 lays down that prospecting licences or mining leases granted, renewed or acquired in contravention of the provisions of the Act shall be void and of no effect and section 20 that the provisions apply to prospecting licences or mining leases whether granted before or after the Act. The rest of this Act does not concern this dispute. It may be pointed out here that the rules made under section 13 do not apply to minor minerals in view of the provisions of section 14. The State of Bihar had not made any rules till the Bihar Minor Mineral Concession Rules, 1964 were made. The modification of the terms of existing mining leases was provided for in section 16 but that provision applied to mining leases granted before 25th October, 1949. The provisions of Mining Leases (Modification of Terms) Rules, 1955 did not apply to minor minerals because the definition of 'existing mining lease ' excluded a lease in respect of any minerals. The power to modify the existing leases in the case had to be found elsewhere. The argument of the appellant is that apart from the provisions of the 2nd proviso to section 10 added to the Land Reforms Act, 1950 in 1964 by Act IV of 1965 and second sub rule added to rule 20 of the Bihar Minor Mineral Concession Rules, 1964, there is no power to modify the terms. These provisions of law are said to be outside the competence of the State Legislature and the Bihar Government. With regard to the State Legislature it is contended that the scheme of the relevant entries in the Union and State List is that to the extent to which regulation of mines and mineral development is declared by Parliament by law to be expedient in the public interest, the subject of legislation is withdrawn from the jurisdiction of the State Legislature and therefore Act 67 of 1957 leaves no legislative field to the Bihar Legislature to enact Act 4 ' of 1965 amending the Land Reforms Act. As regards Rule 20(2) it is contended that the rule making power of its own force cannot reach mining leases granted in 1955 and that this could only be done by a competent legislature. These are the two matters which need decision. The main arguments are supplemented by the following contentions. That the Bihar Rules in so far as they make demands of rent and royalty on the existing leases which were executed prior to their coming into force are beyond the power to make rules in respect of minor minerals under section 15 of Act 67 of 1957, that section 15 itself is unconstitutional and void because it delegates legislative power to the rule making authority and it is excessive delegation and that the amendment of Bihar Land Reforms. Act is void because it affects the fundamental rights of the appellants guaranteed under Articles 31 'and 19 of the Constitution. 113 Although these supplementary arguments were raised it is obvious that they can arise according as the two main arguments are allowed or disallowed. Therefore it is necessary to address ourselves to the first argument that the legislative competence to enact the amendment to section 10 of the Reform Act was wanting. As the amendment was made after Act 67 of 1957 we have to consider the position in relation to it. Entry 54 of the Union List speaks both of regulation of mines and minerals development and entry 23 is subject to entry 54. It is open to parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. This proposition is also self evident that no attempt was rightly made to contradict it. There are also two decisions of this Court reported in the Hingir Rampur Coal Co. Ltd. & Ors. vs State of Orissa and Ors.(1) and State Orissa vs M. A. Tulloch & Co. (2) in which the matter is discussed. The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature. If the impugned legislation falls within the ambit of such scope it will be valid; if outside it, then it must be declared invalid. The declaration is contained in section 2 of Act 67 of 1957 and speaks of the taking and the control of the Central Government the regulation of mines and development of minerals to the extent provided in the Act itself. We have thus not to look outside Act 67 of 1957 to determine what is left within the competence of the State Legislature but have to work it out from the terms of that Act. In this connection we may notice what was decided in the two cases of this Court. In the Hingir Rampur(1) case a question had arisen whether the Act of 1948 so completely covered the fields of conservation and development of minerals as to leave no room for State legislation. It was held that the declaration was effective even if the rules contemplated under the Act of 1948 had not been made. However, considering further whether a declaration made by a Dominion law could be regarded as a declaration by Parliament for the purpose of entry 54, it was held that it could not and there was thus a lacuna which the Adaptation of ; (2) [1964] 4 S.C.R. 461. 114 Laws Order, 1950 could not remove. Therefore, it was held that there was room for legislation by the State Legislature. In the M. A.Tulloch case(1) the firm was working a mining lease granted under the Act of 1948. The State Legislature of Orissa then passed the Orissa Mining Areas Development Fund Act, 1952, and levied a fee for the development of mining areas within the State. After the provisions came into force a demand was made for payment of fees due from July 1957 to March 1958 and the demand was challenged. The High Court held that after the coming into force of Act 67 of 1957 the Orissa Act must be held to be non existent. It was held on appeal that since Act 67 of 1957 contained the requisite declaration by Parliament under entry 54 and that Act covered, the same field as the Act of 1948 in regard to mines and mineral development, the ruling in Hingir Rampur(2) case applied and as sections 18(1) and (2) of the Act 67 of 1957 were very wide ruled out legislation by the State Legislature. Where a superior legislature evinced an intention to cover the whole field, the enactments of the other legislature whether passed before or after must be held to be overborne. It was laid down that inconsistency could be proved not by a detailed comparison of the provisions of the conflicting Acts but by the mere existence of two pieces of legislation. As section 19( 1 ) covered the entire field, there was no scope for the argument that till rules were framed under that section, room was available. These two cases bind us and apply here. Since the Bihar State Legislature amended the Land Reforms Act after the coming into force of Act 67 of 1957, the declaration in the latter Act would carve out a field to the extent provided in that Act and to that extent entry 23 would stand cut down. To sustain the amendment the State must show that the matter is not covered by the Central Act. The other side must, of course, show that the matter is already covered and there is no room for legislation. We have already analysed Act 67 of 1957. The Act takes over the control of regulation of mines and development of minerals to the Union; of course, to the extent provided. It deals with minor minerals separately from the other minerals. In respect of minor minerals it provides in section 14 that sections 4 13 of the Act do not apply to prospecting licences and mining leases. It goes on to state in section 15 that the State Government may, by notification in the official Gazette, make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith, and that until rules 'are made, any rules made by the State Government regulating the grant of prospecting licences and mining lease in respect of minor minerals which were in force immediately before the commencement of (1) [1964] 4S.C.R.461. (2) [1961] 2 S.C.R. 537. 115 the Act would continue in force. It is admitted that no such rules were made by the State Government. It follows that the subject of legislation is covered in respect of minor minerals by the express words of section 15(1). Parliament has undertaken legislation and laid down that regulation of the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith must be by rules made by the State Government. Whether the rules are made or not the topic is covered by Parliamentary legislation and to that extent the powers of State Legislature are wanting. Therefore, there is no room for State legislation. Mr. L.N. Sinha argued that the topic of legislation concerns land and therefore falls under entry 18 of the State List and he drew our attention to other provisions on the subject of mines in the Land Reforms Act as originally passed. The abolition of the rights of intermediaries in the mines and vesting these rights as lessors in the State Government was a topic connected with land and land tenures. But after the mining leases stood between the State Government and the lessees, any attempt to regulate those mining leases will fall not in entry 18 but in entry 23 even though the regulation incidentally touches land. The pith and substance of the amendment to section 10 of the Reforms Act falls within entry 23 although it incidentally touches land and not vice versa. Therefore this amendment was subject to the overriding power of Parliament as declared in Act 67 of 1957 in section 15. Entry 18 of the State List, therefore, is no help. Mr. Lal Narain Sinha next contended that the provisions of sections 4 14 do not envisage control of the Union which is a condition precedent to the ousting of the jurisdiction under Entry 23. Obviously Mr. Lal Narain Sinha reads Union as equivalent to Union Government. This is erroneous. Union consists of its three limbs, namely, Parliament, Union Government and the Union Judiciary. Here the control is being exercised by Parliament, the legislative organ of the Union and that is also control by the Union. By giving the power to the State Government to make rules, the control of Union is not negatived. In fact, it establishes that the Union is exercising the control. In view of the two rulings of this Court referred to earlier we must hold that by enacting section 15 of Act 67 of 1957 the Union has taken all the power to itself and authorised the State Government to make rules for the regulation of leases. By the declaration and the enactment of section 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to section 10 in the Land Reforms Act. The enactment 'of the proviso was, therefore, without jurisdiction. 116 This leaves for consideration the second sub rule added to Rule 20 in December, 1964 by the State Government. It will be noticed that the rule as it stood previously applied prospectively to all 1eases which came to be executed after the promulgation of the rules. The second sub rule made ,applicable those provisions to all leases subsisting on the date of the promulgation of the rules. The short question is whether the rules could operate on leases in existence prior to their enactment without the authority of a competent legislature. Vested rights cannot be taken away except under authority of law ,and mere rule making power without the support of a legislative enactment is not capable of achieving such an end. There being two legislatures to consider, namely, Parliament and the State Legislature we have first to decide which legislature would be competent to grant such power. We have already held that the whole of the legislative field was covered 'by the Parliamentary declaration read with provisions of Act 67 of 1957, particularly section 15. We have also held that entry 23 of List II was to that extent cut down by entry 54 of List I The whole of the topic of minor minerals became a Union subject. The Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level. Therefore, if the old 1eases were to be modified a legislative enactment by Parliament on the lines of section 16 of Act 67 of 1957 was necessary. The place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to section 10 of the Land Reforms Act. It will further be seen that Parliament in section 4 of Act 67 of 1957 created an express bar although section 4 was not applicable to minor minerals. Whether section 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in section 14 of Act 67 of 1957 that the provisions of sections 4 13 (inclusive) do not apply. Therefore, there does not exist any prohibition such as is to be found in section 4(1) Proviso in respect of minor minerals. Although section 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949. In regard to leases of minor minerals executed between this date and December 1964 when Rule 20(1) was enacted, there is no provision of law which enables the terms of existing leases to be altered. A mere rule is not sufficient. Faced with this difficulty Mr. Lal Narain Sinha attempted to claim power for the second Proviso to section 10 of the Land Reforms Act .from entry 18 of List II, a contention we have rejected. He also attempted to find a field for enactment by the State Legislature for the said proviso. This argument was extremely ingenious and needs separate notice. 117 The contention was that modification of existing leases was a separate topic altogether and was not covered by section 15 of Act 67 of 1957. Therefore if Parliament had not said anything on the subject the field was open to the State Legislature. The other side pointed to the words 'and for purposes connected therewith ' in section 15 and contended that those words were sufficiently wide to take in modification of leases. Mr. Lal Narain Sinha 's argument is unfortunately not tenable in view of the two rulings of this Court. On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature. We have also held that vested rights could only be taken away by law made by a competent legislature. Mere rule making power of the State Government was not able to reach them. The authority to do so must, therefore, have emanated from Parliament. The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957. For that special legislative provision was necessary. As no such parliamentary law had been passed the second sub rule to Rule 20 was ineffective. It could not derive sustenance from the second Proviso to section 10(2) of the Land Reforms Act since that proviso was not validly enacted. In the result, therefore, these appeals must succeed. They are allowed with costs. A mandamus shall issue restraining the State Government from enforcing the provisions of the second Proviso to section 10(2) added by Bihar L, and Reforms (Amendment) Act, 1964 (Bihar Act 4 of 1965) and the second sub rule of Rule 20 added by a notification on December 10, 1964 to the Bihar Mineral Concession Rules, 1964. G.C. Appeals allowed.

Entry 54 of the Union List I in the Seventh Schedule to the Constitution confers power for the regulation of mines and mineral development to the extent to which such regulation and development under the control of the union is declared by Parliament by law to be expedient in the public interest. The corresponding entry in the Federal List I under the Government of India Act, 1935 was entry 36 which besides mines and mineral development dealt with oilfields also. Entry 23 of List II of the Constitution gives power for regulation of mines and mineral development to the States subject to entry 54 of List I. The corresponding entry under the Government of India Act was entry 23 of List Il. The Central Assembly in exercise of its power under entry 36. of List I in the Government off India Act enacted the Mines and Minerals (Regulation and Development) Act 53 of 1948 which dealt with mines, mineral development as well as oilfields. Rule 4 of the Mineral Concession Rules, 1948 made under the Act which came into force on October 25, 1949 gave power to the State Government to frame rules for the regulation and development of 'minor minerals ' as defined in the Rules. In 1957 Parliament passed the Mines and Minerals (Regulation and Development) Act 67 of 1957. The Act of 194 8 was adapted to deal with oilfields and gas only. In Act 67 of 1957 the provisions relating to regulation of mines in s.s. 4 to 13 were by section 14 made inapplicable to 'minor minerals ' as defined in the Act. Rules relating to minor minerals were under section 15 to be made by State Governments and till such rules were made any rules enforce at the commencement of the Act were to continue. The appellant purchased in 1963 a lease for quarrying minor minerals as defined in Act 67 of 1957 from a vendor who had taken the original lease from the then landlords in 1955. When under section 10(1) of the Bihar Land Reforms Act, 1950) the rights of the intermediary landlord vested in the State of Bihar the said State became lessor of the appellant 's lease. The lease was confirmed on behalf of the State and rent under the terms of the original lease was paid by the appellant up to September 1965. The Bihar Government had not framed any rules relating to minor minerals under Act 53 of 1948 but it framed the Bihar Minor Mineral Contession Rules, 1964 under section 15 of the Act 67 of 1957. Also, in 1964 the Bihar legislature amended section 10(2) of the Reforms Act. A second pro viso was added to sub el. (2) whereby the terms and conditions of and pubsisting leases of minor minerals would be substituted by the terms and 101 conditions laid down in the Bihar Minor Mineral Concession Rules to the extent that the former were inconsistent with the latter. Rule 20 of the said Bihar Rules as originally framed provided for realisation of dead rent, royalty and surface rent in 'respect of leases granted or renewed. In terms the rule was prospective only. But in December 1964 it was amended by the addition of a second sub rule according to which the provisions as to dead rent etc. would also apply to leases granted or renewed prior to the date of the commencement of the Act and subsisting on such date. On the strength of the amended section 10(2) of the Reforms Act and the amended r. 20 the Bihar Government demanded from the appellant, dead rent, royalty and surface rent contrary to the terms of his lease. The appellant thereupon filed a writ petition in the High Court. Dissatisfied with the judgment of that court the appellant came to this Court. It was contended on behalf of the: appellant: (i) that the subject of regulation of mines and mineral development came within the exclusive jurisdiction of Parliament as a result of the passing of Act 67 of 1957 with the result that the State Legislature was left with no power to pass the second proviso to section 10(2) and the said proviso was therefore ultra vires, (ii) that r. 20(2) being without legislative support could not touch a lease granted, in 1955. On behalf of the respondent State it was urged that (a) the 2nd proviso to section 10(2) of the Reforms Act fell not under entry 23 but under entry 18 of List II which dealt with land and land tenures; (b) Act 67 of 1957 did not result in control of the union as contemplated by entry 54 in List I and therefore the State 's jurisdiction under entry 23 List II was not ousted; (c) modification of leases was not covered by section 15 of the said Act and since Parliament was silent on that subject the field remained open for legislation by the State. HELD: (i) Entry 54 of the Union List speaks both of regulation of mines and mineral development and entry 23 is subject to entry 54. It is open to Parliament to declare that it is expedient in the public interest that the control should vest in Central Government. Once: this declaration is made and the extent laid down the subject of the legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and touching upon the field disclosed. in the field is extracted from the legislative competence of the State. [113 B D] The declaration contemplated by entry 54 is contained in section 2 of Act 67 of 1957 and the Central Government is given control as to regulation of mines and mineral development to the extent provided in the Act. Thus what is left within the competence of State Government has to be worked out from the terms of the Act itself. [113 F] The Act deals with minor minerals separately from other minerals. In respect of minor minerals it provides in section 14 that sections 4 to 13 do not apply to prospecting licences and mining leases. It goes on to state in section 15( 1 ) that the State Government may by 'notification make 'rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith, and in section 15(2) that till such rules. are framed any rules already in force would continue. No 'rules existed in the State of Bihar which could be preserved under section 15(2). Therefore the whole subject of legislation was covered in respect of minor minerals by section 15(1). Whether rules under that section were made or not the topic was covered by Parliamentary legislation and to that extent the powers of the State Legislature were wanting. [114 G 115 B] It must accordingly be held that by the declaration in section 2 and by the enactment of section 15 the whole of the field relating ' to minor minerals came 102 within the jurisdiction of Parliament and no scope was left 'for the enactment of the second proviso to section 10(2) of the Land Reforms Act. The second proviso was therefore ultra vires. Hingir Rampur Coal Co. Ltd. & Ors. vs State of Orissa & Ors. ; and State of Orissa vs M.A. Tulloch (ii) Vested interests cannot be taken away except by law made by a competent legislature. Mere rule making power is not sufficient. In view of Act 67 of 1957 the Bihar Legislature had lost jurisdiction to legislate about minor minerals. The power of the Central Government; to modify existing mining leases was confined under section 16 of the Act to leases granted before October 25, 1949. For modifying leases granted after that date legislation by Parliament on the lines of section 16 was necessary. Rule 20(2) of the Bihar Minor Concession Rules, 1964 was ineffective 'for the purpose. It could not derive sustenance from the 2nd proviso to section 10(2) of the Reforms Act as that proviso was not validly enacted. There was also no other legislative support since section 15 of the Act of 1957 did not contemplate alteration of terms of leases already in existence before that Act was passed. [116 B E; 116 G; 117 D] (iii) The contentions raised on behalf of the State must be rejected: (a) The abolition of the rights of intermediaries in the mines and vesting of these rights as lessors in the State Government was a topic connected with land and land tenures. But after the mining leases stood between the State Government and the leases, any attempt to regulate those mining leases will fall not in entry 18 but in entry 23. The pith and substance of the amendment to section

Appeal No. 11 of 1954. 68 Appeal from the judgment and Decree dated the 20th day of June 1950 of the High Court of Judicature for the State of Punjab at Simla in Regular First Appeal No. 73 of 1941 arising out of the Decree dated the 19th day of December 1940 of the Sikh Gurudaras Tribunal, Lahore in Suit No. 11 of 1938. Gurbachan Singh and R. section Narula, for the appellant. Achhru Ram, (Naunit Lal with him), for the respondents Nos. I and 2. K. L. Mehta, for the respondents Nos. 3 to 5. 1955. March 24. The Judgment of the Court was delivered by JAGANNADHADAS J. This is an appeal on leave granted by the High Court of Punjab against its judgment affirming the decree of the Sikh Gurdwara Tribunal dated the 19th December, 1940, dismissing the plaintiff 's suit. The plaintiff in the appeal is the Committee of Management of Sikh Gurdwaras within the Municipal limits of Amritsar (except the Gurdwara Sri Akal Takhat Sahib, Amritsar). The plaint was filed under section 25 A of the Sikh Gurdwaras Act, 1925, (Punjab Act VIII of 1925) (hereinafter referred to as the Act) for possession of certain properties situated in Amritsar, marked and bounded as specified in the plaint and purporting to have been declared as a Sikh Gurdwara by the Government of Punjab under section 17 of the Act by means of the notification No. 9 G dated the 3rd March, 1937. The case of the plaintiff Committee is that these properties were, and were determined to be, a Sikh Gurdwara, by name Gurdwara Bunga Sarkar, by the Sikh Gurdwara Tribunal by its decree dated the 4th November, 1935 and confirmed on appeal therefrom by the High Court of Judicature at Lahore, on the 16th June, 1936 and that accordingly the Committee was entitled to possession of the properties. The facts that have led up to the present appeal are as follows: After the Act was passed and within one year of its commencement the then existing non statutory Shiromani Gur 69 dwara Parbandhak Committee filed a list under section 3 of the Act claiming the suit properties and certain other items attached thereto as belonging to the Gurdwara Harmandir Sahib. These properties comprised two items called Bunga Sarkar and Bunga Mai Mallan and the shops appurtenant to each of them. Objections were filed to this list by way of two applications under section 8 of the Act claiming these as private properties. One was by Sardar Balwant Singh dated the 8th March., 1928 and the other was by Sardar Raghbir Singh dated the 10th March, 1928. Sardar Raghbir Singh claimed the whole of Bunga Sarkar and its appurtenant shops as well as 1/3rd of the Bunga Mai Mallan and of the appurtenant shops. Sardar Balwant Singh 's claim was confined to 1/3rd share in Bunga Mai Mallan and in the appurtenant shops. The other 1/3rd share in Bunga Mai Mallan was apparently treated by these claimants as belong ing to some other person who was not a party to these proceedings. These two applications were forwarded under section 14 of the Act to the Gurdwara Tribunal for its decision. The parties to these proceedings entered into a compromise on the 6th february, 1930. There were two compromises one relating to each of the applications. The net effect of the compromises was that some out of the items claimed were admitted to be the private property of the respective claimants and the rest as wakf bungas for the Yatries to Sri Darbar Sahib, that the non personal properties were to remain in the management of the claimants, their heirs and representatives as such wakf with certain stipulations as to how that management was to be carried on. The Tribunal disposed of the two applications before them in terms of these compromises. It may be mentioned that though the original list under section 3 of the Act was filed by the then non statutory Shiromani Gurdwara Parbandhak Committee, the compromises were entered into by the Managing Committee of the Gurdwaras within the limits of the Municipal Committee, Amritsar, which presumably had already by then been formed Linder section 85 of the Act. Now, quite independently of these 70 proceedings befere the Tribunal, and prior to the filing of the list under section 3 and of the objections under section 5 above referred to, there had been filed a petition under section 7 of the Act, signed by 55 Sikhs, claiming these very properties as being in themselves a Sikh Gurdwara by name Bunga Sarkar (Maharaja Ranjit Singh Saheb) and enclosing a list of properties as belonging thereto under section 7(2) of the Act. It does not appear that this petition was brought to the notice of the Gurdwara Tribunal when it passed the decree in terms of the compromise with reference to the objections under section 5 of the Act. The petition under section 7 was in the usual course followed by a notification issued by the Government on the 18th February, 1930, under section 7(3) of the Act. This resulted in (1) an objection under section 8 by the Granthis objecting that this was not a Sikh Gurdwara, and (2) two other objections by Sardar Raghbir Singh and Sardar Balwant Singh, already previously above referred to, under section 10 of the Act claiming the properties as their own and objecting to the claim made that they were Sikh Gurdwaras. These objections were filed on the 5th April, 1930. It may be noticed that the notification under section 7(3) of the Act was within a few days after the compromise decrees in the proceedings under section 5 of the Act and it does not appear whether the compromises were brought to the notice of the Government or not. These objections under sections 8 and 10 (and presumably also the petition under section 7) were forwarded to the Tribunal for its decision under section 14 of the Act. The petition under section 8 filed by the Granthis was contested by the Shiromani Gurdwara Parbandhak Committee (Statutory) and after recording some evidence, the Tribunal came to the conclusion that Bunga Sarkar was a Sikh Gurdwara and declared it as such on the 28th August, 1935. On the objections under section 10; notices were given to the Committee of Manaaement as well as to the Shiromani Gurdwara Parbandhak Committee but they declined to become parties to it. The contest under section 10 of the Act 71 was only as between the claimants and some of the Sikhs who filed the petition under section 7. At the hearing before the Tribunal both sides relied upon the previous compromises in support of their respective claims. The Tribunal by its decision dated the 4th November, 1935, decided that the properties which had been declared as the properties of Sardar Raghbir Singh and Sardar Balwant Singh respectively, should be declared to be their personal properties and that the rest of the properties claimed to belong to Bunga Sarkar and Bunga Mai Mallan should be declared to be Sikh Gurdwaras and as properties appurtenant thereto. It was also declared that these two Gurdwaras and the properties held to be appurtenant to them should vest in the management of Sardar Raghbir Singh and Sardar Balwant Singh by virtue of and as per terms of the compromises. As against these decrees two appeals were presented by the Sikh worshippers to the High Court and the only question that ultimately appears to have been raised was that the direction given by the Tribunal to the effect that the properties should remain in the management of the claimants, Sardar Raghbir Singh and Sardar Balwant Singh, was illegal. The High Court without giving any decision on the legal question so raised was of the opinion that it was no function of the Sikh Gurdwara Tribunal to pass an order on an application made under section 10 by the claimants that the claimants should manage the properties appurtenant to the Gurdwaras by virtue of the compromises. They thought that the question of right of management should be left open in these proceedings and that the directions in the decree of the Tribunal relating to the management should be deleted therefrom and that the rest of the decrees of the Sikh Gurdwara Tribunal is to stand. They expressed their conclusion in the following terms: "That portion of the decree of the Sikh Gurdwara s Tribunal which has declared the respondents ' right to manage the Gurdwaras and the properties appended thereto shall form no part of the decree granted by the Tribunal; the rest of the decree of the Sikh Gur 72 dwaras Tribunal stands, that is to say, the properties which have been declared to be the personal properties of Sardar Raghbir Singh and Sardar Balwant Singh shall remain their properties and the properties which have been declared to be appended to the two Gurdwaras shall remain the properties of the two Gurdwaras". The High Court also added that though the proceedings mentioned the existence of two Gurdwaras by name Bunga Sarkar and Bunga Mai Mallan, the real position seemed to be that there was only one Gurdwara, viz. Bunga Sarkar, and that Bunga Mai Mallan had no separate existence as a Gurdwara but was a well known part of Bunga Sarkar. This decision of the High Court was on the 16th June, 1936. This was followed by notification No. 9 G dated the 3rd March, 1937, under section 17 of the Act which is the foundation of the present suit. On these facts a number of contentions were raised by both sides before the High Court as well as before us. The judgment of the High Court as well as the arguments before us have covered a wide range. On the merits, the case for the plaintiff is quite simple. The plaintiff says that whatever may be the position with reference to the earlier compromises arrived at between the parties in the proceedings under section 5 of the Act, the later proceedings with reference to those very properties under section 10 of the Act resulted in the judgment of the High Court dated the 16th June 1936, which is conclusive and binding. By virtue of the said judgment and the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of section 25 A of the Act. On the side of the defendants various objections have been raised which may be summarised as follows: (1) The proceedings under section 10 did not result in any specific declaration in favour of the Committee that the properties in dispute in the present suit constituted a Sikh Gurdwara or belong to a Sikh Gurdwara. No such declaration can be gathered from the decision of the Tribunal dated the 4th November, 1935, or from that of 73 the High Court on appeal dated the 16th June, 1936. (2) The Tribunal had no jurisdiction in disposing of an application under section 10 of the Act, to give a positive declaration that the property in question is a Sikh Gurdwara. Its only function was to decide whether or not the properties claimed were the private properties of the claimants. Hence even if the decision of the Tribunal and of the High Court can be treated as a decision declaring the properties as a Sikh Gurdwara that is not valid and the notification issued thereupon is void. (3) Any such decision would be contrary to section 37 of the Act and also contrary to the principles of res judicata and would be, therefore, a nullity on that ground. (4) The conduct of the Gurdwara Parbandhak Committee and the concerned Committee of Management, in entering into the compromises in the proceedings under section 5 of the Act without disclosing the pendency of the petition filed by the 55 Sikhs under section 7 of the Act, followed up by their declining to be made parties in the section 10 proceedings and in virtually promoting the contest of the proceedings under sections 8 and 10, was fraudulent. They are accordingly estopped from relying on the decree obtained under section 10 proceedings and basing their right to relief thereon. (5) The suit under section 25 A lies only where the decision on an objection under section 10(1) is reached after the notification that the Gurdwara is a Sikh Gurdwara is published since the section refers to. a decision in favour of a "Notified Sikh Gurdwara" implying the pre existence of such notification. (6) The suit under section 25 A was barred by limitation. (7) The whole appeal abated in the High Court inasmuch as one of the respondents, Sardar Balwant Singh died during the pendency of the appeal. His legal representatives were not brought on record in time and the High Court declined to excuse the delay and to set aside the abatement, as a result of which the entire appeal abated, the claim against both the respondents being joint and not being maintainable against one only in the absence of 10 74 the other. In addition to these contentions which have been put forward before us and strenuously argued by both sides, the High Court also based its decision on the view that section 7 of the Act assumes the existence of a Gurdwara and that a notification issued under section 7 (3) without there being in fact a Gurdwara in existence would be ultra vires. In the present case, in view of the prior proceedings under section 5 and the compromises following thereupon, the non existence of the Gurdwara as claimed in the petition under section 7(1) must be taken to have been made out and therefore the notification and all the proceedings following thereupon are illegal and ultra vires. Though we have heard elaborate arguments from both sides on these various contentions, it appeared to us ultimately that the plea of limitation is decisive against the appellants and that it is unnecessary to express any opinion on any of the other contentions raised. The question of limitation arises with reference to the terms of section 25 A which is as follows: "25 A. (1) When it has been decided under the provisions of this Act that a right, title or interest in immovable property belongs to a Notified Sikh Gurdwara , or any person, the Committee of the Gurdwara concerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be awarded possession of the right, title or interest in the immovable property in question as against the parties to the previous petition, and the tribunal shall if satisfied that the claim relates to the right, title or interest in the immovable property which has been held to belong to the Gurdwara, or to the person in whose favour the declaration has been made, pass a decree for possession accordingly. (2)Notwithstanding anything contained in any Act to the contrary, the court fee payable on the plaint in such suit shall be five rupees". 75 This section provides, for the filing of the suit, the period of one year from the date of the decision or the date of the constitution of the committee whichever is later. Now the date of the decision in this case must be taken to be the date when the High Court on appeal disposed of the proceedings under section 10, i.e., the 16th June, 1936. The present suit has been filed on the 25th February, 1938, i.e., clearly beyond one year of the decision. The question for consideration, therefore, is whether the suit can be said to have been within one year from the date of the constitution of the Committee of the Gurdwara concerned. Now, one has to turn to sections 85, 86 and 88 of the Act to appreciate which is, the Committee concerned with this Gurdwara and what the date of its constitution is. Section 85 is as follows (in so far as it is relevant): "Subject to the provisions of section 88, there shall be one committee for the Gurdwaras known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated within the municipal boundaries of Amritsar other than the Sri Akal Takht Sahib". Section 86 is as follows (in so far as it is relevant): "For every Notified Sikh Gurdwara other than a Gurdwara specified in section 85 a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act". Section 88 is as follows (in so far as it is relevant): "(1)The committees described in sections 85 and 86 shall be constituted as soon as may be after the constitution of the Board, provided that no committee shall be constituted for any gurdwara under the provisions of this Act unless and until it has been declared to be a Sikh Gurdwara under the provisions of this Act. (2)When all the members of any committee described in section 85 have been elected or co opted, as the case may be, according to the provisions of that section, the Provincial Government shall notify the fact that the committee has been duly constituted, 76 and the date of the publication of the notification shall be deemed to be the date of the constitution of the committee". Now, it is not disputed that the present plaintiff which is the Committee of Management for all the Gurdwaras situated within the Municipal limits of Amritsar, except the Gurdwara Sri Akal Takht Sahib was constituted prior to the year 1930 and was in fact functioning at the date of the compromises in the section 5 proceedings dated the 6th February, 1930. It is also not disputed that by virtue of section 85(2), this committee also became the Committee concerned with the suit Gurdwara, which is admittedly located within the Municipal limits of Amritsar. But it is contended for the appellants that this Committee becomes concerned with the suit Gurdwara only from the date when the notification under section 17 is issued, i.e., from the 3rd March, 1937, and that, therefore,, the plaintiff had one year from that date for the filing of the suit and that in the situation, section 25 A in providing the alternative period of limitation as being "one year from the date of the constitution of the committee", must be construed reasonably as being one year from the date of the notification in such a case and that for the purposes of this section, the pre existing committee must be deemed to have been constituted for the suit Gurdwara only on the date of the notification. In support of this contention it has been pointed out that the specific policy of the Act as disclosed in sections 86 and 88 is that no Committee is to be formed for a Gurdwara until after ' it has been declared a Sikh Gurdwara under the provisions of the Act. It is accordingly urged that the phrase "constitution of the committee" in section 25 A should be construed so as to indicate a point of time not earlier than the notification of the concerned Gurdwara and that in the circumstances and in such cases the date of the notification of the Gurdwara must be the date of the constitution of the concerned committee. It appears to us, however, that this contention is untenable. Section 86 in terms relates to a Notified Sikh Gurdwara other than Gurdwaras 77 specified in section 85. Hence so far as our present purpose is concerned, the policy underlying section 86 does not necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists. Moreover, sub section (2) of section 88 provides with reference to Committees under section 85, that, as soon as all the members described therein have been elected or co opted, the fact should be duly notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of the Committee. In the face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purposes of the Act and to imply an exception and an addendum to the specific deeming provision. This would be legislating. We cannot, therefore, accept the contention of the appellant that the date of the notification under section 17 in the present case should be deemed to be the date of the constitution of the Committee concerned for the purposes of section 25 A. It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under section 25 A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course. That, at any rate, is not the present case where the notification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take steps to get the notification published earlier, but, it had three months thereafter to come forward with the present suit. However this may be, we do not consider that there is any question of hardship, 78 because obviously section 25 A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself. We are clearly of the opinion that the present suit under section 25 A is barred by limitation and on this ground the appeal must fail. The appeal is accordingly dismissed with costs. Appeal dismissed.

The plaintiff which is the Committee of Management for all Gurudwaras situated within the Municipal limits of Amritsar, except the Gurudwara Sri Akal Takht Sabib, was constituted prior to the year 1930 and by virtue of section 85(2) of the Sikh Gurudwaras Act (Punjab Act VIII of 1925) became the Committee concerned with the suit Gurudwara. There were certain proceedings under the Act in respect of the suit properties which were ultimately decided by the High Court on the 16th June 1936 and the decision was followed by a notification under section 17 of the Act on the 3rd March 1937. As a result the plaintiff became entitled to get possession of the said properties by instituting a suit before a tribunal under section 25 A of the Act within one year from the date of the decision or the date of the constitution of the Committee, whichever was later. The present suit was filed on the 25th February 1938 which was beyond one year of the decision and the question was whether the suit can be said to have been instituted within one year of the date of the constitution of the Committee of the Gurudwara concerned, the contention being that the plaintiff must be deemed to have become the committee concerned with the suit Gurudwara only on the date of the notification thereof in 1937 under section 17 of the Act by virtue of the provisions of sections 86 and 88. Held, that the date of the notification in 1937 under section 17 cannot be deemed to be the date of the constitution of the Committee concerned for the purposes of section 25 A and that the present suit is barred by limitation. Section 86 does not apply to Gurudwaras within the Municipal limits of Amritsar specified in section 85, in respect of which a Committee already exists and by virtue of sub section (2) of section 88 the date of the publication of the notification of the Committee which already has been in existence since 1930 will be the date of the constitution of the Committee within the meaning of section 25 A.

Appeal No. 4088 of 1991. From the Judgment and Order dated 24.5.1990 of the Karnataka Administrative Tribunal, Bangalore in Application No. 887 of 1989 C/W. A. No. 2101/1989. 495 Naresh Kaushik, Mrs. Lalita Kaushik and Shankar Divate for the Appellants. M. Veerappa, S.R. Bhatt and Naveen R. Nath for the Respond ents. The Judgment of the Court was delivered by KASLIWAL, J. Special leave granted. Sri Ashok alias Somanna Gowda appellant No. 1 is a Bachelor of Engineering (Civil) having secured. first class with distinction getting 69.96% marks from Karnataka Univer sity. Shri Rajendra appellant No. 2 is a Bachelor of Engi neering (Mech.) from Karnataka University and secured 66.40 marks in the qualifying examination. The Govt. of Karnataka by notification dated 4th April, 1985 invited applications for recruitment of Asstt. Engineers (Civil) and (Mech.) for the Public Works Deptt. The selections were to be made on the basis of marks obtained in the qualifying examination and marks secured in the interview, in accordance with the K.S.C.S. (Direct Recruitment By Selection) Rules, 1973 (hereinafter referred to as 'the Rules '). According to these Rules total marks for qualifying examination were kept at 100 and 50 for interview. Thus the marks allotted for inter view amounted to 33.3% of the total marks. Applications were invited for 300 posts of Civil Engineers and 100 Mechanical Engineers initially and subsequently added additional posts of 150 Civil Engineers and 10 Mechanical Engineers thus in all 450 Civil Engineers and 110 Mechanical Engineers. Both the appellants applied for the posts of their choices in the Public Works Department, Government of Karnataka. Appellant No. 1 secured 29.50 marks out of 50 marks in the interview and 69.96 marks in the qualifying examination thus in all 99.46 marks out of 150. The 2nd appellant obtained 24.83 marks in the interview and 66.40 marks in the qualifying examination thus in all 91.23 marks out of 150. Both the appellants were not selected in merit as the last candidate selected for the above posts secured higher marks than the appellants. The appellants filed a petition before the Karnataka Administrative. Tribunal challenging the Rules on the ground that the percentage of marks for viva voce as 33.3 were excessive and in violation of the decisions of this Court. The Tribunal by its order dated 24th May, 1990 dismissed the petitions and the appellants aggrieved against the aforesaid decision have approached this Court by grant of special leave. It is not necessary to examine ' the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav & Ors. vs State of Haryana & Ors. , [1988] Sup. S.C.R., 657 and Mohinder Sain Garg vs State of Punjab & Ors., J .T. On a direction given by this Court on 4th September, 1991 the record of the 496 Selection Committee was produced before this Court at the time of hearing. From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examina tion but had secured very high marks in the viva voce out of 50 marks kept for this purpose. Thus it is an admitted position that if the marks for interview were kept even at 15% of the total marks and merit list is prepared according ly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants. In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground. Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any malafides in the matter of the impugned selections. However, the Rules are clearly in violation of the dictum laid down by this Court in the above referred cases and in case the marks for viva voce would have been kept say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks. We, therefore, allow the appeal and direct the respond ents to give appointment to the appellant Ashok alias Soman na Gowda on the post of Asstt. Engineer (Civil) and appel lant Rajendra on the post of Asstt. Engineer (Mech.) in Public Works Department within a period of two months of the communication of this order in case the appellants are found suitable in all other respects according to the Rules. Learned counsel appearing on behalf of the State of Karnata ka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection. In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time. We are thus inclined to grant relief only to the present appellants who were vigilant in making griev ance and approaching the Tribunal in time. Learned counsel for the State also submitted that the State Government has already framed new rules, and as such we do not find it necessary to quash the Rules under which the present selec tions were made as they are no longer in existence. No order as to costs. G.N. Appeal allowed.

The Respondent State invited applications for recruit ment of Assistant Engineers (Civil) and (Mech.) for the Public Works Department. According to the rules governing the recruitment, viz. Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973 the marks obtained In the qualifying examination and the marks secured in the interview would be the basis for selection. The total marks for qualifying examination was kept at 100 and 50 marks were kept for interview. Thus the marks allotted for interview was 333% of the total marks. Appellant No. 1 who applied for the post of Assistant Engineer (Civil) secured 29.50 marks out of 50 marks in the interview, his marks in the qualifying examination were 69.96, totalling in all 99.46 marks out of 150. The second appellant, a candidate for the post of Assistant Engineer (Mech.) secured 24.83 marks in the interview and his marks in the qualifying examination being 66.40, he got 91.23 marks out of the total of 150 marks. Both the appellants were not selected as they got less marks titan the last candidate selected, and they filed a petition before the State Administrative Tribunal challenging the rides on the ground that the percentage of marks for viva voce fixed at 333 was excessive. The Tribunal having dismissed the peti tions, the appellants have preferred the present appeal, by special leave. Allowing the appeal, this Court, HELD: 1. 50 marks for interview out of 150 are clearly in violation of the settled law on this point. Some candi dates have been selected though 494 they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose. If the marks for interview were kept even at 15% of the total marks and merit list was prepared accordingly then both the appellants would have been selected and a large number of selected candidates would have gone much lower in the merit list than the appellants. [495 G, 496 A B] Ashok Kumar Yadav & Ors. vs State of Haryana & Ors. , [1988] Supp. S.C.R. 657; Mohinder Sain Garg vs State of Punjab & Ors., J.T. , relied on. Though the Karnataka State Civil Services (Direct Recruitment by Selection) Rules are clearly in violation of the dictum laid down by this Court, since the result of the selections was declared in 1987 and the selected candidates have already joined the posts, it would not be just and proper to quash the selections on the above ground. Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there Is no allegation of any malafides in the matter of selections. [496 C D] 3. The respondents are directed to give appointment to the two appellants on the post of Assistant Engineer (Civil) and Assistant Engineer (Mech.), respectively in Public Works Department within a period of two months in case the appel lants are found suitable In all other respects according to the Rules. [496 E] 4. Since the appointments under the Rules were made way back in 1987, the case of other candidates cannot be considered as they never approached for redress within reasonable time. The relief is thus restricted only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time. [496 F G]

ivil Appeal NO. 293 of 1988. From the Judgment and Order dated 24.4.1987 of the Andhra Pradesh High Court in W.P. NO.1645 Of 1987. M.C. Bhandare, M. Qamaruddin and Mrs. M. Qamaruddin for the Appellant. P.A. Choudhary, A.V. Rangam and T.V.S.N. Chari for the Respondents. JAGANNATHA SHETTY, J. This appeal by leave is directed against the judgment and order dated April 24, 1987 Of the Division Bench Of the High Court of Andhra Pradesh dismissing the writ petition NO.1645 Of 1987. PG NO 896 Briefly stated, the facts are these: In the month of August 1984 a Ministry headed by Sri N. Bhaskara Rao suddenly came into power in A.P. The said Ministry just lasted for about a month and had to go out of office for want of vote of confidence by the State Legislative Assembly. During that short term, the Government granted a number of permissions to various private bodies and individuals for starting colleges of education (B.Ed.) courses. The appellant was one among those beneficiaries. The permission was granted with several conditions. Those conditions were required to be complied with within a period of six months. In the middle of September 1984 Bhaskara Rao 's Ministry went out of office and the Government headed by Sri N.T. Rama Rao came back to power. Soon thereafter the permissions granted were suspended or cancelled. The appellant and other institutions aggrieved by the cancellation moved the High Court of Andhra Pradesh for relief under Article 226. ~he appellant filed writ petition No. 812 of 1986. The State contended that the parties did nOt comply with the conditions of the grant of permission. All those writ petitions were disposed of by common order dated March 7, 1986. The High Court was of opinion that the cancellation was as arbitrary as the grant of permission. So a via media was taken since the parties have invested large sums of money for establishing the colleges. The High Court laid down certain conditions and issued directions for compliance for granting permission and recognition to the colleges. Some of those directions are as follows| "(1) The petitioners shall comply with the requirement of the deposit of Rs.4,50,000 within one month from this date. If the Director of School Education does not cooperate with the petitioners in opening a joint account the deposit shall be made in a fixed deposit account in the name of the college in any nationalised or scheduled bank. (It shall be open to the petitioner to pursue his application for exemption meanwhile but the time limit prescribed herein remains or applies to this petition as well). (2) The petitioners shall comply with the requirements relating to the appointment of qualified staff and the laboratory, Library and audio visual equipment within three months from today. For the purpose of recruitment of the teaching staff, the petitioners shall issue Notifications in two dailies with wide circulation in this State Calling PG NO 897 for applications from the qualified teachers on receipt of applications selections shall be made by the Selection Committee if one is already constituted by the Government or the University and if no Selection Committee is constituted, it shall be constituted consisting of a member of the Management, the Director of School Education or his nominee, not below the rank of a Joint Director and in his absence by D.E.O and an Expert to be nominated by the University. The petitioners shall send communications to the Director of School Education and the University as soon as applications are received for the purpose of constituting the Selection Committee and the said officers shall take the necessary steps in this behalf. (3) If the qualified staff do not respond to the Notification issued by the petitioners and consequently the petitioners find difficulty in appointing qualified staff the petitioners shall made a representation to the Director of School Education seeking his help in the recruitment and appointment of qualified teaching staff. (4) All other requirements, including the Model School, subject to which permissions were initially granted to the petitioners shall be complied with by the petitioners not later than 3]st July, 1986. (5) The petitioners shall send a compliance report to the Director of School Education as soon as the requirement regarding deposit of Rs.4,50,00() within the permitted time is complied with duly endorsing a copy of the compliance report to the Government. Similarly, the petitioners shall send a compliance report to the Director of School Education regarding the appointment within the permitted time of the required qualified teaching staff and also the provision of library laboratory and audio visual equipment endorsing a copy of the compliance shall send a report to the Director of School Education endorsing a copy thereof to the Government regarding the compliance of all other requirements as directed above by 3 Ist July, 1986. " The Director of School Education was asked to make such enquiry as he thinks fit to satisfy himself about compliance of the above requirements. If there was no satisfactory compliance within the prescribed period, the High Court said PG NO 898 that the concerned institution shall cease to function at the end of the academic year 1985 86. In accordance with directions issued by the High Court, the District Educational Officer inspected the appellant 's college. He made a report dated June 25, 1986 stating that there was non compliance with the directions of the High Court. Accepting that report, the Director made an order dated September 20, 1986 declaring that the college shall cease to exist with effect from the last working day of the academic year 1985 86. Challenging the validity of that declaration, the appellant moved the High Court with writ petition No. 1645 of 1987. The appellant also filed three more writ petitions. Writ petition No. 11087 of 1985 was filed for a direction to the Nagarjuna University, Guntur to grant affiliation to the appellant 's college. Writ petition No. 9417 of 1986 was filed for a declaration that the resolution of the Nagarjuna University refusing to grant affiliation to the college was arbitrary and illegal. Writ petition No. 17725 of 1986 was filed by the students of the college for a direction to declare the results of their B.Ed. examination held on October 7, 1985. All the four writ petitions were disposed of by the High Court by a common order which is now under appeal before us. The writ petition No. 1645 of 1987 was dismissed on the ground that the appellant has not complied with the conditions laid down by the High Court. Consequently, Writ Petition Nos. 11087 of 1985 and 9417 of 1986 which were filed against the Nagarjuna University were also dismissed. The High Court however, made some observations regarding the manner in which the syndicate of the University has to dispose of the application for affiliation. The High Court observed that denial of affiliation affects the very life and existence of institution. Therefore, it would be fair and proper that the syndicate or other competent authority of the University which deals with the question of affiliation, must give reasons for refusal to grant affiliation. However, there are no appeals before this court against the dismissal of those two writ petitions. The present appeal is only against the order of dismissing writ petition No. 1645 of 1987. At the outset. it may be stated that before the High Court the appellant did not contend that it had complied with all the conditions laid down for recognition. The contention. however, was that the college is a minority institution and therefore. it need not comply with all those requirements. The High Court did not accept that contentionand in our opinion very rightly. It was observed that since the appellant has deliberately refused to comply PG NO 899 with the conditions by taking a new and untenable stand that it is a minority institution, it is not entitled to any relief. The High Court also noted the inadequacy in the recruitment of lecturers. As against seven lecturers, only five lecturers were appointed by the appellant. The posts of lecturer in Mathematics and Physical Science were left unfilled. The Principal was not qualified to hold the post. The lecturer in social studies was also not qualified. The High Court further referred to the deficiencies pointed out by the Inspection Commission of Nagarjuna University and finally said: "The court allowed the writ petition subject to directions (a) to (j) contained in paragraph 134 of its judgment. Direction (b) clearly says that the selections shall be made by a selection committee comprising of one nominee of the Director of School Education and one nominee of the University. This was so directed notwithstanding the contention urged by the petitioner that it is a minority institution. Indeed, the Bench was of the opinion that the said aspect is totally irrelevant in the circumstances of the case. The reason is evident. The Division Bench merely directed the petitioner institution to comply with the conditions of grant within a certain extended period and no more. The petitioner did not question the judgment of the Division Bench dated 7.3.1986, which means that he has accepted it. The said judgment has become final so far as the petitioner is concerned. Now when the question of compliance with and implementation of those direction arise, the petitioner cannot turn round and say that since the petitioner institution is a minority institution. it need not comply with the said directions. Such a contention cannot be countenanced, and cannot be taken note of in the circumstances of the case. " Before us, the question as to the nature of the institution whether it is a minority institution or not, has not been canvassed. Counsel for the appellant said that he will urge that contention in other appropriate case. He rested this case on one ground that the conditions laid down by the High Court have been substantially complied with. Reference was made to the earnest efforts made by the appellant to recruit the best qualified staff by inviting applications through successive advertisements in news papers. When there was no response to the advertisements, the appellant, it is said, approached the department for recruitment of staff. But the department did not cooperate. PG NO 900 It was argued that the appellant in the circumstances could not be blamed and if at all it should be the department to be found fault with. In the alternative it was contended that the appellant has since satisfied all the necessary requirements for grant of permission and affiliation of the college. We do not want to examine the alternate contention urged by the appellant. That is a matter for the statutory authorities like the District Educational Officer and the Nagarjuna University to satisfy them selves whether the institution should be permitted to carry on the course of study. Whether it has satisfied the necessary conditions for grant of permission and affiliation. We express no opinion on that aspect of the matter. As to the first contention, very little remains in favour of the appellant. While considering the validity of the earlier cancellation of the permission, the High Court had laid down certain guidelines and issued some directions for obedience. The High Court made that order in the interest of the institution and the students, though strictly speaking it was beyond the power of the High Court. The High Court did make it clear that if those conditions were not complied with within the prescribed period, the institution shall cease to function. The record reveals that there were many deficiencies in the institution. The reports of the District Educational Officer and the Inspection Commission of Nagarjuna University indicated that the appellant did not satisfy all the requirements for granting permission or affiliation. We find no justification to consider the correctness of those reports. Nor we could find fault with the order of the High Court. Indeed we must accept it in the circumstances of the case. We may however, state that if the appellant has since substantially complied with the necessary conditions after the disposal of the matter by the High Court, it will be open to it to approach the concerned authorities for permission to start the college again. This however, is not the end of the matter. There still remains another question. That question arises out of the interim order made by this Court. In this Court when the Advocates were on strike, the appellant appears to have personally moved CMP No. 5153 of i988 for permission to admit students for the term l987 88. That petition came up before a Bench of this Court on February 23, 1988. Mr. J. Prasad, petitioner in person was present in the Court and Mr. Balasubramaniam on behalf of the State Government was present. No advocate was present. Mr. Balasubramaniam, was PG NO 901 an officer of the establishment of the Andhra Pradesh Government Legal Cell at Delhi. Obviously he was ignorant of, the facts of the case. This Court after going into the relevant papers made an interim order as follows: "We have also read the report of 9th February, 1988 made by the District Educational Officer, Ongole. We direct subject to compliance of the conditions, petitioners should be permitted to admit students for the term 1987 88. The verification should be made within one week from today and if there have been any shortfall, petitioner has opportunity to comply the same within one week. The time granted upto Ist of March, 1988 shall stand extended upto 15th March, 1988. CMP is disposed of. " As is obvious from the above interim order that the appellant was permitted to admit students for the academic year 1987 88 subject to compliance with the conditions. This Court did not specify the number of students to be admitted. On March 9, 1988, the Department sent a Committee of two persons for inspection and report about the facilities available in the college. The Committee consisted of Shri R. Durga Prasad of G.G.C.E. Nellore and Shri B. Venkateswara. District Educational Officer, Ongole. They visited the college and submitted the report dated March 9, 1988. Several irregularities were pointed out in that report particularly with regard to accommodation, furniture, library. laboratory and games material. With regard to staff it is stated that the staff appointed are qualified, but it does not state whether the required numbers in different disciplines have been recruited or not. That report was forward to the Directorate of School Education. On March 11, 1988, the Director wrote to the Secretary. Government Education Department, A.P. to examine the case of the appellant in detail and accord permission to run the college till 1987 88 and also permit admissions of students in view of the interim order made by this Court. The Director also pointed out in his letter that the appellant is claiming to be a minority institution and seeking admission of 160 students. On April 4, 1988, the Government made an order according sanction to run the college till 1987 88 with an intake capacity of 100 students subject to fulfilment, among others, the following conditions: "(1) The college building should be constructed expeditiouly. The management should procure equipment and material for the laboratories expending an amount of not PG NO 902 less than Rs.20,000 during 1987 88. They should also procure audio visual equipment and material at a cost of not less than Rs.30,000. The management should provide library facilities and expend a sum of Rs.5,000 towards purchase of books. They should also provide adequate furniture. (2) The management should appoint full contingent staff on prescribed scales of pay. (3) They should appoint edequate teaching and non teaching staff on prescribed scales of pay. (4) Admissions into the B.Ed. Course in the College should be through the Common Entrance Examinations conducted by the University in view of the High Court judgment dated 8.10.1987 in W.P. No. 552 of 1986. (6) The management should not collect any capitation fees. (7) To establish a Model School The Director of School Education was requested to report the fulfilment of conditions by the management to the Government within six months from the date of issue of the order, failing which the permission accorded as liable to be cancelled without any notice. This order was made subject to final judgment of the Supreme Court of India. ' ' It appears even before the aforesaid Government order, the appellant had admitted 160 students. The students were not allotted by the Convenor, B.Ed., Common Entrance Test. It is now said that these 160 students have undergone the required nine months training in the academic year 1987 88 and therefore, they should be permitted to appear for the examination. Counsel for the State submitted that the appellant has been a law breaker from the very beginning and no concession should therefore be extended to perpetuate the illegality by permitting the students to appear in the examination. In any event, he said that more than 100 students should not be permitted. PG NO 903 The explanation of the appellant however, in this context is, that there is a general circular of the State Government permitting unaided schools/colleges to admit 160 students for B.Ed. course as economic viability. The appellant, therefore, had to admit the students before the due date extended by this Court and could not have waited for the belated Government order. The explanation of the appellant appears to be far from satisfactory. The permission to start the college by the appellant was cancelled twice by the authorities for want of requirements. On the ground, the university also has refused to grant affiliation to the college. The order of the High Court affirming the decision of the university is not under appeal before us. In spite of it, the appellant s sought an interim order from this Court and admitted 160 students. If the Government order had been delayed, the appellant ought to have asked the Convenor, B.Ed. Common Entrance Test to allot the students for admission to the college. That was one of the conditions laid down by the High Court also. Even that was not complied with. From the sequence of events which were earlier referred to, we cannot avoid the conclusion that the appellant was trying to overreach everybody body at every stage. This is one side of the picture. There is however, another side. They are the students who were admitted on the strength of the interim order made by this Court. The student were perhaps led to believe that this Court permitted the appellant to admit them. We consider, therefore, that it may not be proper to drive them to street if they have undergone the prescribed course with the necessary syllabi and other matters relating thereto. But it would be for the Director of School and the Registrar. Nagarjuna University to consider and satisfy themselves and not for this Court at once to permit to them to appear in the examination. In the result we dismiss the writ appeal. but direct respondent 1 and 3 to consider forthwith whether the students in the appellant 's college have undergone the necessary B.Ed. course and if so, permit them to appear for the ensuing examination and publish their result. In the circumstances. however, we make no order as to costs. Before parting with the case, we should like to add a word more. Though teaching is the last choice in the job market, the role of teachers is central to all processes of formal education. The teacher alone could bring out the PG NO 904 skills and intellectual capabilities of students. He is the 'engine ' of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter. He must keep himself abreast of ever changing conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse nobler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or substandard teachers would be detrimental to our educational system; if not a punishment on our children. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration. A.P.J. Appeal dismissed.

In the matter giving rise to the Special Leave Petition (Civil) No. 8219 of 1982 the plaintiffs filed a suit alleging that their father, who dies in the year 1956, had mortgaged the suit property for 30,000 Koris by a registered mortgage deed dated 20th April, 1943, executed in favour of the power of attorney holder and manager of the defandants Nos. l and 2. The defendant No. 3 is the heir of the attorney who was also managing the properties of the defendants Nos. I and 2. The mortgage property consisted of two delis having residential houses, shops, etc. The mortgagees had inducted tenants in the suit property being defandants Nos. 4 to 9 in the original suit. When the mortgage transaction took place the economic condition of the father of the plaintiffs was weak and he was heavily indebted to others. Taking advantage of that situation, the mortgagees took mortgage deed from him on harsh and oppressive conditions by getting incorporated a long term of 99 years for redemption of mortgage. Though possession was to be handed over to the mortgagees, they took condition for interest on the part of principal amount in the mortgage deed. Mereover, the mortgagees were given liberty to spend any amount they liked for the improvement of the suit property and were also permitted to rebuild the entire property. A registered notice to the defendants Nos. I and 2 was given to redeem the mortgage, but they failed to do so, hence, the present suit was filed to redeem the mortgage and to recover actual possession from the defendants Nos. 4 to 9 who were the tenants Inducted by the mortgagees. PG NO 827 Defendant No. 1 resisted the suit alleging that the term of the mortgage was for 99 years, so the suit filed before the expiry of that period was premature. The defendant No. 3 resisted the suit by filing the written statement. The defendants Nos. 4 to 9 resisted the suit on the grounds that the plaintiffs were not entitled to redeem the mortgage and even if they were so entitled, they could not get actual physical possession from the tenants who were protected by the Bombay Rent Act, because they were inducted by the mortgagees. The Court proceeded against defendants Nos. 2/1 to 2/7 (heirs of mortgagee defendant No. 2) ex parte, and a preliminary decree for redemption of mortgage was passed on 2nd April, 1974 by the Trial Court. But this ex parte decree was set aside by the District Court in the appeals filed by the heirs of defendant No. 2 on the ground that summons of the suit had not been duly served upon them. Thereafter defendent No. 2/1 filed his written statement alleging that the suit was bad for non joinder of the sisters of the plaintiffs as parties. Moreover, as per the terms and conditions of the mortgage deed, there was usufructuary mortgage for 20,000 koris, and the remaining 10.,000 koris were advanced to the mortgagor at monthly interest at the rate of 1/2 per cent. There was a condition in the mortgage deed that the mortgagor would pay principal amount us well as the interest at the time of redemption. When the suit was filed in the year 1972, the mortgagees were entitled to recover interest on 10,000 Koris for a period of 29 years, that the total mortgage amount along with interest would come to 47,400 koris equivalent to Rs. 15800 and the Civil Judge had no jurisdiction to try such suit; that the court fees was also not sufficient; that it was not true that the father of the plaintiffs was of weak economic condition. The grand father of the plaintiffs was as Advocate and the father of the plaintiffs was the clerk of an advocate. 'The plaintiff No. l was also working as an Advocate at the time of the mortgage, so they knew the legal position; that at the relevant time the prevalent custom in Kutch State was to take mortgages of long term for '99 years and when it was permissible to take mortgage deeds with such a long term, it was also necessary to give permission for rebuilding the whole property, for better enjoyment of lt. So these terms could not amount to clog on equity of redemption of mortgage, the mortgagees did not take any undue advantage and they were not present physically when the transaction took place through their power of attorney holders. If the conditions of mortgage deed did not amount to clogs on equity of redemption, the suit would be clearly premature. The plaintiff No. I had subsequently became a Civil Judge and was ultimately the Chairman of the Tribunal so if the said terms and conditions of the mortgage were onerous and oppressive, he would not have sat idle for 29 years. But he remained silent because he was aware of the PG NO 828 said custom. The prices of immovable properties had increased tremendously, therefore, the suit had been filed with mala fide intention; that in case the Court comes to the conclusion that there was a clog on equity or redemption and the plaintiffs were entitled to the redemption, then the interest on 10,000 koris should be awarded to the mortgages; and that the suit should be dismissed as there was no clog on equity of redemption and the Court had no jurisdiction to try the suit. The other defendants remained absent. The Trial Court while decreeing the suit came to the conclusion that there was mortgage transaction between the father of the plaintiffs and the mortgagees on 20th April, 1943, that the terms and conditions in the mortgage deed being harsh and oppressive, amounted to clog on equity of redemption, so the plaintiffs were entitled to file the suit even before the expiry of the term of the mortgage; that the sisters of the plaintiffs were not necessary parties to the suit and even if they were, a co mortgagor was entitled to file the suit for redemption so the suit was not bad for want of non joinder of necessary parties; that it had jurisdiction to try the suit; that the mortgagees were not entitled to claim interest on 10,000 koris and that the plaintiffs were entitled to recover possession from the defendants Nos. 4 to 9 who were the tenants inducted by the mortgagees. The appeals filed by the mortgagees as well as the tenants were dismissed by the first appellate Court holding that the terms and conditions of the mortgage deed were oppressive and harsh, there was clog on equity of redemption and the mortgagor should be freed from that bondage that the tenants had no right to he in possession and were not entitled to the protection of the Bombay Rent Control Act after the redemption of the mortgage. The High Court dismissed the second appeal. Civil Appeal No. 9993 of 1983 is an appeal by the tenant. Civil Appeal No. 397 of l980 is also an appeal by the tenant. In this case the decree holder instituted a regular suit for redemption of the mortgage property. The suit was dismissed. Thereupon the respondent No. l preferred an appeal to the District Judge where the suit was decreed. The defendants filed a second appeal which was dismissed. The decree holder made an application for final decree. The Court while giving the final decree for redemption of the mortgage directed the judgment debtors to hand over the possession of the mortgage property within three months on the decree holder making payment of dues in respect of the mortgage in the court. In pursuance of the final decree the decree holder took out the execution proceedings and PG NO 829 deposited the dues in the Court and claimed possession of the mortgage property from the appellant herein stating that he was a tenant in the possession of the property. Notice was issued to the tenant, who submitted his objection stating that he was a tenant, not to be evicted in the execution of the decree and that he was entitled to get the protection under the Bombay Rent Control Act. The District Judge held that there was no conduct on the part of the decree holder which would stop him from claiming physical possession from the tenant of the mortgagee in possession. The High Court rejected the appeal summarily. Hence the appeal. Civil Appeal No. 1286 of 1981 is also an appeal by the tenant. The appellant is the tenant of the mortgagee inducted in 1955. The property was mortgaged in 1948 for a period of five years. It appears that the tenant was inducted after the period of redemption had expired. The mortgagor had a right to redeem after the expiration of the mortgage. The first appellate court came to the conclusion that the tenants were not protected under the provision of the Bombay Rent Control Act. The appellant preferred this appeal in this Court. On behalf of the appellants it was contended that in the former Kutch District there was a custom to mortgage for a long term of 99 years and when the period was long, naturally the mortgagee would he required to give full authority to repair and reconstruct the mortgaged property with a view to keep pace with new demands of changing pattern, so the condition should not he treated as clog on equity of redemption; (2) that there is no evidence to lead to the conclusion that there was any undue influence; (3) that the provision for the payment towards cost and expenses of repairs and construction did not amount to a clog on the equity of redemption; (4) that on the evidence and the facts the transactions did not amount to clog on the equity of redemption; (5) that in Civil Appeal No. 9993 of 1982 the plaintiff 's were not entitled to recover possession from the appellants, who are tenants in the mortgage properties, since their rights are protected under the Bombay Rents, Hotel and Lodging House Rates Control Act? 1947 as the said Act applies to the area of Kutch in the Bombay State. Therefore, no decree for eviction could he passed against them except in accordance with the provisions of the said Act; (6) that the Trial Court did not make any finding as to when the tenants were inducted, either before or after the rent restriction Act was made applicable to the area of ' Kutch and (7) that the High Court has erred in not following the said legal position entrenched by a line of decisions of this Court with the rights of a tenant inducted by a mortgagee with possession would enure beyond the period of PG NO 830 redemption of the mortgage if his rights are enlarged by subsequent tenancy legislation in force in the area in which the property is situated. Dismissing the Appeals, HELD: 1. The Court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. [844E] 2. The rights and liabilities of the mortgagor are controlled by the provisions of section 60 of the . [846F] 3. Any provision inserted to prevent. evade or hamper redemption is void. [846G] 4. The doctrine "clog on the equity of redemption" is a rule of justice, equity and good conscience. It must be adopted in each case to the reality of the situation and the individuality of the transaction [847A] 5. Freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. Poverty should not be unduly permitted to curtail one s right to borrow money on the ground of justice, equity and good conscience on just terms. If it does, it is bad. Whether it does or does not. however, depends upon the facts and the circumstances of each case. [847H; 848A] 6. Whether in the facts and the circumstances of these cases. the morgage transaction amounted to clog on the equity of redemption, is a mixed question of law and fact. [848D] 7. Courts do not look with favour at any clause or stipulation which clogs equity of redemption. A clog on the equity of redemption is unJust and unequitable. The principles of English law, as we have noticed from the decisions referred to hereinbefore which have been accepted by this Court in this country, looks with disfavour at clogs On the equity of redemption. Section 60 of the , in India, also recognises the same position. (848D E] 8. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is PG NO 831 prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clot is inequitable. The law does not countenance it. [848F G] 9. Whether or not in a particular transaction there is a clog on the equity or redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis a vis him and the mortgagee, the economic and social condition in a particular country at a particular point of time, customs if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligation of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management, these factors must be co related to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption. [848H; 849A C] 10. A mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge or some other obligation for which il is given The security must, therefore, be redeemable on the payment or discharge of such debt or obligation. ,any provision to the contrary, notwithstanding, is a clog or fetter on thc equity of redemption and, hence. bad and void. "Once a mortgage must always remain a mortgage", and must not be transformed into a conveyance or deprivation of the right over the property. [849D E] 11 . The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable. fair and just, and unless there is anything to the contrary in the Statute, law must take cognisance of that fact and act accordingly. Ia the context of fast changing circumstances and economic stability, long term for redemption makes a mortgage an illusory mortgage, though not decisive. [850D E] 12. Even apart from section 76(a) of the if the words of the mortgage deed clearly and indubitably express an intention to allow expressly creation PG NO 832 of a tenancy beyond the term of ' the mortgage, then only the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor. If the words of the mortgage deed do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy beyond the terms of the mortgage, the mere fact that the mortgage deed authorises the mortgagee with possession to induct a tenant would not create a tenancy binding on the mortgagor after the redemption of the mortgage. [857E G] 13. In the instant cases the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgagee and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the morfgagor so as to claim tenancy rights even after redemption of the mortgage. [866C] Khatubai Nathu Sumra vs Rajgo Mulji Nanji and Ors. , A.I.R. 1979 Gujarat 171; Lalji Purshottam vs Thacker Madhavji Meghaji, 17 Gujarat Law Reporter 497; Maganlal Chhotalal Chhatrappati and Ors. vs Bhalchandra Chhaganlal Shal, 15 Gujarat Law Reporter 193; Soni Motiben vs M/s. Hiralal Lakhasmhi, 22 Gujarat Law Reporter 473; Vadilal Chaganlal Soni and Others vs Gokaldas Mansukh and Other, ; Sarjug Mahto and Others vs Smt. Devruo Devi and Others, A.I.R. 1963 Patna 114; Kunjbiharilal vs Pandit Prag Narayan, A.I.R. 1922 Oudh 283; section V. Venkatarama Reddiar vs Abdul Ghani Rowther & Ors., A.I.R. and Devkinandan and Another etc. vs Roshan Lal and Others, A.I.R. , approved. Santley vs Wilde, [1989] 2 Ch. 474; Vermon vs Betheli, ; and 839; G. and C. Kreglinger vs New Patagonia Meat and Cold Storage Company Ltd., [1914] Appeal Cases 25; All lndia Film Corporation vs Raja Gyan Nath, ; Sachalmal Parasram vs Ratnabai, and Om Prakash Garg vs Ganga Sahai & Ors., , relied on. Seth Ganga Dhar vs Shankar Lal & Ors., and Jadavji Purshottam vs Dhami Navnitbhai Amaratlal & Ors., [1987] 4 SCC 223, distinguished, Aziz Khan vs Duni Chand and Others, A.I.R. 1918 P.C. 48; Jarrah Timber & Wood Paving Corporation vs Samuel, 119031 2 Ch. l; Chhedi Lal vs Babu Nandan, AIR 1944 Allahabad 204; PG NO 833 Bhika and Anr. vs Sheikh Amir and Ors., A.l. R. 1923 Nagpur 60; Mahabir Gope vs Harbans Narain Singh, ; ; Hariher Prasad Singh vs Must. of Munshi Nath Prasad, [1956] S.C.R. l; Asa Ram vs Mst. Kam Kali, ; Dahya Lal vs Rasul Mohammed Abdul Rahim, ; ; Madan Lal vs Bedri Narain and Others, ; Mulla 's , 7th Edition, pages 401 and 402; Rashbehary Ghose 's 'Law of Mortgage ' 6th Edition, pages 227 and 228; Dalal 's Rent Act 4th Edn. page 814 referred to.

le 2B clearly provides that where the market value of an asset exceeds its written down value or book value by more than 20 percent, the value of that asset for the purposes of Rule 2A shall be taken to be its market value. [49 B] In the instant case, the Wealth tax Officer was of the view that the book values of specific house properties as indicated in the returns filed by the appellant No. 2 were far below their market values. He was therefore justified in making a reference to the Valuation Officers under section 16A and the notices issued by the Valuation Officers were valid. [49 E] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 816 of 1978. From the Judgment and Order dated the 4th October, 1977 of the High Court of Judicature at Allahabad in Writ Petition No. 88 (Tax) of 1975. 38 V.S. Desai, Ravindra Narain, Harish Salve, Miss Rainu Walia and P.K. Ram, for the Appellants. B.B. Ahuja for the Respondents. The Judgment of the Court was delivered by TULZAPURKAR, J. This appeal by certificate is directed against the judgment and order dated 4th October, 1977. of the Allahabad High Court whereby the High Court upheld the reference made by the Wealth Tax Officer (Respondent No. 1) to the Valuation Officers (Respondents Nos. 2 and 3) for valuing certain buildings belonging to the appellant No. 1 firm as well as the notices issued by the Valuation Officers to appellant No.2 in furtherance of the Reference. The appellants had by means of a writ petition challenged the reference as well as the notices on certain grounds and had prayed for a mandamus restraining respondents Nos. 2 and 3 from valuing the buildings. The writ petition having been dismissed, the appellants have come up in appeal to this Court. Most of the material facts giving rise to this appeal are not in dispute and may briefly be stated as follows: Appellant No. 1 (M/s. Juggi Lal Kamlapat, Bankers) is a partnership firm. Appellant No. 2 (Padampat Singhania) was one of the partners in the firm in his capacity as a 'Karta ' of a Hindu Undivided Family upto 15 3 1972. He was being assessed to wealth tax in the status of H.U.F. and the assets so assessed for wealth tax included the interest of the family in appellant No. 1 firm. For the assessment years 1967 68 to 1972 73 wealth tax returns were submitted by appellant No. 2 in the status of H.U.F. and therein the family 's interest in appellant No. 1 firm was included. Since appellant No. 1 firm owned a number of buildings in Kanpur in the returns so submitted the book value of those buildings had been adopted by appellant No.2 for valuing the interest of the family in appellant No. 1 firm. Respondent No. 1 felt that the market value of those buildings was much more than such book value. He, therefore, referred the question of valuation of those buildings to respondents Nos. 2 and 3 (the concerned Valuation Officers) under s.16A of the Wealth Tax Act 1957 (hereinafter referred to as 'the Act '). Respondents Nos. 2 and 3 issued notices under section 38A (1) (b) of the Act to appellant No. 2 intimating that they would inspect the buildings for determining the fair market value thereof and requested him to afford necessary facilities for such inspection and to produce certain records connected with those build 39 ings. On receiving the notices appellant No. 2 realised that respondent No.1 had referred the question of valuation of the concerned buildings to respondents Nos. 2 and 3 under section 16A of the Act and that the notices issued by respondents Nos. 2 and 3 were in furtherance of such reference. On 9th of September, 1974 appellant No.2 addressed a letter to respondent No. 1 contending that none of the properties referred to the Valuation Officers belonged to him and that the reference to them was unauthorised and the same should be with drawn. He also addressed letters to respondents Nos. 2 and 3 in which he contended that reference made to them by respondent No.1 was invalid and requested each one of them to return the reference back to the Wealth Tax Officer. Since these contentions were not accepted by the respondents, the appellants filed a writ petition in the High Court challenging the reference made by respondent No.1 as well as the notices issued by respondents Nos. 2 and 3. On behalf of the appellants the following contentions were urged in support of the writ petition: (1) For the assessment of appellant No. 2, respondent No. 1 could not refer to respondents nos. 2 and 3 the valuation of building which did not belong to him but belonged to appellant No. 1 firm: (2) the interest of a H.U.F. in a partnership firm was not exigible to wealth tax; (3) the interest of appellant No. 2 in appellant No. 1 firm had to be valued in accordance with Rule 2 of Wealth Tax Rules 1957 and hence section 16A of the Act had no application; (4) the valuation of the concerned buildings forming part of the assets of the business of appellant No. 1 firm had to be determined in accordance with the commercial principles under s.7 (2) (a) and not under s.7 (1) of the Act and (5) the respondents nos. 2 and 3 could not issue the notices to appellant No.2 as he was neither the owner of the buildings nor was in occupation thereof. In regard to the first contention the High Court took the view that though it was true that a partner of a firm could not claim ownership in specific properties belonging to the partnership firm either during the continuance of the partnership or even on its dissolution but was entitled to get a share in the profits during its continuance and was further entitled, upon its dissolution or his retirement there from, to the value of his share in the surplus of the partnership assets left after a deduction of liabilities and prior charges on the date of dissolution or retirement, it was clear that having regard to section 29 of the Partnership Act (which enables a partner to transfer his interest in the partnership firm) and s.2 (e) and 4 (1) (b) of the Act the interest of a partner in the partnership firm will have to be regarded as a part 40 of his net wealth under the Act. As regards the second contention which was elaborated to the effect that even if the interest of an individual in a partnership firm could be regarded as an asset within the meaning of s.2(e) of the Act, the interest of a H.U.F. in the partnership firm could not be regarded as such asset and was not, therefore, exigible to wealth tax (for which reliance was placed on the circumstances that under s.4 (1) (b) of the Act provision has been made for determining the value of an individual 's interest in a partnership firm but no corresponding provision obtains in the Act for inclusion of the interest of H.U.F. in a partnership firm for purposes of assessment), the High Court took the view that from the said circumstances relied upon it did not follow that the interest of a H.U.F. in a partnership firm could not be regarded as a part of net wealth of such family or was not liable to wealth tax, especially when the charging provision namely, s.3 of the Act expressly levied wealth tax on the net wealth of every Hindu undivided family and there was no reason why its interest in a partnership firm, which was property, could not be regarded as a part of its assets liable to the charge under the section. With regard to the third and fourth contentions the High Court held that Rule 2, sec. 7 and sec. 16A (1) (4) (ii) had to be read harmoniously and Rule 2 did not exclude the application of secs. 7 and 16A for valuing an asset of a partner in a partnership firm and that notwithstanding the non obstante clause contained in sec. 7 (2) it was an enabling provision giving a discretion to the Wealth Tax Officer either to value the assets of a business as a whole or valuing each asset thereof separately and in that behalf the Wealth Tax Officer had the power to refer such valuation to the Valuation Officer under sec. As regards the last contention the High Court negatived the same by observing that appellant No. 2 as a partner could be regarded as an agent of appellant No. 1 firm and the Valuation Officers could issue Notices to him requiring him to afford facilities for inspection of the concerned buildings and to produce books, documents and records relevant for the valuation of those buildings. In this view of the matter the High Court dismissed the writ petition but its decision is challenged in this appeal. Counsel for the appellants raised substantially two contentions in support of the appeal. In the first place counsel has contended that there is no provision for the inclusion of a Karta 's interest in a partnership firm in the H.U.F. 's net wealth for wealth tax purposes under the Act and this would be clear from sec. 4 of the Act. Elaborating this contention counsel has pointed out that sec. 4 (1) is applicable to the computation of the net wealth of an individual and 41 that the said provision is a deeming provision whereunder certain tassets though held in reality by some others are to be treated as belonging to that individual and included in his net wealth for purposes of his wealth tax assessment and one such deeming provision is to be found in cl. (b) thereof which provides that where the assessee is a partner in a firm the value of his interest in a firm determined in the prescribed manner shall be included in computing the net wealth of such individual and what is urged is that there is no provision to be found in the Act which provides for the inclusion of Karta 's interest in a firm in the H.U.F. 'section net wealth. Counsel strenuously urged that but for the deeming provision which is to be found in cl. (b) even the interest of partner (in his individual capacity) would not have become includible in his net wealth. In otherwise, according to counsel, there is a lacuna in the Act as regards the inclusion of a Karta 's interest in the partnership firm in his H.U.F. 'section net wealth and, therefore, the Department 's attempt to include the interest of appellant No.2 (as a Karta) in appellant No. I 's firm in the net wealth of his H.U.F. is not warranted by any of the provisions of the Act. Secondly, counsel has urged that assuming that appellant No.2 's interest (as a Karta of his H.U.F.) in appellant No. 1 's firm is exigible to the wealth tax under the Act, the valuation of such interest being governed by sec. 7 (2) (a) of the Act read with Rule 2A of the wealth Tax Rules, 1957 it is not open to the Wealth Tax officer to refer the valuation of specific house properties belonging to the firm to the Valuation officers under section 16A of the Act; in fact; according to him, the valuation of the assets of the partnership business of appellant No.1 as a whole having regard to its balance sheets for the concerned years ought to have been undertaken by the Wealth Tax officer and as such the book values of the house properties as appearing in the Balance Sheets ought to have been accepted by him and, therefore, the reference made by the Wealth Tax officer to Valuation officers as well as the notices issued by the latter being incompetent and unjustified in law, are liable to be quashed. For the reasons which we shall presently indicate neither of the contentions has any substance and both are liable to be rejected. In order to deal with the first contention mentioned above it will be necessary to set out the material provisions of s.4 of the Act Clauses (a) (b) of sub section (1) of sec. 4 run as follows: "Net wealth to include certain assets: 4.(1) In computing the net wealth of an individual, there shall be included, as belonging to that individual 42 (a) the value of assets which on the valuation date are held (i) by the spouse of such individual to whom such assets have been transferred by the individual, directly or indirectly, otherwise than for adequate consideration or in connection with an agreement to live apart, or (ii) by a minor child, not being a married daughter, of such individual, to whom such assets have been transferred by the individual, directly or indirectly, otherwise than for adequate consideration, or (iii) by a person or association of persons to whom such assets have been transferred by the individual directly or indirectly otherwise than for adequate consideration for the immediate or deferred benefit of the individual, his or her spouse or minor child (not being a married daughter) or both, or (iv) by a person or association of persons to whom such assets have been transferred by the individual otherwise than under an irrevocable transfer, or (v) by the son 's wife, or the son 's minor child, of such individual, to whom such assets have been transferred by the individual, directly or indirectly, on or after the 1st day of June, 1973, otherwise than for adequate consideration, whether the assets referred to in any of the sub clauses aforesaid are held in the form in which they were transferred or otherwise: Provided that where the transfer of such assets or any part thereof is either chargeable to gift tax under the Gift tax Act, 1958(18 of 1958), or is not chargeable under section 5 of that Act, for any assessment 43 year commencing after the 31st day of March, 1964 but before the 1st day of April, 1972, the value of such assets or part thereof, as the case may be, shall not be included in computing the net wealth of the individual; (b) where the assessee is a partner in a firm or a member of an association of persons not being a co operative housing society, the value of his interest in the firm or association determined in the prescribed manner". It is true that sec. 4 (1) deals with the computation of the net wealth of an individual and it is also true that same enacts a deeming provision in the sense that certain assets which do not in fact or in reality belong to that individual (the assessee) but to some one else are to be treated as belonging to that individual and are to be included in his net wealth. But, in our view, a careful reading and analysis of cls. (a) and (b) thereof will make it clear that there is a great difference between the cases covered by sub cls. (i) to (v) of cl. (a) and the case covered by cl. (a) refers to five situations in all of which the asset is held by some one other than the individual concerned (the assessee) (e.g. held by the spouse or minor child of such individual to whom such asset has been transferred by such individual directly or indirectly otherwise than for adequate consideration, etc.) and it is provided that such asset held by that some one else shall be treated as belonging to the assessee a deeming provision in the real sense of creating a legal fiction, while under cl. (b) it is provided that where the individual assessee is a partner in a firm it is the value of his interest in the firm determined in the prescribed manner that is to be treated as belonging to him and is includible in his net wealth. In other words cl. (b) is not a deeming provision in the sense in which a deeming provision is made in cl. It cannot be said that the interest of a partner in a firm does not belong to him; it in fact belongs to him and no legal fiction is required for treating it as belonging to him and the proper way to interpret cl. (b) would be that the deeming part of it relates to the quantum of his interest in the firm determined in the prescribed manner which is to be treated as belonging to him and includible in his net wealth. It is impossible to accept the contention that but for cl. (b) of s.4 (1) the interest of a partner (where he happens to be an individual assessee) in a firm would not have been exigible to wealth tax under the Act. As we shall presently point out a partner 's interest in a firm either in his individual capacity or in his capacity as a Karta of H.U.F is otherwise exigible 44 to wealth tax under the other provisions of the Act and the deeming provision contained in s.4 (1) (b) properly understood must be held to be referable to the quantification of his interest in the firm determined in the prescribed manner that is made includible in his net wealth. Section 3 of the Act read with the definitions of "net wealth" as given in sec. 2 (m) and "assets" given in sec. 2 (e) clearly brings out the exigibility of a partner 's interest in a firm either in his individual capacity or his capacity as a Karta of a H.U.F. to wealth tax under the Act. Section 3 which is a charging provision runs thus: "Charge of wealth tax. Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in Schedule I." Section 2 (m) defines "net wealth" thus: "net wealth" means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever, located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than (here follow three types of debts which are not to be reckoned with which we are not concerned). " Section 2 (e) defines "assets" thus: "assets" includes property of every description, movable or immovable, but does not include (here follow certain specified properties with which we are not concerned.)" On reading the aforesaid provisions together it will appear clear that wealth tax has been levied on the net wealth of an individual 45 or a H.U.F. meaning thereby the aggregate value of all the assets belonging to such assessee minus all the debts owed by him. Under the definition of 'assets" property of every description, movable or immovable is included, and since it cannot be disputed and was not disputed before us that a partner 's interest in a firm either in his individual capacity or in his capacity as a Karta of a H.U.F. is property. the same would be includible in the expression "assets" which will have to be taken into account while computing the net wealth of such individual or H.U.F. and on such net wealth the charge of wealth tax has been imposed under sec. It is thus clear that there is no lacuna in the Act as regards the making of a Karta 's interest (representing his H.U.F.) in the partnership firm exigible to wealth tax. The first contention, therefore, must fail. The second contention of counsel for the appellant has been that even if it be held that appellant No. 2 's interest (as a Karta of his H.U.F.) in the appellant No. 1 's firm is exigible to the tax under the Act the valuation of such interest would be governed by sec. 7 (2) (a) of the Act read with Rule 2A of the Wealth Tax Rules 1957 and since it is a case of valuing such interest in the partnership business of appellant No. 1 firm the Wealth Tax Officer while first valuing the assets of the business should have, having regard to the balance sheets of the said business as on the valuation dates, accepted the book values of the specific house properties as appearing in the balance sheets and could not refer the valuation thereof to the Valuation officers under sec. 16A of the Act which being inapplicable could not be resorted to; in this connection reference was also made by counsel to sub s (2) of sec. 4 whereunder it is provided that in making any rules with reference to the valuation of the interest referred to in cl. (b) of sub section (1) (being a partner 's interest in a firm) the Board shall have regard to the law for the time being in force relating to the manner in which accounts are to be settled between partners of a firm on the dissolution of a firm. The substance of the argument, in brief, has been that sec. 7 (1) which enables the Wealth tax officer to determine the value of any asset, other than cash, at the market price thereof on the valuation date for the purposes of the Act is inapplicable to the instant case and, therefore, sec. 16A is not attracted and hence the valuation reference made by the Wealth tax officer to the Valuation officers regarding specific house properties is liable to be set aside. As we shall demonstrate presently, the contention proceeds on an entire misconception of the relevant provisions of the Act and the Rules. We have already indicated above that a partner 's interest in a 46 firm, either in his individual capacity or as a Karta of a H.U.F., is property or asset liable to be included in the net wealth of the concerned assessee and is exigible to wealth tax under the Act. Once that position is accepted it is clear that such asset will have to be valued for the purposes of the Act and in this behalf Rule 2 (1) of the Wealth tax Rules, 1957 prescribes the manner of valuing such interest, It runs thus: "Valuation of interest in partnership or association of persons. (1) The value of the interest of a person in a firm of which he is a partner or in an association of persons of which he is a member, shall be determined in the manner provided herein. The net wealth of the firm or the association on the valuation date shall first be determined. That portion of the net wealth of the firm or association as is equal to the amount of its capital shall be allocated among the partners or members in the proportion in which capital has been contributed by them. The residue of the net wealth of the firm or association shall be allocated among the partners or members in accordance with the agreement of partnership or association for the distribution of the assets in the event of dissolution of the firm or association, or, in the absence of such agreement, in the proportion in which the partners or members are entitled to share profits. The sum total of the amounts to so allocated to a partner or member shall be treated as the value of the interest of that partner or member in the firm or association. " The aforesaid rule clearly says that in order to determine valuation of a partner 's interest in the firm, first the net wealth of the firm has to be determined, which determination, of course, is governed by sec. 7 of the Act and the rule goes on to provide as to how the net wealth of the firm so determined shall be allocated among the partners of the firm, which allocated amount will be regarded as the value of the interest of each partner in the firm. Coming to the precise contention raised by counsel, the material provisions of the Act and the Rules having a bearing thereon would be sec. 7 (1), 7 (2) (a), 7 (3) and Rules 2A and 2B and these are as under: "Value of assests, how to be determined. (1) Subject to any rules made in this behalf the value 47 of any asset, other than cash, for the purposes of this Act, shall be estimated to the price which in the opinion of the Wealth tax Officer it would fetch if sold in the open market on the valuation date. (Explanation. . . . . . . ) (2) Notwithstanding any thing contained in sub section (1), (a) where the assessee is carrying on a business for which accounts are maintained by him regularly, the Wealth tax officer may, instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. (3) Notwithstanding any thing contained in sub section (1), where the valuation of any asset is referred by the Wealth tax officer to the Valuation officer under section 16A, the value of such asset shall be estimated to be the price which, in the opinion of the Valuation Officer, it would fetch if sold in the open market on the valuation date, or, in the case of an asset being a house referred to in sub section (4), the valuation date referred to in that sub section. " Rules 2A and 2B run thus: "Determination of the net value of assets of business as a whole. Where the Wealth tax officer determines under clause (a) of sub section (2) of section 7 the net value of the assets of the business as a whole having regard to the balance sheet of such business, he shall make the adjustments specified in rules 2B, 2C, 2D, 2E, 2F and 2G." "Adjustments in the value of an asset disclosed in the balance sheet. 2B. (1) The value of an asset disclosed in the Balance sheet shall be taken to be 48 (a) in the case of an asset on which depreciation is admissible, its written down value; (b) in the case of an asset on which no depreciation is admissible, its book value; (c) in the case of closing stock, its value adopted for the purposes of assessment under the Income tax Act, Act, 1961, for the previous year relevant to the corresponding assessment year. (2) Not withstanding any thing containing in sub rule (1) where the market value of an asset exceeds its written down value or its book value or the value adopted for purposes of assessment under the Income tax Act, 1961, as the case may be, by more than 20 per cent, the value of that asset shall, for the purposes of rule 2A, be taken to be its market value. " On a fair reading of the aforesaid provisions it will appear clear that the primary method of determining the value of assets for the purposes of the Act is the one indicated in sec. 7 (1), inasmuch as it provides that the value of any assets, other than cash, for the purposes of this Act shall be estimated to be its market price on the valuation date. Then comes sub sec. (2) which provides that in the case of a business for which accounts are maintained by the assessee regularly the Wealth tax officer may instead of determining separately the valuation of each asset held by the assessee in such business, determine the net value of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. It is true that sub sec. (2) commences with a non obstante clause, but even so, the provision itself is an enabling one conferring discretion on the Wealth tax officer to determine the net value of the assets of the business as a whole having regard to its balance sheets as on the valuation date, instead of proceeding under sub sec. In other words, it is optional for the Wealth tax officer to resort to either of the methods even in the case where the net value of a business carried on by the assessee is to be determined. Thirdly, even when he proceeds under sub sec. (2) he has to determine the net value of the business as a whole having regard to the balance sheet of such business as on the valuation date; the phrase "having regard to the balance sheet of such business" as judicially interpreted means that the Wealth tax officer has to take into consideration or account the balance 49 sheet of such business for such valuation and not that such balance sheet is conclusive or binding or decisive of the values of assets appearing therein. Fourthly, the said sub section also says that the Wealth tax officer has to "make such adjustments therein as may be prescribed" and in this behalf Rule 2A and 2B already quoted above indicate what adjustments the Wealth tax officer has to make while determining the net value of the business as a whole. Particularly sub rule (2) of Rule 2B clearly provides that where the market value of an asset exceeds its written down value or book value by more than 20 per cent, the value of that asset for the purposes of Rule 2A shall be taken to be its market value. In other words, it is clear that even where the Wealth tax officer has resorted to sec. 7 (2) for determining the value of assets of a business as a whole the written down values or book values of specific assets as appearing in the balance sheet are not sacrosanct and when the market value exceeds the written down value or book value by more than 20 per cent, the Wealth tax officer has to adopt the market value of such assets for the purposes of this Act. This is apart from the position that the resort to sec. 7 (2) itself is discretionary and optional, the provision being an enabling one. Since in the instant case the Wealth tax officer was of the view that the book values of specific house properties as indicated in the returns filed by appellant No. 2 were far far below their market values, he was justified in making a reference to the Valuation officers under sec. 16A of the Act and the notices issued by the Valuation officers in pursuance of such reference were also valid. In the result the appeal fails and is dismissed with costs.

The appellant is a manufacturer of spare parts and accessories of various aircrafts and has also established facilities for assembling, servicing, repairing, overhauling of aircrafts, their instruments and accessories. The job done by the appellants were servicing, assembling, repairing and overhauling "Airforce planes" entrusted to them. These works were done on the basis of contracts or job orders issued from time to time. While on contract directly concerning the repairing servicing and overhauling of a specified aircraft, instrument or accessory in which the spare parts had been used in the execution of service contracts was on record, there was an agreement dated 23rd June 1951 described as "contract for the flight servicing and maintenance of the H.Q. Training Command I.A.F Communication Flight, "wherein the President of India has been described as the "owner" and the appellant as the contractor. The agreement provided that the works would be carried out by the contractor and payment made by the owner "at cost plus 10% profit basis or at the contractor 's standard fixed rates, where applicable. Under clause 3, the owner will provide the contractor with all the necessary spares and materials (other than expendable materials such as paints, dopes, cleaning rages etc.) and where however there was delay in the supply of the essential items, the contractor will provide those whenever possible by purchase or manufacture within expenditure authorised by the owner 's Deputy Financial Adviser at the contractor 's request from time to time. The Sales Tax authorities sought to tax that portion of the total turnover of the appellant for the relevant years in question which was equivalent to the money value of the spare parts of the air crafts which it had supplied to the Indian Air Force as a result of their use in the process of repairing, servicing and overhauling of the aircrafts, their instruments and accessories which were sent to the appellant for the said purpose. The Appellate Tribunal and the High Court held these to be composite contracts. The High Court was of the view that sale of spare parts was clearly in contemplation of the parties and the documents in question constituted composite contracts, one relating to the remuneration for the services rendered and the other for the sale of goods. Hence the appeals by special leave. Allowing the appeal, the Court ^ HELD : 1:1 It is well settled that the difference between contract of 249 service and contract for sale of goods, is, that in the former, there is in the person performing work or rendering service no property in the things produced as a whole notwithstanding that a part or even the whole of materials used by him had been his property. In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it some time before delivery and the property therein passed only under the contract relating thereto to the other party for price. [257 D E] 1:2 It is necessary, therefore, in every case for the courts to find out whether in essence there was any agreement to work for a stipulated consideration. If that was so, it would not be a sale because even if some sale may be extracted that would not affect the true position. Merely showing in the bills or invoices, the value of materials used in the job would not render the contract as one of sales. The nature and type of the transactions are important and determinative factor. What is necessary to find out, is the dominant object. [257 F G] 1:3 A contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where however the main object of work undertaken by the payee of the price was not the transfer of chattel qua chattel, the contract is one of work and labour. The test, is, whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract was in substance one for work and labour and one for the sale of a chattel. [258 G H; 259 A B] 2:1. The tests indicated in several decisions of this Court to distinguish between a contract for sale and a contract for work and labour were not exhaustive and did not lay down any rigid or inflexible rule applicable alike to all transactions. These did not give any magic formula by the application of which one could say in every case whether a contract was a contract for sale or a contract for work and labour. These merely focussed on one or the other aspect of the transaction and afforded some guidance in determining the question, but basically and primarily, whether a particular contract was one for sale of goods or for work and labour depended upon the main object of the parties gathered from the terms of the contract, the circumstances of the transactions and the custom of the trade. [259 C D] Sentinel Rolling Shutters & Engineering Company Pvt. Ltd. vs The Commissioner of Sales Tax, 42 Sales Tax Cases 409; referred to. 2:2 It cannot be said as a general proposition that in every case of works contract, there is necessarily implied the sale of the component parts which go to make up the repair. That question would naturally depend upon the facts and circumstances of each case. Mere passing of property in an article or commodity during the course of performance of the transaction in question does not render the transaction to be transaction of sale. Even in a contract purely of works or service, it is possible that articles may have to be used by the person executing the work, and property in such articles or materials may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. 250 In every case, the Court would have to find out what was the primarily object of the transaction and the intention of the parties parties while entering into it. It may in some cases be that even while entering into the contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service. But, then in such cases the transaction would not be one and indivisible, but would fall into two separate agreements, one of work or service and the other of sale. In order to constitute a sale, it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, which of course pre supposed capacity to contract, that it must be supported by money consideration that as a result of transaction, the property must actually pass in the goods. Unless all these elements were present, there would be no sale. [260 C H] State of Himachal Pradesh & Others vs Associate Hotels of India Ltd, 29 Sales Tax Cases 474; State of Madras vs Gannon Dunkerley & Co., Madras Ltd, 9 Sales Tax Cases 353 ; ; Robinson vs Graves, ; referred to. 2:3 Whether a given transaction is a works contract pure and simple or it involves sale of goods also is of course a mixed question of law and fact depending upon the facts of each case. It is true, that it cannot be said that parties did not contemplate and apply their minds to the question of spare parts and other materials necessary for the execution of the works. [262 F H] 3:1 The High Court of Karnataka was not right in its conclusion on the taxability of the turnover of the spare parts and materials supplied in execution of appellant 's job works. [266 D] 3:2 It is clear from clause 3 that it was the expenditure to be incurred for providing the materials for the jobs to be done were subject to the approval and sanction of the Government. The expressions "All items provisioned by the contractor will be the property of the owner and will be issued on contract loan. " are significant and indicative of the real intention of the parties. "The expression "contract loan" is not an expression of article It has no generally accepted meaning in dictionary, legal or otherwise, as such. There is no meaning of this expression provided in the contract between the parties or in the correspondence between the parties in connection with the execution of the works. But these expressions indicate that the `provisions ' which would be required for carrying out the contracts, which could not be anticipated before the beginning or in execution of the contracts will be the property of the owner i.e. that though gathered and procured or manufactured by the contractor, the contractor will have no property in the said goods or spares or materials and would not be able to either dispose of or deal with those but these will be treated for the purpose of this contract to be the property of the owner and, then the contract stipulated that on fictional basis these will be lent out to the contractor for being used in the execution of the jobs entrusted to the contractor. [263 G H; 264 A] 3:4 The idea was that the moment these spares and materials were required for the jobs entrusted to the appellant and there was delay in supplying these spare parts and materials, the contractor would be free to procure or obtain these spares 251 and materials either by manufacturing or by purchase from the market local or foreign, these goods to be identified and would be treated by the operation of the contract to be the goods of the owner of the planes. It is true that in order to be given out on loan by the 'owner ' to the contractor, the owner must have property in the spares and materials in question. But the 'owner ' i.e. the Government in the context of 1951 agreement, and it is indisputable that the transactions in this case were done on the basis of the agreement of 1951, became the owner of the property the moment the goods were identified and there was delay or inability on the part of the government in supplying spares and materials. [264 C F] In the instant case, the property in the materials which are used in the execution of the jobs entrusted to the contractor became the property of the Government before it was used. Further there was no possibility of any other materials to be used for the contract. [265 H; 266 A] Commissioner of Commercial Taxes, Mysore vs Hindustan Aeronautics Ltd, ; ; Ram Singh & Sons Engineering Works v Commissioner of Sales Tax, U.P. 43 Sales Tax Cases 195; followed. State of Gujarat v Variety Buildings, 38 Sales Tax Cases 176 distinguished.

Criminal Miscellaneous Petition No. 260 Of 1988. Under Section 15(1)(a) and (b) of the Contempt of Courts Act,1971 read with its explanation (1) and Rule (3)(a), (b) and (c) of Contempt of Supreme Court Rules, 1965. Randhir Jain for the Petitioner. B. Datta, Additional Solicitor General, Dr. Y.S. Chitale, A.K. Ganguli, N. Nettar, G.S. Narayan, Gopal Subramanian, Mukul Mudgal, P.H. Parekh, Sanjay Bharthari and R K. Joshi for the Respondents. The following Judgments of the Court were delivered: SABYASACHI MUKHARJI, J. By an order dated 15th March, 1988 we declined in this matter to initiate contempt proceedings under section 15(1) (a) and (b) of the (hereinafter called 'the Act ') read with rule 3(a), (b) and (c) of the Supreme Court Contempt of Court Rules, 1975. We also on that date disposed of the application for intervention filed by Shri R.N. Trivedi. We stated that we will indicate our reasons by a separate judgment. We do so herein Shri P. Shiv Shankar who at the relevant time was the Hon 'ble Minister for Law, Justice and Company Affairs delivered a speech before a meeting of the Bar Council of Hyderabad on 28th November, 1987. Shri P.N. Duda, who is an advocate practising in the Supreme Court, has drawn our attention to that speech. According to him, by that speech respondent No. 1, Shri P. Shiv Shankar has made statements against the Supreme Court which are derogatory to the dignity of this Court, attributing this Court with partiality towards economically affluent sections of the people and has used language which is extremely intemperate, undignified, and unbecoming of a person of his stature and position It was stated that Shri P. Shiv Shankar formerly held the office of a Judge of the High Court before he resigned and took to politics. 560 We have read the entire speech. It is not necessary to set out the A entire speech. The relevant portions of the said speech for the present purpose are as follows: "(a) The Supreme Court composed of the element from the elite class had their unconcealed sympathy for the haves i.e. the Zamindars. As a result, they interpreted the word 'compensation ' in Article 31 contrary to the spirit and the intendment of the Constitution and ruled the compensation must represent the price which a willing seller is prepared to accept from a willing buyer The entire programme of Zamindari abolition suffered a setback. The Constitution had to be amended by the 1st, 14th and 17th Amendments to remove this oligarchic approach of the Supreme Court with little or no help. Ultimately, this rigid reactionary and traditional outlook of property, led to the abolition of property as a fundamental right." He inter alia further observed: "(b) Holmes Alexander in his column entitled '9 Men of Terror Squad ' made a frontal attack on the functions of the U.S. Supreme Court. It makes an interesting reading: 'Now can you tell what that black robed elite are going to do next. Spring more criminals, abolish more protections. Throw down more ultras. Rewrite more laws. Chew more clauses out of the Constitution. May be, as a former Vice President once said, the American people are too dumb to understand, but I would bet that the outcropping of evidence at the top in testimony before the US Senate says something about the swelling concern among the people themselves. ' Should we not ask how true Holmes Alexander was in the Indian context. " The Minister further stated: "(c) Twenty years of valuable time was lost in this confrontation presented by the Judiciary in introducing and implementing basic agrarian reforms for removal of poverty 561 what is the ultimate result. Meanwhile even the political will seems to have given way and the resultant effect is the improper and ineffective implementation of the land reform laws by the Executive and the Judiciary supplimenting and complementing each other. " It was further stated by him: "(d) The Maharajas and the Rajas were anachronistic in independent India. They had to be removed and yet the conservative element in the ruling party gave them privy purses. When the privy purses were abolished, the Supreme Court, contrary to the whole national upsurge, held in favour of the Maharajas". "(e) Madhadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic cord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper 's case. Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court. " Shri P.N. Duda brought the newspaper version of the said speech to our notice. He further stated that the said speech contains slander which was cast on this Court, both in respect of the Judges and its working. It was alleged that Shri P. Shiv Shankar has done this to malign this Court. Shri Duda further stated that he read the speech in the News Times and he had approached the learned Attorney General of India and the learned Solicitor General of India to give their consent for initiating contempt proceedings. In those circumstances, the petitioner claimed that he also made the Editor and Publisher of the newspaper News Times as one of the respondents. The learned Attorney General and the learned Solicitor General have declined to deal with this prayer of the petitioner for the reasons stated in the letter which is an annexure to this petition. We shall refer to that part of the letter later. In those circumstances an application for initiation of contempt entitled "Information under Section 15(1)(a) and (b) of the Act read with Explanation (19 and Rule 3(a), (b) and (c) of Contempt of Supreme Court Rules, 1975" in the matter of said Shri 562 P.N. Duda was made wherein Shri P. Shiv Shankar, the learned A Attorney General, the learned Solicitor General and the Editor of News Times were made parties. The application having been moved before this Court on 10th February, 1988 we directed issue of notice returnable on 15th March, 1988 to the respondents, namely, Shri P. Shiv Shankar, Shri K. Parasaran, Shri Milon Banerji and Shri Ramji Rao, Editor, News Times confined only to the question to consider whether action, if any, need be taken on the said petition of the petitioner. We requested the First Additional Solicitor General, Shri B. Datta to appear as Amicus Curiae to assist the Court. On 11th February, 1988 Shri Duda mentioned the matter and this Court clarified that the respondents need not appear in the first instance in person. In the meantime, pursuant to the notice Shri P. Shiv Shankar has filed an affidavit on 8th March, 1988 in which he has stated that he had delivered a speech on the Silver Jubilee Celebration of the Bar Council of Andhra Pradesh at Hyderabad where the audience consisted of Judges and lawyers. On that occasion he had made a speech on the subject of accountability of the Legislature, the Executive and the Judiciary. He further stated that during the speech, he made comments on the accountability of the three organs and theoretical implications thereof. The Minister has further reiterated with utmost emphasis at his command that he intended no disrespect to any of the institutions or its functionaries much less this Hon 'ble Court. He further stated that he has high regard for this Hon 'ble Court. He further stated that the contempt petition is not maintainable in law without the consent of the Attorney General or the Solicitor General and it was liable to be dismissed. In the Meantime an application has been filed by Shri R.N. Trivedi who is an advocate of 25 years ' standing at the Bar in which he has claimed the right to be impleaded as a party. He has stated in the petition that the learned Attorney General and the Solicitor General should not have been made parties to the contempt petition and the alleged non exercise of jurisdiction by the Attorney General and the Solicitor General did not constitute contempt within the meaning of section 2(c) of the Act. The remedy, if any, in respect of the alleged non exercise of jurisdiction and power would lie somewhere else, according to Shri Trivedi. Shri B. Datta at our request appeared as Amicus Curiae and made his submissions. We express our gratitude to him. Before deciding the question whether this application was maintainable without the consent of the Attorney General or the Solicitor General as contended by Dr. Chitale on behalf of Shri Shiv Shanker and the question whether the Attorney General and the Solicitor 563 General could be made parties to the contempt application and whether their action or inaction was justiciable at all in any proceeding and if so in what proceedings, it is necessary to decide the basic question whether the speech made by Shri P. Shiv Shankar and published throughout the length and breadth of the country amounted to contempt of this Court, or in other words, whether the speech has the effect of bringing this Court into disrepute. "Justice is not a cloistered virtue. she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men." said Lord Atkin in Ambard vs Attorney General for Trinidad and Tobago, at 335. Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. This the Judges must do in the light given to them to determine what is right. And again as has been said in the famous speech of Abraham Lincoln in 1865 "With malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right. " Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented. The Contempt of Court proceedings arise out of that attempt. Judgment can be criticised; the motives of the Judges need not be attributed, it brings the administration of justice into deep disrepute. Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas criticisms about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how Courts should approach the powers vested in them as Judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer. In E.M. Sankaran Namboodiripad vs T. Narayanan Nambiar, [1971] I S.C.R. 697, this Court had to deal with this jurisdiction in respect of Mr. Namboodiripad who at the relevant time was the Chief Minister of Kerala. He had held a press conference in November, 1976 and made various critical remarks relating to the judiciary which inter alia was described by him as "an instrument of oppression" and the Judges as "dominated by class hatred, class prejudices", "instinctively" favouring the rich against the poor. He also stated that as part of 564 the ruling classes the judiciary "works against workers, peasants and A other sections of the working classes" and "the law and the system of judiciary essentially served the exploiting classes" (emphasis supplied) It was found that these remarks were reported in the newspapers and thereafter proceedings commenced in the High Court of Kerala. The appellant Shri Namboodiripad was called upon to show cause why he should not be committed for contempt. In his affidavit the appellant stated that the reports were "substantially correct", though incomplete in some respects. The appellant further claimed that his observations did no more than give expression to the Marxist Philosophy and what was contained in the programme of the Communist Party of India. By a majority judgment of the High Court the appellant was convicted for contempt of court and fined Rs. 1000 or simple imprisonment for one month. He moved this Court by an appeal. He contended that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution and that the intention of the appellant in making his remarks at the press conference should be examined in the light of his political views which he was at liberty to put before the people. He sought to justify the remarks as an exposition of his ideology which he claimed was based on the teachigs of Marx and Engels and on this ground claimed protection of the first clause of Article 19(1) of the Constitution. The conviction of the appellant was upheld by this Court. It was observed by Hidayatullah, C.J speaking for the Court that the law punishes not only acts which do not in fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result. Judged from the angle of courts and administration of justice, there was no doubt that the appellant was guilty of contempt of court. The Chief Justice observed whether the appellant misunderstood the teachings of Marx and Engels or deliberately distorted them was not to mush purpose. The likely effect of his words must be seen and they clearly had the effect of lowering the prestige of judges and courts in the eyes of the people. (emphasis supplied) That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but could not serve as a justification. This Court further held that the appellant had misguided himself about the true teachings of Marx, Engles and Lenin. According to the Chief Justice he had misunderstood the attack by them on State and the laws as involving an attack on the Judiciary. No doubt the courts, while upholding the laws and enforcing them, do give support to the State but they do not do so out of any impure motives. To charge the Judiciary as an instrument of oppression, the Judges as guided and dominated by class hatred, class 565 interests and class prejudices, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the Judiciary. It A was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with and distrust of all judicial decisions. According to the Chief Justice it weakened the authority of law and law courts (emphasis supplied). It was further held that while the spirit underlying Article 19(1)(a), must have due play, the Court could not overlook the provisions of the second clause of that Article. Its provisions are to be read with Articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves. Although Article 19(1)(a) guaranteed complete freedom of speech and expression, it also made an exception in respect of contempt of court. While the right is essential to a free society, the Constitution had itself imposed restrictions in relation to contempt of court and it could not therefore be said that the right abolished the law of contempt or that attack upon judges and courts would be condoned. We are not concerned here whether the appellant in that case properly understood the communist manifesto or the views of the Marx, Engles and Lenin. While respectfully accepting the ratio and the observations of the learned Chief Justice made in that decision we must recognise that times and clime have changed in the last two decades. There have been tremendous erosions of many values. In this connection it is interesting to note that little over sixty years ago, on 1st March, 1928, Justice Holmes wrote to Prof. Harold Laski " . .You amaze me by saying, if I understand you, that criticism of an opinion or judgment after it has been rendered, may make a man liable for contempt. I thought that notion was left for some of our middle western states. I must try to get the book and the decision . " (Holmes Laski Letters Vol. I In the instant case we have examined the entire speech. In the speech Shri P. Shiv Shankar has examined the class composition of the Supreme Court. His view was that the class composition of any instrument indicates its pre disposition, its prejudices. This is inevitable. Justice Holmes in his dissenting opinion in Joseph Lochner vs People of the State of New York, 49 Lawyers ' Edition 195 198 U.S. 1904 had observed "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. " That intuition more subtle than major premise is the pride and the prejudice of a human instrument of a Judge through which objectively the Judge seeks to administer justice according to law. So, therefore, in a study of accountability if class 566 composition of the people manning the institution is analysed we forewarn ourselves of certain inclination it cannot be said that an expression or view or propagation of that view hampers the dignity of the Courts or impairs the administration of justice. The question of contempt of court by newspaper article criticising the Judges of the Court came up for consideration in the case of Re: Shri section Mulgaokar; , In order to appreciate the controversy in this case it has to be stated that the issue dated 13th December, 1977, of the Indian Express published a news item that the High Courts had reacted very strongly to the suggestion of introducing a code of judicial ethics and propriety and that "so adverse has been the criticism that the Supreme Court Judges, some of whom had prepared the draft code, have disowned it". In its issue dated December 21, 1977 an article entitled "behaving like a Judge" was published which inter alia stated that the Supreme Court of India was "packed" by Mrs. Indira Gandhi "with pliant and submissive judges except for a few". It was further stated that the suggestion that a code of ethics should be formulated by Judges themselves was "so utterly inimical to the independence of the judiciary, violative of the Constitutional safeguards in that respect and offensive to the self respect of the Judges as to make one wonder how it was conceived in the first place". A notice had been issued to the Editor in Chief of the Newspaper to showcause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items It was observed by Chief Justice Beg in that decision that national interest required that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. This should be apart of national ethics. The comments about Judges of the Supreme Court suggesting that they lack moral courage to the extent of having "disowned" what they had done or in other words, to the extent of uttering what was untrue, at least verge on contempt. None could say that such suggestions would not make Judges of this Court look ridiculous or even unworthy, in the estimation of the public, of the very high office they hold if they could so easily "disown" what they had done after having really done it. It was reiterated that the judiciary can not be immune from criticism. But, when that criticism was based on obvious distortion or gross mis statement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it could not be ignored. A decision on the 567 question whether the discretion to take action for Contempt of Court should be exercised must depend on the totality of facts and circumstances of the case. The Chief Justice agreed with the other two learned Judges in that decision that in those facts the proceedings should be dropped. Krishna Iyer, J. in his judgment observed that the Court should act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the Judges, where the attack was calculated to obstruct or destroy the judicial process. The Court must harmonise the constitutional values of free criticism, and the need for a fearless curial process and its presiding functionary, the judge. To criticise a judge fairly albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it. The Court must avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community 's confidence in that great process. The former is not contempt but latter is, although overlapping spaces abound. The fourth functional canon is that the Fourth Estate should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest court. The fifth normative guideline for the Judges to observe is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, and the sixth consideration is that if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its sources and stream. It is well to remember the observations of Justice Brennan of U.S. Supreme Court (though made in the context of law of libel) in New York Times Company vs L.B. Sullivan, ; that it is a prized privilege to speak one 's mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion. Lord Denning in Regina vs Commissioner of Police of the Metropolis, Ex parte Blackburn, observed as follows. "Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent 568 it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public con troversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done." The aforesaid observations were made in respect of an article written by Mr. Quintin Hogg in "Punch" (as later Lord Hailsham then was) more or less in a critical language as the Hon 'ble Minister 's speech in the instant case. Gajendragadkar, C.J. in Special Reference No. 1 of 1964; , observed as follows: "We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. " It has been well said that if judges decay, the contempt power 569 will not save them and so the other side of the coin is that Judges, like Caesar 's wife, must be above suspicion, per Krishna Iyer, J. in Shri Baradakanta Mishra vs The Registrar of Orissa High Court and another; , It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remedyless evils which courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the Judges and lawyers must make about themselves. We must turn the search light inward. At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in Rama Dayal Markarha vs State of Madhya Pradesh, ; where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the Judges had a pre disposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused, or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and pre judging of the issues which would bring administration of justice into ridicule. Criticism of the Judges would attract greater attention than others and such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into a ridicule or hampers administration of justice. After all it cannot be denied that pre disposition or subtle prejudice or unconscious prejudice or what in Indian language is called "Sanskar" are inarticulate major premises in decision making process. That element in the decision making process cannot be denied, it should be taken note of. It has to be borne in mind, as has been said by Benjamin N. Cardozo in "The Nature of the Judicial Process" at pages 16 17 that the Judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision. Courts are to 570 "search for light among the social elements of every kind that are the A living force behind the facts they deal with". The power thus put in their hands is great, and subject, like all power, to abuse; but we are not to flinch from granting it. In the long run "there is not guaranty of justice," said Ehrlich, "except the personality of the judge. Justice Benjamin N. Cardozo further says at page 112 of the said book that judicial process comes then to this, and little more logic, history, custom and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Judges try to see things as objectively as they please. Nonetheless, we can never see them with any eyes except our own. Therefore, the perception of a judge is important and relevant. Judicial process is not only a path of discovery but a path of creation (Cardozo "the Nature of the Judicial Process"). President Roosevelt in his message to the Congress of the United States on December 8, 1908 stated thus: "The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all lawmaking. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions." Justice Benjamin N. Cardozo says that he remembers when the statement made aroused a storm of criticism. (Cardozo The Nature of the Judicial Process pages 171 173). It betrayed ignorance, he said, of the nature of the judicial process. Justice Benjamin N. Cardozo tells us that the business of the judge, was to discover objective truth. His own little individuality, his tiny stock of scattered and unco ordinated philosophies, these, with all his weaknesses and unconscious prejudices, were to be laid aside and forgotten. According to Cardozo the truth is, however, that all these inward questionings are born of the hope and desire to transcend the limitations which hedge our human nature. According to Cardozo, Roosevelt, who knew men, 571 had no illusions on this score. He was not positing an ideal. He was not fixing a goal. He was measuring the powers and the endurance of those A by whom the race was to be run. It is well to remember the words of Justice Cardozo where he says as follows: "I have no quarrel, therefore, with the doctrine that the judges ought to be in sympathy with the spirit of their times. Alas! assent to such a generality does not carry us far upon the road to truth. In every court there are likely to be as many estimates of the 'Zeitgeist ' as there are judges on its bench. Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no trace, not even the faintest, among the judges whom I have known. But every day there is borne in on me a new conviction of the inescap able relation between the truth without us and the truth within. The spirit of the age, as it is revealed to each of us, is too often only the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us a place. No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties. "our beliefs and opinions," says James Harvey Robinson , "like our standards of conduct come to us insensibly as products of our companionship with our fellow men, not as results of our personal experience and the inferences we individually make from our own observations. We are constantly misled by our extraordinary faculty of 'rationalizing ' that is, of devising plausible arguments for accepting what is imposed upon us by the traditions of the group to which we belong. We are adjectly credulous by nature, and instinctively accept the verdicts of the group. We are suggestible not merely when under the spell of an excited mob or a fervent revival, but we are ever and always listening to the still small voice of the herd, and are ever ready to defend and justify its instructions and warnings, and accept them as the mature results of our own reasoning. " This was written, not of judges specially, but of men and women of all classes. The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions. It will help to broaden the group to which his subconscious loyalties are due. Never will these loyalties be utterly extinguished 572 while human nature is what it is. We may wonder sometimes how from the play of all these forces of individualism, there can come anything coherent, anything but chaos and the void. Those are the moments in which we exaggerate the elements of difference. In the end there emerges some thing which has a composite shape and truth and order. It has been said that "History, like mathematics, is obliged to assume that eccentricities more or less balance each other, so that something remains constant at last" (Henry Adams, "The Degradation of the Democratic Dogma," pages 291 and 292). The like is true of the work of courts. The eccentricities of judges balance one another. One judge looks at problems from the point of view of history, another from that of philosophy, another from that of social utility, one is a formalist, another a latitudinarian, one is timorous of change, another dissatisfied with the present; out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements. The same thing is true of the work of juries. I do not mean to suggest that the product in either case does not betray the flaws inherent in its origin. The flaws are there as in every human institution. Because they are not only there but visible, we have faith that they will be corrected. There is no assurance that the rule of the majority will be the expression of perfect reason when embodied in constitution or in statute. We ought not to expect more of it when embodied in the judgments of the courts. The tide rises and falls, but the sands of error crumble. The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built. The bad will be rejected and cast off in the laboratory of the years. Little by little the old doctrine is undermined. Often the encroachments are so gradual that their significance is at first obscured. Finally we discover that the contour of the landscape has been changed, that the old maps must be cast aside, and the ground charted anew. The process, with all its silent yet inevitable power, has been described by Mr. Henderson with singular felicity: "When an adherent of a systematic faith is brought continuously in touch with 573 influences and exposed to desires inconsistent with that faith, a process of unconscious cerebration may take place, by which a growing store of hostile mental inclinations may accumulate, strongly motivating action and decision, but seldom emerging clearly into consciousness. In the meantime the formulas of the old faith are retained and repeated by force of habit, until one day the realization comes that conduct and sympathies and fundamental desires have become so inconsistent with the logical framework that it must be discarded. Then begins the task of building up and rationalizing a new faith." (Cardozo The Nature of the Judicial Process pages 174 179) If any one draws attention to this danger and aspect and measures an institution by the class content he does not minimise its dignity or denigrate its authority. Looked in that perspective though at places little intemperate, the statement of the Minister in this case cannot be said to amount to interference with the administration of justice and as to amount to contempt of court. The Minister 's statement does not interfere with the administration of justice. Administration of justice in this country stands on surer foundation. J.A.G. Griffith in "The Politics of the Judiciary", Part I has two interesting passages on the judiciary which are worth quoting: "There is one matter which I ought to mention. All the judges, without exception, are members of the Athenaeum, and I presume you will wish to be a member. If so, may I have the pleasure of proposing you? There is a meeting of the Committee early next week." "The most politically influential of the judges, however, has been the Master of the Rolls, Lord Denning . With his own modest roots he dismisses the attacks on a classbased judiciary: The youngsters believe that we come from a narrow background it 's all nonsense they get it from that man Griffith. " Griffith in his book "The Politics of the Judiciary" at page 234 has tried to incite the concept of the class interest of the judges. Judges he says are concerned to preserve and protect the existing order. This does not mean that no judges are capable of moving with the times, of adjusting to changed circumstances. But, according to him, their func 574 tion in our society is to do so belatedly. He further says thus: "Law and order, the established distribution of power both public and private, the conventional and agreed view amongst those who exercise political and economic power, the fears and prejudices of the middle and upper classes, these are the forces which the judges are expected to up hold and do uphold. " No contempt proceedings were taken in England in respect of these and one would like to think rightly. Faith in the administration of justice is not shaken by such criticism. Reference may also be made to the decision of this Court in Conscientious Group vs Mohammed Yunus and others, In that case there was publication in the Indian Express which carried the news that Mr. Mohammed Yunus, Chairman, Trade Fair Authority of India said that the Supreme Court Judge who held that the singing of the National Anthem was not compulsory had no right to be called either an Indian or a Judge. The Conscientious Group approached this Court for contempt alleging that the conduct of Mr. Mohammed Yunus in making certain adverse comments about the Judges who delivered the judgment of this Court in Civil Appeal No. 860 of 1986 National Anthem case ; constituted criminal contempt and it should be so dealt with. Notice on this petition was issued. When the matter subsequently came up before a Bench of three Judges consisting of Bhagwati, C.J., Oza and K.N. Singh, JJ., the contemnor filed a reply stating that the petition was not maintainable inasmuch as the petitioner had not obtained the consent in writing of the Attorney General as required under section 15 of the Act. It appears that the petitioner was directed by the Division Bench to move the Attorney General for his consent and the petition was adjourned. The Attorney General on being moved by the petitioner for the grant of consent replied to the petitioner stating that since he was himself a party in his capacity as Attorney General in the National Anthem case, it was not appropriate for him to deal with the petitioner 's application. When the case later on came up before the same three Judges Bench on December 12, 1986, the learned Judges directed the withdrawal of the petition with liberty to the petitioner to refile the application after obtaining consent of the Attorney General as soon as the National Anthem case was over. It was further observed by this Court that everyone is entitled to criticise the judgment of the court but no one should attack the Judges who delivered the judgment 575 as that denigrates the judicial institution and in the long term impairs the democratic process. Subsequently the petitioner in that case filed Criminal Miscellaneous Petition No. 5244 of 1986 praying for recalling the aforesaid order on the ground that at the time when he applied to the court for withdrawal of the petition he was not aware that under Rule 3(c) of the Rules framed by this Court, the contempt petition could be maintained with the consent of the Solicitor General, if the Attorney General, for any reason, was not in a position to give consent to the filing of the petition. He was so allowed. Thereafter the petitioner approached the Solicitor General. But the Solicitor General declined to give the consent in public interest. He gave certain reasons in support of his conclusion. The Court in the aforesaid decision by scrutinising reasons was of the opinion that the reasons stated by the Solicitor General refusing to grant consent could not be said to be irrelevant and the petition was dismissed. In dismissing this application this Court observed at page 93 of the report "No doubt, by the last of the sentence of the said order, the Bench has also observed that 'the petitioner will not be without remedy, if the Solicitor General refuses his consent on any irrelevant ground ' but this only means that such a refusal can be called in question before this Court by the petitioner by appropriate process". In other words, the effect of the decision is that the reasons given by the Attorney General or the Solicitor General in giving or not giving his consent were justiciable. As we have mentioned before the speech of the Minister has to be read in its entirety. In the speech as we have set out hereinbefore it appears that Shri P. Shiv Shankar was making a study of the attitude of this Court. In the portion set out hereinbefore, it was stated that the Supreme Court was composed of the element from the elite class. Whether it is factually correct or not is another matter. In our public life, where the champions of the down trodden and the politicians are mostly from the so called elite class, if the class composition is analysed, it may reveal interesting factors as to whether elite class is dominant as the champions of the oppressed or of social legislations and the same is the position in the judiciary. But the Minister went on to say that because the Judges had their 'unconcealed sympathy for the haves ' interpreted the expression 'compensation ' in the manner they did. The expression 'unconcealed ' is unfortunate. But this is also an expression of opinion about an institutional pattern. Then the Minister went on to say that because of this the word 'compensation ' in Article 31 was interpreted contrary to the spirit and the intendment of the 576 Constitution. The Constitution therefore had to be amended by the 1st, 14th and 17th Amendments to remove this 'oligarchic ' approach of the Supreme Court with little or no help. The inter action of the decisions of this Court and the Constitutional amendments have been viewed by the Minister in his speech, but that is nothing new. This by itself does not affect the administration of justice. On the other hand, such a study perhaps is important for the understanding of the evolution of the constitutional development. The next portion to which reference may be made where the speaker has referred to Holmes Alexander in his column entitled '9 Men of Terror Squad ' making a frontal attack on the functions of the U.S. Supreme Court. There was a comparison after making the quotation as we have set out hereinbefore: "one should ask the question how true Holmes Alexander was in the Indian context. " This is also a poser on the performance of the Supreme Court. According to the speaker twenty years of valuable time was lost in this confrontation presented by the judiciary in introducing and implementing basic agrarian reforms for removal of poverty what is the ultimate result. The nation did not exhibit the political will to implement the land reform laws. The removal of the Maharajas and Rajas and privy purses were criticised because of the view taken by this Court which according to the speaker was contrary to the whole national upsurge. This is a study in the historical perspective. Then he made a reference to the Keshavananda Bharati 's and Golaknath 's cases and observed that a representative of the elitist culture of this country, ably supported by industrialists and beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper 's case. This is also a criticism of the judgment in R.C. Cooper 's case. Whether that is right or wrong is another matter, but criticism of judgments is permissible in a free society. There is, however, one paragraph which appears to us to be rather intemperate and that is to the following effect: "Anti social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court". This, of course, if true, is a criticism of the laws. The Supreme Court as it is bound to do has implemented the laws and in implementing the laws, it is a tribute to the Supreme Court that it has not discriminated between persons and persons. Criminals are entitled to be judged in accordance with law. If anti social elements and criminals have benefited by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The Courts are not deterred by such criticisms. 577 Bearing in mind the trend in the law of contempt as noticed before, as well as some of the decisions noticed by Krishna Iyer, J. m section Mulgaokar 's case (supra) the speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair administration of justice. In some portions of the speech the language used could have been avoided by the Minister having the background of being a former Judge of the High Court. The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly. With these observations, it must be held that there was no imminent danger of interference with the administration of justice, nor of bringing a institution into disrepute. In that view it must be held that the Minister was not guilty of contempt of this Court. The view we have taken on this aspect of the matter would have been sufficient to dispose of this petition. But another question of law of some importance has arisen in this matter. Under the Act in case of criminal contempt other than a contempt referred to in section 14 which is not the facts of this case, namely, a contempt in the fact of this Court or a High Court, this Court or the High Court may take action either on its own motion or on a motion made by the Advocate General which in relation to this Court means the Attorney General or the Solicitor General or any other person with the consent of the Attorney General in terms of section 15 of the Act. Therefore, cognizance for criminal contempt could be taken by the Court by three methods namely, on its own motion, or on the motion of the Attorney General or the Solicitor General or on motion by any other person with the consent of the Attorney General or the Solicitor General. Therefore, the only course open to a citizen for initiating proceedings for contempt where the Court does not take cognizance on its motion or where the Attorney General or the Solicitor General does not take action is to move for consent in writing of the Attorney General or the Solicitor General. The question is, does it cast a duty upon the Attorney General or the Solicitor General to consider application for grant of such consent and whether the granting or non granting of such consent is justiciable by the Court and if so whether the question of non granting can be brought up in a rolled application moved by a person to bring it to the notice of the Court to take action suo motu and at the same time to consider whether in the same proceeding the action of the Attorney General or the Solicitor General in granting or not granting consent can be challenged or it must be always by an independent proceeding. The consent certainly is linked up with contempt proceedings. Indeed Mohammed Yunus ' case (supra) was 578 dismissed because no consent was obtained. In the instant case the Minister has taken the plea that consideration of this case cannot be taken because there is no consent of the law officers. Does it or does it not "tend to interfere with due course of judicial proceedings" in terms of clause (ii) of section 3(c) of the Act? If so is it justiciable in these proceedings? Attorney General and Solicitor General of India in respect of this Court occupy positions of great importance and relevance. Attorney General, though unlike England is not a member of the Cabinet yet is a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court. (See article 76 of the Constitution). Yet the Act vests him with certain discretions. All statutory discretions are justiciable in a society governed by the rule of law. one must remember the remarks of Thomas Fuller "Be you ever so high, the law is above you" and this Court is the finder and interpreter of that law in cases of this nature with the assistance of Attorney General and in his absence or inability the Solicitor General. It is well to remember what Burke said in the House of Commons in 1772 in connection with the motion for select committee for enquiry into the affairs of the East India Company and Clive. He said that when discretionary power is lodged in the hands of any man or class of men, experience proves that it will always be abused. Where no laws exist men must be arbitrary and very necessary acts of government will often be, in such cases, represented by the interested and malevolent as instances of wanton oppression (Clive of India Nirad C. Chaudhry, page 381). Times have changed here, the discretion is vested on a very high dignitary and a friend of the Court, yet it is subject to scrutiny. On this aspect it is necessary to refer to the letter dated 3rd December, 1987, which Shri P.N. Duda, petitioner herein wrote to the Attorney General wherein he requested for grant of consent for initiating contempt proceedings against Shri P. Shiv Shankar and others namely, the Editor, Hindustan Times and the Printer and Publisher, Hindustan Times. After setting out the contempt as alleged by him in that letter, he stated, inter alia, as follows: "I am more aware than any that you may feel embarrassed in giving consent for prosecution of Shri Shiv Shankar, who happens to be the Minister who effectively hires and fires law officers, and for all purposes during whose pleasure they hold their offices. Since emergency period we have seen the modalities of this hiring and firing which causes 579 apprehensions in my mind about the possible outcome of this request. I, however, thought it fit to make this request, reminding you of your duties as the ex officio leader of the bar to give your consent for prosecution of the persons named. The other two are being named because the one is the Editor and the other the Printer and Publisher of the paper, viz. the Hindustan Times, which published the report. I will expect you to take a decision in this matter within a week of the receipt of this request. If I do not hear from you in either way, I will presume that you have declined the consent. In that event I will consider myself free to move the court for taking action on its own motion under section 15(1)(a) of the seeking my participation as an amicus curiae. " A copy of the said letter was sent to the Solicitor General of India with request to treat it as a request made to him independently also under section 15(1)(b) of the Act read with Rule 3(3) of the Supreme Court Contempt of Court Rules, 1975. He wrote another letter on 8th December, 1987 in which he reminded the Attorney General of certain stand taken by him in respect of Shri Charanjit Lal Sahu. The relevant portion of the said letter reads as follows: "I may invite your attention to the remarkable stand you took when a PIL matter initiated by Shri Charanjit Lal Sahu came before a bench of the Supreme Court, and how concerned you felt in seeing Shri Sahu being prosecuted for having made some statements about the Court, which were more foolish than intemperate, for maintaining the dignity of the court. No one would have taken Mr Shau 's statement seriously, nor was it addressed to a large audience. Shri Shiv Shankar 's diatribe against the Supreme Court is more intemperate, is addressed to a very nation wide large audience, and the maker of the statement is a man of status, whom no one will ignore. I think you will keep this aspect in mind in considering my request. " A copy of the said letter was also forwarded to the Solicitor General of India. In reply the Attorney General wrote a letter on 14th December, 1987 in which he stated, inter alia, as follows: 580 "You suggest that we cannot discharge our duties impartially. In other words, you have sought to undermine the credibility of any decision we may take. These two deeply hurtful allegations are calculated to ensure that in which ever way we exercise our function, justice will not be seen to be done. Therefore, we feel that in the circumstances no useful purpose will be served in exercising our function at all. This letter has the approval of the Solicitor General to whom a copy of your letter was sent. " Shri Duda wrote another letter on 19th December, 1987 both to the Attorney General and the Solicitor General, in which he stated, inter alia, as follows: "Needless to point out that your letter is suggestive of your refusal to discharge your duty to accede or not to accede to my request of granting sanction and legally I am entitled to a mandamus against you from an appropriate court seeking direction against you to decide the matter, one way or the other. I have thought it fit to make an alternative request to you to relieve me of the unpleasant duty of seeking relief in any other way. " After setting out the facts in the petition, the petitioner inter alia, stated that he had approached the learned Attorney General and the Solicitor General to look into these aspects of the matter and accord sanction. The conduct of the said respondent No. 2 and respondent No. 3, according to the petitioner, amounted to refusal to exercise jurisdiction vested in them by law and, therefore, they were impleaded as parties in the present proceedings (as necessary and/or proper parties) in order that they may get an opportunity to justifying the stand they have taken in the matter flowing from their refusal to exercise jurisdiction. Upon this notice was issued by this Court to all the respondents in the manner indicated above. Shri Gopal Subramaniam has appeared before us and filed a statement signed by the learned Attorney General and also made his oral submissions. Shri Trivedi, intervener has also made his submissions. The main plank of their submissions is that the actions of the Attorney General and the Solicitor General to act were motivated because of the allegation of bias in the aforesaid letter. Reliance was 581 placed in the case of Vassiliades vs Vassiliades and another, A.I.R. 1945 P.C. 38 where the Judicial Committee reiterated that it was highly desirable that all proceedings should be dealt with by persons who are above any suspicion, however, unreasonable, of being biased. It was reiterated that in any case, there was no question of the petitioner being without remedy because the Court can always take action suo motu. The question, therefore, is whether there was a duty cast upon the Attorney General or the Solicitor General to consider the question of granting consent in terms of clause (b) of section 15(1) of the Act in an appropriate case and if in fact such consent was not granted that question could be considered by the Court. It is not a question of making the Attorney General or the Solicitor General a party to a contempt proceeding in the sense that they are liable for contempt, but if the hearing of the contempt proceedings can be better proceeded by obtaining the consent of the Attorney General or the Solicitor General and the question of justifiability of giving the consent is interlinked on the analogy of Order II Rule I of the Code of Civil Procedure which has application to a civil proceeding and not to a criminal proceeding, it is permissible to go into this question. Indeed, in the case of Conscientious Group (supra) precisely this was done, where an application for contempt was filed and which was revived pursuant to the previous order and the Court while doing so had reserved the right to consider on the previous occasion the question if the Solicitor General refuses to give consent improperly or on irrelevant ground the Court could consider that question. In the case of Conscientious Group, (supra) the Court went into the reasons given by the Solicitor General declining consent. This Court in that case held on examination that such consent was properly refused. This is a complete answer to the contention that in a contempt petition the grounds for either giving consent or not giving consent or for not considering the application for consent are justiciable and that question can not be gone into in that proceeding though it must be emphasised in that proceeding that the Solicitor General was not made a party to the proceeding. In my opinion it will be more appropriate for an officer of the Court whose action is being investigated to be made a party in the proceedings otherwise it would be violative of the rule of audi alteram partem. On behalf of the learned Solicitor General, Shri A.K. Ganguly has made elaborate submissions. It was submitted by Shri Ganguly that the procedure followed by the petitioner simultaneously seeking the consent of the Attorney General was not proper and the Solicitor General had been invoked and that was not proper and legal. It is not possible to accept this submission. It was contended that there was no doctrine of necessity applicable in this case because even if the 582 Attorney General or the Solicitor General does not give consent a party is not without a remedy and can bring this to the notice of the Court. Discretion vested in law officers of this Court to be used for a public purpose in a society governed by rule of law is justiciable. Indeed, it was gone into in the case of Conscientious Group (supra) and it will be more appropriate that it should be gone into upon notice to the law officer concerned. It is a case where appropriate ground for refusal to act can be looked into by the Court. It cannot be said as was argued by Shri Ganguly that the refusal to grant consent decides no right and it is not reviewable. Refusal to give consent closes one channel of initiation of contempt. As mentioned hereinbefore there are three different channels, namely, (1) the Court taking cognizance on its own motion; (2) on the motion by the Attorney General or the Solicitor General; and (3) by any other person with the consent in writing of the Attorney General or the Solicitor General. In this case apparently the Attorney General and the Solicitor General have not moved on their own. The petitioner could not move in accordance with law without the consent of Attorney General and the Solicitor General though he has a right to move and the third is the court taking notice suo motu. But irrespective of that there was right granted to the citizen of the country to move a motion with the consent. In this case whether consent was to be given or not was not considered for the reasons stated by the Attorney General. Those reasons are linked up with the Court taking up the matter on its own motion. these are inter linked. In that view of the matter these are justiciable and indeed it may be instructive to consider why this practice grew up of having the consent . This was explained in section K. Sarkar vs V. C. Misra, ; where Sarkaria, J. speaking for the Court observed at page 339 of the report that the whole object of prescribing these procedural modes of taking cognizance under section 15 of the Act was to safeguard the valuable time of the High Court or the Supreme Court being wasted by frivolous complaints of contempt of court. Frequent use of this suo motu power on the information furnished by an incompetent petition, may render these procedural safeguards provided in subsection (2), otiose. In such cases, the High Court may be well advised to avail of the advice and assistance of the Advocate General before initiating proceedings. In this connection the Court referred to the observations of Sanyal Committee appointed to examine this question where it was observed: "In the case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion that would lighten the burden of the court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give 583 considerable assurance to the individual charged and the public at large. Indeed, some High Courts have already made rules for the association of the Advocate General in some categories of cases at least . " It was the practice that except where the Court feels inclined to take action suo motu parties were entitled to move only by the consent. If no justiciable reason was given in an appropriate case and such consent was refused can it be said that it would not be proper for the Court to investigate the same? The question of contempt of court came up for consideration in the case of C. K. Daphtary and others vs O. P. Gupta and others, In that case a petition under Article 129 of the Constitution was filed by Shri C.K. Daphtary and three other advocates bringing to the notice of this Court alleged contempt committed by the respondents. There this Court held that under Article 129 of the Constitution this Court had the power to punish for contempt of itself and under Article 143(2) it could investigate any such contempt. This Court reiterated that the Constitution made this Court the guardian of fundamental rights. This Court further held that under the existing law of contempt of court any publication which was calculated to interfere with the due course of justice or proper administration of law would amount to contempt of court. A scurrilous attack on a judge, in respect of a judgment or past conduct has in our country the inevitable effect of undermining the confidence of the public in the Judiciary; and if confidence in Judiciary goes administration of justice definitely suffers. In that case a pamphlet was alleged to have contained statements amounting to contempt of the Court. As the Attorney General did not move in the matter, the President of the Supreme Court Bar and the other petitioners chose to bring the matter to the notice of the Court. It was alleged that the said President and the other members of the Bar have no locus standi. This Court held that the Court could issue a notice suo motu. The President of the Supreme Court Bar and other petitioners were perfectly entitled to bring to the notice of the Court any contempt of the Court. The first respondent referred to Lord Shawcross Committee 's recommendation in U.K. that "proceedings should be instituted only if the Attorney General in his discretion considers them necessary. " This was only a recommendation made in the light of circumstances prevailing in England. But that is not the law in India, this Court reiterated. It has to be borne that decision was rendered on 19th March, 1971 and the present Act in India was passed on 24th December, 1971. Therefore that decision cannot be of any assistance. We have noticed Sanyal Committee 's recommendations in India as to why the Attorney General should be associated with it, and 584 thereafter in U.K. there was report of Phillimore Committee in 1974. In India the reason for having the consent of the Attorney General was examined and explained by Sanyal Committee Report as noticed before. Our attention was drawn by Shri Ganguly to a decision of the Allahabad High Court in G.N. Verma vs Hargovind Dayal and others, A.I.R. 1975 Allahabad 52 where the Division Bench reiterated that Rules which provide for the manner in which proceedings for Contempt of Court should be taken continue to apply even after the enactment of the . Therefore cognizance could be taken suo motu and information contained in the application by a private individual could be utilised. As we have mentioned hereinbefore indubitably cognizance could be taken suo motu by the Court but members of the public have also the right to move the Court. That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or the Solicitor General and if that consent is withheld without reasons or L) without consideration of that right granted to any other person under section 15 of the Act that could be investigated on an application made to the Court. It was contended that neither the Attorney General nor the Solicitor General were proper or necessary parties. Reliance was placed on B. K. Kar vs The Chief Justice and his Companion Judges of the Orissa High Court and others; , In that case under an order passed by the appellant, a Magistrate, one was put in possession of some property on October 14, 1955. In revision the order was set aside by the High Court on August 27, 1957 and the opposite party S applied on November 20, 1957 to the appellant for redelivery of possession. applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant. A telegram addressed to a pleader, not the counsel for G, was filed along with the application. The appellant refused to act on this application and telegram and on November 27, 1957, he allowed the application of S for restitution. On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued. The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings. The appellant appealed to this Court and impleaded the Chief Justice and Judges of the High Court as respondents. This Court held that the appellant was 585 not guilty of contempt of court. It further held that in a contempt matter the Chief Justice and Judges of the High Court should not be A made parties and the title of such a proceeding should be "In re . . the alleged contemnor". Mudholkar, J. speaking for the Court observed at page 321 of the report that the decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference. Since that was the real position, this Court observed that there was no warrant for the practice which was in vogue in India there, and which had been in vogue for over a century, of making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. The said observations were sought to be relied in aid of the proposition that where the decision of the Attorney General or the Solicitor General was involved, they were not necessary or proper parties. Reliance on this decision for this purpose is entirely misconceived. Where an appeal comes to this Court, which is a judicial decision, the Judges who rendered the decision are not necessary parties. There is no lis between a suitor and a judge in a judicial adjudication. But the position is entirely different where there is suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act. In respect of justiciability of that act of the official there is a lis and if that lis is inter linked with the proceeding for contempt, there is warrant for making him party in that proceeding though the prayers and the notice must be issued differently. As mentioned hereinbefore in the case of S.C. Sarkar vs V.C. Misra (supra) this Court had observed that it may well be advices to avail of the advised and assistance of the Advocate General before initiating proceedings. Shri Ganguly appearing for the Solicitor General sought to urge before us that advice and assistance could not be compelled by a suitor. This cannot be agreed to. The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General. If such right is not considered on relevant materials then that action is justiciable in an appropriate proceeding for contempt. Reference may be made to the case of Attorney General vs Times Newspapers Ltd., [ In that case a drug company began to make and sell in the United Kingdom a sedative which contained the drug thalidomide. Lord Morris observed in that case that the purpose and existence of courts of law is to preserve freedom 586 within the law for all well disposed members of the community and anything which hampers the administration of law should be prevented but it does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress which was a matter of public sympathy and concern. Dealing with this aspect Lord Cross of Chelsea has observed that 'contempt of court ' means an interference with the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. 'Justice ' he said is an ambiguous word. When we speak of the administration of justice we mean the administration of the law, but often the answer which the law gives to some problem is regarded by many people as unjust. Lord Cross further observed that there must be no prejudging of the issues in a case is one thing. To say that no one must in any circumstances exert any pressure on a party to litigation to induce him to act in relation to the litigation in a way in which he would otherwise not choose to act is another and a very different thing. Lord Cross at page 87 of the report observed as follows: "In conclusion I would say that I disagree with the views expressed by Lord Denning MR and Phillimore LJ as to the 'role ' of the Attorney General in cases of alleged contempt of court. If he takes them up he does not do so as a Minister of the Crown 'putting the authority of the Crown behind the complaint ' but as 'amicus curiae ' bringing to the notice of the court some matter of which he considers that the court shall be informed in the interests of the administration of justice. It is, I think, most desirable that in civil as well as in criminal cases anyone who thinks that a criminal contempt of court has been or is about to be committed should, if possible, place the facts before the Attorney General for him to consider whether or not those facts appear to disclose a contempt of court of sufficient gravity to warrant his bringing the matter to the notice of the court. Of course, in some cases it may be essential if an application is to be made at all for it to be made promptly and there may be no time for the person affected by the 'contempt ' to put the . facts before the attorney before moving himself. Again the fact that the attorney declines to take up the case will not prevent the complainant from seeking to persuade the court 587 that notwithstanding the refusal of the attorney to act the matter complained of does in fact constitute a contempt of which the court should take notice. Yet, again, of course, there may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken in respect of it. In such cases if the facts come to the knowledge of the attorney from some other source he will naturally himself bring the matter to the attention of the court. Lord Cross has noticed in his speech that if the Attorney General declines to take up the case, it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the Attorney General to act, the matter complained of does, in fact, constitute a contempt of which the Court should take notice. But that does not derogate the rights of the individual to move the Court. See the observations of Lord Reid. In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. etc. vs Union of India and others, [ ; , the observations of the aforesaid decision in Thalidomide case were relied upon. Reliance was also placed on the observations of the House of Lords in Gouriot and others vs H.M. Attorney General, [1978] Appeal Cases 435. There it held the initiation of litigation and the determination of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of that or any other Court. It is a question which the law has made, to reside exclusively in the Attorney General. The House of Lords was reversing the decision of the Court of Appeal in the celebrated case of Gouriet vs Union of Post office Workers, [19781 Appeal Cases 435 where the House of Lords could find no legal basis for the lower courts ' attempt to outflank the Attorney General 's refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiff 's claim for declaration and interim injunction even in the absence of fiat by the Attorney General. The statutory provisions were entirely different. It may be in the context that the Attorney General had to move in his discretion which is not justiciable. But in our opinion it is justiciable. English decisions are of persuasive value and we would prefer to rest out decision on the observations of Lord Denning in Gouriet vs Union of Post office Workers & Ors., at 752 to 763 though made in connection with the Attorney General 's discretion in 588 giving consent in instituting a suit for injunction by a member of the public. In U.K. the position of Attorney General as a member of the Cabinet is different. There the contempt of Court is regulated by different statutory provisions which were examined by a Committee known as Phillimore Committee Report. See also the observations of Sikri J. as the Chief Justice then was, in C.K. Daphtary & Ors. (supra) at page 109 of the report. Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao vs Murtza Mutjahdi, [1974] 1 Andhra Law Times 170. We are unable to accept the ratio stated in view of the terms of section 15 of the Act. Our attention was also drawn to the case of N. Venkataramanappa vs D.K. Naikar, A.I.R. 1978 Karnataka 57. It is also not possible to accept the position that under no circumstances the exercise of discretion by the Attorney General or Solicitor General cannot be enquired into. Having considered the peculiar facts and circumstances of this case and the allegation of bias which were made against the Attorney General and the Solicitor General, it appears that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court. In the aforesaid view of the matter, this petition fails and it is accordingly dismissed and the application of Shri Trivedi is accordingly disposed of. RANGANATHAN, J. I agree with the conclusion of my learned brother that no case has been made but for initiating contempt proceedings against respondent No. 1. The principles applicable to, and the case law on the subject have been discussed by him at length and I do not have much to add. The impugned comments were made by respondent No. 1 in the course of his key note address at a seminar on 'Accountability of the Legislature, Executive and Judiciary under the Constitution of India ' organised by a Bar Council. Though, in view of the position held by the speaker, the contents of the speech, and. in particular, some 'savoury ' passages therefrom have been highlighted in a section of the Press, the speech was made before an audience comprising essentially of lawyers, jurists and judges. The speech represented primarily an exercise by the speaker to evaluate the roles of the executive, legislature and judiciary in this country since its independence and to put forward the theory that, like the executive and 589 the legislature, the judiciary must also be accountable to the people. The petitioner contends that there are certain passages in the speech which seem to attribute a sub conscious partiality, bias or predeliction in judges in disposing of various matters before them and that these comments fall within the scope of the decision of this Court in the case of E.M. Sankaran Namboodiripad vs T. Narayanan Nambiar, ; Barrie & Lowe in their "Law of Contempt," (Second Edition, PP. 233, 240 1) and Arlidge and Eady in their "Law of Contempt" (Second Edition, PP. 162 3, 168), on a review of the judicial decisions on the topic, seem to suggest that even allegation of partiality and bias on the part of judges may not amount to contempt so long as it is free from the taint of 'scurrilous abuse ' and can be considered to be 'fair comment '. The observations made by the Lord Justice Phillimore Committee on Contempt of Court in 1974 on this type of contempt (Paras 160 & 161) also make interesting reading. I do not, however, think it is necessary to pursue this aspect of the matter. In the present case, it is true, as pointed out by my learned brother, there are passages in the speech which, torn out of context, may be liable to be misunderstood. But reading the speech as a whole and bearing in mind the select audience to which it was addressed, I agree with my learned brother no contempt has been committed. I think that we should accept, at its face value, the affidavit of respondent No. 1 that the speech was only a theoretical dissertation and that he intended no disrespect to this Court or its functioning. The second aspect of the case on which arguments have been addressed before us relate to the procedure to be followed in such matters. As this aspect raises some important issues, I would like to state my views thereon separately. The criminal miscellaneous petition filed by the petitioner purports to be only "information" u/s 15(1)(a) and (b) of the ( 'the Act '). The petitioner seeks to inform this Court that he came to know from a report in 'Hindustan Times ' that respondent No. 1, in the course of a speech delivered by him at Hyderabad on November 28, 1987, had made certain statements which, in the petitioner 's opinion, rendered him liable to be proceeded against for contempt of court. Appending what is stated to be a full text of the said speech as published in the 'Newstime", the petitioner prays that this Court should be pleased to "initiate contempt of court proceedings suo motu under section 15(1) of the Contempt of Court Act, 1971 read with rule 3(a) of the Supreme Court (Contempt of Court) Rules, 1975". Though the prayer is vague as to the person 590 against whom the proceedings are to be initiated, the allegations in the petition leave no doubt that it is respondent No. l, and only he, who, even according to the petitioner, is to be charged with contempt. Nevertheless, the petitioner has added three more respondents to the Criminal Miscellaneous Petition, namely the Attorney General of India (by name), the Solicitor General of India (by name) and Sri 13 Ramoji Rao, Editor of "Newstime". In my opinion, this petition raises certain question of general importance which need to be discussed so as to evolve a proper procedure, at least for future guidance in these matters. I proceed to discuss these aspects. Article 129 of the Constitution declares that the Supreme Court shall be a court of record and that it shall have all the powers of such a court including the power to punish for contempt of itself. However, the powers of the Supreme Court and High Court in this regard have been recently classified in the . This Act defines "contempt of court" and classifies it into two categories, "civil contempt" and "criminal contempt". These definitions need not be set out here, particularly as the petitioner has filed a 'criminal miscellaneous petition and it is quite clear that what he seeks to charge respondent No. 1 with is "criminal contempt". Section 14 deals with contempt in the face of the court and we are not concerned with it here. Section 15 specifies how criminal contempt is to be taken cognizance of. It will be useful to set out here the relevant portions of this section: " 15. Cognizance of criminal contempt in other cases (1) In the case of a criminal contempt, other than a con tempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by (a) the Advocate General, or (b) any other person, with the consent in writing of the Advocate General, or (c) in relation to the High Court for the Union Territory of Delhi, such law officer as the Central Government may, by notification in the official Gazette, specify in this behalf, or any other person, with the consent in writing of such law officer. xxx xxx xxx 591 (3) Every motion or reference made under the section shall specify the contempt of which the person charged is alleged to be guilty. Explanation In this section, the expression "Advocate general" means (a) In relation to the Supreme Court, the Attorney General or the Solicitor General; xxx xxx xxx" 5. This Court has, with the approval of the President, framed, in exercise of its powers under section 23 of the Act read with article 145 of the Constitution, rules to regulate proceedings for contempt of the Supreme Court. The rules relevant for our present purpose are the following: 3. In case of contempt other than the contempt referred to in rule 2, the Court may take action: (a) suo motu, or (b) on a petition made by Attorney General, or Solicitor General or (c) on a petition made by any person, and in the case of a criminal contempt, with the consent in writing of the Attorney General or the Solicitor General. 4.(a) Every petition under rule 3(b) or (c) shall contain: (i) the name, description and place of residence of the petitioner or petitioners and of the persons charged; (ii) nature of the contempt alleged, and such material facts, including the date or dates of commission of the alleged contempt as may be necessary for the proper determination of the case; (iii) if a petition has previously been made by him on the same facts, the petitioner shall give the details of the petition previously made and shall also indicate the result thereof; 592 (b) The petition shall be supported by an affidavit. (c) where the petitioner relies upon a document or documents in his possession or power, he shall file such document or documents of true copies thereof with the petition. (d) No court fee shall be payable on the petition, and on any documents filed in the proceedings. Every petition under rule 3(b) and (c) shall be posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that no prima facie case has been made out for issue of notice, may dismiss the petition, and, if not so satisfied direct that notice of the petition be issued to the contemner. 6.(1) Notice to the person charged shall be in Form I. The persons charged shall, unless otherwise charged shall, unless otherwise ordered, appear in person before the Court as directed on the date fixed for hearing of the proceedings, and shall continue to remain present during hearing till the proceedings is finally disposed of by order of the Court. F. (2) When action is instituted on petition, a copy of the petition along with the annexures and affidavits shall be served upon the person charged. The Court may direct the Attorney General or Solicitor General to appear and assist the Court. A conjoint perusal of the Act and rules makes it clear that, so far as this Court is concerned, action for contempt may be taken by the Court on its own motion or on the motion of the Attorney General (or Solicitor General) or of any other person with his consent in writing. there is no difficulty where the court or the Attorney General choose to move in the matter. But when this is not done and a private person desires that such action should be taken, one of three courses is open to him. He may place the information in his possession before the Court and request the Court to take action: (vide C.K. Daphtary vs O.P. Gupta, and Sarkar vs Misra, ; ; he may place the information before the Attorney 593 General and request him to take action; or he may place the information before the Attorney General and request him to permit him to move the Court. In the present case, the petitioner alleges that he has failed in the latter two courses this will be considered a little later and has moved this "petition" praying that this Court should take suo motu action. The "petition" at this stage, constitutes nothing more than a mode of laying the relevant information before the Court for such action as the Court may deem fit and no proceedings can commence until and unless the Court considers the information before it and decides to initiate proceedings. Rules 3 and 4 of the Supreme Court (Contempt of Court) Rules also envisage a petition only where the Attorney General or any other person, with his written consent, moves the Court. Rule 5 is clear that only a petition moved under rule 3(b) and (c) is to be posted before the Court for preliminary hearing. The form of a criminal miscellaneous petition styling the informant as the petitioner and certain other persons as respondents is inappropriate for merely lodging the relevant information before the Court under rule 3(a). It would seem that the proper title of such a proceeding should be " In re . (the alleged contemner)" (see: Kar vs Chief Justice, though that decision related to an appeal from an order of conviction for contempt by the High Court). The form in which this request has to be sought and considered in such cases has also been touched upon by the Delhi High Court in Anil Kumar Gupta vs K. Subba Rao, ILR 1974 Delhi 1. This case, at the outset, pointed out that the information had been erroneously numbered by the office of the Court as Criminal original No. 51 of 1978 and concluded with the following observations: "The office is to take note that in future if any information is lodged even in the form of a petition inviting this court to take action u/s 15 of the or Article 215 of the Constitution, where the information is not one of the persons named in section 15 of the said Act, it should not be styled as a petition and should not be placed before the judicial side. Such a petition should be placed before the Chief Justice for orders in chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the court whether to take any cognizance of the information. The office to direct to strike off the information as "Criminal original No. 51 of 1973" and to file it" I think that the direction given by the Delhi High Court sets out 594 the proper procedure in such cases and may be adopted, atleast in future, as a practice direction or as a rule, by this Court and other High Courts. However, a petition having been filed and similar petitions having perhaps been entertained earlier in several courts, I do not suggest that this petition should be dismissed on this ground. In this case, apart from filing his information in the form of a miscellaneous petition, the petitioner has added as respondents to the petition not only the alleged contemner but three more persons. He says that he approached the Attorney General of India and the Solicitor General of India for their written consent to enable him to file a petition under Section 15(1) read with rule 3(c) but that they have refused to exercise the jurisdiction vested in them by law and that, therefore, "they have been impleaded as parties in the present proceedings (as necessary and/or proper parties) in order that they may get an opportunity to justify the stand they have taken in the matter flowing from their refusal to exercise jurisdiction." So far as respondent No. 4, is concerned, the only reason given for impleading him is that the full text of the speech of respondent No. 1 has come out in the newspaper published by him and placed before the court and that he was being impleaded only to prove the authenticity of the speech, in the event of possible disclaimer of the respondent No. 1. In other words, respondent No. 4 is only a possible witness through whom he proposes to prove the authenticity of the speech which contains the words of alleged contempt. In my opinion this cannot be done. Assuming that a petition is the proper form of approach to the court under rule 3(a), I have indicated earlier the proper title to such a petition. It will have no respondents and it will be for the court to issue notice to persons against whom a case for contempt needs examination. Viewed as a petition under rule 3(c), rule 4 envisages only that the petition should contain the name, description and place of residence of the petitioner(s) and the persons charged. It does not contemplate any other person being made a party to it. Under rule 6 the notice to the person charged is to be in the form appended to the rules and the form of notice not only makes it clear that it is to be addressed only to a person charged with contempt of court but also contains certain directions appropriate only to such a person. This is naturally so, for it is obvious that the only persons who can be respondents in such a petition are the persons who are charged with criminal contempt. The petition, as filed here, is a petition for initiating proceedings for contempt of court only against respondent No. 1. Even if the petitioner has any other cause of action against other persons, such persons are neither necessary nor even proper parties to the petition. 595 This is especially so because such cause of action is of a purely civil nature. At best the petitioner can say that he is entitled to a writ of mandamus directing the Attorney General and Solicitor General to discharge their statutory obligation in case they fail to do so or a writ of certiorari to quash their decision in case they withhold unreasonably their consent to the petitioner filing a petition. But this is a remedy to be sought independently against these persons by a separate writ petition. He cannot seek to get relief against the Attorney General and Solicitor General by a petition mixing up his criminal charge against respondent No. 1 and his civil grievances against the Attorney General and Solicitor General. It is true that on the terms of Section 15(1) and rule 3(c), a petition for contempt will not be maintainable by a private person without the written consent of the Attorney General or the Solicitor General. But he cannot seek to get over this objection to the maintainability of a petition without such consent merely by the device of adding them as respondents to the petition, even if he had added, in the petition, a prayer for some relief against them. But, in this case, even such a prayer is not there and no relief is sought against the Attorney General or Solicitor General. This petition, therefore, if treated as a petition under rule 3(c), is not maintainable for want of consent by the Attorney General and the Solicitor General and has to be dismissed as such. That apart, as I have already pointed out, the inclusion of respondents 2 to 4 as respondents to the petition is totally unjustified and, even if the petition is to be taken on record as a mere laying of information under rule 3(a), the names of respondents 2 to 4 must be struck off from the array of parties. I would direct accordingly. This case itself illustrates the type of difficulties which can arise by filing such a rolled up petition. Having regard to the nature of the allegations against respondent No. 1 and the form in which the petition had been presented, we were of opinion that the question as to "what action, if any, need be taken" by this Court on such a petition called for consideration and we directed the issue of such a notice by our order dated 10.2.1988. The terms of the order make it clear that we wanted to hear the parties mentioned in the petition and the Additional Solicitor General on the above question. Some aspects that arise for consideration are: whether the petition is properly framed; what is the relief, if any, that can be given to the petitioner against the alleged refusal of the Attorney General and Solicitor General to give consent to the petitioner to file a contempt petition; and whether, in case they considered themselves disabled from acting on the application, the Additional Solicitor General can be called upon to exercise the said 596 function. We needed assistance on these issues. If the Attorney A General/Solicitor General had not been made parties, we would have called upon them to assist us under rule 10. Since, however, they had been added as parties, we directed notices to issue to them "as to what action, if any, need be taken on the petition." Unfortunately, we find that a notice was issued not only to the first respondent named in the petition (the alleged contemner) but also to the other "respondents" named in the petition, in the form prescribed under the rules containing recitals which are appropriate only in the case of a person charged with contempt of court, though a mention was specifically made that the contempt charge was only against respondent No. 1. The issue of notices in the prescribed form to the other respondents was unjustified. This type of difficulty arose only because the petition joined, as respondents, persons who are totally unnecessary for deciding the issue of contempt. There was no question of any 'contempt ' notice being issued to the Attorney General/Solicitor General as there was not even a suggestion of any such allegation against them and no other relief had also been sought against them. I think that, in the circumstances, notices should not have been issued to them in the form in which they were issued. I may next consider the question whether even if the petitioner was particular about his right to file a petition under rule 3(C), he can have any recourse against the Attorney General and the Solicitor General in case they refuse their consent or, as alleged in this case, refuse to deal with the petitioner 's application. One possible view is that the discretion to be exercised by the Attorney General/ Solicitor General is a quasi judicial discretion and that its exercise is subject to judicial review by this court. In this connection, reference was made to the judgment of this Court in Conscientious Group vs Mohammed Yunus and ors. , J.T. 1987(2) 377. In that case, the petitioner had withdrawn a contempt petition filed by it as the Attorney General had expressed his inability to exercise his jurisdiction for reasons stated by him. Subsequently, the petitioner on learning that it could get the consent of the Solicitor General, sought to have the earlier order recalled. Bhagwati C. J. Observed: " . we would make it clear that it would be open to the petitioner to approach the Solicitor General and to revive the petition after obtaining the consent of the Solicitor General under Rule 3(c). Since this remedy is available to the petitioner for reviving the petition for contempt, we do not propose to recall the order permitting withdrawal of 597 the petition. The petition can be revived by the petitioner after obtaining the consent of the Solicitor General. We may point out that the petitioner will not be without remedy, if the Solicitor General refuses his consent on any irrelevant ground. " The matter was then referred to the learned Solicitor General who declined consent stating that it would not be in public interest to give his consent. The court then considered the reasons given by the learned Solicitor General and came to the conclusion that the ground stated by him for declining the consent could not be said to be irrelevant in the eye of the law or characterised as arbitrary, illegal or unreasonable. The petition for contempt was, threfore, dismissed. From these circumstances, it is sought to be suggested that the action of the Attorney General/Solicitor General is subject to judicial review by this Court. In my opinion this is not the necessary conclusion that follows from the observations extracted above. Our attention has been drawn by Sri Ganguly, appearing for the learned Solicitor General, to the decision in Rajagopal Rao vs Murtza Mutjahdi, [1974] 1 Andhra Law Times, 170 and N. Venkataramarlappa vs D.K. Naikar, A.I.R. , that the grant or refusal of consent is not justiciable. My learned brother has not accepted the correctness of these decisions on the ground that the statute confers a duty and discretion on these law officers and that their action cannot be beyond judicial review as no person can be above law. I am, however, inclined to think there is something to be said in favour of the view taken by the two High Courts for two reasons. In the first place the role of the Attorney General/Solicitor General is more akin to that of an amicus curiae to assist the court in an administrative matter rather than a quasi judicial role determining a lis involving rights of a member of the public vis a vis an alleged contemner. As pointed out by the Supreme Court in S.C. Sarkar vs V.C. Misra, ; , there are difficulties in the Court making frequent use of the suo motu power for punishing persons guilty of contempt. The Attorney General offers his aid and assistance in two ways. On the one hand, he moves the Court for action when he comes across cases where he thinks there is necessity to vindicate the dignity and reputation of the Court. On the other, he helps in screening complaints from the public to safeguard the valuable time of the Court The observations of Lord Reid and Lord Cross in the 598 Thalidomide case: A.G. vs Times Newspapers, , of the House of Lords, in a different context, in Gouriet vs Union of Post office Workers; , and of Lord Denning and Lawton LJ, in the same case in the Court of Appeal bring but this aspect of the Attorney General 's functions. Secondly, if we analyse the types of action which the Attorney General/Solicitor General may take on an application made to him, the position will be this. Firstly, he may grant permission in which case no further question will arise. I do not think it will be open to any other person to come to the court with a prayer that the Attorney General/Solicitor General ought not to have given his con sent. For, it would always be open to the Court, in case they find no reason to initiate action, to dismiss the petition. Secondly, it is possible that the Attorney General/Solicitor General may not be able to discharge his statutory function in a particular case for one reason or other. This was what happened in the case of Mohammed Yunus cited earlier. In that case it was only the Attorney General who was unable to discharge his functions under Section 15 and the petitioner could move the Solicitor General, who declined consent. But there might be cases in which both the Attorney General and the Solicitor General are not in a position to take a decision on the application made to them by a private party. Thirdly, both of them may refuse their consent. In the latter two cases, I am unable to see what purpose would be served by the Court spending its time to find out whether the Attorney General/Solicitor General should have given a decison one way or the other. For, the petitioner is not without remedy. It is open to him always to place the information in his possession before the Court and request the Court to take action. (see, Lord Cross in A.G. vs Times Newspaper, at p. 321. Bhagwati, C.J. could have meant this when he said that, if the consent of the Solicitor General was withheld on irrelevant grounds, the petitioner was not without remedy. the petitioner has submitted that the Attorney General and Solicitor General acted unreasonably in declining to act in the present case. Though, as indicated earlier, it will not be a fruitful exercise to review such decision, particularly when a request for suo motu action under rule 3(a) has been made, the point having been raised, I shall consider how valid this complaint is. What the petitioner here did was that, instead of merely placing the information with him before the Attorney General/Solicitor General and seeking their consent to his filing a petition before the Court, the petitioner wrote a letter contain 599 ing a lot of other irrelevant matter. In particular, in paragraph 7, he suggested that the Attorney General/Solicitor General might feel embrassed in giving consent for the prosecution as the person sought to be charged happened to be the Minister "who effectively hires and fires law officers and for all purposes at whose pleasure they hold their office." He also expressed his apprehensions about the possible outcome of his request. In other words, the petitioner, while purporting to seek the consent of the Attorney General/Solicitor General, simultaneously expressed his lack of confidence in their judgment and their ability to discharge their duties objectively and impartially. It is not surprising that, in this situation, the learned Attorney General/ Solicitor General decided not to exercise their statutory powers at all one way or the other. The learned Attorney General has placed before us a statement explaining his stand in the matter. He has pointed out that two occasions had arisen in the past when, for compelling reasons, he could not deal with an application for consent filed before him. So far as the present case is concerned, he has stated: "The Attorney General has declined to exercise his functions under Section 15 of the Contempt of the Courts Act in view of the allegations of lack of impartiality and independence. These allegations contain a reflection of bias and foreclosure on the part of the Atorney Genera. The Attorney General declined to investigate the matter since the allegation of bias should normally disentitle him from proceeding further with the matter. The Attorney General has followed this course consistently. " From the above narration, it is clear that the Attorney General/ Solicitor General acted rightly and in the best traditions of their office by declining to deal with the petitioner 's request and leaving it to the petitioner to follow such other course as he considered advisable. The petitioner had cast aspersions agaist both the Law officers doubting their ability act objectively and thus stultified by his own conduct this course indicated by the statute. The last question that remains to be touched upon is whether, in a case where neither the Attorney General nor the Solicitor General is in a position to consider a request under Section 15(1)(c), it is open to the petitioner to seek the consent of some other law officer such as the Additional Solicitor General. Apart from the fact that, in the present case, the petitioner would have had the same criticism against the Additional Solicitor General as he had against the 600 Attorney General/Solicitor General, the clear answer to the question appears to be that it is not open to him to seek such consent. Section 15 is quite clear that the written consent of only those officers as have been specifically authorised by the section would be taken note of for entertaining a petition under the section. But this does not, in any way, deprive the petitioner of his remedy as he can come to Court, as indeed he has done, requesting the court to take suo motu action. For purposes of convenience, I may sum up my conclusions. They are: (a) This petition, if treated as one filed under Section 15(1) read c. with rule 3(a) is not in proper form and, if treated as one filed under rules 3(b) and 3(c), is not maintainable as it is not filed by the Attorney General/Solicitor General or by any person with his consent. (b) In either event the petitioner should not have added to the petition respondents other than the person who, according to the petitioner, is guilty of contempt of court and so their names should be deleted from the array of parties. (c) In case the Attorney General/Solicitor General refuse con sent or decline to act, their decision is not judicially reviewable and petitioner 's remedy is to approach the Court for action under rule 3(a). (d) In this case, the Attorney General/Solicitor General acted properly in declining to deal with the petitioner 's application either way; and (e) Considering the petition as nothing more than information under rule 3(a) on which this Court may or may not take suo motu action and, after hearing counsel for the alleged contemner, we think there is no need to initiate proceedings against respondent No. 1 for contempt of court. I, therefore, agree that the petition should be dismissed. S.L. Petition dismissed.

The respondent No. 1, Shri P. Shiv Shankar, Minister of Law, Justice and Company Affairs at the relevant time, delivered a speech at a meeting of the Bar Council of Hyderabad. The petitioner alleged that in that speech the respondent No. 1 had made statements derogatory to the dignity of the Supreme Court, attributing to the Court partiality towards affluent people and using extremely intemperate and undignified language, and that the speech contained slander cast on this Court both in respect of the Judges and the working of the Court. He stated that he had approached the Attorney General for India and the Solicitor General of India to give their consent for initiating Contempt proceedings. The Attorney General and the Solicitor General having declined to deal with this prayer of the petitioner, an application for initiation of Contempt under section 15(1)(a) and (b) of the Act read with Explanation (1) and Rule 3(a), (b) and (c) of the contempt of Supreme Court Rules, 1975, was made, wherein Shri P. Shiv Shankar, the Attorney General, the Solicitor General were made parties. The Court issued notice. In response, Shri P. Shiv Shankar filed an affidavit, stating that he had delivered the speech on the subject of accountability of the Legislature, Executive and the Judiciary and had made comments on the accountability of the three organs and the theoretical implications thereof, and that he had intended no disrespect to any of the institutions or its functionaries much less the Supreme Court. It was further stated that the Contempt petition was not maintainable without the consent of the Attorney General or the Solicitor General. In the meantime, Shri R.N. Trivedi, Advocate, filed an application, claiming right to be impleaded as a party, stating that the Attorney General and the Solicitor General should not have been made parties to the comtempt petition and that the alleged non exercise of the jurisdiction by the Attorney General and the Solicitor General had 548 not constituted contempt within the meaning of section 2(c) of the Act. Declining to initiate the contempt proceeding and dismissing the petition and disposing of the application filed by Shri R.N. Trivedi, the Court, ^ HELD: Per Sabyasachi Mukharji, J.: Before deciding the question whether this application was maintainable without the consent of the Attorney General or the Solicitor General, as contended by Dr. Chitale on behalf of Shri Shiv Shankar, and the question whether the Attorney General and the Solicitor General could be made parties to the Contempt application and whether their action or inaction was justiciable at all in any proceeding and, if so, in what proceedings it was necessary to decide the basic question whether the speech made by Shri P. Shiv Shankar had amounted to contempt of this Court, or in other words, whether the speech had the effect of bringing this Court into disrepute. [562H; 563A B] Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is to defend and uphold the Constitution and the laws without fear and favour. This the Judges must do in the light given to them to determine what is right. Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented. The contempt of Court proceedings arise out of that attempt. Judgments can be criticised, motives of the Judges need not be attributed. It brings the administration of Justice into deep disrepute. Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas, criticism about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how the courts should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or lawyer. [563C F] In this case, the Court had examined the entire speech. Shri P. Shiv Shankar had examined the class composition of the Supreme Court. His view was that the class composition of any instrument indi 549 cated its predisposition, prejudices. This is inevitable. The intuition more subtle than major premise, on which the decision will depend, is the pride and the prejudice of a human instrument of a Judge through which objectively the Judge seeks to administer justice according to law. So, in a study of accountability, if class composition of the people manning the institution is analysed, there has to be forewarning about certain inclination and it cannot be said that an expression or view or propagation of that view hampers the dignity of the Courts or impairs the administration of Justice. [565F H; 566A] It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the Court and in the majesty of law and that has been caused not so much by scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. It is a criticism which judges and lawyers must make about themselves. We must turn the search light inwards. At the same time, the Court cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in Rama Dayal Markarha vs State of Madhya Pradesh, ; , where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such a fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed with regard to law or established facts. But when it is said that the Judge had a predisposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and prejudging of issues, that would bring administration of justice into ridicule. Such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into ridicule or hampers administration of justice. After all, it cannot be denied that pre disposition or subtle prejudice or unconscious prejudice or what in Indian language is called "Sanskar" are inarticulate major premises in decision making process. That element in decision making process cannot be denied, it should be taken note of. [569B G] It has to be borne in mind, as has been said by Banjamin N. Cardozo in "The Nature of the Judicial Process" that the judge as the 550 interpreter for the community of its sense of law and order must supply omissions, correct uncertainties and harmonize results with justice through a method of free decision. Courts are to "search for light among the social elements of every kind that are the living force behind the facts they deal with". [569G H; 570A] Though at places, intemperate, the statement of the Minister in this case cannot be said to amount to interference with the administration of justice and to amount to contempt of court. The Administration of justice in this country stands on surer foundation. In the speech, it appears that Shri P. Shiv Shankar was making a study of the attitude of this Court. It was stated that the Supreme Court was composed of the element from the elite class. Whether it is factually correct or not is another matter. In public life, where the champions of the down trodden and the politicians are mostly from the so called elite class, if the class composition is analysed, it may reveal interesting factor as to whether elite class is dominant as the champions ' of the oppressed or of the social legislations and the same is the position in the judiciary. But the Minister went on to say that because the Judges had their 'unconcealed sympathy for the haves ' they interpreted the expression 'compensation ' in the manner they did. The expression 'unconcealed ' was unfortunate. But this was also an expression of opinion about an institutional pattern. Then, the Minister went on to say that because of this the word 'compensation ' in Article 31 was interpreted contrary to the spirit and intendment of the Constitution. The Constitution had to be amended to remove this 'oligarchic ' approach of the Supreme Court with little or no help. The inter action of the decisions of this Court and the constitutional amendments had been viewed by the Minister in his speech, but that was nothing new. This by itself does not affect the administration of justice. On the other hand, such a study is perhaps important for the understanding of the evolution of the constitutional development. Criticisms of judgments is permissible in a free society. [573C D; 575E H; 576A B,F] There was one paragraph which appeared to be rather intemperate, it read thus: "Anti social elements i.e. FERA violators, bride burners and whole hordes of reactionaries have found their heaven in the Supreme Court". [576F G] That, if true, is a criticism of the laws. The Supreme Court, as it is bound to do, has implemented the laws and in implementing the laws it 551 is a tribute to the Supreme Court that it has not discriminated between persons and persons. Criminals are entitled to be judged in accordance with law. If anti social elements and criminals have benefited by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The Courts are not deterred by such criticisms. [576G H] Bearing in mind the trend in the law of contempt as noticed before, as well as in some of the decisions noticed by Krishna Iyer, J. in the case of Re: section Mulgaokar; , , the speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair administration of justice. In some portions of the speech, the language used could have been avoided by the Minister. The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly. With these observations, it must be held that there was no imminent danger of interference with the administration of justice, nor of bringing administration of justice into disrepute. In that view, it must be held that the Minister was not guilty of contempt of Court. [577A C] Another question of law of some importance had arisen in this matter. Under the Act, in case of criminal contempt other than a contempt referred to in section 14 which was not this case, namely a contempt of this Court or a High Court, this Court or the High Court may take action either on its own motion or on a motion made by the Advocate General, which in relation to this Court means the Attorney General or the Solicitor General or any other person with the consent of the Attorney General in terms of section 15 of the Act. Cognizance for criminal contempt could be taken by the Court by three methods, namely on its own motion, or on the motion of the Attorney General or the Solicitor General, or on the motion of any other person with the consent of the Attorney General. The only course open to a citizen for initiating proceedings for contempt is to move for consent of the Attorney General or the Solicitor General. The question is, does it cast a duty upon the Attorney General or the Solicitor General to consent to application for grant of such consent and whether the granting or non granting of such consent is justiciable by the Court and if so whether the question of non granting can be brought up in a rolled application moved by a person to bring it to the notice of the Court to take action suo motu and at the same time to consider whether in the same proceedings the action of the Attorney General or the Solicitor General in granting or not granting consent can be challenged or it must be always by an independent proceeding. The consent certainly is linked up with 552 contempt proceedings. In this case, the Minister had taken the plea that consideration of this case could not be taken up because there was no consent of the law officers. Did it or did it not tend to interfere with the due course of judicial proceedings in terms of clause (ii) of section 3(c) of the Act? The Attorney General and the Solicitor General, in respect of this Court, occupy positions of great importance and relevance. The Attorney General is a friend, philosopher, and guide of the Court (Article 76 of the Constitution). Yet, the Act, vests him with certain discretions. All statutory discretions are justiciable in a society governed by the rule of law. This Court is the finder and interpreter of law in cases of this nature with the assistance of Attorney General, and, in his absence or inability, the Solicitor General. [577C H; 578A C] The petitioner in this case had approached the Attorney General and the Solicitor General to look into the matter and accord sanction. The conduct of the respondents Nos. 2 and 3 according to the petitioner, amounted to refusal to exercise jurisdiction vested in them by law, and, therefore, they were impleaded as parties in the present proceedings (as necessary and/or proper parties) in order that they might get an opportunity to justify the stand they had taken in the matter flowing fr m their refusal to exercise jurisdiction. [580E G] The question is whether there is a duty cast upon the Attorney General or the Solicitor General to consider the question of granting consent in terms of clause (b) of section 15(1) of the Act, and if in fact such consent is not granted, that question can be considered by the Court. It was not a question of making the Attorney General or the Solicitor General a party to a contempt proceeding in the sense that they were liable for contempt, but if the hearing of the contempt proceedings is better proceeded with by obtaining the consent of the Attorney General or the Solicitor General and the question of justiciability of giving the consent is inter linked on the analogy of order II, Rule I of the Code of Civil Procedure, which has application to a civil proceeding and not to a criminal proceeding, it is permissible to go into this question. In the case of Conscientious Group vs Mohammed Yunus and others, , this Court went into the reasons given by the Solicitor General declining consent, and held on examination that such consent was properly refused. This is a complete answer to the contention that in a contempt petition the grounds for either giving consent or not giving consent or for not considering the application for consent are justiciable and that question cannot be gone into in that proceeding though it must be emphasised in that proceeding that 11 the Solicitor General was not made a party to the proceeding. In his 553 Lordship 's opinion, it will be more appropriate for an officer of the Court whose action is being investigated to be made a party in the proceedings, otherwise it would be violative of the rule of audi alteram partem. Discretion vested in the law officers of this Court to be used for a public purpose in a society governed by rule of law is justiciable. It would be more appropriate that it should be gone into upon notice to the law officer concerned. It is a case where appropriate ground for refusal to act can be looked into by the Court. It cannot be said that the refusal to grant consent decides no right and it is not reviewable. Refusal to give consent closes one channel of initiation of contempt out of the three different channels, namely, (1) the Court taking cognizance on its own motion; (2) on the motion by the Attorney General or the Solicitor General; and (3) by any other person with the consent in writing of the Attorney General or the Solicitor General. In this case, apparently the Attorney General and the Solicitor General had not moved on their own. The petitioner could not move in accordance with law without the consent of the Attorney General and the Solicitor General, though he has a right to move and the third is the Court taking notice suo motu. But irrespective of that there was the right granted to the citizen of the country to move a motion with the consent. Indubitably, cognizance could be taken suo motu by the Court but the members of the public have also the right to move the Court. That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or the Solicitor General, and if that consent is withheld without reasons or without consideration of that right granted to any other person under section 15 of the Act, that could be investigated in an application made to the Court. [581B H; 582A C; 584C D] Where an appeal comes to this Court, which is a judicial decision, the judges who rendered the decision are not necessary parties. There is no lis between a suitor and a judge in a judicial adjudication. But the position is entirely different where there is a suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act. In respect of justiciability of that act of the official there is a lis and if that lis is inter linked with the proceeding for contempt, there is warrant for making him party in that proceeding though the prayers and the notice must be issued differently. The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General. If such right is not considered on relevant materials, then, that action is justiciable in the appropriate proceeding for contempt. [585C G] 554 Having considered the peculiar facts and circumstances of this A case and the allegations of bias made against the Attorney general and the Solicitor General, it appeared that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court. In that view of the matter, the petition failed and the application of Shri Trivedi was accordingly disposed of. [588D E] Per section Ranganathan, J. (Concurring) The impugned comments were made by the respondent No. 1 in the course of his key note address at a seminar on 'Accountability of the Legislature, Executive and Judiciary under the Constitution of India '. The speech, and, in particular, some 'sevoury ' passages therefrom were highlighted in the Press. The speech had been made before an audience comprising essentially lawyers, Jurists and Judges. It represented primarily an exercise by the speaker to evaluate the roles of the executive, legislature and judiciary in the country since its independence and to put forward the theory that, like the executive and the legislature, the judiciary must also be accountable to the people. [588F H; 589A] The petitioner contended that certain passages in the speech seemed to attribute a sub conscious partiality, bias or predeliction in the Judges in disposing of various matters before them and that those comments fell within the scope of the decision of this Court in the case of E.M. Sankaran Namboodripad vs T. Narayanan Nambiar, ; [589A B] It was true, as pointed out by Sabyasachi Mukharji, J. that there were passages in the speech which torn out of context might be liable to be misunderstood, but reading the speech as a whole and bearing in mind the select audience to which it was addressed, his Lordship agreed with Sabyasachi Mukharji, J., that no contempt had been committed. The affidavit of the respondent No. 1 should be accepted at its face value that the speech was only a theoretical dissertation and that he intended no disrespect to this Court or its functioning. [589D E] The second aspect of the case on which arguments were addressed before the Court, related to the procedure to be followed in such matters. This aspect raised some important issues. [589E F] The criminal miscellaneous petition filed by the petitioner purported to be only "information" u/s 15 (1)(a) and (b) of the 555 ( 'the Act '). The petitioner stated that he came to know from a report in the newspaper that the respondent No. 1, in the course of his speech, had made certain statements which randered him liable to be proceeded against for contempt of court, and, appending what was stated to be a full text of the said speech published in the "Newstime", prayed for initiation of contempt of court proceedings suo motu under section 15(1) of the , read with rule 3(a) of the Supreme Court (Contempt of Court) Rules, 1975. Though the respondent No. 1 only, according to the petitioner, was to be charged with contempt, the petitioner had added three more respondents to the criminal miscellaneous petition, namely, the Attorney General for India (by name), the Solicitor General of India (by name) and Sri Ramji Rao, Editor of "Newstime". The petition raised certain questions of general importance for consideration to evolve a proper procedure for future guidance in these matters. [589F H; 590A B] The petitioner sought to charge respondent No. 1 with "Criminal Contempt" under Section 15 of the . A conjoint perusal of the Act and the rules of the Supreme Court to regulate proceedings for Contempt of Supreme Court makes it clear that so far as this Court is concerned, action for contempt may be taken by the Court on its own motion or on the motion of the Attorney General (or the Solicitor General) or of any other person with his consent in writing. There is no difficulty where the Court or the Attorney General chooses to move in the matter. When a private person desires that such action should be taken, he may place the information in his possession before the Court, requesting the Court to take action; or he may place the information before the Attorney General requesting him to take action; or he may place the information before the Attorney General requesting him to permit him to move the Court. In this case, the petitioner alleged that he had failed in the letter two courses, and he had moved this 'petition ' praying that this Court should take suo motu action. On this 'petition ', no proceedings could commence until and unless the Court considered the information before it and decided to initiate proceedings. [592F H;593A B The form of a criminal miscellaneous petition styling the informant as the petitioner and certain persons as respondents is inappropriate for merely lodging the relevant information before the Court under rule 3(a) of the Supreme Court (Contempt of Court) Rules. The proper title of such a proceeding should be "In re . (the alleged contempt)". The direction given by the Delhi High Court in 556 Anil Kumar Gupta vs K. Subba Rao, ILR 1974 Delhi 1 that " . . if any information is lodged even in the form of a petition inviting this Court to take action u/s 15 of the or Article 212 of the Constitution, where the informant is not one of the persons named in section 15 of the said Act, it should not be styled as a petition and should not be placed before the judicial side. Such a petition should be placed before the Chief Justice for orders m chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information . . " sets out the proper procedure in such cases and may be adopted in future as a practice direction or as a rule, by this Court and the High Court. However, this petition having been filed and similar petitions having been perhaps entertained earlier in several courts, his Lordship did not suggest that this petition should be dismissed on this ground. [593C H; 594A B] In this case, apart from filing his information in the form of a petition, the petitioner had added as respondents to the petition not only the alleged contemner but three more persons i.e. the Attorney General, the Solicitor General and Shri Ramoji Rao, Editor of "Newstime". The Attorney General and Solicitor General were stated to be impleaded in order that they might get an opportunity to justify their stand in refusing to exercise their jurisdiction to grant consent to him to enable him to file a petition under section 15(1) read with rule 3(c), and the fourth respondent was only a possible witness, stated to be impleaded only to prove the authenticity of the speech reported in the "Newstime" in the event of a disclaimer of the respondent No. 1. This could not be done. This petition, as filed, was for initiating proceeding for contempt only against respondent No. 1. If the petitioner had any cause of action against the other persons, such persons were neither necessary nor even proper parties to this petition, because such cause of action was of a purely civil nature. At best, the petitioner could say that he was entitled to a writ of mandamus directing the Attorney General and Solicitor General to discharge their statutory obligation or a writ of certiorari to quash their decision in case they had unreasonably withheld their consent to the petitioner 's filing a petition. This remedy was to be sought independently against these persons by a separate writ petition. He could not seek relief against the Attorney General and the Solicitor General by a petition mixing up his criminal charge against respondent No. 1 and his civil grievance against the Attorney General and the Solicitor General. He could not get over the objection to the maintainability of a petition, i.e. want of cousent of the Attorney General or the Solicitor General, merely by the device of adding them as respondents 557 to the petition; no relief was sought against the Attorney or the Solicitor A General. This petition, if treated as one under rule 3(c) was not maintainable for want of consent by the Attorney General and the Solicitor General and had to be dismissed as such. The inclusion of respondents 2 to 4 as respondents to the petition was totally unjustified, and if the petition was to be taken as merely laying of information under rule 3(a), the names of respondents 2 to 4 must be struck off from the array of parties. His Lordship directed accordingly. Notice of the petition should not have been issued in the form it was issued, to the Attorney General and the Solicitor General since there was no allegation of contempt and no relief had been sought against them. [594B H; 595A D] The petitioner had submitted that the Attorney General and the Solicitor General had acted unreasonably in declining to act in this case. In addition to merely placing the information with him before the Attorney General/Solicitor General and seeking their consent to his filing a petition before the Court, he had written a letter containing a lot of irrelevant matter, whereby while purporting to seek the consent of the Attorney General Solicitor General, he had simultaneously expressed his lack of confidence in their judgment and ability to discharge their duties objectively and impartially. In this situation, the Attorney General/Solicitor General decided not to exercise their statutory powers at all one way or the other. the Attorney General/Solicitor General acted rightly and in the best traditions of their office by declining to deal with the petitioner 's request. The petitioner had cast aspersions against both the law officers, doubting their ability to act objectively and this stultified by his conduct this course indicated by the Statute. [598G H; 599A C,F] As to the question whether, in a case where neither the Attorney General nor the Solicitor General was in a position to consider a request under section 15(1)(c), the petitioner could seek the consent of some other law officers, as the Additional Solicitor General, it was not open to him to seek such consent, as under section 15, the written consent of only those officers as have been specifically authorised by the section would be taken note of for entertaining a petition under the section. [599G H; 600A B] Summing up the conclusion (a) This petition, if treated as and filed under section 15(1) read with rule 3(a) was not in proper form, and if treated as one filed under rules 3(b) and 3(c), was not maintainable as it was not filed by the 558 Attorney General/Solicitor General or any other person with his consent; [600C] (b) In either event, the petitioner should not have added to the petition respondents other than the person, alleged to be guilty of Contempt of Court, and their names should be deleted from the array of the Parties; [600D] (c) In case the Attorney General/Solicitor General refuse consent or decline to act, their decision is not judicially reviewable and a petitioner 's remedy is to approach the Court for action under rule 3(a); [600E] (d) In this case, the Attorney General/Solicitor General acted properly in declining to deal with the petitioner 's application either way, and [600F] (e) This petition was nothing more than information under rule 3(a) on which this Court might or might not take suo motu action and there was no need to initiate proceeding against the respondent No. I for Contempt of Court. [600F G] Ambard vs Attorney General for Trinidad and Tobago, , 325; E.M. Sankaran Namboodiripad vs T. Narayanan Nambiar; , 2 SCC 325; Joseph Loohner vs People of the State of New York, 49 Lawyers ' Edition ; Re: Shri section Mulgaokar, ; New York Times Company vs L.B. Sullivan, ; ; Regina vs Commissioner of Police of the Metropolis, Ex Parte Blackburn, ; Special Reference No. I of 1964; , ; Shri Baradakanta Mishra vs The Registrar of Orissa High Court and another; , ; Ram Dayal Markarha vs State of Madhya Pradesh, ; ; Conscientious Group vs Mohammed Yunus and others, J.T. 1987 (2) 377; National Anthem case; , ; Vassiliades vs Vassiliades and others, AIR 1945 P.C. 38; S.K. Sarkar vs V.C. Misra, ; ; C.K. Daphtary and others vs O.P. Gupta, and another, ; G.N. Verma vs Hargovind Dayal and others, AIR 1975 Allahabad 52; B. K. Kar vs The Chief Justice and his Companion Judges of the Orissa High Court and others; , ; Attorney General vs Iyimes Newspapers Ltd., ; Indian Express Newspapers (Bombay) Pvt. Ltd. and others etc. vs Union of India & others; , ; Gouriet and others vs H.M. Attorney General, [1978] Appeal Cases 435; Gouriet vs Union of Post office Workers, [1978] Appeal cases 435; 559 Gouriet vs Union of Post offices Workers & Ors., to 752; Rajagopal vs Murtza Mutjahdi, [1974] 1 Andhra Law Times 170; N. Venkataramanappa vs D.K. Naikar, A.I.R. 1978 Karnataka 57; Anil Kumar Gupta vs K. Subba Rao, ILR 1974 Delhi 1 and A.G. vs Times Newspapers, , referred to.