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Criminal Appeal No. 44 of 1961. Appeal by special leave from the judgment and order dated September 16, 1960 of the Calcutta High Court in Criminal Appeal No. 56 of 1958. D.N. Mukherjee, for the appellant, 981 B. K. Bhattacharya, and Sukumar Ghose, for the respondent No. 1. P. K. Chatterjee and P. K. Bose, for the respondent No. 2. 1963. May 10. The judgment of the Court was delivered by DAS GUPTA J. This appeal by special leave is against a decision of the Calcutta High Court. The appellant was examined as a witness for the prosecution in the court of the Additional Chief Presidency Magistrate, Calcutta, in a case instituted by one Mayadas Khanna against the respondent. Chamanlal Mehra and two other persons under sections 504 and 506 of the Indian Penal Code. That case ended in the acquittal of the accused persons on May 10, 1957. On June 28, 1957 an application was made in the Magistrate 's court under section 476 of the Code of Criminal Procedure alleging that this appellant and some of the other witnesses, including Mayadas Khanna, examined for the prosecution in that case had "given false evidence and/or have fabricated false evidence for the purpose of being used in proceedings before the Court and have used false and or fabricated evidence as genuine and/or have forged document and/or have used as genuine forged document and each of the accused has abetted others in commission of these offences, and praying that after the necessary enquiry a complaint be made to the Chief Presidency Magistrate against them for the offences committed by these acts. It appears that the learned Magistrate Mr. jahangir Kabir who had disposed of the criminal case against Chamanlal Mehra was no longer available and the application under section 476 was transferred by the Chief Presidency Magistrate to the file of Mr. J. M. Bir, Presidency Magistrate, for disposal. For this 982 purpose the Chief Presidency Magistrate nominated Mr. J. M. Bir as successor of the trying Magistrate. Mr. Bir was of opinion that section 479A of the Code of Criminal Procedure was a complete bar against any action being taken by him in respect of this appellant and others who were merely witnesses on the side of the complaint in the criminal case. He therefore directed a complaint to be lodged only against Mayadas Khanna, the complainant, in the criminal case under section 504 and section 506 of the Indian Penal Code and rejected the application as against the rest. On appeal by Chamanlal Mehra against the Magistrate 's refusal to make a complaint against the other persons the High Court of Calcutta held that section 479 A of the Code of Criminal Procedure had no application to the offence of committing forgery or being a party to a criminal conspiracy to commit forgery. The High Court considering it expedient in the interests of justice that a complaint should be made against this appellant in respect of an offence under section 467 and section 4671120 B of the Indian Penal Code that he appeared to have committed, set aside the order of the Magistrate in respect of this appellant and made an order that such a complaint be made. The correctness of the High Court 's view that section 479A has no application to offences under section 467 and section 467/120B and does not bar an action being taken against a witness under section 476 of the Code of Criminal Procedure for such offences is challenged before us. The relevant portion of section 479A which was inserted in the Code of Criminal Procedure by the Amendment Act or 1955 runs thus : "Notwithstanding anything contained in sections 476 to 479 inclusive, when any Civil., Revenue or Criminal Court is of opinion that any person appearing before it as a witness 983 has intentionally given false evidence in any stage of the judicial proceedings or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefore and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction. . . There is divergence of judicial opinion on the question whether if action could have been taken by the criminal court under section 479A but was not taken action can still be taken under section 476 of the Code of Criminal Procedure. But that question does not arise for consideration before us. The question here is : Assuming that where action could have been taken under section 479A of the Code of Criminal Procedure but was not taken by the criminal court concerned, for offences of giving false evidence in any stage of a judical proceeding or for intentional fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding, no action can be taken under section 476 of the Code of Criminal Procedure, is it further correct to say that no such action under section 476 of the Code of Criminal Procedure can be taken even in respect of offences of forgery or conspiracy to commit forgery ? 984 We do not see any reason why this should be so. The special procedure of section 479A is prescribed only for the prosecution of a witness for the act of giving false evidence in any stage of a judicial proceedings or for fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. There is nothing in the section which precludes the application of any other procedure prescribed by the Code in respect of other offences. In applying the principle that a special provision prevails over a general provision, the scope of the special provision must be strictly construed in order to find out how much of the field covered by the general provision is also covered by the special provision. Examining the special procedure prescribed by section 479 A in that light, it is important to notice that the act of intentionally giving false evidence in any stage of a judicial proceeding and the act of fabricating false evidence for the purpose of being used in any stage of a judicial proceeding mentioned in section 479A of the Code of Criminal Procedure are the acts which are made punishable under section 193 of the Indian Penal Code and cognate sections in Chapter XI. It appears clear to us therefore that it is prosecution in respect of section 193 of the Indian Penal Code and cognate sections in Chapter XI that is dealt with under section 479A. If the legislature had intended that the special procedure would apply to offences other than offence under section 193 of the Indian Penal Code and cognate sections in Chapter XI it would have used clear words to that effect. It will be unreasonable to read into section 479A the meaning that where a person who appears to have committed an offence under section 193 of the Indian Penal Code by giving false evidence or fabricating false evidence appears to have committed some other offence also say, forgery, for the very purpose of fabricating false evidence, complaint for such other offence also 985 can be made under section 479A of the Code of Criminal Procedure. We are therefore of opinion that section 479A has no application to prosecution for offences other than an offence under section 193 and cognate sections in Chapter XI and that as regards other offences sections 476, 477, 478 and 479 continue to apply even after the enactment of section 479A. Whether the High Court is right or wrong in its view that the appellant appeared prima facie to have committed offences under section 467 and section 467/120B of the Indian Penal Code has not been argued before us and we express no opinion either way on that matter. The appeal is dismissed. Appeal dismissed.

IN-Abs

The appellant was a prosecution witness against the respondents. That case ended in the acquittal of the respondents. An application was moved under section 476 of the Code of Criminal Procedure before the Magistrate against the appellant and some other prosecution witnesses with a prayer that a complaint be made against them. The Magistrate was of opinion that section 479A of the Code of Criminal Procedure was a complete bar to action being taken against the appellant and other prosecution witnesses. So no complaint was filed against them. On appeal the High Court set aside the order of the Magistrate and directed the Magistrate concerned to file a complaint against the appellant in respect of offences under section 467 and section 467/120B of the Indian Penal Code as section 479A of the Code of Criminal Procedure had no application to the facts of the present case. Held that section 479A had no application to prosecution for offences other than an offence under section 193 and cognate sections in Ch. XI and that as regards other offences sections 476, 477, 478 and 479 of the Code of Criminal Procedure continue to apply even after the enactment of section 479A.

Appeal No. 39 of 1961. Appeal from the judgment and decree dated September, 1958 of the Bombay High Court in Appeal No. 13 of 1958. C.K. Daphtary, Solicitor General of India, S.N. Andley, Rameshwar Nath, P.L. Vohra and I. B. Dadachanji, for the appellant. M. C. Setalvad, Atul Setalvad, V.I. Merchant and G. Gopalkrishnan, for the respondent. 24 May 10, 1963. Subba Rao J., delivered a dissenting Opinion. The judgment of Dayal and Mudholkar JJ., was delivered by Mudholkar J. SUBBA RAO J. I regret my inability to agree with the judgment prepared by my learned brother Mudholkar J. This appeal by certificate raises the question of 'Jurisdiction of the Bombay High Court to entertain a suit on an award in respect whereof a judgment was made in a foreign court and other incidental questions. The facts that have given rise to the present appeal may be briefly stated. I shall only narrate such facts which are relevant to the question raised, for in the pleadings a wider field was covered, but it has gradually been narrowed down when the proceedings reached the present stage. The appellants are Badat & Co., a firm formerly carrying on business at Bombay. The respondents, East India Trading Co., are a private limited company incorporated under the laws of the State of New York in the United States of America and having their registered office in the State of New York. The respondents instituted Suit No. 71 of 1954 against the appellants in the High Court of judicature at Bombay, in its Ordinary Original Civil Jurisdiction, for the recovery of a sum of Rs. 92,884/4/10 with interest thereon. It was alleged in the plain that by correspondence, the details whereof were given in the plaint, the appellants agreed to do business with the respondents on the terms of the American Spice Trade Association contract. Thereafter, by subsequent correspondence the parties entered into two different contracts where under the appellants agreed to sell to the respondents different quantities of Allepey Turmeric Fingers on agreed terms. Though the respondents forwarded to the appellants in respect of the said transactions two contracts in duplicate on the standard form issued by the said Trade Association with a request to the appellants to send them after having duly signed, the ap pellants failed to do so. Under the terms and conditions of the said Trade Association Contract, all claims arising under the contract should be submitted to, and settled by, arbitration under the rules of the said Association. it was stated that pursuant to a relevant rule of the 25 said Association, the dispute was referred to arbitration and two awards were made in due course i.e., on July 12, 1949. Following the procedure prescribed for the enforcement of such awards in New York, the respondents initiated proceedings in the Supreme Court of the State of New York to have the said awards confirmed and a judgment entered thereon in the said Court. In due course, the said Court pronounced judgment confirming the said awards. On those allegations a suit was filed in the High Court of Bombay for recovery of the amounts payable under the said two awards by the appellants to the respondents. The suit was tried, in the first instance, by Mody J. The learned judge, inter alia, held that the suit on the foreign judgment would not lie in the Bombay High Court, as there was no obligation under the said judgment for the appellants to pay any amount to the respondents at any place within the jurisdiction of the Bombay High Court. Adverting to the claim based on the agreement resulting in the awards, the learned Judge observed that there was no proof of such agreement and that there were no admissions in the written statement in regard to the facts sustaining such an agreement. On those findings he held that the respondents had failed to prove that the Bombay High Court had jurisdiction to try the suit. As the suit was heard on merits also, he considered other issues and held that there was neither proof nor admissions in the written statement in regard to the alleged contracts. He found that the arbitrators and the umpire had jurisdiction to make the awards, but the said awards merged in the judgment and that the suit was not maintainable on the said two awards. It is not necessary to give the other findings of the learned judge, as nothing turns on them in the present appeal. In the result. the suit was dismissed with costs. On appeal, a division Bench of the said High Court, consisting of Chagla C.J. and section T. Desai J., disagreed with Mody J., on the material questions decided by him and allowed the appeal with costs. The learned judges held that the awards did not merge in the judgment, that the suit on the awards was maintainable and that the Bombay High Court had jurisdiction to entertain the suit as part of the cause of 3 2 section C. India/64 26 action arose within its limits. The learned Judges further held that all the facts necessary to sustain the respon dents ' suit on the awards had been proved either by public documents produced in the case or by the admissions made by the appellants in the written statement. The present appeal, as aforesaid, has been preferred by certificate against the judgment of the division Bench. The learned Solicitor General, appearing for the appellants, raised before us the following points : (1) The awards merged in the judgment made by the Supreme Court of the State of New York and, therefore, no suit would lie on the awards. (2) Even if the suit could be filed on the awards, it was not proved that any part of the cause of action accrued within the jurisdiction of the Bombay High Court. To state it differently, the respondents have not proved that the agreements resulting were entered into or concluded within of the Bombay High Court. And (3) failed to prove the three necessary enforcement of the awards namely, (i) an arbitration agreement, (ii) that the conducted in accordance with the agreement, and (iii) that the awards were made pursuant to the provisions of the agreement and, therefore, valid according to the lex fori of the place where the arbi tration was carried out and where the awards were made. Mr. Setalvad appearing for the respondents, sought to sustain the findings of the Division Bench of the High Court given in favour of the respondents on the said questions raised by the appellants. The first question is whether the awards merged in the judgment of the Supreme Court of the State of New York for all purposes; if so, the awards would lose their individuality or separate existence and no suit could, therefore, be filed to enforce them. In Halsbury 's Laws of England, Vol. 7, 3rd Edn., at p. 141, the relevant principle is stated under the heading "Foreign judgments" thus: " Since the foreign judgment constitutes a simple contract debt only, there is no merger of the original cause of action, and it is therefore open to the plain 27 tiff to sue either on the foreign judgment or on the original cause of action on which it is based, unless the foreign judgment has been satisfied. " The same idea is expressed in Dicey 's "Conflict of Laws", 7th edn., at p. 1059: "For historical and procedural reasons, a foreign judgment is treated in England as a contractual debt, and the fact that, in certain instances, it can be enforced by registration does not appear to alter the tra ditional view. " Though the learned author in the course of his commentary criticizes this view, the passage represents the accepted view on the subject. An interesting discussion of the evolution of the rule of non merger of the cause of action in the foreign judgment is found in Piggott 's "Foreign judgment", Part I at p. 17. The various steps in its evolution may be stated thus : (1) Action brought on a foreign judgment was an action brought to recover the judgment debt :. necessarily then, the judgment must be evidence of the debt. (2) It was not made clear which debt it evidenced, whether it was the judgment debt or the original debt. (3) As it was an action on a debt, an action on the judgment debt soon came to be confused with, and perhaps looked upon as, an action on the original debt. (4) Having come to that stage, the courts declared that the original debt or cause of action had not merged in the foreign judgment pronounced upon it. Whatever may be the origin, the doctrine of non merger of the original cause of action with the foreign judgment has now been well esta blished in spite of the fact that some text book writers are not able to discover a logical basis for the doctrine. In "Smith 's Leading Cases", the learned author says: "Foreign judgments certainly do not occasion a merger of the original ground of action." In Cheshire 's Private International Law, 5th Edn., the learned author says in Ch. XVII under the heading "Foreign Judgments", thus, at p. 598 : "It is a rule of domestic English law that a plaintiff who has obtained judgment in England against a defendant is barred from suing again on the original cause of action. The original cause of action is mer 28 ged in the judgment transit in rem judicatum and it would be vaxatious. to subject the defendant to another action for the purpose of obtaining the same result. It has been held, however, in a series of authorities, that this is not so in the case of foreign judgments. Such a judgment does not, in the view of English law, occasion a merger of the original cause of action, and therefore the plaintiff has his option, either to resort to the original ground of action or to sue oil the judgment recovered, provided of course, that the judgment has not been satisfied. " The learned author gives the following different reason for this distinction between a foreign and a domestic judgment, at p. 599 : "The most plausible justification for non merger, perhaps, is that a plaintiff suing in England on a foreign judgment, as contrasted with one who sues on an English, judgment possesses no higher remedy than he possessed before the foreign action. The effect of judgment in English proceedings is that "the cause of action is changed into matter of record, which is of a ' higher nature, and the inferior remedy is merged in the higher" ; but the view which English law takes of a foreign judgment is that it creates merely a simple contract debt between the parties. The doctrine of non merger has. however, been too often repeated by judges to justify any prospect of its abandonment. " This doctrine has been accepted and followed by Indian Courts: see Popat vs Damodar( '), Oppenheim and Company vs Mahomed HanEef(2) and Nil Ratan Mukhopadhyaya vs Cooch Behar Loan Office, Ltd.( '). If the contract does not merge in a judgment, by parity of reasoning, the award on which a foreign judgment is made cannot also merge in the judgment. While conceding the said legal position, the learned counsel for the appellant contends that the award to furnish a valid cause of action shall be one which is legally enforceable in the country in which it is made. An award made in (1) , 853. (2) Mad. (3) I.L.R. , 175. 29 New York, the argument proceeds, by its own force does not create rights or impose liabilities thereunder and there fore, such an inchoate document cannot afford a cause ,of action. This contention has not been raised for the first time, but has been noticed in "Russel On Arbitration", 16th Edn. and answered it p. 282. The learned author places the following two propositions in juxtaposition : (1) "An award made by foreign arbitrators, which requires an enforcement order to render it enforceable by the local law, is not a judgment of a foreign tribunal which can be enforced by action in English courts". (2) "But an award which is complete and could be enforced in the country where it was made is enforceable in England at Common Law quite apart from any rights given by Part 11 of the Act. " In Halsbury 's Laws of England, Vol. 11 3rd edn., the following note is given at p. 52 : "A foreign arbitration award which is complete and enforceable in the country in which it was made is enforceable in England at Common Law. " The learned Solicitor General seeks to (]raw a subtle distinction between an award made by foreign arbitrators which require an enforcement order to render it enforceable by the local law and an award which could not be enforced except by obtaining a judgment on its basis. On this distinction an argument is advanced, namely, that in the case of the former the award has been vitalized by, the enforcement order, while in the case of the latter the award qua the Judgment has not become enforceable, but it is the judgment that becomes enforceable. In support of this contention reliance is placed upon the following, observations found in Dicey 's Conflict of Laws, 17th edn., at p. 1059 : "If the foreign award is followed by judicial proceedings in the foreign country resultants in a judgment of the foreign court which it not merely a formal order giving leave to enforce the award, enforcement proceedings in England must be brought on the foreign judgment (or possibly on the original cause of action), but probably not on the award. " These observations are not supported by any direct decision, they represent only the author 's doubts on the 30 question. On principle 1 cannot see why a distinction should be made between the two categories of cases. An en forcement order as well as a judgment on an award serves the same purpose : they are two different procedures prescribed for enforcing an award. In the case of an enforcement order a party applies to a court for leave to enforce the award ; and on the granting of such leave, the award can be enforced as if it were a decree of a court. In the alternative procedure. an action either ill the shape of a suit or a petition will have to be filed on an award and a judgment obtained thereon. In that event, the award, vis a vis the country in which it is made, merges in the judgment and thereafter the judgment only becomes enforceable. But, as explained earlier, there is no merger in the context of its enforcement in another country. In both the cases the award in the country of its origin is complete and enforceable. If an award gets vitality by a mere enforcement order, it gets a higher sanctity by the court of its origin making a judgment on it. Both of them afford a guarantee of its vitality and enforceability in the country of its origin and, therefore, a different country can safely act upon it. In both the cases the award is complete in the country of its origin and if the doctrine of merger cannot be invoked in the case of foreign judgment, as I have held it cannot, there is no principle on which the distinction sought to be made can be sustained. To sanction the distinction in the context of a foreign judgment is to prefer the form to substance and to accept a lesser guarantee and reject a higher one. The decision in Merrifield, Ziegleis , and Co., vs Liverpool Cotton Association Limited(1) does not lay down any different proposition. There, the plaintiff brought an action in England against Liverpool Cotton Association for restraining the said Association from expelling them from membership of the Association. The Association filed a counter claim demanding a large amount from the plaintiffs payable by them under an award made in Germany. The claim was based on the award and in effect it was a claim to enforce the award. By German Law an enforcement order (1) , 106. 31 was necessary before an award can be enforced. But no such order was made there. The High Court rejected the counter claim. In doing so, it made the following observations : "The sole point, therefore, remains whether the award is a decision which the court here ought to recognise as a foreign judgment. In my opinion it is not, although as between the parties it is conclusive upon all matters thereby adjudicated upon, and is therefore in a different category to the "remate" judgment dealt with by the House of Lords in Nouvin vs Freeman(1) ; it has no further force or effect unless and until the court determines that it is an adjudication made in proceedings regularly conducted upon matters really submitted to the jurisdiction of the tribunal. It is not even as though the award were enforceable unless the court st ays its operation ; the contrary is really the case, and for all practical purposes it is stillborn until vitality is infused into it by the court. It is then, for the first time, endowed with one, at least, of the essential characteristics of a judgment the right to enforce obedience to it." This passage in clear terms brings out the principle underlying the proposition that an award cannot afford a cause of action till it is complete in the country of its origin. The reason of the rule is that unless and until tile appropriate court determines its regularity, it is in choate and it becomes enforceable only when an enforcement order or judgment puts its seal of approval on it. For the application of this principle the distinction between an enforcement order and a judgment on the award is not material. In either case, the Court approves it. Indeed, the Judicial Committee in Oppenheim & Co. vs Mahomed Hanef(2) sanctioned the maintainability of a suit to enforce an award which ended in a judgment. There, in respect of a mercantile dispute that arose between merchants carrying on business in London and a merchant at Madras, an award was obtained in England. The merchants in England filed a suit on (1) (2) Mad. 32 the award on the King 's Bench Division of the High Court in England for the amounts payable thereunder and obtained an ex parte judgment against the merchant at Madras. Thereafter, they brought a suit against the Madras merchant in the High Court of judicature at Madras claiming the sum due under the said judgment, or in the alternative, for the amount due under the award. Coutts Trotter J., who heard the case in the first instance, held that the suit was not maintainable on the judgment that was an ex parte one, and gave a decree on the award. But on appeal, a Division Bench. of that Court took a different view. On further appeal, the Privy Council restored the decree made by Coutts Trotter J. : but they concluded their judgment with the following caution : "In order to prevent misconception, it appears desirable to add that it was not pleaded or contended at any stage of the proceedings that the award had merged in the English judgment, and accordingly their Lordships do not deal with that point. " This decision is certainly an authority for the position that on the assumption that an award does not merge in a foreign judgment, it affords a cause of action in another country. I have already indicated earlier on the same reasoning applicable to the doctrine of non merger of a contract in a foreign judgment that an award also will not merge. For the reasons given by me, I hold that a suit would lie on the basis of an award in a foreign country,provided it is completed in the manner prescribed by the law of that country. I shall now take the third question, for the discussion thereon would also solve the problem raised by the second question. The learned Solicitor General contends that there is no proof of the facts to satisfy the aforesaid three conditions and the Division Bench of the High Court went wrong in holding to the contrary on the basis of the alleged admissions found in the pleadings. Mr. Setalvad, learned counsel for the respondents, on the other hand, while conceding that the said three conditions must be satisfied before a foreign award can be enforced, argues that the relevant facts were proved not only by the admissions made by the appellants in the written statement, ex 33 pressed or implied, but also by the production of the certi fied copy of the judgment of the foreign court. In Norake Atlas Insurance Co. Ltd. vs London General Insurance Company Limited(1), in award made in Norway was sought to be enforced in England. Action was brought not on the contract but on the award. MacKinnon J., laid down in that case that three things had to be proved for obtaining a decree thereon, namely, (1) the submission ; (2) the conduct of the arbitration in accordance with the submission ; and (3) the fact that the award was valid according to the law of the country where it was made. So too, in Halsbury 's Laws of England, 3rd edn., Vol. 11, in para 116, at p. 53, the said conditions of enforcement are given with further elaboration. I need not pursue this matter, as there is no dispute on this aspect of the question. Have the conditions been proved in the present case? I shall first take the arguments based on the pleadings. Be fore doing so, it would be convenient to read the relevant provisions of the Code of Civil Procedure on the subject, as the arguments turn upon the application of those provisions to the pleadings. Order VII of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that be may admit or deny them. Order VIII provides for the filing of a written statement, the particulars to be contained therein and the manner of doing so ; rules 3, 4 and 5 thereof are relevant to the present enquiry and they read : Order VIII Rule 3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. r. 4 Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus if it is alleged that he (1) 34 received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Rule 5. Every allegation of fact in the plaint, if not denied specifically, or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. The first paragraph of r. 5 is a re production of O.XIX, r. 13, of the English rules made under the Judicature Acts. But in mofussil Courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to parties with genuine claims. To do 'Justice between those parties, for which Courts are intended, the rigor of r. 5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the Original Side of the Bombay High Court, we are told, the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional 35 circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non suitng the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the Justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality, and the traditions and conventions of a Court wherein such pleadings are filed. In this context the decision in Tildestey vs Harper(1) will be useful. There. in an action against a lessee to set aside the lease granted under a power the statement of claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances; the statement of defence denied that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given. The Court held, under rules corresponding to the aforesaid rules of the Code of Civil Procedure, that the giving of the bribe was not sufficiently denied and therefore it must be deemed to have been admit ted. Fry J. posed the question thus : What is the point of substance in the allegations in the statement of claim ? and answered it as follows : "The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley, and that point of substance is nowhere met. . no fair and substantial answer is, in my opinion, given to the allegation of substance, namely that there was a bribe. In my opinion it is of the highest importance that this rule of pleading should be adhered to strictly, and that the Court should require the Defendant, when putting in his statement of defence, and the Plaintiff, when replying to the allegations of the Defendant, to state the point of substance, and not to give formal denials of the allegations contained in the previous pleadings without stating the circumstances. As far as I am concerned, I mean to give the fullest effect to that rule. I am convinced that it is one of the highest benefit to suitors in the Court." (1) 36 It is true that in England the concerned rule is inflexible and that there is no proviso to it as is found in the Code of Civil Procedure. But there is no reason why in Bombay on the original side of the High Court the same precision in pleadings shall not be insisted upon except in exceptional circumstances. The Bombay High Court, in Laxminarayanan vs Chimniram Girdhai Lal(1), construed the said provisions and applied them to the pleadings in a suit filed in the court of the joint Subordinate Judge of Ahmednagar. There the plaintiffs sued to recover a sum of money on an account stated. For the purpose of saving limitation they relied in their plaint upon a letter sent by the defendant firm. The defendants in their written statement stated that the plaintiffs 's suit was not in time and that "the suit is not saved by the letter put in from the bar of limitation". The question was raised whether in that state of pleadings, the letter could be taken as admitted between the parties and, therefore, unnecessary to be proved. Batchelor, Ag. C. T., after noticing the said provisions, observed "It appears to us that on a fair reading of paragraph 6, its meaning is that though the letter put in by the plaintiff is not denied the defendants contend that for one reason or another its effect is not to save the suit from the bar of limitation. We think, there fore, that. the letter, Exhibit 33, must be accepted as admitted between the parties, and therefore, unnecessary to be proved." The written statement before the High Court in that case was one filed in a court in the mofussil ; yet, the Bombay High Court implied the rule and held that the letter need not be proved aliunde is it must be deemed to have been admitted in spite of the vague denial in the written statement. therefore, hold that the pleadings on the original side of the Bombay High Court should also be strictly construed, having regard to the provisions of rr. 3, 4 and 5 of Order VIII of the Code of Civil Procedure, unless there are circumstances wherein a Court thinks fit to exercise its discretion under the proviso to r. 5 of O.VII. The first condition for the enforceability of an award (1) Bom. 89, 93. 37 is the proof of submission to arbitration. A claim based on an award is in effect a claim to enforce the award on the footing that the submission implied a contract to give effect to the award. In the plaint the details of the preliminary contract between the parties containing an arbitration clause has been specifically and precisely stated in paras 2 and 3. As much of the argument turns upon the said allegations, it may conveniently be read here. By their letter dated 7th September 1948 the plaintiffs intimated to the defendants that they were prepared to do business with them on the terms of the American Spices Trade Association contract, net landed weights, less 1 1/2 per cent. discount, letter of credit to be opened for 95 per cent. of the amount of the transaction and the balance to be settled immediately after the goods were weighed and delivered and if there was any difference in the plaintiffs ' favour the same was to be remitted to them by the defendants by telegraph. By their letter dated 13th September, 1948 the defendants agreed to the said terms. Thereafter by their cable dated 3rd March, 1949 the defendants offered to sell to the plaintiffs 30 tons of Alleppey Turmeric Fingers at 221 cents per lb. C. & F. New York less 2 per cent March/April shipment. On the same day the plaintiffs cabled to the defendants their acceptance of the said offer. By their cable dated 7th March, 1949 the defendants offered to sell to the plaintiffs further 30 tons of Alleppey Turmeric Fingers at 22 cents per lb. C. & F. New York less 2 per cent March/April shipment. On the same day the plaintiffs cabled to the defendants their acceptance of the said offer. By their letter dated 8th March 1949 the defendants confirmed the said contract arrived at between the parties on 3rd March, 1949. By their letter dated 9th March, 1949 the plaintiffs confirmed both the said contracts and further intimated to the defendants that they had opened the necessary letters of credit. The plaintiffs forwarded to the defendants in respect of the said transactions two contracts in duplicate on the standard form issued by the said American Spice Trade Association with a request to the defendants to return to the plaintiffs a copy of each of them 38 after signing the same. The defendants, however, failed and neglected to do so. The plaintiffs crave leave to refer to and rely upon the cables and letters above referred to and standard form of contract issued by the said American Spice Trade Association, when produced." "3. The plaintiff say that the standard form of contract issued by the said American Spice Trade Association is known in the spice and herb market as "The American Spice Trade Association Contract" and contains terms and conditions on which the defendants had agreed to do business with the plaintiff as aforesaid. The plaintiff further say that the said standard form of contract is in common use with firms dealing in spices and herbs both in the New York market and elsewhere. The plaintiff further say that the defendants have been dealing in spices and herbs with American firms in the United States and also on the United States market and had previously entered into several American Spice Trade Association Contracts and were well aware ofand knew what the terms and conditions of the said American Spice Trade Association Contract were. One of the said terms was as follows : "All questions and controversies and all claims arising under this contract shall be submitted to and settled by Arbitration under the Rules of the American Spice Trade Association printed on the reverse side hereof. This contract is made as of in New York. " Then the plaint proceeds to give how the dispute should be referred to arbitration and how arbitrators and umpire should be appointed by the parties. From the said allega tions in the plaint it is clear that the plaintiffs have precisely and definitely given the particulars of the correspondence that passed between the parties on the basis of which they claimed the preliminary contract containing an agreement to submit their dispute to arbitration and the subsequent contracts in respect of the goods made and concluded between the parties. The defendants, adverting to the said allegations dealt with them in paragraphs 7 and 8 of their written state 39 ment. The said paragraphs read : "7. With reference to paragraph 2 of the plaint the defendants deny that they at any time entered into any contract with the plaintiff as alleged in the said paragraph or otherwise. The defendants deny that they at any time signed or were bound to sign a stan dard form of contract issued by the American Spice Trade Association. With reference to paragraph 3 of the plaint, the defendants deny that they at any time agreed to do any business or enter into any contract with the plaintiffs as alleged therein or otherwise. The defendants say that they did not at any time sign nor were they bound to sign the said American Spice Trade Association Contract and that they are not therefore bound by or concerned with the terms and/or conditions of the said contract. The defendants deny the rest of the statements contained in the said paragraph. " It will be seen from the said paragraphs that though the defendants denied that at any time they entered into a contract with the plaintiffs as alleged in the plaint or otherwise, they have not denied that the letters particularized in the plaint passed between the parties. Learned SolicitorGeneral relied upon the expression "as alleged" in paragraphs 7 and 8 of the written statement and contended that the said words implied necessarily that the defendants denied the passing of the correspondence. No such necessary implication can arise from the use of the said expression. That expression is consistent with the admission bv the defendants of the passing of the letters mentioned in paragraphs 2 and 3 of the plaint, coupled with a denial that such correspondence does not constitute a binding contract between them. Indeed, rr. 3 and 4 of 0. VIII are aimed at such general allegations in written statements. Rule 3 demands that each allegation of fact made in the plaint must specifically be denied and r. 4 emphasizes that such a denial shall be of the point of substance and shall not be vague. Here, in the plaint the contents of the letters dated September 7, 1948, September 13, 1948, March 8, 1949 and March 9, 1949 are given and it is specifically stated that they passed between the parties. Nowhere in the written statement there is a denial as regards the 40 passing of the letters or the contents of those letters. The general and vague allegations in the written statement cannot possibly be construed, expressly or by necessary implication, as a denial of the specific allegations in the plaint in regard to the said correspondence. On this aspect of the case, to some extent, there is unanimity between Mody J., and the learned Judges of the Division Bench of the Bombay High Court. Adverting to para 7 of the written statement, Mody, J., says "In my opinion, paragraph 7 of the written statement does not at all, directly or indirectly, specifically or by implication, deal with any of the said three statements of facts. A denial of a contract is not a denial of the receipt or of the contents of the said letter dated 7th September 1948 or the writing of the letter dated 13th September 1948. The defendants can conceivably admit the said three statements of fact but still deny that any contract resulted thereby. Therefore the said three statements of facts must be deemed to have been admitted. " Dealing with para 8 of the written statement, the learned judge says that these two statements of facts have not been pleaded to in the written statement and must, therefore, be deemed to have been admitted. But having gone so far, the learned Judge rules against their admissibility on the ground that there are no allegations that the defendants wrote the letters attributed to them and that there is no description of the contents of the letters. This, if I may say so, is rather hypercritical. The allegations in para 2 of the plaint in express terms say that the letters emanated from the defendants and also give their gist. The Division Bench of the High Court in the context of the said denials said: "Therefore, there is no denial of this correspondence. Indeed there could not be, because before the Written Statement was filed inspection was given by the plaintiffs of this correspondence and again the conscientious draftsman of the written statement could not possibly have controverted the statement that these letters passed between the parties. Therefore, in our opinion, these two letters of the 7th September, 1948 and 13th September, 1948 are admissible in evidence. 41 and we will formally admit them in evidence. " Then they proceeded to state : "Now, we read this denial to mean not a denial of the exchange of letters and telegrams, not a denial of the correctness of the copies of the documents of which the Defendants have taken inspection, but a submission in law that no contract emerges from the exchange of these letters and telegrams. For the reasons already given by me, I entirely agree with the view expressed by the Division Bench on the interpreta tion of the pleadings and hold that the said letters have been rightly admitted in evidence. If the said letters can go in as evidence, the first condition, namely, the factum of submission has been proved in this case. As regards the question whether the arbitration was conducted in accordance with the submission, the pleadings again afford the answer. In paras 3, 4 and 5 of the plaint it is specifically stated that the parties agreed to the arbitration clause and to the procedure prescribed for carrying out the arbitration. It is stated therein that pursuant to r. 5 and clauses B, C and E of r. 15 of the Rules of the said American Spice Trade Association, arbitrators and umpire were appointed, that the arbitrators and the umpire subscribed to their oaths of office and proceeded to hear the matter on 27th June, 1949, and 12th July, 1949, that the defendants, though duly notified of the hearings, did not attend the same, that on 12th July, 1949, the said arbitrators and umpire duly made, signed, acknowledged and published their awards and thereby they unanimously held that the defendants had committed a breach of the said two contracts and awarded that the defendants should pay to the plaintiffs specific amounts in respect of the said contracts as and by way of damages. Paragraph 7 of the plaint describes how the defendants did not meet the demand, how proceedings were taken before the Supreme Court of the State of New York, how notice of the said proceedings was duly served on the defendants and how the said Court pronounced its judgment confirming the said awards. Paragraphs 9, 10, 11 and 12 of the written statement deal with the said allegations. In the said paragraphs the defendants do not deny the factum of the appointment of arbitrators and the procedure followed by 4 2 S C India/64 42 them in making the awards. They are content to say that they are not bound by or concerned with the appointment of the arbitrators by the plaintiffs as alleged therein or other wise, that they are not bound by or concerned with any of the statements contained in para 7 of the plaint and that the awards passed by the arbitrators and the umpire are not binding on them. As regards the allegations in para 7 they only say that the arbitrators acted without jurisdiction and that the judgment of the Supreme Court of the State of New York made thereon is not binding on them. It will be seen from the said denials that neither the appointment of the arbitrators nor the steps taken by them are denied. If so it must be held, on the same reasoning which I have adopted in the context of the allegations pertaining to submission, that in the absence of specific denials it must be held that it is admitted that the awards were made in strict compliance with the terms of submission. Now coming to the third condition, namely, the proof of the fact that the awards are valid according to the law of the country where they were made, the same equivocal attitude is adopted by the defendants in their written statement. In para 8 of the plaint there is the following specific allegation in that regard : ". . the said arbitration having been duly held and the said awards having been duly made, signed, acknowledged and published according to the said rules and the laws of the State of New York, and the defendants not having taken steps to have the said awards or either of them set aside or modified., as provided in the said rules and by the laws of the State of New York, the said awards are binding on the defendants and the defendants are now precluded and estopped from disputing the same. " Here there is a definite averment that the awards were made according to the laws of the State of New York. In the written statement of the defendants, though they generally deny that the awards are binding on them, there is no specific denial that the awards are not in accordance with the laws of the State of New York. Applying the same rules of construction which I invoked in the case of the other averments in the plaint, I must also hold that the 43 defendants must be held to have admitted the fact that the awards were made in accordance with the laws of the State of New York. There is one important circumstance which must be borne in mind in construing the terms of the written statement. It is not disputed that the plaintiffs have filed affidavits disclosing the copies of the documents mentioned in the plaint. The defendants ' Advocate bad inspection of the said documents before he filed his written statement. It is not disputed that the defendants received a copy of the petition filed by the plaintiffs in the Supreme Court of the State of New York, along with a copy of the awards and the order of the Court to show cause. With the knowledge of the contents of the copies of the letters and the contents of the awards, the Advocate for the defendants rightly and properly was not in a position to deny the factual aspect of the passing of the letters and the making of the awards and the delivery of the judgment by the Supreme Court of the State of New York confirming the said awards. That is why the written statement contained vague and general denials only speci fically raising disputes on legal questions, and designedly giving equivocal answers to factual aspects. It is said that no inference of tacit acceptance on the part of the defendants or their counsel can be drawn, for the defendants ' Advocate, after inspection of the documents, asked the plaintiffs ' Advocate to produce the originals, but the plaintiffs failed and neglected to do so. But this circumstance does not detract from the knowledge of the defendants and their Advocate of the existence of the said documents and their contents before the written statement was drafted. This circumstance gives a satisfactory explanation for the vagueness of the allegations in the written statement of the defendants. They were designedly made vague as the Advocate presumably could not bring himself to go the whole length of denying the facts. I, therefore, hold, on a fair and reasonable construction of the pleadings and written statement that the existence of the three conditions for enforcing the awards have been admitted by the defendants in their pleadings and that, therefore, they need not be independently proved. I would go further and hold that the said three con 44 ditions are also proved by exhibit X 9, The said exhibit is the record of proceeding of the Supreme Court of the State of New York relating to the arbitration between the plaintiffs and the respondents. That record contains the certificate issued by the Counsul General,and other papers relating to the proceedings including the order and judgment of the said Supreme Court. The Certificate reads thus : "THIS IS TO CERTIFY (a) that the annexed pro ceedings have been duly had in accordance with the laws of the State of New York. (b) that the annexed proceedings are duly certified by the officer having the legal custody of the originals thereof at the time such annexed proceedings were issued by the Supreme Court of New York. (c) that the several persons named in the annexed proceedings as holding the respective offices stated therein in respect of each of them did in fact bold such respective office at the time the same took place. The Consulate General of India assumes no responsibility for the contents of this document. Dated: New York, N.Y. June 18th, 1957. Sd./ M. Gopalcharan CONSUL GENERAL Seal of CONSULATE GENERAL OF INDIA, New York, N.Y. The order and judgment of the Supreme Court of New York dated March 21, 1950, give in detail the filing of the application by the respondents for an order confirming the two awards ; the consideration given to the said application by the Court ; the Court 's satisfaction, after perusing the awards and the connected papers, that the said proceedings were in all respects regular; and the terms of the order made on the said application. The decretal portion of the order confirms the awards. The judgment is signed by Archibald R. Watgon, Clerk, and certified both by the clerk and the Clerk of the Supreme court of New York County. If the judgment goes into evidence, the, three conditions are satisfied, namely, that there was 45 a submission, that the arbitrators gave the awards in terms of the submission and that a judgment was made on those awards on the ground that the awards were made in accordance with law. But it is argued by the learned Solicitor General that the said judgment has not been proved in the manner prescribed by the Indian Evidence Act. The relevant sections of the Evidence Act may now be read : Section 74 : The following documents are public documents : (1) documents forming the acts, or records of acts (iii)of public officers, legislative, judicial and executive of any part of India or of the Commonwealth or of a foreign country. Section 78: The following public documents may be proved as follows (6) Public documents of any other class in a foreign country, By the original, or by a copy certified by the legal keeper, thereof with a certificate under the seal of a notary public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. " Section 86 : The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of India or of Her Majesty 's Dominions is genuine and accurate, if the document purports to be certified in any manner Which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records. . . " It is not disputed that the copy of the Judgment is certi fied by the legal keeper of the original within the meaning of section 78(6) of the Evidence Act; nor is it contended that there is no certificate under the seal of an Indian Consul certifying that the copy is certified by the officer having 46 the legal custody of the original. But what is contended is that under section 78(6) of the Evidence Act three conditions must be complied with before the judgment can be admitted in evidence and the third condition, namely, proof of character of the document according to the law of the foreign country, is not forthcoming in this case. A perusal of section 78(6) of the Evidence Act makes it clear that apart from the two certificates one by the legal keeper of the original documents and the other by the Consul General there shall also be proof of the character of the document according to the law of the foreign country before the document is admitted. It is a condition precedent. The short question, therefore, is whether there is such proof in this case. Proof can be by direct or circumstantial evidence. Proof can also be given by placing before the Court facts giving rise to presumptions, rebuttable or irrebuttable. Section 86 of the Evidence Act lays down that a Court may presume the genuineness and accuracy of any document purporting to be a certified copy of any judicial record of any foreign country, if such a copy is duly certified in the manner and according to the rules in use in the country for certification of copies of judicial records. To give rise to this presumption it is not necessary that the judgment of the foreign country should have already been admitted in evidence. While section 78(6) of the Evidence Act lays down three conditions for admitting the judgment in evidence, the admission of the judicial record is not a condition precedent for drawing the requisite presumption under section 86 of the Evidence Act. That presumption may be drawn before the said record is admitted. The document may be looked into for the purpose of ascertaining whether there is the requisite certificate, viz., a certificate issued by any representative of the Central Government in the concerned country to the effect that the said document was certified in the manner commonly in use in that country for the certification of copies of judicial record. If the distinction between the certificate and the judgment is borne in mind, the fallacy of the argument becomes apparent. The requisite certificate makes the document admissible and not viace versa. If there was such a certificate forthcoming in this case there is such a certificate the document may be presumed to be genuine and accurate. If it is presumed 47 to be genuine and accurate, it shows its character, viz., that it is a genuine judgment made by the Supreme Court of New York. This is a fit case for raising the said presump tion and with the aid of this presumption the third con dition is also complied with i.e., it is a judgment of the Supreme Court of the State of New York made in accordance with law. As the three conditions laid down in section 78(6) of the Evidence Act are fulfilled, the document can legitimately be admitted in evidence, and if it is admitted, the document, by its own force, establishes that the aforesaid three conditions for the enforceability of the awards have been fulfilled. Now I come to the second contention. This deals with the jurisdiction of the Bombay High Court on its original side to entertain the suit. Clause 12 of the Letters Patent for Bombay enables a party to file a suit with the leave of the Court, if the cause of action arises in part within the local limits of the ordinary original Jurisdiction of the said High Court. The cause of action in the plaint is given as follows : ". . the terms of business were accepted by the defendants in Bombay and the proposal or acceptance of the said contracts by the defendants took place in Bombay. The defendants ' refusal to pay the said sum also took place in Bombay. " On those allegations the leave of the High Court of Bombay was obtained and the suit was filed in the said Court. I have already pointed out that in the case of a claim based on an award, it is in effect a claim to enforce the award on the footing that the submission implied a contract to give effect to the award. I have also held that all the necessary documents relating to the preliminary as well as subsequent contracts are admitted in the written statement. The said documents clearly establish that the parties agreed that their disputes under the contracts should be submitted to arbitration in the manner prescribed by the rules of the American Spices Trade Association. Those contracts were concluded within thne local limits of the original jurisdiction of the Bombay High Court. It follows that a part of the cause of action accrued within the said limits and that as the leave of the High Court was obtained, the said High Court had jurisdiction to entertain the 48 claim. No other point is argued before us. In the result, I agree with the conclusions arrived at by the High Court. The appeal is dismissed with costs. MUDHOLKAR J. This is an appeal by a certificate granted by the High Court of Bombay from its judgment dated September 12, 1958 reversing that of Mody J., who, by his judgment had dismissed a suit instituted by the East India Trading Co., respondents before us, against the defendants Badat & Co., on the original side of the High Court for a sum of Rs. 92,884 4 10 with interest and costs on the basis of a judgment of the Supreme Court of New York affirming awards given by a domestic tribunal or alternatively on the awards themselves. The plaintiff company was incorporated in the State of New York and among other things, engages in the import of spices. The defendant company, was a partnership firm and at the relevant time was carrying on import and export business in Bombay. According to the plaintiffs, by two letters dated September 7, 1948, and September 13, 1948, the first written by the plaintiffs and the second by the defendants, the parties agreed to do business upon the terms of the American Spice Trade Association. One of the terms agreed between the parties was that the plaintiffs at the time of placing an order for the supply of spices with the defendants were to open a letter of credit to the extent of 95 per cent of the value of the commodity ordered to be supplied and the balance to be settled immediately after the goods were weighed and delivered. By their cable dated March 3, 1949, the defendants offered to sell to the plain tiffs 30 tons of Alleppey Turmeric Fingers at a certain rate, to be shipped in March/April. This offer was immediately accepted by the plaintiffs. A somewhat similar offer was again made by the defendants to the plaintiffs on March 7, 1949, which offer also was accepted by the plaintiffs. The plaintiffs claim to have forwarded to the defendants in respect of the said transactions two contracts in duplicate on the standard forms issued by the American Spice Trade Association with a request to the defendants to return to them a duly signed 49 from in respect of each of the transactions and their grievance is that the defendants failed to comply with the request. The plaintiffs further aver that though they opened letters of credit, the defendants committed a breach in respect of both the contracts by failing to supply turmeric. The plaintiffs have alleged in para 3 of the plaint that the defendants were well aware of and knew what the terms and conditions of the American Spice Trade Association were. One of the terms of the Association which they have set out is as follows: "All questions and controversies and all claims arising under this contract shall be submitted to and settled by Arbitration under the Rules of the American Spice Trade Association printed on the reverse side thereof. This contract is made as of in New York. " In pursuance of this term, the plaintiffs who had declared the defendants in default appointed one Edward B. Polak as their Arbitrator and on May 24, 1949, called upon the defendants to appoint an arbitrator on their behalf. They also informed the defendants that if they failed to do so, they, the plaintiffs, would request the Association to appoint an arbitrator on the defendants ' behalf. The defendants not having appointed any arbitrator on their behalf, the Association at the plaintiffs ' request appointed one Michael F. Corio to act as an arbitrator on the defendants ' behalf. This person informed the defendants of his appointment as Arbitrator and requested them to furnish him with all documents and information which might be necessary or useful in the matter of arbitration and further informed them that in the absence of such documents and information the Arbitrators will have to proceed with the arbitration upon the documents and information made available by the plaintiffs. The defendants did not reply to this communication. The Arbitrators before entering upon arbitration, selected one James F. Knight as Umpire and Chairman as required by the rules of the Association. Thereafter the Arbitrators and the Umpire entered upon arbitration and gave two awards, in the sum of $9,538.64 in respect of the first contract and in the sum of $9,209.36 in respect of the second 50 contract by way of damages. The plaintiffs thereupon drew a bill of exchange on the defendants at Bombay for $18,748 being the aggregate sum awarded by the two awards. According to them, though it was presented to the defendants several times in Bombay they "failed and neglected to accept or to pay the same." Then, according to the plaintiffs, they adopted proceedings in the Supreme Court of the State of New York to have the said awards confirmed and judgment entered thereon. Notices of the proceedings were said to have been served on the defendants and judgment confirming the said awards and ordering the defendants to pay $19,554.17, including interest and costs, was pronounced on April 13, 1950. The plaintiffs eventually instituted the suit out of which this appeal arises in the High Court of Bombay on January 14, 1954. According to the plaintiffs, the defendants have, by the terms of the contract voluntarily submitted themselves to the jurisdiction of the Supreme Court of New York and have agreed to the said Court, which was a Court having jurisdiction in that behalf, confirming the said awards and entering judgment thereon. Further, according to them, the parties had expressly agreed that judgment might be entered on any award that might be made in respect of any question, controversy or claim between the parties arising under or out of the said contracts in accordance with the practice of an Court having jurisdiction. Alternatively they have contended that if the Court held that the judgment was not a judgment of a foreign Court on which action would lie in the High Court the defendants having by the terms of the said contracts expressly agreed to have any dispute arising under the contracts settled by arbitration in New York under the rules of the Spice Trade Association and the arbitration upon which the awards arc founded having been duly made and published according to the rules and laws of the State of New York and further having become final are binding on the defendants, the defendants are bound to carry out the terms of the said awards and to pay to the plaintiffs the sums awarded under them. Thus the suit is substantially based on a foreign judgment and in the alternative on the two awards given by a domestic 51 tribunal functioning in New York. The defendants raised a number of pleas in defence. In the first place they said that they did not reside within the limits of the original jurisdiction of the High Court or carry on business therein and the High Court had no jurisdiction to entertain the suit. They further contended that no part of the cause of action had arisen in Bombay. It may be mentioned that the plaintiffs had sought for and obtained ex parte leave of the court under cl. 12 of the Letters Patent and the defendants submitted that the leave should be revoked. The next important contention of the defendants was that the Supreme Court of New York had no jurisdiction to pass the judgment and the order sought to be enforced. Further, according to them, the Arbitrators and the Umpire who gave the alleged awards on which the judgment of the Supreme Court was founded had no jurisdiction to make those awards. They raised a number of other pleas also and elaborate judgments have been delivered by Mody J. as well as by the appeal court consisting of Chagla C.J., and section T. Desai J., dealing with those contentions. Upon the view we take on the question of the enforceability of the awards in question in the manner sought in this case it is not necessary to advert to those pleadings. It was not disputed before us that the defendants had, at the date of suit, ceased to reside or carry on business within the limits of the original civil jurisdiction of the High Court of Bombay. The appeal court, while holding that the judgment of the Supreme Court of New York cannot be enforced against the defendants in a suit brought on the original side of the High Court took the view that the awards upon which the judgment is based can be enforced because they give rise to a cause of action and a part of that cause of action had arisen in Bombay. The reason why the judgment of the Supreme Court of New York could not be the foundation of the suit is, in the words of the learned Chief Justice, as follows : "The foreign judgment was passed in New York and the defendants did not reside and carry on business within jurisdiction at the relevant date. The only way that jurisdiction could possibly have been attracted was by an averment that there was an obligation 52 under the judgment on the part of the defendants to pay the amount in Bombay or that the defendants had undertaken the obligation to pay the judgment amount in Bombay. There is no such averment in the Plaint and in the absence of any such averment if the Plaint had been based only on the foreign judgment then we might have agreed with the learned Judge and held that the Court had no jurisdiction. " No doubt, the learned Chief Justice has further said that it was unnecessary to decide the matter finally because in his view the plaintiffs were entitled to the relief claimed on the basis of the awards. We may point out that Mr. Setalvad, who appeared before us for the plaintiffs, did not challenge the finding of the appeal court on this point and did not seek to argue that the judgment of the Supreme Court could furnish a cause of action to the plaintiffs in respect of the present suit. We entertain no doubt as to the correctness of the view that the plaintiffs are not entitled to enforce the judgment of the Supreme Court against the defendants by a suit instituted on the original side of the High Court and therefore, we should ordinarily have let the matter rest there. Our reasons for agreeing with the High Court 's conclusion on the point are, however, different and, therefore, it is necessary for us to state them. Before we do so, it would be desirable to examine the position regarding the enforcement of foreign awards and foreign judgments based upon awards. Under the Arbitration Protocol and Convention Act, 1937 (VI of 1937), certain commercial awards made in foreign countries are enforceable in India as if they were made on reference to arbitration in India. The provisions of this Act, however, apply only to countries which are parties to the Protocol set forth in the First Schedule to the Act or to awards between persons of whom one is subject to the jurisdiction of some one of such powers as the Central Government being satisfied that the reciprocal provisions have been made, may, by notification declare to be parties to the Convention, setforth in the Second Schedule to the Act. It is common ground that these provisions are not applicable to the awards in question. Apart from the provisions 53 of the aforesaid statute, foreign awards and foreign judg ments based upon awards are enforceable in India on the same grounds and in the same circumstances in which they are enforceable in England under the common law on grounds of justice, equity and good conscience. We may add that in cases arising on the original side of the High Court of Bombay, English common law is applicable "has nearly as the circumstances of the place and the inhabitants admit" by virtue of cl. 19 of the Letters Patent read with cl. XLI of the Charter of the Bombay High Court. The common law on the subject is crystallised thus as rule 198 in Dicey 's Conflict of Laws, 7th edn. at p. 1.056. "Rule 198(1) : A foreign arbitration award which has been rendered enforceable by a judgment in the country where it was given may be enforced by an action as a foreign judgment. (2) A foreign arbitration award which has not been rendered enforceable by a judgment in the country where it was given may be enforced by an action at the discretion of the court if the award is, (a) in accordance with the terms of the submission agreement; and (b) valid according to the law governing the arbitration proceedings; and (c) (semble) final according to the law governing the submission agreement. " The position as summarised in Russel On Arbitration, 16th edn. is set out thus at p. 282 : "An award made by foreign arbitrators, which requires an enforcement order to render it enforceable by the local law, is not a judgment of a foreign tribunal which can be enforced by action in English courts. But an award which is complete and could be enforced in the country where it was made is enforceable in England at common law, quite apart from any rights given by Part II of the Act. (Arbitration Act, 1950 14 Geo. 6, c. 27). " Dealing with actions upon foreign awards at common law, it is stated further at p. 283 thus : "To succeed in such an action the plaintiff must 54 prove : (1) That there was an arbitration agreement (2) That the arbitration was conducted in accordance with that agreement ; and (3) That the award was made pursuant to the provisions of the agreement and is valid according to the lex fori of the place where the arbitration was carried out and where the ward was made. If the award is validly made in consequence of a valid arbitration agreement, a sum found due by the award and unpaid may be sued for in an action upon the agreement." Thus commercial arbitration awards, though based on a contract to arbitrate are not contracts and although they are decisions they are not judgments. Even though that is so, it has been held in several cases in England that even where an award has not been reduced to a judgment in a foreign country it can be enforced in England provided, of course, the award answers mutatis mutandis the tests for determining the enforceability of foreign judgments. Thus, the foreign arbitration tribunal must have acted upon a valid submission within the limits of jurisdiction conferred by the submission, and the award must be valid and final. (see Dicey 's Private International Law, p. 1057). Then it is stated there: "Others believe that enforcement in England must depend upon the nature of the award in the country where it was given. Thus, if the award must be, and has been, reduced to a judgment abroad, the judgment and not the award must be enforced in England. If the award gives rise to a claim in contract abroad, it must be enforced as a contract in England. However, as will be shown, this is not the view generally adopted by the courts, for the award is treated as a contract in England, no matter whether foreign law so regards it or not. Still others assert that the enforcement of an award in England is based not on the award, but on the contractual agreement to submit to arbitration all differences arising out of the original contract, on the ground that the submission to arbitration itself implies a contractual 55 agreement to abide by the award, thereby extinguishing the original cause of action." After stating this, the learned author proceeds to say "It is submitted that no one short formula is satisfactory and that the enforcement of a foreign award involves a complex of questions which must be treated separately. " He has then dealt with various decisions in England and also the opinions of certain writers. The conclusions stated in so far as they are relevant to this case are 1. In all enforcement proceedings in England the plaintiff must first obtain an enforceable title in England i.e., he must either apply for leave to enforce the award or must bring an action on the award. In an enforcement proceeding in England the action on the award must take the form of a claim in contract. This rule is based upon the assumption that the agreement to perform the award is implied in the submission and that the submission is the contract on which the action is based. In order to be enforceable in England, the foreign award need not first be pronounced enforceable in the country of its origin. (see Union National des Cooperatives Agricoles de Cereales vs Robert Catterall & Co. Ltd.(1) though there the award was being enforced under the Arbitration Act, 1950). If, however, the foreign award is followed by judicial proceedings in the foreign country resulting in a judgment of the foreign court which is not merely a formal order giving leave to enforce the award, enforcement proceedings in England must be brought on the foreign judgment or possibly on the original cause of action but probably not on the award. If the foreign judgment has the character of a formal order giving leave to enforce the award it is doubtful whether the foreign award or the foreign order is to be enforced in England. If the distinction between foreign judgments on the award and foreign 56 formal enforcement orders can be maintained in practice, then, it is believed that the foreign award and not the foreign order, will be enforced in England, if the enforcement order is purely formal. For the purpose of enforcing a foreign award plaintiff must prove only (1) submission, (2) compliance with the submission in the conduct of an arbitration and (3) the validity of the award according to the law of the country where it was made. This is also laid down in Norske Atlas Insurance Co. Ltd., vs London General Insurance Co., Ltd.,(1) and according to the learned author this decision correctly indicates the conditions which must be fulfilled if a foreign award is to be enforced in England. We may, however, mention that relying upon Merrifield, Ziegler & Co., vs Liverpool Cotton Association Ltd. ,(2) the learned Solicitor General contended that an award should also be one which is enforceable in the country in which it was rendered without the aid of an enforcement order or a judgment. There, a German award was sought to be executed in England. Eve J., who decided the case, found that under the German law the award had the effect of a final judgment pronounced by a court of law. But it could not be enforced by execution unless an enforcement order was made by the Court and further no enforcement order will be made if any grounds exist for setting the award aside. In the course of his judgment the learned judge observed : "It is not even as though the award were enforceable unless the court stays its operation ; the contrary is really the case, and for all practical purposes it is stillborn until vitality is infused into it by the court. It is then, for the first time, endowed with one, at least, of the essential characteristics of a judgment the right to enforce obedience to it." Dicey has pointed out that this is the only case where such a view has been taken and that it was not even referred to in the Norske 's case(1). Nor was it referred to (1) (2) in the Union National case(1). There, a Danish award, though not enforceable in Denmark in the absence of an ' enforcement order was held by the court of Appeal to be enforceable under the Arbitration Act of 1950 on the ground that it had become final and that under the Danish law only formal objections could be taken to such an award in the proceedings for obtaining an enforcement order. It will thus be seen that there is a conflict of opinion on a number of points concerning the enforcement of foreign awards or judgments, based upon foreign awards. However, certain propositions appear to be clear. One is that where the award is followed by a judgment in a proceeding which is not merely formal but which permits of objections being taken to the validity of the award by the party against whom judgment is sought, the judgment will be enforceable in England. Even in that case, however, the plaintiff will have the right to sue on the original cause of action. The second principle is that even a foreign award will be enforced in England provided it satisfies mutatis mutandis the tests applicable for the enforcement of foreign judgments on the ground that it creates a contractual obligation arising out of submission to arbitration. On two matters connected with this there is difference of opinion. One is whether an award which is followed by a judgment can be enforced as an award in England or whether the judgment alone can be enforced. The other is whether an award which it not enforceable in the country in which it was made without obtaining an enforcement order or a judgment can be enforced in England or whether in such a case the only remedy is to sue on the original cause of action. The third principle is that a foreign judgment or a foreign award may be sued upon in England as giving good cause of action provided certain conditions arc fulfilled one of which is that it has become final. Bearing in mind these principles let us consider whether the judgment of the Supreme Court could be enforced against the defendants by instituting a suit on (1) 5 2 section C. India/64 58 the original side of the High Court. The appeal court has, as already stated taken the view that the original cause of action having arisen wholly or in part within the limits of the original Jurisdiction of the High Court, the suit was maintainable. If the plaintiffs were suing upon the original cause of action, there would have been no difficulty and the High Court could have granted leave under cl. 12 to the plaintiffs to institute the suit. But here, we are concerned not with the original cause of action but with the judgment of the New York Supreme Court and the award. The judgment furnishes an independent cause of action. The question would be whether the cause of action furnished by it arose within the limits of the original jurisdiction of the High Court. The judgment was rendered in New York and, therefore, the cause of action furnished by it arose at that place and not anywhere else. This cause of action is really independent of the cause of action afforded by the contract and, therefore, if advantage was sought to be taken of it, the suit would not lie at Bombay. This point does not appear to have come up for a direct decision in any case. We may, however, refer to the decision in East India Trading Co., vs Carmel Exporters & Importers Ltd.(1) There, an action was brought in England to enforce a foreign judgment awarding damages for breach of contract and the question for consideration was the relevant date for converting the amount of damages into sterling. After considering the relevant decisions on the point Sellers J., held that the relevant date would be the date of the foreign judgment. The ground given by him was that the plaintiff 's cause of action was the foreign judgment and it is that judgment which creates the debt which was enforceable by action in England. The principle underlying this case should also apply to the present one because in both cases the cause of action is founded on foreign judgments, though in the case before us it is founded alternatively, upon foreign awards also. The only difference is that while in. our case the question is where it arose, in the case cited the question was as to (1) 59 when it arose. The reason why a foreign judgment should be deemed to create a new obligation has not been stated in this case. But it is to be found in the judgment of Blackburn J. in Schibsby vs Westenholz(1) where at p. 159 he has stated : "The true principle on which the judgments of foreign tribunals are enforced in England is that stated by Parke B. in Russel vs Smyth(1), and again repeated by him in Williams vs Jones(1) that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce. . As James L. J., has said in Re Davidson 's Settlement Trusts(4) "It would be impossible to carry on the business of the world if courts refused to act upon what has been done by other courts of competent jurisdiction. " Schmitthoff in The English Conflict of Laws, 3rd edn. has stated at p. 459 : "The English courts recognise that a foreign judgment gives rise to private rights which, on principle, should be protected by them. Consequently, when referring to the recognition of a foreign judgment, what is actually meant is the recognition of the pri vate right that is created by the judgment and not the enforcement of a foreign judicial act of State. In the words of Professor Read(5) 'The true basis upon which the Anglo Dominion authorities. . place the recognition of a foreign judgment is that it proves the fact that a vested right has been created through the judicial process by the law of a foreign law district. . The view that the re cognition of a foreign judgment in the English juris (1) (2) ; (3)(1845) ; (4 ) (1873) L.R./E. & 383, 386, (5) "Recognition and enforcement of foreign judgments (1938)" by Prof. Read. Quoted by Schmitthoff in "The English Conflic; of Laws" 459 60 diction is based on the assumption that the foreign, judgment creates a new legal Obligation is firmly established by numerous decisions. " No divergent views have been expressed upon this question. No doubt, the English doctrine of merger has been consistently held in England not to apply to a foreign judgment with the result that despite the fact that a plain tiff has obtained a foreign judgment he may never the less sue in an English court upon the original cause of action instead upon the judgment. When he sues upon the original cause of action, no doubt, the court within whose 'Jurisdiction the cause of action arose would be entitled to entertain the suit. But, if on the other hand, he chooses to sue upon the judgment, he cannot found jurisdiction for the institution of the suit on the basis of the original cause of action because once he chooses to rest himself on the judgment obtained by him in a foreign court, the original cause of action will have no relevance whatsoever even though it may not have merged in that judgment. Since the judgment with which we are concerned was pronounced in New York the cause of action for a suit based thereon must be said to have arisen at that place. Since that is so, it follows that the cause of action in so far as it rests on the judgment, did not arise within the limits of the original jurisdiction of the High Court of Bombay and the suit based upon that judgment must be held to be beyond the jurisdiction of the Court. The alternative claim of the plaintiffs is for the en forcement of the awards themselves and it is this which the Appeal Court has held to be one which can validly form the basis of the present suit. The learned Solicitor General contended that the awards having merged in the judgment cannot afford a basis to the present suit. It is true that it is pointed out in Dicey 's Conflict of Laws that some writers have expressed the view that where a foreign award must be, and has been, reduced to a judgment the judgment and not the award must be enforced in England. But it has also been pointed out that this is not the view generally adopted by the courts in the United States of America as would appear from the following passage from Lorenzen 's "Cases on Conflict of Laws" 4th edn. : "As a judgment of a foreign country is held not to merge the original cause of action, it would follow that an action might be brought upon the award, notwithstanding the fact that it has been converted into a judgment abroad." This question was left open by the Privy Council in L. Oppenheim & Co., vs Mahomed Haneef(1) as it had not been raised in that case. The recognition given to a foreign judgment by the English Courts is, as pointed 'out by Schmitthoff at p. 459 of the English Conflict of Laws, not based upon the doctrine of merger. For, this doctrine does not apply to judgments of courts which are not courts of record in the English sense. It may be that founded as the American legal system is on the common law of England the New York Supreme Court would be a court of record in the English sense and, therefore, the doctrine of merger could be said to apply to a judgment recorded by it. However, as no contention was raised before us that the Supreme Court of New York was a court of record, we would leave the matter there. Just as a foreign judgment affords a fresh cause of action upon which a suit can be brought in an English court, so is the case with regard to a foreign award. Thus, in Bremer Oeltransport GMBH vs Drewey(2) it was held that a foreign award furnishes a new cause of action based on the agreements between the parties to perform the award. This view has been accepted in Halsbury 's Laws of England Vol. II, p. 45. In that case it was contended for the respondents that in so far as the submission is a contract whereby the parties to it impliedly undertake to abide by and carry out the award of the arbitrators, the enforcement of the award would be the enforcement of a contract made within jurisdiction (the contract having been entered into in London while the award thereunder made at Hamburg in Germany). On the other hand it was contended for the appellant that the award having been made in Hamburg the action for its enforcement in England would not be an action for the enforcement of a contract made in England. Rejecting this contention Slesser (1) I.L.R. (2) 62 L.J., after considering the authorities on the subject observed at p 760 : "So far it would appear clear that in the opinion both of common law and equity judges the award is to be regarded as merely the working out of a term of the original agreement of submission. . and then referred to the following observations of James L.J., in Llanelly Ry. and Dock Co., vs London and North Western Ry. Co.,(1): "It would be difficult to say that the real question between the parties could be determined by the arbitrator under that clause ; because, if the plaintiffs are right in their contention, they have determined that part of the agreement as well as everything else:" Now, when a plaintiff sues upon a foreign award what he in fact does is to ask the court to pass a judgment in his favour for the amount stated in the award only after proving five facts : (1) that there was a contract between the parties where under disputes between them could be referred to arbitration to a tribunal in a foreign country,; (2) that the award is in accordance with the terms of the agreements; (3) that the award is valid according to the law governing arbitration proceedings obtaining in the country where the award was made ; (4) that it was final according to the law of. that country; and (5) that it was a subsisting award at the date of suit. A. view has been expressed in some English cases that an award must also be enforceable in the country in which is was made before a suit call be brought, in England on its basis. But upon the view we are taking it is not necessary to decide this point. Now, when a suit is brought by a plaintiff on the basis of an award it is not necessary for him to prove that the amount claimed was actually payable to him in respect of the dispute nor is it open to the defendants to challenge the validity of such an award on grounds like those which are available in India under section 30 of the Arbitration Act. A very limited challenge to the claim based (1) , 948. 63 on the award is permissible to the defendants and that is one of the reasons why it is important to ascertain whether the award has in fact attained finality in the country in which it was made. We will assume that the plaintiffs have satisfactorily established the first three of the five conditions which we have set out above. The question then is whether the fourth and the fifth conditions have been satisfied. As to when an award can be regarded as final has been considered recently in the Union Nationale case(1). The facts of that case are succinctly summarised in the head note and we can do no better than reproduce its relevant portion: "By an agreement in French made in Paris, dated August 31, 1956, the appellants agreed to sell to the respondents a quantity of wheat seed. The agreement contained an arbitration clause, the English translation of which was: 'All differences arising out of the present contract will be judged by the Arbitration Chamber of Copenhagen which will settle without appeal with the powers of an amicable arbitrator. ' Differences having arisen between the parties they were referred pursuant to the arbitration clause to the Copenhagen Chamber of Arbitration. Under the rules regulating the procedure of the arbitration chamber, awards are made by a committee of the chamber. Regulation 14 of the rules provides that : ,awards made by the Committee shall be final. An award can only be appealed against to the appeal court attached to the committee. If the presidency decides that the appeal can 't be made the award made by the judgement and arbitration committee shall be final. By an order of October 6, 1958, the committee awarded to the respondents the sum of $183,000. The presidency of the arbitration committee on November 25, 1958 refused the appellants ' application for leave to appeal and notified them that the award of October 6, 1958 was final. The award could not be en forced in Denmark without an order of a Danish court. The respondents, by summons under section 36 and 26 of the Arbitration Act, 1950, which applies to arbitration awards made in Denmark, applied for leave to en (1) , 64 force that award. The appellant claimed that the award was a foreign award and had not become final. in the country in which it was made. " The contention raised on behalf of the appellants was that the award had not become final in the country in which it was made because it was not enforceable in that country. The Court of Appeal referred to regulation 14 which gives finality to an award made in accordance with the rules re gulating the procedure of the arbitration chamber and ac cepted the opinion of a qualified Danish lawyer that accord ing to the Danish law the award had become final, though it could not be enforced in Denmark without obtaining a judgment from a Danish Court and that during the pro ceedings before such court it would be open to the defendant to complain that the award suffered from formal defects but nothing else. Thus, in this case the Court of Appeal has drawn a distinction between 'finality ' and enforceability of an award and held that where under the laws of the country in which an award has been made, it is no longer open to challenge it on merits it must be regarded as final even though in the form in which it stands it may not be enforceable there. Rule 15, cl. (E) of the American Spice Trade Association whereunder the awards in the plaintiff 's favour were made runs thus "The award of such arbitrators and umpire or sole arbitrator shall be final and binding on both parties unless within three business days after receipt of the award, an appeal with a fee $75 be lodged with the Secretary of the Association by either disputant. Settlements under an arbitration award or awards of the Arbitration Committee shall be made within 10 days from the date of such award, and if not so settled, judgment may be entered therein in accordance with. the practice of any Court having jurisdiction. " One point of distinction between the Danish rule and rule 15E of the American Rules is that the latter requires the obtaining of a judgment for enforcing it in case the claim arising out of the award is not settled. No doubt, the American rule also says that the award shall become final and binding on the parties but whether it takes away the jurisdiction of the courts to go behind its finality will have to be ascertained by reference to the laws of New York 65 State. For, that rule is no more than a term of the con tract between the parties and must be subject to the laws of the State. It would be desirable at this stage to compare foreign judgment with foreign awards and bear in mind the difference between them. No doubt, both of them create new obligations. The judgment of a foreign sovereign is a com mand of that sovereign which has to be obeyed within the territorial limits of that sovereign 's jurisdiction. On the principles of comity it is, therefore, accorded international recognition provided it fulfills certain basic requirements. A foreign award, on the other hand, which is founded on a contract of the parties and is not given the status of a judgment in the country in which it is made, cannot claim the same international status as the act of a foreign sovereign. As pointed out by Schmitthoff on the English Conflict of laws, at p. 489 : "It follows that unless the plaintiff can satisfy the English court that the award is treated, in the country where it was made, like a judgment of the court he should sue on the original cause of action, but even in that case he should plead the award because it might in appropriate cases, be regarded by the English courts as conclusive between the parties. " These observations would perhaps now stand slightly modified by the view taken by the Court of Appeal in the Union Nationale case(1) in the sense that even an award which has not obtained the status of a judgment in the country in which it was rendered but which possesses an essential attribute of a judgment, that is, finality, it could be sued upon in another country. Bearing in mind these principles we must consider what are the requirements of the laws of New York State for giving an award finality. In Appendix I to Sturges ' Cases on Arbitration Law, the New York Arbitration Law, article 84 of the New York Civil Practice Act, as in force on September 1, 1952, has been set out. Section 1461 which deals with confirmation of an award runs thus: "Motion to confirm award: At any time within one year after the award is made, as prescribed in the (1) 66 last section, any party to the controversy which was arbitrated may apply to the court having jurisdiction, as provided in section fourteen hundred fifty nine for an order confirming the award; and thereupon the court must grant such an order unless the award is vacated, modified or corrected, as prescribed in the next two sections or unless the award is unenforceable under the provisions of section fourteen hundred fifty eight. Notice of the motion must be served upon the adverse party or his attorney,, as prescribed by law for service of notice of a motion upon an attorney in an action in the same court. In the Supreme Court, the motion must be made within the judicial district embracing the country where the judgment is to be entered. " Then follows section 1462 which deals with a motion to vacate award; section 1462 a which deals with a motion to modify or correct an award; section 1463 which deals with 'notice of motion and stay '; section 1464 which deals with 'entry of judgment on award and costs '; section 1465 which deals with the judgment roll and section 1466 which deals with effect of a judgment and its enforcement. It is clear from section 1462 that in the motion to vacate an award a party to the arbitration can challenge the award on the following five grounds : "1. Whether the award was procured by corruption, fraud or other undue means. Where there was evident partiality or corruption in the arbitrators or either of them. Where arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehaviour by which the rights of any party have been prejudiced. Where the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted was not made. If there was no valid submission or contract, and the objection has been raised under the conditions set forth in section fourteen hundred fifty eight. " It will thus be seen that despite the finality spoken of by 67 Rule 15E, this section enables the defendants to apply for vacating the award on certain grounds and thus imperil the finality accorded to the award by his contract. It is only after the objections under section 1462 are disposed of that a judgment putting an end to all controversy, can be entered under section 1464 which reads thus: "Entry of judgment on award and costs: Upon the granting of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith, as upon a referee 's report in an action, except as is otherwise prescribed in this article. Costs of the application and of the proceedings subsequent thereto; not exceeding twenty five dollars and disbursements, may be awarded by the court in its discretion. If awarded, the amount thereof must be included in the judgment." After the judgment is pronounced a judgment roll is prepared and the judgment docketed as if it was rendered in an action. The effect of the judgment as enunciated in section 1466 is as follows: "Effect of judgment and enforcement: The judg ment so entered has the same force and effect, in all respects as and is ' subject to all the provisions of law relating to, a judgment in an action ; and it may be enforced as if it had been rendered in an action in the court in which it is entered. " From all these provisions it would be abundantly clear that the award has no finality till the entire procedure is gone through and that the award as such can never be enforced. What is enforceable is the judgment. There is no provision in the law providing for taking proceedings for the confirmation of an award in which all objections to the award could be made except section 1461. The proceedings taken thereunder must, however, culminate in a judgment. In this respect the procedure under the law of the New York State is quite different from that under the Arbitration law of Denmark. Apparently, that is why the plaintiffs, after ob taining the awards, went up to the Supreme Court of New York for obtaining a judgment confirming the awards. No doubt, as a result of the judgment the decision of the arbitrators became unchallengable in the New York State and for all practical purposes in India as well but in the pro 68 cess the award made by them has given way to the judgment of the Supreme Court of New York. It is this judgment which can now furnish a cause of action to the plaintiffs and not the awards. No doubt, an award can furnish a fresh cause of action. But the award must be final. If the law of the country in which it was made gives finality to judgment based upon an award and not to the award itself, the award can furnish no cause of action for a suit in India. In these circumstances we hold that though the High Court of Bombay has jurisdiction to enforce a final award made in a foreign country in pursuance of a submission made within the limits of its original jurisdiction, the awards in question being not final, cannot furnish a valid cause of action for the suit. Upon this view we allow the appeal and dismiss the suit with costs throughout The normal rule as to costs must apply because the choice of forum made by the plaintiffs was deliberate and with the knowledge that they were taking a risk in not seeking out the defendants at the place where they reside or carry on business. By Court Following the opinion of the majority, the appeal is allowed with costs. Appeal allowed.

IN-Abs

The respondent company, which was incorporated in New York and carried on business in spices, brought a suit in the original side of the Bombay High Court against the appellant for recovery of a sum of Rs. 92,884 4 10 on the basis of a judgment of the Supreme Court of the State of New York affirming two awards obtained by it and also on the awards in the alternative. 20 The respondent was a partnership firm carrying on import and export business in Bombay. By two letters exchanged between them, the appellant and the respondent agreed to do business in turmeric fingers on the terms and conditions of the American Spice Trade Association, one of which was an arbitration clause which ran as follows : "All questions and controversies and all claims arising under this contract shall be submitted to and settled by Arbitration under the Rules of the American Spice Trade Asso ciation printed on the reverse side thereof. This contract is made as of in New York. " The appellant failed to supply turmeric in terms of the two contracts it entered into with the respondent. The respondent put the matter into arbitration in pursuance of the arbitration clause. The appellant took no part in it. The arbitrators gave the two awards in favour of the respondent for damages. The appellant did not pay. The respondent then took appropriate proceedings and got the awards confirmed by the judgment of the Supreme Court of the State of New York. The single judge of the Bombay High Court who tried the suit held that it was not maintainable either on the foreign judgment or on the awards and (dismissed the suit. The Division Bench on appeal held that the suit was maintainable on the awards, though not on the judgment, as part of the cause of action had arisen in Bombay and the relevant facts had been proved by the Public documents produced by the respondent and the admissions made by the appellant and decreed the suit. Held, (per Dayal and Mudholkar JJ.) The decision of the Single judge of the High Court that the suit was not maintainable on the foreign judgment must be affirmed but on other grounds. Apart from the provisions of the Arbitration Protocol and Conventions Act, 1937, foreign awards and foreign judgments based upon award arc enforceable in India on the same grounds and in the same circumstances in which they are enforceable in England under the Common Law on grounds of justice, equity and good conscience. On the original side of the Bombay High Court English Common Law is also applicable under cl. 19 of the Letters Patent read with cl. XLI of the Charter of that Court. If the award is followed by a judgment which is rendered in a proceeding in which the person against whom judgment is sought can take objections as to the validity of the award, the judgement will be enforceable in England. Even then the plaintiff will have the right to sue on the original course of action. Secondly, even a foreign award will be enforced only if it satisfies mutate 's mutandis the tests applicable to the enforcement of foreign judgments on the ground that it creates a contractual obligation arising out of submission to arbitration. But there is a difference of opinion in this connection on two matters, (1) whether an award which 21. is followed by a judgment can be enforced as an award or whether the judgment alone can be enforced, and (2) whether an award which is not enforceable in the country in which it was made without an enforcement order or a judgement, can be enforced or in such a case the only remedy is to sue on the original cause of action. Thirdly, both a foreign judgment and a foreign award may be sued upon provided certain conditions are fulfilled one of which is that it has become final. Although, therefore, the respondent could sue on the original cause of action in the Bombay High Court that cause of action must be distinguished from the one furnished by the 'judgment of the New York Supreme Court which must be held to have arisen in New York and not in Bombay and was a cause of action independent of the one afforded by the contracts and the Bombay High Court would, consequently, have no jurisdiction to try the suit based on that judgment. East India Trading Co. vs Carmel Exporters & Importers Ltd., , Schibsby vs Westenholz., and Re Davidson 's Settlement Trust, (1873) L. R. 15 Eq. 383, referred to. In a suit based on a foreign award the plaintiff has to prove,. (1) that the contract between the parties provided for arbitration by a tribunal in a foreign country, (2) that the award is in accordance with the agreement, (3) that the award is valid according to the law of that country (4) that it was final according to that law and, (5) that it was subsisting award at the date of the suit. The essential difference between a foreign judgement and 2 foreign award is that while the former is a command of the foreign, sovereign and the coming of nations accords international recognition to it if it fulfill certain basic requirements, the latter is founded on the contract between the parties and is not given the status of a judgment in the country in which it is made 'and cannot claim the same international status as the act of a foreign sovereign. Even though an award may not have obtained the status of judgment in the country in which it is made, if it possesses the essential attribute of a judgment, that is finality, it can be sued upon in in other country. Union Nationaledes Cooperatives Agricoles de Careales vs Robert Catterall & Co. Ltd. ' , referred to. But the finality that r. 15, cl. (E) of the American Spice Trade Association gives to the awards in question is no more than a matter of contract between the parties and must be subject to the law of the State. A reference to the laws of the State of New York makes it abundantly clear that the relevant provisions of the laws of the 22 State under which alone the awards could become final had not been complied with and they could not, therefore, provide a cause of action for the suit. For an award to furnish a fresh cause of action, it must be final. If the law of the country in which it was made gives finality to the judgment based on an award and not to the award itself, the award cannot furnish a cause of action in India. Although the High Court of Bombay has jurisdiction to enforce a final award made in a foreign country in pursuance of a submission made within the limits of its original jurisdiction, the awards in question not being final the suit must fail. Per Subba Rao J. The doctrine of non merger of the original cause of action with the foreign judgment pronounced upon it is a well established doctrine. Popat vs Damodar, , Oppenbeim and Co. vs Mohmed Haneef, Mad. 496 and Nil Ratan Mukhopahya vs Cooch Behar Loan Office, Ltd. I.L.R. , referred to. If the contract does not merge in the judgment, by a parity of reasoning an award on which a foreign judgment is passed cannot also merge in the judgment. There is no distinction between a foreign award which would require an enforcement order to be enforceable in law and an award which cannot be enforced except by a judgment. An en forcement order as well as a judgment on an award serves the same purpose and they are two different procedures for enforcing, an award. Meerifield Ziegler & Co. vs Liverpool Cotton Association Ltd., , referred to. A suit would, therefore, lie on a foreign award completed according to the law of that country and before a decree can be passed on it three things must be proved, (1) arbitration agreement, (2) that the arbitration was conducted in accordance with the agreement, and (3) that the award was valid according to the law of the country when it was made. Norske Atlas Insurance Co. Ltd. vs London General Insurance Company Limited. , referred to. It was not correct to say that the High Court had gone wrong in holding that the three necessary conditions had been proved by the admission of the appellants in their pleadings. Rules 3, 4 and 5 of the Order VIII of the Code of Civil Procedure form an integrated code dealing with the manner in ,which the allegations of fact made in a plaint has to be traversed :and the legal consequences that follow from its non compliance. 23 The written statement must deal specifically with each allegation of fact made in the plaint and if the defendant denies any such fact, such denial must not be evasive, he must answer the point of substance and if he fails to do so the said fact must be take to be admitted. The discretion under the proviso to r. 5 has to be exercise by the court as justice demands and particularly according to the nature of the parties, standard of drafting prevailing in the locality and the practice of the court. There can be no doubt that pleadings on the original side of the Bombay High Court have to be strictly construed in the light of the said provisions unless the court thinks fit to exercise it discretion under the proviso. Tildesley vs Harper, and Laxmi narayan vs Chimniram Girdharilal, Bom. 89 referred to. The said three conditions were also proved by the exhibited record of the proceedings of the Supreme Court of New York containing the certificate of the Consul General of India in New York and certified copies of the order and judgment of the Supreme Court. While under section 78(6) of the Indian Evidence Act, proof of the character of the document according to the law of the foreign country, is condition precedent to its admission, such admission is not a condition precedent for drawing the requisite presumption under section 86 of the Act. That presumption can be drawn before the document is admitted. The judgment of the Supreme Court of New York, therefore, which satisfied the first two conditions laid down by section 78(6), could be legitimately admitted into evidence. The contracts between the parties having been concluded within the local limits of the original jurisdiction of the Bombay High Court, a part of the cause of action must have arisen there. and that court had jurisdiction to try the suit on the awards.

vil Appeal No. 331 of 1961. Appeal from the judgment and decree dated March 29, 1956, of the Andhra Pradesh High Court in Appeal Suit No. 182 of 1950. B. Manavala Chowdhry and B. K. B. Naidu, for the appellants. Narasiah Chowdhry and R. Gopalakrishnan, for Respondents Nos. 1, 2 and 8. 987 1963. May 10. The judgment of the Court was delivered by DAS GUPTA J. This appeal brought on a certificate granted by the High Court of Andhra Pradesh is against a decision of that Court reversing a decree granted by the Subordinate judge, Masulipatnam, dismissing a suit for partition. Of the three plaintiffs who brought the suit, two claimed to be the reversioners of Boppanna Chandrappa, to whom we shall refer to as Chandrappa, and the third a purchaser of the interest of some of the reversioners, viz., defendants 4, 5 and 7. According to the plaint the three plaintiffs were thus entitled to a 5/6th share of the properties while the 6th defendant was entitled as a reversioner of Chandrappa to the remaining 1/6th share. The property was however in the actual possession of the three sons of Nagayya who were impleaded as the first three defendants. In contesting the suit these defendants denied that these properties had ever belonged to Chandrappa and further that the plaintiffs 1 and 2 or the defendants 4, 5, 6 and 7 were his reversioners. The main defence however was that even if the properties did belong to Chandrappa, the defendant 's father Nagayya became entitled to these as Chandrappa 's illatom son in law. The basis of this plea of illatom son in lawship was said to be that Chandrappa had brought Nagayya into his family under an arrangement that the latter would marry his wife 's sister 's daughter Mangamma and help him in cultivation and management of the properties, in consideration of which Nagayya would inherit the entire property after Chandrappa 's death. The Trial Court held that all the suit properties except a small portion did belong to Chandrappa 988 and the plaintiffs would be entitled to 5/6th share of Chandrappa 's properties and the 6th defendant to the remaining 1/6th share, on the death of Chandrappa 's widow Ramamma. He however accepted the defence case that Nagayya had become entitled to the property on Chandrappa 's death as Chandrappa 's illatom son in law and accordingly dismissed the suit. On appeal, the High Court held that the custom by which an illatom son in law inherited property could not be extended to a case where the marriage took place not with the daughter of the owner of the property but with some other relation of his. The High Court also rejected an alternative plea that appears to have been raised before it that Nagayya became entitled to the property on the basis of a contract between him and Chandrappa. In this view of the law, the High Court set aside the order passed by the Trial Court and decreed the suit. It is no longer disputed before us that the rights of an illatom son in law cannot be claimed by a person who under a promise from the owner of the property that he would inherit the property marries not the daughter but some other relation of the owner of the property. 'The alternative contention which was raised before the High Court has however been repeated before us, It has been urged that there was a good and valid contract between Chandrappa and Nagayya, that in consideration of Nagayya marrying Mangamma and looking after Chandrappa 's property, Chandrappa would make him his heir and that the consequence of this contract was that Nagayya became Chandrappa 's heir. The question here is not whether on Chandrappa 's death Nagayya could have obtained specific performance of the alleged contract. For, assuming that there was a contract as alleged and that it was a valid contract, enforceable at law and also such of which specific performance could 989 have been obtained by proper proceedings in courts, the appellants ' rights would be to seek such specific performance. The contention on behalf of the appellant is that even though specific performance has not been sought or given the contract itself would have the effect of transferring interest in the property to Nagayya on Chandrappa 's death. In support of this contention the learned Counsel relied on three decisions of High Courts in India and also a decision of the Privy Council. The first decision in point of time is the case of Challa Papi Reddi vs Challa Koti Reddi (1). The facts there were that the defendant 's father who was selected by Musalireddi, in pursuance of a special custom, as a son in law who should take his property as if he was a son entered into possession of the property on Musalireddi 's death. lie then associated with himself the plaintiff in the management of his property on promise of a share. The plaintiff continued thus for many years, aiding in the management and improvement of the property, until a short time before the suit was brought, the first defendant turned the plaintiff out of doors and refused to give him the promised share. The High Court of Madras held that the agreement by the first defendant 's father was to the effect that the plaintiff was being admitted to the rights of a co sharer and further, as there was a complete adoption or ratification of the father 's contract by the first defendant he ought to be held to it and the plaintiff was therefore a co sharer in the property. It has to be mentioned that this case was decided long before the was enacted and the question whether a written document was necessary for transfer did not come up for consideration. In Bhalla Nahana vs Prabhu Hari (2), which was the next case cited, what happened was that one Gosai (1) (1872) 7 Mad. H.C.R. 25. (2) 990 Ramji induced the parents of the defendant Prabhu Hari to give him in adoption by an express promise to settle his property upon the boy but died before such settlement could be executed. Nearly 30 years after his death Ramji 's widow Bhani gave effect to her husband 's undertaking by executing a deed of gift of his property in her hands in favour of Prabhu Hari. The reversioner to Gosai Ramji 's estate con tested in a suit brought by him, the validity of this alienation. In holding that the alienation was valid, the High Court of Bombay pointed out that the performance of a husband 's contracts was among the proper and necessary purposes specified by Hindu jurists under which a widow could alienate property and said further that the equity to compel the heir and legal representative of the adoptive father specifically to perform his contracts survived and the property in the hands of his widow was bound by that contract. Whether Prabhu Hari would have been entitled to the property even in the absence of the deed of gift did not fall for consideration in that case. It also deserves to be Mentioned that this case was also decided several years before the came into force. In Asita Mohon Ghosh Moulik vs Mohan Ghosh Moulik (1), one of the questions in dispute was whether the adopted son could take an equal share with the son Answering the question in the affirmative, the High Court of Calcutta after deciding that under the Hindu Law the adopted son was entitled to an equal share, also referred to an Ikrarnama which had been executed by the adoptive fatherland holding that the Ikrarnama was valid and operative, said that even apart from the law, the adopted son, would be so entitled. It is difficult to see how this can be of any assistance in solving our present problem. (1) 991 Lastly, the learned Counsel relied on the decision of the Privy Council in Malraju Lakhmi Venkayyamma vs Ventaka Narasimha Appa Rao (1). The main question in controversy in that case was whether there was a completed contract by which the Rani, the former owner of the property had agreed that the possession of the property would be given to her niece Venkayyamma Rao immediately upon the expiry of her life interest. The Privy Council held that there was such completed contract and directed the Receiver to deliver possession "upon the terms of the contract now affirmed". It may be mentioned that this decision in Venkayyamma Rao 's Case (1), was among the authorities on which the Calcutta High Court relied in Ariff vs Jadunath Majumdar (2). The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Rao ' Case was that the defendant had acquired the rights of a permanent tenant. When this very case went up to the Privy Council in appeal (1), the High Court 's decision was reversed. The Privy Council pointed out that the dicta in Venkayyamma Rao 's Case did not mean "that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured) confer upon a person a right which the statute enacts, shall be conferred only by a registered instrument". This decision of the Privy Council in Ariff vs Jadunath Majumdar (2), was given in January 1931. Nearly two years before that section 53A had been enacted in the introducing in a limited form the doctrine of equity of part performance. There can, in our opinion, be no doubt that after section 53A was enacted the only case in which the English doctrine of equity of part performance could (1) (1916) L. R. 43 I.A. 138. (2) (1930) 1. (3) (1931) L. R. 58 1. A. 91. 992 be applied in India is where the requirements of 53A are satisfied. Quite clearly, section 53A does not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a registered instrument. Our conclusion therefore is that the High Court was right in holding that Nagayya or his heirs had acquired no right in the property. The appeal is accordingly dismissed. In the circumstances of the case, we make no order as to costs. Appeal dismissed.

IN-Abs

The plaintiffs brought a suit for partition, two of them claimed to be the reversioners of Chandrappa and the third a purchaser of the interest of the reversioners, defendants 4, 5 and 7. They were thus entitled to a 5/6th share of the properties while the 6th defendant was entitled as a reversioner of Chandrappa to the remaining 1/6th share. The property was in the possession of the three sons of Nagayya, the first three 986 defendants, who denied these properties ever belonged to Chandrappa and also that the plaintiffs 1 and 2 or defendants 4 to 7 were his reversioners. The main defence was that even if the properties belonged to Chandrappa, the defendants ' father Nagayya became entitled to these as Chandrappa 's illatom son in law, on the basis that Chandrappa had brought Nagayya into his family under an arrangement that the latter would marry his wife 's sister 's daughter Mangamma and inherit the entire property after Chandrappa 's death. The trial court dismissed the suit. On appeal the High Court set aside the order and decreed the suit. On certificate, the only contention, raised by the appellant in this court was that even though specific performance had not been sought, the contract itself would have the effect of transferring interest in the property to Nagayya on Chandrappa 's death. Held that after enactment of section 53A in the , the only case in which the English doctrine of equity of part performance could be applied in India is where the requirements of section 53A are satisfied. In the instant Case, 53A has no application. It must be held therefore that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a registered instrument. The appeal, therefore, must be dismissed. Challa Papi Reddi vs Challa Koti Reddi, (1872) 7 Mad. H C. R. 25; Bha 'a Nahana vs Parbhu Hari, (1877) 2 I.L.R. Bom. 67; Asita, Mohan Ghosh Moulik vs Mohan Ghosh Moulik, (1016) 20 G.W.N. 901; Venkatayyamma Rao vs Appa Rao, (1916) L. R. 43 1. A. 138; Ariff vs Jadunath Majamdar, Cal. 1235, held inapplicable. Ariff vs Jadunath Majumdar, (1931) L. R. 58 I.A. 91, relied on.

Civil Appeal No. 98 of 1962. Appeal from the judgment and decree dated March 7, 1957, of the Bombay High Court in First Appeals Nos. 897 of 1951 and 66 of 1952. section section Shukla for the appellant. G. B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondents Nos. 1, 3 and 7. A.V. Viswanatha Sastri and Sardar Baliadur, for respondent No. 2. 522 1963. May 2. The judgment of the Court was delivered by WANCHOO J. This is an appeal on a certificate granted by the Bombay High Court and arises out of a suit filed by the appellant as a Hindu reversioner to recover possession of properties alienated by a Hindu widow. The property in suit was the self acquired property of one Ganpatrao jairam who died in 1894 leaving behind two widows, Annapurnabai and Sarswatibai. Ganpatrao had executed a will by which property in village Dahisar was given to Annapurnabai and property in village Nagaon was given to Sarswatibai. The will further provided that a dwelling house together with structures and open land situate at Thana would remain with his two wives who would enjoy the same. There were other dispositions in the will with which we are however not concerned now. Annapurnabai was also authorised to make an adoption on the advice of the executors appointed under the will; but the adopted son was to have no right or connection with the movable and immovable property devised to Annapurnabai during her life time and was to take the property devised to her only after her death. The adopted son was also to take the immovable property bequeathed to Saraswatibai after her death. It may be added that no son was adopted by Annapurnabai and this aspect of the matter therefore need not be considered further. Annapurnabai died on September 17, 1915, and she had executed a will before her death. After Annapurnabai 's death, Saraswatibai began to manage the property. It may be added that Sarswatibai had adopted a son, but this was saidto beagainst the provision in the will of herhusband which specifically directed that she could only adopt if Annapumabai died without making an adoption from amongst the family on the advice of the executors. There was therefore 523 litigation in connection with the adoption between Saraswatibai and Balkrishna Waman, one of the legatees under the will of Ganpatrao, which ended in favour of Balkrishna Waman. Saraswatibai died in 1943. The case of the appellant was that the will of Ganpatrao merely gave widow 's estate to Annapurnabai and Saraswatibai. Consequently Annapurnabai could not dispose of the property given to her by will and the bequests made by her were not binding on the appellant as the next reversioner. It was also alleged that the will made by Annapurnabai was vitiated by the exercise of undue influence brought to bear on her by Balkrishna Waman, who was the husband of her niece. Saraswatibai also made certain alienations and the appellant contended that the sale by Saraswatibai was due to the undue influence exercised on her by Balkrishna Waman, and in any case there was no legal necessity for transfer and therefore the transfer was not binding on the appellant. The main defendant in the suit was Ganesh, a son of Balkrishna Waman. In addition there were twelve other defendants who were alienees in possession of the property and were joined in the suit as the appellant prayed for recovery of possession from them also. The suit was resisted by the main defendant Ganesh for two main reasons. It was first contended that the appellant was an undischarged insolvent at the time succession opened in 1943 and therefore whatever property might come to him as a reversioner vested in the official receiver. Therefore, the appellant had no right to bring a suit to recover possession even after his absolute discharge because the property never vested in him. Secondly, it was contended that by his will Ganpatrao had granted an absolute estate to the two widows and therefore 524 Annapurnabai had full right to make a will with respect to the property given to her and Sarswatibai had the right to make alienations if she thought fit. Besides these two main defences, it was also contended that the appellant was not the nearest reversioner and the alienations made by Sarswatibai were for legal necessity. The same defence was raised by the other defendants. In addition the alienees from Sarswatibai contended that they were bona fide pur chasers for value without notice of the defect in their vendor 's title and therefore the alienations made in their favour could not be set aside. They further pleaded that they had made substantial improvements on the properties purchased by them. On these pleadings as many as eighteen issues were framed by the trial court. Two of these issues covered the two main defences which were raised, namely, (1) Is the plaintiff entitled to maintain the suit due to his insolvency as alleged by the defendants? (3) Had Annapurnabai no authority to will away the properties in her possession? The trial court held that the plaintiff was entitled to maintain the suit. The third issue obviously raised the question whether the bequest to Annapurnabai was that of widow 's estate or an absolute bequest, and the trial court held in that connection that the bequest to Annapurnabai was that of widow 's estate and therefore she had no right to will away the properties in her possession. The trial court also gave findings on the remaining issues and finally declared that the alienations made by Saraswatibai on March 29, 1930 and April 16, 1935 were not for legal necesssity and therefore were not binding on the appellant and the defendants of the suit were directed to deliver 525 possession of the suit properties to the appellant. Inquiry as to mesne profits was also directed and Rd finally the trial court ordered that notice be given to the receiver in the insolvency application No. 48 of 1939 to consider if he wanted the property to be made available for distribution amongst creditors in the aforementioned application. The defendants then went in appeal to the High Court and two separate appeals were filed one by original defendant No. 3 and the other by original defendant No. I and some others. The two appeals were heard together by the High Court and the two principal questions which arose, according to the High Court, were as to (i) the effect of the dispositions made by Ganpatrao under his will, and (ii) the right of the plaintiff to maintain the suit when he was, at the date when the succession opened, an undischarged insolvent, These two questions, it will be seen, correspond to the two issues raised by the trial court, which we have set out above. The High Court first considered the right of the plaintiff to maintain the suit and held that the plaintiff had no right to maintain the suit, as he was an undischarged insolvent at the time the succession opened and he could not maintain the suit even after his absolute discharge. The High Court further held that the disposition in favour of Annapurnabai of the property in Dahisar amounted to conferment of absolute estate on her and further that the disposition in favour of Saraswatibai of the property in Nagaon amounted to conferment of absolute estate on her. On these findings the High Court dismissed the suit. Thereupon the appellant applied for a. certificate which was granted; and that is how the matter has come up before us. 526 The first question that falls for consideration is whether the appellant can maintain the suit. It is necessary in that connection to see what the facts are with respect to the insolvency of the appellant. The appellant had filed an insolvency application in 1939 and was adjudged insolvent on March 11, 1940 and two years time was granted to him to apply for discharge. The appellant applied for discharge on July 6, 1942 and he was granted an absolute discharge in January, 1944. The succession to the estate of Ganpatrao had however opened on May 4, 1943 when the appellant was still an undischarged insolvent. Consequently, the case of the defendants respondents was that under section 28 (4) of the Provincial Insolvency Act, No. 5 of 1920, (hereinafter referred to as the Act), the property which devolved on the insolvent after the date of the order of adjudication and before his discharge forthwith vested in the court or receiver. It is further urged that the property having vested in the court or receiver it must remain so vested even after the absolute discharge of the appellant for the order of absolute discharge merely absolved the insolvent from liability from payment of debts other than those mentioned in section 44 of the Act. Therefore when the suit was brought in 1947 after the discharge the appellant had no title in the property as the title still vested in the court or receiver, and consequently the appellant could not maintain the suit for ejectment against those in possession of the property as he had no title on which he could base his right to sue for ejectment. The question therefore that arises for determination is whether an insolvent on whom property devolves when he is an undischarged insolvent can maintain a suit for the recovery of the property after his absolute discharge. The decision of that depends on what effect the order of absolute discharge has on the insolvent 's title to the property 527 which develoved on him when he was still an undischarged insolvent. It is to this narrow question, (namely, whether a suit brought by an insolvent after his absolute discharge with respect to property which devolved on him when he was an undischarged insolvent can be maintained by him), that we address ourselves hereafter. In view of this narrow question it is in our opinion unnecessary to consider those cases on some of which the High Court has relied which deal with the, right of the insolvent to maintain a suit while he is still an insolvent. What we say hereafter will only apply to a case where the suit is brought by an insolvent after his absolute discharge, though the right to property which is in suit devolved on him when he was an undischarged insolvent. It will be necessary in this connection to consider briefly the scheme of the Act, to decide exactly what the consequences are when an absolute discharge is granted to an insolvent. Section 6 of the Act defines what are acts of insolvency. Section 7 gives power to a debtor or a creditor to make an application for insolvency, if the debtor has committed an act of insolvency. Section 9 deals with applications made by creditors and section 10 by debtors. Section 19 provides for the procedure for hearing an insolvency petition. Sections 20 and 21 provide for interim proceedings against the debtor and appointment of an interim receiver. Section 25 provides for dismissal of the petition on grounds mentioned therein Section 27 gives power to the court to make an order of adjudication and the Court also has to fix a time therein within which the debtor shall apply for his discharge. Section 28 with which we are mainly concerned lays down the effect of an order of adjudication. Sub section (2) thereof provides that on the making of an order of adjudication, the whole of the property 528 of the insolvent shall vest in the court or in a receiver and shall become divisible among the creditors Under sub section (7) this vesting will relate back to and take effect from the date of the presentation of the petition on which the order of adjudication is made. Sub section (4) which is also material lays down that "all property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the court or receiver, and the provisions of sub section (2) shall apply in respect thereof." This sub section undoubtedly vests in) the court or receiver any property which the insolvent acquires after the order of adjudication and before his discharge or which devolves on him in any manner, and such vesting takes place forthwith Section 33 provides for the making of a schedule of creditors after the order of adjudication and section 34 lays down what debts are provable under the Act. Section 56 provides for the appointment of a receiver and section 59 lays down the duties and powers of the receiver Scction 61 provides for priority of debts and section 62 for calculation of dividends. Section 64 lays down that when the receiver has realised all the property of the insolvent or so much thereof as can, in the opinion of the court, be realised without needlessly protracting the receivership, he shall declare a final dividend. But before doing so, the receiver has to give notice to persons whose claims as creditors have been notified but not proved, that if they do not prove their claims within the time limited by the notice, he will proceed to make a final dividend without regard to their claims. After the expiration of such time, the property of the insolvent shall be divided amongst the creditors entered in the schedule without regard to the claims of any other persons. Then comes section 67 which lays down that " 'the insol vent shall be entitled to any surplus remaining after payment in full of his creditors with interest as 529 provided by this Act, and of the expenses of the proceedings taken thereunder. " It is clear from this scheme of the Act that the entire property of the insolvent belonging to him on the date the petition for insolvency is made vests in the receiver under section 28 (2). Further under section 28 (4) if any property is acquired by the insolvent or devolves on him after the order of adjudication and before he is discharged, that property also vests in the court or receiver forthwith. The receiver has to administer the property so vested in him and he has the power to sell the property and do various other acts provided in section 59 for the purpose of the administration of the property. Generally speaking the receiver sells the property which vests in him and then distributes the money amongst the creditors who have proved their debts. But before the receiver declares the final dividend he has to give one more opportunity under section 64 to creditors who might not have proved their debts at the earlier stage, to come and prove their debts. This will generally happen when all the property of the insolvent has been disposed of by the receiver, though section 64 contemplates that the final dividend may be declared even if some property has not been disposed of when in the opinion of the court it will needlessly protract the receivership. Section 67 then finally provides that if any surplus is left in the hands of the receiver after payment in full to the creditors with interest and of the expenses of the proceedings under the Act, the surplus is to be paid to the insolvent. As we have said already, the final dividend is generally declared after all the property of the insolvent is disposed of but there may be cases when a final dividend may be declared without the disposition of all the property of the insolvent if in the opinion of the court that would result in needlessly protracting the receivership. But it is clear that under section 67 if there is 530 any surplus remaining in the hands of the receiver that surplus has to go to the insolvent. Though this is the general scheme of the Act with reference to administration of property which vests in the receiver after an order of adjudication, there are two exceptions which may be noticed. Section 35 provides that where, in the opinion of the court, a debtor ought not to have been adjudged insolvent, or where it is proved to the satisfaction of the court that the debts of the insolvent have been paid in full, the court shall, on the application of the debtor, or of any other person interested, by order in writing, annul the adjudication. Section 37 then provides that "where an adjudication is annulled, all sales and dispositions of property and payments duly made, and all acts therefore done, by the court or receiver, shall be valid ; but, subject as aforesaid, the property of the debtor who was adjudged insolvent shall vest in such person as the court may appoint, or, in default 'of such appoint ment, shall revert to the debtor to the extent of his right or interest therein on such conditions (if any) as the court may, by order in writing, declare. " Special stress has been laid on behalf of the respondents on the provision in section 37 which specifically lays down that the property of the debtor in case of annulment shall vest in such person as the court may appoint or in default of such appointment shall revert to the debtor, thus divesting the court or the receiver of the property which had vested in them under section 28 (2) or section 28 (4). The second exception is to be found in section 38 which allows compositions and schemes of arrangement. Section 39 then provides that if the court approves the composition or the scheme of arrangement, the terms shall be embodied in the order of the court and the order of adjudication shall be annulled and the provisions of section 37 shall apply to such annulment. 531 Lastly, we come to what happens where the estate of the insolvent has been administered in the usual way which we have set out already. Section 41 authorises the debtor to apply for an order of discharge. On such an application the court has to consider the objection, if any, made by any creditor and also the report of the receiver in case a receiver has been appointed and thereafter the court may (a) grant or refuse an absolute order of discharge ; or (b) suspend the operation of the order for a specified time ; or (c) grant an order of discharge subject.to any conditions with respect to any earnings or income which may afterwards become due to the insolvent, or with respect to his after acquired property. Section 42 then lays down in what circumstances the court, shall refuse to grant an absolute order of discharge ; and we may refer to only cl. (a) of section 42 (1) in that connection which gives power to the court to refuse to grant an absolute order of discharge if it finds that the insolvent 's assets are not of a value equal to eight annas in the rupee on the amount of his unsecured liabilities, unless the in solvent satisfies the court that the fact that the assets are not of a value equal to eight annas in the rupee on the amount of his unsecured liabilities has arisen from circumstances for which he cannot justly be held responsible. Section 43 provides that if the debtor does not apply for discharge within the period fixed by the court, or does not appear on the day fixed for hearing his application for discharge, the court may annul the order of adjudication or make such other order as it may think fit, and if the adjudication is so annulled, the provisions 532 of section 37 shall apply. Section 44 then provides for the effect of the order of discharge. Sub section (1) thereof mentions the debts from which the insolvent will not be released on an order of discharge. Subsection (2) then provides that "save as otherwise provided by sub section (I.), an order of discharge shall release the insolvent from all debts provable under this Act. " Stress is laid on behalf of the respondents on this provision and it is urged that though sub section (2) provides that the insolvent shall be released from all debts provable under the Act, it does not provide for revesting any property in the insolvent on an order of discharge. It is thus clear from the above analysis of the provisions of the Act that if there is no annulment of the adjudication and no sanction of a composition or scheme of arrangement resulting in an order of annulment, insolvency proceedings terminate generally after the administration of the properties is complete and a discharge is granted. The discharge may be absolute in which case the consequences mentioned in section 44 (2) apply. On the other hand discharge may be conditional in which case also the consequences of section 44 (2) apply subject to the conditions attached to the discharge in accordance with sub section 41 (2) (c). Further in considering whether an absolute order of discharge should be granted or not. the court has to consider whether the in solvent 's assets are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities. Further before granting a discharge the court has to consider the report of the receiver if one is appointed. It is therefore reasonable to think that generally speaking an order of discharge will only be made after the court has considered the report of the receiver and has also considered that the assets of the insolvent ; are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities. It is also not unreasonable 533 to think in view of all the provisions that no order of discharge will generally be made till all the assets of the insolvent are realised, (see section 64), though, as we have already pointed out, it is possible to declare a final dividend even though all the property of the insolvent has not been realised if in the opinion of the court such realisation would needlessly protract the receivership. In such a case however the court would generally pass an order protecting the interests of the creditors with respect to the property which has not been realised before the order of discharge. Finally there is section 67, which provides that if there is any surplus remaining after payment in full of his creditors with interest and of the expenses of the proceedings taken under the Act, it shall go to the insolvent. The key to the solution of the narrow question posed before us is in our opinion to be found in section 67. It is true that section 44 when it provides for the consequences of an order of discharge does not lay down that any property of the insolvent remaining undisposed of will revest in him and to that extent it is in contrast to section 37, which provides for the effect of an order of annulment and in effect lays down that all sales and dispositions of property made by the receiver shall be valid, but if any property remains undisposed of it shall vest in such person as the court may appoint or in default of any appointment shall revert to the debtor insolvent. The reason why section 44 has not provided specifically for the reversion of undisposed property to the insolvent obviously is that the scheme of the Act does not contemplate where there is no annulment that any property which vested in the receiver would remain undisposed of. It as section 74 shows the final dividend is generally declared when he receiver has realised all the property of the insolvent there would be no property left unadministered usually when an order of discharge comes to be passed. It is however urged on behalf of the respondents 534 that there is nothing in sections 41 and 42 to suggest that a discharge can only be granted after a final dividend is declared and therefore there may be cases where administration by the receiver may still go on after discharge has been ordered. This argument, in our opinion, is not quite correct, for cl. (a) to section 42 (1) definitely requires the court to consider whether the assets are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities, and this the Court generally speaking can only find out after all the property has been realised and final dividend has been declared. But, as we have pointed out, it is possible to declare a final dividend and thereafter to get an order of discharge even though some property may not have been disposed of where in the opinion of the court the realisation of such property would needlessly protract the receivership. Therefore it may be possible in some cases that all the property of the insolvent may not be disposed of before an order of discharge is made. But in such a case the court will generally pass orders with respect to the property not disposed of when granting ' an order of discharge. It is true that the Act does not contemplate that an insolvent might get an order of discharge and yet retain part of his property free from the liability to pay debts provable under the Act, in case all the debts have not been paid off But it is here that we have to look to the effect of section 67 of the Act. That section lays down that the insolvent shall be entitled to any surplus remaining after payment in full of his creditors with interest as provided ' by the Act and of the expenses of the proceedings taken thereunder. Now, often this surplus would be in the form of money. But take a case where an insolvent has come into property by devolution after he became insolvent and before his discharge; and suppose that the property which was devolved on him is worth a few lacs while his debts are only a few thousands. In such a case the receiver would not proceed to sell all the property; he would only sell so much of the 535 property as would satisfy the debts in full and meet the expenses of the proceedings in insolvency; the rest of the property whether movable or immovable would not be converted into money. It seems to us that it would not be wrong in such a case to call such property whether movable or immovable which remains after payment in full to the creditors with interest and of the expenses of the proceedings in insolvency as "surplus". To this surplus the insolvent is entitled. In such a case therefore it would be proper to hold that if any property remains undisposed of in the shape of surplus that vests back in the insolvent, just as surplus in the shape of money would. It is true that cases may arise where what devolves on the insolvent after the order of adjudication and before his discharge may not be easily realisable or may be a matter of dispute which may lead to litigation lasting for many years. In such a case the receiver would be entitled to declare a final dividend if the court is of opinion that the property which has de ' volved on the insolvent is subject of protracted litigation and it cannot be realised without needlessly protracting the receivership. Such property would also in our opinion be surplus to which the insolvent would be entitled under section 67 subject to his complying in full with the provisions of that section i.e. paying his creditors in full with interest and meeting the expenses of the proceedings taken under the Act. A third class of cases may arise where the court may not come to know of the property which devolves on the insolvent and grants a discharge in ignorance of such devolution, may be because the insolvent did not bring it to the notice of the court. In such a case also in principle we see no difficulty in holding that the property which vested in the receiver under section 28 (4) and which remained undisposed of by him before the discharge of the insolvent would still be surplus to which the insolvent would be entitled, though he may not be permitted to make full use of 536 it until he complies with the conditions in section 67, namely, until payment in full is made to his creditors and the expenses of the proceedings in insolvency are met by him out of the property so remaining undisposed of. Though therefore there is no specific provision in terms in section 44 (2) with respect to property that may remain undisposed of by the receiver or by the court like the provision in section 37 on an order of annulment, it seems to us that section 67 by necessary implication provides the answer to a case like the present. All the property which remains undisposed of at the time of discharge must be treated as surplus to which the insolvent is entitled. The insolvent will thus get title to all such property and the vesting in the receiver whether under section 28 (2) or section 28(4) would come to an end on an order of discharge subject always to the insolvent complying in full with the conditions of section 67 in case they have not been complied with before his discharge, for he is entitled only to the surplus after the creditors have been paid in full and the expenses of all proceedings in insol vency have been met Any other view of the effect of discharge would result in this startling position that though the insolvent is freed from his debts under section 44 (2) and is a freeman for all purposes the property which was his and which vested in the receiver under section 28 (4) will never come back to him and will always remain vested either in the court or the receiver. We have no doubt that the Act did not contemplate such a situation. We have already indicated the reason why section 44 does not provide for revesting of property in the insolvent in contrast to the provision therefor in section 37. Generally speaking it is not expected that there would be any property left to revest in the insolvent after the administration in insolvency is over. We have therefore to look to section 67 which provides that the insolvent is entitled to any surplus remaining after payment in full of his creditors and after meeting the expenses of the proceedings taken under the Act; and it is that 537 section which gives title to the insolvent in the property which remains undisposed of for any reason before his discharge subject to the conditions of that section being fulfilled even after the discharge. just as the Act does not contemplate that an insolvent would get an order of discharge and yet retain part of his property without meeting the debts provable under the Act in full, it is to our mind equally clear that the Act does not contemplate that after an insolvent has been discharged his undisposed of property, if any, should for ever remain in the possession of the court or receiver, even though in a particular case the creditors may have been paid in full out of the property disposed of ' and all the expenses of the proceedings under the Act have been met. In such a case it seems to us that it is section 67 which must come to the aid of the insolvent and the property which remains undisposed of must be treated as surplus and he gets title to it. Where however the insolvent has been discharged without fully meeting the conditions of section 67, he would in our opinion be still entitled to the surplus, even if it be in the shape of undisposed property, subject to his fulfilling the conditions of section 67. It may be added that there is nothing in the Act which takes away the right of the insolvent to sue in courts after he has been granted a discharge, for he then becomes a free man. In such a situation we are of opinion that he would certainly be entitled to sue in court for recovery of his undisposed of property, if it is in the possession of a third party, after his discharge and such property cannot for ever remain vested in the court or receiver. All that justice requires is that in case the conditions of section 67 have not been fulfilled such property should be subject to those conditions, namely, that he should be liable to discharge his creditors in full. with interest and to meet the expenses of all proceedings taken under the Act. Subject to these conditions the insolvent in our opinion would be entitled to undisposed of property on discharge and would be 538 free to deal with it as any other person and, if necessary, to file a suit to recover it. It remains now to consider some of the cases which were cited at the bar. We have already pointed out that it is unnecessary to consider those cases which deal with the right of the insolvent to file a suit while he is still undischarged, though even on this point there seems to be difference of opinion in various High Courts as to the power of the insolvent; nor is it necessary to refer to the rule in Cohen vs Mitchel (1), which has found statutory expression in section 47 of the Bankruptcy Act, 1914, (4 & 5 Geo.5, ch. 59). Section 47 of the English Bank ruptcy Act deals with transactions by a bankrupt with any person dealing with him bona fide and for value, in respect of property, whether real or personal, acquired by the bankrupt after the adjudication, and provides that all such transactions shall be valid if completed before intervention by the trustee (i. e. the receiver). In England, therefore intervention by the trustee (i.e. the receiver) is required before completion of the transaction and if the trustee does not intervene the transactions arc generally speaking good. That position of law however does not apply in India because of section 28 (4), which specifically lays down that all the property which is acquired by or devolves on an insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the court or receivers Learned counsel for the parties have not been able to cite any case which deals exactly with a case like the one before us. We may however refer to certain observations of learned judges which may be helpful to show how the position has been understood by some High Courts with respect to surplus and also with respect to what happens to undisposed of property after a (1) , 539 discharge, though there is no discussion on the subject in the cases cited. In Sayad Daud Sayad Mohd. vs Mulna Mohd. Sayad (1), the Bombay High Court was dealing with a case where an insolvent had filed a suit to recover property four days after he had been adjudicated insolvent '. Later the official assignee wanted to join as a new plaintiff when he came to know of the suit; but by that time it appears that limitation had expired, and the question arose whether the suit would be said to have been filed afresh on the date the official assignee intervened. It was held that that was so, for the insolvent could not maintain a suit after he had been adjudicated insolvent and so far as the official assignee was concerned the suit must be held to have been filed on the date he asked for intervention and would therefore be barred by time. It will be seen that the case deals with a suit brought by an undischarged insolvent and not with a suit as in the present case brought by a discharged insolvent. But the learned judges observed that the vesting order for the time being was paramount, even though an insolvent might eventually be entitled to what might remain as surplus after satisfying his creditors, thus showing that what remains as surplus becomes the property of the insolvent. Yellavajjhula Surayya vs Tummalapalli Mangayya (2) is a case more directly in point. In that case the plaintiff was declared an insolvent in 1919. He was still an insolvent in 1929 when certain property devolved on him as reversioner. He was granted an absolute discharge in August 1931. No creditors had come to prove their debts or to take steps between 1919 and 1929; nor did the official receiver take any step prior to 1929 or between 1929 to 1931. After his absolute discharge, the plaintiff instituted a suit for recovering the property. , In that (1) (2) A.I.R. (1941) Mad. 345 540 suit, Varadachariar J. observed and, if we may say so with respect, rightly that the construction of cl. (4) of section 28 was not free from difficulty; but went on to add that there was nothing in the policy of the Insolvency Law to suggest that it was intended to benefit strangers, and in the circumstances the plain ' tiff could maintain the suit, though the learned judge added that nothing that was said in the judge ment would prejudice the right, if any, of the official receiver or of the creditors of the plaintiff to assert such rights and remedies as they might have in law in respect of the suit properties. It will be seen that this case was almost similar to the case before us and the court held that in such circumstances the discharged insolvent could maintain the suit, though the reasoning was only in one sentence, namely, that there was nothing in the policy of the Insolvency Law to suggest that it was intended to benefit strangers. In Rup Narain Singh vs Har Gopal Tewari an insolvent acquired some property after the order of adjudication. It was apparently not brought to the notice of the receiver and was mortgaged by the insolvent while he was still undischarged. Later after his discharge the mortgagee brought a suit to enforce the mortgage. The insolvent mortgagor had transferred part of the property to other persons who were also made parties. These persons raised the defence that as the mortgagor was an undischarged insolvent when he executed the mortgage, it was void. The High Court negatived this contention and relying on section 43 of the Transfer of property Act decreed the suit. In the course of the judgment the High Court however observed that after the order of discharge was passed, the property had been divested from the receiver and revested in the insol vent, though no reason was given for this view. In Dewan Chand vs Manak Chand (2) the facts were that a certain property devolved on an insolvent, (1) I.L.R. (1933) 55 All. (2) A.I.R. (1934) Lab. 809 541 who made a mortgage of it, apparently without bringing it to the notice of the receiver. After the insolvent was discharged, a suit was brought to enforce the mortgage and a question arose whether section 43 of the Transfer of property Act would apply. In that connection the High Court observed that after the insolvent was discharged the property in question must be considered to have revested in the mortgagor on his discharge in the absence of any order to the contrary by the court. We may now notice some cases on which reliance is placed to suggest that undisposed of property can never vest in the insolvent, even after he gets a discharge. In Arjun Das Kundu vs Marchhiya Telinee (1), it was held that "an absolute order of discharge of an insolvent does not release any property acquired by him before such order from the liability to meet his debts provable in insolvency. " That case, however, was only dealing with the effect of section 44 (2) of the Act and it was held that if there was any property which vested in the official receiver either under section 28 (2) or under section 28(4) and that property was not disposed of before the order of discharge, the creditors would still have a right to get their debts discharged by the sale of that property even though they might not have proved the debts at an earlier stage. This case does not in our opinion support the proposition contended for by the respon dents. It only lays down that the property which remains undisposed of would still be subject to the debts provable under the Act, and this is what in our opinion is the effect of section 67 where only the surplus revests in the insolvent. The next case is Kanshi Ram vs Hari Ram (2) there the facts were that a discharge was granted on the re port of the official receiver to the effect that the insolvent 's assets had been completely disposed of. Thereafter it was discovered that some property had (1) I.L.R. (2) A.I.R. (1937) Lah. 542 devolved on the insolvent before his discharge and was not within the knowledge of the receiver. The High Court held that such property was liable to meet the debts which had not been paid in full before the discharge. This case also in our opinion only lays down that any surplus in the hands of the insolvent after his discharge is liable to the debts provable under the Act if they have not been paid in full, and this is in accordance with the provisions of section 67, for the insolvent is only entitled to that property or money as surplus which remains after payment of his debts in full and after meeting all expenses of the proceedings under the Act. The last case to which reference may be made is Parsu vs Balaji (1). In that case also the insolvent had been discharged but his debts had not been paid in full. It was held in those circumstances that any undisposed of property would still be liable to meet the debts provable under the Act. This again in our opinion is in accord with section 67 where the insolvent is only entitled to that surplus which remains after his debts have been paid in full and all the expenses of the proceedings taken under the Act have been met. Therefore, on a careful consideration of the scheme of the Act and on a review of the authorities which have been cited at the bar, we are of opinion that an insolvent is entitled to get back any undisposed of property as surplus when an absolute order of discharge is made in his favour, subject always to the condition that if any of the debts provable under the Act have not been discharged before the order of discharge, the property would remain liable to dis charge those debts and also meet the expenses of all proceedings taken under the Act till they arc fully met. The view of the High Court that the suit is not maintainable is therefore not correct. The order of the trial court by which it held that the suit was maintainable and provided that notice should be (1) I.L.R. 543 given to the receiver in insolvency application No. 48 of 1939 to consider if be wanted the property to be made available for distribution amongst creditors, is correct. Now we come to the second point raised before the High Court, namely, the effect of the will of Ganpatrao. By the first clause of the will, Ganpatrao appointed three executors. The bequest in favour of Annapumabai was in these terms : "The entire immovable property situate at the village of Dahisar, Taluka Kalyan, consisting of lands and tenements etc. is given to my senior wife, Annapoorna. During her life time she shall enjoy, as owner, the income therefrom, in any manner she may like. No one shall have (any) right, title or interest therein. " The bequest in favour of Sarswatibai was in these terms : "The entire immovable property situate at the village of Nagaon, Taluka Kalyan, consisting of lands and tenements etc. is given to my junior wife, Sarswati. During her life time, she shall enjoy, as owner, only the income therefrom in any manner she may like." Then there was another clause which gave them some property jointly, which was in these terms : "The property consisting of a dwelling house and other structures and open space etc. situate at Thana shall remain with my two wives. Hence, they should live amicably and enjoy the same. " The High Court has held that the estate given to Annapurnabai in the lands at village Dahisar and 544 to Sarswatibai in the lands at village Nagaon and the estate given to them, in the house at Thana was an absolute estate subject to defeasance of the estate on their deaths in case a son was adopted by Annapurnabai. It is true that the two clauses with respect to the demise of properties in villages Dahisar and Nagaon to the two widows use the word "owner" ; but we have to read the clauses as a whole together with the surrounding circumstances then prevailing as also in contrast to the other clauses in the will to determine the intention of the testator. Now the clause with respect to village Dahisar is that the property in Dahisar was given to Annapurnabai. and then goes on to say that during her life time she would enjoy as owner the income there from in any manner she liked and no one else would have any right, title or interest therein Reading the clause as a whole it seems to us fairly clear that the intention of the testator was that the property given to Annapurnabai was for her life and she was entitled to enjoy the income therefrom in any manner she liked without any interference by any one. If the testator 's intention had been to give an absolute estate to Annapurnabai, there was no reason why he should have gone on to say in that clause, "during her life time she shall enjoy as owner the income therefrom, in any manner she may like", for that would have been unnecessary in the case of a person who was given an absolute estate. Therefore these words appearing in the second clause are clearly words of, limitation and show on the reading of the whole clause that the intention of the testator was to confer a life estate on Annapurnabai. In the case of the property in village Nagaon, the matter is clearer still, for the testator said that Sarswatibai shall enjoy as owner, only the income during her life time. These are clear words of limitation and show on reading the clause as a whole that the 545 intention of the testator was to confer only life estate on Sarswatibai. As to the clause relating to the dwelling house etc. in Thana, it is remarkable that that clause does not even use the word "given" ; it only says that the dwelling house etc. " 'shall remain with my two wives" i.e. that they will be in possession so long as they live. The further sentence that they should live amicably and enjoy the same, makes in our opinion no difference to the intention of the testator, which is clear from the fact that he wanted these properties to remain with his two wives, i.e. he was only giving them the possession of the property for enjoyment for their lives. In this connection it may be well to contrast the language of some other clauses in the will where the bequest was obviously of an absolute estate. Take the bequest relating to Sirdhon village in favour of Balkrishna Waman Kharkar. It is in these terms : "The entire immovable property situate , 'at Sirdhon village, taluka Panvel, consisting of lands and tenements etc. is given to Chiranjiv Balkrishan Waman Kharkar. He shall en 'JOY the same as owner. Neither my two wives nor others whosoever shall have any right, title or interest etc. whatever therein. " This is a clear bequest of an absolute estate. There is no mention of any income in this clause and also no mention of the life time of the legatee. Obviously, therefore, where the testator was intending to bequeath an absolute estate he used entirely different language from that used in the three clauses with respect to his wives. Contrast again the language relating to the bequest of movable property in favour of the two wives. That clause is in these terms : " Movable property such as ornaments and trinkets and clothes and raiments etc. which 546 may have been given to any party shall remain with the said party and my two wives shall be fully entitled thereto. They shall deal with the same in any manner they like. " The use of the words "fully entitled" clearly indicates the bequest of absolute estate so far as movable property is concerned ; but we find no similar words in the clauses relating to bequests of property in villages Dahisar, Nagaon and Thana. This conclusion as to the nature of the interest bequeathed to the two wives is strengthened by another provision in the will. Under that provision Annapurnabai was authorised to adopt a fit boy from amongst the family, on the advice of the executors. It was also provided that the adopted son shall have no right of any kind whatever to the movable and immovable properties so long as Annapumabai remained alive. But on her death he was to be entitled to these. properties. It was further provided that on the death of Sarswatibai the adopted son would become entitled to the immovable property bequeathed of her. Now if the estate bequeathed to Annapurnabai and Sarswatibai was anabsolute estate it is difficult to see how the testator could provide that on the death of Annapurnabai and saraswatibai the properties bequeathed to them would go to the adopted son. The holder of an absolute estate would be entitled to sell it if she so desired, and therefore there could be no provision in the will that on the deaths of Annapumabai and Sarswatibai, the property bequeathed to them would go to the adopted son. This provision therefore read with the provisions in the three clauses relating to the bequests of properties in Dahisar; Nagaon and Thana clearly shows that the bequest of those properties in favour of the two wives was only a life estate. We cannot therefore agree with the 547 High Court that the estate given to Annapumabai and Sarswatibai whether in Dahisar, Nagaon or Thana was an absolute estate. In our opinion it was life estate only. It may also be added that Ganpatrao died,, in 1894 when it was more usual to give life estate to widows and the terms in the various clauses on the will are in our opinion in consonance with the prevailing practice in those times. In the view that we have taken it follows that the judgment of the High Court must be set aside. However as the High Court has only considered these two questions, the case will have to be remanded so that the High Court may go into the other issues raised and decided by the trial court. Lastly we may refer to another contention on behalf of the respondents. It appears that Shamdas Narayandas and jaigopal Narayandas purchased property in village Dhokali Manpada in Taluka and sub division of Thana, described as lot No. 8 in the first schedule to the 'plaint. It appears that there was one sale deed in favour of these two defendants. Of these defendants, jaigopal_Narayandas died on April 19, 1960, after the decree of the High Court which was given on March 7, 1957, and also after the grant of the certificate by the High Court in May, 1958, and the order admitting the appeal by the High Court in April, 1959. The record was despatched to this Court in 1962. No application was however made to the High Court till August 13, 1962, for substitution of the heirs of jaigopal Narayandas. When the application was made in August 1962, for substitution, the High Court dismissed it on Jannary 9. 1963, on the ground of limitation. There was then a review application filed before the High Court, which was also dismissed on February 12, 1963. Thereafter the petition of appeal was filed in this Court on March 13, 1963. Then on April 3, 1963, an application was made to this 548 Court for substitution of the heirs of Jaigopal Nara a as. The respondents contend that as the heirs of jaigopal Narayandas were not brought on the recordwithin the time allowed by law, the entire appeal abates. We are of opinion that the interests of the various defendants who are in possession of various properties are independent and therefore the whole of the appeal cannot abate because the heirs of certain deceased defendants in possession of one property have not been brought on the record. So far as lot. No. 8 is concerned it was the common progerty of Shamdas Narayandas and jaigopal Narayan as, which they apparently acquired by one sale decd. We are not prepared to condone the delay in bringing the heirs of jaigopal Narayandas on the record and therefore dismiss the application dated April 3, 1963. The effect of this will be that the suit will abate in so far as the property in lot No. 8 is concerned. It is not shown that the interest of the two purchasers who are presumably members of an undivided family were separate and distinct and so there cannot be partial abatement only in regard to the share of the deceased purchaser; but that cannot affect the appeal in so far as the property in other lots is concerned. The High Court on remand will therefore go into the other issues with respect to properties in lots other than lot No. 8. We therefore allow the appeal and remand the case to the High Court for decision on other issues so far as lots (other than lot No. 8) in the first schedule to the plaint are concerned. So far as lot No. 8 is concerned, the appeal abates and is dismissed. In the circumstances we pass no order as to the costs of the appeal with respect to lot No. 8, so far as the costs of the appeal with respect to other lots are concerned, the respondents will pay the costs of the appellant including advocate 's fee of this court & the Court fees also. Appeal allowed. Case remanded.

IN-Abs

The appellant, a Hindu reversioner, brought the suit out of which the appeal arose for recovery of certain properties alienated by two widows having widow 's estates under the will of their husband. The respondents resisted the suit mainly on the grounds that the appellant, who was an undischarged insolvent at the time the succession opened, could not maintain the suit even after his absolute discharge as the properties must be taken to have vested in the official receiver and that under the will of their husband the widows got not a widow 's estate but an absolute estate and had the right to alienate the properties which they did. The trial court found in favour of the appellant and directed delivery of possession of the properties to him. On appeal the High Court took the contrary view on both the points and dismissed the suit. The appellant came up to this Court on the certificate granted by the High Court. Held that the High Court was in error in holding that the appellant could not maintain the suit. There is nothing in the Provincial Insolvency Act that takes away the right of the insolvent to sue in courts after he is granted a discharge for he then becomes a free man. Though there is no specific provision in the Act with respect to the property that may remain undisposed of by the court or by the receiver, the provisions in section 67 by necessary implication read in the light of the general scheme of the Act provides an answer to this and all such property must be treated as surplus to which an insolvent is entitled, after an absolute order of discharge is made in his favour, subject always to the condition that if any debts provable under the Act have not been discharged before such order, 521 the property will remain liable for such discharge as also the expenses of all proceedings under the Act till they are fully met. Cohen vs Mitchel, (I 890) ; Sayad Daud Sayed Mahomed vs Mulna Mahomed Sayad, (1926) 28 Bom. L. R. 334; Yellavajjhula Suraya vs Tummalapali Mangayya, A.I.R. , Rup Narain Singh vs Har Gopal Tewari, 'I. L. R. (1933), 53 All. 503; Diwan Chand vs Manak Chand, A.I.R. (1934) Lah. 809; Arjun Das Kundu vs Marchhiya Tolinee, I.L.R. ; Kanshi Ram vs Hari Ram, A. I .R. and Parsu vs Balaji, I.L.R. (I , discussed. In order to determine the true intention of a testator, the clauses of the will should be read as a whole in the light of the surrounding circumstances as also in contrast to the other clauses and where the testator, as in the instant case, having used the word owner ' in the previous clause, follows up by using the words "during her lifetime enjoy as owner the income in any manner she likes" the latter words clearly limit the bequest and indicate that what is given is no more than a life estate. Where the interests of the various defendants in possession of various properties are independent, the appeal cannot abate as a whole by reason of the heirs of a deceased defendant in possession of a property not having been brought on the record within the prescribed time.

vil Appeal No. 578 of 1961. Appeal from the judgment and decree dated March 12, 1959. of the Bombay High Court in First Appeal No. 685 of 1956. 966 W. section Barlingay and A. G. Ratnaparkhi, for the appellant. B.R. Naik, M. R. Krishna Pillai and K. R. Chaudhuri, for the respondent. May 10. The judgment of the Court was delivered by SINHA C. J. This appeal on a certificate granted by the High Court of Judicature at Bombay is directed against the judgment and order of a Division Bench of that Court, dated March 12,1959, reversing those of the judge of the Bombay Civil Court, passed in Chamber Summons, in Arbitration case No. A.B.N./C.H.O. 2310/88 of 1954 55. It is necessary to state the following facts in order to bring out the points in controversy between the parties. The Happy Home Cooperative Housing Society Ltd hereinafter referred to as the Society was registered in February 1949. It obtained a lease of a piece of land measuring about 12 thousand sq. yards situate at Nehru Road, Vile Parle (East) Bombay. The Society divided this land into 17 plots to be allotted to each one of its members for building purposes. A member was under the obligation of payment of premium, annual rent of Re. 1/ , and other incidental charges and to construct a house on the plot. The Society advanced loans to the members to enable them to construct their houses. The premium in respect of the land and the loan advanced, as aforesaid, together with interest, was repayable in monthly installments. Accordingly, Plot. No. 10, measuring about 676 sq. was allotted to the appellant, and other plots were similarly allotted to other members for constructing their respective houses. Through the agency of the Society, the appellant constructed a house on his plot. The construction was completed and the appellant 967 occupied the building on or about May 1, 1951. The sum of Rs. 26,922/ odd was advanced by way of loan, to the appellant. An agreement dated March 26, 1952 was entered into between the appellant and the Society in respect of the loan aforesaid, and the document was duly registered on May 27, 1952. The agreement between the appellant and the Society provided that the amount of loan aforesaid advanced to the appellant should be repaid in 366 or smaller monthly instalments and after the entire amount of the loan had been repaid, the Society would execute a sub lease in respect of Plot No. 10 in favour of the appellant. It was further stipulated that in the event of default in the payment of an instalment, fixed in the agreement, the Society had the right to determine the agreement; and thereupon any amounts already paid would be forfeited to the Society and the member was to surrender the property and give vacant possession of the premises to the Society. It appears that no instalment was paid by the appellant with the result that on August 26, 1954, the Society gave notice to him, calling upon him to give vacant possession of the premises, but the appellant did not comply with the notice. In view of the persistent refusal of the appellant to comply with the terms of the agreement, the Society referred to dispute with the appellant under section 54 of the Bombay Co operative Societies Act (Bombay Act VII of 1925) which hereinafter will be referred to as the Act, to the Registrar for decision by himself or his nominee. The said dispute was heard and decided by a Committee of Arbitrators, appointed by the Registrar, Co operative Societies, consisting of three gentlemen. (1) a nominee of the Society as plaintiff, (2) nominee of the Appellant, as defendant, and (3) nominee of the Registrar, who was to be the Chair man. The said Committee of Arbitration, by majority, gave an award in favour of the Society to the effect that the appellant do deliver vacan 968 possession of Plot, No. 10, alongwith the house, to the Society and pay Rs. 150/ per month as compensation for unauthorised use and occupation of the premises from October 1, 1954, to the date of the delivery of vacant possession. The appellant was also made liable for payment of costs of the arbitration proceedings. Thereupon the appellant made a revisional application to the Bombay Co operative Tribunal, contending that the dispute between the Society and himself was essentially a dispute between landlord and tenant regarding the possession of the premises and the recovery of rent and that the only Court that had jurisdiction to decide such a controversy was the Small Causes Court in Greater Bombay, in view of section 28 of the Bombay Rents, Hotel and Lodging House Rents Control Act (Bombay Act 57 of 1947). After hearing the parties, the Tribunal negatived the contention raised on behalf of the appellant and dismissed the revisional application. After the Award was certified under section 59 of the Act, the Award was filed in the Bombay City Civil Court for execution. Thereupon the appellant took out a Chamber Summons against the Society for stay of the execution proceedings. The learned Judge who heard the Chamber Summons held that the Award made by the Arbitrators was without jurisdiction, in view of the provisions of section 28 of the Rent Control Act. Accordingly, the summons was made absolute on October 16, 1956. From that order the Society came up in appeal to the High court. The High Court, on a consideration of the terms of the agreement aforesaid, of March 26, 1952, and after elaborate arguments raised by the parties as to the legal effect of that document came to the conclusion that it was only an agreement to lease, binding the Society to grant a sub lease only after the appellant had fully paid all the instalments due, and fulfilled other conditions of the agreement, as stipulated between the parties. In that view of the matter, the High Court held that there was no 969 relationship of landlord and tenant between the parties. In the result, the learned judges set aside the order under appeal before them, and directed that the execution of the Award be proceeded with in accordance with law, with costs to the Society in both the Courts. It is from this judgment and order that this appeal has been brought to this Court, on a certificate being granted by the High Court. The main question in controversy in this case is whether the Award made under the Act, which became a decree of the Civil Court, under the certificate of the Registrar; under section 59, was without jurisdiction, and, therefore, incapable of execution. The answer to this question depends upon the answer to the other question whether the appellant was a 'tenant ' under the Society, by virtue of the agreement aforesaid of March 26, 1952. If it is held that the agreement aforesaid did not create the relationship of landlord and tenant, but that the appellant continued to be the debtor of the Society until all the outstanding amount advanced to him in respect of the plot and the structure bad been liquidated, the Rent Control Act, and section 28 thereof, will be out of the way of the parties. In that case, the proceedings before the Registrar, the Award of the Arbitrators and the execution proceedings taken out by the Society would all be adjudged to be valid and binding upon the parties. It is noteworthy that though the determination of the appeal depends upon the terms of the agreement of March 26, 1952, it has not been included in the printed paper book. We have, therefore, to depend upon the extensive quotations of the terms of the document as contained ;In the judgment under appeal. It is common ground that all the relevant terms of the document, beginning from the preamble to almost the end of it, have been quoted in different parts in the judgment of the High Court, 970 and that these are sufficient to give us a complete idea of the terms of the agreement. The agreement has been described by the Society in the plaint filed before the Arbitrators as 'a lease ' and the appellant has been described as a 'tenant ', and if the case were to be decided on the so called admissions in the plaint, the conclusion could easily be arrived at that the relationship between the parties was that of landlord and tenant. But as pointed out by the High Court, if we refer to the terms of the agreement itself, it will be abundantly clear that on a proper construction of those terms, there was no executed lease between the parties, but that it was only an executory contract entitling the appellant to a sub lease by the Society, which was itself a lessee, upon payment of all the dues of the Society in respect of premium, principal and interest, advanced towards the cost of construction of the premises and fulfillment of all other conditions contained in the agreement. It consists of 14 clauses, as the judgment of the High Court says. It further appears from the said judgment that the agreement starts by saying that it has been entered into between the Society of the one part, and the appellant, hereinafter called the 'tenant ' of the other part. In Part II of the preamble it is stated that the 'tenant ' has applied to the Society for Plot No. 10 and for permission to erect a dwelling house thereon and for a loan from the Society. The preamble also mentions the fact that the Society itself had taken a lease of the entire open piece of land, of which plot No. 10 was a part, for a term of 999 years from March 17, 1950, at the annual rent of Rs. 6,264/ . Part III of the preamble proceeds to say that the Society has already spent money on development of the land and laying out roads, etc., and that it had been agreed between the Society and the 'tenant ' that the letter will pay a sum of Rs. 10,020/ in instalments for transfer of Plot No. 10, and that the society shall grant a loan to the 'tenant ', not exceeding Rs. 16,980/ for erecting 971 the structure on that plot, to be advanced in instalments and repayable in instalments, as hereinafter provided. Part V of the preamble is important in so far as it has stated, in clear terms, that whenever the 'tenant ' shall have repaid to the Society all the outstanding dues, either in equated monthly instalments or in one lumpsum, at the option of the "tenant ', the Society, with the consent of the Government as mortgagee, shall grant to the 'tenant ', a sublease of the said Plot No. 10. free from all encumbrances for a term of 998 years commencing from Match 17, 1950. Then follow the clauses of the agreement. The first clause grants permission to the 'tenant ' to enter upon the said plot for erecting a dwelling house in accordance with the plan, elevation and estimates, previously approved in writing by the Society. Then clause 3 follows, which is substantially in the same terms as Part V of the preamble. It makes it absolutely clear that only upon payment of all the outstanding dues of the Society, in respect of premium for the plot and advance made for building the residential house, alongwith interest accrued thereon, the Society shall grant and the "tenant ' shall accept a sub lease of the said Plot No. 10. It maybe mentioned here that the mortgage in favour of the Government has reference to the advance by the Government of a large sum of money to the Society with a view to financing its building activities. For securing the payment of that lumpsum, the entire area of land was mortga ged to the Government. Hence, it was necessary to obtain the previous consent of the Government as mortgagee to the execution of the sub lease, contemplated by Part V of the preamble and clause 3 of the agreement. And then follow details of how the installments have to be paid. Clause 8 of the agreement provides that the proposed sub lease shall be in the form now approved and signed by and on behalf of the parties, and when the said principal money and interest have been fully paid, the necessary 972 document shall be executed by the Society. Further, clause 9 of the agreement provides that as from the date of the agreement, the 'tenant ' shall punctually and regularly pay to the Society, without any deductions, firstly, a rent of one rupee per annum, if demanded, secondly a proportionate amount of rent payable to the superior landlord in respect of Plot No. 10, thirdly a proportionate amount of assessment rates and taxes paid by the Society in respect of Plot No. 10, fourthly, a sum equal to the amount spent by the Society for insuring the building with reference to Plot No. 10, and., lastly, such further sum as may from time to time be certified by the Society as the contribution by the occupier of Plot No. 10 towards the general expenses of management, maintenance and development costs, including expenses incurred on roads, sewers, drains and other amenities. Clause 10 provides for the penalty in the event of a default made by the 'tenant ' in respect of any sums payable as aforesaid. It says that in the event of a default by the "tenant ' the Society shall be entitled to serve notice in writing determining the agreement and thereupon all installments and other moneys paid by the "tenant ' under the agreement shall be forfeited to the Society and shall become the absolute property of the Society. And what follows is most important. it says that upon the determination of the agreement, the 'tenant ' shall forthwith surrender and give to the Society vacant possession of the said premises. Clause 11 makes reference to the fact that premises were mortgaged to the Governor of Bombay to secure the loan advanced to the Society by the Government of Bombay, and so long as the mortgage remains subsisting, the Governor of Bombay shall be a necessary party to any such sublease, to be hereinafter executed as aforesaid,, and no such sub lease shall be valid unless and until the same shall be executed by the Registrar of Cooperative Societies on behalf of the Governor of 973 Bombay. And lastly, clause 12 says that the "tenant ' shall accept the title of the Society to grant the said sub lease without any questions or making any requisitions or objections with regard to the title. It was argued in the High Court though not in the Trial Court, that on the terms aforesaid of the agreement, a present demise of the land had been executed in favour of the appellant. This argument was thought of in the High Court. In the lower Court, the Appellant 's counsel relied on section 27 A of the Specific Relief Act, and it was submitted that the defendant was entitled to defend his possession even though no lease had been executed and registered, as required by law. The argument that the appellant had become the 'tenant ' of the land in question under the Society was thought of because, in the agreement, he was referred to as the 'tenant '. In our opinion, the High Court is entirely correct in taking the view that was a mere description, or misdescription, of the appellant and that, in law, the appellant could not claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as 'tenant '. It is well settled that the real nature of a transaction has to be determined on a proper construction of the document as a whole and not upon any particular words used in the document. The agreement construed as a whole leaves no manner of doubt that it was an agreement between the appellant and the Society to grant a sub lease of Plot No. 10 only after the appellant had fulfilled his part of the agreement, namely, had paid all the outstanding amounts due to the Society in respect of the premium on the plot, the amounts advanced for 974 construction of the house and the interest accrued due until the entire amount had been liquidated. The sub lease would have to be executed by the Registrar of the Co operative Societies in token of the consent of the Government of Bombay, which was a condition precedent to the validity of the sub lease. The agreement in question, therefore, evidences nothing more than an executory contract that on the appellant fulfilling his obligations to the Society, including the payment of the entire dues aforesaid, the Society would execute the sub lease in his favour subject to the consent of Government of Bombay, who held the first mortgage on the entire land, including Plot No. 10. It would thus appear that the entire transaction was that practically a permanent lease had been taken by the Society in respect of the open area, which was sub divided into a number of plots for building purposes. Those plots were to be allotted to the members of the Society in order to enable them to erect their own residential houses, on the terms that the Society would grant to the members such amounts by way of loan as would cover the premium on the plot allotted to them and further sum for building a house at a certain rate of interest. On the completion of the house, the members would occupy the premises and start paying in monthly instalments the dues of the Society towards principal and interest until the last instalment will have been paid and all the outstanding dues of the Society liquidated. Upon the happening of that event, the Society undertook to execute in favour of the members sub leases in respect of their respective plots on which they had built their residential houses. As the whole scheme of the Society was financed by the Government of Bombay, the Government was naturally a necessary party to the transaction. In the first instance, the whole plot was mortgaged to the Government and that mortgage was to subsist until the Government dues had been entirely liquidated. Therefore, it became necessary that the Registrar, as the agent of the Government, should be a necessary party to the execution of the sub leases in favour of the members to whom the several plots had been allotted and the houses built on advance made by the Society out of the funds made available to it by the Government. It has not been contested on behalf of the appellant that he did not pay any instalment in respect of the transaction in his favour. He had, therefore, not qualified for being granted a lease of Plot No. 10, which had been allotted to him, under the building scheme of the Society. Upon his de fault there was no option left to the Society but to determine the agreement and to call upon him to surrender vacant possession of the property. Hence, though he was characterised as a 'tenant ' under the agreement, it really meant the 'proposed tenant '. It was merely descriptive of the appellant for the sake of convenience of expression. He would have become a tenant only if he had paid all the dues, as aforesaid. , of the Society and had taken a sub lease duly executed and registered in accordance with the terms of the agreement, referred to above in detail. As he failed to do that, the laws laid down in the Act, in order to realise the dues of the Society, had to be put into operation. The Award was, therefore, a perfectly valid Award and there was absolutely no justification for the plea taken by the appellant that he was a tenant who was governed by the provisions of the Rent Control Act (Bombay Act 57 of 1947). But the appellant contended that whatever view we may take of the relation created by the document, by virtue of section 28 of Bombay Act 57 of 1947 the Committee of arbitrators appointed under the Bombay Cooperative Societies Act 7 of 1925 had no jurisdiction to adjudicate upon the question 976 whether the appellant was a tenant of the premises of the society, and reliance in that behalf was placed upon the judgment of this Court in Babulal Bhuramal vs Nandram Shivram (1). In considering that argument attention must first be invited to Section 28 of Bombay Act 57 of 1947, which in so far as it is material, provides : "(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay; (aa) x x x x (b) x x x x shall have jurisdiction to entertain and try any suit or proceeding between a landlord, and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub section (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. " It was urged that as before the Committee of arbitrators the Society had claimed that the appellant was a tenant of the Society, and relief for possession of the premises was claimed on that footing ', the arbitrators had no jurisdiction to grant relief for possession. But there is no warrant for the submission that the Society claimed before the arbitrators that (1) A.I.R. (1959) S.C. 677. 977 the appellant was a tenant and on that basis claimed relief for possession. The pleadings before the arbitrators are not included in the record, and on a reasonable reading of the award also no such inference can be raised. Before the Committee of arbitrators the Society had alleged that the appellant had made persistent defaults in repayment of the loan due by him and had claimed a declaration that the appellant had ceased to be a member of the Society, and an Order for delivery of vacant possession of the premises belonging to the Society. It was, it appears, not alleged that any relation of landlord and tenant had ever subsisted between the Society and the appellant, and the plea of the appellant that he was a tenant in respect of the premises in dispute could not affect the jurisdiction of the committee of arbitrators. No useful purpose will therefore be served by entering upon a discussion whether the provisions of section 28 of Bombay Act 57 of 1947 override the provisions of the Bombay Co operative Societies Act 7 of 1925, as was suggested at the Bar. Alternatively, it was contended that even if the Society claimed to obtain an order for possession on some footing other than the relationship of landlord and tenant, when the appellant raised the contention that he was a tenant and the relationship of landlord and tenant was put into issue, the Court of Small Causes, Bombay, alone was competent to decide that question. Section 298 of Bombay Act 57 of 1947 excludes the jurisdiction of all courts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims 'or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Co oprative Societies Act is a Court, on this question we do not deem it necessary to express any opinionin order that his jurisdiction be excluded the proceeding before him must be between landlord and 978 tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in section 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary court by an allegation that be stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. There is nothing in the judgment of this Court in Babulal Bhuramal 'a Case (1), which supports the view that by merely setting up a Plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulal 's case (1), may be noticed. The landlord filed in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had no right to be on the premises. The Court held that those two persons were not lawful sub tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defen dants then commenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay confirmed the decree holding that the City Court had no jurisdiction to entertain the suit, but expressed no opinion on the merits. This Court affirmed the view of the High Court. The Court in that case was considering (1) A.1,R. 979 the true effect of section 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on p. 681 : "The suit did not cease to be a suit between a landlord and a tenant merely because the de fendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a pro per interpretation of the provisions of section 28 one suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning Of the Act subsists between the parties. " There is nothing in these observations to support the plea that the jurisdiction of the ordinary courts to try a suit or proceeding relating to recovery of possession of any premises to which Part 11 of the Act applies is displaced as, soon as the contesting party raises a plea about the relationship of a landlord and a tenant. In the result the appeal fails and is hereby dismissed with costs. Appeal dismissed.

IN-Abs

The respondent obtained a lease of land to be allotted to its members for building purposes and advanced loans for construction. The premium in respect of the land and the loan advanced, together with interest, were repayable in monthly installments. Through the agency of the society, the appellant completed the construction and occupied the building. An agreement between the appellant and the society was duly registered which provided that the loan advanced to the appellant should be paid in 366 or smaller monthly installments, and after the entire amount of the loan had been repaid, the society would execute a sub lease in respect of the plot in favour of the appellant. In the event of default in the payment of an installment, fixed in the agreement, the society hand the right to determine the agreement, and thereupon any amount already paid would be forfeited to the society, and the member was to surrender the property and give vacant possession of the premises to the society. In view of the default in payment and persistent refusal of the appellant to comply with the terms of the agreement the society referred the dispute to the Registrar, Co operative Societies, for decision by himself or his nominee. The Committee of Arbitrators, appointed by the Registrar, gave an award in favour of the society asking the appellant to deliver vacant possession of the plot and the house to the society and to pay compensation for unauthorised use and occupation of the premises and to pay costs of the arbitration proceedings. Against the aforesaid order, the appellant 's revisional application was also dismissed by the Tribunal. The 965 award was certified and filed in the Bombay City Civil Court for execution. The appellant, thereupon, took out chamber summons for stay of the execution proceedings on the ground that the Award made by the Arbitrators was without jurisdic tion for the reason that under the agreement between the society and the appellant a relationship of landlord and tenant was created and that under the Bombay Rent Control Act 57/47 the Court of Small Causes was vested with exclusive jurisdiction to decide claim for recovery of rent or possession. The learned judge made the summons absolute. On appeal by the society, the High Court set aside the order and directed the execution of the Award to proceed. On appeal by certificate this Court. Held, (i) on a proper construction of the agreement as a whole, it was an executory contract and on the appellant fulfilling his obligations to the society, including the payment of the entire dues, the society would execute the sub lease in his favour subject to the consent of the Government who held the first mortgage on the entire land. Until the sub lease was executed no relationship of landlord and tenant subsisted between the parties. As the appellant failed to fulfill his part of the agreement, the law laid down in the Act, in order to realise the dues of the society, had to be put into operation. The Award was, therefore, a valid Award and there was absolutely no justification for the plea that the appellant was a tenant governed by the provisions of the Rent Control Act. (ii) in order that the jurisdiction of an arbitrator, appointed under the Bombay Co operative Societies Act, be excluded, the proceedings before him must be between landlord and tenant, and relate to the recovery of rent or possession of any premises to which the provisions of Part II of the Act applied. The exclusion of the jurisdiction of courts other than those named in section 28 of the Bombay Act 1947 arose only if the claim of the applicant or plaintiff was based on the allegation that between him and the respondent or the defendant there was a relationship of landlord and tenant and the relief sought was one that we s referred to in that section. Babulal Bhuramal vs Nandram Shivram A.I.R. 1958 section C. 677, held inapplicable.

l Appeals Nos. 176 and 176 A of 1952. Appeals by Special Leave granted by the Supreme Court on the 20th February, 1952, and 23rd May, 1952, respectively, from the Judgment and Order dated the 6th December, 1951, of the High Court of Judicature in Assam at Gauhati in its Revenue Appellate Jurisdiction (Deka J.) in Revenue Appeal No. 65 (M) of 1951. C. K. Daphtary, Solicitor General for India (Nuruddin Ahmed, with him) for the appellant in Civil Appeal No. 176. B. B. Tawakley (K. B. Asthana, with him) for the respondent in Civil Appeal No. 176. R. K. Chaudhury (Jai Gopal Ghosh and R. N. Tikku, with him) for respondent No. 2. in Civil Appeal No. 176 and appellant in Civil Appeal No. 176 A. 1953. April 14. The Judgment of the Court was delivered by BOSE J. This is a curious case in which the State Government of Assam having granted the first respondent a lease later cancelled its grant and regranted it to another party and now contends that it is not bound by the laws and regulations which ordinarily govern such transactions. Assam is blest with fisheries which are under the control of and belong to the State Government. Periodically the fishing rights are ]eased out to licensees and the State derives considerable revenue from this source. So valuable are these rights that as long ago as 1886 it was considered undesirable to leave such a lucrative source of revenue, to the unfettered 867 discretion and control of either the Provincial Government or a single individual however eminent. Accordingly, legislation was enacted and Regulation I of 1886 (The Assam Land and Revenue Regulation, 1886) was passed into law. A Register of Fisheries had to be kept and the Deputy Commissioner was empowered, with the previous sanction of the Chief Commissioner (later Provincial Government), to declare any collection of water to be a fishery. Once a fishery was so declared no person could acquire fishing rights in it except as provided by rules drawn up under section 155. These rules, with alterations made from time to time, were still operative at all dates relevant and material to this case. Put shortly, the effect of these rules at the dates mentioned here, was to require the fishing rights to be sold periodically by public auction in accordance with a particular procedure which was prescribed. These sales were called " Settlements. " Among the conditions of sale were the following : (1)The officer conducting the sale does not bind himself to accept the highest bid or any bid. (2)The purchaser shall immediately after the acceptance of his bid furnish as security etc. (3)The annual sale of fisheries in a district should be reported to the Commissioner for sanction in Form No. 100. The Form shows that each individual settlement had to be sanctioned. But the rules in force at the dates relevant to this case permitted a departure in these words: " Rule 190 A. No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government. " There is also the following rule: " 191. Fisheries should be settled to the best advantage but, subject to this condition, the agency of middlemen as lessees should be done away with as 868 far as possible. To effect this the fishery area should be broken up into blocks of such size that the actual fishers may be able to take the lease, which should be given, for preference, to the riparian land occupants or to the actual fishermen. The endeavour of the District Officer should be to do away with the middlemen by finding out who the sub lessees are and trying to come to terms with them. " The Rules also made provision for an appeal to the Revenue Tribunal (the High Court acted as such) in the following words : "190. All orders of a Deputy Commissioner or Sub Divisional Officer passed under these rules are appealable to the Revenue Tribunal. " The first respondent held previous leases of the fishery with which we are concerned for a number of years. The last of these was to expire on 31st March, 1951. Shortly before its expiry there was agitation by way of petitions and memorials by some of the local fishermen asking in effect that rule 191 be given effect to though the applications do not actually mention the rule. These applications, six in number, range in date from 27th October, 1950, to 13th March, 1951. They were addressed to various officials ranging from the Chief Minister and the Revenue Minister to the Secretary to Government and the Parliamentary Secretary and the Deputy Commissioner. Government therefore had all the facts fully before it. In view of these applications Government decided to settle the fishery direct and wrote the following letter to the Deputy Commissioner on 1st February, 1951: Government desire to settle the above mentioned fishery direct under rule 190 A. I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement. " By that date Government had four of the six applications to which we have referred before it. In addition, it had the recommendation of the Sub Deputy Collector 869 dated 4th January, 1951, in favour of these applications together with the Deputy Commissioner 's endorsement letter dated 5th January, 1951, confirming the facts set out in the Sub Deputy Collector 's endorsement and in the applications. The first respondent also made ail application to the Parliamentary Secretary on 13th March, 1951, before any final decision was reached. The Deputy Commissioner proceeded to auction the fishery on 24th February, 1951. , and on 26th February, 1951, forwarded the bid lists to the Government with a recommendation in the first respondent 's favour (his was the highest bid) in the following terms : The present lessee is managing the fishery well and there is nothing against him." After this, and before the final sanction, Government received still another petition from some of the local fishermen asking for a settlement in their favour. This was on 13th March, 1951. Therefore, by that date Government had six petitions from the local fishermen before it and one by the first respondent as well as the various recommendations made by the District officials. With all this material in its possession Government decided in favour of the first respondent and on 17th March, 1951, wrote to the Deputy Commissioner, with a copy to the Development Commissioner, as follows: " Government sanction settlement of the Chaiduar Brahmaputra and Kharoibeel fishery under rule 190 A with the existing lessee Shri Keshab Prosad Singh at an annual revenue of Rs. 17,700 for a term of three years with effect from the 1st April, 1951, on the usual terms and conditions. " The Deputy Commissioner conveyed this sanction to the first respondent on 21st March, 1951, and called on him to make the necessary deposits. The sanction is in the following terms: " You are hereby informed that Government have allowed settlement of Chaiduar Brahmaputra and Kharoibeel fishery with you at Rs. 17,700 per year 870 for 3 years with effect from 1st April, 1951. You are therefore directed to deposit the 1 /4 purchase money amounting to Rs. 4,425 on 28th March, 1951, and the balance of Rs. 13,275 in cash on 31st March, 195 1, failing which the settlement granted is liable to be cancelled. " According to all notions of contract current in civilised countries that would have constituted a binding engagement from which one of the parties to it could not resile at will, and had the first respondent tried to back out we have little doubt that the State Government of Assam would, and quite justifiably, have insisted on exacting its just dues. But the State Government did not feel itself hampered by any such old fashioned notions regarding the sanctity of engagements. On the very day on which it passed its orders in the first respondent 's favour, 17th March, 1951, it received two more petitions. They emanated from the same sources as before and said nothing new; but they asked for a reconsideration of the orders just passed. Had Government recalled its orders then and there, possibly no harm would have been done beyond exposing its vacillations to a limited official circle. But it allowed five davs to pass and then the Revenue Secretary wired the Deputy Commissioner not to recall the orders of Government, but to "stay delivery of possession" pending what the Revenue Secretary was pleased to call "further orders of Government on the revision petitions". But by then it was too late. The acceptance of the bid had already been communicated to the first respondent and by all ordinary notions the contract was complete. The State Government now says in effect, somewhat cynically, that it is not bound by the statutory rules and claims that that gives it the right to recall its previous orders and regrant the fishery to some other person or body more to its liking, or rather in whom it has discovered fresh virtueshidden from its view in its earlier anxious and mature deliberations. Acting on the telegraphic instructions received by him, the Deputy Commissioner conveyed the orders to the first respondent on 22nd March, 1951, and said; 871 "The under mentioned document is forwarded to Srijut Keshab Prosad Singh for information and necessary action. He is further informed that he is not to deposit the 1/4th purchase money and additional security. . till the decision of the revision petition mentioned in the telegram". Three weeks elapsed and then on 13th April, 1951, the State Government solemnly "reviewed" its former order and said: "It is reported by the Deputy Commissioner that the Gamiri Kharai Chaiduar Fishermen Society, Ltd., is constituted by bona fide fishermen. Accordingly, in view of the new circumstances brought forward by the above Society the review petition is allowed and the previous orders of Government dated the 17th March, 1951, is modified. The Chaiduar Brahmaputra and Kharaibeel fishery is accordingly settled with the Camiri kharaiChaiduar Fishermen Society Ltd. " The manager of this Fishermen 's Society is one Maniram Das. His name was put forward by 205 members who claimed to be bona fide Assamese fishermen in the petitions of 27th October, 1950, and 21st December, 1950, also by Manirani himself on behalf of this Society on 2nd January, 1951. Their claims were endorsed by the Sub Deputy Collector on 4th January, 1951, and by the Deputy Commissioner on 5th January, 1951. The same claims were again made by Manirani Das on behalf of the Society on 23rd January, 1951. The " new circumstances " said to have been discovered on review was the following statement made by the Deputy Commissioner on 3rd April, 1951: " Gamiri Kharai Chaiduar Society is formed by bona fide fishermen" The previous statement of the Sub Deputy Collector made on 4th January, 1951, was: "The applicants are all Kaibarta people in the district of Darrang whose sole business is to deal with 872 fish. . The applicants are Assamese people. In view of this and in view of the fact that these people have been recommended by respectable persons, I suggest that Kharai Chaiduar fishery" (the one in question here) " may be settled with them to encourage them to compete with the, other fishermen coming from outside Assam. " The Deputy Commissioner 's endorsement on this (the same Deputy Commissioner) dated 5th January, 1951, runs: " The petitioner (Maniram Das) is an actual fisherman as will appear from the report of the Sub Deputy Collector As observed by the Sub Deputy Collector. . it is a fact that the indigenous fishermen cannot compete with the upcountry people in open auction." To characterise the later statement of the Deputy Commissioner dated 3rd April, 1951, as disclosure of a new circumstance betrays a cynical disregard for accuracy on a par only with the Assam Government 's cynical disregard for its pledged word. The Deputy Commissioner was informed of the Government 's revised decision on 13th April, 1951, and on 16th April, 1951, the fishery was settled with Maniram Das and, according to the first respondent, the settlement in his name was cancelled. The first respondent 's reaction to this was to file an appeal to the High Court under rule 190 and at the same time to apply for a mandamus under article 226 of the Constitution. The relief sought was worded as follows : " The humble appellant, therefore, prays that your Lordships would be pleased to set aside the settlement of the fishery with the respondent and restore the settlement of the same with the humble appellant. " The High Court, not unsurprisingly on these facts. granted the prayer. It acted under rule 190 as an appellate tribunal and the only question for us to decide is whether it had jurisdiction to do so. The 873 mandamus petition is not before us. The appellant is the State of Assam. There is an ancient presumption under section 114, illustration (h), of the Evidence Act, dating from at least 1872, that official acts have been regularly performed. Strange as it may seem this applies to Governments as well as to lesser bodies and officials, and ancient though it is the rule is still in force. True, the presumption will have to be applied with caution in this case but however difficult the task it is our duty to try and find a lawful origin for as many of the acts of the appellant 's Government as we can. Now, as we have seen, prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive discretion of either Governments or officials and were placed under statutory regulation and control by sections 16 and 155 of the Assam Land. and Revenue Regulation of 1886 and we have already referred to the elaborate set of rules which were drawn up in pursuance of that Regulation. It follows that no fishery can be "settled" except in accordance with those Rules. It was not disputed that, apart from rule 190 A which we are now called upon to construe, the Deputy Commissioner alone could effect a "settlement" and, as we have shown, he was bound. to follow a prescribed procedure; also that his "settlement" was subject to the sanction of the Commissioner. Rule 190 A permits a departure but we do not consider it necessary in this case to determine the exact extent of the departure permitted because the Deputy Commissioner was directed to put the fishery to auction and he did so. The only departure from the rules was that instead of sending the result of the auction to the Commissioner for Settlement it was sent to the State Government direct. In our opinion, that was a permissible departure but it was for all that a departure within the Rules. In our judgment, the words " except with the previous sanction of the Provincial Government " are, 874 important. We do not consider that this permits the Provincial Government when it so wishes to lift the sales completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by executive action. Such a construction would make rule 190 A run counter to section 16 of the Regulation which requires these sales to be made in accordance with rules framed under section 155, and of course a rule making authority cannot override the statute. Accordingly, the law requires the sale to be under and in accordance with the rules. It follows that the departure contemplated by rule 190 A is also a departure within the four corners of the rules read as a whole and is a part of the rules. It is true the departure need not conform to the " preceding instructions " contained in the earlier portion of the rules but the departure once sanctioned itself becomes part and parcel of the rules. This is important because one of the statutory safeguards against arbitrary executive action is the appeal to the Revenue Tribunal, which in this case is the High Court. We would be slow to bold that this safeguard can be circumvented by the simple expedient of lifting a sale out of the rules whenever Government finds that convenient. It seems to us that if the intention was to authorise Government to lift the matter out of the rules altogether and to proceed in an executive capacity the word " sanction " would be out of place, for Government would hardly require its own previous sanction to something which it is itself authorised to do. The sanction must therefore refer to something which some other person or body is authorised to do, and in the context we feel that it can only mean sanction to the Deputy Commissioner to proceed in a manner which is not quite in accordance with the instructions con tained in the rules. The next question is, to what extent was a departure sanctioned? This is to be found in the letter dated 1st February, 1951, addressed to the Deputy Commissioner : 875 Government desire to settle the above mentioned fishery direct under rule 190 A. I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement ". The State of Assam wishes to construe this to mean that the Government of Assam intended to flout the statute and disregard the Rules and proceed by executive action. The words " direct settlement " do lend themselves to that construction but that would be an act which, in our opinion, would not be warranted by the law and, as we are bound to presume until the contrary is shown that the official acts of the Assam Government were regularly performed, we must, if we can, lean against a construction which would put that Government more in the wrong than we can help especially as it self purported to act under rule 190 A. Now the only act which would be in consonance with rule 190 A and which would at the same time be in conformity with the letter of the first February would be for the Deputy Commissioner to sell by auction and then send the matter to Government direct for sanction instead of to the Commissioner. That, in our opinion, would be a permissible departure and would make the action of Government legal and would bring the matter under rule 190 A. In the cir cumstances, we are bound to construe this letter in that sense. Now what did the Deputy Commissioner do ? So far as the actual auction was concerned, he followed the Rules. He held a regular auction and recorded the bids in the usual way. Up to that point he not only complied with the letter of the 1st February but also with the regular rules. His only departure was to send his choice of a lessee to Government direct instead of to the Commissioner. This, according to us, was a permissible departure. Upon receipt of the Deputy Commissioner 's recommendation Government sanctioned the settlement with the first respondent and the Deputy Commissioner communicated the sanction. 876 It was argued on behalf of the State of Assam that this was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only acting as its mouthpiece when he conveyed the orders of Government to the first respondent. our opinion, that is a mere playing with words. The substance of the thing is there. It would be illegal for Government to settle the fishery direct by executive action because of the statute. It would be proper for it to sanction the settlement under rule 190 A in the way it did. Government said it was acting under rule 190 A. It said it had " sanctioned " the settlement. Whose act was it sanctioning? Certainly not its own, for one cannot sanction one 's own act. Sanction can only be accorded to the act of another and tile only other person concerned in this matter was the Deputy Commissioner. Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound. It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules. That vested the first respondent with a good and legal title to the lease. Next followed a similar series of acts cancelling the settlement with the first respondent and resettling the fishery with the rival body. As the Deputy Commissioner was the only authority competent to settle these fisheries, subject of course to sanction, we are bound to hold that the act of cancellation and the act of resettlement were his acts however much lie may have acted under the direction and orders of a third party. That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190. When we say the Deputy Commissioner acted under the direction and orders of the State Government, we refer to the actual act of "settling" and not to his choice of a lessee. If this auction had proceeded in the normal 877 way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority, the Commissioner, for sanction. He would then have "settled" the fishery. In the present case, he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rule 190 A in place of the Commissioner. It was the Deputy Commissioner who made the initial choice. It was his choice which was " sanctioned " and it was he who in reality and in fact: " settled " the fishery with the first respondent. The mere fact that the State Government in addition to " sanctioning " his act also told him to " settle " the fishery could not alter or divest limit of his legal authority. This is not a case in which the Deputy Commissioner having been vested with a discretion failed to exercise it and acted as the mouthpiece of another. His discretion was to select a bidder and he did that without any outside pressure. There after his authority was to " settle " the fishery with the selected bidder once his act was sanctioned and the mere fact that lie was directed by another to do that which he would have been bound to do under the law in any event cannot divest the settlement of its legal and binding character. On the merits the High Court was abundantly right. We accordingly upheld its order and dismiss the appeal with costs payable to the first respondent. Civil Appeal No. 176 A of 1952. BOSE J. For the reasons given in our judgment in Civil Appeal No. 176 of 1952 pronounced to day, we dismiss the appeal without costs. Appeals dismissed. Agent for the appellant in Appeal No. 176: Naunit Lal. Agent for respondent No. 1 in Appeal No. 176 and respondent in Appeal No. 176 A: A. D. Mathur. Agent for respondent No. 2 in Appeal No. 176 and appellant in Appeal No. 176 A: K. R. Krishnaswamy.

IN-Abs

The Government of Assam, desiring to settle a fishery direct under r. 190 A of the rules framed under the Assam Land and Revenue Regulation (1 of 1886), directed the Deputy Commis sioner concerned to put the fishery to auction and submit the bid list to Government with his recommendation for direct settlement. The Deputy Commissioner accordingly auctioned the fishery and submitted the bid list with a recommendation in the first respondent 's favour. Government sanctioned the settlement of the fishery with the first respondent and the latter was informed of the acceptance of the bid and directed to make the deposits. Government received two more petitions on the same day for re consideration of the orders passed and three weeks later Government reviewed its order and settled the fishery with another person. The first respondent preferred an appeal to the High Court under r. 190 which provided that all orders of a Deputy Commissioner passed under these rules were appealable to the High Court: Held, the words " except with the previous sanction of the Provincial Government " in r. 190 A do not permit the Provincial Government when it so wishes to lift the sales completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by executive action. Such a construction would make r. 190 A run counter to section 16 of the Regulation which requires these sales to be made under and in accordance with the Rules. The departure contemplated by r. 190 A was a departure within the Rules. As the Deputy Commissioner was the only 112 866 authority competent to settle these fisheries, subject to sanction, the act of cancellation and the act of resettlement were his acts, however much he may have acted under the direction and orders of the Government, and the High Court had jurisdiction to entertain the appeal under r. 190. Judgment of the High Court of Assam affirmed.

Civil Appeal No. 310 of 1960. Appeal by special leave from the judgment and decree dated July 24, 1954, of the Board of Revenue (Uttar Pradesh) Allahabad, in Revision No. 20A of 1952/53. section P. Sinha and J. P. Goyal, for the appellants, N. N. Keswani, for respondent No. 2. 1962. December 7. The Judgment of the Court was delivered by AYYANGAR, J. This is an appeal by special leave against an order of the Board of Revenue, Uttar Pradesh which declined to order restitution under section 144, Civil Procedure Code in the following circumstances. The father of the 1st respondent was the Zamindar who filed a suit in the court of SubDivisional Officer, Tehsil Iglas at Aligarh for the eviction of Ram Prasad father of the appellants from certain plots of land situated in village Kanchiraoli in The district of Aligarh. The suit was decreed and in execution of that decree the Zamindar took possession. Thereafter Ram Prasad filed an appeal to the Additional Commissioner but this was dismissed in November, 1944. He then preferred a further appeal to the Board of Revenue but before it came on for hearing the dispute was settled and on March 28 1948 an application was filed for recording this compromise. The term of the compromise which is of relevance to the present appeal is that Ram Prasad was to be recognised as tenant of the land in dispute; in other words, the order for evicton 830 was nullified. The compromise was recorded and a decree in terms thereof was passed. Some attempt was made by the Zamindar to have the compromise set aside on grounds which it is not necessary to mention, but these attempts failed with the result, that it left the compromise decree passed by the Board in full force. It might however, be mentioned that the Zamindar immediately obtained possession in execution of the decree of the Sub Divisional officer, admitted one Data Ram and certain others as tenants and put them in possession of the property and this has led to all the subsequent complications in this case. On the strength of the compromise decree Ram Prasad applied for restitution of possession under section 144 of the Civil Procedure Code. This application was resisted particularly by Data Ram and others who had been inducted as tenants on the land, while the eviction proceedings were pending before the Additional Commissioner on appeal. The trial court allowed the application on the ground that Data Ram and others were bound by the rule of lis pendens and were not, therefore, entitled to retain the possession which they obtained during the proceedings for ejectment. From this order an ' appeal was taken by Data Ram and others to the additional commissioner who, for reasons which it is not necessary now to canvass, held that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to Symbolical possession as against the Zamindar. This order was taken to the Board in revision where, however, it was dismissed. It is to challenge the correctness of this order that this appeal has been filed. Learned Counsel for the respondent raised two preliminary objections to the hearing of this appeal The first objection was that this appeal was barred by res judicate. To understand this objection it is 831 necessary to state a few more facts. When the Board of Revenue upheld the order of the Additional Commissioner declining the prayer of the appellants for restitution they filed an application for review and when this was dismissed they brought the matter before the High Court by an application made to it under article 226 of the Constitution. The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dismissed the petition after 'elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to possession under the U. P. Zamindari & Land Reforms Act, 1950 and could not therefore be evicted by the application of the rule of lis pendens. No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave. The result is that there is now a decision of the High Court which has become final and binding on the parties. Learned Counsel for the respondent therefore contends that without the correctness of the decision of the High Court being challenged before us and the finality of that judgment impaired, the appellant is not entitled to bypass that decision and seek to practically obtain a reversal of it by attacking the correctness of the decision of the Board of Revenue. We consider this preliminary objection wellfounded. Learned Counsel for the respondent relied in supportof his submission on the decision of this Court in Daryao vs The State of U. P. (1). The question before the Court was whether, when the High Court dismissed a writ petition under article 226 after hearing a matter on the merits on the ground that no fundamental right was proved or contravened, (1) ; 832 a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party was permissible. This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under article 32 which is a Constitutionally guaranteed right, it looks to us that it would be afortiori so as regards an appeal under article 136 where the right to relief is discretionary. Learned Counsel for the appellant invited our attention to the decision of this Court in Chandi Prasad Chokhani vs State of Bihar (1) as lying down a rule not quite so inflexible as the decision in Daryao 's case ' would suggest, that it depended upon the facts of each case and that in a proper case dependent upon the discretion of the Court, this Court was competent to waive this rule and here the appeal notwithstanding that it meant that the decision of the High Court was bypassed. No doubt, there are a few observations of section K. Das, J., who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned judges upheld the preliminary objection and dismissed the appeal, these observations are only by way of obiter and cannot outweigh the expressdecision on the point in Daryao 's case. We might, however, point out that in Indian Aluminium Co.Ltd. vs Commissioner of Income tax, West Bengal (2) in which also the judgment was delivered by section K. Das,J., the reasoning of the learned judge who upheld a similar preliminary objection is more in line with the decision in Daryao 's(3) case though the latter judgment which was delivered on the same day as in the Indian Aluminium Co. 's case (2) is not naturally referred to. The learned judge observed : (1) ; (3) [1962) I S.C.R, 574. 833 "The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above (no appeal was preferred against the order of the High Court refusing to make a reference under section 66(2) of the Income Tax Act) special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under article 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under section 66 of the Act. . . . We hold that special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under article 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court." This preliminary objection therefore has to be upheld. The other preliminary objection raised was this. The application for special leave filed by the appellant was out of ' time and the delay in filing it was condoned by this Court without notice to the respondent. Learned Counsel sought to urge that there were no grounds for condoning the delay and that for this reason the leave granted should be revoked. In view, however, of our decision on the first objection raised we do not consider it necessary to deal with this. The result is that the appeal failes and is dismissed with costs.

IN-Abs

The father of respondent No. 1, who was the Zamindar, filed a suit for the eviction of Ramprasad, the father of appell ants, from certain plots of land. The suit was decreed and the Zamindar took possession of the land. Ramprasad filed an appeal before the Additional Commissioner but the same was dismissed . He preferred a second appeal before the Board of Revenue during the pendency of which the matter was compromised whereunder he was recognised as tenant of the land in dispute and the order of eviction was; thus nullified. He applied for restitution of possession under section 144 of the Code of Civil Procedure. The application was resisted by Dataram and others who had been inducted as tenants on these plots of land during the pendency of the appeals. The trial court allowed the application but its order was reversed by the Additional Commissioner who held that the newly inducted tenants could not be dispossessed. Its order was affirmed by the Board of Revenue in revision. Thereafter fie filed a petition under article 226 of the Constitution in the High Court challenging the decision of the Board of Revenue, but that petition was dismissed on merits. No appeal was attempted to be filed against the order of the High Court either by applying for a certificate or moving this Court for special leave under article 136. The appellants have instead come to this Court in appeal by special leave against the order of the Board of Revenue. A preliminary objection was raised on behalf of of the respondent that the appeal was not maintainable as it was barred by res judicata. Held, that the appeal was barred by res judicata as the decision of the High Court was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings. 829 Daryao vs State of U. P., [19621 1 section C. R. 574 and Indian Aluminium Co. Ltd. V. The Commissioner of Income tax, West Bengal, (1961) 43 , relied on. Chandi Prasad Chokhani vs State of Bihar, [1962] 2 section C. R. 276, explained.

Appeal No. 486 of 1963. Appeal from the judgment and order dated September 27, 1962, of the Calcutta High Court in Appeal from Original Decree No. 424 of 1962. S.Chaudhuri, R. C. Deb and section section Shukla, for the appellant. Hari ' Prosonna Mukherjee, K. G. Hazra Chaudhari and D. N. Mukherjee, for the respondents Nos. 1 and 2. August 14, 1963. This is an appeal on a certificate granted by the High Court of Calcutta under article 133(1)(c) of the Constitution. No preliminary objection having been taken as to the competency of the certificate, we have heard the appeal on merits. The short facts giving rise to the appeal are these The appellant before us is Gurugobinda Basu who is a chartered accountant and a partner of the firm. of auditors carrying on business under the name and style of G. Basu and Company. This firm acted as the auditor of certain 313 companies and corporations, such as the Life Insurance Corporation of India, the Durgapur Projects Ltd., and the Hindustan Steel Ltd., on payment of certain remuneration. The appellant was also a Director of the West Bengal Fi nancial Corporation having been appointed or nominated as such by the State Government of West Bengal. The appointment carried with it the right to receive fees or remuneration as director of the said corporation. In February March, 1962, the appellant was elected to the House of the People from Constituency No. 34 (Burdwan Parliamentary Constituency) which is a single member constituency. The election was held in February, 1962. There were two candidates, namely, the appellant and respondent No. 3 to this appeal. The appellant was declared elected on March 1, 1962, he having secured 1,55,485 votes as against his rival who secured 1,23,015 votes. This election was challenged by two voters of the said constituency by means of an election petition dated April 10, 1962. The challenge was founded on two grounds : (1) that the appellant was, at the relevant time, the holder of offices of profit both under the Government of India and the Government of West Bengal and this disqualified him from standing for election under article 102 (1)(a) of the Constitution; and (2) that he was guilty of certain corrupt practices which vitiated his election. The second ground was abandoned at the trial, and we are no longer concerned with it. The election Tribunal held that the appellant was a holder of offices of profit both under the Government of India and the Government of West Bengal and was therefore disqualified from standing for election under article 102(1)(a) of the Constitution. The Election Tribunal accordingly allowed the election petition and declared that the election of the appellant to the House of the People was void. There was an appeal to the High Court under section 116 A of the Representation of the People Act, 1951. The High Court dismissed the appeal, but granted a certificate of fitness under article 133(1) (c) of the Constitution. The only question before us is whether the appellant was disqualified from being chosen as, and for being, a member of the House of the People under article 102(1)(A) of the Constitution. The answer to the question depends 21 2 S C India/6 314 on whether the appellant held any offices of profit under the Government of India or the Government of any State other than such offices as had been declared by Parliament by law not to disqualify their holder. It has not been seriously disputed before us that the office of auditor which the appellant held as partner of the firm of G. Basu and Company was an office of profit. It has not been contended by the appellant before us that the office of profit which he held had been declared by Parliament by law not to disqualify the holder. Therefore the arguments before us have proceeded entirely on the question as to the true scope and meaning of the expression "under the Government of India or the Government of any State" occurring in cl. (a) of article 102(1) of the Constitution. The contention on behalf of the appellant has been that on a true construction of the aforesaid expression, the appellant cannot be said to hold an office of profit under the Government of India or the Government of West Bengal. On behalf of the respondents the contention is that the office of auditor which the appellant holds is an office of profit under the Government of India in respect of the Life Insurance Corporation of India, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., and in respect of the West Bengal Financial Corporation of which the appellant is a Director appointed by the Government of West Bengal, he holds an office of profit under the Government of West Bengal. These are the respective contentions which fall for consideration in the present appeal. It is necessary to state here that if in respect of any of the four companies or corporations it be held that the appellant holds an office of profit under the Government, be it under the Government of India or the Government of West Bengal, then the appeal must be dismissed. It would be unnecessary then to consider whether the office of profit which the appellant holds in respect of the other companies is an office of profit under the Government or not. We would therefore take up first the two companies, namely, the Durgapur Projects Ltd., and the Hindustan Steel Ltd., which are 100% Government companies and consider the respective contentions of the parties before us in respect of the office of auditor which the appellant holds in these two companies. If we hold that in 315 respect of any of these two companies the appellant holds an office of profit under the Government of India, then it would be unnecessary to consider the position of the appellant in any of the other companies. It is not disputed that the Hindustan Steel Ltd., and the Durgapur Projects Ltd. are Government companies within the meaning of section 2(18) read with section 617 of tile Indian . It has been stated before us that 100% of the shares of the Durgapur Projects Ltd. are held by the Government of West Bengal and 100% of the shares of the Hindustan Steel Ltd. are held by the Union Government. We may now read section 619 of the Indian . "(1) In the case of a Government company, the following provisions shall apply, notwithstanding any thing contained in sections 224 to 233. (2)The auditor of a Government company shall be appointed or re appointed by the Central Government ,on the advice of the Comptroller and Auditor General of India. (3)The Comptroller and Auditor General of In dia shall have power (a)to direct the manner in which the company 's accounts shall be audited by the auditor appointed in pursuance of sub section (2) and to give such auditor instructions in regard to any matters relating to the performance of his functions as such : (b) to conduct a supplementary or test audit of the company 's accounts by such person or persons as he may authorise in this behalf; and for the purposes of such audit, to require information or additional information to be furnished to any person or persons so authorised, on such matters, by such person or persons, and in such form, as the Comptroller and Auditor General may, by general or special order, direct. (4) The auditor aforesaid shall submit a copy of his audit report to the Comptroller and Auditor General of India who shall have the right to comment upon, or supplement, the audit report in such manner ,as he may think fit. (5) Any such comments upon, or supplement 316 the audit report shall be placed before the annual general meeting of the company at the same time and in the same manner as the audit report. " It is clear from the aforesaid provisions that not with standing section 224 of the Act which empowers every company to appoint an auditor or auditors at each annual general meetings, the appointment of an auditor of a Government company rests solely with the Central Government and in making such appointment the Central Government takes the advice of the Comptroller and Auditor General of India. Under section 224(7) of the Act an auditor appointed under section 224 may be removed from office before the expiry of his term only by the company in general meeting, after obtaining the previous approval of the Central Government in that behalf. The remuneration of the auditors of a company is to be fixed in accordance with the provisions of sub section (8) of section 224. It is clear however that sub section (7) of section 224 does not apply to a Government company because the auditor of a Government company is not appointed under section 224 of the Act, but is appointed under sub section (2) of section 619 of the Act. It is clear therefore that the appointment of an auditor in a Government company rests solely with the Central Government and so also his removal from office. Under sub section (3) of section 619 the Comptroller and Auditor General of India exercises control over the auditor of a Government company in respect of various matters including the manner in which the company 's accounts shall be audited. The Auditor General has also the right to give such auditor instructions in regard to any matter relating to the performance of his functions as such. The Auditor General may conduct a supplementary or test audit of the company 's accounts. by such person or persons as he may authorise in this behalf. In other words, the Comptroller and Auditor General of India exercises full control over the auditors of a Government company. The powers and duties of auditors in respect of companies other than Government companies are laid down in section 227 of the Act but by virtue of sub section (1) of section 619 of the Act, the provisions in section 227 of the Act do not apply to a Government company because a Government company is subject to the provisions ,of section 619 of the Act. Under section 619 A of the Act, where the 317 Central Government is a member of a Government company, an annual report of the working and affairs of the company has to be prepared and laid before both Houses of Parliament with a copy of the audit report and the comments made by the Comptroller and Auditor General. Under section 620 of the Act the Central Government .may by notification direct that any of the provisions of the Act, other than sections 618, 619 and 639, shall not apply. to any Government company. The net result of the aforesaid provisions is that so far as the Durgapur Projects Ltd. and the Hindustan Steel Ltd. are concerned, the appellant was appointed an auditor by the Central Government; he is removable by the Central Gov ernment and the Comptroller and Auditor General of India exercises full control over him. His remuneration is fixed by the Central Government under sub section (8) of section 224 of the Act though it is paid by the company. In these circumstances the question is, does the appellant hold an office of profit under the Central Government? We may now read article 102(1) of the Constitution. (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder (b) (c) (d) We have stated earlier that the sole question before us is whether the office of profit which the appellant undoubtedly holds as auditor of the Durgapur Projects Ltd., and the Hindustan Steel Ltd. is or is not under the Government of India. According to Mr. Chaudhuri who has argued the appeal on behalf of the appellant, the expression "under the Government, occurring in article 102(1)(a) implies sub ordination to Government. His argument is that ordinarily there are five tests of such subordination, namely, (1) whe ther Government make , the appointment to the office; (2) whether Government has the right to remove or dis 318 miss the holder of office; (3) whether Government pays the remuneration; (4) what are the functions which the holder of the office performs and does he perform them for Government; and (5) does Government exercise any control over the performance of those functions. His argument further is that the tests must all co exist and each must show subordination to Government so that the fulfillment of only some of the tests is not enough to bring the holder of the office under the Government. According to him all the tests must be fulfilled before it can be said that the holder of the office is under the Government. His contention is that the Election Tribunal and the High Court were in error in holding that the appellant was a holder of office under the Government, because they misconstrued the scope and effect of the expression "under the Government" in article 102(1)(a) of the Constitution. He has contended that tests (3), (4) and (5) adverted to above are not fulfilled in the present case. The appellant gets his remuneration from the company though fixed by Government; he performs functions for the company and he is controlled by the Comptroller and Auditor General who is different from the Government. On behalf of the respondents it is argued that the tests are not cumulative in the sense contended for by the appellant, and what has to be considered is the substance of the matter which must be determined by a consideration of all the factors present in a case, and whether stress will be laid on one factor or the other will depend on the circumstances of each particular case. According to the respondents, the tests of appointment and dismissal are important tests in the present case, and in the matter of a company which is a 100% Government company, the payment of remuneration fixed by Government, the performance of the functions for the company and the exercise of control by the Comptroller and Auditor General, looked at from the point of view of substance and taken in conjunction with the power of appointment and dismissal, really bring the holder of the office under the Government which appoints him. One point may be cleared up at this stage. On behalf of the respondents no question has been raised that the Durgapur Projects, Limited, or the Hindustan Steel, Limi 319 ted, is a department of Government or an emanation 'of Governments question Which was considered at some length in Narayanaswamy vs Krishnamurthi(1). Learned counsel for the respondents has been content to argue before us on the basis that the two companies having been incorporated under the Indian are separate legal entities distinct from Government. Even on that footing he has contended that in view of the provisions of section 619 and other provisions of the Indian , an auditor appointed by the Central Government and liable to be removed from office by the same Government, is a holder of an office of profit under the Government in respect of a company which is really a hundred per cent Government company. We think that this contention is correct. We agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. , The Constitution itself makes a distinction between 'the holder of an office of profit under the Government ' and 'the holder of a post or service under the Government '; see articles 309 and 314. The Constitution has also made a distinction between 'the holder of an office of profit under the Government ' and 'the holder of an office of profit under a local or other authority subject to the control of Government '; see article 58(2) and 66(4). In Maulana Abdul Shakur vs Rikhab Chand and another(1) the appellant was the manager of a school run. by a committee of management formed under,the provisions of the Durgah Khwaja, Saheb Act, 1955. He was appointed by the administrator of the Durgah and was paid Rs. 100 per month. The question arose whether he was disqualified to be chosen as a member of Parliament in view of article 102(1)(a) of the Constitution. It was contended for the respondent in that case that under sections 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the power of, appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and super (1) I.L.R. [1958] Mad 513. (2) [1958] S.C.R. 387 320 vision of the Government and that therefore he was holding an office of profit under the Government of India. This contention was repelled and this court pointed out the distinction between 'the holder of an office of profit under the Government ' and 'the holder of an office of profit under some other authority subject to the control of Government '. Mr. Chaudhuri has contended before us that the decision is in his favour. He has argued that the appellant in the present case holds an office of profit under the Durgapur Projects Ltd. and the Hindustan Steel Ltd. which are incorporated under the Indian ; the fact that the Comptroller and Auditor General or even the Government of India exercises some control does not make the appellant any the less a holder of office under the two companies. We do not think that this line of argument is correct. It has to be noted that in Maulana Abdul Shakur 's case(2) the appointment of the appellant in that case was not made by the Government nor was he liable to be dismissed by the Government. The appointment was made by the administrator of a committee and he was liable to be dismissed by the same body. In these circumstances this Court observed: "No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting, within the four corners of the Act. Merely because the Committee or the members of the Committee are removable by the Government of India or the Committee can make bye laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office 'or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though pay [1958] S.C.R. 387. 321 ment from a source other than Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test. " It is clear from the aforesaid observations that in Maulana Abdul Shakur 's case(1) the factors which were held to be ,,decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that ,office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor. In the case before us the appointment of the appellant :as also his continuance in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal, that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government com panies within the meaning of the Indian and 1000% of the shares are held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor General who himself is undoubtedly holder of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office and removability therefrom. Under article 148 of the Constitution the Comptroller and Auditor General of India is appointed by the President and he can be removed from office in like manner and on the like grounds as a judge ,of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor General shall be such as may be determined by Parliament by law and until they are so determined shall be as specified in the Second Schedule to the Constitution. Under cl. (4) of article 148 the Comptroller and Auditor General is not eligible for further office either under the Government of India or under the Government of any 'State after he has ceased to hold his office. (5) of the said Article lays down that subject to the provisions of the 'Constitution and of any law made by Parliament, the administrative powers of the Comptroller and Auditor (1)[1958] S.C.R. 387. 322 General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General. Under article 149 of the Constitution the Comptroller and Auditor General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor General of India immediately before the commencement of the Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively. The reports of the Comptroller and Auditor General of India relating to the accounts of the Union have to be submitted to the President and the reports of the Comptroller and Auditor General relating to the accounts of 2 State have to be submitted to the Governor. From the aforesaid provisions it appears to us that the Comptroller and Auditor General is himself a holder of an office of profit under the Government of India, being appointed by the President and his administrative powers arc such as may be prescribed by rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament. Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, lie is removable from office by the Government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President. In Ramappa vs Sangappa(1) the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under article 191 of the ' Constitution, which is the counterpart of article 102, in the matter (1) [1959]1 S.C.R. 1167. 323 of membership of the State Legislature. It was observed therein: "The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements. The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation. " There again the decisive test was held to be the test of appointment. In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is, absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered. For the reasons given above we have come to the conclusion that the Election Tribunal and the High Court were right in coming to the ' conclusion that the appellant as an auditor 'of the two Government companies ' held an 324 office of profit under the Government of India within the meaning of article 102(1)(a) of the Constitution. As such he was disqualified for being chosen as, and for being, a member of either House of Parliament. It is unnecessary to consider the further question whether he was a holder of an office of profit either under the Government of India or the Government of West Bengal by reason of being an auditor for the Life Insurance Corporation of India or a Director of the West Bengal Financial Corporation. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant was a chartered accountant and a partner of a firm of auditors. This firm acted as auditors of two companies, among others, registered under the Indian , the entirety of the shares of one of which are owned by the Union Government and the entirety of the shares of the other by the West Bengal Government. The appellant was declared elected to the Lok Sabha. His election was challenged by two voters of the constituency by means of an election petition. The main ground raised was that the appellant was at the relevant period the holder of an office of profit under the Government of India as well as the State Government and hence he was disqualified from standing for election under article 102(1)(a) of the Constitution. The Election Tribunal accepted this contention and declared the election of the appellant void. The appellant filed an appeal before the High Court in which he did not succeed. The present appeal was by virtue of a certificate granted by the High Court under article 133(1)(c) of the Constitution. It was contended before this Court that on a true construction of the expression "under the Government of India or the Government of any State" occurring in cl. (a) of article 102 (I.) of the Constitution the appellant could not be said to hold an office of profit under the Government of India or the Government of West Bengal. It was argued that the various tests, namely, who has the power to appoint, who has the right to remove, who pays the remuneration, what are the functions and who exercises the control should all co exist and each must show subordination to the Government. The fulfillment of some of the tests alone, would not be sufficient to determine that a person holds an office of profit under the Government. It was contented on behalf of the respondent that the tests were not cumulative and that the court should look to the substance rather than to the form. Held : (i)For holding an office of profit, under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. 312 (ii)The examination of the various provisions of the Com panies Act, 1956 (sections 224, 227, 618 and 619) showed that so far as the two companies in question were concerned the appellant was appointed as an auditor by the Central Government, was removable by the Central Government, that the Comptroller and the Auditor General of India exercised full control over him and that his remuneration was fixed by the Central Government under sub section (8) of section 224 of the though it was paid by the companies concerned. (iii)Where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed and the power to determine the question of remuneration are all present in a given case then the officer in question holds the office under the authority so empowered. It is not necessary that all these must co exist nor is the fact that the source from which the remuneration is paid is not from public revenue decisive. (iv)The appellant held an office of profit under the Government of India within the meaning of article 102(1)(a) of the Constitution of India and as such he was disqualified for being chosen as a member of Parliament. Maulana Abdul Shakur vs Rikhab Chand, [1958] S.C.R. 387, distinguished. Ramappa vs Sangappa, ; , referred to.

iminal Appeal No. 3 of 1962. Appeal by special leave from the judgment and order dated September 20, 1961 of the Patna High Court in Criminal Appeal No. 124 of 1960. D. Goburdhan, for the appellant. S.P. Ferma, for the respondent. July 31, 1963. The judgment of the Court was delivered by AYYANGAR J. This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran. The appellant was charged with an offence under section 304A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence July 16, 1959, with the result that her latrine had become exposed to public view. Consequently the deceased among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there. The oral warnings, however, proved inef 201 fective and it was for this reason that on the facts, as found by the courts below, the accused wanted to make entry into his latrine dangerous to the intruders. Though some of the facts alleged by the prosecution were disputed by the accused, they are now concluded by the findings of the courts below and are no longer open to challenge and, indeed, learned Counsel for the appellant did not attempt to controvert them. The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous (1) the accused fixed up a copper wire across the passage leading up to his latrine, (2) that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was connected, (3) there was no warning that the wire was live, (4) the deceased managed to pass into the latrine without contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after. On these facts the Courts below held that the accused was guilty of an offence under section 304A of the Indian Penal Code which en acts : "304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. " The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this connection were two : (1) that at the time of the accident it was past day break and there was therefore enough light, and (2) that an electric light was burning some distance away. But it is manifest that neither of these could constitute warning as the conditions of the wire being charged with electric current could not obviously be de tected merely by the place being properly lit. The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a 'rash act ' done in reckless disregard of the serious consequences to people coming in contact with it. It might be mentioned that the accused was also cliar 14 2 section C. India/64 202 ged before the learned Sessions Judge with an offence under section 304 of the Indian Penal Code but on the finding that the accused had no intention to cause the death of the deceased he was acquitted of that charge. The principal point of law which appears to have been argued before the learned judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the course of the exercise of that right. The learned judges repelled this defence and in our opinion, quite correctly. The right of private defence of property which is set out in section 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of section 99 of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of section 99, nor of course of section 103 of the Code. As this defence was not pressed before us with any seriousness it is not necessary to deal with this at more length. Learned Counsel, however, tried to adopt a different approach. The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime. There is no substance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act. But that apart, learned Counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong. A trespasser is not an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in jury by direct violence and the same principle would 203 govern the infliction of injury by indirectly doing some thing on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth "an arrangement to shoot a man without personally firing a shot". It is, no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers. As we pointed out earlier, the voltage of the current fed into the wire precludes any contention that it was merely a reasonable precaution for the protection of private property. The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words: "The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises. For example, he must not set man traps or spring guns. This is no more than ordinary civilised behaviour." judged in the light of these tests, it is clear that the point urged is wholly without merit. The appeal fails and is dismissed. Appeal dismissed.

IN-Abs

The appellant was charged under section 304 A of Indian Penal Code for causing the death of a woman. The deceased was residing near the house of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of occurrence and so the deceased along with others started using the latrine of the accused. The accused protested against their coming there. The oral warnings however, proved ineffective and so he fixed up a naked copper wire across the passage leading upto his latrine and that wire carried current from the electrical wiring of his home to which it was connected. On the day of the occurrence, the deceased went to the latrine of the appellant and there she touched the aforesaid fixed wire as a result of which she died soon after. The trial and the appellate court convicted and sentenced the appellant under section 304A of the Indian Penal Code. Hence this appeal. 200 Held : (1) The plea of the right of private defence of property was not sustainable for the reason that the type of injury caused by the trap laid by the accused could not be brought within the purview of section 99 or 103 of the Indian Penal Code. (2) A trespasser was not an outlaw, a caput lupinem. The mere fact that the person entering a land was a trespasser did not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser.

Appeal No. 292 of 1961. Appeal from the judgment and decree dated July 16, 1959, of the Bombay High Court in Appeal from the Original Decree No. 802 of 1957. j. C. Bhatt and N. N. Keswam, for the appellant. C. B. Agarwala, C. M. Mehta and V. j. Merchant, for the respondent. August 14, 1963. The Judgment of B. P. Sinha, C.J., section K.Das, Raghubar Dayal and N. Rajagopala Ayyangar,jj. was delivered by Ayyangar, J. Subba Rao, J. delivered a dissenting opinion. AYYANGAR J. This is an appeal against the judgment of the High Court of Bombay reversing the judgment and decree of the City Civil Court at Bombay by which a decree for judicial separation granted by ' the trial judge was reversed and it comes before us on a certificate of fitness granted by the High Court under article 133(1) (c) of the Constitution. The appellant, the husband, filed a petition in the City Civil Court, Bombay, under section 10(1) (a) of the (which we shall hereafter refer to as the Act), praying for a decree against the respondent, his wife, for judicial separation on the ground that in terms of that provision she had "deserted" him for "a continuous period of not less than two years immediately preceding the presentation of his petition". The petition was presented on September 20, 1956, and the material allega 335 tion was that the wife had left the matrimonial home on February 26, 1954, and had not thereafter come back to him and that this constituted "desertion" within the meaning of the provision just cited. The learned trial Judge held that the appellant had established to the satisfaction of the Court that the respondent wife had left the matrimonial home with the intention of permanently breaking it up and that such desertion continued during the requisite period of two years and in consequence granted the decree for judicial separation, as prayed for. The wife preferred an appeal, to the High Court and the learned judges disagreeing with the finding of the learned trial judge that the leaving, by the wife, of the matrimonial home was with the intention of deserting the appellant, reversed the decree of the trial judge and directed the dismissal of the appellant 's petition with costs. It is the correctness of this reversal that is canvassed in the appeal before us. Even at the outset we might state that the decision of the appeal does not depend so much on any substantial question of law but rather on an appreciation of the facts on two matters on the basis of which the learned Judges of the High Court have decided the case against the appellant: (1) whether the appellant had established that the respondent had an irrevocable determination to break up the matrimonial home when she admittedly left the petitioner on February 26, 1954, and did not return to him thereafter, it being common ground that the onus of proving this to the reasonable satisfaction of the Court was on the appellant, and (2) whether the respondent had a justifiable cause for not returning to the husband the existence of which prevented her admitted absence from the matrimonial home from constituting "desertion" as to serve as the foundation for an order for judicial separation under section 10(1) (a) of the Act. Before, however, dealing with these two points which from the crux of the matter in dispute in the appeal, it is necessary to summarise, briefly, the history of the married life of the parties. The parties are Sindhi Hindus of the: Bhai Bund community. The appellant is a practicing doctor while the respondent is said to have had read up to the High school classes. While the appellant 's father and his family were people of but moderate 336 means, the respondent 's father was a very affluent business ,Man his business spreading over almost the entire South .East Asia. He had business houses in Singapore, Dakarta, ,Hong Kong, Manila etc. Besides, while the appellant and his parents appear to have been of an orthodox and conservative outlook and bent of mind, the respondent and her parent 's apparently did not set much store by orthodoxy, and were liberal and modern. It looks to us as if it is possible that the trouble between the spouses was in part at least due to these variations. The parties were married at Hyderabad in Sind (now in Pakistan) on November 11, 1946. The appellant was living with his father and mother and his two sisters and after her marriage the respondent commenced to live with him in this household. The parties are not agreed as to whether their marital life was happy even to start with, for while it was the case of the husband that the same was unhappy even from the very beginning, the respondent 's version was that for the first month or so her relationship with her husband was happy, but nothing much turns on this because from soon thereafter both of them agree in saying that they were not pulling on well together. It is not necessary either to tract the source of the friction between the spouses or narrate the incidents which are related in connection therewith as they are hardly relevant for the decision of the real points arising in the appeal. The only other circumstance to be noted in connection with the early period of their married life was that on July 19, 1947, a son, Ashok, was born to the respondent who, it may be mentioned, is now living with the appellant. It is common experience that in some cases, the birth of a child puts an end to minor misunderstandings and bickerings between the spouses, for the parties concentrate on lavishing in common their love on the child and thus the two are brought together but in the case on band, it does not seem to have had this effect and the relation between the parties does not appear to have been smoothened by Ashok 's birth. With the partition of the sub continent the parties migrated to India. The appellant, his parents and his two sisters who were all living with him moved over to Bombay along with the respondent and their young child but apparent 337 ly. the accommodation which they could 'then secure was pot sufficient for this large family, and as a result the appellant took the respondent, his child and his two sisters to Colombo and left them in the care of his maternal uncle, one Narian Das, to stay there till he could find a sufficiently commodius home in Bombay. The respondent stayed for a very short time at Colombo and though she admitted that she was treated with kindness and affection by this uncle, apparently all was not well in the relationship between the appellant 's sisters and the respondent. What emerged out of this was that she left Colombo without informing either Narian Das or the appellant and came over to India. She came to Poona and Lonavala and started staying with her mother who was there. There is a complaint by the appellant against her leaving his uncle without informing him and on the other hand there is a complaint by the respondent about the way in which her sisters in law behaved towards tier ,but we pass over these incidents and the respective cases ,as, not having any material bearing on the points at issue in the appeal. The appellant having come to know of her ,arrival at Lonavala, it is common ground that he went there and induced her to come over and stay with him at ,Bombay. This was sometime towards the end of January, 1948. The period from January, 1948, to 1954 might be dealt with together. During this period she was staying most of the time with the appellant at Bombay but his complaint is that she used to leave him very often and that pressure had to be exerted or inducements offered to get her back to Bombay to stay with him. This is, of course, denied by the respondent whose story is that every time it was with his consent that she went and that she came back of her own accord. It is not, however, necessary to decide which of these versions is correct, though the learned trial judge who had an opportunity of seeing these two as witnesses was inclined to accept the version of the husband in respect of any matter on which he, was contradicted by his wife. It is only necessary to add that though during these 4 or 5 years or so, the parties were living together most of the time the relations between them had not become normalised. Be 338 sides, it might be mentioned that the relationship between the parents of the two spouses were also strained and simi larly the relationship between the appellant and his wife 's parents as also between the respondent and her husbands parents. We next come to a crucial event. On February 26, 1954, the respondent left the appellant 's house at Bombay (Colaba) and went to Poona. She was taken from the house by her father who had come there in the evening and she traveled with him to poona by train. It is the case of the appellant that the respondent left his home with the main items of her jewellery and clothes without the knowledge and consent of himself and his parents and at a time when there was no one in the house except a maid servant and that he came to know of the respondent 's departure only from the maid servant, when he later returned to the house. On the other hand, it is the case of the respondent that she left the house after permission had been obtained by her father from her father in law and after she herself had obtained the permission of her husband and that at the time of the departure when her father came to take her, her father in law, mother in law and the appellant were all present in the house and that the jewels etc., were given to her by her mother in law who bade her good bye and wished her a happy journey. The learned trial judge accepted the appellant 's story that the respondent did not seek or obtain anyone 's permission for quitting the house and that she left the house without the knowledge or consent 'of anyone. The materiality of the acceptance of the appellant 's version stems from the fact that in order to 'constitute desertion the withdrawal of the deserting spouse from the matrimonial home should be without reasonable cause and "without the consent or against the wish of such party" [vide Explanation to section 10(1) of the Act]. On the other hand, the learned Judges of the High Court were inclined to accept the wife 's version that she had the consent of her husband to leave the home. For reasons we shall set out in its proper place we are in agreement with the learned trial Judge and do not share the views of the learned judges who accepted the wife 's version of this event. We shall, however, revert to it after comple 339 ting the narrative of the events leading up to the filing of the petition. It is the case of the appellant that he came to know a few days after her leaving him that his wife was staying at Poona with her parents. According to his evidence he considered that, having regard to the manner in which his wife left him, no useful purpose would be served by any trip of his to Poona to persuade her to come back. It was his further case that a friend of his one Dr. Lulla, an M.R.C.P. of London who was employed as a doctor in a hospital in a suburb of Bombay suggested that the two of them go to Poona and try to induce the respondent to come back to Bombay. This proposal, he says, he accepted and the appellant as well as Dr. Lulla who has been. examined as a witness on his side have testified to the fact that in the last week of May, 1954, both of them went to Poona one evening, met the respondent at her parents ' house and appealed to her to come back to Bombay to live with the appellant. According to the evidence of both these witnesses, the respondent, when re quested to come back to Bombay, stated that she was de termined never again to come back to her husband 's house. The respondent denied the entire story and stated that neither the appellant nor Dr. Lulla ever came to Poona during her stay there, nor of course ever talked to her. The learned trial Judge who had the opportunity of seeing Dr. Lulla in the box entertained a very favorable opinion of his respectability and credibility and accepted in toto his evidence that the respondent intimated to him her fixed determination not to come back to the appellant. In the background of the previous history of the relationship between the parties and the manner in which the respondent left, the husband 's home on February 26, 1954, as found by the trial Judge, he recorded a finding that the factum of desertion which was not in dispute was accompanied by " 'animus deserendi ' which had been satisfactorily established by the declaration she made to the appellant and his friend. The learned Judges of the High Court were not disposed to differ from the learned trial judge as regards the reality of the visit to Poona of Dr. Lulla accompanied by the appellant and their meeting the respondent there. They were, however, not in 340 clined to attach any value to Dr. Lulla 's testimony as regards the statement made by the respondent because of two factors: (1) the time lag between May, 1954, when he met her and April, 1957, when he gave evidence; the learned judges were inclined to hold that the witness could not properly remember correctly the dialogue after that interval ; (2) the fact that Dr. Lulla could not reproduce verbatim the questions put to the respondent and the answers she gave was considered by them as a circumstance which would detract from the acceptability of, the evidence regarding the matters about which he deposed. For these reasons the learned Judges found that though Dr. Lulla might have visited the respondent in May, 1954, as spoken to by him, there was no proper proof before the Court that the respondent had given expression to a determination not to return to the husband. We shall deal later with this appreciation of Dr. Lulla 's evidence and the weight to be attached to it, but, to continue the narrative, the respondent left India for Singapore on July 7, 1954, and returned from abroad in April, 1956. During this period there has been some correspondence between the parties by way of telegrams and letter which have considerable relevance on the issues involved in the case and the points in controversy between the parties. Before, however, referring to the events of that period a few more incidents which happened prior to the departure of the respondent from India have to be noticed After Dr. Lulla 's meeting the respondent at the end of May, 1954, the next event of some importance is that the respondent and her father came to Bombay during June, 1954, for the purpose of the respondent obtaining a passport to enable her to leave India. At that time, it is common ground, that the respondent stayed with her paternal uncle one Tola Ram whose house was in Colaba and about five minutes ' walk from the appellant 's residence. It is the case of the appellant that when the respondent and her father came over to Bombay in June they stayed there for about a month. This however, is denied by the respondent and her father who say that the duration of their stay at Bombay at Tola Ram 's house was only for a little over a fortnight. It 341 matters little which version is correct but one thing is clear that notwithstanding the admitted stay in Bombay for two weeks or more she never went to her husband 's house either to see him or even to see her son, Ashok, then a boy of about 7 years. The learned Judges of the High Court have not adverted to this circumstance which we consider has material bearing in deciding between the rival versions as to whether the respondent did or did not leave the husband 's home with his permission and consent and the blessings of the parents in law. It is also to be noticed, and about this there is no dispute, that in the application for the passport and in the passport itself it was not the appellant 's name or address that was given as her Indian residential address but that of Tola Ram in Colaba. As stated earlier, the respondent left Bombay by air for abroad on . July 7, 1954. Before taking off she was in Bombay for nearly 24 hours before the plane 's departure. It is not in dispute that even then, she did not visit her husband or her child though she was staying at Tola Ram 'section From Bombay the respondent reached Singapore by air and it is admitted that she sent no intimation or information to the appellant either regarding her departure, the place to which she had gone or the proposed duration of her stay. The appellant having come to know through other sources of the respondent having gone to Singapore, sent her a cablegram on the 20th July reading : "Extremely surprised at your suddenly secretly leaving India without my knowledge and consent. Return immediately first plane". to which the respondent replied also by a cablegram "Returning within a few months". These telegrams would, at least, make one thing clear that the appellant 's case that he had no knowledge of the respondent leaving India was not an after thought and is probably true. On receipt of this telegram dated the 23rd July the appellant replied the next day "You must return immediately". of course, the respondent did not return but her case was that she replied by a letter dated August 2, 1954. There is a controversy between the parties as to whether 342 this letter was really written at all, or if written, was posted and to the proper address. It is, however, common ground, and found by both the Courts, that the appellant did not receive any letter from the respondent bearing that date or written at about that time or with the contents which according to her were the contents of that letter. The learned trial judge was inclined to the view that the respondent did write a letter on that date but he was not satisfied that the copy which she produced which has been marked as exhibit 4 in the case represented either a true copy of it or carried the contents of that letter. He, therefore, discarded exhibit 4 from consideration. The learned judges of the High Court on the other hand, took the view that a letter was written by the respondent on that date and they were prepared to accept her story that the original of that letter which was stated to be in manuscript written in her own hand,. was copied from the typescript which she produced and which was marked as exhibit 4. The evidentiary value of that letter was stated to consist in its disclosure of the state of mind of the respondent and the learned judges held that its contents indicated the readiness and willingness on the part of the respondent to join her husband and therefore negatived any animus to desert or to continue the desertion, if there was any such intention originally on her part. We shall reserve the discussion of the evidentiary value of this letter to a later stage but shall here merely set out the material parts of it: "I really feel surprised why you want me to return to Bombay by first plane without any reason. Dear, I was particularly pained to read that I have suddenly and secretly left the place without your consent. What has prompted you to write this I really do not understand. Dear, how comes this change. You know I was not keeping good health and considerably gone down in spirit and weight for reasons which I do not like to discuss here since You are fully aware. It was you who suggested that I should go over and stay at my father 's place and at your suggestion I did so. You are fully aware that I was accompanying my father to Singapore for a few months for a change and you gave consent. As soon 343 as I feel better I shall return to Bombay. " The appellant not having received this letter (if it was written) and not having received any reply to his cable dated July 24, 1954, asking the respondent to return im mediately to India, was, according to him, hearing stones that she was moving from place to place. He thereupon ' sent her a cablegram on February 24, 1955, and addressed it to both her Singapore and Djakarta addresses as he was not quite sure as to where exactly she was. That telegram read : "Since your secret departure you not replying my telegrams, letters. Myself shocked. You wandering different countries leading reckless life spoiling my reputation. Your most disgraceful behaviour ruining my life. " At the time the cable was received the respondent was still at Singapore and on the 26th she replied by cable : "Your allegations in your cable dated 24th not correct. Cannot understand your attitude. I have departed with your knowledge with my father because of ailing health due to reasons you are well aware. Keeping quiet life with my parents. Have not received your letter ; only telegrams which have been replied by cable and letter. " and to this the appellant replied also by cable: "Your telegram dated 26th February contains all foul lies. Myself shocked at your fabricating false stories to justify your secretly quitting home and flouting my repeated instructions." But even before the receipt of this last cable from the appellant the respondent wrote to him a letter from Sin gapore dated March 3 in which, after setting out the text of the cablegrams exchanged, she made a positive assertion that she wrote a, letter to him on August 2, 1954. The rest of the letter was concerned with inviting him to come abroad and stay with her and her father at Hong Kong to which place she said she was leaving the next day and she promised him real pleasure if he stopped working for his parents and commenced having pleasure with the respondent in her father 's house. After the dispatch of this letter on the 3rd of March the respondent received the appellants cable in which he reiterated his 344 allegation that she had left his house secretly and without his knowledge and was thereafter flouting his instructions. , On March 10, 1955, she sent him a cable from Hong Kong refuting this allegation and adverting to the invitation ' contained in her letter dated March 3, 1955, she, said. "Why don 't you come out of Bombay house hold atmosphere and see for yourself. Cannot understand, what you mean by flouting repeated instructions. " The letter of the 3rd was dispatched by the respondent by registered post and when this was received as well as the cables from the respondent, the appellant wrote in reply a letter sent by registered post dated April 1, 1955, in which he passed severe strictures against her conduct and in her continuing abroad without obeying his instructions. We shall have to deal in somewhat great detail with the contents of this letter. Ordinarily read it might seem to indicate that the appellant was charging the respondent with improper behaviour even amount ing to sexual immorality. While in the witness box the appellant specifically repudiated that he intended any Such imputation and, in fact, made it clear that he was neither basing his petition on any allegation of immorality nor that he ever intended to impute any such conduct to her. The learned trial judge accepted this explanation of the appellant and interpreted the letter as the outpourings of an angry and grieved husband and was not, therefore, in clined to read the expressions used therein as imputing unchastity to her. On the other hand, the learned judges of the High Court analysed the text of the letter and considered that it clearly made false and unfounded imputations of unchastity on the respondent and for that reason they held that even if the respondent be held to have had an animus deserendi when she quitted her husband 's home on February 26, 1954, and continued to retain that animus, still having regard to the false and malicious amputations of unchastity made by the appellant in his letter dated April 1, 1955, they held that she had justifiable cause for not returning to him thereafter and this formed one of the prime grounds for directing the dismissal of the appellant 's petition for judicial separations We shall have to discuss these conflicting views and the different interpretations of this letter, in the light of the 345 evidence adduced in the case when dealing with it. We shall, however, pass this over for the present and continue the narrative. The respondent received this letter while she was still at Hong Kong. But the next day she left for Manila and she replied from the latter place on April 12, 1955. The main points made in this reply were : (1) She left the house of the appellant with the consent of himself and his parents, (2) The reason for her leaving Bombay to stay with her parents was that her health was poor and she wanted to recoup it by a trip abroad. The stay abroad was therefore only for the improvement of her health. , (3) The reason for her vacationing with her parents being for the improvement of her health and for no other not for leading the gay life which was suggested in the appellant 's letter dated April 1, 1955. She added : "As soon as my health has completely improved I shall, of course, come back to you and to our son. " This, was the end of the correspondence between the parties. It is common ground that she did not inform the appellant as to when she would be returning to India which was in April, 1956. Nor did she inform the appellant after her arrival in the country, nor did she go to his home Bombay to meet him or her son. just about the time some relations of the respondent were vacationing for the summer in Kashmir and she accompanied them there and spent the summer in the valley. No communications passed between the appellant and the respondent during this period either. It was after this that the petitioner filed the petition out of which this appeal arises, on September 20, 1956. After the respondent was served with notice of the petition some attempt was made to effect a reconciliation but it is not necessary to notice this because if there had been desertion, as required by law and the duration of that desertion amounted to two years, the terms of section 10(1) of the Act are satisfied and the fact that thereafter the guilty spouse repents or recants is not by itself a ground for refusing the relief to which the injured spouse is entitled (Compare section 23(1) of the Act). From the above narration it will be seen that there are three points of contested fact on which the decision 2 3 2 section C. India/61 346 of this appeal would turn : (1) whether the respondent left the appellant 's home on February 26, 1954, with his consent or whether she did so without such consent. , (2) What was the intention or animus of the respondent in leaving her matrimonial home, and in regard to this the interview with Dr. Lulla and the other matters to which we have referred earlier and which transpired before the respondent left India on July 7, 1954, would have relevance. , (3) The proper interpretation of the letter of April 1, 1955, writ ten by the appellant to the respondent and whether in the circumstances of the case it would afford legal justification for the respondent 's refusal thereafter to return to the matrimonial home, and to these questions we shall immediately address ourselves. Before doing so, however, it might be convenient to refer briefly to the law on the topic. The relevant statutory provision may first be set out. Reading only the portion that is material section 10(1) enacts "10. (1) Either party to a marriage whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party (a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition ; or" This sub section is followed by an Explanation which runs : "Explanation. In this section, the expression 'desertion ', with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage. " The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal from Bombay where the. Court had to consider the provisions of section 3(1) of the Bombay Hindu Divorce Act, 1947, whose language is in pari material with that of section 347 10(1) of the Act. In the judgment of this Court in Bipin Chander vs Prabhawati(1) there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury 's Laws of England (3rd Edn.), Vol. 12, was cited with approval : "In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other 's consent, and without reasonable cause. It is a total repudiation of the ob ligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. The position was thus further explained by this Court: "If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. . Desertion is a matter of inference to be drawn from the facts 'and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference ; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact there has been a separation, the essential question always is whether that act could be attributable to an animus descrendi. The offence of desertion commences when the fact of separation and (1) ; 348 the animus deserendi co exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. " Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. It is settled law that the burden of proving desertion the "factum" as well as the "animus deserenai is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner husband has still to satisfy the Court that the desertion was without just cause. As Denning, L.J., observed : (Dunn vs Dunn)(1) : "The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to ' distinguish bet ween a legal burden of proof laid down by law and a provisional burden raised by the state of the evidence. . The legal burden throughout this case is on the husband, as petitioner, to prove that his wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves that fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal ; and indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself: Is the legal burden discharged? Has (1) , 823. 349 the husband proved that she deserted him without cause? Take this case. The wife was very deaf, and for that reason could not explain to the court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case: Has that burden been discharged?" This, in our opinion, is as well the law in this country under the Act. The other matter is this. Once desertion, as defined earlier, is established there is no obligation on the deser ted husband (taking the case where he is the deserted spouse) to appeal to the deserting spouse to change her mind, and the circumstance that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining the relief of judicial separation, for once desertion is proved the deserting spouse, so long as she evinces no sincere inten tion to effect a reconciliation and return to the matrimo nial home, is presumed to continue in desertion. of course, the matter would wear a different complexion and different considerations would arise where before the end of the statutory period of 2 years or even thereafter before the filing of the petition for judicial separation the conduct of the deserted spouse was such as to make the deserting spouse desist from making any attempt at reconciliation. If he or she so acts as to make it plain to the deserting spouse that any offer on the part of the latter to resume cohabitation would be rejected, then the deserting spouse could obviously not be blamed for not bringing the desertion to an end. Or again, if before the end of the period of two years or the filing of the petition his or her conduct is such as to provide a just cause for the deserting spouse for not resuming cohabitation, the petition cannot succeed, for the petitioner would have to establish that the desertion was without just cause du 350 ring the entire period referred to in section 10(1)(a) of the Act: before he can succeed. There were a few submissions made to us by learned counsel for the appellant regarding the nature of the "just cause", particularly whether this should amount to "cruelty" or other matrimonial offence etc., based on a construction of certain other provisions of the Act, but as these have no substance and were not persisted in, we consider it unnecessary even to refer to them. We shall now proceed to consider the facts in the light of these principles with a view to find out whether the appellant has proved that the respondent had deserted him without just cause for the requisite period. We start with the admitted circumstance that the respondent left the husband 's home on February 26, 1954. It was not suggested that the husband threw her out or that she left because of any expulsive conduct on his part. There is therefore no suggestion or case that she left for any justifiable cause. The next question that would fall for determination is whether she left with his consent. As we have stated earlier, on this point the learned judges of the High Court have recorded a finding different from that of the trial Judge. The case of the respondent was that she had the consent of her parents in law and also of the husband, and she even went to the length of suggesting that it was he who suggested that she might go abroad with her father in order to improve her health. Now as to the obtaining the consent of the respondent 's parents in law, the evidence was this. The respondents father who was her second witness deposed as follows: There had always been disinclination on the part of the appellant and his parents in permitting the respondent to go over to her parents ' place on most earlier occasions. When permission was thus sought for such a purpose, there had always been friction and trouble. In connection with his taking his daughter with him when he intended to leave India in July, 1954 he sought their permission on more than two occasions but the same was refused. Subsequently a friend and a neighbour of his at Poona one Maganmal promised to intercede with the appellants father. The latter spoke to the appellant 's father and obtained permission and informed the witness. 351 The entire story of Maganmal having spoken to appellant 's father and obtained the latter 's permission was denied by the appellant as false and the learned trial Judge was not inclined to believe the story as true. Maganmal who gave evidence as D.W. 3 admitted that he could not claim to be any close friend of the petitioner 's father and, in fact, he admitted to what might ordinarily constitute a state of unfriendliness between them. Kanayalal who had married the appellant 's sister was the adopted son of one Nanikram who was stated to have died leaving a will by which he disposed of his properties in favour of a trust. The trustees, including Maganmal who was one of the trustees, upheld the validity of the will and claimed the properties for the trust, but Kanayalal challenged the truth and validity of the will and claimed the property as the heir of Nanikram. It was stated by Maganmal that himself and the appellant 's father became acquainted with each other when they happened to meet in connection with this trust estate and when the appellant 's father came to him to sponsor the interests of his son in law. This apart, the talk between himself and the appellant 's father as a result of which the permission is said to have been granted was thus stated by Maganmal in his evidence: "I (Maganmal) talked to the petitioner 's father in Bombay in collection with the securing of permission for the respondent at the most for five months. I straightaway talked to the petitioner 's father about the securing of the permission for the respondent. There was no other topic discussed between myself and the petitioner 's father. The talk between myself and the petitioner 's father took place in the compound of Ishardas Temple when I and the petitioner 's father came out of the temple. I took the petitioner 's father aside when I had a talk with the petitioner 's father. " This would not be a very credible story, because if to the requests of the respondent 's father on two or three occa sions the appellant 's father had refused permission it does not stand to reason that to a person situated as Maganmal was in relation to him he would have yielded merely because it was mentioned by Maganmal. The learned trial Judge who had an opportunity of seeing Maganmal in the box was not impressed with his evidence and for the reasons 352 we have set out earlier regarding the relationship between the appellant 's father and Maganmal learned trial judge considered that the story of Maganmal being deputed to obtain permission and his having obtained permission was false. We are inclined to agree with the learned trial judge in this appreciation of the oral testimony. If Maganmal 's evidence is rejected then the entire superstructure of the respondent 's case about the consent of the appellant 's parents must fall to the ground. In this connection there arc a few other matters to mention. It was common ground that the appellant 's father was, at the time of the trial, away at Tokyo on business and he was not in a position to be examined as a witness. The learned judges of the High Court, however, drew an inference adverse to the appellant from (1) his not calling his mother as a witness, and (2) the non examination of maidservant who was stated to have been in the house at the time when the respondent left it on February 26, 1954. We do not agree with the learned judges of the High Court in the inference so drawn. If Maganmal 's evidence is rejected, as it must, the father of the respondent who supported the story of Maganmal 's intervention would not come out with flying colours and if his evidence as to this part is rejected we consider that it was not incumbent on the appellant to adduce the negative evidence of his mother etc., at the risk of an adverse inference being drawn against him in the event oil his not doing so. Besides, there .ire some circumstances which lead to the inference that the story spoken to by the respondent about her parents in law being per sent at the time of her departure and their loading her with gifts of jewellery and clothes is not credible. If really the respondent had left the house with the consent and goodwill of the appellant 's parents or if as she would have it in some of her letters, it was the appellant himself who suggested her going abroad with her father to recoup her health. there could be no explanation for the conduct of the respondent in ,not going over to the house of the appellant during her stay in Bombay in June, 1954, for a fortnight or more when she was there in connection with her passport, and when she stayed admittedly within a few minutes ' walk of the appellant 's place. There would also be no explanation for 353 her failure to inform the appellant and his parents about her departure from Bombay on July 7, 1954. It is only necessary to add that even in the first cable which the appellant sent her on coming to know of her departure from India the appellant complained that she had left India secretly without his knowledge and consent to which there was no contradiction in the reply by cable that she sent on July 22, 1954, though in her later cablegrams and letters she asserted that she had such a consent. There are several other matters which have been mentioned by the learned trial judge, such as the discrepancies in the several versions that the respondent spoke to from time to time and between these and the evidence given by her father and that of Maganmal coupled with her case as set out in the pleadings as circumstances for discarding the entire story as false, but to these it is not necessary for us to advert in view of the broad features we have pointed out which have led us to the conclusion that the respondent did not leave the house of the appellant with his consent but that she did so of her own accord and without his knowledge. The next matter for enquiry is as to the animus which prompted the respondent to leave the appellant 's house. There was admittedly no incident which led to the departure from the matrimonial home which could throw light on that question nor is there any contemporaneous declaration of the respondent. The learned trial judge has set out the history of the relationship of the parties ever since their marriage up to 1954 as the background in which the simple act of leaving should be viewed for the purpose of determining the animus with which that act was done. The learned Judges of the High Court considered that this was not a proper approach to the question. Without deciding on the correctness of the approach of the learned trial judge, we shall proceed on the basis that the learned judges were right in discarding the earlier history of the relationship between the parties as irrelevant for determining whether the respondent in removing herself from her husband 's house did or did not intend her withdrawal to be permanent and with a view to disrupt their marriage and terminate their married life. We shall consequently confine ourselves to the events and matters which trans 354 pired after she left the appellant 's home to determine what her intention was at the time when she left it. The first matter to which reference must be made is the fact that after reaching Poona on February 26, 1954, until the end of May of that year she never wrote any letter to her husband. If, as we have found earlier, she left the appellant 's house without his Consent or even knowledge, the failure on her part to intimate to him as to where she had gone would certainly be a relevant circumstance indicative of the animus which impelled her to leave the home. This is, no doubt, a slight circumstance, but she has really no explanation to offer for her silence and particularly so when taken in conjunction with the case that she put forward that she left her husband 's place with the blessings of her parents in law and almost at the suggestion of her husband in order that her health might improve. The next circumstance which, however, is very much more important, is her declaration on the occasion when the appellant and Dr. Lulla visited her at Poona towards the end of May. The learned trial judge, as stated earlier, has accepted that Dr. Lulla and the appellant did visit her at Poona as spoken to by them and that her story denying this meeting is false. The learned Judges of the High Court also did not accept her denial of the meeting, but they however refused to attach any importance to the evidence of Dr. Lulla for the reason that he was unable to specify the exact words of the questions put to her and her answers. We do not agree with the learned judges about the value to be attached to the evidence of Dr. Lulla. The relevant portion of Dr. Lulla 's evidence runs thus : "I told her (the respondent) to go back to Bombay and then settle the differences whatever they were between the petitioner and the respondent but she said that she was not prepared to go back for ever. There was no further talk between myself and the respondent. The petitioner had a talk with the respondent first and then I had a talk with the respondent. I cannot recollect what the petitioner actually told the respondent. The respondent did not mention the differences which she had with the petitioner ' She only stated that she was not prepared to come back to the peti 355 tioner for ever. " Now, it will be seen that this evidence is categorical. It Consists of two parts: The first is as regards the gist of the conversation between the appellant, and the respondent when they were together. He admits he was not present when they talked to each other and it is the question and answer at that stage, i.e., between the appellant and the respondent that the witness is unable to state to the Court. The second part of the evidence is in relation to the ques tions that he himself put to the respondent. There is, no ambiguity in his evidence either about the questions which he put nor about the answers which she gave. The comment of the learned judges that the witness was unable to reproduce the exact words of the question put to the respondent and the words of her answer does not obviously apply to this second part of the witness 's testimony. If Dr. Lulla be treated as a truthful witness, and even the learned judges of the High Court did not express any view to the contrary, it is clear that the respondent had specifically stated to him that she would never come back to her husband 's home. There is thus clear evidence and satisfactory proof that besides the factum of desertion there was also the animus descrendi at the time when she left the husband 's house or at least at the time of this meeting it Poona at the end of May, 1954. The matter does not rest here for there is further proof of her animus afforded by her conduct up to the time of her leaving India for abroad on July 7, 1954. We are, here, referring to three matters: (1) Her presence in Bombay for a fortnight or for a month, whichever it be, at her uncle Tola Ram 's place five minutes walk from the appellant 's residence and her failure to call on the appellant even for the purpose of seeing her boy Ashok; (2) her conduct in giving her address in India as Tola Ram 's place in the application for a passport and in the passport itself; and (3) her failure to inform the appellant of her departure from Bombay and her not calling on him even when she was leaving India for a stay of a considerable duration abroad. If then the conduct of the respondent was an act of desertion with the requisite animus when it started, the question next to be considered is whether it continued for 356 the duration of two years before the presentation of the appellant 's petition under section 10(1)(a) of the Act to satisfy the requirements of the statute. We have already set out the correspondence which passed between the parties. In the first telegram which was exchanged between them and which started immediately the appellant got information that the respondent had left India towards the end of July, 1954 he required the respondent to return to India immediately. In her replies she stated that she would return, not immediately we are not, here, concerned so much with the reasons which she gave for not so returning but after her health improved. If her offer to return after sometime was genuine and sincere and represented her then true feelings and intention it cannot be disputed that the desertion would be brought to an end because thereafter the animus deserendi would be lacking, though the factum of separation might continue. On the other hand, it cannot also be disputed that if the offer was not sincere and there was in reality no intention to return, the mere fact that letters were written expressing such an intention would not interrupt the desertion from continuing. The question for inquiry would, therefore, be whether these offers by the respondent to return were sincere. In this connection it is riot without significance that there are admittedly several occasions on which the respondent could have returned to India but she did not do so until April 1956. One of these was when one. Mr. Choith Rama relation of the parties returned to India. It is admitted by both the respondent as well as her father that it was possible for the respondent to have returned to India with Choith Ram but it was stated that she did not do so because she had not been invited to some wedding in the appellant 's house. We consider this explanation not satisfactory or convincing. If, as we have found, she had left the appellant 's house without his consent, and she expressed her determination not to return to him when the appellant and Dr. Lulla met her in May in Poona, and when in spite of repeated assertions in her letters and telegrams that she would be coming back, but she fails so to return when she had occasion and opportunity to do so, we consider that her acts and conduct in failing to return are entitled to more weight as evidence of her true 357 intention than her assurances contained in her letters. We are not, therefore, prepared to hold that bona fide intended to return to her husband when in her letters and telegrams, to which we have already adverted, she expressed her intention to return to him. Besides, it would be seen that even after she returned to India in April, 1956, she did not go straight to her husband 's house or even inform him of her return to India but on the other hand went away to Kashmir and that state of things continued until the petition was filed on September 20, 1956. If nothing more happened between the parties it is clear that the petitioner would be entitled to the relief which he sought as there was satisfactory proof of desertion as defined by the statute for the full term of two years. The point, however, that forms one of the major bases of the judgment of the learned Judges and which was strenuously sought to be supported by Mr. Aggarwala, learned counsel for the respondent, was based upon the letter of the appellant dated April 1, 1955, as affording a justification in law for her refusal to come back to join him. Before proceeding to deal with the contents of the letter and the other points urged in relation to it, it might perhaps be useful to set out the legal position in the light of which the entire matter has to be considered. As stated by Scott. L. J., in Tickler vs Tickler(1), quoting the words of Lord Romer in an earlier decision : "The question whether a deserting spouse has a reasonable cause for trying to br ing the desertion to an end and the corresponding question whether desertion without cause has existed for the necessary period must always be a question of fact. " The question for consideration in such cases is "Is the con duct of the deserted spouse such as to excuse the deserting spouse from making any attempt to put an end to the deser tion or from attempting any reconciliation?" (Vide also Brewer vs Brewer(1). The basis of this rule rests on this, that such conduct on the part of the deserted spouse would legally operate as a consent to the existing separation and would have the effect of absolving the deserting spouse from any obligation to return to the matrimonial home or (1) , 59. (2) , 964. 358 to make amends for her improper conduct, for the petitioner in a petition for judicial separation grounded on desertion by the other spouse has to prove that for the period of two years specified in section 10(1) (a) of the Act the respondent has without cause been in desertion and that intention must be proved to exit through out that period. If, therefore, during that period the respondent has just cause to remain apart he or she would not be in desertion and the petition for judicial separation would fail. It would be seen that we have here the interaction of two distinct matters which have to coexist in order that desertion might come to an end. In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse should have had such an. impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion ter minates by reason of the conduct of the deserted spouse. It appears to us that the principle that the conduct of the deserted spouse which is proved not to have caused the deserting spouse to continue the desertion does not put an end to the desertion appears to be self evident and deduci ble from the legal concepts underlying the law as to deser tion. The position is besides supported by authority. We might usefully refer to the following passage in the judg ment of Willmer, L.J., in Brewer vs Brewer(1) where, ex plaining certain observations of Lord Macmillan in Pratt vs Pratt (2), he said : "It remains for consideration however, exactly what Lord Macmillan meant when he spoke of the husband 'making it plain ' to his deserting wife that he will not (1) (2) , 420. 359 receive her back. He cannot have meant, I apprehend, that a deserting wife is entitled to take advantage of any chance statement that her husband may have made, irrespective of whether it had any effect on her mind. It seems to me that what Lord Macmillan must have meant was that a deserted husband cannot complain if what he has said or done has in fact caused hi , wife to desist from making any attempt at reconciliation which she otherwise would have made. If this view be right, it becomes obvious at once that the question whether the conduct of the husband was such .is to bring the wife 's desertion to an end cannot be treated, as counsel for the wife (at any rate at one point of his argument) appeared to invite us to treat it, as an abstract question of law. It becomes necessary to consider the facts of the particular case, in order to ascertain what in fact was the impact on the mind of the deserting spouse of anything which was said or done by the deserted spouse. " We should add that this expresses our own view of the legal position. We shall now proceed to consider the letter of the appellant dated April 1, 1955, and its significance for the purposes of the defence of the respondent in the light of these principles. The questions that arise on this letter fall into two broad classes : (1) The exact meaning and construction of the expressions used in the letter, and (2) its impact on the mind of the respondent. As to the meaning of the letter the rival contentions are these. According to the appellant the letter was merely the outpourings of an angry and grievously injured husband who found his wife persisting in keeping away from him and expressing happiness at her stay in and movement from place to place in foreign countries. In this connection the expressions used in the letter were put to the appellant in great detail during his cross examination and the burden of his explanation was that he never intended to impute any unchastity to the respondent. It is not necessary to set out the entirety of the letter but we would make a few extracts for the purpose of judging whether the letter could bear the interpretation which the appellant asserted was his intention in writing that letter: 360 "They (the appellant 's parents) have overlooked all your faults and treated you with love and kindness like their own daughter and have made all possible efforts to raise you up from your low turpitude and make you a decent woman It is your perverted funny notions of pleasure giving vent to your past and present associations, both in India and abroad, that are the root cause of all your evil and irrational deeds. Just think how often have I counseled you against your unceasing pleasure hunt which has brought only shame and misery to our whole family It is a wonder that you find pleasure in leaving home, leaving your husband, wandering from country to country, leading reckless life under the guise of being in the company of your relations and uncles whom you find readily available at every port. And you have gone SO far in this direction, that you find yourself unable to break your past links and get out of the muddle created by you and seek pleasure and happiness in your own home by being a faithful and devoted wife In spite of all my efforts, you have completely deserted me and chosen the path of pleasure and perversion,at any cost. You are only looking for some cloak to cover your guilt and continue to live your life of degradation with impunity. I refuse to furnish you with that cloak and I refuse to be drawn into your game. " As we have stated earlier, the appellant expressly disclaimed in the witness box that he ever considered her unchaste or that in that letter or otherwise he imputed unchastity to her. The learned trial judge believed the appellant 's testimony as to what he intended to convey by this letter and was of the view that the contents were reasonably capable of being understood in the manner suggested by the appellant. We cannot say that this is not a possible interpretation of the letter and that it must be held that it was intended to impute unchastity to the wife. We must, however, hasten to point out that the intention of the writer is neither very relevant nor, of course, decisive of the matter. The question is what the words were reasonably capable of being understood, and if they have been so understood it is no answer that the writer did not 361 intend his words to have that meaning. In view of what we are about to say, it would not be really necessary for us to say whether, reasonably understood. the words would not impute sexual immorality to the respondent, but we shall assume that the learned Judges of the High Court were right in their interpretation of the. letter and the insinuations it contained. The question, however, is how she understood and what her reactions were. The next question for consideration therefore relates to the impact of this letter on the respondent, for it is ulti mately that that would determine, in the present case the legal effect of the conduct of the appellant in terminating or not terminating the desertion that up to then continued. As to this, the position stands thus : The evidence of the respondent was that she received the letter at Hong Kong, and she stated : "I read that a bit. On the next day I left for Manila. There I was appraised of the contents of the letter and then I was shocked at the contents of the letter and my health became worse at Manila. " The letter is stated to have been received in the evening and she was to leave Hong Kong for Manila at 10 a.m. the next day. According to one portion of her evidence she read a part of the letter on the day she received it but she had no time to read the whole letter, but she corrected herself later and stated that the entire letter was then read, but that she understood only a portion of the letter on the day it was received and the rest of it explained to her in Manila. It was her cousin one Khem Chand who is said to have been asked to read and explain the letter because she did not understand fully its contents. This was at Hong Kong and he read that letter during the night after he returned home from office. Before he finished reading that letter she said she went to bed. He was reading, that letter till late that night. She, however, slept by then. Khem Chand she said, promised to explain the contents the next morning but there was no time 1eft for this as she left for Manila that day. It is apparent from this state of evidence that it did not have very much upon the respondent or that she under stood the letter as really charging her with immorality. It ' is just possible 24 2 section C. India/64 362 that she understood its contents as merely an admonition ,by the husband at her being away from him and at her conduct in asking him to go over to Hong Kong instead of returning to him immediately, as he desired in his telegrams. She apparently attached not much significance to this letter and that is clear from the way in which she got the letter read and explained to her partly at Hong Kong and the rest at Manila. And this notwithstanding that her father was there to assist her in understanding the contents of that letter and its implications. This is so far as the oral testimony of the respondent is concerned, but possibly of more significance and of higher evidentiary value than the inference to be drawn from the statements in her deposition in Court is the reply that she sent from Manila to this letter on April 12, 1955. It is necessary to examine with some care the contents of this reply. It is addressed to him.as 'My dearest husband '. It consists of five paragraphs. In the first she acknowledges as letter dated April 1, 1955. of the contents of that letter those regarding which she deals in the 1st paragraph are: (1) his statement that he had not received any letter from her dated August 2, 1954 and (2) a denial of the fact that she left his house without his knowledge and consent and an assertion that he and his parents consented that she should go and stay 'With her relations for a while. The second paragraph is again taken up with the same matter and repeats (1) that she .did not leave the house without his knowledge and consent, and (2) she left the house only for reasons of her health. The third paragraph states that her health had improved but that she would like to stay a little longer with her parents in order to improve it more and then she would return to him and to her "dear son Ashok". The next paragraph is concerned with denying the unfounded accusations contained in his letter and these are characterised as "merely the product of his hallucination" and that she would ignore them because they are not based on truth and in the final paragraph she ends by repeating that site was vacationing with her parents only for the improvement of her health and for no other purpose and lie would kindly allow her to stay with her parents 363 a little longer for her welfare and advantage and she winds up the letter by assuring him "As soon as my health is completely improved I shall of course come back home to you and to our son". Now to the question as to what is the impact of the appellant 's letter on the mind of the respondent. In the face of this letter could it be said that she understood the appellant 's letter as a justification for her to stay apart? For this purpose it is not necessary to consider whether she understood it as imputing unchastity to her or not. As we have already pointed out, it is doubtful whether she did so. If it were so it would not be reasonable for her to read the letter at Hong Kong in part or not understanding it there and not attaching any significance to it as an imputation of a serious character against her morality. But in whatever way she understood it, it is obvious that it did not have any effect on her mind in the matter of persuading her or impelling her to stay apart from her husband, for we find in her reply repeated assertions that she intended to come back to the husband. We do not, therefore, agree with the learned judges of the High Court that the appellant 's letter of April 1, 1955, would constitute an interruption of her desertion which had commenced from February May, 1954, by its being a just cause for her to remain away from the matrimonial home. As already stated, the letter of April 12, 1955, was the last letter which passed between the parties and though she stayed abroad for nearly a year thereafter she did not write to the appellant and even when she came to India in April, 1956, she did not go to her matrimonial home as she had promised to do in this last letter of hers just referred to. A point similar to the one dealt with by us in relation to the telegram of the respondent dated June 24, 1955, and her letter dated March 3, 1955, arising out of the statements contained in them that she intended to return to the husband on coming over to India and the effect of such a statement in terminating the desertion has also to be considered with reference to the promise to return to the husband contained in this letter of hers dated April 12, 1955. As already pointed out, if the offer to return was genuine and sincere and was made with the intention of being 364 kept and as indicative of a desire felt to return to the matrimonial home it would constitute a break in the desertion and thus disentitle the appellant to any relief under section 10(1) of the Act because in the face of such an intention the desertion of two years duration could not be established. We are, however, satisfied that the intention expressed in this letter to return to the husband was not genuine or sincere. This is shown beyond doubt by the following facts: (1) She wrote no letter to the appellant after April 12, 1955, right up to the date of the petition, (2) she did not intimate to him about her arrival in India a fact strongly suggesting her disinclination to meet him and to go to his house, (3) that even after she returned to India nearly a year after her letter of April 12, 1955, she did not go to her husband nor was any attempt made by her to contact her husband through friends before the filing of the petition. The facts therefore and her conduct outweigh any assertion contained in this letter and they convince us that she did not entertain any genuine desire to return to her husband 's home when she wrote those words in her letter to him dated April 12, 1955. It was not contested that if desertion started in February May, 1954, as we have found, and was not put an end to and if no justifiable cause for the continuance of the desertion was afforded by the appellant 's letter of April 1, 1955, there was no other defence to the petition of the appellant under section 10(1) of the Act. The result is that the appeal is allowed, the judgment of the High Court reversed and the decree for judicial, separation passed by the learned trial judge restored with costs here and in the High Court. SUBBA RAO J. I regret my inability to agree. This appeal by certificate presents a facet of the social and sociological problem of a young Hindu woman landed by marriage in a joint family and of her predicament therein. As Rajagopala Ayyangar, J., has traced the course of the litigation, it is not necessary to cover the ground overagain. Two questions arise for consideration, namely, (1) whether there was desertion by the respondent without reasonable cause of her matrimonial home; and (2) whether the appellant had prevented the respondent 365 during the statutory period from bringing the desertion to an end. Before I consider the evidence in the case, it will be convenient to notice the relevant aspects of the law pertaining to the doctrine of desertion. The (Act 25 of 1955), hereinafter called the Act, codified the law in that regard. The material provisions of the Act read thus : . Section 10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the District Court praying for a decree for judicial separation on the around that the other party (a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation. In this section, the expression "desertion", with its grammatical variations and cognate expressions, means, the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party,, and includes the willful neglect of the petitioner by the other party to the marriage. " Under this section a spouse can ask for judicial separation if the other spouse has deserted her or him for a continuous period of not less than two years. This provision introdu ces a revolutionary change in the Hindu law of marriage. It is given retrospective effect. A spouse in India except in some states, who never expected any serious consequences of desertion, suddenly found himself or herself on May 18, 1955, in the predicament of his or her marriage being put in peril. If by that date the prescribed period of two years had run out, he or she had no locus penitential and could retrieve the situation only by mutual consent. Section 10(1)(a) does not proprio vigore bring about dissolution of marriage. It is a stepping stone for dissolution. On the deserted spouse obtaining a decree for judicial separation, the said spouse can bring about divorce by efflux of time under section 13 (1) (viii) of the Act. The expression "desertion" came under the judicial scrutiny of this Court in Bipin Chander jaisinghbhai Shah vs Prabha (1) ; 366 wati(1). There, the question arose under section 3 (1)(d) of the Bombay Hindu Divorce Act, 1947 (Bom. 22 of 1947). , This Court, on the facts of that case, held that there was no desertion. The said section read : "(1) A husband or wife may sue for divorce on any of the following grounds, namely. . . . (d) that the defendant has deserted the plaintiff for a continuous period of four years. "Desertion" was defined in section 2(b) in these terms: " 'Desert ' means to desert without reasonable cause and without the consent or against the will of the spouse. " Sinha, J., as he then was, speaking on behalf of the Court after considering the relevant textbooks and decisions on the subject, summarized the law thus, at p. 851 "For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. The learned judge dealt with the mode of putting an end to the state of desertion as follows, at p., 852 : "Hence, if a deserting spouse takes advantage of the locus penitantiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial home with all the implications of marital life, before the statutory p eriod is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. " Based on that reasoning the learned Judge proceeded to lay down the duty of. the deserted spouse during the crucial period 367 "Hence it is necessary that during all the period that there has been a desertion the deserted spouse 'must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable." Adverting again to the burden of proof and the nature of evidence required to prove desertion, the learned judge made the following observations, at p. 852 : "It is also well settled that in proceedings for divorce the plaintiff must, prove the offence of desertion like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted, for to the satisfaction of the Court. " Collating the aforesaid observations, the view of this Court may be stated thus : Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential conditions, namely. ' (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and (4) absence of his or her conduct 'giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule prudence the evidence of the petitioner shall be corroborated. In short this Court equated the proof required in a matrimonial case to that in a criminal case. I am bound by this decision. I would, therefore, proceed to discuss the law from the point reached by this Court in the said decision. There is some controversy on the question on Whom the burden of proof lies to establish that the deserting spouse has just cause or not to leave the matrimonial home. The judgment of this Court is clear and unambiguous and it throws the burden on the petitioner seeking divorce. This view is consistent with that expressed in leading judgment of English Courts. In Pratt vs Pratt(1) the House of Lords considered the said aspect. Lord Macmillan stated, at p. 438, thus: "In my opinion, what is required of a petitioner for divorce on the ground of desertion is proof that throughout th e whole course of 3 years the respondent 368 has without cause been in desertion. . . . In fulfilling its duty of determining whether,on the evi dence, a case of desertion without cause has been proved, the Court ought not, in my opinion, to leave out of account the attitude of mind of the petitioner. if, on the facts, it appears that a petitioning husband has made it plain to his deserting wife that he will not receive her back, or if he has repelled all the advances which she may, have made towards a resumption of married life, he cannot complain that she has persisted without cause in her desertion". On the question of just cause, Lord Romer made some pertinent remarks, at p. 443, which are relevant to the present enquiry. There, as here, though under different circumstances, the deserting spouse, the wife, after previous correspondence did not call on her husband. In that context, Lord Romer observed: It would, in my opinion, be quite unreasonable to bold that the respondent, guilty though she was of the serious matrimonial offence of desertion, should be expected to present herself at her husband 's door without any knowledge of how she would be received, 'and therefore at the risk of being subjected to the indignity of having admission refused by her husband or by one of his servants. . . . . It could not be expected that she should suddenly make an unheralded entry into his house." Though it was necessary, in order to put an end to her de sertion, for the wife to take some active step towards re turning to the matrimonial home, Lord Romer held that she had taken such steps by writing letters and that the fact that 'she. did not physically appear in the matrimonial home did not make is any the less a just cause on her part. In Dunn vs Dunn(1), Denning L.J., as he then was, laid down the scope of burden of proof in such a case, at P 823, thus: "The legal burden throughout this case is on the husband, as petitioner, to prove that his wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him (1) 369 and she refused. That is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal ; and indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself : Is the legal burden discharged? Has the hus band proved that she deserted him without cause?" This passage brings out the well known distinction between legal burden and onus of proof. Legal burden always remains on the petitioner ; and onus of proof shifts and is a continuous process. But, as the learned Lord points out, the court has to hold on the evidence whether the legal burden to establish desertion without cause has been established by the petitioner. In Day vs Day(1), the husband petitioned for divorce on the ground that his wife had deserted him. The wife relied on the fact that the husband committed adultery and that, therefore, the desertion was not without cause. The Court held that the burden was upon the petitioning husband to prove that his adultery was not the cause of his wife 's desertion and that he had proved the same, as the facts proved established that she had formed her intention not to resume cohabitation independently of his adultery. The legal position is stated thus, at p. 853 : "On the facts of the present case that involves the husband proving affirmatively that the mind of the wife was not in any way affected by her knowledge of the husband 's adultery. Clearly the burden is a heavy one, and doubtless in many cases it will be one that a petitioner will not be able to discharge." In Brewer vs Brewer(2), the Court of Appeal explained the views expressed by Lord Macmillan and Lord Romer in Pratt vs Pratt(1). Willmer, L.J. after quoting the observations of Lord Macmillan in Peatt 's casr(3), proceeded to state: (1) (2) (3) 370 "This passage, although not necessary for the decision of that case, was expressly approved and adopted by Lord Romer in Cohen vs Cohen(1), and must, I think, be accepted as authoritative having regard to the fact that all the other members of the House expressed their concurrence with Lord Romer. " The case law here and in England throws the burden of proof on the petitioning spouse to prove that desertion was without cause. Another aspect of the question may now be touched upon. The definition of desertion under section 10 of the Act, the argument proceeds, is much wider than that under the English law or under the Bombay Act considered by this Court. Emphasis is laid upon the following words in the explanation to section 10(1) of the Act : "includes the willful neglect of the petitioner by the other party to the marriage. " The expression "includes", the argument proceeds, enlarges the scope of the word "desertion", and takes in by de finition the conscious neglect on the part of the offending spouse, without the requisite animus deserendi. This ar gument, if accepted, would impute an intention to the Parliament, which was entering the field for the first time, to bring about a revolutionary change not sanctioned even in a country like England where divorce or separation for desertion had long been in vogue. We would be attributing to the Parliament an incongruity, for, in the first part of the explanation it was importing all the salutary restrictions on the right to Judicial separation. but in the second part it would be releasing the doctrine, to a large extent, of the said restrictions. By such a construction the legislation would be made to defeat its own purpose. On the other hand, the history of the doctrine of "desertion" discloses some limitations thereon conceived in the interests of society and the Parliament by the inclusive definition couched in wide language could not have intended to remove those limitations. The inclusive definition is only intended to incorporate therein the doctrine of "constructive desertion" known to English law and the language is designedly made wide to cover the peculiar circumstances of our society. In Rayden on Divorce, (1) , 335. 371 7th Edn., the expression "constructive desertion" is defined thus, at p. 155 : "Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man who compels his wife by his conduct, with the same intention, to leave him. This is the doctrine of constructive desertion. " Adverting to the question of animus in the case of con structive desertion, the learned author proceeded to obser ve, at p. 156, thus : "It is as necessary in cases of constructive desertion to prove both the factum and the animus on the part of the spouse charged with the offence of desertion as it is in cases of simple desertion. The practical difference between the two cases lies in the circumstances which will constitute such proof, for, while the intention to bring the matrimonial consortium to an end exists in both cases, in simple desertion there is an abandonment, whereas in constructive desertion there is expulsive conduct. " The ingredients of desertion as well as constructive desertion are the same, namely, animus and factum, though in one case there is actual abandonment and in the other there is expulsive conduct. Under certain circumstances the deserted spouse may even stay under the same roof or even in the same bed room. In our society, it is well known that in many a home the husband would be guilty of expulsive conduct towards his wife by completely neglecting her to the extent of denying her all marital rights, but still the wife, because of social and economic conditions, may continue to live under the same roof. The words "willful neglect" in the explanation were certainly designed to cover constructive desertion in the English law. If so, it follows that willful conduct must satisfy the ingredients of desertion as indicated above. Hence, the appellant could not take advantage of the inclusive definition unless he established all the ingredients 372 of constructive desertion, namely, animus, factum and want of just cause. There is yet another legal contention which may be disposed of before I consider the facts. It is based on section 9 of the Act, which reads : (1) when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the District Court, for restitution of conjugal rights and the Court on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. (2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce. " The contention on behalf of the appellant is that section 9(2) of the Act affords a dictionary for the expression "without reasonable cause" and that it shows that reasonable cause in the explanation could only, be that cause which will be a legal ground for the offending spouse to resist the petition by the other for restitution of conjugal rights. It is further contended that under cl. (2) thereof such legal ground could only be the legal ground on which there could be judicial separation or nullity of marriage and, therefore, the reasonable cause in the explanation to section 10 should also be only such grounds like cruelty etc. There is a fallacy in this argument. An illustration will bring it out. A husband files an application against the wife for restitution of conjugal rights under section 9 of the Act. The wife can plead, inter alia, that the husband is not entitled to restitution of conjugal rights as lie has deserted her without reasonable cause. Section 9(2) of the Act does not afford any dictionary for ascertaining the meaning. of the expression "reasonable cause". We have to fall back again for its meaning on the principles laid down by decided cases and the facts of each case. That apart, section 9 and section 10 deal with different subjects one with restitution of conjugal rights and the other with judicial separation. We cannot 373 import the provisions of the one into the other, except in so far as the sections themselves provide for it. The ex planation does not expressly or by necessary implication equate reasonable cause with a legal ground for sustaining a plea against an action for restitution of conjugal rights. Indeed, it is a limitation on one of such legal grounds. There is an essential distinction between the scope of the two sections. The Legislature even in socially advanced countries lean,, on the side of sanctity of marriage ; therefore, under section 9 of the Act, our Parliament imposes stringent conditions to non suit a claim for restitution of conjugal rights. On the same reasoning, under section 10 of the Act, it does not permit separation of spouses on the ground of desertion except when the desertion is without reasonable cause. The expression "reasonable cause" must be so construed as to bring about a union rather than separation. The said expression is more comprehensive than cruelty and such other causes. It takes in every cause which in a given situation appears to be reasonable to a Court justifying a spouse to desert the other spouse. This view is consistent with the English law on the subject. In Halsbury 's Laws of England, 3rd Edn., Vol. 12, the author says, in para. 484, at p. 257 thus : "Any matrimonial offence, if proved, is a ground for the other spouse withdrawing from cohabitation. Further conduct which falls short of a matrimonial offence, that is conduct not amounting to cruelty or adultery, may excuse desertion. " In Edwards vs Edwards(1) this idea was succinctly brought out. There it was stated that conduct short of cruelty or other matrimonial offence, might afford cause for desertion. So too, in an earlier decision in Yeatman vs Yeatman(2) it was held that reasonable cause was not necessarily a distinct matrimonial offence on which a decree or judicial separation or dissolution of marriage could be founded. I am, therefore. of the opinion that section 9 of the Act does not throw any light on the construction of the expression "without reasonable cause" and that whether there is a reasonable cause or not in a given case (1) (2 ) L.R. [1868] 1. P. & D. 489. 374 shall be decided only on the evidence and the peculiar cir cumstances of that case. The result of the said discussion may be stated thus The legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bona fide attempt on the respondent 's part to return to the matrimonial home and that the petitioner did not prevent the other spouse by his or her action by word or conduct from cohabitation. The expression "willful neglect" included in the section does not introduce a new concept in Indian law unknown to the English law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. No inspiration could 'be derived from section 9 of the Act in order to construe the scope of the expression "without reasonable cause" and whether there is a reasonable cause or not is a question of fact to be decided on the facts of each case. I shall now proceed to consider the facts of the case. The main question is whether the appellant has proved that the respondent deserted him within the meaning of the term as explained above. To ascertain that fact from a correct perspective it is necessary to notice broadly the marital life of the couple since their marriage. The appellant is an M.B.,B.S. and a medical practitioner carrying on his profession in Bombay. He belongs to a well to do family, his father being a businessman. The family is comparatively old fashioned in habits and customs. The respondent is the daughter of one Vasanmal, a businessman, who had branches in Singapore, Hongkong, Jakarta and Manila. Though he spent most of. his time in foreign countries in connection with his business, he always left his family in India and he used to visit his family in India whenever he could conveniently do so. Though the learned counsel for the appellant attempted to argue that the members of Vasanmal 's family, including the respondent, were leading a fast life, there is no 375 thing on the record, except some vague suggestions here and there, to support the said argument. It may be accepted that the respondent 's father is comparatively a richer man than the appellant. On November 10, 1946, the appellant and the respondent were married at Hyderabad (Sind). On July 19, 1947, a male child was born to them and was named Ashok. Unfortunately for the couple, their even course of life was disturbed by the partition of India. In October, 1947, they had to migrate, as many others did, from Pakistan to India. Though the respondent 's father was maintaining a family house at Lonavla, about 70 miles from Bombay, the members of the appellant 's family including the respondent, went to the Colombo and were staying with the appellant 's mother 's brother. In or, about December, 1947, the appellant, along with his mother, left Ceylon for Bombay leaving the respondent and appellant 's sisters in his uncle 's house at Colombo. The respondent 's version is that, as her sisters in law ill treated her, she was not happy there and therefore she had to leave that place, along with her child, in January, 1948, to her parents ' house at Lonavla. At the end of January, 1948, the appellant and his mother went to Lonavla and brought the respondent to Bombay. At the end of the first week of February, 1948, the respondent went back to Lonavla and came back to Bombay in or about August or September, 1948, and was living with the appellant for about 3 months. In or about that time, the respondent 's parents shifted their residence from Lonavla to Poona and settled down there. Poona is about 100 miles from Bombay. In December, 1948, the respondent visited her parents at Poona and returned back to Bombay in February, 1949. According to her from February 26, 1954, she was living with the appellant in his house at Bombay and she a permitted to go and see her parents ; but according to the a pellant, she was going now and then to her parents ' house. Much is made of her frequent visits to her parents ' home, but it is ignore that the frequent visits were only made during the difficult days the evacuees were passing through. But the fact remains that from 1949 for about 4 years she was continuously living with her husband in his house. It is common case that the couple were not happy in 376 their married life. The husband and wife give their ver sions of the reasons for this estrangement. The husband, as P.W. 1, attempts to throw the blame wholly on the wife He says that the respondent was disrespectful and indifferent to him, that she was proud and arrogant, that she refused to wear the clothes which were made for her by his parents on the ground that they were made of inferior stuff, that she was very disobedient and disrespectful to his parents, that she used to leave for her parents ' house very often and sometimes without informing him, that she had no love or affection for him, that when she was in her parents ' house she used to play cards, and drank at the parties given by her father, that she did not like to have children and that she was rude and insulting in her behaviour towards him and his parents. In the cross examination lie admits that lie saw her drinking only twice or thrice at her father 's parties, but none of his friends saw her drinking nor did she drink from 1947. He further admits that he saw her playing cards without stakes, but he had not seen personally her playing cards after 1946 or 1947. He admits that the relationship between his mother and the respondent 's parents was not cordial. He describes her acts of disobedience thus: "On the next day of our marriage, it was customary that she should put on the saree which we got made for her. We had such a saree already prepared. She refused to put on such a saree saying that the same was too inferior to be put on by her. She on many oc casions ordered him to do certain things for her. For example, on one day I told her that she should not spread her sarees on the sofa but she should keep the sarees wrapped and keep them in a cupboard. On the next day the same thing was repeated, namely, that she kept her saree spread on the sofa. I called her and requested her to wrap it. She asked me as to why I should not do the same. I protested and told her that I was speaking to her in a polite way and why she should order me to do things, whereupon she told me that her friends ' husbands even do boot polish and why I should not do even such trifling things." 377 A perusal of his evidence discloses that though he is an educated man he belongs to the old, school and takes offence for the most trivial things which another would ignore. A perusal of his entire evidence also discloses that he is highly respectful to his parents and that he was particular that his wife also should be obedient to them and particularly to his mother. Though the learned counsel for the appellant painted the respondent in his opening address as a highly sophisticated woman, addicted to all the evils of drink, dance etc., the evidence of the appellant, even if entirely accepted, shows that she is not highly educated, that she has not been ad. dieted to any bad habits such as drink, playing cards, smoking etc., and that she was living in the family house of her husband, though now and then she was going to her parents ' house. ID the cross examination the appellant also stated that he had to take the respondent in 1953 or 1954 to Dr. Marfatia, a psychiatrist, for treatment, indicating thereby that was under some nervous or mental strain. Now let us see what the respondent says about her life in her husband 's house. She says that at the time of her marriage her father gave a dowry of Rs. 25,000.00 and several presents and gifts, including clothes worth about Rs. 10,000.00, but her mother in law was not satisfied with the amount of dowry given by her father ; that her parents in law would not ordinarily permit her to visit her parents ' house, that whenever such permission was asked for they used to refuse a number of times, but would allow her to go only once in a way ; that she, was abused for trivial things, such as when handkerchief '& were missing ; that the treatment of her mother in law and sisters in law from the beginning was cruel and when they made complaints to the appellant, he used to abuse her; that in Ceylon also they ill treated her; that between 1949 and 1954 she was allowed to go to her parents ' house only on two occasions, that is, once on the wedding of one of her sisters and the second time on the wedding of her cousin and during those occasions . she stayed with them only for a few days; that she '" refused permission to go to Poona even when her uncle died; that her parents in law,, not only said many 25 2 S C India/64 378 dirty things of her but they did not allow her to speak to her son ; that when her father in law scolded her son, he started weeping and she was scolded for interfering : that this incident happened in 1953 and that since then her husband ceased to talk with her ; that she was also prevented by her mother in law from doing any work for her husband or for her son, that she was also beaten by her husband sometimes ; that she was not allowed to see her child when he was ill; that in 1951 she heard that her husband attempted to remarry and even asked her to sign a paper giving her consent for him to do so that she was made to sleep on a bench in the drawing room till about the year 1952 and thereafter on the floor as her mother in law did not provide her with a bed. Her evidence discloses that she had no freedom in her husband 's house, that she was abused and insulted by her parents in law and sisters in law, that she was not given the usual comforts which she expected in her husband 's home, that she was not allowed to look after her husband and her child, that the husband took the side of his mother whenever there was trouble between her and her mother in law. There may be some exaggeration in this version, but by and large this evidence fits in what gene rally happens in an old fashioned house where a girl with modern upbringing goes to stay as a daughter in law of the house. It may therefore be accepted that she was lead,rig a miserable life in her husband 's house and she must have been under a terrible nervous strain. What does the father of the respondent, who was painted as villain of the piece, say about this unfortunate situation in which his daughter was placed? Whatever may be said about him, his evidence discloses that he is very much attached to his daughter and he attempted to do what an affectionate father could possibly do in the circumstances. He supports the evidence given by his daughter in regard to dowry and the reluctance of her parents in law to send her to his house whenever he requested the them to do so and also he speaks to the complaint made to him by his daughter about the ill treatment meted out to her by her in laws and also the want of cordiality between his family and the family of the appellant. I have gone through his evidence carefully 379 He does not impress me as one who was out to wreck the life of his daughter out of pride or anger, but a loving father who tried his best to make her happy and to reconcile the couple, if possible. Whenever there was trouble he tried to persuade them to live together and whenever she was unhappy he tried to take her to his home and give her the necessary warmth of love and affection. Neither the mother in law nor the father in law nor the sisters in law were examined in the case. If the mother in law had been examined, more details could have elicited, but unfortunately she was kept back, in my opinion, for obvious reasons. The said evidence broadly gives the picture of the res pondent 's unhappy life in her husband 's house and the mental strain she was putting up there. In those circumstances in the month of November, 1953, respondent 's father came to India and was very anxious to take her to his house at Poona and thereafter, with him, to foreign countries for a short time to enable her to recoup her health. With that object, the father approached the appellant 's family cautiously and through mediators to at their permission. He says, in his evidence, that after he came to India he met the respondent at her husband 's place of residence and observed that she was very pale, that she had lost weight and appeared to be much worried and unhappy. He asked the appellant and his parents to allow her to be taken to Poona, but the permission was not granted. Two or three months thereafter, he again came to Bombay two or three times and made similar requests, but they were all turned down. On one occasion, the respondent described to him her miserable condition under her husband 's roof and be consoled her that he would get her the permission to visit him. He requested one Manganmal to intercede on his behalf with the appellant 's father and get his permission to take the respondent to his house and thereafter abroad for recoupment of health. About a week thereafter, Manganmal told him that he had seen the appellant 's father and made the request on his behalf, but the appellant 's father wanted to confer with his wife and so he asked him to see him again a week thereafter. A week thereafter, he saw the appel 380 lant 's father and repeated the request. The appellant 's father requested him to see him 3 or 4 days thereafter. He went to him again, when the appellant 's father gave the necessary permission. The witness promised to go to him on February 26, 1954 to fetch his daughter. He went there at 4.30 p.m. on that day and left , 'or Poona by the Deccan Queen at about 5.30 p.m. on the same day. At the time when he went to appellant 's house to fetch the respondent, the appellant 's father and mother were present, but the appellant was not there. The respondent took the permission of her parents in law and accompanied him. This version is natural. It is unthinkable that a man of the status of respondent 's father would carry away his daughter from her husband 's house without taking the permission of her husband or her parents in law. It is not likely that the respondent would have run away from the house of her husband in the absence of her husband and parents in law taking away the jewels with her as was suggested on behalf of the appellant. There is nothing in the crossexamination worth the name to belie the version given by this witness. It was the most natural thing any father in the position of the respondent 's father would do in the said circumstances. I do not see any Justification to reject his evidence. The respondent in her evidence supports the evidence given by her father and, in addition, she says that on February 26, 1954, she took the permission of her husband before leaving the place. She asked him to allow her to take her son, but lie refused to give the permission. It is said that while she said that her husband was in the house, her father said that he was not there. But she clearly says in her evidence that her husband was in another room and that she went to that room to take his permission. Obviously, the husband was not willing to face his father in law. Manganmal, who interceded on behalf of the respondent 's father with the appellant 's father, gives evidence as D.W. 3. He is the Managing Director of Chotirmall & Co., with branches in India and in foreign countries. He is a friend of the res pondent 's father. He corroborates the evidence of the respondent 's father. He says in his evidence that he went to the appellant 's house and asked his father to allow the respondent to stay with her father while he was 381 in India, as, she had not been to her father 's house for years. In the cross examination it was suggested that he was not a friend of the appellant 's father, that he, along with others, was a co trustee with Kanayalal, a sonin law of the appellant 's father, of Nanikram 's trust, and that in the dispute that was raised by Kanayalal 's father, Nanikram, in respect of the subject matter of the trust, Kanayala was supporting his father whereas Manganmal was supporting the trust. He admits that he does not claim to be a friend of the appellant 's father and that there was conflict of views between him and Kanayalal in respect of the trust, but adds that on that account there was no lack of cordiality between himself and the appellant 's father. He is a respectable witness. He gave straightforward answers to the questions put to him. He did, not support the respondent 's father completely in that he did not say that he asked for permission for the respondent 's father taking the respondent to foreign countries. Presumably the further request was made by the respondent 's father himself and not by this wit ness. If he had come to lie in the witness box, he would have added the further request also. There is nothing unusual in the respondent 's father requisitioning the services of this gentleman in preference to others more close to the appellant 's father, for this witness is a respectable man and very well known to him and in A position and was also willing,, to intercede on his behalf. I do not see any reason why the evidence of this witness should be rejected. As against this evidence, the appellant says that on February 26, 1954, he was not present when the respondent left his house, that no one, except the maid servant was present in the house when the respondent left the house, that in the evening at about 6 O 'clock he discovered that the respondent had left his house leaving some message with the maid servant and taking away all her jewels and valuable clothes. He further says that he wrote some letters to his wife soon thereafter, but he did not receive any reply from her. But this was denied by the respondent; and there is nothing except his word for this. This is a remarkable story. If his wife had left him when nobody was present in the house, he would not have taken 382 it so philosophically as he asks us to believe. On his own showing, he went to Poona only two or three months thereafter. He does not even tell us what was the message that she left with the maid servant. The maid servant was not examined. Neither his father nor his mother nor his sister were put in the witness box. When three witnesses, the respondent, her father and a friend of her father, defi nitely gave evidence that the appellant 's parents were ap proached and that they gave their consent, it was the duty of the appellant to examine them. No doubt some sort of explanation was given that the father was in Japan, but none in respect of his mother or the maid servant. When the burden was upon the appellant to establish desertion, it is strange indeed that he should have thought fit to keep back the best evidence from the witness box. When the respondent and her father depose that: they took the consent of the appellant 's parents and if the parents of the appellant did not choose to come to the witness box to deny it, a court ordinarily should accept the evidence of the father and the daughter unless their evidence is ex facie unnatural or inherently improbable. But that cannot be said in this case, for what the respondent 's father is said to have done is the most natural in the circumstances. It is said that the City Civil. Judge had seen the res pondent 's father, Manganmal and the respondent in the witness box and he did not accent their evidence and that, therefore, the High Court should not have taken a different view. On this aspect of the case, after considering the evidence of the witnesses, the High Court says thus "The parents of the petitioner were available to give evidence in this case. but they have not been examined: nor has any explanation been given why the maidservant with whom a message was left by the opponent when she left the house, has not been examined in the case. We are left in this case with the two dia metrically opposite version of the two interested parties:. . Having regard to these circumstances, we are of the view that the departure of the opponent from the house of the petitioner was, if not with his express permission, with his consent and full know ledge though such consent was given on account, of Some exasperation on his part. " I entirely agree with this view. It is consistent with the evidence given by the respondent 's witnesses and also with the circumstances of the case and subsequent conduct of the parties. The appellant and his parents must have given the consent, though not willingly, either because of the importunities of the respondent 's father or because of, the social pressure put oft them through the intervention of a respectable outsider. But they did not like the respondent 's parents and therefore they did not like the respondent going to their house. It was a permission reluctantly given and she was afraid that it would be wit& draw. Li. That is why there was no correspondence between the couple during all the days she was staying at Poona and she did not even meet the appellant or his parents when she was boarding the ship at Bombay. I would therefore, bold that the respondent left her matrimonial home with the permission of the appellant and his parents for the purpose of staying with her father at Poona and thereafter to leave for foreign countries for short stay to recoup her health. Strong reliance is placed upon an incident that is alleged to have taken place in May 1954. According to the appellant, he and his friend, Dr. Lulla, went to Poona to persuade her to come back to his house, but she definitely told, them that she would never return to his house. It is said that this incident would show that she had decided to leave him permanently. In the petition this May incident was not specifically 'mentioned nor was it stated that it afforded a cause of action. There was no mention of the appellant and his friend Dr. Lulla going to her and her, stating to them that she would never return to his house. Before the High Court the learned counsel appearing for the appellant did not seek to rely upon this meeting 2nd the reply alleged to have been given by the respondent as furnishing a cause of action for founding a claim for relief of judicial separation. This incident was relied upon: only in support of the appellant 's case that the respondent, was intransigent throughout and was unwilling to go back: to the petitioner. Indeed, the learned counsel appears to admit that the evidence of the appellant and Dr. Lulla was not clear as to what was the precise question asked and 384 what was the exact answer given by the respondent. It would, therefore, be seen that this incident did not loom large either in the pleadings or in the arguments before the High Court. But it became a sheet anchor of the appellant 's case before us. Let me, therefore, consider this aspect of the case in some detail. The appellant says in his evidence that he went to Poona along with Dr. Lulla towards the end of May 1954, that he saw the respondent at Poona and inquired of her to why she left his house secretly and that she told him that she had decided not to come back to him. This is interested evidence and is inconsistent with my finding that she left his house with his consent as well as with the consent of his parents. His evidence is supported by the evidence of Dr. Lulla. But the respondent contradicts this evidence. She denies the incident altogether. She is also A interested witness. Dr. Lulla, as D.W.3, says that he went to Poona along with the appellant, that the appellant tiled to persuade the respondent to come back to him, that thereafter he also tried to persuade her to come back to the appellant, but she told them both that she had made up her mind not to go back for ever. He is a doctor with a fairly good practice and a friend of the appellant. But his cross examination discloses that he did not ask the respondent why she left the appellant, that he was with the respondent at Poona only for a few minutes, that he could not recollect what the appellant told the respondent actually and that she only stated that she was not prepared to come back to the appellant for ever. It also shows that they went to Poona without any intimation, that they had decided to meet her alone, that they thought that they could persuade her in a few minutes ' time to come back to the appellant, and that, therefore, when they ' left for Poona they did not make any arrangements for the next day, for they expected to return back by the midnight train. This evidence is attacked on many grounds. It is said that Dr. Lulla is a friend of the appellant and, therefore, he went to him in getting rid of his wife as the appellant was not happy with her. It is pointed out that if this incident had happened, this would have been mentioned in the earlier correspondence, in the notice issued and in the plaint 385 filed. It is also argued that his entire evidence was arti ficial and appears to be improvised for the occasion, for the way he went about the business appears to be very casual. It is asked whether Dr. Lulla, who was going on a serious attempt of reconciliation, would go to Poona without the appellant informing the respondent or her father that they were coming if his intention was to meet her alone, how did he expect that her parents would not be there when he went? And how did he also think that the estrangement that was prolonged could have been put an end to in a few minutes? If he was serious about it as he pretends he was, he would have gone there with preparations for a stay of one or two days after making necessary arrangements in respect of his professional work. There is much to be said for this argument. I have come across in my experience highly respected persons lying, in the witness box to help a friend or save one from a trouble. But the City Civil Judge accepted his evidence. The High Court says about his evidence thus: "The learned trial judge appears to have been considerably impressed by the testimony of Dr. Lulla. He regarded Dr. Lulla as an independent person who was not likely 'to tell an untruth to support the case of the petitioner. The learned judge also took the view, having regard to the contradictory statements made by the opponent in her evidence that the testimony of the opponent was not reliable. Sitting in appeal it will be difficult or us to ignore the appreciation of evidence by the learned trial judge. It must, however, be observed that Dr. Lulla was deposing to an incident which took place about three years prior to the date on which he gave evidence, and he did not claim to remember the exact words in which the conversation took place between the petitioner and the opponent or between the petitioner and himself. Dr. Jethmqlani, who appears on behalf of the petitioner, does not seek to rely upon this meeting and the replies alleged to have been given by the opponent as furnishing a cause of action for founding a claim to relief for judicial separation. . . in the absence of evidence as to what precisely were the questions put to and the answers given by the opponent, it is difficult to hold, even on the view that 386 there was in the month of May 1954 a meeting between the petitioner and Dr. Lulla on the one hand and the opponent on the other as alleged by the petitioner, that the opponent had in unmistakable terms informed the petitioner and Dr. Lulla that she had no desire to return at any time to the matrimonial home." This finding appears to me to be couched in euphemistic terms. Though the learned judges were not inclined to disturb the finding of the learned trial judge that Dr. Lulla met the respondent along with the appellant, they were not willing to accept his evidence that she told them that she would not return to the matrimonial home for ever. I feel a real doubt whether the appellant and Dr. Lulla met the respondent at all. But let me assume for the purpose of this case, as the High Court was inclined to assume, that they went there. But Dr. Lulla admits in his evidence that he did not remember the exact words used by the respondent in speaking to the appellant; if so, he could not have also remembered the exact words used by her in answering the appellant 's question. Afterall the emphasis is on the solitary word "ever". The witness was speaking to an incident that took place about 3 years before he gave evidence and in respect of a conversation that took place for a few minutes. It is not advisable to rely upon his memory in regard to the words alleged to have been used by the respondent, particularly when he comes to give evidence on behalf of a friend when the tendency would be to give the necessary twist to a conversion of which one could not remember the exact words. The High Court as Well as the learned Advocate, who appeared for the appellant in the High Court, did not, rightly, rely upon the phraseology used in the alleged conversation between the appellant and the respondent. Even if the incident had taken place, it fits in with my earlier finding, namely, that the respondent 's father had taken the permission of the appellant 's parents, though given with reluctance. The appellant might have had second thoughts and intended to go back on the consent and to persuade the respondent to come back to his home and not leave India. With that intention he might have taken his friend Dr. Lulla to Poona, where the respondent was living. She might have refused to return 387 as the appellant was going back on his consent. She must have been obviously very angry and must have curtly refused to come back. Even if she had used the word "ever" which I believe is only a gloss added to her statement intentionally or by lapse of memory it must have been said in a huff. If every statement made by a spouse in a huff in a short conversation with her husband were taken in its face value, many a home would be broken. I cannot, therefore, give any value to the evidence of Dr. Lulla. I would hold that it is very doubtful whether this incident had taken place, that even if it did, the evidence given by Dr. Lulla could not be taken to be a reproduction of the actual words used by the respondent, and that, even if she had used those words, it was only a statement made in a huff in a short interview and could not be taken as a final word on the subject as to compel a court to hold that she deserted her husband without reasonable cause. Some emphasis is also made on her conduct in not meeting her husband or his.parents when she came to Bombay to board the ship and also on her not giving her husband 's house as the address in the relevant papers prepared for the journey. It was argued that the place where she was staying at Bombay was very near to that of her husband and it is unthinkable that she would not have gone there, if she was going abroad with permission, to see her husband or his parents or her child. This argument misses the real point. Here we are considering the case of a wife who was ill treated in her husband 's house and who, at the instance of her father and his friend, got reluctant permission from her husband and parents in law and if Dr. Lulla 's evidence were true, the appellant went back on his consent and was trying to prevent her from going with her father. In such a situation it is impossible to expect an unfortunate woman like the respondent to create more unpleasantness to herself by going to her husband 's house before departure and to take the risk of spoiling her planned holiday. The fact that her husband 's address was not given in the relevant travel papers could not be attributed to her, for they must have been prepared in usual course at the instance of the gentleman who was helping them in that regard. If once it was accepted that she deserted her husband permanently, these circumstances 388 may have relevance, but once it was conceded that she was going with the permission of her husband, though unwillingly given, this conduct would fall in a piece with the respondent 's case. I would, therefore, not give much value to such circumstances in the situation in which the respondent was placed. The respondent left Bombay on July 7, 1954, for the Far East with her father. Much was made about her leaving India with her father. IF she had eloped with a stranger, no doubt that would be a different matter. But here a father was taking his daughter to give her a holiday so that she may improve her health. By taking her away for short time from the oppressive surroundings which affected her health,I do not see any justification for the comment that she had deserted her husband. It must also be remembered that the respondent 's father was not living with his family in the Far East. His wife and children have all along been in India. He was taking the respondent only for a temporary sojourn; and what is wrong in a father taking his daughter for a holiday in those circumstances ? If he had taken the appellant 's or his parents ' consent, it was not suggested that there was anything wrong in her so going. If lie or his daughter did not take such a consent, it might be an improper or an inadvisable thing to do. But such a conduct in the case of a wife leaving with her father temporarily to a foreign country as an escape from an oppressive atmosphere cannot be described as reprehensible even by a Hindu society; much less can it be treated as a desertion. It was a natural reaction to an extraordinary situation. She might have known that her conduct would anger her husband, but she would not have thought that it would be a permanent obstacle in their relationship. Be it as it may, I have already found that she left with her father with the consent of the appellant and his father, and that even if the appellant subsequently retracted from his consent, her departure might be only improper, but could not conceivably amount to legal desertion. Till now I was considering only the oral evidence. But hereafter we come across unimpeachable documentary evidence which shows the attitude of the couple to each other. I shall proceed to consider the documentary evidence on the 389 assumption favourable to the appellant, namely, that he, along with Dr. Lulla, went to Poona in May 1954, retracted his permission given earlier, and persuaded her to come back to the matrimonial home, but she refused to do so and left with her father for foreign Countries. I am definitely of the view that in ,he circumstances narrated above the exact words used by her could not be field to have been proved by the vague oral evidence of Dr. Lulla and that, even if she had expressed herself strongly in a buff, such expression could not in the circumstances be considered to be decisive of her determination to leave the matrimonial home for ever. She left for the Far East on July 7, 1954. Within a fortnight from that date, on July 20, 1954, the appellant gave a cable to the respondent to the following effect "Extremely surprised at your suddenly secretly leaving India without my knowledge and consent return immediately first plane. " On July 22/23, 1954, as soon as the respondent received the cable from the appellant, she gave a cable in reply thus "Returning within few months". On July 24, 1954, the appellant gave another cable to the respondent to the following effect : "You must return immediately. " Pausing here for a moment, let me recapitulate the position. If the respondent definitely told the appellant and Dr. Lulla that she bad given him up and that she would not return to the matrimonial home, why did the appellant send a cable telling her that he was surprised at her secretly leaving India and asking her to return immediately? And why did she reply that she would return in a few months?. The cable given by the appellant is more consistent with the fact that neither of them understood that she had left him for ever. Indeed, the cable reflected his anger on her departure along with her father, because, though permission was given earlier, he did not like her to go. Whatever ambiguity there may be, her immediate reply was inconsistent with her determination to leave him for ever, unless we assume, as we are asked to do, that the cable 'was a link in the chain of the plan conceived by her and her father to resist an action that might be taken by the. husband in a court of law. In July 1954 390 what was the action which the appellant could have taken and what was the defence, if such an action was taken, that could be sustained on the basis of this cable? At that time the Act was not passed. The Act was passed in 1955 and came into force on May 18, 1955. Therefore, the only action which the husband could have taken 'Linder the law, as it then stood, was to file a suit for restitution of conjugal rights, and this cable could not possibly be a defence against such an action. If she wanted to join him again she could have submitted to the decree. The Bombay Hindu Divorce Act, 1947, may not have any extra territorial operation. Even if it has, four years of desertion had to run out before she could be divorced; and there was no particular urgency for her to create any eviedence at that stage. To may this cable is destructive of tile case of the appellant that she left him for ever. His reply cable also is only consistent with the fact that there was no break between them. Now, I come to a letter dated August 2, 1954, over which there is some controversy, the appellant alleging that it was a forged one and the respondent stating that it was ,a draft of the letter she sent to her husband. It reads " My dear husband, Darling I received your two telegrams, copies of which enclosed herewith. I immediately cabled you that I shall be. returning within few months, however I really feel surprised why you want me return to Bombay by first plane without any reason. Dear I was particularly pained to read that I have suddenly and secretely left the place without your consent. What has prompted you to write this I really don 't understand. Dear how came this change. You know I was not keeping good health and considerably gone down in spirit and weight for reasons which I (10 not like to discuss here since you are fully aware of it. It was you who suggested that I should go over and stay at my father 's place and it was at your suggestion that I did so. You were fully aware that I was accompanying my father to Singapore for a few months for a change and you gave consent As soon as I feel better I shall return to Bombay. 391 1 hope yourself, Ashok and all the other family members are 0. K. Give my loves to Ashok and Best regards to Mother and Father. Yours forever, Meena. " The respondent, in her examination in chief, says: "I had written a letter dated 2nd August 1954 to my husband, a copy whereof has been preserved by me, I produce the copy of the letter dated 2nd August 1954. " That was not objected to and the copy of the letter was put in and marked as exhibit No. 4. In the cross examination there is some confusion, but she broadly stated that her father dictated to her the letter, that the said letter was typed, that she copied from that typed letter and that exhibit 4 is that typed letter. The father in his cross examination, deposes that the respondent had written a letter dated August 2, 1954, to the appellant, that he had a draft of that letter and the same was written after consulting him. The appellant denied that he received that letter. The learned City Civil Judge found thus : "I am not prepared to hold that the copy letter exhibit 4 was fabricated subsequently, because there are references to the letter dated 2 8 1954 in subsequent letters addressed by the respondent to the petitioner. " But he held that the appellant did not receive such a letter. The trial Court held that the letter not being a copy of what was written the respondent to the appellant, it could not be regarded is a secondary evidence of the con tents of the letter. But the High Court pointed out that it was not the case of the respondent that it was a secondary evidence of the contents of the letter written by her, but her case was that the text of exhibit 4 and the letter written to the appellant was the same; and in support of her case she produced the letter from which she had copied out the letter she had addressed to the appellant. Both the Courts, therefore, held that exhibit 4 was the typed letter from which the respondent drafted her letter to her husband. Undoubtedly, exhibit 4 cannot be a secondary evidence of the letter written by the respondent to her husband, but it certainly corroborates her oral evidence that she wrote a letter with similar recitals contained in exhibit 4 to her hus 392 band on the date exhibit 4 bears. As pointed out by the learned City Civil Judge as well as by the High Court, the subsequent letters written by her clearly demonstrate that exhibit 4 could not have been fabricated subsequently and a letter must have been written by her on August 2, 1954. In view of the concurrent findings of fact, I do not think it is necessary to consider the evidence over again. I accept the concurrent findings that a letter dated August 2, 1954, with contents similiar to those in exhibit 4 was written by the respondent to her husband. It is contended that the said letter was written at the instance of the father and on his dictation to furnish evidence in an action that might be brought by the appellant against there spondent. Let me first take the comment,VI . Z., would a wife write a letter to her husband in consul tation with her father? Ordinarily in the case of married couples it is true that a wife would not write letters to her husband after consulting her father. But the circumstances under which the respondent wrote letter were not ordinary ones. Here, there was trouble between the husband and wife. The husband, according to the respondent, gave his consent, though reluctantly, for her to leave with her father to the Far East, but soon there after gave two cables asking her to return immediately. Naturally she would tell that fact to her father and seek his advice in the matter of replying to her husband. There is nothing wrong in her father helping her to send a suitable reply, so that the husband may not be offended. The second comment, namely, that this 'letter was intended to be a shield against a possible action by the appellant, is devoid of merits. At the time the letter was written the Act had not come into force and this letter could not have been an answer to a possible action the husband might take for restitution of conjugal rights. There was no particular urgency for her to create evidence on that date against a possible action under the Bombay Act, even if it applied to her. This letter demonstrates beyond any reasonable doubt that the wife did not desert her husband with the requisite animus, but, on the other hand, shows her willingness to go over to Bombay as soon as she regained her health. To this letter no reply was sent by the appellant and he says in his evidence that he did not 393 receive the said letter. It is very difficult to believe Ms statement. He is obviously denying the receipt of this .letter a,,; it establishes that she had not the animus to desert him. On February 24, 1955, he again gave a cable in the following terms "Since your secret departure you not replying my telegrams letters myself shocked you wandering different countries leading reckless life spoiling my reputation your most disgraceful behaviour ruining my life." This cable contains incorrect statements. Whether he received the letter dated August 2, 1954, or not, admittedly he had received the cable given by her. I have already held that he must have received the letter dated August 2, 1954. He imputes to her in this cable reckless life and disgraceful behaviour. Where did he get this information that she was leading a bad life? In his evidence he does not say that she was leading any disgraceful life. There is nothing on the record to show that the respondent was leading a bad life, and indeed the appellant admits that she was not even leading a fast one, she never danced, played cards or drank, at any rate, according to the appellant, from the year 1947. This cable must have irritated any respectable woman. Yet on February 26, 1955, she gave the following cable : . "Your allegation,% in your cable dated twenty fourth not correct cannot understand your attitude stop I have departed with your knowledge with my father because of falling health due to reasons you are well aware stop keeping quiet life with my parents stop have not received your letter only telegrams which have been replied by cable and letter. " This reply is in subdued terms and it shows her respectable attitude towards the appellant inspite of his provocation. Therein she denies his wild accusations and restates that she went with her father with his consent and that she had replied to Ms cables by cables as well as by letter. On March 4, 1955, the appellant gave another cable to her charging her with fabricating false stories. On March 3, 1955, before the respondent received the above cable, she wrote a letter to the appellant giving a detailed reply to his cables. Therein she denied that she was leading any reck 26 2 S.C. India/64 394 less life and told him that she was either with her father or uncle and also that she did not receive any letters from him. Then she proceeded to state : You know darling I being away from the people who despise me, I have improved my health considerably, I wish you could come and meet me her outside that suspicious atmosphere and you will know the real pleasure. I am very lonely without you and my son Ashok who is always with me in my sleep. I long to see both of you and therefore I beg to come out here. Please do come and do not disappoint me. You know in your heart that I love you so much. This trip outside India will make you good and we shall have a very happy life. You are working so hard for your parents and never think of me and your health which as I know is deteriorating and I also know that you are not happy. Darling, I assure you that this change for few months will improve your health considerably. You need good rest to think on all your problems of daily life which you can do only along and outside the influence of the people who are around you. I hope you will understand and at least come out here for a change for a short period. I shall do what you want me to do, but please, darling, do come; Please give my Charanawandana to father and mother and love to Ashok. " This letter is criticized on the ground that it was another attempt to create evidence at the instance of her father and also on the ground that she asked her husband to come away from his parents. To me this letter appears to be an honest attempt on the part of the wife to reconcile with her husband. It mentions his troubles and requests him to come over the East not for any permanent stay but only as a temporary sojourn to recoup his health and to enjoy a holiday along with her. As I have already stated, by that time the Act was not passed and therefore this letter could not have been written to set up any defence against any possible action by the husband. I find it very difficult to see any sinister motive in this well meant reply to her husband, and particularly after his cable attributing to her reckless life. After dispatching this letter she received a cable dated March 4, 1955, wherein the appellant attributed 395 to her the conduct of fabricating false stories. To that cable she sent a reply cable on March 10, 1955, denying the said allegation and telling him that somebody was wrecking their lives and asking him to come over to Hongkong. On April 2, 1955, the appellant wrote a long letter to the respondent in reply to her letter dated March 3, 1955. Therein he chastised her for making insinuations against his parents, who had done much for her welfare and happiness. Emphasizing upon the word "pleasure" in her letter dated March 3, 1955, he proceeded to state : " 'Pleasure '! that, indeed, is the crux of the whole problem. It is your perverted funny notions of pleasure giving vent to your past and present associations, both in India and abroad, that are the root cause of all your evil and irrational deeds. " Pursuing the same idea, he observed: "Just remember my efforts all these years to improve you and make you a happy and contented wife. It is a wonder that you find pleasure in leaving home, leaving your husband, wandering from country to country, leading reckless life under the guise of being in the company of your relations and uncles whom you find readily available at every port. And you have gone so far in this direction, that you find yourself unable to break your past links and get out of the muddle created by you and seek pleasure and happiness in your own home by being a faithful and devoted wife. " He did not stop with that, but proceeded to state ". you have proceeded to Hongkong and other places, in defiance of my clear instruction to return And, in order to cloak all these evil things you are now inventing dirty excuses, evidently meant for the consumption of the outside world whom you want to fool, so that you may be able to justify your disgraceful conduct and continue to live your life of "pleasure" without let or hindrance. " What is more, he told her that in her letters she had fabricated false and malicious stories to cover up her outrageous conduct for misleading the outside world. He finally ended with the following words expressing his determination to ignore her further correspondence: 396 "However, if you still choose to fling further filth in my face by writing to me such letters and telegrams, I shall have no choice but to ignore and make no reply to the same. Inspite of all my efforts, you have completely deserted me and chosen the path of pleasure and per version at any cost. You are only looking for same cloak to cover your guilt and continue to live your life of degradation with impunity. I refuse to furnish you with that cloak and I refuse to be drawn in your game. " There is considerable argument on the import of this letter. On behalf of the appellant it is contented that the contents of this letter were nothing more than an emotional outburst of a deserted husband and that the words used therein should not be understood literally. It is argued on behalf of the respondent that this letter did not mince matters in attributing infidelity and unchastity to the respondent and it communicated a final determination on his part not to have anything to do with her. The former argument was accepted by the City Civil Court, but the latter contention had the approval of the High Court. Shah, J., after reading the relevant portions of the document, came to the following conclusion : Whatever may be the protestations made by the petitioner in his evidence before the Court, it is impossible to accede to the contention of Mr. Jethmalani that his letter was merely the outpouring of an anguished heart. The letter in no unmistakable terms charges the opponent with infidelity not occasional but a persistent and chosen life of infidelity and also charges with inventing a scheme whereby she may be able to live that life of infidelity under an appearance of being respectfuly married. If after this letter the opponent was unwilling to carry out the petitioner 's direction and to forthwith go and live with him, in our judgment, no fault can be found with her. " Deasi, J., in his separate judgment wholly agreed with Shah, J. Theappellant is a graduate and it cannot be said that he does not know English. The terms of the letter indicate that his standard of English is rather high and he has sufficient vocabulary at Ms command. It is not necessary to cover the ground overagain, as I entirely agree 397 with the construction laced upon that letter by Shah and Deasi, JJ. The expressions "outrageous conduct" reckless life", "wild ventures", disgustful conduct", "life of plea sure", "past links", "relations readily available at every port" and such others found in the letter leave no room to doubt that the said expressions were intended to impute an immoral and dissipated life to her. Whether he used those words really believeing that. she was such a bad woman or whether he used the wild language because he was angry that she went with her father need not be speculated upon. What matters is that he designedly couched his letter without leaving any room for doubt in clear and precise phraseology and told her that she was a bad woman and, therefore, he had nothing more to do with her. To such an outrageous letter, how did the respondent react? She must have been extremely offended as any self respecting woman would be. But she controlled herself and replied to him by letter dated April 12, 1955 in a subdued and dignified manner. After repeating that the appellant and his parents gave her consent to leave with her father, she again repeated that she left with her father to improve her health. She told him that her health improved a little and that she would return to him and to her son after sometime. Adverting to his fulminations in his letter she said : "I find it unnecessary to reply to the other unfounded accusations contained in your letter because I know and I am sure that the basis of the same are your hallucinations, of what I am not. I deny your charges all over again and you know that they are not true. I believe that the best way is to ignore them since they are not based on truth. " She ended her letter thus : "Please do not indulge in misgivings. As soon as my health has completely improved, I shall of course, come back home to you and to our son. " This letter shows that she was very much offended and she was also sorry. She told him in mild words that all his accusations were false and requested him not to indulge in such things. She promised to come as soon as her health improved. Here the arguments advanced by learned counsel for the appellant may be noticed. 398 Firstly, the usual argument, namely, that this letter was written to the dictation of her father as a shield against a possible action by the appellant, is repeated ; and second ly, this letter indicates that the false accusations made by her husband did not so operate on her mind as to induce her to give up her idea of coming back to him. The first argument calls for the same answer, which I have given in the context of other correspondence. There is nothing wrong in the respondent consulting her father, who any day was more affectionate to her than the appellant could possibly have been. There is no point in the second contention. This letter clearly shows that she was highly offended by the false accusations ; but she replied in a dignified manner asking him neither to make nor to believe such accusations. She should be unusual woman if she was not offended by this letter. This reply reflects more her self control than her indifference or insensitiveness. This letter, read along with the letter written by the appellant on April 2, 1955, demonstrates that she was always ready and willing to come back to him inspite of his accusations. Some comment is made on the basis of the answers she gave in her evidence in regard to the manner she got the contents explained to her. Those answers were given in the stress of cross examination. Those could not possibly detract from the admitted facts that she received the said letter and gave her reply. The letter and her answers speak for themselves. The ingenuity of the cross examining counsel could not add to or detract from either. So far as the letters go, they proved beyond reasonable doubt that however inadvisable it may be for the respondent to go to the Far East with her father, she had not the least intention of leaving her husband permanently. She was always ready and willing to go back to her husband. On April 8, 1956, the respondent returned to India. The appellant 's complaint is that she did not inform him that she was coming and that she did not come to his house. The contention on behalf of the respondent is that after she received the letter dated April 2, 1955, she was highly offended and that, therefore, she expected some step on the part of her husband to meet her or send somebody to take her to his home. In her evidence she 399 says that after she arrived in India, her father spoke to two or three persons for rapprochement and one of them was Kishinchand of Messers. J. Kimatrai and Kundanmal and that her father told her that Kishinchand had a talk with the appellant, but the latter refused to take her back. She adds that after her return no efforts were made either by her husband or on his behalf or by his parents to call her back to his house and she thought that somebody would be sent by her husband to fetch her from Poona to Bombay according to the custom. The appellant admits in his evidence that sometime in the month of May or June 1955 he came to know that the Tespondent had returned to India. Assuming that he was speaking the truth, it is clear from the evidence that he knew of her return about a month after she returned, but presumably he was standing on his rights and prestige and did not move in the matter. It is suggested to her that instead of going to her husband 's house, in April 1956 she went to Kashmir for a holiday. She admits that she went, but explains that her father 's brother 's children had holidays and as they proceeded to Kashmir, she also accompanied them. I do not see any bearing of this Kashmir trip on the question of desertion. If she was waiting for an invitation to go to her husband 's place there is nothing wrong in her accompanying the children to Kashmir. The respondent 's father says that about 2 months after their arrival in India, he waited for an invitation from the appellant, but as he did not move in the matter, he met one or two friends of his to bring about a rapprochement between the couple, but they could not do anything in the matter. There is nothing unnatural in the father making the said attempts to bring about re conciliation between the couple. There is no reason to reject his evidence in this regard. I shall assume that no mediators were sent by the respondent 's father to, bring about a rapprochement between the couple. Even so, after the letter dated April 2, 1955 the husband, who knew that the respondent had come to India, should have taken some steps directly or indirectly to induce her to come to his house. If he stood on his prestige, the respondent could not be blamed, if after the rebuffs she received and the adment attitude of the appellant communicated 400 to her in the said letter, she did not take the first step. In this context another circumstance may also be noticed. The respondent and also her father say that in November 1955, a sister of the appellant was married but no invitation was sent to the respondent. The respondent says that this fact also made her to apprehend that she would not be received if she straightaway went to the appellant 's house. In the circumstances if she did not directly on landing in India go to her husband 's house but waited for an invitation from him, I cannot say that her attitude was either unreasonable or that it should be attributed to her final determination to desert her husband. On this aspect of the case, Shah, J., observed in his judgment : "The conduct of the opponent in not meeting her son after she returned to India may appear to be unnatural, but, if after receiving a highly offensive letter from the petitioner, she did not take an initiative to return to the matrimonial home and waited for some invitation from, or from some amends on the part of, the petitioner, that conduct may not be regarded as improbable or justifying an ' inference that she was seeking to continue the state of desertion which had previously started. " I am in entire agreement with these observations. On the other hand the conduct of the appellant is telltale and reflects his determination to discard her. According to him he came to know that the respondent came to India in April or May 1956, but a few days thereafter instead of inviting her to come, he went to a lawyer for consultation and thereafter filed the petition for judicial separation in September 1956. It is manifest that he was waiting for the statutory time to run out and soon thereafter he rushed to the Court. The respondent, who obviously did not know the passing of the Act, fell into his trap. Pausing here, let me summarize the facts. The respondent belongs to a fairly rich family. She must have been brought up in comfort and with love and affection. She was not highly educated ; she has read, we are told, upto sixth standard. She was married to the appellant, who belongs to a well to do family. The appellant is an M.B.B.S. and has been carrying on the profession of a doctor in Bombay. After the marriage, the respondent 401 came to live in the joint family house of the appellant in 1947. There were misunderstanding between the parents of the respondent and the appellant and the latter 's sisters. The respondent was ill treated, insulted and was not even allowed to look after her only child. The husband, for one reason or other, either because of his respect for his parents or because of his weakness or because of both, though at the beginning he was affectionate to his wife, was not able to stand up for her and later on he fell in line with his parents and sisters and began to ill treat her. Though in the earlier years she was allowed to go to her parents ' house now and then, later on the appellant and his parents refused her permission to go to her parents ' house or allowed her to do so once in a while with great reluctance, when her father, on one of his infrequent visits, was in India. She was not even permitted to go when her uncle died. The appellant also contemplated a second marriage, but, for one reason or other, it did not come off. By the year 1954 she was in a nervous strain and necessarily that must have affected her health. Her father, who came to India at the end of 1953, heard her complaints and saw her physical and mental condition. He did what a loving father should do in the circumstances. Giving up the ideas of false prestige, he approached the parents of the appellant directly and through a friend and persuaded them to permit the respondent to go to his house and thereafter to the Far East with him for a short stay to recoup her health. The respondent also took the permission of her husband. After some time, the husband I am assuming that his version of the visit along with Dr. Lulla, to Poona was true changed his mind and asked her to come back, but she refused to come back. From her standpoint she obviously did not like her husband going back on his word and disturbing her planned holiday, to which she was looking forward. From the standpoint of the husband, he was angry because as, a Hindu husband he expected his wife to obey him whether his demand was reasonable or not. The wife, perhaps ' did not tell him the day when she would be leaving with her father to the Far East. She must have been afraid that he would prevent her somehow from going abroad. That explains her conduct 402 in not seeing him or his parents at Bombay before she boarded the ship. The subsequent correspondence shows that the appellant was telling her from his commanding position that she should give up her holiday and come back to him immediately and she, on her part, was persuading him in a subdued tone to permit her to stay for a few months and promising to come back thereafter. The letter dated April 2, 1955, was an unexpected and unmerited blow to her. Therein she was charged with unchastity and leading a fast and reckless life. Even a Hindu wife would be enraged and insulted by such dastardly conduct on the part of her husband. Even so she sent a reply couched in a dignified and controlled language denying his allegations and stating that she would return in a few months. She was not even invited by the appellant when his sister was married in November 1955. She therefore, came back to India only in April 1956. In view of the serious allegations made by the appellant in his letter dated April 2, 1954, and in view of his determined attitude disclosed therein, she naturally and properly expected that the husband would invite her or send somebody to take her back to his home. Instead of doing so, though he knew that the respondent had come to India, he did not make any attempt to invite her or send a relation to bring her to his home as he used to do on previous occasions when she went to her father 's house. By that time as the Act came into force, he found his opportunity for which he was waiting and took advantage of the situation. As the statutory period of two years had expired from the date she left India, he rushed to the Court. On these facts, I have no doubt that the appellant failed to establish that the respondent deserted him without any reasonable cause. Even if she deserted him within the meaning of section 10 of the Act, I would hold that by writing the letter dated April 2, 1955, she ceased to be in desertion from that date. A fair reading of that letter, read in the context of her offer to return within a few months, shows beyond any doubt that he closed the door for her return long before the statutory period had expired. When the respondent wrote to the appellant telling him that she would come in a few months, he wrote to her saying that she was leading 403 an immoral life and that he would no longer be "drawn into her game." Even after that letter, she wrote back denying his charges and promising to come as soon as her health improved. I have no doubt that, at any rate from April 2, 1955, the desertion, if any, on the part of the respondent, came to an end and from that date the appellant was guilty of desertion. For the aforesaid reasons, I agree with the conclusion arrived at by the High Court. The appeal deserves to be dismissed and I accordingly dismiss it with costs. ORDER OF COURT In accordance with the majority opinion, the appeal is allowed with costs here and in the High Court.

IN-Abs

Where an application is made under section 10(1)(a) of the , for a decree for judicial separation on the ground of desertion, the legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent intentionally forsook and abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bona fide attempt on the respondent 's part to return to the matrimonial home and that the petitioner did not by his or her action by word or conduct provide a just cause to the other spouse to desist from, making any attempt at reconciliation or resuming cohabitation; but where, however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion ter minates by reason of the conduct of the deserted spouse. 332 An offer to return to the matrimonial home after sometime, though desertion had started, if genuine and sincere and represented his or her true feelings and intention, would bring to an end the desertion because thereafter the animus deserendi would be ' lacking, though the factum of separation might continue; but on the other hand, if the offer was not sincere and there was in reality no intention to return, the mere fact that letters were written expressing such an intention would not interrupt the desertion from continuing. Bipin Chander laisinghbhai Shah vs Prabhawati, ; , Dunn vs Dunn, and Brewer vs Brewer , relied on. The parties were married in 1946 at Hyderabad in Sind (now in Pakistan) and a child, a son, was born in 1947. The married life of the couple was not as harmonious as it should have been and it soon transpired that much of the trouble arose out of the fact that while the appellant and his parents appear to have been of an orthodox and conservative outlook and bent of mind the respondent and her parents apparently did not set much store by orthodoxy and were liberal and modern. As a result of the partition in 1947 the parties had to leave Sind. The appellant and his parents stayed in a house in Bombay, while the respondent 's parents went to Poona. The appellant 's complaint was that the respondent was frequently going away to her parent 's house. On February 26, 1954, the respondent left ' the appellant 's house and went to Poona. The evidence was conflicting as to whether she obtained the permission of the appellant 'before going to Poona, but the facts showed that after that date the respondent did not go back to the appellant 's house. The appellant along with a friend, Dr. Lulla, went to Poona with a view to bring back the respondent. The evidence as to what transpired at the interview with the respondent was somewhat conflicting, and the appellant 's case was that the respondent intimated to him her fixed determination not to go back to him. On July 7, 1954, the respondent along with her father went abroad to the Far Eastern countries, for the purpose of recouping her health, according to her. Before going abroad the respondent had to go Bombay for getting the passport and going through the formalities; and while there she was staying in a house very near the appellant 's but she did not visit him nor see their child. On learning that the respondent had gone abroad without intimation to him he cabled to her asking her to come back immediately but the respondent did not do so as required by the appellant. There was some correspondence ' about the matter and the respondent continued to say in her letters that she would soon come back to his place. By his letter dated April 1, 1955, the appellant used strong language passing severe strictures against her conduct &id in her continuing to be abroad without obeying his instructions. The respondent replied by letter dated April 12, 1955, saying: "As soon as my. 333 health has completely improved I shall, of course come back to you and to our son. " After this there was no further correspondence between the, parties. In April, 1956, the respondent returned to India but she did not go to the appellant 's home nor did meet him. On September 20, 1956, the appellant filed the present petition praying for judicial separation under section 10(1)(a) of the . The respondent 's defenses to the petition, inter alia, were that she never left the appellant 's matrimonial home with the intention of breaking it and that, in any case, the appellant charged her falsely with immorality in his letter dated April 1, 1955, and so she was justified in living separately. Held (Subba Rao, J. Dissenting), (1) that on the facts the respondent left the appellant 's matrimonial home On February 26,1954, with the intention of permanently, breaking it up, and thatsuch desertion continued during the requisite period of two years. (2) that the appellant 's letter of April 1, 1955, did not con stitute an interruption of the respondent 's desertion by its being a just cause for her to remain away from the matrimonial home; and (3) that, in consequence, the appellant was entitled to a decree for judicial separation under section 10(1)(a) of the . Per Subba Rao, I. (1) Where a spouse seeks judicial separation on the ground of desertion a heavy burden lies on him or her to prove four essential conditions, namely (1) the factum of separation, (2) animus deserendi, (3) absence of his or her consent, and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. (2) The expression "includes the wilful neglect" in the explanation to section 10(1) of the , does not enlarge the scope of the word desertion so as to take in by definition the conscious neglect on the part of that offending spouse without the requisite animus deserendi; it does not introduce a new concept in Indian law, but is only an affirmation of the doctrine of constructive desertion in English law. The ingredients of desertion as well as constructive desertion are the same, though in one case there is actual abandonment and in the other there is expulsive conduct. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. (3) Sections 9 and 10 of the Act deal with different subjects and section 9 does not throw any light on the construction of the expression "without reasonable cause" in the explanation to section 10. Whether there was a reasonable cause or not in a given case could 334 be decided only on the evidence and the peculiar circumstances of that case. (4) In the present case, the evidence was clear that the respondent left her matrimonial home with the permission of her husband and his parents and that it was not possible to infer from the evidence given by Dr. Lulla that the respondent decided to abandon the appellant. The letters demonstrated beyond any reasonable doubt that the wife did not demonstrated beyond band with the requisite animus, but on the other hand, showed her willingness to go over to Bombay as soon as she regained her health. In view of the false allegations made by the appellant in his letter dated April 1, 1954, in which he charged the respondent with unchastity and leading a fast and reckless life, from that date the desertion, if any, on the part of the respondent came to an end and from that date the appellant was guilty of desertion.

iminal Appeal No. 9 of 1963. Appeal by special leave from the judgment and order dated November 9, 1962 of the Rajasthan High Court in D. B. Criminal Appeal No. 407 of 1961. Purushottam Trikamdas, C., L. Sarren and R. L. Kohli, for the appellant. section K. Kapur and R. N. Sachthey, for the respondent. August 19, 1963. The Judgment of the Court was delivered by SHAH J. Noor Khan, resident of Kuchaman in the State of Rajasthan, and nine others were tried before the Additional Sessions judge, Sirohi in the State of Rajasthan for offences of rioting and being members of an unlawful assembly and causing in furtherance of their common object death of one Pratap, at about 2 30 p. m. on September 29, 1960 and serious injuries to four others on the same occa 523 sion. Noor Khan was also charged for the substantive offence of causing the death of Pratap by gunshot injuries. The .Sessions Judge acquitted all the persons accused. at the trial. In appeal by the State, the High Court of Rajasthan set aside the order of acquittal in favour of Noor Khan and confirmed the order in respect of the rest. There were disputes between Noor Khan on the one hand and Pratap and his brothers on the other about a well in village Mundara. Noor Khan claimed to have purchased a half share in the well whereas Pratap and his brothers claimed the well to be their exclusive property, and there were several court proceedings about this dispute. It was the case for the prosecution that on September 29, 1960 at about 2 00 p.m. Noor Khan accompanied by his father Samdu Khan and eight others went to Pratap 'section field (in which there was a farm, a house, a stable and the disputed well) and called upon Pratap to deliver possession of the well and on the latter declining to do so, Samdu Khan fired a muzzle loading gun at Ganesh brother of Pratap but missed him. Noor Khan then fired at Pratap and killed him instantaneously. The other members of the party of Noor Khan at the instigation of Samdu Khan thereafter beat Ganesh, Prabhu, Mohan and Gulab brothers of Pratap with sticks and other weapons and caused them injuries. After the assailants retired, Ganesh lodged a complaint against 15 persons including Noor Khan an.d Samdu Khan at the police station, Bali. Ten out of those who were named in the complaint were arrested and tried before the Court of Session, Sirohi. The Sessions Judge acquitted all the accused holding that the story that there was an unlawful assembly of ten or more persons who went to the well and caused the death of Pratap was not reliable, for in his view the prosecution had failed to lead evidence of independent witnesses and alterations were made in the story of the prosecution from time to time and certain persons were falsely involved. He observed that there was enmity between the two sides and the testimony of witnesses who claimed to be present at the scene of assault was not corroborated by independent evidence and was on that .account unworthy of credit, especially because the complainant Ganesh had named several persons who were proved not to have taken part in the assault. 524 In appeal by the State, the High Court of Rajasthan convicted Noor Khan for causing the death of Pratap by firing a muzzle loading gun and causing him fatal injury and thereby committing an offence punishable under section 302 Indian Penal Gode and sentenced him to suffer imprisonment for life. With special leave, Noor Khan has appealed to this court. Pratap died on September 29, 1960 as a result of gun shot injury. The testimony of Dr. Mehta who performed the post mortem examination on the dead body of Pratap disposes beside the wound of entry that the left lung of the victim was lacerated with pieces of metal. Dr. Mehta found on the body of witness Prabhu two contusions and an incised injury, on the body of Ganesh three contusions, on Mohan one contusion and on Gulab a swelling and in the view of Dr. Mehta the injuries were, at the time when he examined the injured persons on October 1, 1960, about 48 hours old. Prabhu, Ganesh, Mohan and Gulab were examined as witnesses for the prosecution, and they deposed that Noor Khan had caused the fatal injury to Pratap by firing a muzzle loading gun at him, and that they were injured in the same incident by the members of Noor Khan 's party. The injuries on these four persons strongly corroborate their story that at the time of the assault made on Pratap at about 2 00 p.m. on September 29, 1960 they were present. This story was further corroborated by two female witnesses, Bhanwari and Mathurn. The High Court in appeal by the State held that notwithstanding the infirmities in the prosecution case that in the first information, names of certain persons who were not present at the scene of occurrence were given by the complainant Ganesh on account of enmity and that there were discrepancies between the statements of the eye witnesses at the trial and the first information on the question as to who, out of the two persons Samdu Khan and the appellant Noor Khan, fired first, the substantial case of the prosecution remained unaffected thereby, for each of the four eye witnesses Ganesh, Prabhu, Mohan and Gulab had marks of injuries the duration of which when examined by Dr. Mehta tallied with their story and the presence of the injuries lent assurance to their testimony that they were present at the occurrence, and the 525 absence of independent witnesses was not by itself a sufficient ground for discarding the testimony of the witnesses who claimed to have seen the assault on Pratap. Relying upon the testimony of Mst. Bhanwari 'supported by the testimony of Mohan Singh and Mst. Mathura the High Court held that the fatal injury to. Pratap was caused by the appellant with a gun fired from a distance of about 4 ft. from the body of Pratap. The appeal before the High Court was one against an order of acquittal. But as explained by the Judicial Committee of the Privy Council in Sheo Swarup and others vs King Emperor(1) :"ss, 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was rounded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. * * * * * But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. "It may be observed that. in declining to accept the testimony of the witnesses who claim to have seen the assault, the Sessions Judge did not appreciate the full significance of the very important circumstance that on the person of the four eye witnesses there were injuries which on the medical evidence must have been caused at or about the time when the fatal assault was made upon Pratap. It is highly improbable that all these witnesses who were members of :the same family suffered injuries some of which were severe in some other incident or incidents on the day and about the time when Pratap was fatally injured, and then they conspired to bear false testimony that they were present at the time of the assault upon Pratap. The presence of the four injured persons Ganesh, Prabhu, Mohan and (1) I. L.R. 61 I.A. 398. 526 Gulab at the scene of offence is assured by the evidence of injuries, and must, as the High Court observed, be regarded as established beyond reasonable doubt. The Sessions Judge did not found his conclusion upon the demeanour of the witnesses, except possibly of Ganesh. He entered upon a review of the evidence and rested his conclusion primarily upon four circumstances: (i) that the persons who were proved not to be present at the time of the commission of the offence were sought to be involved in the commission of the offence; (ii) that the evidence showed that only one shot was fired even though the witnesses deposed that both Samdu Khan and Noor Khan were armed with muzzle loading guns and had used them at the time of the ass.ault; (iii) that the distance from which the gun which caused the fatal injury to Pratap was fired was estimated by the witnesses at not, less than 20 ft, whereas Dr. Mehta deposed that the gun was fired from a distance of only 4 ft. and (iv) that the accused Noor Khan and others were deprived of the benefit of having access to the police statements recorded under section 161 Code of Criminal Procedure. The circumstance that two persons Narpat Singh and Pratap Singh were alleged in the first information to be members of the party which arrived at the scene of offence in company of Noor Khan and Samdu Khan, is one which may require the Court to scrutinize the testimony of Ganesh the informant with great care. But the High Court in arriving at its conclusion did not rely upon the testimony of Ganesh; that testimony was wholly discarded, and nothing more need be said about that testimony. Inclusion of names of Narpat Singh and Pratap Singh as members of the party of Noor Khan in the first information lodged at the police station does not, however, throw any doubt upon the testimony of other witnesses who did not attempt to involve them in the commission of the offence. The Sessions Judge also held that two other persons Kesia Choudhary and Sheonath Singh were also 527 named in the first information though they were not ' present at the scene of offence. Ganesh admitted when cross examined that these two persons arrived at the scene of offence after the assault on Pratap and the other witnesses did not depose that they had seen them at the time of the assault. The fact, that certain persons who were on the admission made by Ganesh not present at the time when the party of Noor Khan arrived at the scene, may raise a serious doubt about the reliability of the testimony of Ganesh, but it would not by itself be a ground for discarding the story of the other witnesses. It is true that the witness Prabhu Singh s/o Guman Singh who was not a member of the family and who claimed to be an eye witness to the assault on Pratap and others was, found wholly unreliable, and another person cited as a witness Sohan Singh who was also not a member of the family was not examined at the trial. But the place and the time at which the offence is alleged to be committed, were such that presence of persons who were not near relations of Pratap may least be expected. All the eye witnesses have consistently deposed that it was Noor Khan who caused the fatal injury to Pratap. On the evidence of the witnesses both Noor Khan and Samdu Khan were armed with muzzle loading guns at the time of the assault, and only one gun shot injury is found on the body of Pratap. It was deposed by the witnesses that Samdu Khan had fired the gun carried by him at Ganesh but the shot missed Ganesh. But absence of gun shot injury on the person of Ganesh does not render the entire story so inherently improbable that it may on that account be discarded as unreliable. Nor is the discrepancy as to the sequence of firing, between the first information and the testimony in Court, furnish a justifiable ground in support of that course. There is discrepancy between the estimates given by witnesses about the distance from which the fatal shot was fired by Noor Khan. Witnesses have estimated this distance as varying between 8 and 15 poundas each pounda being equal to 'a step ' or two feet. It appears however from the appearance of the injury and especially the charring and blackening of the wound of entry that the barrel of the gun could not have been at a distance exceeding 3 or 4 ft. But as we will presently point out, the estimate given 528 by the witnesses, examined in the light of the topography and the circumstances in which the assault took place, will not warrant undue importance being attached to the estimates of illiterate and semi literate villagers. The judgment of the Sessions Judge suffers from the infirmity that without attempting to concentrate his attention on the evidence of witnesses in the light of certain fixed positions on the scene of offence, and without attempting to secure a scale map, he discarded the story of the witnesses because of the discrepancy in the estimate of distances stated in terms of poundas. There were at the scene of offence, certain fixed objects such as the Peepal tree, the Ora (room), dhalia (stable),phalsa ( 'opening in the hedge), well and chabutra (platform). If the evidence of the witnesses is examined in the light not exclusively of estimates of witnesses about the distance, which especially in. the case of illiterate or semi literate witnesses is notoriously unreliable, we have no, doubt that the conclusion which the Sessions Judge was .persuaded to reach cannot be accepted. The estimate of the witnesses about the distance from which the gun was stated to have been fired by Noor Khan has varied. Ganesh deposed that the distance was about 20 ft. The other witnesses gave the estimate that the distance was about 8 to 15 poundas. It has to be noticed that according to the prosecution witnesses there were about ten persons present. Two of them were armed with guns, some with axes and the remaining with sticks. They must have spread themselves over the small area of the field in which the well, Ora and dhalia are situate. It appears to be the consistent testimony of the witnesses that the assaulting party were at the time of the assault somewhere near the Peepal tree, the situation of which is definitely established by reliable evidence, as being at a distance of about 8 ft. from the western end of the wall of the Ora. The gun which was used by Noor Khan was a muzzle loading gun and the length of the barrel was 5 ft. According to the .witnesses the party of the assailants ha.d not advanced beyond the peepal tree and if as stated by Mst. Bhanwari . who has been believed by the. High Court corroborated as she was by witnesses Mst. Mathura and Mohan Singh, it .appears that Noor Khan was near the peepal tree, the 529 inference is inevitable that the distance between the end of the barrel and Pratap did not exceed 4 ft. The existence of charring and the lodging of the entire discharge from the gun at a single point of entry does clearly establish that the gun was fired from close range. The evidence of the witnesses viewed in the light of the situation of the Ora, dhalia and the peepal tree as shown in the rough sketch Ext. P 2(a), does also suggest that the estimate given by the witnesses of the distance of the assailant from Pratap cannot be accepted. Bhanwari has stated that Noor Khan was at a distance of a pace from Samdu Khan, and that Samdu Khan and Noor Khan had fired when they were near the peepal tree. Prabhu has given the estimate of the distance between Noor Khan and Pratap as 10 paces, but the evidence discloses that Noor Khan fired the shot from a place opposite the Ora. Gulab stated that Samdu Khan stood at a distance of five poundas from him and Pratap was near him sitting near the. Mohan deposed that the peepal tree is at a distance of 6 or 7 ft., and the accused persons were on the east side of the peepal tree and "in front of the centre of the Dhalia." Mst. Mathura has stated that the accused persons ha.d come to the rear of ,the peepal tree. Every witness has deposed that Pratap was sitting at a distance of a pace from the Ora wail facing south in which direction the peepal tree stood. This analysis of the evidence shows that Noor Khan fired his gun from a point south of the Ora, somewhere near the peepal tree, at Pratap who was sitting at a distance of about 2 ft. from the wail of the Ora. The High Court accepted the testimony of Mst. Bhanwari corroborated by the testimony of Mst. Mathura and Mohan Singh and has come to the conclusion that these three witnesses have deposed to a state of affairs which is consistent with the medical testimony. This is not to say that the testimony of other eye witnesses is untrue, but it only discloses a faulty estimate of the distance given by illiterate villagers. But the most important defect in the trial which, it was urged by Mr. Purshottam appearing on behalf of the appellant, vitiates the order of conviction is that the accused persons were deprived of the right to obtain and use copies of the statements made by the witnesses before ;the investigating officer Hari Singh who stated that he 530 had made: 'jottings ' or notes of the statements of witnesses, and that he did not record detailed statements in the course of the investigation, and that from these 'jottings ' head constable Kapuraram prepared the statements of the witnesses (supplied at the trial to the accused) when the witnesses were not present at the police station. In their cross examination the witnesses who claimed to have witnessed the assault, asserted that certain statements attributed by Kapuraram to them were not made by them. The High Court observed that as the statements were written by Kapuraram from the 'jottings ', no value could be attached to those statements and the testimony of the witnesses who denied having made certain parts of the statements found in the record prepared by Kapuraram could not render it unreliable. On the evidence of Hari Singh the investigating Officer, the statements of which copies were supplied to the accused purporting to be copies of statements recorded under section 161 Criminal Procedure Code, were not in truth such statements, and the High Court was right in observing that the discrepancies between those statements and the evidence given by the witnesses at the trial would not necessarily support the plea of the defence that the version given at the trial was unreliable, as an afterthought. But it was urged that under section 161 Criminal Procedure Code it is obligatory upon an investigating officer to record the statements of witnesses examined by him and if those statements are not made available to the accused at the trial, a valuable right which the Legislature has ensured in the interest of a satisfactory trial of the case is lost to the accused, and the trial must on that account alone be regarded as vitiated. By section 161 of the Code of Criminal Procedure, a police officer making an investigation under Ch. XIV is authorised to examine orally any person supposed to be acquainted with the facts and circumstances of the case. The person so examined is bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Sub section (3) of section 161 provides that a police officer may reduce into writing any statement made 531 to him in the course of an examination under this section, .and if he does so he shall make a separate record of the statement of each such person whose statement he records. Section 162 of the Code as amended by the Criminal Procedure Code (Amendment) Act 26 of 1955 provides: "No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at anT/ inquiry or trial in respect of any offence under investigation at the time when such statement was made :" By the proviso it is enacted that when a witness is called for the prosecution in such inquiry or trial, whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness. Section 173 of the Code by sub section (4) as amended by Act 26 of 1955 provides that the officer in charge of the police station shall, ,before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, amongst others, a copy of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements recorded under sub section (3) of section 161 of all the persons whom the prosecution proposes to examine as 1rs witnesses. Section 207A of the Code of Criminal Procedure which is added by Act 26 of 1955 by sub section (3) provides: "At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished," and the Magistrate shall then proceed to record the evidence of the witnesses produced by the prosecution and 532 he may commit the case to the Court of Session on such evidence and after considering the documents referred to. in section 173. The object of sections 162, 173(4) and 207A(3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigating officer to supply before the commencement of the inquiry 'copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Section 161(3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession 'of the prosecution, on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating .to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach, for section 537 Code of Criminal Procedure provides, amongst other things, that subject to the provisions contained in the Code no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in .any inquiry or other proceedings under this Code, unless such 533 error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to $. 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding. In the present case the statements of the witnesses prepared by Kapuraram were supplied to the accused before the committal proceedings were started. Relying upon those statements as duly recorded under section 161(3), cross examination of the witnesses was directed. But in the Court of Session the investigating officer admitted that on September 29, 1960 he did not record the statements of witnesses in detail, but merely noted certain points and after reaching Thana Bali on September 30, 1960 he had got detailed statements of the witnesses written out by head constable Kapuraram in the absence of the witnesses, and had destroyed the notes and jottings thereafter. Undoubtedly the investigating officer acted in a manner both irresponsible and improper, and thereby was instrumental in depriving the accused of the benefit of the "notes and jottings" written out by him. He destroyed the only documents which could be regarded as statements recorded under section 161 and which are permitted to be utilized by the accused under section 161. Counsel for the appellant relying upon the two judgments of the Nagpur High Court in Baliram vs Emperor(1) and Maganlal vs Emperor(2) submitted that omission to supply copies of the statements recorded under section 161 is repugnant to the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of justice, and where the accused was deprived of his statutory rights of cross examination and thereby denied the opportunity of effectively destroying the testimony of prosecution witnesses the evidence of such witnesses whose statements have not been supplied to the accused is inadmissible at the trial. We are unable to accept this contention for in our view the law stated by the Nagpur High Court does (1) I.L.R. (2) I.L.R. 534 not correctly interpret sections 161 and 162 Code of Criminal Procedure. In a later case, the Nagpur High Court in Maroti Mahagoo vs Emperor(1) held that though the right which is given to the accused under section 162 Code of Criminal Procedure to use the previous statements made to the police for the purpose of contradicting a witness is a valuable right, and where the omission to give copies to the accused is proved to have caused prejudice to the accused, the testimony of such witness must be received with extreme caution and the Court would be entitled in a suitable case even to ignore altogether such evidence, but the evidence is not inadmissible and every case must be decided on its own facts. These cases were decided before the Code of Criminal Procedure was amended by Act 26 of 1955, but on the question raised by counsel there is no material difference made by the amended provision. After the amendment of the Code in 1955, it is the duty of the investigating officer in every case where investigation has been held under Ch. XIV to supply to the accused copies of the statements of witnesses proposed to be examined at the trial. Under the Code before it was amended, it was for the Court when a request was made in. that behalf to supply to the accused statements of each witness when he was called for examination. The effect of the breach of the provisions of section 207A and section 173 Code of Criminal ProCedure was considered by this Court in Narayan Rao vs State of Andhra Pradesh(2) and it was held that failure to comply with the provisions of section 173(4) and section 207A(3) is merely an irregularity which does not affect the validity of the trial. It was observed, in dealing with the question whether an omission to comply with the provisions of section 173(4) read with sub section (3) of section 207A necessarily renders the entire proceeding and the trial null and void: "There is nodoubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard_the interests of accused persons by enjoining (1) I.L.R. (2) A.I.R. 1957 S.C.737. 535 upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished. But we are not prepared to hold that noncompliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. The word "shall" occurring both in sub section (4) of section 173 and sub section (3) of section 207A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of section 173, should not be allowed to have such a far reaching effect as to render the proceedings including the trial before .the Court of Session, wholly ineffective. . Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of the police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the Court may re open the proceedings by insisting upon full compliance with the provisions of the Code. In our opinion, the omission complained of in the instant case, should not have a more far reaching effect than the omission to carry out the provisions of section 162 or section 360 of the Code. " The Court in that case relied upon the observations made by the Judicial Committee of the Privy Council in Pulukuri Kotayya vs Emperor(1) to the effect that when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very (1) L.R, 74 I.A. 65. 536 comprehensive provisions of the Code. In dealing with result of failure to supply copies of statements recorded under section 161 Code of Criminal Procedure, the Judicial Committee observed in Pulukuri Kotayya 's case(1): "The right given to an accused person by this section is a very valuable one and often provides important material for cross examination of the prosecution witnesses. However slender the material for cross examination may seem to be, it is difficult to guage its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break down of the whole of his evidence and in the present case it has to be remembered that the accused 's contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to section 162 as matter of gravity. A.I.R. 1945 Nag. 1 where the record of statements made by witnesses had been destroyed, and 53 All. 458, where the Court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of section 162 have led to the conviction being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused. " However strong the inference may be, failure to supply copies will not by itself render the trial illegal. The Court must in each case consider the nature of the defect, the objection raised at the trial, and the circumstances which lead to an inference of prejudice. The strength of the inference of prejudice must always be adjudged having regard to the circumstances of each particular case. Narayan Rao 's Case(2) related to failure to comply with the provisions of sections 173 and 207A. It appears that in that case the statements of witnesses recorded under section 161 were supplied to the accused in the Court of Session, and irregularity in the proceeding to that extent was (1) L.R. 74 I.A. 65. (2) ; 537 mitigated. In the present case what could be regarded as statements recorded under section 161(3) were never supplied to the accused. But on that account the principle applicable to the consequences of deprivation of the statutory right 'is not different. The Trial Court observed that the copies of the statements which were handed over to the accused were not the record of the statements made by the witnesses but they were dictated by the sub Inspector Hari Singh from the 'jottings ' made by him of some points, the statements having been written by head constable Kapuraram. The Court then observed: "It is to be noted that head constable Kapuraram was not present at the place of occurrence when the investigating officer examined the witnesses on 29 9 60. The statements of witnesses which are in the handwriting of head constable Kapuraram, therefore, could not have been written and read over to witnesses in the village Mundara station, Bali, and, therefore, the statements on which the prosecution rely were never read over to and admitted correct by the witnesses. There are several portions in the statements witnesses which have been brought on record by the defence counsel on which there is complete contradiction between the statements of eye witnesses and the investigating officer. " But the contradictions were, it appears, primarily as to the presence of Harpat Singh and Pratap Singh whose names were mentioned in the first information by witness Ganesh, and against whom no charge sheet was filed and as to some matters not of much importance, such as the acts and conduct of persons other than Noor Khan the appellant in this appeal. For instance, Prabhu denied that he had stated that Prabhu Singh and Sohan Singh were eye witnesses to the assault. Mathura denied that she had stated that the accused had 'indecently abused and threatened Ganesh and Pratap to leave the well otherwise they would kill them, and a similar denial was made by Mst. Bhanwari. The contradiction in the statement of Prabhu related to some proceedings in Court arising out of the disputes relating to the well. It is of course very unsatisfactory that the notes, or .the 'jottings ' as they are 35 2 8. C.India/64 538 called, of the statements made by the witnesses before Hari Singh were not available to the accused because they were destroyed by him and what were made available to the accused were not in truth the statements which could be utilized under section 162 Code of Criminal Procedure. For this unsatisfactory state of affairs, sub. inspector Hari Singh must be held responsible. But solely on that account, as we have already observed, we are unable to hold that the trial was illegal. No attempt appears to have been made by the Trial Court to scrutinize the diary of sub inspector Hari Singh, nor was any objection raised in the High Court that by reason of the failure to make the notes or the jottings available to the accused any prejudice was caused. Not a single question was asked to Hari Singh about the nature of those jottings, or notes whether they were mere memoranda which the writer alone could understand, or were detailed notes of statements made to him, which were arranged into proper shape when dictated to Kapuraram. The High Court in dealing with this objection observed: "Having regard to the manner in which the police statements are alleged to have been prepared by Kapuraram, no value can be attached to them and if the witness disowned certain portions of those statements, his evidence at the trial cannot be rendered unreliable on that account. " The High Court has carefully analysed and considered the evidence of the witnesses who deposed that they had seen the assault and it was assured that four out of the witnesses who had received injuries on their person must have been present on the scene of offence and the testimony of three out of those witnesses was acceptable viewed in the light of the evidence of Mst. Bhanwari and Mst. Mathura. We have gone through the material parts of the evidence of the witnesses to which our attention was directed, and after carefully scrutinising the evidence in the light of the infirmities pointed out, especially the denial of the copies of the notes or jottings made by Hari Singh, we are unable to disagree with the High Court. The Sessions Judge discarded the testimony of the witnesses, in view of discrepancies on matters of compara 539 tively minor importance and because the witnesses were relatives of the deceased, and they made statements as to the distance from which the assault was made which could not be true in the light of the medical evidence. The High Court did not accept this view of the Trial Court. In an appeal with special leave we do not think that we would be justified in interfering with the conclusion of the High Court especially when our attention has not been invited to any substantial infirmity in the reasoning of that Court. We may repeat that the provisions of section 162 Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under section 161 the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the Court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. This, in our judgment, is one of those cases in which such a course is warranted. The action of the sub inspector Hari Singh in destroying the notes cannot but be deplored. But the destruction of the notes recorded by him appears to be the result of ignorance, not of any dishonesty. Even so, if on a careful scrutiny of the evidence we felt that there was reasonable ground for holding that the appellant Noor Khan was prejudiced because he was deprived of the right which the Legislature had ensured him in making his defence, we would have set aside the conviction. We have however considered the evidence of the witnesses 540 carefully and examined it in the light of the criticism offered by counsel for Noor Khan, and after giving due weight to the opinion of the High Court and the Trial Court have come to the conclusion on the facts of this case that no prejudice appears to have been caused. As we have already pointed out, the plea of prejudice caused to_the accused does not appear to have been raised in the High Court, and apart from the general plea 'of illegality of the trial because of the failure to supply the copies of the record of the statements made to Hari Singh, no substantial argument in support of the plea of prejudice has been advanced. On the view we have taken, this appeal fails and is dismissed. Appeal dismissed.

IN-Abs

The appellant and nine others were tried before the Sessions Judge for offences of rioting and being members of an unlaw ful assembly and causing in furtherance of their common object death of one person and serious injuries to four others. The appellant was also charged for the substantive offence of causing the death by gun shot injuries. All the accused persons were acquitted at the trial. In appeal against acquittal by the State, the High Court set aside the acquittal of the appellant and sentenced him to imprisonment for life under section 302 Indian Penal Code and confirmed the order in respect of the rest. The appellant 's main con tention in this Court was that under section 161 of the Code of Criminal Procedure it was obligatory upon an investigating officer to record the statements of witnesses examined by him and if those statements were not made available to the accused at the trial, a valuable right was lost to the accused, and the trial must on that account alone be regarded as vitiated. 34 2 section C. India/64 522 Held : (i) Where the circumstances are such that the court may reasonable infer that prejudice has resulted to the accused from the failure to supply the statements recorded under section 161, the court would be justified in directing that the convict on be set aside and a proper case to direct that the defect be rectified in such manner as the circumstances, may warrant. It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. On the facts of the present case no prejudice was caused to the accused and the plea of prejudice was neither raised in the High Court, nor any substantial argument in support of the same was advanced in this Court. Narayan Rao vs State of Andhra Pradesh, A. I. R. 1957 section C. 737 and Pulukuri Kotyya vs Emperor, L. R. 74 I. A. 65, relied on. Baliram vs Emperor, I.L.R. , Maganlal vs Em peror, I.L.R. and Maroti Mahagoo vs Emperor, I.L.R. , disapproved. (ii) In the present case the Sessions Judge did not found his conclusion upon the demeanour of the witnesses and the High Court rightly observed that the presence of the four injured persons at the scene of offence was assured by the evidence of injuries, and must be regarded as established beyond reasonable doubt. Sheo Swarup vs King Emperor, L. R. 61 I. A. 398, referred to.

Criminal Appeal No. 54 of 1963. Appeal by special leave from the judgment and order dated September 13, 1962, of the Allahabad High Court in Criminal Appeal No. 877 of 1962 and Referred No. 79 of 1962. O. P. Rana, for the appellant. G.C. Mathur and C. P. Lal, for the respondent. May 10. The judgment of the Court was delivered by SHAH J. The appellant Kirpal Singh and his two brothers Arjun Singh and Sarwan Singh, 994 were tried by the Sessions judge, Pillibhit for causing the death of one Karam Singh with gunshot injuries in the evening of March 26, 1961 at Village Shanti Nagar. The Sessions judge acquitted Arjun Singh and Sarwan Singh and convicted the appellant Kirpal Singh of the offence charged against him and sentenced him to suffer the penalty of death subject to confirmation by the High Court. The High Court of Allahabad confirmed the order of conviction and sentence. With special leave, Kirpal Singh has appealed to this Court. The case for the prosecution was as follows The appellant and his father in law Rakkha Singh were refugees from West Pakistan. A block of agricultural land, allotted by the Government to Rakkha Singh and the appellant was partitioned but no boundary marks were erected on the line dividing the lands. In December 1960 there was a dispute between Rakkha Singh on the one hand and the appellant and his brothers on the other about the harvesting of sugarcane planted in the land. This dispute was settled on the intervention of one Sardar Ajit Singh, and Rakkha Singh agreed to give seven hundred maunds of sugarcane to the appellant and his brothers. The appellant and his brothers went to the house of Rakkha Singh on March 22, 1961 and complained that they were not given four hundred maunds of sugarcane out of the seven hundred maunds promised to them. There was a quarrel on that occasion between Karam Singh eldest son of Rakkha Singh and the appellant, the former saying that the appellant and his brothers were "behaving like dishonest persons '. Rakkha Singh intervened and nothing untoward happened on that occasion. On March 26, 1961 at about 6 p.m. when Rakkha Singh and his two sons Karam Singh and Manjit Singh and their neighbour Sardar Anokh Singh were sitting in a thatched hut, the appellant 995 armed with a gun, and his two brothers armed with lathis arrived near the hut, and the appellant shouted to Karam Singh asking him to come out of the hut. On Karam Singh 's emerging from the hut the appellant told him that since he (Karam Singh) "did not settle the dispute regarding the sugarcane he would settle his account just then", and opened fire causing injuries to Karam Singh on the chest which resulted in death instantaneously. On hearing the report of gun fire Rakkha Singh, his son Manjit Singh and Sardar Anokh Singh came out of the thatched hut. Manjit Singh tried to catch hold of the appellant and his brothers but without success. Rakkha Singh then went to the police station Puranpur and lodged the first information at 7 45 a.m. At the trial of the appellant and his brothers before the Court of Session, Manjit Singh, Anokh Singh and Rakkha Singh were examined as persons who were present at the scene of offence and witnessed the assault on Karam Singh. Manjit Singh and Anokh Singh however did not support the prosecution case. They stated that at about 8 or 9 p.m. on March 26, 1961 when they were in their respective houses they heard report of gun fire and on coming out came to learn from some person that Karam Singh was fired upon by 'some Sardar who was wearing a mask '. The witnesses were cross examined by the prosecutor with leave of the Court in the light of their statements recorded by the sub inspector of police in the course of his investigation but they denied having made the statements that the appellant and his two brothers had come to Shanti Nagar at 6 p.m. on the day of occurrence and that the appellant had killed Karam Singh by causing him gunshot injuries. But Rakkha Singh supported the prosecution case. He spoke about the dispute about sugarcane, and also about the quarrel between Karani Singh and the appellant on March 22, 1961. He then stated that on March 26,1961 at about 6 p.m. the appellant and his two brothers had 996 come near his hut, that the appellant had called out Karam Singh and after shouting that as Karam Singh was not settling the matter of sugarcane they "were going to settle his matter" had fired a shot killing Karam Singh instantaneously. In cross examination he stated that from the hut in which he was sitting he could not see the faces of the assailants but on hearing the report of gun fire he came out of the hut and saw the assailants running away, and that he was able to recognise them by "their gait and voice". The learned Sessions judge accepted the testimony of Rakkha Singh and, in so for as it inculpated the appellant, convicted him of the offence of causing the death of Karam Singh. He however held that the two brothers of the appellant were not proved to be guilty of the offence charged against them and acquitted them. The High Court of Allahabad agreed with the finding recorded by the Court of First Instance and confirmed the sentence of death passed against the appellant. The conclusion recorded by the Court of First Instance and affirmed by the High Court is based upon appreciation of evidence and no question of law arises therefrom. Normally this Court does not proceed to review the evidence in appeals in criminal cases, unless the trial is vitiated by some illegality or irregularity of procedure or the trial is held in a manner violative of the rules of natural justice resulting in an unfair trial or unless the judgment under appeal has resulted in gross miscarriage of justice. Rakkha Singh deposed that he had been able to recognise the appellant from his "voice and gait". Rakkha Singh was the father in law of the appellant, and had during the last few days before the death of Karam Singh seen the appellant frequently. Only four days before the incident there was a quarrel between Kararn Singh and the appellant about the 997 delivery of sugarcane crop and the appellant and his brothers had retired from the scene at the intervention of Rakkha Singh, greatly annoyed. It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial. But the appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several occasions in connection with the dispute about the sugarcane crop. Rakkha Singh bad heard the appellant and his brothers calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the shooting referring to the dispute about sugarcane. In the examination, in chief Rakkha Singh has deposed as if he had seen the actual assault by the appellant, but in cross examination he stated that he had not seen the face of the assailant of Karam Singh. He asserted however that he was able to recognize the appellant and his two brothers from their 'gait and voice '. It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the appellant and accepted the testimony. Manjit Singh and Anokh Singh have tried to shield the appellant by deposing that the assault took place at about 9 p.m. and that they were informed that the assailant had put on a mask. Their statements recorded in the course of investigation were inconsistent with the tenor of their evidence in Court. It is true that there was some delay in lodging the first information, the offence took place according to Rakkha Singh at 6 p.m. ,on March 26, 1961 and 998 information at the police station Puranpur was lodged at 7.45 a.m. on March 27, 1961. The distance between the police station and the village Shanti Nagar, as the crow flies, is about 15 miles but by the public transport system one has to take a long detour to reach Puranpur Police Station. Rakkha Singh says that to avoid delay and to secure the presence of a Police Officer he secured a jeep from Sampurna Nagar Union and proceeded to the police brought the sub inspector of police to in the same jeep. We do not think, station and santi Nagar having regard to the circumstances, that there has been any such gross delay in lodging the first information as would justify us in throwing doubt on the truth of the story of Rakkha Singh. It appears that there are two police outposts near Shanti Negar one at a distance of about two miles and another at a distance of five miles but the officer in charge of the police outposts had, it is conceded by counsel for the appellant, no authority to record a first information. Rakkha Singh desired to lodge a complaint About the commis sion of the offence of murder, he was not apprehensive of any violence at the hands of the appellant and his brothers, and if he did not contact the officer at the police outposts, who could not record his complaint, no fault can be found. against him. The postmortem examination of the stomach contents of Karam Singh disclosed that there was 8 ozs. of half digested food and that indicated that the death was caused some two hours after the last meal was taken by Karam Singh; Counsel for the appellant said that the condition of the stomach supported the version of Manjit Singh and Anokh Singh, but Rakkha Singh has deposed that Karam Singh had taken at about 4 p.m. tea and pakadas. That explains the presence of ' half digested food in the stomach. The case for the prosecution undoubtedly depends for its support upon the testimony of a single witness, who did not claim to have identified 999 the assailant by seeing his face. But we do not think that is a circumstance which would justify us in departing from the rule normally followed by this Court. The offence was committed when there was sufficient daylight : the assailant was intimately known to Rakkha Singh and the witness had heard the appellant 's voice speaking about the dispute which was pending between him and the appellant. We do not think that the circumstance that Rakkha Singh had not seen the face of the appellant when the latter was running away is a ground for discarding his testimony. The conviction of the appellant must therefore be confirmed. Sentence passed by the Trial Court is, in the circumstances of the case the only appropriate sentence. Before parting with the case, we think it necessary to observe that the committing Magistrate in this case erred in committing the accused to the Court of Session without recording the evidence of all the witnesses to the actual commission of the offence, Under the Code of Criminal Procedure as amended by Act 26 of 1955, the Magistrate holding committal proceedings is required to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also: section 207A (4). The Magistrate has in the enquiries relating to charges for serious offences like murder the power and indeed a duty in the interest of the accused, as well as in the larger interest of the public to record the evidence of other witnesses who throw light on the case. Examination of witnesses to the actual commission of the offence should in inquiries, for committal on charges for such serious offences, be the normal rule. The prosecutor is expected ordinarily to examine in the Court of the 1000 committing Magistrate all witnesses to the actual commission of the offence: if without adequate reasons he fails to do so, the Magistrate is justified and in enquiries on charges for serious offences is under a duty to call witnesses who would throw light upon the prosecution case. Before the Code was amended by Act 26 of 1955 it was necessary for the Magistrate holding the inquiry to record the evidence of all the important witnesses. With a view to shorten delays in the proceeding preliminary to bringing the accused to trial, the Legislature has by enacting section 207A conferred a discretion upon the Magistrate in the matter of examination of witnesses not produced by the prosecutor. Exercise of that discretion must be judical : it is not to be governed by any set rules or standards, but must be adjusted in the light of circumstances of the case. The Magistrate is again not to be guided by the attitude of the prosecutor. He must of course consider the representation relating to the examination of witnesses by the prosecutor, but in considering whether it is necessary in the interest of justice to take evidence of any one or more of the other witnesses for the prosecution, he must have due regard to the nature and gravity of the offence, the interest of the accused and the larger interest of the public, and the defence if any disclosed by the accused. A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produced, without considering whether it is necessary in the interest of justice to examine such witnesses, in our judgment, fails in the discharge of duties. There is nothing in the decision of this Court in Sriram vs The State of Bombay (1), which may support the view that in the matter of examination of witnesses, especially in the inquiry relating to serious charges like murder and culpable homicide, the Magistrate is to be guided by the prosecutor. It is (1) [1961]2 S.C.R. 890. 1001 the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutor as witnesses to the actual commission of the offence alleged, but his duty does not end with such examination. He must apply his mind to the documents referred to in section 173, and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider whether in the interest of justice it is necessary to re. cord the evidence of other witnesses. In inquiries relating to charges for serious offences like murder, normally the Magistrate should insist upon the exa mination of the principal witnesses to the actual commission of the offence. Failure to examine the witnesses may be justified only in exceptional cases. This is so because the Magistrate in committing a person accused of an offence for trial has to perform a judicial function which has a vital importance in the ultimate trial, and slipshod or mechanical dealing with the proceeding must be deprecated. The appeal fails and is dismissed. Appeal dismissed.

IN-Abs

The appellant was convicted by the Sessions judge of the offence of murder of K and sentenced to death, and the con viction and sentence were confirmed by the High Court. The committal proceedings disclosed that the Magistrate committed the accused to the Court of Session without recording the evidence of the witnesses to the actual commission of the offence. Held that under section 207A of the Code of Criminal Pro cedure, 1898, as amended by Act 26 of 1955, a Magistrate., has 993 been given a discretion in the matter of examination of witnesses not produced by the prosecutor. The prosecutor is expected ordinarily to examine in the court of the committing Magistrate all witnesses to the actual commission of the offence, but if without adequate reasons he fails to do so, the Magistrate is justified and, in enquiries on charges of serious offences like murder, is under a duty to call witnesses who would throw light upon the prosecution case. A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produced, without considering whether it is not necessary in the interests of justice to examine such witnesses, fails in the discharge of his duties. The Magistrate must apply his mind to the documents referred to in section 173 of the code and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider whether in the interests of justice it is necessary to record the evidence of other witnesses. A Magistrate in committing a person accused of an offence for trial has to perform a judicial function which has a vital importance in the ultimate trial, and a slipshod or mechanical dealing with the proceeding must be deprecated. Shriram Daya Ram vs The State of Bombay, [1961] 2 S.C.R. 890, considered.

Appeal No. 874 of 1962. Appeal from the judgment and order dated January 15, 1962, of the Madras High Court in Writ Appeal No. 82 of 1959. A. V. Viswanatha Sastri, G. B. Pai and B. N. Ghosh, for the appellant. 267 B. R. Dolia, M. Rajagopalan and K. R. Chaudhuri, for the respondents. August 2, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The principal question which arises in this appeal relates to the true scope and effect of the provisions contained in section 73 of the (hereinafter called the Act). The appellant, the Buckingham & Carnatic Co. Ltd., is a company registered under the Indian Companies Act and its registered office is at Madras. It has a Textile Mill in Madras City which employs 14,000 workmen. On January 10, 1957, the respondent Venkatiah whose case is sponsored by the respondent Union, the Madras Labour Union, had gone on leave for six days. Taking into account the intervening holidays, the said leave expired on January18, 1957. He, however did not join duty on the 19th January as he should have, but remained absent without leave without sending to the appellant any communication for extending his leave. On the 11th March 1957 he sent a letter to the appellant stating that sometime after reaching his village near Kanigiri he suffered from fever and dysentery and was treated by the Civil Assistant Surgeon, Kanigiri. This letter was accompanied by a certificate issued by the said Civil Assistant Surgeon. In this certificate it was stated that Venkatiah suffered from chronic malaria and dysentery from January 15 to, March 7, 1957. When he appeared before the Manager of the Company, he was asked to go to the Senior Medical Officer of the appellant for examination. The said Officer examined him and was unable to confirm that he had been ailing for a period of nearly two months. Acting on that opinion ' the appellant refused to take back Venkatiah and when Venkatiah pressed to be taken back, the appellant informed him on March 23, 1957 that he could not be reinstated as his explanation for his absence was un satisfactory. The case of Venkatiah was treated by the appellant under Standing Order No. 8(ii) of the Standing Orders of the appellant. Meanwhile, Venkatiah had applied to the Employees State Insurance Corporation and on or about the 15th June 1957 he obtained cash sickness benefit for the period covered by the medical certificate issued. by the Civil Assis 268 tant Surgeon, Kanigiri. The Regional Director to whom Venkatiah had applied for the said assistance accepted the said certificate as alternative evidence and directed that payment may be made to him to the extent permissible under the Act. Accordingly, Rs. 82 14 00 were paid to him. When the appellant refused to take back Venkatiah in its employment, the respondent Union took up his case and it was referred for adjudication to the Labour Court at Madras as an industrial dispute (S.P.O. No. A 5411 of 1958). Before the Labour Court the appellant urged that the reference made was invalid and it also contended that the termination of Venkatiah 's services was 'Justified. The Labour Court rejected the appellants preliminary object ion about the invalidity of the reference. It held that if the matter had to be considered solely by reference to the Standing Orders, the appellant was entitled to succeed, because it was justified in acting upon the opinion given by its Medical Officer in regard to the alleged illness of Venkatiah. When the said opinion was attacked before the Labour Court, it observed that it was easy to make, such an attack and it held that "he was not inclined to accept the correctness of the criticism in the a absence of any strong evidence to show that the Medical Officer was prejudiced against the worker and was motivated with the idea of victimisation". The respondent, however, succeeded before the Labour Court primarily on the ground that the decision of the appellant not to take back Venkatiah was inconsistent with the provisions of section 73 of the Act. That is why the Labour Court directed the management of the appellant to reinstate Venkatiah within two weeks after its award came into force without liability to pay back wages, but with continuity of service. After this award was pronounced by, the Labour Court, the appellant moved the Madras High Court by 2 writ petition and prayed that the said award be quashed (W.P. No. 716 of 1958). This writ petition was allowed by Mr. Justice Balkrishna Ayyar. The learned Judge held that section 73 of the Act was inapplicable to the present case and found that, in substance, the labour court had made its award on grounds of sympathy for Venkatiah rather than on the merits of the case. In the result, the said 269 award was set aside by the learned judge. The respondent challenged the correctness of this decision by a Letters Patent Appeal before a Division Bench of the Madras High Court (No. LPA 82 of 1959). The respondent 's appeal was allowed by the Division Bench and in consequence, the award passed by the Labour Court has been restored. The Division Bench has held that section 73 applied to the present case and that made the refusal of the appellant to take back Venkatiah in its employment illegal. It has also observed that in refusing to take back Venkatiah the appellant had not properly discharged its obligation of examining Venkatiah 's explanation reasonably and that introduced an infirmity in its decision not to take him back. In ,other words, according to the Division Bench, the action of the management amounted to contravention of the provisions of section 73 of the Act and was otherwise not fair. It is against this decision that the appellant has come to this Court with a certificate issued by the Madras High Court under article 133(1)(c) of the Constitution. Mr. Sastri for the appellant contends that the case of Venkatiah falls squarely within the provisions of Standing Order 8(ii) and the High Court was in error in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of section 73 of the Act. Let us first examine Standing Order No. 8(ii) before proceeding any further. The said Standing Order reads thus: "Absent without Leave: Any employee who absents himself for eight consecutive working days without Leave shall be deemed to have left the Company 's service without notice thereby terminating his contract of service. If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance. Any employee leaving the Company 's service in this manner shall have no claim for re employment in the Mills. But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowances. " 270 This Standing Order is a part of the certified Standing Orders which had been revised by an arbitration award between the parties in 1957. The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has ter minated his contract of service. The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service. The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service. It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. But where parties agree upon the terms & conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the, first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment. The latter part of this clause, however, provides that the employee can offer an explanation as to his absence and if Ms explanation is found to be satisfactory by the management, his absence will be converted into leave without pay or dearness allowance. Now this clause is in substance a proviso to its first part. Before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management, 271 the inference of termination of contract of service is rebutted and the leave in question is treated as leave without pay or dearness allowance. This latter clause obviously postulates that if the explanation offered by the employee is not found to be satisfactory by the management, the inference arising from the first part prevails and the employee shall be deemed to have terminated his contract of service with the result that the relationship of master and servant between the parties would be held to have come to an end. With the remaining part of the said Standing Order we are not concerned in this appeal. It is true that absence without leave for eight consecutive days is also treated as misconduct under cl. 13(f) of the Standing Orders. The said clause refers to the said absence and habitual absence without leave. In other words, the position under the Standing Orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under Standing Order 8(ii) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant Standing Order. The fact that the same conduct is dealt with in two different Standing Orders cannot affect the applicability of S.O. 8(ii) to the present case. It is not as if the appellant is bound to treat Venkatiah 's absence as constituting misconduct under S.O. 13(f) and proceed to hold an enquiry against him before terminating his services. Dismissal for misconduct as defined under S.O. 13 may perhaps have different and more serious consequences from the termination of service resulting from S.O. 8(ii). However that may be, if S.O. 8(ii) is applicable, it would be no answer to the appellant 's case under S.O. 8(ii) to say that S.O. 13(f) is attracted. This position is not seriously in dispute. The High Court appears to have taken the view that the appellant did not act fairly in rejecting Venkatiah 's case that he was ill and in refusing to act upon the certificate produced by him in support of his case. It is necessary, in the first instance, to examine the correctness of this con clusion. As we have already indicated, the Civil Assistant Surgeon no doubt certified on March 7, 1957 that Venkatiah had suffered from chronic dysentery from janu 272 ary 15 to March 7, 1957, and he added that he was then completely free from the ailments and was in a fit state of health to join duty on the 9th March 1957. Incidentally, the certificate has been granted at the end of the treatment and specifically avers that he was fit enough to join on March 9, 1957. When Venkatiah was examined by the Medical Officer of the appellant on the 22nd March 1957, thr Medical Officer was unable to confirm that he was ill for a period of nearly two months. The High Court has criticised this certificate as being vague. In our opinion, by this certificate the Medical Officer politely suggests that having regard to the opinion which he formed on examining Venkatiah on March 22, he was unable to confirm the certificate issued by the Civil Assistant Surgeon. What struck the High Court as vague in the certificate is obviously the result of the desire of the appellant 's Medi cal Officer to observe professional courtesy in dealing with the certificate on which Venkatiah relied. Apart from I this aspect, however, we do not see how it was open to the High Court to consider the propriety of the conclusion reached by the Labour Court on this point. We have already noticed that the Labour Court has specifically repelled the criticism made by the respondent against the conduct of the appellant 's Medical Officer and has held that if the matter had fallen to be considered only in the light of Standing Order 8(ii), the appellant would have succeeded. That being so, it is not easy to see how the respondent 's grievance against the said finding of the Labour Court could have been properly upheld by the High Court in exercising its writ jurisdiction under article 226 of the Constitution. Whether or not the appellant should have accepted the certificate of the Civil Assistant Surgeon was primarily for the appellant to consider. It is significant that there is no allegation about mala fides in this case, and so, we do not think that the High Court was justified in making a finding against the appellant on the ground that the appellant had not discharged its obligation under the Standing Orders of properly considering the explanation of Venkatiah in regard to his absence. The High Court was apparently aware of this position and so, it has stated in the course of its judgment that it would rest its decision on what it regarded to be the effect of 273 section 73 "even assuming that the discharge of the worker in the instant case was automatic by virtue of the operation of Standing Order 8(ii), and so, it is to this part of the case that we must now turn. Before doing so, however, we may refer to the argument urged before us by Mr. Dolia for the respondent that it would be anomalous if it is open to the appellant to reject Venkatiah 's case that he was ill during the relevant period when the said case had been accepted by the Corporation when it gave him relief under section 73 and the regulations framed under the Act. Mr. Dolia relies on the fact that Venkatiah satisfied the relevant authorities administering the provisions of the Act that he was ill during the relevant period, and had, in fact, been given assistance on that basis, so that for the purposes of the Act he is held to be ill during that period, and yet the appellant for the purpose of Standing Order 8(ii) holds that Venkatiah was not ill. during the same period. It could not be the intention of the legislature to allow such a glaring anomaly to prevail, says Mr. Dolia, and so, he suggested that the appellant was bound to hold that Venkatiah was ill during the relevant period, having regard to the fact that his illness had been accepted by the relevant authorities under the Act. This argument is no doubt, prima facie, attractive, but before accepting it, it would be necessary to find out whether there is any specific provision in the Act which compels the appellant to accept the view taken by the relevant authority under the Act when it decided to give assistance to Venkatiah. Section 73 of the Act reads asunder : "Employer not to dismiss or punish employee during period of sickness, etc. (1)No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out 274 of the pregnancy or confinement rendering the employee unfit for work. (2)No notice of dismissal or discharge or reduction given to an employee during the period specified in sub section (1) shall be valid or operative." Mr. Dolia contends that since this Act has been passed for conferring certain benefits on employees in case of sickness, maternity and employment injury, it is necessary that the operative provisions of the Act should receive a liberal and beneficent construction from the court. It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act. But, on the other hand, if the words used in the section are reasonably capable of only one construction and are clearly intractable in regard to the construction for which Mr. Dolia contends, the doctrine of liberal construction can be of no assistance. Mr. Dolia 's suggestion is that the general policy of section 73 is to prevent dismissal, discharge, reduction or other punishment being imposed or,. an employee who is ill if it is shown that he has received sickness benefit. There are other cases mentioned in this section to which it is not necessary to refer for the purpose of dealing with Mr. Dolia 's argument. According to Mr. Dolia, the operation of section 73 is confined to cases of illness for instance, and it prohibits the imposition of any penalty wherever it is shown that in respect of the illness in question, the employee has received sickness benefit. In the present case, the employee has received sickness benefit, and so, for the said sickness, no penalty can be imposed on him. That, in brief, is the contention which Mr. Dolia has pressed 275 before us. On the other hand, Mr. Sastri argues that the words used in the section are capable of only one construction. The section merely prohibits any punitive action being taken against the employee during the period of his illness, and he urges that the prohibition is not confined to punitive action in respect of illness alone but extends to punitive action in respect of all kinds of misconduct whatever. What the section says is, during the period that the employee is ill, no action can be taken against him whatever may be the cause for the said action. Mr. Sastri also contended that the clause "during the period the employee is in receipt of sickness benefit" can cover the period during which the sickness benefit is actually received by him, and so, he suggests that since during the period of Venkatiah 's illness itself no sickness benefit had been received by him, section 73(i) is wholly inapplicable. We are not impressed by this argument. In our opinion, the clause "during the period the employee is in receipt of sickness benefit" refers to the period of his actual illness and requires that for the said period of illness, sickness benefit should have been received by him. It is quite clear that in a large majority of cases, sickness benefit would be applied for and received by the employee after his sickness is over, and so, to hold that the period there referred to is the period during which the employee must be ill and must also receive sickness benefit, would make the section wholly unworkable. That is why we do not think that the limitation which Mr. Sastri seeks to introduce by suggesting that sickness benefit must be paid during the course of illness itself, can be read into the section. Even so, what is the effect of section 73(1) ? In considering this question, it would be useful to take into account the provisions of sub section This sub section provides that no notice given to an employee during the period specified in sub section (i) shall be valid or operative. Thus, it is clear that the giving of the notice during the specified period makes it invalid, and it is remarkable that the notice is not in regard to dismissal, discharge or reduction in respect of sickness alone, but it includes all such notices issued, whatever may be the misconduct justifying them. Thus, 276 there can be no doubt that the punitive action which is prohibited by section 73(1) is not confirmed to punitive action proceeding on the basis of absence owing to sickness; it is punitive action proceeding on the basis of all kinds of misconduct which justifies the imposition of the penalty in question. What section 73(1) prohibits is such punitive action and it limits the extent of the said prohibition to the period during which the employee is ill. We are free to confess that the clause is not very happily worded, but it seems to us that the plain object of the clause is to put a sort of a moratorium against 211 punitive actions during the pendency of the employee 's illness. If the employee is ill and if it appears that he has received sickness benefit for such illness, during that period of illness no punitive action can be taken against him. That appears to us to be the effect of that part of section 73(1) with which we arc concerned in the present appeal. If that be so, it is difficult to invoke section 73 against the appellant, because the termination of Venkatiah 's services has not taken place during the period of his illness for which he received sickness benefit. There is another aspect of this question to which it is necessary to refer. Section 73(1) prohibits the employer from dismissing, discharging, reducing or otherwise puni shing an employee. This seems to suggest that what is prohibited is some positive act on the part of the employer, such as an order passed by him either dismissing, discharg ing or reducing or punishing the employee. Where ter mination of the employee 's services follows automatically either from a contract or from a Standing Order by virtue of the employee 's absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employer, and so to such a termination the prohibition contained in section 73(1) would be inapplicable. Mr. Dolia no doubt contended that the word 'discharge ' occurring in section 73(1) should be liberally construed and he argued that termination of service even under Standing Order 8(ii) should be held to be a discharge under section 73(1). We are not prepared to accept this argument. In considering the question about the true denotation of the word "discharge" in section 73(1), it is relevant to bear in mind the provisions of section 85(d) of the Act. 277 Section 85(d) provides that if any person in contravention of section 73 or any regulation, dismisses, discharges, reduces or otherwise punishes an employee, he shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees, or with both. In other words, the contravention of section 73(1) is made penal bys. 85(d), and so, it Would not be reasonable to put the widest possible denotation on the word "discharge" ins. 73(1). The word "discharge" in section 73(1) must,therefore, in the context, be taken to be a discharge which is the result of a decision of the employer embodied in an order passed by him. It may conceivably also include the case of a discharge where discharge is provided for by a Standing. Order. In such a case, it may be said that the discharge flowing from the Standing Order is, in substance, discharge brought about by the employer with the assistance of the Standing Order. Even so, it cannot cover the case of abandonment of service by the employee which is inferred under Standing, Order 8(ii). Therefore, we do not think the High Court was justified in taking the view that the termination of Venkatiah 's services under S.O. 8(ii) to which the appellant has given effect by refusing to take him back, contravenes the provisions of section 73(1). Mr. Dolia argued that on the appellant 's construction 73(1) would afford very unsatisfactory and poor protection to the employees. If all that section 73(1) does is to prevent any punitive action being taken against the employee during the period that he is ill, there is not much of protection given to him at all, says Mr. Dolia. There is no doubt some force in this argument: but as we have already observed, the words used in section 73(1) read with subs. (2) cannot reasonably lead to the construction for which, Mr. Dolia contends. It would, we think, be unreasonable, if not illegitimate, to construe the relevant section merely on the hypothesis that the legislature intended to provide a larger protection to the employees when the said hypothesis cannot be worked out in the light of the words used by the statute. By virtue of the power conferred on the State Government by section 96 to make rules, certain regulations had been framed under the Act in 1950. Chapter III of these 278 Regulations deals with the benefit claims. Regulations 53 to 86 in this Chapter are concerned with the certification and claims for sickness and temporary disablement. Regu lation 54 provides for the persons competent to issue medi cal certificate and Regulation 55 required that the Medical Certificate should be filled in the prescribed form. Regu lation 57 deals with the Medical Certificate on first exa mination and Regulation 58 refers to the final Medical Certificate. Regulation 63 prescribes the form of claim for sickness or temporary disablement. An insured person intending to claim sickness benefit has to submit the said form to the appropriate Local Office by post or otherwise. Regulation 64 lays down that if such a claimant fails to submit to the appropriate Local Office by post or otherwise the first medical certificate or any subsequent medical certificate within the period therein prescribed, he shall not be eligible for that benefit in respect of the period indicated thereunder. It is in the light of these regulations that Regulation 53 has to be considered. This regulation provides that every insured person claiming sickness benefit shall furnish evidence of sickness in respect of the days of his sickness by means of a medical certificate given by an Insurance Medical Officer in accordance with the Regulations in the appropriate form. There is, however, a proviso to Regulation 53 which says that the Corporation may accept any other evidence of sickness or temporary disablement if in its opinion the circumstances of any particular case so justify. In the present case, the Regional Director has accepted the Civil Assistant Surge 'on 's certificate under the proviso to regulation 53 when he directed that cash benefit may be paid to Venkatiah under section 73(1). Having regard to these Regulations, it is difficult to see how the view taken by the Regional Directors about the effect of the certificate issued by the Civil Assistant Surgeon can be said to be binding on the appellant. There is no provision in the Act or the Regulations, to which section 73(1) refers by which it could be contended that once the illness of an insured employee is accepted by the appropriate authority under the Act, it must automatically be accepted by the employer in dealing with the said employee 's case under the Standing Orders. Therefore, the argument that inconsistent results may follow if two views 279 are allowed to be taken about the illness of a given em ployee, does not help the appellant. Besides, as we have already indicated, this argument has hardly any relevance in view of the construction which we are inclined to put on section 73(1) of the Act. In view of our construction of the said section, Mr. Dolia 's argument that there is inconsistency between the said section and Standing Order 8(ii) also has no validity. Before parting with this case, we ought to add that at the very outset, Mr. Sastri for the appellant made it clear to us that the appellant was fighting this appeal not so much to resist the order of reinstatement passed in favour of Venkatiah as to get a decision from this Court about the true scope and effect of section 73(1) of the Act. In other words, he argued that this case was fought as a test case on the question of the construction of the said section. Therefore, when we suggested to Mr. Sastri that the appel lant who is a very big prosperous employer should not resist the reinstatement of a single employee whose case has been brought to this Court, he assured us that he would recommend to the employer to take Venkatiah back on the terms prescribed by the Labour Court in the first instance in this case. In the result, the appeal is allowed, the order passed by the Division Bench of the Madras, High Court is set aside and that of the Single Judge restored. There would be no order as to costs. Appeal allowed.

IN-Abs

The respondent Venkatiah went on leave for six days and did not join duty on the expiry of the leave period but remained absent without sending to the appellant any communication for extending his leave. Later, he sent 2 letter to the appellant accompanied by a medical certificate issued by a Civil Assistant Surgeon in respect of his illness for a period of nearly two months. The Medical Officer of the appellant was unable to confirm that he was ailing for a period of two months. Finding the explanation for his absence unsatisfactory the appellant refused to take him back in its employment. Meanwhile he had applied to the Regional Director of the Employees ' State Insurance Corporation and obtained cash sickness benefit for the period covered by the Medical Certificate issued by the Civil Assistant Surgeon. On the appellant 's refusal to take him back in its employment, the respondent union, referred his case for adjudication 18 2 section C. India/64 266 to the Labour Court and the management of the appellant was directed to reinstate him. The appellant then moved a writ petition in the High Court and it was allowed by the learned single Judge. The respondent then preferred a Letters Patent Appeal before a Division Bench of the High ' Court. The appeal was allowed by the Division Bench and the award passed by the Labour Court was restored. In his appeal against the said decision the appellant 's main contention in this Court was that the case of Venkatiah fell squarely within the provisions of Standing Order 8(ii) and the High Court was wrong in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of section 73 of the . The respondent mainly contended that in the present case the employee received sickness benefit, and so, for the said sickness, no penalty could be imposed on him. Held : (i) Standing Order 8(ii) was applicable to the present case and the fact that the same conduct was dealt with in two different standing orders, could not affect the applicability of Standing Order 8(ii) to the present case. (ii) Whether or not the appellant should have accepted the certificate of the Civil Assistant Surgeon was primarily for the appellant to consider; as there was no allegation about mala fides in this case, it was not open to the High Court, in exercise of its writ jurisdiction, to consider the propriety of the conclusion reached by the Labour Court on this point. (iii) On a proper construction of section 73(1) read with sub section (2), it was impossible to invoke section 73 against the appellant, because the termination of Venkatiah 's services had not taken place during the period of his illness for which he received sickness benefit; the High Court was not justified in taking the view that the termination of Venkatiah 's services under S.O. 8(ii) contravened the pro visions of section 73(1). (iv) The view taken by the Regional Director about the effect of the Civil Assistant Surgeon 's certificate under the proviso to regulation 53 could not be said to be binding on the appellant and in view of the construction put on section 73(1), there was no inconsistency between the said section and Standing Order 8(ii).

ivil Appeal No. 387 of 1963. Appeal by special leave from the judgment and order dated February 14, 1962, of the Mysore High Court in Writ Petition No. 916 of 1959. C.K. Daphtary, Attorney General for India, R. Gopalalkrishnan and B.R.G.K. Achar for P.D. Menon, for the appellant. Naunit Lal, for the respondent. August 22, 1963. The Judgment of the Court was delivered by SUBBA RAO J. This appeal by special leave is preferred against the Order of a Division Bench of the High Court of Mysore at Bangalore quashing the order of the 542 Government dated March 13, 1957 dismissing the respondent from service. In the year 1957 the respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore. On June 25, 1957, the Government of Mysore appointed Shri G.V.K. Rao, I.A.S., Additional Development Commissioner, as the Enquiry Officer to conduct a departmental enquiry against him in respect of false claim for allowances and fabrication vouchers to support them. After giving the usual notice, the said Enquiry Officer framed four charges against him. After making the necessary enquiry in accordance with law the said Enquiry Officer submitted his report to the Government with the recommendation that the respondent might be reduced in rank. After considering the report of the Enquiry Officer, the Government issued to him a notice calling upon him to show cause why he should not be dismissed from service. The relevant part of the said show cause notice reads as follows: "The Inquiry Authority has recommended that you may be reduced in rank. As the charges proved against you are of a very grave nature and are such as render you unfit to remain in Government Service, and the Government consider that a more severe punishment is called for in the interest of public service, it is proposed to dismiss you from service. " The respondent made representation to the effect that the entire case had been foisted on him. After considering the representations of the respondent, the Government passed an order on January 6, 1959 dismissing him from service. As the argument turns upon the terms of this order, it will be convenient to read the material part thereof: "Government have carefully considered the report the enquiry, the explanation of Shri Manche Gowda and the opinion furnished by the Mysore Public Service Commission. There is no reasonable ground to accept the version of Shri Manche Gowda that the entire case has been deliberately foisted on him. The evidence on record shows conclusively that the charges framed are fully proved." "As regards the quantum of punishment, Government 543 have examined the previous record of the Officer and have given careful consideration to the recommendation of the Public Service Commission. Shri Manche Gowda was recruited directly as a Gazetted Officer. He had been punished twice first, in Government Order No. SD 19 16/A:17. 53 12, dated 1 4 1954, for making false claims of T.A. and tampering with the accounts and ledgers of Food Depot and again, in Government Order No. 40 MSC 57, dated 13th March 1957 for not having credited to Government certain sums of money which he had collected from the Office Staff. Yet he failed to learn a lesson; he had indulged in similar offences. It is clear that he is incorrigible and no improvement can be expected in his conduct. In the circumstances a reduction in pay and continuance of the Officer in Government Service, as recommended by the Public Service Commission, is no remedy. Having regard to the status of the Officer and the nature of the charges proved against him, Government have come to the conclusion that he is unfit to continue in Government service and direct that he may be dismissed from service forthwith. " It will be seen from the said Order that the reason for giving enhanced punishment above that recommended by the Inquiry Officer as well as by the Service Commission was that earlier he had committed similar offences and was punished once on April 1, 1954 and again on March 13, 1957. In the second notice those facts were not given as reasons for the proposed punishment of dismissal from service. The respondent filed a petition in the High Court under article 226 of the Constitution for quashing the said order and the High Court quashed the order of dismissal on the ground that the said two circumstances on which the Government relied for the proposed infliction of punishment of dismissal were not put to the petitioner for being explained by him, in the show cause notice, which was issued to the petitioner on February 4, 1958. The impugned order was accordingly set aside leaving it open to the State Government to dispose of the matter afresh if it desired to do so after compliance with the requirements of article 311(2) of the 544 Constitution. Hence the appeal. Learned Attorney General contends that the Government is entitled to take into consideration the previous record of a Government servant in awarding punishment to him and it is not incumbent on it to bring to the notice of the Government servant the said fact in the second notice. Alternatively, he argues that whether a Government servant has had a reasonable opportunity of being heard or not, being a question of fact in each case, and in the instant case as the Officer concerned had knowledge of his two earlier punishments which formed the basis of the enhanced punishment, he was not in any way prejudiced by their non disclosure to him in the second notice and, therefore, the principles of natural justice were not violated. Mr. Naunit Lal, learned counsel for the respondent, says that a Government servant cannot be punished for his acts or omissions unless the said acts or omissions arc subject of specific charges and are enquired into in accordance with law and that, in any view, even if the Government could take into consideration a Government servant 's previous record in awarding punishment, the facts that form the basis of that punishment should at least be disclosed in the second notice giving thereby an opportunity to the said Government servant to explain his earlier conduct. The material part of article 311(2) of the Constitution which 'embodies the constitutional protection given to a Government servant reads thus: "No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." Section 240(3) of the Government of India Act was pari materig with the said clause of the Article of the Constitution. That section fell to be considered by the Federal Court in Secretary of State for India vs I. M. Lall(1). In considering that sub section, Spens C.J , speaking for the majority of the Court, made the following remarks relevant to the present enquiry: "It does however seem to us that the sub section (1) , 139. 545 requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken . . . . In our judgment each case will have to turn on its own facts, but the real point of the sub section is in our judgment that the person who is to be dismissed or reduced must know that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. This judgment was taken in appeal to the Privy Council, and the Judicial Committee, after quoting in extenso the passage just now extracted by us from the Federal Court judgment, expressed its agreement with the view taken by the majority of the Federal Court. This Court Khem Chand vs The Union of India(1) also emphasized upon the importance of giving a reasonable opportunity to a Government servant to show that he does not merit the punishment proposed to be meted out to him. Das C.J., speaking for the Court, observed: "In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of re (1) ; , 1096. 546 moval or reduction in rank and that any of the lesser punishments ought to be sufficient in his case. " The relevant aspect of the case has been neatly brought out by the Nagpur High Court in Gopalrao vs State(1). There, as here, the previous record of a Government servant was taken into consideration in awarding punishment without bringing the said fact to his notice and giving him a reasonable opportunity of explaining the same. Sinha, C.J. speaking for the Court, observed: "Normally, the question of punishment is linked up with the gravity of the charge, and the penalty that is inflicted is proportionate to the guilt. Where the charge is trivial and prima facie merits only a minor penalty,, a civil servant may not even care to defend himself in the belief that only such punishment as would be commensurate with his guilt will be visited on him. in such a case, even if in the show cause notice a more serious punishment is indicated than what the finding of guilt warrants, he cannot be left to guessing for himself what other possible reasons have impelled the proposed action. It is not, therefore, sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are supported by the record of service of the civil servant concerned. In a case where these factors did not form part of any specific charge and did not otherwise figure in the departmental enquiry, it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposed action." Randhir Singh J. of the Allahabad High Court, in Girja Shankar Shukla vs Senior Superintendent of Post Offices, Lucknow Division, Lucknow(2), distinguished the case thus: "In the present case, however, those punishments were taken into consideration which are not only within the knowledge of the applicant but which he had suffered earlier . . . . . . . This is evidently not opposed to any principles of (1) I.L.R. , 94. (2) A.I.R. 1959 All. 624, 625. 547 natural justice. " Multiplication of citation is not necessary, as the aforesaid decisions bring out the conflicting views. Under article 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam vs Bimal Kumar Pandit(1). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact .was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer (1) ; 548 for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an Opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation. Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law 549 prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same. In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of article 311(2)of the Constitution as interpreted by Courts. This order will not preclude the Government from holding the second stage of the enquiry afresh and in accordance with law. In the result the appeal is dismissed with costs. Appeal dismissed.

IN-Abs

The respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore. A departmental enquiry was held against him and the Enquiry Officer recommended that the respondent be reduced in rank. After considering the report of Enquiry Officer, the Government issued a notice calling upon respondent to show cause why he should not be dismissed from service. The reply of the respondent was that the entire case had been foisted on him. After considering his representation, the Government passed an order dismissing him from service. The reason given for his dismissal was that the respondent had on two earlier occasions committed certain offences and he had been punished for the same. However, those facts were not given as reasons for the proposed punishment. of dismissal from service. 541 The respondent filed a petition in the High Court under article 226 of the Constitution for quashing the order of his dismissal. The High Court quashed the order of dismissal on the ground that the two circumstances on which the Government relied for the proposed infliction of punishment of dismissal were not put to the respondent for being explained by him in the show cause notice which was issued to him. The appellant came to this Court by special leave. The contentions of the appellant were that the Government was entitled to take into consideration the previous record of Government servant in awarding punishment to him and it was not incumbent on it to bring to the notice of the Government servant the said fact in the second notice. Moreover, as the Government servant in this case had knowledge of his two.earlier punishments he was not in any way prejudiced by their non disclosure in the second notice. Dismissing the appeal, Held, that it was incumbent upon the Government to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment was also based on his previous punishments or his previous bad record, that should be included in the second notice so that he may be able to give an explanation. The doctrine of "presumptive knowledge" or that of "purposeless enquiry" is subversive of the principle of "reasonable opportunity". Secretary of State for India, vs I. M. Lal, [1945] F.C.R. 103, Khern Chand vs Union of India, ; , Gopalrao vs State, I.L.R. , Shankar Shukla vs Senior Superintendent of Post Offices, Lucknow Division, A.I.R. 1959 All. 624 and State of Assam vs Bimal Kumar Pandit, [1964] 2 S.C.R. referred to.

Appeal No. 513 of 1961. Appeal by special leave from the judgment and order dated June 23, 1960, of the Kerala High Court in Second Appeal No. 103 1957. 551 S.T. Desai and V.A. Seyid Muhmmad, for the appellants. Sardar Bahadur, for the respondents. August 23, 1963. The facts leading up to this question may now be stated. One Mammotty was married to Seinaba and he made a gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed. Mammotty died on May 3, 1946 without an issue. Seinaba also died soon afterwards on February 25, 1947, without leaving an issue. At the time of the gift Seinaba was 15 years 9 months old. It appears that Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother in law 's house afterwards. There are conflicting versions about the nature of the disease and a plea was taken in the case that the gift was made in contemplation of death and was voidable. This plea need not detain us because the trial Judge and the first Appellate Judge did not accept it. After the death of Seinaba, the present suit was brought by Kunhamu an eider brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as invalid. To the suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each. He also submitted that the first three defendants (the appellants) were entitled to the remaining 4/16 share as heirs of Seinaba. In other words, Kunhamu 's contention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was no issue, and the remaining 3/4 was divisible between 552 Kunhamu and his two sisters, Kunhamu getting twice as much as each sister, These shares according to him were unaffected by the invalid gift in faVour of Seinaba and accepted on her behalf by her mother. This contention has been accepted and it has been held in this case in all the three courts that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grand father or his executor. As Katheesumma the mother of Seinaba was not a legal guardian of the property of Seinaba it was contended by the plaintiff that the gift was void. It was admitted on behalf of the plaintiff that Mammotty could have himself taken over possession of the property as the guardian of his minor wife; but it was submitted that such was not the gift actually made. These contentions raise the question which we have set out earlier in this Judgment. Mr. S.T. Desai on. behalf of the appellants contends that neither express acceptance nor transfer of possession is necessary for the completion of a gift, when the donor is himself the guardian or the de facto guardian or 'quasi guardian ' provided there is a real and bona fide intention on the donor 's part to transfer the ownership of the subject matter of the gift to the donee, and that even a change in the mode of enjoyment is sufficient evidence of such an intention. He further contends that no delivery of possession is necessary in a gift by a husband to his minor wife provided such an intention as above described is clearly manifested. According to him, the law is satisfied without an apparent change of possession and will presume that the subsequent holding of the property was on behalf of the minor wife. Lastly he submits that in any view of the matter when a husband makes a gift to a minor wife and there is no legal guardian of property in existence, the gift can be completed by delivery of the property to and acceptance by any person in whose control the minor is at the time. If there is no such person one can be chosen and appointed by the donor to whom possession can be made over to manifest the intention of departing from the property gifted. Mr. Desai seeks to justify these submissions on authority as well as by de 553 ductions from analogous principles of Muhammadan Law relating to gifts to minors which are upheld though accepted by persons other than the four categories of legal guardian. The other side contends that there is no rule of Muhammadan Law which permits such acceptance and that the decision of the High Court is right. A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz). The word Hiba literally means the donation of a thing from which the donee may derive a benefit. The transfer must be ' immediate and complete (tamlik ul 'ain) for the most essential ingredient of Hiba is the declaration "I have given". Since Muhammadan Law views the law of gifts as a part of the law of contract there must be a tender (ijab) and an acceptance (qabul) and delivery of possession (qabza). There is, however, no consideration and this fact coupled with the necessity to transfer possession immediately distinguishes gifts from sales. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise. In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact. Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living; (Durrul Mukhtar, Vol. 3 p. 104 and Fatawa i Alamgiri Vol. 239 240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman). But Mammotty did not complete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor Wilayat ul Mal. A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un 36 2 S.C. India/64 554 married and that of the husband if she is married ' and has gone to her husband. Even under the Guardian and Wards Act, the husband is the guardian of the person after marriage of a girl unless he is considered unfit. The mother was thus not the guardian of the person of Seinaba. Seinaba 's mother was also not a guardian of the property of Seinaba. Mahammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage (Wilayat ulNikah) in the case of minor females. Guardians of the property are father and grandfather but they include also executors (Wasi) of these two and even executors of the executors and finally the Kazi and the Kazi 's executor. None of these were in existence except perhaps the Civil Court which has taken the place of the Kazi. Now Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted (Kabz ul Kamil) especially of immovable property. The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie (Dig. p. 508) quoting from the Inayah refers to a Hadis of the Prophet "a gift is not valid unless possessed". In the Hedaya it is stated "Gifts are rendered valid by tender, acceptance and seisin" (p. 482) and in the Vikayah "gifts are perfected by complete seisin" (Macnaghten 202). The question is whether possession can be given to the wife 's mother when the gift is from the husband to his minor wife and when the minor 's father and father 's father are not alive and there is no executor of the one or the other. Is it absolutely necessary that possession of the property must be given to a guardian specially to be appointed by the Civil Court ? The parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is no text prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy (Rai fi 'l qiyas) can be made. The Hanafi law as given in the Kafaya recognises the legality of certain gifts which custom ( 'urf) has accepted. This is because in deciding questions which are not covered by precedent Hanafi jurisprudence attaches to transfer possession immediately distinguishes gifts from sales. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise. In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact. Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living; (Durrul Mukhtar, Vol. 3 p. 104 and Fatawa i Alamgiri Vol. 239 240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman). But Mammotty did not complete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor Wilayat ul Mal. A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un 36 2 S.C. India/64 555 based on istehsan (liberal construction ; lit. producing symmetry) and istislah (public policy). The Prophet himself approved of Mu 'izz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden), or Makruh (reprobated). It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor. We shall now refer to some of these cases. The rules on the subject may first be recapitulated. It is only actual or constructive possession that completes the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion. If the property is with the donor he must depart from it and the donee must enter upon possession. The strict view was that the donor must not leave behind even a straw belonging to him to show his ownership and possession. Exceptions to these strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child (Macnaghten page 51 principles 8 & 9). Later it was held that where the donor and donee reside together an overt act only is necessary and this rule applies between husband and wife. In Mohammad Sadiq Ali Khan vs Fakhr Jahan(1), it was held that even mutation of names is not necessary if the deed declares that possession is delivered and the deed is handed to the wife. A similar extension took place in cases of gifts by a guardian to his minor ward (Wilson Digest of Anglo Muhammadan Law 6th Edn. p. 328). In the case of a gift to an orphan minor the ,rule was relaxed in this way: "If a fatherless child be under charge of his mother, (1) (1932) 59 I.A. I. 556 and she take possession of a gift made to him, it is valid. . The same rule also holds with respect to a stranger who has charge of the orphan." Hedaya p. 484. See also Baillie p. 539 (Lahore Edn.) In the case of the absence of the guardian (Gheebuti Moonqutaa) the commentators agree that in a gift by the mother her possession after gift does not render it invalid. Thus also brother and paternal uncle in the absence of the father are included in the list of persons who can take possession on behalf of a minor who is in their charge: Durrul Mukhtar Vol. 4 p. 512 (Cairo Edn.). In Radd ul Mukhtar it is said : "It is laid down in the Barjindi : There is a difference of opinion, where possession has been taken by one, who has it (the child) in his charge when the father is present. It is said, it is not valid; and the correct opinionis that it is valid." (Vol. 4, C.513 Cairo Edn.) In the Bahr al Raiq Vol. 7 p. 314 (Edn. Cairo) "The rule is not restricted to mother and stranger but means that every relation excepting the father, the grand father and their executors is like the mother. The gift becomes complete by their taking possession if the infant is in their charge otherwise not." In Fatawai Kazikhan Vol. 4, p. 289 (Lucknow Edn.), the passage quoted above from Radd ul Mukhtar is to be found and the same passage is also to be found in Fatawai Alamgiri Vol. 4 p. 548 Cairo Edn. All these passages can be seen in the lectures on Moslem Legal Institutions by Dr. Abdullah al Mamun Suhrawardy. The rule about possession is relaxed in certain circumstances of which the following passage from the Hedaya p. 484 mentions some : "It is lawful for a husband to take possession of any thing given to his wife, being an infant, provided she has been sent from her father 's house to his; and this although the father be present, because he is held, by implication, to have resigned the management of her concerns to the husband. It is otherwise where she has not been sent from her father 's house, because then the father is not held to have resigned the management of her concerns. It is also otherwise 557 with respect to 'a mother ' or any others having charge of her; because they are not entitled to possess themselves of a gift in her behalf, unless the father be dead, or absent, and his place of residence unknown ; for their power is in virtue of necessity, and not from any supposed authority ; and this necessity cannot exist whilst the father is present. " Macnaghten quotes the same rule at p. 225 and at page 230 is given a list of other writers who have subscribed to these liberal views. The above views have also been incorporated in their text books by the modern writers on Muhammadan Law. (See Mulla 's Principles of Mahomedan Law 14th Edn. 139, 142, 144 and 146, Tyabji 's Muhammadan Law 3rd Edn. 430 435, sections 397 400, Amir Ali 's Mahommedan Law Vol. 1, pp. 130 131). The principles have further been applied in some decisions of the High Courts in India. In Nabi Sab vs Papiah and ors.(1) it was held that gift did not necessarily fail merely because possession was not handed over to the minor 's father or guardian and the donor could nominate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan law if gifts, though strict, could not be taken to be made up of unmeaning technicalities. A similar view was expressed in Nauab Ian vs Safiur Rehman(2). These cases were followed recently in Munni Bai and anr. vs Abdul Gani(3), where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act. See also Mt. Fatma vs Mt. Autun(4), Mst. Azizi and anr. vs Sona Mir(5) and Mam& ors. vs Kunhdi & ors.(6). (1) A.I.R. (1915) Mad. (2) A.I.R. (1918) Cal. (3) A.I.R. (1959) M.P. 225. (4) A.I.R. (1944) Sind 195, (5) A.I.R. (1962) J. & K. 4. (6) 1962 K.L.J 351. 558 In Md. Abdul Ghani vs Mt. Fakhr Jahan (1), it was held by the Judicial Committee as follows: "In considering what is the Mohammaden Law on the subject of gift intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any Tran sfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift. " Later in Mahamad Sadiq Ali Khan vs Fakhr Jahan Begum(2), it was held by the Privy Council that at least between husband and wife Muhammadan law did not require an actual vacation by the husband and an actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession. These cases show that the strict rule of Muhammadan law about giving possession to one of the stated guardians of the property of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife, and another, where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid gift. The respondent relied upon two cases reported in Suna Mia vs section A. section Pillai(3) where gift to a minor through the mother was considered invalid and Musa Miya and (1) (1922) 491.A. 195 at 209. (2) (1932) 591.A.I. (3) (1932) 11 Rang. 109. 559 anr. vs Kadar Bux(1), where a gift by a grandfather to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and competent. They arc distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and modern books of Muhammadan law and in decided cases of undoubted authority. In our judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother in law and was probably a very sick person though not in marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mother 's house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother in law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother in law, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. The appeal therefore succeeds. The Judgment of the High Court and of the Courts below are set aside and the suit of the Plaintiff is ordered to be dismissed with costs throughout. Appeal allowed.

IN-Abs

One Mammotty was married to Seinaba and he made a gift 550 of his properties including immovable property to Seinaba by a registered deed. Mammotty died without an issue more than two years after the execution of the gift deed. Later on, Seinaba also died without leaving an issue. At the time of gift, Seinaba was fifteen years and nine months old. Mammotty was iII for a long time and was in hospital. He was discharged uncured a month before the execution of the gift deed and he remained in his mother in law 's house afterwards. After the death of Seinaba, the present suit was brought by Kunharnu, an eider brother of Mammotty, for partition and possession of 6/16 share of the property which he claimed as an heir under Muhamrnadan law, challenging the gift as invalid. Kunhamu 's contention was that when succession opened out on the death of Mammotty, his widow was entitled to one fourth share and the remaining three fourth share was divisible between him and his two sisters. These shares were unaffected by the in . valid gift in favour of Seinaba and accepted on her behalf by her mother. The contention of Kunhamu was accepted by all the three courts below which held that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under Muhammadan law i.e. by the father or his executor or by grand father or his executor. As the mother of Seinaba was not the legal guardian of the property of Scinaba, the gift was void. The appellant came to this Court by special leave. Held, that under Muhammadan law a gift by a husband to his minor wife of immovable property accepted on her behalf by her mother is valid if none of the guardians of the property of the minor is available provided there is a clear and manifest intention to make the gift and the husband divests himself of the ownership and possession of the property. Held further, on facts the above conditions were satisfied in this case. Mohammad Sadiq Ali Khan vs Fakir Khan (1932) L.R.59 I.A. 1, Nabi Sab vs Papiah and Ors. A.I.R. 1915 Mad. 972, Nawab fan vs Safiur Rahman, A.I.R. 1918 Cal. 786, Munni Bai vs Abdul Gani, A.I.R. 1959 M.P. 225, Mt. Fatma vs Mt. Autun, A.I.R. 1944 Sind. 195, Mst. Azizi vs Sona Mir, A.I.R. 1962 J. & K. 4, Mareroad & Ors. vs Kunhali & Ors., 1962 K.L.J. 351, Md. Abdul Ghani vs Mt. Fakir Khan (1962) 49 I.A. 195, Suna Mia vs S.A.S. Pillai, (1932) 11 Rang. 109 and Musa Miya vs Kadar Bux, I.L.R. , referred to.

iminal Appeals Nos. 75, 100 and 101 of 1963. Appeals from the judgment and order dated February 27, 28, 1963 of the Bombay High Court in Criminal Appeal No. 1077 of 1962. section G. Patuwardhan and A. G. Ratnaparkhi for the appellant(in Cr. A. No. 75 of 1963). B. B. Tawakley, Harbans Singh and A. G. Ratnaparkhi, for the appellants (in Cr. A. Nos. 100 and 101 of 1963). D. R. Prem, K. L. Hathi and B. R. G. K. Achar, for R. H. Dhebar, for the respondents. August 27, 1963. The Judgment of the Court was delivered by DAS GUPTA J. On June 11, 1961 at 5 p.m. the road in front of the Temple of Shri Maruti in the village of Chinchpur of Taluk Sholapur was the scene of a terrible tragedy. Three persons Revansidappa, and his two maternal uncles, Yellappa and Maruti were done to death there in a most gruesome manner. Revansidappa 's neck was severed from the body, except for a piece of skin and one of his legs was chopped off. The spinal cord and vertebra of Yellappa were cut off. The jaw, vertebra, tongue and a major part of the neck of Maruti were cut off. The first information that reached the police station of this tragedy was by a letter of the village police patel written on the same day and addressed to the Police Sub Inspector of Mandrup. It merely stated that three murders had taken place in course of riot and maramari at 5 p.m. in the evening and mentioning the names of the men who had been murdered. This letter reached the police sta 591 tion at 2.30 a.m. Head Constable Bansode who was in charge of the police station then left for the place of occurrence after having sent a report to the Police Sub Inspector who was camping at Bhandrkavathe village. The Sub Inspector reached Chinchpur at about 11 a.m. on the 12th. Some constables had already reached the village. Vishwanath, Head Constable of Mandrup with two other constables who had been on duty on the bridge over the Bhima river which runs west of the village Chinchpur learnt of these terrible murders at 7 p.m. on the very date of the murders and left for the place, arriving at the village at 9.30 p.m. They found the three dead bodies lying there and the Police Patel and some other persons present. Head Constable Ram Chandra Bansode reached the place at 6.30 a.m. on the 12th and after making enquiries had three persons, Gurpadappa, Parasappa and Daulappa brought to the place. They were arrested by the Sub Inspector when he arrived. The only witness the Sub Inspector could examine on that date was Parwati, the step mother of the deceased Revansidappa. He found that all the men had left the village and only women were present. After completing the investigation the Sub Inspector sent up cliarge sheet against 13 persons. All the thirteen were tried by the Sessions Judge on a charge under section 148 of the Indian Penal Code, on three charges under section 302/34 of the Indian Penal Code, with three alternative charges under section 302/149 of Indian Penal Code and a further charge under section 342 of the Indian Penal Code. Three out of the 13, viz., Gurpadappa, Parasappa and Annarava Shivabala were convicted by the learned Sessions Judge under section 302/34 of the Indian Penal Code on each of the three counts and sentenced to imprisonment for life. All the three were also convicted under section 342 of the Indian Penal Code and sentenced to six months ' rigorous imprisonment. Gurpadappa and Annaraya were also convicted under section 147 of the Indian Penal Code and sentenced to rigorous imprisonment for two years. Parasappa was convicted under section 148 of the Indian Penal Code and sentenced to rigorous imprisonment for three years. The sentences were directed to run concurrently. The other 10 accused persons were acquitted by the learned Judge. 592 Gurpadappa, Parasappa and Annaraya Shivabala appealed to the High Court of judicature at Bombay against their conviction and sentence. Their appeal was dismissed and the conviction and sentence of Gurpadappa and Annarava were affirmed. Parasappa 's conviction was also affirmed but after notice on him as to why the sentence should not be enhanced, the sentence of life imprisonment was enhanced to one of death. The State appealed against the order of acquittal of all other accused except that of Sangappa. The High Court allowed the State 's appeal in respect of three of these, viz., Shranappa, Ganpati and Tipanna and convicted them of the offence with which they were charged. The High Court sentenced Shranappa to death and Ganpati and Tipanna to imprisonment for life. The State 's appeal in respect of the other six were dismissed. Sliranappa had filed the present appeal under article 134(1)(a) of the Constitution. The other five, viz., Gurpadappa, Parasappa, Annaraya, Ganpati and Tipanna were granted special leave to appeal by this. Court and on the basis of that they have filed the appeals against the orders of conviction and sentence passed against them. The prosecution case is that there had for sometime been trouble between Gurpadappa and his brother Dhannappa on the one side and Parwati and the deceased Revansidappa on the other over the possession of a plot of land in Chinchpur. According to Parwati and Revansidappa this land had merely been mortgaged to Gurpadappa by Revansidappa 's father and the debt had been paid out and they were entitled to get back possession. To this Gurpadappa did not agree. He, however, agreed to Parwati 's request that the dispute may be settied by a Panchayat. But without calling a Panchayat Gurpadappa and his brother started cultivating the land on June 10. When Parwati saw this, she protested ; but to no purpose. The two brothers said that there would be no Panchayat. On the next day i.e., June 11, Revansidappa who used to live with his maternal uncles at the neighbouring village, Chanegaon, came to Parwati 's house at Chinchpur with his two uncles, Maruti and Yellappa. Shortly after this all the thirteen accused persons came in front of 593 the house and demanded that Revansidappa, Yellappa and Maruti should come out of the house. When they did not, some of the accused went on the roof of the house and began to remove it by means of spades. Some iron sheets were actually removed. Ultimately, at the instance of two neighbours Gourava and Panchppa the three unfortunate young men came out of the house. They were led to the school which stands some way north of Parwati 's house. From there one by one they were taken near the Maruti Temple outside the Ves, the village wall and done to death. It is said that Yellappa was struck by Parasappa and Shranappa with axes while the other accused beat him with sticks. He died instantaneously. Next was the turn of Revansidappa. He was also struck with axes by Shranappa and Parasappa and all others with sticks. Revansidappa died immediately. Maruti was brought there last of all; Parasappa and sangappa struck him with axes and the other accused with sticks. He also died on the spot. All the accused then left the place. Three of them, Gurpadappa, Parasappa and Daulappa were taken into custody on the very next day. Annaraya Shivabala was arrested on June 13 and Sliranappa and Ganpati Shamraya on the following day. Three more accused, Dhanappa, jakanna and Ganpati Gurling were arrested three days later. On August 6, 1961 were arrested Tipanna and Dhondappa. The remaining accused Sangappa surrendered in Court on October 16, 1961. All the accused pleaded not guilty. Their case was that they had been falsely implicated Gurpadappa and his brother Dhanappa because they were in possession of the land purchased by them, which Revansidappa and his step mother, Parwati, had been claiming and the other accused either on suspicion or because they had supported Gurpadappa and his brother over the land dispute. Shranappa 's appeal is one of right under article 134(1) (a) of the Constitution. To decide his appeal it is therefore necessary for us to examine the evidence adduced in the case for ourselves and to see whether the assessment of the evidence on which the High Court convicted him is proper and justified. That evidence consists in this case of the testimony of a single witness Par 594 wati, given by her in the Court of the Committing Ma gistrate. This is undoubtedly substantive evidence, which if believed, would be sufficient in law to support the order of conviction. For, it was brought on the record of the Sessions Court under the provisions of section 288 of the Code of Criminal Procedure ; when in, the Sessions Court Parwati resiled from her previous statement before the Committing Magistrate and made a definite statement that she had not seen the occurrence the question has. naturally been raised whether this evidence of Parwati which is substantive evidence at the Trial under the provisions of section 288 of the Code of Criminal Procedure required corroboration before the Court should act on it. The question how far evidence in the Committing, Court given by a witness who refiles from it at the Trial in Sessions and which is brought in as evidence at the Trial under section 288 of the Code of Criminal Procedure requires corroboration or not, has engaged the attention of most of the High Courts in India in numerous cases. Many such judgments have been cited before us and extensive passages have been read out from some of them. While the dust of controversy sometimes obscured the simplicity of the true position, most of the learned Judges have, if we may say so, with respect, appreciated the situation correctly. That is this. On the one hand, it is true that corroboration of such evidence is not required in law ; but it is equally true that in order to decide which of the two versions, the one given in the Committing Court and the one in the Sessions Court, both of which are substantive evidence, should be accepted, the judge of facts would almost always feel inclined to look for something else beyond this evidence itself to help his conclusion. We cannot do better in this connection than to quote from the observations on this question by their Lordships of the Privy Council in Bhuboni Sahu vs The King(1). In that case the evidence of an approver in the Committing Court had been brought on the record under section 288 of the Code of Criminal Procedure. Dealing with the question as to the value that can be attached to such evidence their Lordships observed thus (1)A.I.R. 1949 (P.C.) 257. 595 "Apart from the suspicion which always attaches to the evidence of an accomplice it would plainly be unsafe, as the judges of the High Court recognized, to rely implicitly on the evidence of a man who had deposed on oath to two different stories. " This, if we may say so, with respect, is the crux of the question. Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence. In other words, before one decides to accept the evidence brought in under section 288 of the Code of Criminal Procedure as true and reliable one has to be sa tisfied that this is really so. How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true. If there be a case and there is such infinite variety in facts and circumstances of the cases coming before the courts that it cannot be dogmatically said that there can never be such a case where even without such extrinsic support the Judge of facts, after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath have been made, is satisfied that the evidence is true and can be safely relied upon, the judge will be failing in his duty not to do so. The present is not one such case. It is true that Parwati has in this deposition in the Committing Court given a detailed account of not only the incidents at the house and the three young men, Rvansidappa, Maruti and Yellappa being taken out of her house to the accused persons but also as regards how they were led to the village school, how one after the other the three were taken near the Maruti Temple, how her entreaties to spare them were in vain and the manner of attack on each of the victims. The learned judges of the High Court appear to have been impressed by the very vividness of this description and persuaded themselves apparently from this alone that she was speaking the truth. Unfortunately the important fact that the witness had made a totally different statement on oath in another Court and denied to have seen the occurrence did not receive from the lear 596 ned judges the attention it deserved. Again, the ability to describe vividly should not be mistaken for anxiety to speak truly. For, one often exists without the other. Closer scrutiny of Parwati 's statement in the Committing Court discloses some features, at least, for which no explanation is available. According to her account Yellappa was first taken from the school to the temple and that all the thirteen took part in the attack. If that be true, there were none of the accused party to guard Revansidappa and Maruti, who were in the school during this time. Who however was left to guard them? To this we find no answer from Parwati 's deposition. There is the same mystery as to who was left to guard Maruti when Revansidappa was next taken and killed all the thirteen taking part in the attack according to her. It is also to be noticed that she does not clearly state in this deposition where exactly she was standing or sitting during the occurrence. The place where the bodies were discovered and where undoubtedly these three young men were killed is outside the village wall. This wall would have a door through which, if the prosecution story is true, the victims were taken out. Was Parwati also allowed to go out? If she was riot, could she have seen the actual attack on these three persons from her place on the village side of the Ves. We look in vain in Parawiti 's deposition for any answer to these questions. Again, according to her story, three axes were used in the attack. Only one axe was however discovered at the place of occurrence. How is it that while two axes were taken away the third was left behind? There may be a good answer to this question. But none is furnished by the evidence on the record. This being the nature of Parwati 's evidence it is, in our opinion, clearly unsafe to accept her testimony against any of the accused persons unless corroborated by other evidence. In respect of Shranappa, whose appeal we are now considering, there is admittedly no such corroboration. It is not possible therefore to accept what Parwati had said against this appellant as true. The High Court has, in our opinion, fallen into error in acting on her testi 597 mony even in the absence of corroboration. We hold that the prosecution has failed to prove its case against him and he must be acquitted of the charges against him. The appeals by the other five, is by special leave of this Court, but what we have stated above as regards the need of corroboration of Parwati 's testimony in the Cornmiting Court applies equally in respect of each of them also. There is no such corroboration whatsoever in respect of Parwati 's story of participation in the occurrence of Gurpadappa, Ganpati Shamraya and Tipanna. As regards the other two appellants, Parasappa and Annaraya Shivabala, some slight corroboration has been offered by the prosecution. That is in the presence of stains of human blood on the soles of the Chappals seized from them at the time of their arrest. The value of this corroboration is considerably reduced however by the fact that before these chappals were seized from Parasappa on Julie 12 and from Annaraya Shivabala on June 13, these accused persons had been brought up to the place of occurrence. There is scope therefore for thinking that the soles of the chappals became stained with blood when they walked over the blood stained ground. It will not be reasonable thereforeto treat the presence of these blood stains on the soles of their chappals as sufficient corroboration of Parwati 's evidence against them. The conviction of these five appellants also cannot therefore stand. Accordingly, we allow the appeals, set aside the order of conviction and sentence passed against them and order that they be acquitted. Appeals allowed.

IN-Abs

The appellants were convicted by the High Court for com mitting three murders. In this case the High Court considered the testimony of one "Parwati", given by her in the committing court. She was in eye witness of the occurrence according to her testimony in the committing court. In the sessions court she resiled from her previous statement before the committing Magistrate and made a definite statement that she had not seen the occurrence. Her evidence before the committing court was tendered as evidence under section 288 Criminal Procedure Code in the court of sessions. Her evidence before the committing court was not corroborated in respect of participation in the occurrence by four appellants. The High Court convicted the appellants on the basis of the statement made by Parwati before the committing Magistrate on the ground that it was substantive evidence which did not require any corrobo ration. Held, that the evidence of a witness tendered under section 288 of the Code of Criminal Procedure before the Sessions Court is substantive evidence. In law such evidence is not required to be corroborated. But where a person has made two contradictory statements on oath it is ordinarily unsafe to rely implicitly on her 590 evidence and the judge, before he accepts one or the other of the statements as true, must be satisfied that this is so. For such satisfaction it will ordinarily be necessary for the evidence to be supported by extrinsic evidence not only as to the occurrence in general but also about the participation of the accused in particular. But in a case where even without any extrinsic evidence the judge is satisfied about the truth of one of the statements, his duty will be to rely on such evidence and act accordingly. Bhuboni Sahu vs The King, A.I.R. 1949 P.C. 257, relied on. On the facts of this case, it was held that without corrobo ration from extrinsic evidence, the High Court was not justified in acting on the evidence of the only eye witness Parwati, given in the committing court.

Appeal No. 95 of 1952. Appeal from the judgment and decree dated the 27th February, 1950, of the High Court of Judicature at Madras (Rao and Ayyar JJ.) in Appeal No. 635 of 1946 arising, out of judgment and decree dated the 13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in Original Suit No. 50 of 1945. K. section Krishnaswamy Iyengar (section Ramachandra with him) for the appellants. K. Rajah Iyer (R. Ganapathy Iyer, with him) for the respondent. April 14. The Judgment of the Court was delivered by MAHAJAN J. One Lakshminarayana Iyer, a Hindu Brahmin, who owned considerable properties in the Tirunelveli district, died on 13th December, 1924, leaving him surviving a widow Ranganayaki, and a married daughter Ramalakshmi. Ramalakshmi had married the plaintiff and had a number of children from him. They were all alive in December, 1924, when Lakshminarayana died, Before his death he 850 executed a will on 16th November, 1924, the construction of which is in controversy in this appeal. By this will he gave the following directions "After my lifetime, you, the aforesaid Ranganayaki Amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your lifetime Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to Chinnanmal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed". Ranganayaki entered into possession of the properties on the death of her husband. On 21st February, 1928, she settled the maintenance claim of Lakshmi Ammal and obtained a deed of release from her by paying her a sum of Rs. 3,350 in cash and by executing in her favour an agreement stipulating to pay her a sum of Rs. 240 per annum. Ramalakshmi died on 25th April, 1938 during the lifetime of the widow. None of her children survived her. On the 24th July, 1945, the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for Rs. 500. On the 18th September, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of Ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. A prayer was made that the widow be restrained from alienating the other properties in her possession. On the 19th September, 1945, an ad interim injunction was issued by the High Court restraining the widow from alienating the properties in her possession and forming part of her husband 's estate, In 851 spite of this injunction, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants comprising a number of properties. The plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well. It was averred in the plaint that Ramalakshmi obtained a vested interest in the suit properties under the will of her father and plaintiff was thus entitled to maintain the suit. The defendants pleaded that the plaintiff had no title to maintain the suit, that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and not less than a widow 's estate, that the estate given to Ramalakshmi under the will was but a contingent one and she having predeceased the widow, no interest in the suit properties devolved on the plaintiff. The main issue in the suit was whether the widow took under the will an absolute estate or an estate like the Hindu widow 's estate and whether the daughter 's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest. The subordinate judge held that the widow took under the will a limited life, interest, and not an absolute estate or even a widow 's estate under Hindu law, and that the daughter got thereunder a vested interest in the properties to which the plaintiff succeeded on her death. In view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would not enure beyond her lifetime. The question as to the validity of the alienations was left undetermined. The unsuccessful defendants preferred an appeal against this decree to the High Court of Judicature at Madras. During the pendency of the appeal the widow died on 14th February, 1948. The High Court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the construction of the will. Leave to appeal to the Supreme Court was 852 granted and the appeal was admitted on the 27th November, 1951. The substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman 's estate under Hindu law or merely a limited life estate in the English sense of that expression. It was not contested before us that a Hindu can by will create a life estate, or successive life estates, or any other estate for a limited term, provided the donee or the persons taking under it are capable of taking under a deed or will. The decision of the appeal thus turns upon the question whether the testator 's intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a Hindu widow. At one time it was a moot point whether a Hindu widow 's estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will oil his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The court 's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair. Considering the will in the light of these principles,it seems to us that Lakshminarayan Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of 853 his bounty. In express terms he conferred on his daughter powers of alienation byway of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind 's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow 's estate on her the daughter will, only have a mere spes successions under the Hindu law which may or may not mature and under the will her interest would Only be a contingent one in what was left indisposed of by the widow. It is significant that the testator did not say in the will that the daughter will enjoy only the properties left indisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow 's estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. The widow cannot be held to have been given a full Hindu widow 's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. It was argued 854 that such a power was implicit within the acts she was authorized to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity arose, she could alienate the properties. This suggestion in the surrounding circumstances attending the execution of this will cannot be sustained. The properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. Indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter in law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. It is not shown that she alienated a single item of immovable property till the year 1945, a period of over 21 years after the death of her husband, excepting one, which she alienated in the year 1937 to raise a sum of Rs. 1,000 in order to buy some land. By this transaction she substituted one property by another. For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter in law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised. In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu law. Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for 855 other authorized purposes. It cannot be said that a Hindu widow can only alienate her husband 's estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations. We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the term than like a full Hindu widow 's estate in spite of the directions above mentioned. She had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator 's death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator 's properties on his death. It was strenuously argued by Mr. K. section Krishnaswami Iyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely to be one analogous to a Hindu woman 's estate than a life estate a, , understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow 's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow, 856 The learned counsel in support of his contention drew our attention to a number of decisions of different High Courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions. This rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings. [Vide Sasiman vs Shib Narain (1)]. However, out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them. Mr. Krishnaswami Iyengar sought to derive the greatest support for his contention from the decision in Ram Bahadur vs Jager Nath Prasad (2 ). The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was no son or daughter, his niece section would get a bequest of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece. The remainder was disposed of in the following words: "If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother 's daughter, then two thirds of the movable property will belong to the son and one third to the daughter. But as regards the immovable property none shall have the lest right of alienation. They will of course be entitled to enjoy the balance left after payment of rent". This will was construed as conveying an absolute estate to the son and the daughter of the niece. It was remarked that in spite of an. express restriction against alienation, the estate taken by section (the niece) was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a completely representative character but is unable to (1) 491. A. 2 5. (2) 857 alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of his property. The provisions contained in this will bear no analogy to those we have to construe. The restraint against alienation was repugnant to both a life estate and a widow ', , estate and was not, therefore, taken into account. But there were other indications in that will showing that a widow 's estate had been given. The fact that the gift over was a contin gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow 's estate. There is no such indication in the will before us. Reliance was next placed on the decision in Pavani Subbamma vs Ammala Rama Naidu (1). Under the will there dealt with, the widow S, was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son 's daughter and the daughter 's son respectively. A suit was instituted by the son 's daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by section The question for decision in that case was whether section was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. Varadachari J. held that since in the will the gift over to the grand children was of the entire Properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. This decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say " In deference to the view taken in Maharaja of Kolhapur vs sundaram Iyer (2), it may be possible to create an interest analogous to a woman 's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by section need not necessarily be only a life estate in the English law (1) (2) Mad. 1. 111 858 sense of the term. " We do not understand how such passing observations can be helpful in deciding the present case. Assuming that it is possible to create a Hindu woman 's estate not with standing the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration. The following remarks in the Privy Council decision in Nathu, Ram Mahajan vs Gangayabai(1) were next cited: As the will gave her the right to 'enjoy ' the income of the estate during her lifetime, it was evidently contemplated that she should, as provided by the Hindu law in the case of a widow, be in possession of the estate. " Such casual observation made in respect of a will couched in entirely different terms cannot afford much assistance in the decision of the case. In Vasantharao Ammannamma vs Venkata Kodanda Rao Pantalu(2), the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows: "Out, of the aforestated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to section son of my second elder brother deceased. My self acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. Thereafter they shall pass to my grandson through my daughter". The will was construed as giving the self acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take under the law of inheritance, that is a limited estate analogous to a widow 's estate. At page 193 of the report it was observed as follows : "The question therefore arises, did he intend to confer only a life estate or a daughter 's estate ? It seems (1) (2) , 859 to us that he meant to give a daughter 's estate rather than a life estate. He omits the words 'during her life ' with reference to the disposition in favour of the daughter. The words 'pass to my daughter ' would rather indicate that in the ordinary course of devolution the estate should pass to her, that is, the daughter and then to the grandsons. The words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons. Either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution. If it was the daughter 's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a vested interest". This line of reasoning which appealed to the learned judges is not of much he] ) to us here as the language hi this will is quite different. If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. section K. Iyengar because in the will in this case the widow 's estate is delimited by the words " till your lifetime. " Reliance was next placed on Maharaja of Kolhapur vs Sundaram Iyer (1). That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. There it was said that " the widows of Sivaji Raja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow 's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance." These remarks do not throw much light on the point before us. The last decision referred to was the decision of the Privy Council in Mahomed Shumsool vs Shewukram(2) There a Hindu inhabitant of Bihar by a document of (1) Mad. 1. (2) (1874 75) 2 I.A. 7. 860 a testamentary character declared his daughter who had two daughters, as his heir, and after her two daughters together with their children were declared heirs and malik. One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case. In a suit by the respondent against his grandmother the daughter of the 'testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her. In this judgment the following observations were emphasized as relevant to this enquiry : " It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that Mst. Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow. In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate. " These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a Hindu widow 's estate which she would otherwise get by inheritance. Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise 861 where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widow 's estate and no more. What is given must be gathered from the language of the will in the light of the surrounding circumstances. The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar. He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour. In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty vs Narayana swami Chetty(1). There the testator made a will in favour of his wife providing, inter alia, "all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chetty (nephew) and my wife, should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow. " It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator 's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry. Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi vs Chowdry Bholonath Thakur(2). This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms (1) (19I4) (2) (1874 75) 2 I.A 256. 862 "the remaining 'milkiut ' and 'minhai ' 'estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of Government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son). " The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privy Council on this will held as follows " Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti. If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband 's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute 863 of limitations might run against the heirs to the estate, whoever they might be. Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it according to its plain meaning. " These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. This will was couched in different language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiuit estates and the slaves. Reference was also made to a decision of the Bombay High Court in Lallu vs Jagmohan(1). The will there ran as follows: " When I die, my wife named Suraj ' is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife 's death, my daughter Mahalaxmi is owner of the said property after that. " It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs. After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testator 's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow 's estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance (1) Bom. 409. 864 negatived the view that the testator intended to confer upon his widow a Hindu widow 's estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow 's estate " till your lifetime " and of the omission from therein of words such as nialik etc., while describing the widow 's estate. Mr. Krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter 's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widow 's estate. In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated and in the result, therefore, we dismiss this appeal with costs. Appeal dismissed. Agent for the respondent Ganpat Rai.

IN-Abs

A Hindu Brahmin governed by the Mitakshara law made a will in which he gave the following directions: " After my life time, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties . After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to C, wife of my late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed." After the death of the testator his wife entered into possession of his properties but before the death of his wife, his daughter and all her children died: Held, (i) that on a proper construction of the will in the light of surrounding circumstances, the testator bad conferred on his 849 wife only an ordinary life estate, and alienations made by her would not endure beyond her lifetime ; (ii) that the testator 's daughter obtained under the will a vested interest in the properties after the lifetime of the widow, to which her husband succeeded on her death. The rule of construction by analogy is a dangerous one to follow in construing wills differently worded, and executed in different surroundings. Ram Bahadur vs Joger Nath Prasad , Pavani Subbamma vs Arumala Rama Naidu ([1937] , Nathu Rain Mahajan vs Ganga Bai ([1938] , Vasanta Rao Ammennamma vs Venkata Kodanda Rao ([1940] , Maharaja of Kolhapur vs Sundaram Iyer (I.L.R. 48 Mad. 1), Mahoned Shumsool vs Shewakram (2 I.A. 7), Ratna Chetty vs Narayana swami Chetty , Mst. Bhagwati Devi vs Choudry Bholonath Thakur (2 I.A. 256) and Lallu vs Jagmohan (I.L.R. referred to. Judgment of the Madras High Court affirmed.

iminal Appeal No. 95 of 1961. Appeal by special leave from the judgment and order dated February 15, 1961, of the Allahabad High Court in Criminal Appeal No. 1597 of 1960. D. section Tewatia and K. B. Mehta, for the appellants. O. P. Rana and C. P. Lal, for the respondents. August 29, 1963. The judgment of the Court was delivered by HIDAYATULLAH J. This is an appeal by special leave against the judgment of the High Court of Allahabad in Criminal Appeal No. 1597 of 1960 decided on February 15, 1961. The appellants are eight in number and they have been convicted under section 325 read with section 149 of the Indian Penal Code and sentenced to three years rigorous imprisonment. They have also been convicted variously under sections 147 & 148, Indian Penal Code and sentenced to smaller terms of imprisonment which need not be mentioned as those sentences are made to run concurrently with the above sentence. They were originally charged under section 302 read with section 149, Indian Penal Code for the murder of one Tikam on January 24, 1960 at about noon in village Nandgaon Police Station Barsana District Mathura. The Session Judge, Mathura, did not think that a case of murder was made out and convicted them of the lesser offence. Their appeal to the High Court was dismis sed and the conviction and sentences were maintained. There was yet another trial at which these eight persons and four others were tried under section 307/149, Indian Penal Code for causing hurt to one Puran with such intention and under such circumstances that if by that act they had caused his death they would have been guilty of murder and also under sections 147 & 148 of the Penal Code for being members of an unlawful assembly, the common object of which was an attempt on Puran 's life. The learned Sessions judge, Mathura held in the second case that the injuries sustained by Puran warranted an 675 offence under section 323, Indian Penal Code. The accused and Puran compounded that offence and all the accused were acquitted. The Sessions judge, however, convicted 11 out of 12 accused under sections 147 & 148, Indian Penal Code and awarded different sentences, according to the weapons possessed by them. One Koka was acquitted because his plea that he was blind from birth was accepted. The 11 accused in the second case appealed to the High Court and were acquitted of the charge of being members of an unlawful assembly. That Judgment of the High Court was delivered on January 31, 1961, in Criminal Appeal No. 1598 of 1960, fifteen days before the confirmation of the conviction and sentences of the eight appellants in this appeal. The facts of the case may now be given. There was enmity between Tikam (deceased) and the appellants and on January 24, 1960, just about noon time Tikam was sitting at the shop of a blacksmith in village Nandgaon. Dulli and Nathi who were examined as P. Ws. 2 & 3 were sitting near him. The appellants who were armed with Ballams, a Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault him. Tikam was severely injured and fell in a ditch adjacent to the road but even after he fell in it the assault was continued by the appellants. He died the same day about five hours later. After assaulting Tikam, these appellants decided to ransack his house and started towards it. On the way they were met by the other four accused and this brought their number to twelve. While they were going to the house of Tikam they saw Puran and decided to beat him. Puran was assaulted and the second case arose out of the assault on him. The learned magistrate who committed the accused to stand their trial before the Court of Sessions framed a common charge in respect of the two incidents but the Sessions judge amended the charge and divided it into two charges namely one connected with the attack on Tikam and the other connected with the attack on Puran. , He also separated the two trials on the two charges. As stated already lie convicted the eight appellants in respect of their assault on Tikam and the same appellants with three others in respect of their assault on Puran. 676 The appeal in the second case was heard first and was allowed by the High Court and the 11 appellants in that appeal including the eight before us were ordered to be acquitted. It was contended before us by Mr. Tewatia that Mr. Justice Sharma who delivered the judgment impugned before us did not allow the appellants a chance to reply to the arguments on behalf of the State and thus denied them a fair hearing. This fact was mentioned in the petition for certificate in the High Court and has been repeated in the petition for special leave. Mr. Justice Sharma had proceeded to deliver judgment as soon as the arguments were over and the judgment was delivered by him on two consecutive days in the presence of the appellants and their counsel. If any such right had been denied to the appellants they should have brought the matter immediately to the notice of the learned Judge and he would have rectified it. It appears that the appellants were hoping for an acquittal in view of the prior acquittal by the learned judge in the companion case and realised too late that their appeal was not accepted. It is for this reason that they do not appear to have raised this issue before the learned Judge when they asked him to certify the appeal and his Order does not show that they made a grievance that the hearing was not fair. In our opinion this point cannot be considered because though. it was mentioned in the petition for certificate it was apparently not pressed before Mr. Justice Sharma. The next contention of the appellants is that the prior acquittal in the second case operates as a bar to the conviction in the present case and the High Court ought to have given the appellants the benefit of the prior ac quittal. Reliance in this connection is placed upon a de cision of the Privy Council in a case from Malaya State reported in Sambasivam vs Public Prosecutor/Federation of Malaya(1) and particularly the following passage from the judgment of Lord Mac Dermott: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. at p. 479. 677 To that is must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maximum "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and wasprecluded from taking anystep to challenge it at the second trial. And the ap pellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. " The above passage was cited with approval by this Court in Pritam Singh vs State of Punjab(1). The two cited cases were considered and distinguished by this Court in Mohinder Singh vs State of Punjab(2) and Pritam Singh 's case was again distinguished in Gurcharen Singh & anr. vs State of Punjab(1). As pointed out in Mohinder Singh vs State of Punjab(2), the case of the Privy Council involved a confession by an accused in which he admited possession of a firearm and some ammunition which were both offences under the relative law of Malaya State. He was convicted on the basis of that statement on two counts but on appeal was acquitted in respect of the count relating to the possession of ammunition and a fresh trial was ordered in respect of the count relating to the possession of the firearm. In the second trial the confession was again relied upon and he was convicted. The Privy Council set aside the conviction because the confession was incapable of being divided into two parts so as to make separate confessions about the (1) A.I.R. 1956 S.C. 415. (2) Cr. A. No. 140 of 1961, decided on 31 7 63 (Unreported). (3) 678 possession of firearm and about the possession of am munition. Their Lordships held that the confession which was indivisible could not be used at all, in view of the acquittal recorded earlier on the other count. In Pritam Singh 's case(1) the accused made a statement leading to the recovery of a firearm with which he was alleged to have shot one of the victims. He was prosecuted for possession of the firearm and was acquitted but the evidence of the possession of the firearm was used in the murder charge. This was held to be not permissible. As explained in Mohinder Singh 's case(2), the acquittal in respect of the possession of firearm affected the admissibility of the same evidence in connection with the murder case, because the firearm could not at the same time be possessed as well as not possessed by the accussed. The acquittal under the Arms Act,, being proper, affected the evidence of possession in the murder case. In Mohinder Singh 's case(2) as well as in Gurcharan 's(3) case Pritam 's(1) case was distinguished because in those cases, the acquittal under the Arms Act was later than the conviction on the substantive charge. There is nothing in common between the present appeal and the two cases relied upon by the appellants. In this case there is no doubt a prior acquittal but on a charge which was quite different from and independent of the charge in the present case. The assault on Tikam was over when the unlawful assembly formed its now common object namely the assault on Puran. The acquittal proceeded mainly because Puran compounded the offence under section 323 and the High Court did not feel impressed by the evidence about the remaining charges, The charges on which that acquittal took place had nothing whatever to do with the charges on which there is conviction in the present appeal. A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made un (1) A.I.R. 1956 section C. 415. (2) Cr. A. No. 140 of 1961, decided on 31 7 63 (unreported). (3) 679 der section 236 or for which he might have been convicted under section 237. Section 236 provides for a situation where it is doubtful what offence has been committed. When a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, that section permits that the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of such offences. Section 237 enables the Court to convict an accused charged with one offence for a different offence where the facts show that a different offence has been committed. Neither of these provisions is applicable to the present facts because the two offences were distinct and spaced slightly by time and place. The trials were separate as the two incidents were viewed as distinct transactions. Even if the two incidents could be viewed as connected so as to form parts of one transaction it is obvious that the offences were distinct and required different charges. The assault on Tikam in fulfilment of the common object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it. The new common object to beat Puran was formed at a time when the common object in respect of Tikam had been fully worked out and even if the two incidents could be taken to be connected by unity of time and place (which they were not), the offences were dis tinct and required separate charges. The learned Sessions judge was right in breaking up the single charge framed by the magistrate and ordering separate trials. In this view the prior acquittal cannot create a bar in respect of the conviction herein reached. It was contended by Mr. Tewatia that the earlier judgment involved almost the same evidence and the reasoning of the learned judge in Puran 's case destroys the prosecution case in the present appeal. He attempted to use the earlier judgment to establish this point. In our opinion he cannot be allowed to rely upon the reasoning in the earlier judgment proceeding as it did upon evidence which was separately recorded and separately 680 considered. The eye witnesses in this case are five in number, while in the other case there were only two, but that apart, the earlier judgment can only be relevant if it fulfils the conditions laid down by the Indian Evidence Act in sections 40 43. The earlier judgment is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence. Since the bar under section 403 Criminal Procedure Code did not operate, the earlier judgment is not relevant for the interpretation of evidence in the present case. Mr. Tewatia attempted to argue on the facts of this case but we did not permit him to do so because this Court, in the absence of special circumstances, does not review for the third time, evidence, which has been accepted in the High Court and the Court below. No such circumstance has been pointed out to us to make us depart from the settled practice. The appeal therefore fails and is dismissed. Appeal dismissed.

IN-Abs

The eight appellants variously armed attacked one 'T ' and as a result of the assault 'T ' died. These appellants then proceeded to loot the house of 'T ' and on the way met four others who joined them. They then came across one 'P ' and assaulted him. There was a small gap of time and 'the places of assault were different. The magistrate framed a single charge but the Session Judge framed two charges namely one connected with the attack on 'T ' and the other connected with the attack on 'P '. He also separated the trials on the two charges. The Sessions judge convicted the appellants in both cases. The appeal in the second case i.e. the case relating to assault on 'P ' was heard first by the High Court and the appellants were acquitted of the charges of being members of an unlawful assembly. Later the appeal connected with the assault on 'T ' was heard by the High Court and in that appeal their convictions and sentences were confirmed. The present appeal arises out of the convictions and sentences passed by the High Court. The appellants contended that the prior acquittal in the second case operated as a bar to the conviction in the present case. The appellants relied on a decision of the Privy Council namely Sarnbasivam vs Public Prosecutor Federation of Malaya and of this Court in Pritam Singh vs State of Punjab. Held: (i) There was nothing in common between the present appeal and the aforesaid two cases relied upon by the appellants. In this case the assault on 'T ' was over when the unlawful assembly formed its new common object namely the assault on 'P '. (ii) A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arose when a person is tried again for the same offence or 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 prior acquittal in the other case did not operate as a bar to the conviction in the present case as the charge in the other case was quite different from and independent of the charge in the present case, and sections 236 and 237 of Code of Criminal Procedure were not applicable to the present facts because the two offences were distinct. Sambasivam vs Public Prosecutor Federation of Malaya, [ , Pritam Singh vs State of Punjab, A.I.R. 1956 S.C. 415, Gurcharan Singh vs State of Punjab, and 674 Mohinder Singh vs State of Punjab, Cr. A. No. 140 of 1961 decided on 31 7 63, explained. (iii) This court, in the absence of special circumstances, does not review for the third time evidence which has been accepted in the High Court and the trial court.

iminal Appeal No. 98 of 1960. Appeal by special leave from the judgment and order dated January 20, 1960 of the Punjab High Court in Criminal Appeal No. 683 of 1957. I. M. Lall and B. N. Kirpal, for the appellant. B. K. Khanna and R. N. Sachthey, for the respondent. August 28, 1963. The Judgment of the Court was delivered by DAS GUPTA J. Sajjan Singh, son of Chanda Singh, joined the service of the Punjab Government in January 1922 as an Overseer in the Irrigation Department. He continued as Overseer till July 1944 when he became a Sub divisional Officer in the Department. From the date till May 1947 he worked as Sub Divisional Officer in that part of Punjab which has now gone to West Pakistan. From November 30, 1947 to September 26, 1962 he was employed as Sub Divisional Officer of Drauli Sub Division of the Nangal Circle, except for a short break from November 8, 1950 to April 3, 1951, when he was on leave. The work of excavation for the Nangal Project 632 within the Drauli Sub Division was carried out by several contractors, including Ramdas Chhankanda Ram and M/s. Ramdas Jagdish Ram. On December 7, 1952, the General Manager, Bhakra Dam, made a complaint in writing to the Superintendent of Police, Hoshiarpur, alleging that Sajjan Singh and some other officials subordinate to him had by illegal and corrupt means and by abusing their position as public servants, dishonestly and fraudulently, obtained illegal gratification from the contractors Ramdas Chhankanda Ram and M/s. Ram Das Jagdish Ram by withholding their payments and putting various obstacles in the smooth execution of the work entrusted to them. A case under section 45(2) of the Prevention of Corruption Act, 1947 was registered on the basis of this complaint, which was treated as a first information report and after sanction of the Government of Punjab had been obtained for the prosecution of Sajjan Singh under section 5(2) of the Prevention of Corruption Act and section 161/165 of the Indian Penal Code, Sajjan Singh was tried by the Special Judge, Ambala, on a charge under section 5(2) of the Act. The learned Special judge convicted him under section 5(2) of the Prevention of Corruption Act and sentenced him to rigorous imprisonment for one year and a fine of Rs. 5000/in default of payment of fine, he was directed to undergo rigorous imprisonment for six months. The conviction and sentence were confirmed by the Punjab High Court, on appeal. The High Court however rejected the State 's application for enhancement of the sentence. The present appeal is by Sajjan Singh against his conviction and sentence under section 5(2) of the Prevention of Corruption Act by special leave of this Court. The prosecution case is that after work had been done by the firm Ramdas Chhankandas for several months, and some 'running ' payments had been received without difficulty, the appellant demanded from Ram Das, one of the partners of the firm, his commission on the cheques issued to the partenrship firm. It is said that Ram Das at first refused. But, ultimately when the appellant started unnecessary criticism of the work done by them and even withholding some running payments the partners of the firm decided to pay commission to him as demanded. The 633 first payment, it is said, was made on March 21, 1949 and further payments were thereafter made from time to time. The case is that the partnership paid altogether a sum of Rs. 10,500/ in cash as commission to the appellant, besides paying Rs. 2,000/ to him for payment to the Executive Engineer and Rs. 241/12/ made up of small sums paid on different occasions on behalf of the accused. All these payments made to the appellant were fully entered in the regular Rokar and Khata Bhais of the partnership under a fictitious name of Jhalu Singh, Jamadar, though a few of the later payments were entered in these books in Sajjan Singh 's own name. In order to allay suspicion some fictitious credit entries were also made in the books. The prosecution also alleged payment to the appellant of Rs. 1,800/ by another firm M/s. Ram Das Jagdish Ram. But as that has not been found to be proved it is unnccessary to mention details of the allegations in that connection. To prove its case against the appellant the prosecution relied on the testimony of three partners of the firm who claimed to have made payments and on various entries in the several books of account of the firm. The prosecution also tried to prove the guilt of the accused by showing that the pecuniary resources and property that were in the ap pellant 's possession or in the possession of his wife, Dava Kaur, and his son, Bhupinder Singh, on his behalf we are disproportionate to the appellant 's known sources of income. The learned Special judge mentioned the possession of pecuniary resources and property disproportionate to his known sources of income in the charge framed against the accused. According to the prosecution the total assets held by the appellant, and his wife, Dava Kaur, and his son Bhupinder Singh on his behalf, on December 7, 1952 amounted to Rs. 1,47,502/12/ , while his total emoulments upto the period of the charge would come to about Rs. 80,000/ . The main defence of the appellant as regards this allegation of possession of pecuniary resources and property disproportionate to his known sources of income was that the property and pecuniary resources held by his wife and son were not held on his behalf and that what, was in his possession amounted to less than Rs. 50,000/ and can by no means be said to be disproportionate to his known 41 2 section C. India/64. 634 sources of income. In denying the charge against him the appellant also contended that false evidence had been given by the three partners and false and fictitious books prepared by them in support of their own false testimony. The learned Special judge rejected the defence contention that the account books on which the prosecution relied had not been kept regularly in the course of business and held the entries therein to be relevant under section 34 of the Indian Evidence Act. He accepted the defence contention that evidence of the partners who were in the position of accomplices required independent corroboration and also that the account books maintained by themselves would not amount to independent corroboration. Independent corroboration was however in the opinion of the learned Judge furnished by the fact that some admitted and proved items of payment were interspersed in the entire account books. The learned judge also accepted the prosecution story as regards the possession of pecuniary resources and property by the appellant 's wife and his son on his behalf and adding these to what was in the appellant 's own possession he found that the total pecuniary resources and property in his possession or in the possession of his wife and son were disproportionate to his known sources of income, and that such possession had not been satisfactorily accounted for. He concluded that the presumption under section 5(3) of the Prevention of Corruption Act was attracted. On all these findings he found the appellant guilty of the charge for criminal misconduct in the discharge of his duties and convicted and sentenced him as, stated above. The two learned judges of the Punjab High Court who heard the appeal differed on the question whether pecuniary resources and property acquired before March 11, 1947, when the Prevention of Corruption Act came into force, could be taken into consideration for the purpose of section 5 (3) of the Act. In the opinion of Mr. Justice Harbans Singh these could not be taken into consideration . Taking into consideration the assets acquired by the appellant after January 1948 the learned judges held that these came to just above Rs. 20,000/ and could not be held to be disproportionate to his known sources of income. The other learned Judge, Mr. Justice 635 Capoor, was of opinion that pecuniary resources and property acquired prior to March 11, 1947 had also to be taken into consideration in applying section 5 (3) of the Prevention of Corruption Act if they were in the possession of the accused or anybody on his behalf, on the date when the complaint was lodged. He agreed with the Special judge that certain assets possessed by Daya Kaur and Bhupinder Singh were possessed by them on behalf of the appellant and that those possessed by him, or by his wife and son on his behalf were much in excess of his known sources of income, even without making any allowance for his house hold expenses. Mr. justice Capoor further held that if the pecuniary resources or property acquired during the period April 1, 1947 to June 1, 1950 as suggested on behalf of the appellant were considered such assets held by the appellant or any other person on his behalf were more than double of the known sources of his income without making any allowance whatever for the appellant 's house hold expenses. In the opinion of the learned judge a presumption under subsection 3 of section 5 of the Act therefore arose that the appellant had committed the offence, as the appellant had not been able to prove to the contrary. Both the learned judges agreed that the witnesses who gave direct evidence about the payment of illegal gratification could not be relied upon without independent corroboration and that the entries in the books of account did by themselves amount to such corroboration, but that the fact of admitted and proved items being interspersed in the entire account furnished the required corroboration. In the result, as has been already stated, the learned judges affirmed the conviction and sentence. In support of the appeal Mr. 1. M. Lall has attacked the finding that the books of account were kept regularly in the course of business and has contended that the entries therein were not relevant under section 34 of the Indian Evidence Act. He further contended that even if they be relevant evidence the Special judge as also the High Court while rightly thinking that they by themselves did not amount to independent corroboration, were in error when they thought that the fact of certain admitted entries being interspersed through the books of account furnished the 636 necessary independent corroboration. Mr. Lall has also argued that the Special Judge as well as Mr. justice Capoor in the High Court were wrong in drawing a presumption under section 5(3) of the Prevention of Corruption Act. We shall first consider the question whether on the evidence on the record a presumption under section 5(3) of the Prevention of Corruption Act arose. It is useful to remember that the first sub section of section 5 of the Prevention of Corruption Act mentions in the four clauses a, b, c and d, the acts on the commission of which a public servant is said to have committed an offence of criminal misconduct in the discharge of his duties. The second subsection prescribes the penalty for that offence. The third subsection is in these words: "In any trial of an offence punishable under sub section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal. misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption. " This sub section thus provides an additional mode of proving an offence punishable under sub section 2 for which any accused person is being tried. This additional mode is by proving the extent of the pecuniary resources or property in the possession of the accused or any other person on his behalf and thereafter showing that this is disproportionate to his known sources of income and that the accused person cannot satisfactorily account for such possession. If these facts are proved the section makes it obligatory on the Court to presume that the accused person is guilty of criminal misconduct in the discharge of his official duty, unless the contrary, i.e., that he was not so guilty is proved by the accused. The section goes on to say that the conviction for an offence of criminal misconduct shall not be invalid by reason only that it is based solely on such presumption. 637 This is a deliberate departure from the ordinary principle of criminal jurisprudence, under which the burden of proving the guilt of the accused in criminal proceedings lies all the way on the prosecution. Under the provision of this subsection the burden on the prosecution to prove the guilt of the accused must be held to be discharged if certain facts as mentioned therein arc proved; and then the burden shifts to the accused and the accused has to prove that in spite of the assets being disproportionate to his known sources of income, he is not guilty of the offence. There can be no doubt that the language of such a special provision must be strictly construed. if the words are capable of two constructions, one of which is more favorable to the accused than the other, the Court will be justified in accepting the one which is more favourable to the accused. There can be no Justification however for adding any words to make the provision of law less stringent than the legislature has made it. Mr. Lall contends that when the section speaks of the accused being in possession of pecuniary resources or pro perty disproportionate to his known sources of income only pecuniary resources or property acquired after the date of the Act is meant. To think otherwise, says the learned Counsel, would be to give the Act retrospective operation and for this there is no 'Justification. We agree with the learned Counsel that the Act has no retrospective operation. We are unable to agree however that to take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date of the Act is in any way giving the Act a retrospective operation. A statute cannot be said to be retrospective "because a part of the requisites for its action is drawn from a time antecedent to its passing". (Maxwell on interpretation of Statutes, 11th Edition, p. 211; See also State of Maharashtra vs Vishnu Ramchandra(l)). Notice must be taken in this connection of a suggestion made by the learned Counsel that in effect sub section 3 of section 5 creates a new offence in the discharge of official duty, different from what is defined in the four clauses of section 5(l). It is said that the act of being in possession of pecuniary resources or pro (1) ; 638 perty disproportionate to known sources of income, if it cannot be satisfactorily accounted for, is said by this sub section to constitute the offence of criminal misconduct in addition to those other acts mentioned in cls. a, b, c and d of section 5(l) which constitute the offence of criminal mis conduct. On the basis of this contention the further argu ment is built that if the pecuniary resources or property acquired before the date of the Act is taken into consi deration under sub section 3 what is in fact being done is that a person is being convicted for the acquisition of pecuniary resources or property, though it was not in vio lation of a law in force at the time of the commission of such act of acquisition. If this argument were correct a conviction of a person under the presumption raised under the section 5(3) in respect of pecuniary resources or property acquired before the Prevention of Corruption Act would be a breach of fundamental rights under article 20(l) of the Constitution and so it would be proper for the Court to construe section 5(3) in a way so as not to include possession of pecuniary resources or property acquired before the Act for the purpose of that subsection. The basis of the argument that section 5(3) creates a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty is however unsound. The sub section does nothing of the kind. It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in section 5(1) for which an accused person is already under trial. It was so held by this Court in C.D.S. Swamy vs The State(1) and again in Surajpal Singh vs State of U.p.(2). It is only when a trial has commenced for criminal misconduct by doing one or more of the acts mentioned in cls. a, b, c and d of section 5(l) that sub s 3 can come into operation. When there is such a trial, which necessarily must be in respect of acts committed after the Prevention of Corruption Act came into force, sub section 3 places in the hands of the prosecution a new mode of proving an offence with which an accused has already been charged. Looking at the words of the section and giving them their plain and natural meaning we find it impossible to say that pecuniary resources and property acquired before (1) ; (2) [1961] 1 2 S.C.R. 971. 639 the date on which the Prevention of Corruption Act came into force should not be taken into account even if in possession of the accused or any other person on his behalf. To accept the contention that such pecuniary resources or property should not be taken into consideration one has to read into the section the additional words "if acquired after the date of this Act" after the word "property". For this there is no justification. It may also be mentioned that if pecuniary resources or property acquired before the date of commencement of the Act were to be left out of account in applying subs. 3 of section 5 it would be proper and reasonable to limit the receipt of income against which the proportion is to be considered also to the period after the Act. On the face of it this would lead to a curious and anomalous position by no means satisfactory or helpful to the accused himself. For, the income received during the years previous to the commencement of the Act may have helped in the acquisition of property after the commencement of the Act. From whatever point we look at the matter it seems to us clear that the pecuniary resources and property in the possession of the accused person or any other person on his behalf have to be taken into consideration for the purpose of sub section 3 of section 5, whether these were acquired before or after the Act came into force. Mention has next to be made of the learned Counsel 's submission that the section is meaningless. According to the learned Counsel, every pecuniary resource or property is itself a source of income and therefore it is a contradic tion in terms to say that the pecuniary resources or pro perty can be disproportionate to the known sources of income. This argument is wholly misconceived. While it is quite true that pecuniary resources and property are themselves sources of income that does not present any difficulty in understanding a position that at a particular point of time the total pecuniary resources or property can be regarded as assets, and an attempt being made to see whether the known sources of income including, it may be, these very items of property in the past could yield such income as to explain reasonably the emergence of these assets at this point of time. Lastly it was contented by Mr. Lall that no presump 640 tion under section 5(3) can arise if the prosecution has adduced other evidence in support of its case. According to the learned Counsel, section 5(3) is at the most an alternative mode of establishing the guilt of the accused which can be availed of only if the usual method of proving his guilt by direct and circumstantial evidence is not used. For this astonishing proposition we can find no support either in principle or authority. Mr. Lall sought assistance for his arguments from a decision of the Supreme Court of the United States of America in D. Del Vecchio vs Botvers(1). What fell to be considered in that case was whether a presumption created by section 20(d) of the Longshoremen 's and Harbor Workers ' Compensation Act that the death of an employee was not suicidal arose where evidence had been adduced by both sides on the question whether the death was suicidal or not. The Court of Appeal had held that as the evidence on the issue of accident or suicide was in its judgment evenly balanced the presumption under section 20 must tip the scales in favour of accident. This decision was reversed by the learned Judges of the Supreme Court. Section 20 which provided for the presumption ran thus: "In any proceedings for the enforcement of a claim for compensation. it shall be presumed, in the absence of substantial evidence to contrary that the injury was not occasioned by the wailful intention of the injured employee to injure or kill himself or another. " On the very words of the section the presumption against suicide would arise only if substantial evidence had not been adduced to support the theory of suicide. It was in view of these words that the learned judges observed: .lm15 "The statement in the act that the evidence to overcome the effect of the presumption must be substantial adds nothing to the well understood principle that a finding must be supported by evidence. Once the employer has carried his burden by offering testimony sufficient to justify a finding of suicide, the presumption falls out of the case. It never had and cannot acquire the attribute of evidence in the claimant 's favour. Its only office is to control the result where (1)296 U.S. 280 : 80 L. ed. 229. 641 there is an entire lack of competent evidence. If the employer alone adduces evidence which tends to support the theory of suicide, the case must be decided upon that evidence. Where the claimant offers substantial evidence in opposition, as was the case here, the issue must be resolved upon the whole body of proof pro and con. " The whole decision turns upon the words 'in the absence of substantial evidence". These or similar words are conspicuous by their absence in sub section 3 of section 5 of the Prevention of Corruption Act, and consequently, Del Vec chio 's Case(1) is of no assistance. Mr. Lall then drew our attention to an observation of Lord Denning in Bratty vs Attorney General for Northern Ireland(2) where speaking about the presumption that every man has sufficient mental capacity to be responsible for his crimes, the Lord Justice observed that the presumption takes the place of evidence. Similarly, argues Mr. Lall, the presumption under section 5(3) of the Prevention Corruption Act also merely "takes the place" of evidence. So, he says, it can arise only if no evidence has been adduced. We are not prepared to agree however that when the Lord Justice used the words "a presumption takes the place of evidence" he meant that if some evidence had been offered by the prosecution the prosecution could not benefit by the presumption. We see no warrant for the proposition that where the law provides that in certain circumstances a presumption shall be made against the accused the pro secution is barred from adducing evidence in support of its case if it wants to rely on the presumption. Turning now to the question whether the facts and circumstances proved in this case raise a presumption under section 5(3), we have to examine first whether certain pecuniary resources or property in possession of Daya Kaur and those in possession of Bhupinder Singh were possessed by them on behalf of the appellant as alleged by the prosecution. On December 7, 1952, Bhupinder Singh has been proved to have been in possession of: (1) Rs. 28,998/7/3/ in the Punjab National Bank; (2) Rs. 20,000/ in fixed deposit with the Bank of Patiala at Doraha (3) Rs. 5,577/ (1)226 U.S. 280. (2) [1961] 3 All. E.R. p. 523 at 535. 642 in the Imperial Bank of India at Moga; (4) Rs. 237/8/3/in the Savings Bank Account in the Bank of Patiala at Doraha; and (5) Half share in a plot of land in Ludhiana of the value Rs. 11,000/ . Bhupinder Singh has given evidence (as the 11th witness for the defence) and has tried to support his father 's case that none of the properties were held by him on behalf of his father. Bhupinder Singh has been in military service since 1949 and was at the time when he gave evidence a Captain in the Indian Army. If the bank deposits mentioned above had been made by him after he joined military service there might have been strong reason for thinking that they were his own money. That however is not the position. Out of the sum of Rs. 28,998/ with the Punjab National Bank a part is admittedly interest; the remainder, viz., about Rs. 26,000/ was deposited by Bhupinder Singh in his account long before 1949 when he joined military service. His explanation as to how he got this money is that Rs. 20,200/ was received by him from Udhe Singh in December 1945 and Rs. 6,000/ was given to him by his grand father Chanda Singh. Udhe Singh has given evidence in support of the first part of the story and has said that he paid Rs. 20,200/ to Bhupinder Singh in payment of what he owed to Bhupinder Singh 's grandfather Chanda Singh and to his father Sajjan Singh. When asked why he made the payments to Bhupinder Singh, son of Sajjan Singh instead of to Chanda Singh or to Chanda Sing 's son Surjan Singh, Udhe Singh replied that he did so "because my account was with Sardar Sajjan Singh." Udhe Singh it has to be remembered is a close relation of Sajjan Singh, Sajjan Singh 's father Chanda Singh being Udhe Singh 's mother 's brother. On a careful consideration of the evidence of these two witnesses, Bhupinder Singh and Udhe Singh and also the registered letter which was produced to show that a pucca receipt was demanded for an alleged payment of Rs. 20,200/ we have come to the conclusion that the Special Judge has rightly disbelieved the story that this sum of Rs. 20,000/ was paid by Udhe Singh to Bhupinder Singh. It has to be noticed that even if this story of payment was believed that would not improve the appellant 's case. For, according to Udhe Singh this payment was 643 made by him to Bbupinder Singh on behalf of his father. In any case, therefore, this amount of Rs. 20,200/ was Sajjan Singh 's money. As regards the other amount of Rs. 6000/ which formed part of the deposits in the Punjab National Bank and a further sum of Rs. 20,000/in fixed deposit with the Bank of Patiala the defence case as sought to be proved by Bhupinder Singh was that these were received by him from his grand father Chanda Singh. The learned Special judge disbelieved the story and on a consideration of the reasons given by him we are of opinion that his conclusion is correct. When it is remembered that Bhupinder Singh was at the relevant dates a student with no independent income or property of his own the reasonable conclusion from the rejection of his story about these amount is, as held by the Special Judge, that these were possessed by him on behalf of his father, Sajjan Singh. We are also convinced that the Special Judge was right in his conclusion that Rs. 5,577/ in the Imperial Bank of India at Moga, Rs. 237/8/3 in the Savings Bank Account in the Bank of Patiala at Doraha and the half share in a plot of land in Ludhiana of the value of Rs. 11,000/ standing in the name of Bhupinder Singh were held by Bhupinder Singh on behalf of his father, Sajjan Singh. It has to be mentioned that Mr. Justice Capoor in the High Court agreed with these conclusions, while the other learned judge (Mr. Justice Harbans Singh) did not examine this question at all being wrongly of the opinion that the properties acquired prior to March 11, 1947 should not be taken into consideration. Thus even if we leave out of account the amount of Rs. 26,500/ standing in the name of appellant 's wife Daya Kaur which according to the prosecution was held by her on behalf of her husband, Sajjan Singh, it must be held to be clearly established that the pecuniary resources or property in possession of Sajjan Singh and his son, Bhupinder Singh, on his behalf amounted to more than Rs. 1,20,000/ . The question then is: Was this disproportionate to the appellant 's known sources of income? As was held by this Court in Swamy 's Case(1) "the expression 'known sources of income ' must have reference to (1) ; 644 sources known to the prosecution on a thorough investigation of the case" and that it could not be contended that 'known sources of income ' meant sources known to the accused. In the present case the principal source of income known to the prosecution was what the appellant received as his salary. The total amount received by the appellant throughout the period of his service has been shown to be slightly less than Rs. 80,000/ . The appellant claimed to have received considerable amounts as traveling allowance a Overseer and S.D.O. and also as horse and conveyance allowance. For the period of his service prior to May 1947, the records which would have shown what the accused drew as traveling allowance were not available. The Special judge found that from May 1947 upto January 1953 the appellant got Rs. 6,504/6/ as traveling allowance. On that basis he also held that for the period of service as S.D.O. prior to May 1947 he may have got about Rs. 5,000/ at the most. For the period of his service as Overseer, the learned Special judge held that, the appellant did not get more than Rs. 100/ a year as travelling allowance, including the horse allowance. No reasonable objection can be taken to the conclusion recorded by the Special Judge as regards the travelling allowance drawn by the appellant for the period of his service as S.D.O. It was urged however that Rs. 100/ a year ,is travelling allowance is too low an estimate for his services as Overseer. As the relevant papers are not available it would be proper to make a liberal estimate under this head favourable to the appellant. Even at the most liberal estimate it appears to us that the total receipts as travelling allowance as Overseer could not have exceeded Rs. 5,000/ . One cannot also forget that much of what is received as travelling allowance has to be spent by the officer con cerned in travelling expenses itself. For many officers it 'IS not unlikely that travelling allowance would fall short of these expenses and they would have to meet the deficit from their own pocket. The total receipt that accrued to the appellant as the savings out of travelling allowance inclusive of horse allowance and conveyance allowance, could not reasonably be held to have exceeded Rs. 10,000/at the most. Adding these to what he received as salary and also as Nangal Compensatory allowance the total in 645 come received during the years would be about Rs. 93,000/ . It also appears that income by way of interest was earned by the appellant on his provident fund and also the bank deposits standing in his own name or in the name of his son, Bhupinder Singh. The income under this head appears to be about Rs. 10,000/ . The total receipts by the appellant from his known sources of income thus appears to be about Rs. 1,03,000/ . If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant 's possession, through himself or through his son (Rs. 1,20,000/ ) were not disproportionate to his known sources of income. One cannot however live on nothing; and however frugally the appellant may have lived it appears to us clear that at least Rs. 100/ per month must have been his average expenses throughout these years taking the years of high prices and low prices together. These expenses therefore cut a big slice of over Rs. 36,000/ from what he received. The assets of Rs. 1,20,000/ have therefore to be compared with a net income of Rs. 67,000/ . They are clearly disproportionate indeed highly disproportionate. Mr. Lall stressed the fact that the legislature had not chosen to indicate what proportion would be considered disproportionate and he argued on that basis that the Court should take a liberal view of the excess of the assets over the receipts from the known sources of income. There is some force in this argument. But taking the most liberal view, we do not think it is possible for any reasonable man to say that assets to the extent of Rs. 1,20,000/ is anything but disproportionate to a net income of Rs. 1,03,000/ out of which at least Rs. 36,000/ must have been spent in living expenses. The next question is : Has the appellant satisfactorily accounted for these disproportionately high assets? The Speical judge has examined this question carefully and rejected as untrustworthy the appellant 's story of certain receipts from one Kabul Singh, his son Teja Singh, and from his father, Chanda Singh. These conclusions appear to us to be based on good and sufficient reasons and we can see nothing that would justify us in interfering with these. 646 The prosecution has thus proved facts on which it becomes the duty of the Court to assume that the accused has committed the offence with which he is charged, unless the contrary is proved by him. Mr. Lall has submitted that if the other evidence on which the prosecution relied to prove its case against the appellant is examined by us, he will be able to satisfy us that evidence is wholly insufficient to prove the guilt of the accused. It has to be remembered however that the fact assuming it to be a fact in this case that the prosecution has failed to prove by other evidence the guilt of the accused, does not entitle the Court to say that the accused has succeeded in proving that he did not commit the offence. Our attention was drawn in this connection to this Court 's decision in Surajpal Singh 's Case(1) where this Court set aside the conviction of the appellant Surajpal Singh on the basis of the presumption under section 5(3). What happened in that case was that though the accused had been charged with having committed the offence of criminal misconduct in the discharge of his duty by doing the acts mentioned in cl. (c) of sub section 1 of section 5, the Special Judge and the High Court convicted him by invoking the rule of presumption laid down in sub section 3 of section 5, of an offence under cl. (d) of section 5(l). This Court held that it was not open to the Courts to do so. This case is however no authority for the proposition that the courts could not have convicted the accused for an offence under section 5 ( 1) (c) for which he had been charged. On the contrary it seems to be a clear authority against such a view. After pointing out that the charge against the appellant was that he has dishonestly and fraudulently misappropriated or otherwise converted for his own use property entrusted to him, this Court observed: "It was not open to the learned Special Judge to have convicted the appellant of that offence by invoking the rule of presumption laid down in sub section (3). He did not however to do so. On the contrary he acquit ted the appellant on that charge. Therefore, learned Counsel has submitted that by calling in aid the rule of presumption in sub section 3 the appellant could not be found guilty of any other type of criminal misconduct (1) ; 647 referred to in cls. (a), (b) or (d) of sub section (1) in respect of which there was no charge against the appellant. We consider that the above argument of learned Counsel for the appellant is correct and must be accepted. " The appellant 's Counsel is not in a position to submit that there is evidence on the record which would satisfy the Court that the accused has "proved the contrary", that is, that he had not committed the offence with which he was charged. We have therefore come to the conclusion that the facts proved in this case raise a presumption under section 5(3) of the Prevention of Corruption Act and the appellant 's conviction of the offence with which he was charged must be maintained on the basis of that presumption. In this view of the matter we do not propose to consider whether the High Court was right in basing its conclusion also on the other evidence adduced in the case to prove the actual payment of illegal gratification by the partners of the firm M/s. Ramdas Chhankanda Ram. Lastly, Mr. Lall prayed that the sentence be reduced. The sentence imposed on the appellant is one year 's rigorous imprisonment and a fine of Rs. 5,000/ . Under section 5(2) the minimum sentence has to be one year 's imprisonment, subject to the proviso that the Court may for special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year. We are unable to see anything that would justify us in taking action under the proviso. In the result, the appeal is dismissed. Appeal dismissed.

IN-Abs

The appellant was an overseer and then became a Sub Divi sional Officer in the Irrigation Department. On the basis of a complaint, a case was registered against him and after sanction by the Government had been obtained for his prosecution under section 5(2) of the Prevention of Corruption Act and section 161/165 of the Indian Penal Code he was tried by the special judge on a charge under section 5(2) of the Act. The allegation made was that the appellant demanded his commission from the contractors on the cheques issued to them and on are Used he started with holding their payments and putting obstacles in the smooth execution of the work entrusted to them. The commission was then paid from time to time and the payments were fully entered in the regular Rokar and Khata Bhais. The trial court accepted the prosecution case and found that the total pecuniary resources and property in appellant 's possession or in the possession of his wife and son were disproportionate to his known sources of income and that such possession had not been satisfactorily accounted for. On these findings the presumption under section 5(3) of the Prevention of Corruption Act was raised and the appellant was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 5,000/ in default, rigorous imprisonment for six months. On appeal, the conviction and sentence were confirmed by the High Court. The two learned judges of the High Court, however, differed on the question whether pecuniary resources and property acquired before the Prevention of Corruption Act came into force, could be taken into consideration for the purpose of section 5(3) of the Act. Held, that to take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which were acquired before the date of the Act, was in no way giving the Act a retrospective operation. Maxwell on Interpretation of statutes, 11th Edition, P. 210 and State of Bomaby vs Vishnu Ramchandra, [1961] 2 S.C.R. 26, relied on. Sub section 3 of section 5 does not create a new kind of offence. It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in section 5(l) for which an accused person is already under trial. C.S.D. Swamy vs The State, [196 of 1 S.C.R. 461 and Surajpal Singh vs State of U.P. ; , relied on. 631 On proper construction of the words of the section and giving them their plain and natural meaning, it is clear, that the pecuinary resources and property in possession of the accused person or any other person on his behalf have to be taken into consideration for the purpose of section 5(3), whether these were acquired before or after the Act came into force. While it is quite true that pecuniary resources and property are themselves sources of income, that does not present any difficulty in understanding a position that at a particular point of time the total pecuniary resources or property can be regarded as assets, and an attempt being made to see whether the known sources of income, including, it may be, these very items of property, in the past, could yield such income as to explain reasonably the emergence of these assets at this point of time. There is no warrant for the proposition that where the law provides that in certain circumstances a presumption shall be made against the accused, the prosecution is barred from adducing evidence in support of its case if it wants to rely on the presumption. D. Del Vecchio vs Bowers, ; ; 80 L. ed. 229 and Bratty vs Attorney General for Northern Ireland, ; , held inapplicable. The facts proved in this case raise a presumption under section 5(3) of the Act and the appellant 's conviction must be maintained on the basis of that presumption.

minal Appeal No. 152 of 1962. 710 Appeal by special leave from the judgment and order dated April 4, 1962 of the Rajasthan High Court in D. D. Criminal Appeal No. 505 of 1961. section K. Kapur, section Murthy, B. N. Kirpal and K. K. lain, for the appellant. H. R. Khanna and B. R. G. K. Achar for P. D. Menon, for the respondent. August 29, 1963. The judgment of the Court was delivered by DAS GUPTA J. This appeal by special leave is against a conviction and sentence under section 167(81) of the . The appellant was acquitted by the trial court, but on appeal by the State of Rajasthan, the Rajasthan High Court set aside the order of acquittal and convicted the appellant under section 167(81) of the , and sentenced him to rigorous unprisonment for one year. The prosecution case was that on receipt of some information that gold smuggled from Pakistan was being carried, Lal Singh, Sub Inspector of the Check post of Barmer, followed the appellant into a railway train at Luni railway station, and in the running train between the stations of Kerla and Pali, searched appellant 's person and found that he was carrying 286 tolas of gold in a pouli under his trousers. In the reasonable belief that these were smuggled goods, Lal Singh seized the gold. The gold that was seized consisted of six blocks bearing marks "999", N. M. Rothschild & Sons, 22 bars bearing marks '999 ', 3 small pieces of gold and one pair of murkies. Lal Singh seized the gold after preparing a seizure list in the presence of witnesses and later produced the appellant along with the gold before the Superintendent, Land Customs, Barmer. By an order of the Collector of Customs, New Delhi, dated July 19,1957, this gold was confiscated and a fine of Rs. 10,000 was imposed on the appellant. Criminal proceedings were afterwards instituted against the appellant on the allegation that he had committed an offence under section 167(81) of the . The prosecution claimed that under section 178 A of the , the burden of proving that gold was not smuggled lay on the accused. Even apart from that, the prosecution claimed, it was clear that the gold had been smuggled. It was alleged that the appellant had carried 711 the gold knowingly with intent to evade the regulations prohibiting the import of gold Into India. The main defence of the accused, who pleaded not guilty, was that no gold was recovered from him. The trial court held that the prosecution had failed to establish the recovery of gold from the accused. It further accepted the defence contention that Lai Singh had no authority to search the appellant and seize the gold at the place where the seizure was alleged to have been made. According to the learned Magistrate, the seizure, if any, had not been made under the and so had not been made under "the Act" within the meaning of section 178 A, and there was no question of the accused having to prove that the gold was not smuggled. On the evidence adduced by the prosecution, he was not convinced that it was smuggled gold. Accordingly, he acquitted the accused. The High Court came to contrary findings on all these points. It held that the evidence of Lal Singh as regards the seizure should be believed and that the seizure of the gold from the accused had been proved satisfactorily. It was also of the opinion that Lal Singh had authority to seize the gold at the place where the seizure was made, and that section 178 A of the applied. In the opinion of the High Court, the accused had failed to prove that the gold was not smuggled and that under the provisions of section 178 A as also on the evidence in the case, the gold had been established to be smuggled gold. All the ingredients of the offence, according to the High Court, had been proved, and therefore, the accused was convicted and sentenced as mentioned above. Three points were raised before us by Mr. section K. Kapur in support of the appeal. The first was that the High Court was not justified in disturbing the trial court 's finding that the seizure of the gold from the accused had not been proved. The second point urged was that the High Court had fallen into an error in thinking that Lal Singh had authority to seize the gold at the place where the seizure was made. The third contention was that in any case even if section 178 A applied and it was found that the gold was smuggled, the prosecution had failed to prove the necessary mens rea in the accused that was necessary to constitute the offence. 712 On the question of seizure of gold from the accused, the prosecution relied on the testimony of Lal Singh himself. Lal Singh gave a detailed account as to how he followed the accused into the train at Luni station and in the running train conducted the search of his person in the presence of witnesses and recovered from his possession from a pouli tied beneath his trousers the gold identified in court as exhibit P.M. 1 32. The seizure Memo. which he claimed to have prepared at the time of the seizure was marked Exh. This document mentions the names of three persons as search witnesses. None of these was examined by the prosecution. The third name mentioned in Exh. P. 3 is Pukh Raj son of Awasthi Mal, aged about 22 years, resident of Ajit. The defence examined a Pukh Raj who gave his father 's name as Basti Mal and who was resident of Ajit, and stated that he was the only Pukh Raj in that village. The High Court seems to have doubted the indentity of Pukh Raj examined as defence witness as the Pukh Raj mentioned in the seizure list. This finding has been attacked by Mr. Kapur as un justified. Whether or not the Pukh Raj examined as defence witness is the same as the person whose name is mentioned in the seizure list, is not, however, of much consequence; for the fact remains that the prosecution has not got the evidence of any of the witnesses in whose presence the search and seizure are said to have been made, to support Lal Singh 's evidence. The learned Magistrate gave this failure of the prosecution to examine the witnesses as the main reason for his inability to accept Lal Singh 's testimony. The High Court has accepted Lal Singh 's testimony, but unfortunately the judgment does not indicate that the learned judges of the High Court took into consideration this fact that the search witnesses had not been examined. We have, therefore, thought it necessary to examine the evidence for ourselves to see whether the seizure as alleged by the prosecution has been proved. Lal Singh 's evidence on the point has already been mentioned. It has to be noticed that the defence witness No. 2, Poonam Chand, has also spoken about the search. His evidence is that police conducted search in the compartment when the train was enroute from Luni to Pali, and that "the police took search of the 713 accused Hukma present before the court and of two or three more persons named Kesrimal and Tarachand". The witness added no gold was recovered from: the possession of the accused Hukma Ram, but admitted that in the same compartment a purse was recovered. It has to be noticed that when Lal Singh was examined, no suggestion was made to him in cross examination that any other person had been searched in the compartment. It is not unreasonable to think, therefore, that when Poonam Chand is speaking of search in the com partment of Hukma and the find of a purse there though stopping short of saying what was recovered from it, his evidence unwittingly supports the story given by Lal Singh about the search and the recovery of the gold. It does not stand to reason that if two other persons bad been searched and gold had been found within one of them, this appellant, a pointsman in the Railway, should be falsely implicated and the person from whom the recovery of gold was made, should have been allowed; to, escape. The accused suggested in his statement that Lal Singh was inimically disposed towards him because on one occasion Lai Singh had asked him to serve water and he had not done it at once. There was no suggestion about this incident to Lai Singh in his cross examination, and we are convinced that this is: entirely false. On a consideration of Lal Singh 's evidence along with the evidence of appellant 's own witness, Poonam Chand we are convinced that the story of recovery of gold from the accused is true. The reason why the three witnesses mentioned in the seizure list have not come forward to support the prosecution case is, in, our poinion, not that the story of search and seizure as given by Lal Singh is not true, but that these witnesses have been gained over. This brings us to Mr. Kapur 's main contention, namely, that Lal Singh was not a Customs Officer for the place where the seizure was made, and so the seizure was not under the , taken with the provisions of the . The answer to this contention depends on the construction of the notification appointing Customs Officers for the areas adjoning the frontier between West Pakistan and India. The notification as it stands after an amendment in 1956, runs 46 2 section C. India/64 714 as follows: "1. In exercise of the powers conferred by Sub section (1) of section 3 of the (19 of 1924) read with the notification of the Government of India in the late Finance Deptt. (Central Revenues) No. 5444, dated 1st December 1924, the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontiers separating West Pakistan from India, the officers of the Government of Rajasthan specified in the schedule hereto annexed, to be Land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi." "The Schedule." "All officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of and above the rank of Head Constable posted in the Districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore in the State of Rajasthan." Asking us to give a restricted meaning to the word "adjoining" in the notification, Mr. Kapur has suggested that this notification gave authority to the Customs Officers only for the areas within a few miles from the border, He contended next that even if this be not accepted, the notification on a reasonable interpretation gave authority only to the officers of the Districts mentioned in the Schedule to function as Customs Officers in those Districts and nowhere else. The trial court appears to have accepted this construction, and as admittedly the place of seizure was not in any of the District mentioned in the Schedule, it held that Lal Singh was not authorized to search the accused or to seize the gold. The High Court, on the contrary, has taken the view that each of the officers mentioned in the Schedule has been appointed a Customs Officer for the entire area which has "jurisdiction of the Collector of Land Customs, Delhi". In our opinion, this is the correct and only possible construction. Section 3 of the authorizes the Central Government to appoint by notification in the official gazette one person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification. The section also authorizes 715 the Central Government to appoint by a similar notification such other persons as it thinks fit to be Customs Officers for the same area. "Foreign frontier" has been defined in section 2, cl. (e) of the Act as the frontier separating any foreign territory from any part of India. "Land Customs area" has been defined in cl. (g) of the same section as any area adjoining a foreign frontier for which a Collector of Land Customs has been appointed under section 3. From the definition of foreign frontier in cl. (e), it is clear that an area adjoining the frontiers separating any foreign territory from any part of India, is within these words. What, then is meant by the word 'adjoining '? According to Mr. Kapur, only a few miles near the frontier can be considered to be adjoining the frontier. We can see no justification for such a restricted construction of the word " adjoining". It is true that the village next to the frontier adjoins the frontier. It is equally correct, however, to describe the entire District nearest the frontier as adjoining the frontier ; and we can see nothing wrong in the entire State of Rajasthan adjoining the West Pakistan Frontier. It appears to us that the Central Government treated the whole compact block consisting of the State of Punjab, State of Jammu & Kashmir and State of Rajasthan and Himachal Pradesh and Delhi as one area ad joining the West Pakistan frontier, and for this one area it appointed a Collector of Land Customs. This appears clear from the order appointing the Collector of Central Excise, Delhi, to be the Collector of Land Customs (Notification No. 2L Customs, dated 25th January, 1958), taken with Rule 2(ii) A (i) of the Central Excise Rules, according to which Collector means "in the State of Punjab, Jammu and Kashmir and Rajasthan and in the Union Territories of Himachal Pradesh and Delhi, the Collector of Central Excise, Delhi". In other words, the jurisdiction of the Collector of Central Excise, Delhi, is not only over Delhi, but also it extends to the States of Punjab, Jammu & Kashmir and Rajasthan and the Union Territories of Himachal Pradesh and Delhi. It was for this entire area that the collector of Central Excise, Delhi was appointed Collector of Land Customs. The resultant position, therefore, is that for this entire area of Punjab, Jammu and Kashmir, Rajasthan, Himachal and Delhi, one person has been ap 716 pointed Collector of Customs. When, therefore, the Central Government proceeded next to appoint Land Customs Officers and stated that certain officers as specified in the schedule were appointed Land Customs Officers "for the areas adjoining the land customs frontiers separating West Pakistan from India", and added the words that they were to be Land Customs Officers "within the jurisdiction of the Collector of Land Customs, Delhi," it appears to us to be quite clear that every officer mentioned in the Schedule would be a Customs Officer not for any particular District mentioned in the Schedule but for the whole areas which forms the Jurisdiction of the Collector of Land Customs, Delhi and is the area adjoining the West Pakistan frontier for which a Collector of Land Customs has already been ap pointed under section 3. We find no justification for reading into the Schedule any indication of the area where the officers will operate. The Schedule purports to mention the different officers of different districts who arc appointed Land Customs Officers not for those particular Districts but for the entire area. Any other reading of the words used in the main body of the notification would be not only against the plain meaning of the words used but is likely to defeat the object for which Land Customs Officers are appointed. We have, therefore, come to the conclusion that the construction put by the High Court on the notification is right, and Lai Singh, being an officer in the District of Barmer which is mentioned in the Schedule, was an officer for the entire area which formed the jurisdiction of the Collector of Land Customs, Delhi, including the place where the seizure was made, and was therefore competent to make the seizure. There remains for consideration the last point raised by the learned counsel, namely, that even if Lal Singh had authority to seize at the place where the seizure was made and section 178 A of the applied, the prosecution had still to prove by further evidence that the accused had the mens rea necessary to constitute the offence. Learned counsel rightly pointed that while section 178 A has the result of placing the burden of proof that the gold was not smug gled on the accused, it is of no assistance to the prose cution to prove that the accused was carrying the gold 717 knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India. Once, however, it is found, as it must be found in this case, in consequence of the provisions of section 178 A (the accused has not tried to discharge the burden that lay on him that the gold was not smuggled) that he was carrying smuggled gold, the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried and the form in which gold was being carried, namely, blocks and bars in which the major portion of the gold was found, all these circumstances establish beyond a shadow of doubt that accused was carrying the gold knowingly and with the intention of evading the prohibition that was in force with respect to the import of gold into the country. Mr. Kapur tried to argue that when gold is carried by persons, they often carry it in this manner in a pouli concealed under trousers. That may well be so. Here, however, there is an additional circumstance that a pointsman of the Railway, not expected to have so much gold in his possession, was carrying the gold which was, as already mentioned in six bloks and 22 bars apart from some small pieces and one pair of murkees. The total quantity was as much as 286 tolas and 11 annas, that is, about three kilograms. When all these circumstances are taken together, it is not possible to accept learned counsel 's suggestion that he might be carrying the gold innocently having purchased it from somebody. In our opinion, the High Court has rightly held that all the ingredients of the offence under section 167(81) of the have been established. It may be mentioned that it has not been disputed before us that if we believe the story of the recovery of the gold from the appellant, the circumstances are sufficient to establish that Lal Singh seized the gold in the reasonable belief that these were smuggled goods. In the view we have taken in this matter, it is unnecesary to consider the further argument raised by Mr. H. R. Khanna, who apperaed for the State that even apart from section 178 A, the guilt of accused could be held to be proved by the confession made by him before the Deputy Superintendent, Land Customs, corroborated as it 718 is by the recovery of the gold from him. All the points raised in the appeal on behalf of the appellant fail, and the appeal is, accordingly, dismissed. Appeal dismissed.

IN-Abs

The appellant was found carrying 286 tolas of gold in running train between Kerla and Pali stations by the Sub Inspector of Barmer District. After the gold was seized, criminal proceedings were instituted against the appellant. The trial court acquitted the appellant but the High Court convicted him. The appellant 's case in this Court was that the seizure of the gold from him had not been proved; that the Sub Inspector was not a Customs Officer for the place where the seizure was made, and so the 709 seizure was not under the Land Customs Act; and that, in any view of the case, the prosecution had failed to prove the necessary mens rea in the appellant. Section 3 of the Land Customs Act authorises the Central Government to appoint by notification one person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification. The section also authorises the Central Government to appoint such other persons as it thinks fit to be customs officer for the same area by a similar notification. The relevant notification issued was as follows: "1. In exercise of the powers conferred by sub section (1) of section 3 of the (19 of 1924) read with the notification of the Government of India in the late Finance Deptt. (Central Revenues) No. 5444, dated 1st December 1924, the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontier separating West Pakistan from India, the officers of the Government of Rajasthan specified in the Schedule hereto annexed, to be land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi. ""The Schedule." "All officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of and above the rank of Head Constable posted in the Districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore in the State of Rajasthan. " Held, that the word "adjoining" in the above notification means the whole compact block consisting of the State of Punjab, Jammu and Kashmir and Rajasthan and the Union territories of Himachal Pradesh and Delhi as one area adjoining the West Pakistan Frontier, and that for this entire area one person was appointed the Collector of Land Customs. Every officer, therefore, mentioned in the Schedule would be a Customs Officer not for any particular District mentioned in the Schedule but for the whole area which forms the jurisdiction of the Collector of Land Customs Delhi. Since in the instant case, the Sub Inspector was an officer mentioned in the Schedule, he would be an officer for the entire area which formed the jurisdiction of the Collector of Land Customs, Delhi, including the place where the seizure was made, and was therefore, competent to make the seizure. Held, further, that on the evidence the story of the re covery of gold from the appellant was true, and that the circumstances, manner, quantity and the form in which gold was carried, clearly showed that the appellant was smuggling gold knowingly and with the intention of evading the prohibition in force with respect to the import of gold into the country.

Appeal No. 168 of 1963. Appeal by special Leave from the judgment and decree dated May 1, 1962, of the Gujarat High Court in Appeal from Order No. 46 of 1962. I.M. Nanavati, 1. B. Dadachanji 0. C. Mathur and Ravinder Narain, for the appellant. S.T. Desai, M. M. Shah and I. N. Shroff, for the res pondents. September 5, 1963. A. K. Sarkar, J. delivered a dissenting opinion. The judgment of M. Hidayatullah and J. C. Shah, jj. was delivered by Shah, J. SARKAR J. In my opinion this appeal should succeed. The respondent landlords demised certain premises to 895 Maneklal Mafatlal for a term of five years from March 5, 1950. The tenant continued in possession after the expiry of the term under the protection from eviction given by the Bombay Rents and Lodging House Rates (Control) Act, 1947 which came into force on February 2, 1948. On April 27, 1956, the landlords filed a suit against him for eviction for non payment of rent and obtaineda decree on June 22, 1960. While this suit was pending the tenant sub let a part of the demised premises to the appellant. In execution of the decree the landlords got possession of a small part of the premises which was in the actual occupation of the tenant. As to the rest, the sub tenants in possession including the appellant resisted eviction. The appellant in fact filed a suit against the landlords claiming that under section 14 of the Act it had upon the determination of the interest of the tenant in the premises by the decree against him become their direct tenant of the portion sub let to it and asking for a permanent injunction restraining the landlords from evicting it. In that suit the appellant made an application for an interim injunction but the application was rejected by the trial Court and an appeal therefrom, by the appellate Court. The appellant then moved the High Court of Gujarat in revision and the High Court confirmed the orders of the Courts below holding that after the expiry of the term the tenant had no power of sub letting and the appellant, therefore, was not a sub tenant and it was not entitled to any injunction. The correctness of this judgment of the High Court is challenged in this appeal. The protection under which the tenant in this case stayed on after the expiry of his lease was given by sub section (1) of section 12 of the Act which provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays rent and observes and performs the conditions of the tenancy as provided in the section. The tenant contemplated in sub section (1) of section 12 is plainly a tenant whose had come to an end. The Act at various places uses the word "tenant" as including such a person and also defines the word "tenant" in section 5(11) (b) as including "any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person . " ' 896 Such a person has been called a statutory tenant and I shall also use that description for economy of expression. The landlords contend that though by virtue of section 12(1) of the Act the tenant could not be evicted after the expiry of his lease, yet he had then lost all interest in the demised premises and could not, therefore, sub let the same. How it may be that under the general law of landlord and tenant, a tenant has no right to sub let after the expiry of the lease but we have here a statute which has altered that law in many ways. The power of tenant to sub let cannot therefore be decided by reference to the general law of landlord and tenant but the Act must be examined to see how it affects that power. In my opinion such a power in a statutory tenant is contemplated by the Act and in particular by cl. (e) of sub section (1) of section 13. That section lays down the circumstances in which a landlord notwithstanding the bar in section 12(1), can get a decree in ejectment against the tenant and the part of it to which I wish to refer is in these terms : section 13. (1) "Notwithstanding anything contained in this Act but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied . . . . . . . . . . . . . . . (e)that the tenant has, since the coming into operation of this Act, unlawfully sub let the whole or part of the premises or assigned or transferred in any other manner his interest therein;" This clause plainly contemplates a tenant sub letting and this is not in dispute. But it is said that the tenant here referred to is one whose lease has not expired whom I will for short call a contractual tenant as to whose power to sub let there is no question. The reason given in support of this view is that a statutory tenant having no interest in the premises cannot certainly assign or transfer his interest in the demised premises and, therefore, the word "tenant" in cl. (e) of section 13(1) must in relation to assignment and transfer by a tenant be understood as a contractual tenant. That being so, and as it is unlikely that the word had been used in different meanings in the 897 same clause, it must mean only a contractual tenant in relation to sub letting also. I am unable to accept this contention. The word "tenant" has been given various meanings by the definition clause in the Act. All those meanings must be given to that word wherever it occurs in the Act unless the context otherwise requires. If a statutory tenant cannot transfer or assign his interest as to which I express no opinion cl. (e) of section 13(1) cannot, of course, be contemplating him as doing so. That, however, would not show that definition of "tenant" as a statutory tenant would not be available for deciding what kind of tenants were contemplated by cl. (e) when it said that a tenant unlawfully sub letting would be liable to eviction. In all other ,clauses in section 13(1) the word "tenant" clearly includes both a statutory and a contractual tenant and, therefore, the section contemplates the word "tenant" being used in ,more than one sense. The fact that the clause talks of ,a contractual tenant alone assigning does not provide a context preventing the word "tenant" when it talks of the tenant sub letting, as being understood in the sense of a statutory tenant. Another contention advanced draws its force from the word "sub let". It proceeds on the basis that the word " sub let" can only mean transfer of an estate. It is said that cl. (e) by using the word "sub let" indicated that it did not contemplate a statutory tenant as he could not sub let for he had no interest in the demised premises. No authority has been brought to our attention in support of the contention that letting or sub letting necessarily means transfer of estate or property and I do not think that it is well founded. Decisions of Courts in England to which I will later refer, have held that a statutory tenant who has no estate or property in the demised premises, can sub let. When the clause talks of a statutory tenant sub letting, it may not be contemplating transfer ,of property. The Act undoubtedly creates rights in the tenant in respect of the property. He can maintain an ,action for trespass against any one including the landlord, illegally depriving him of the possession of property. He ,has at least this interest in the property that he can require possession of, it to be delivered to him. It is not as if his 898 right is one only of a personal action in damages. The sub letting contemplated in cl. (e) of section 13(1) may be of ' this statutory right in the property. It would be no answer to this to say that the right impersonal, for the right would not be personal in the strict sense if it can be sublet. In Baker vs Turner(1) Lord Porter approved of the observation of Scrutton L. J. in Keeves vs Dean(2) about a statutory tenant that "Parliament has certainly called him a tenant, and he appears to me to have something more than a personal right against his landlord". Then it was said that under the clause unlawful subletting as also unlawful assignment and transfer were grounds for eviction and if the clause implied a power in the statutory tenant to lawfully sub let it also must equally imply in him a power to, lawfully assign or transfer his interest in the tenancy. It was contended that since it was impossible for a statutory tenant to assign or transfer any interest in the premises as he had none, it would follow that he could not lawfully sub let either. In the first place, I do not think that the word "unlawfully" in the clause applies to "assigned or transferred"; I think as the clause stands it applies only to sub letting. The Act furthermore nowhere states what is an unlawful assignment or transfer of a tenant 's interest. It would undoubtedly have done so if it contemplated unlawful assignment or transfer. It is significant that it specifically talks of lawful and unlawful sub letting in sections 14 and 15. Nor can it be said that the unlawful assignment or transfer contemplated by cl. (e) is one which is against the terms of the contract of tenancy, for it would be unnecessary to provide that an unlawful assignment or transfer by a contractual tenant, that is, an assignment or transfer which is contrary to the terms of the contract of tenancy, would justify an order for possession as in such a case the protection against eviction under section 12(1) would have been lost by non observance of a condition of the tenancy. Therefore, it seems to me that the present contention of the landlords wholly lacks foundation. But assume I am wrong; that cl. (e) contemplates unlawful assignment or transfer of a tenant 's interest in the 1 , 416. 2 , 644. 899 demised premises. A statute can well authorise a statutory tenant to assign or transfer his interest in the demised premises. Indeed section 17 of the English Rent Act of 1957 provides for the transfer of a statutory tenancy. It cannot be said that assignments or transfers of statutory tenancies are inconceivable. It has to be remembered that there is no authority for the proposition that a statutory tenant has no interest in the demised premises and this is at the basis of the theory, which I think is misconceived, that a statutory tenant cannot transfer his tenancy. It is true that he has no estate or property in the demised premises, but that is a different matter. He has none the less an interest, a right in the premises occupied by him, which he may be empowered to transfer. Lastly, I am unable to agree that because a statutory tenant cannot transfer, assuming that to be so, that would show that the word "tenant" in cl. (e) must be understood as referring to a contractual tenant only. I think the word must have the meanings given in the definition including the meaning of a statutory tenant unless the context otherwise indicates. No such indication can be said to be present merely because the word in one part of the clause refers to a contractual tenant only. In Roe vs Russel, (1) the Court of appeal in England held that section 4(1)(h) of the Rent and Mortgage Interest (Restrictions) Act, 1923 which provided that no order for ejectment of a tenant from a dwelling house shall be made unless "(h) the tenant without the consent of the landlord has. . assigned or sub let the whole of the dwelling house or sub let part of the dwelling house, the remainder being already sub let", indicated that a statutory tenant had the power to sub let a part of the premises. In this case it had been held that the statutory tenant had no estate or property as a tenant at all but had a purely personal right to possess, but that did not create any difficulty in the way of the Court holding that he had power to sub let. All subsequent cases in England have accepted that Roe vs Russel(1) has laid down the law correctly. I entirely agree with that view. In Campbell vs Lill,(2), which is an earlier case and which took the same view as Roe vs, Russel,(1) the argument that section 1 (2) 900 4(1)(h) of the English Act of 1923 dealt only with con tractual tenants was expressly rejected on the ground that the word meant both contractual and statutory tenants throughout the section and it would be contrary to all canons of interpretation to give it a restricted meaning only in cl. I wish also to observe that the English provision made an assignment by a tenant a ground for eviction but none the less the word "tenant" was mentioned as referring to a statutory tenant. It was not said that since the tenant contemplated was one who could assign, it must have been that a contractual tenant only was contemplated. These arguments, it will be remembered, were also advanced in this case. Now the similarity between section 13(1)(e) of the Bombay Act and section 4(1)(h) of the English Act is obvious. If the English provision implied that a statutory tenant could sub let part of the premises, there would be no reason for saying that section 13(1) (e) of the Bombay Act did not imply a power in a statutory tenant to sub let lawfully for what was penalised was only an unlawful subletting. There is, therefore, some support for the view that I have taken. The learned judge in the High Court did not question the correctness of the decision in Roe vs Russel(1) but sought to distinguish it from the present case on grounds which I have earlier discussed. I find that case indistinguishable for the purpose of interpreting section 13(1)(e) of the Bombay Act. Indeed if cl. (e) of section 13(1) did not contemplate subletting by a statutory tenant as the landlords contend, the result would be most anomalous. Therefore, in my view, the Act provides a context which indicates that the word " tenant" in that clause had been used as including a statutory tenant. Suppose a statutory tenant does actually sublet and he and his sub tenant are content to carry out their bargain, as happened in the present case, then the landlord would not be able to take advantage of section 13 (1) (e) and evict the tenant if the contention of the landlords in this case is correct, for, ex hypothesi, the sub letting by the tenant was ineffective and, therefore, as good as not made at all. The result would be that a contractual ten,ant sub letting would forfeit the protection under section 12(1) 1[1928] 2 K. B. 117. 901 while a statutory tenant in fact doing so would still be entitled to the protection of the Act. This would put a statutory tenant in a better position than the contractual tenant. An interpretation of the Act which leads to such a result would be most unnatural and it is one that I am unable to accept. It is not contended that such an anomalous result was intended but it is said that even if the word "tenant" in cl. (e) of section 13(1) is understood as referring to a con tractual tenant only, there is no anomaly, for the statutory tenant would by sub letting render himself liable to eviction under other provisions of the Act though not under section 13(1)(e). It was contended that a statutory tenant is entitled to protection only so long as he remains in possession and by sub letting the statutory tenant would be forfeiting his right to protection under section 12(1) of the Act. Therefore it was said that a statutory tenant sub letting would not be in a better position than a contractual tenant doing so. I am unable to accede to the proposition that a statutory tenant sub letting a part of the premises has so parted with the possession thereof as to forfeit his claim to protection under section 12(1). It has to be remembered that in the present case the tenant had not parted with the entirety of the premises bar sub letting. In Roe vs Russel(1) it was said at p. 134, "when an individual is placed, as the statutory tenant undoubtedly was, in the position of having an exclusive personal possession of his premises, he is necessarily in a position in which he can place a third person in actual possession of a part of the premises, while retaining possession of the remainder, and that totally irrespective of whether his own right to exclusive undisturbed possession is purely personal or amounts to something of the nature of an estate or interest in the premises. In Campbell vs Lill(2) it was said, "The policy of the statute is to give protection only to persons in occupation within the meaning of the statute and it aimed at persons who had parted with possession and such parting is deemed to have taken place if the tenant assigns or sub lets the whole of the premises or sub lets part of them, the remainder being already sub let. In the present case (1) 2 902 the tenant sub let a portion only and remained in pos session of the remainder. In these circumstances, I think the tenant is protected. " Both these cases show that under the English Act, a statutory tenant cannot be said to have parted with pos session by sub letting part of the demised premises. It would appear that under the Bombay Act there is even less reason for saying that a statutory tenant sub letting a part of the demised premises has gone out of possession of them, for I find nothing in that Act which justifies the view that in order to be entitled to protection the statutory tenant must himself be in possession of the entire premises. On the other hand, the English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 by sub section (1) of section 15 provided that "a tenant who by virtue of the provisions of this Act retains possession of any dwelling house. . shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy". Notwithstanding this the view in England has been that parting with possession of a portion of the demised premises by way of sub letting does not deprive a tenant his protection under the Act. I do not find any such express provision in our Act regarding a statutory tenant 's possession of the premises. If the Act contemplated a statutory tenant sub letting and that is the basis on which I am examining the effect of sub letting under section 12(1) it cannot by providing that by doing so, he would be so far out of possession as to cease to be entitled to the protection of the Act. Such an interpretation of the Act would result in one part of the Act contradicting another and would be wholly unacceptable. I find no justification in any case for the view that subletting by a statutory tenant of a part of the demised premises results in a parting with possession of the premises or that such parting deprives him of the protection of the Act. I think that section 13(1)(e) clearly indicates that a statutory tenant has the power to sub let. I now set out section 14 of the Act on which the claim of the appellant is based. "Where the interest of a tenant of any premises is determined for any reason, any sub tenant 903 to whom the premises or any part thereof have been lawfully sub let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. " It is not in dispute that the sub letting took place before the date mentioned in this section. It was contended that the word "interest" in the section showed that it contemplated only sub letting by a contractual tenant. I am unable to agree for reasons earlier set out. As I have already said, a statutory tenant has an interest in the premises and when the section talks of the interest of a tenant being determined, it obviously means in the case of a statutory tenant, determined by a decree or by such a tenant giving up the protection of the Act. In this case the interest of the tenant was determined by the decree that was passed against him. I may here state that the Ordinance mentioned in the section came into force on May 21, 1959. I, therefore, find that the appellant became a subtenant before the date mentioned in section 14 and the interest of the tenant who sub let to it had been determined. The appellant has however still to prove that "the premises had been lawfully sub let to it. The only provision in the Act which declares a sub letting to be unlawful is section 15. That section is in these terms : S.15. (1) Notwithstanding, anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein : Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification. (2)Notwithstanding anything contained in any judgment, decree or order of a Court or any contract, 904 the bar against sub letting, assignment or transfer of premises contained in subsection (1) or in any contract shall, in respect of such sub lessees, assignees or transferees as have entered into possession despite the bar before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amend ment) Ordinance, 1959 and as continue in possession at such commencement, have no effect and be deemed never to have had any effect. It is said that the section is confined only to contractual tenancies. The argument is that sub section (1) makes subletting by contractual tenants after the date mentioned unlawful excepting where the contract otherwise provides and that sub section (2) saves from this illegality certain varieties of sub lettings by the tenants. It is however not in dispute that if the section applies to sub lettings by statutory tenants, then the present sub letting to the appellant would be saved by sub section It is said that the words "but subject to any contract to the contrary" in sub section (1) of section 15 show that that section was intended to refer to sub lettings by contractual tenants only. It seems to me that even if those words are applicable only when a contractual tenant sub lets, as to which I have some doubts, that would not lead to the conclusion that the tenant there referred to is only a con tractual tenant. Those words would only be applicable where a covenant permitting sub letting is contained in the lease. Take a case of a contractual tenant where the lease contains no covenant permitting him to sub let. In such a case those words would have no application even though the tenant is a contractual tenant. Therefore where there is no contract about granting of sub leases, the section may still be applicable and in such a case there would be no reason to support the view that it is concerned with a contractual tenant only. The section would have to be interpreted in such a case without reference to the words in question. It would then surely apply to a statutory tenant who, as I have said, can sub let. It cannot therefore be said that section 15 deals only with a contractual tenant. But what happens if section 15 does not apply to a statutory tenant? It was said that that would then show that 905 a statutory tenant cannot at all sub let. If apart from section 15, the proper reading of the Act is, as I have earlier said, that a statutory tenant has the power to sub let, I do not see that this section would provide a ground sufficiently strong to outweigh all the considerations which have led me to that view. The only result then, if section 15 applies to a contractual tenant alone, would be that a sub letting by a tenant would not have been made unlawful by the section. If that is so, then also the appellant 's claim under section 14 would become unchallengable. Whatever view is taken of section 15, it is impossible to say that the section makes the sub letting to the appellant in the present case unlawful. It is unnecessary to go into any question of the Act contemplating a sub letting which was unlawful for rea sons other than those mentioned in it, for it has not been contended that the sub letting in the present case was for any such reason unlawful. The result is that the sub let ting to the appellant must be held to have been lawful. One other matter remains to be dealt with. It was said, and this is not in dispute, that the sub letting to the appellant took place after the landlords had filed their suit against the tenant which resulted in a decree for ejectment to which I have earlier referred. It was con tended that the appellant was, therefore, bound by the decree in view of section 52 of the Transfer of Property Act. On behalf of the appellant it was said that that section was amended so far as Bombay was concerned by Bombay Act 14 of 1939 and the amended section required certain notice to be given before the sub letting could be affected by the principle of lis pendens stated in the section. I do not think it necessary to deal with this contention for in my view, even section 52 as it stands in the Transfer of Property Act without any amendment does not affect the sub letting in this case. The first thing that I wish to point out is that, that section does not make any transfer of property illegal. Therefore, the section does not justify the view that the subletting to the, appellant, assuming it was a transfer of property, as to which doubts may legitimately arise, was. in any way unlawful or invalid. If any authority is needed for this proposition, reference may be made to Veyin 58 2 S C India/64 906 dramuthu Pillai vs Maya Nandan.(1) All that section 52 does is to provide that pending a litigation concerning property, the property cannot be transferred so as to affect the rights of any party thereto under the decree that may be passed in the suit. The only effect then of the section is that the rights of the decree holder under the decree are not to be affected by the transfer. Now the rights of a landlord who gets a decree for possession of property against his tenant are those men tionEd in 0. 21, r. 35 of the Code, namely, to obtain de livery of it "if necessary, by removing any person bound by the decree who refuses to vacate the property". It is true that a sub tenant under the general law of landlord and tenant is a person bound by the decree obtained by the landlord against the tenant for possession, though he was not made a party to the suit. The reason for this is that the sub tenant 's right to remain in possession came to an end with the determination of the tenancy of the tenant : see Yusuf vs lyotish Chandra Banerji(2). Where however a statute like the Act in the present case gives the sub tenant a right to continue in possession even after the determination of the tenancy of the superior tenant, he would not be a person bound by the decree for his tenancy has not come to an end with the tenancy of the superior tenant. A sub tenant to whom the premises were lawfully sub let, would under section 14 of the Act be such a person. That being so, a decree obtained by a landlord against his tenant does not give him a right to evict a sub tenant who is entitled to the benefit of section 14. Section 52 could not be resorted to by the landlords in the present case to evict the appellant. I would for these reasons allow the appeal. SHAH, J. A lease of the ground and the first floors of a building named 'Anand Bhavan ' in the town of Ahmedabad was granted by the trustees of the trust named "Anandji Kalyanji Pedhi" to one Maneklal, for five years commencing from March 5, 1950 at a monthly rental of Rs. 2,000/. A suit instituted by the trustees in the Court of Small Causes (which is the Court competent under (1) Mad. 696. (2) Cal. 907 s.28 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 hereinafter called 'the Act ' to entertain the suit) against Maneklal after the expiration of the period of the lease for a decree in ejectment and for arrears of rent was decreed on June 22, 1960. In execution of the decree the trustees obtained possession of the first floor but were obstructed as to the rest by a private limited company called "Anand Nivas Private Ltd. " and two others who claimed to be sub Iessees from Maneklal and thereby to have acquired rights of tenancy of the ground floor upon the determination of the tenancy of Maneklal. Anand Nivas Private Ltd which will hereinafter be called 'the Company ' filed Suit No. 2814 in the Court of Small Causes at Ahmedabad for a declaration that it was not bound to deliver possession of the premises in its occupation in execution of the decree in the suit filed by the trustees against Maneklal and for an induction restraining the trustees from enforcing the decree. The Company 's application for an injuction restraining the trustees from obtaining possession in enforcement of the decree obtained by them against the tenant was dismissed by the Court of First Instance. In appeal against that order the District Judge, Ahmedabad refused an interim injuction restraining the trustees from executing the decree pending the hearing and disposal of the appeal. The High Court of Gujarat was then moved against that order by a petition invoking its revisional jurisdiction. At the hearing, die petition was, by order of the Court, converted into an appeal from order refusing to grant an injuction. The High Court dismissed the appeal holding that a "statutory tenant" remaining in possession after determination of his contractual tenancy was in law not competent to sublet the premises in whole or in part and a person claiming to be a sub tenant from a statutory tenant could not effectively plead the protection of section 14 of the Act as amended by Ordinance III of 1959 or Bombay Act 49 of 1959. With special leave, the Company has appealed to this Court. The Company sets up its claim to protect its possession on the, plea that it had acquired die , rights of a 908 tenant by virtue of section 14 of the Act. This plea is supported on two grounds : (i)that the contract of tenancy in favour of the tenant expressly authorised him to sublet, and the tenant having lawfully sublet the premises the Company acquired on the determination of the interest of the tenant the rights of a tenant under the landlord; and (ii)in any event, on the determination of the statutory tenancy of the tenant by virtue of Ordinance III of 1959 issued by the Goveronr of Bombay, retrospectively amending section 15 of the Act the Company acquired the rights of a tenant under the landlord. In the view of the High Court clause (i) of the lease restricted "the ordinary rights of the tenant to sublet under section 108(j) of the Transfer of Property Act", and cannot be interpreted as conferring any right on the tenant to sub let, because it "postulates the existence of a right to sublet, and provides for restrictions on the exercise of such right". Whether the covenant in the lease authorised or recognised the power of subletting in the tenant before the period of the lease expired, need not be decided in this appeal. It is common ground that after the expiration of the period of the lease, no extension of or fresh lease was granted to the tenant, and he could set up only such rights as the Act granted or recognised. Sub section (1) of section 12 of the Act provides "A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. " For the protection of tenants the clause imposes a pro hibition against the landlord against recovery of possession of the premises demised to a tenant so long as he pays or is ready and willing to pay the standard rent and permitted increases and also observes and performs the other conditions of the tenancy consistent with the provisions of the Act. A person remaining in occupation of the premises let to him after the determination of or ex 909 piry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant. Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on Ms death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone. Section 12(1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined. On a matter of interpretation of section 12(1) the decisions of the King 's Bench Division of the High Court in England, viz. Roe vs Russel(1) and Lewis vs Reeves(2), on which reliance was placed by the appellant are of little assistance. Those cases were decided on the interpretation of the relevant provisions of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920 (10 & 11, Geo. 5 Ch. 17), and particularly of section 15(1). In Roe vs Russel(1) the question whether a statutory tenant of a dwelling house holding upon terms which do not prohibit subletting, may sublet part of the dwelling house, fell to be determined, and the Court held that a right to sublet a part of the premises provided the remainder was not already sublet could be claimed by a (1) (2) 910 statutory tenant relying upon the "terms and conditions" of the original contract of tenancy. A similar view was also taken in Lewis vs Reeves(1). In that case the widow of a statutory tenant remaining in possession, sublet a part of the premises in her occupation. It was held that on the death of the widow the sub tenant became the direct tenant of the landlord, because subletting of a part of the premises by the widow of a statutory tenant who acquired all the rights under section 12(1)(g) of the Rent Act (10 & 11 Geo. 5 Ch.17) was lawful. But these cases were decided on the interpretation of section 15(1) of the Act of 1920, which insofar as it is relevant, provided : "A tenant who by virtue of the provisions of this Act retains possession of any dwelling house to which this Act applies shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, so far as the same are consistent with the provisions of this Act, and * * * " The terms of section 15(1) of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, differ materially from sub section (1) of section 12 of Bombay Act 57 of 1947. Whereas a tenant who retains possession, and is protected by virtue of the provisions of the English Rent Act is entitled, so long ashe retains possession, to the benefit of all the terms andconditions of the original contract of tenancy so far asthey are consistent with the provisions of the Act, the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions of the original tenancy. This difference in the phraseology of the two enactments is vital to the matter under discussion, and we are unable to hold assuming that the tenant was entitled to sublet the premises under the terms of the Iease that he could, relying upon section 12(1), exercise the right to sublet granted under the lease after he became a statutory tenant. The first ground on which the claim was founded by the Company must therefore fail. (1) 911 The second ground on which the Company claimed to be a lawful tenant of the trustees cannot also be sustained. In the High Court it was common ground between the parties that the tenant continued to remain in possession after March 5, 1955 of the premises leased to him not because of any renewal or grant of a fresh tenancy, but in virtue of the protection afforded to him by, the Act as a 'statutory tenant '. As a statutory tenant he had no estate or interest capable of being assigned or transferred, and his statutory right to occupy could not in law be sublet, because a lawful subletting postulates a right: to enjoy the property and a right to transfer the same to another. There can be no subletting when there is no right in the premises especially when the statutory tenancy ceases when the tenant parts with possession. The decision of the Calcutta High Court in Krishna Prosad Bose vs Sm. Sarajubala Dassi(1) on which reliance was placed by the Company in support of its plea that a statutory tenant is entitled to sublet the premises in his occupation does riot assist the argument. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, recognises the right of a statutory tenant to sublet. Section 12(1) of the West Bengal Act provides that notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired. By the proviso it is enacted that nothing in the sub section shall apply to any suit for a decree for such recovery of possession against a tenant who has sublet the whole or a major portion of the premises for more than seven consecutive months provided that if a tenant who has sublet the major portion of the premises agrees to possess as a tenant the portion of the premises not sublet on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the premises sublet and fix proportionately fair rent for the portion kept in possession of such tenant. By sub section (2) of section 13 it is provided, in so far as it is material, that where any premises or any part thereof have been or has been sublet by a tenant of the first degree, if the tenancy of such tenant (1) A.I.R. 1961 Cal. 912 is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the ground specified in clause (h) of the proviso to sub section (1) of section 12, the sub lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord for the tenant whose tenancy has been determined. In Krishna prosad Bose 's case(1) Sinha, J., set out certain principles governing the position of a statutory tenant of which the seventh set out below is material : "Although a statutory tenant has no estate, and although his right is a personal right, he can sublet, provided the right of subletting can be spelt out from the Rent Act in operation, either from its express terms or by necessary implication. The sub tenant will get only such rights as are conferred by the statute" and observed that the right of the statutory tenant to sublet was clearly recognized by section 13(2), and the right of a sub tenant to become a direct tenant under the owner in certain circumstances was expressly provided for. We are not concerned in this case to decide whether the provisions of the Act were correctly interpreted by the Court: 'it may be sufficient to observe in this case that the Court in Krishna Prosad 's case (1) held that the right of a statutory tenant to sublet was recognised by the statute which afforded him protection. But it was urged that by Ordinance III of 1959 a right to sublet premises in the occupation of a statutory tenant was invested retrospectively since the commencement of the parent Act. It is common ground that the tenant purported to sublet a part of the premises in his occupation after the trustees instituted a suit in ejectment against him, and before Ordinance III of 1959 was promulgated. The Company has claimed the right of a subtenant on the second ground relying upon the Ordinance, ,and it would be necessary to consider the material statutory provisions as amended by the Ordinance. Section 5(11) as amended defines a "tenant" as meaning : (1) A.I.R. 1961 Cal. 913 "any person by whom or on whose account rent is payable for any premises and includes (a) such sub tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959; (a ) any person to whom interest in premises has been transferred under the proviso to sub section (1) of section 15; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or Ms predecessor who has derived title before the commencement of the Bombay Rents, Hotel Lodging House Rates Control (Amendment) Ordinance, 1959; (c) any member of the tenant 's family residing with him at the time of his death as may be decided in default of agreement by the Court. " The expression "tenant" in the different clauses is defined to mean a contractual tenant or a statutory tenant or both. In the principal definition the expression "tenant" means only a person who is a contractual tenant because rent is payable by a contractual tenant and not by a statutory tenant. By cl. (a) sub tenants and other persons who have derived title under a tenant before the commencement of the Ordinance III of 1959 would be regarded as tenants. These would be sublessees, transferees or assignees of contractual tenants. Similarly by cl. (a) persons to whom interest in premises has been transferred in virtue of a notification issued by the State Government permitting in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification, would be transferees of contractual tenants. Clause (b) contemplates a tenant holding over and a statutory tenant alike; it takes in a person remaining in occupation with or without the assent of the landlord, when the premises were let to him or to Ms predecessor before the commencement of the Ordinance. Clause (c) includes in the definition the members of the family of a tenant statutory or contractual residing with him at the time of his death, as may 914 be decided in default by agreement by the Court. Having regard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme of the Act; the language of the provision and the object intended to be served thereby. In sub section (1) of section 12 which imposes a prohibition against a landlord recovering possession of premises, the expression "tenant" must of necessity mean a statutory tenant and not a contractual tenant, for unless the contractual tenancy is determined, the landlord has no right to recover possession. Section 13(1)(e), in so far as it is material, provides that : "Notwithstanding anything contained in this Act, but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied (e) that the tenant has, since the coming into operation of this Act, unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein;" In this clause the expression "tenant" apparently means a contractual tenant, for it authorises a landlord to recover possession of premises if the tenant has unlawfully assign ed, transferred his interest in the premises or has unlaw fully sublet the premises. A statutory tenant has no inte rest in the premises occupied by him, and he has no estate to assign or transfer. To read the clause as meaning that an assignment or transfer of any premises which attracts liability to eviction would be only in respect of a con tractual tenancy whereas subletting which invites that penalty may be in respect of tenancies contractual and statutory alike, would be to attribute to the Legislature an intention to impute two different meanings to the expression " tenant" in cl. (e) of section 13(1). By cl. (e) the Legislature has recognised the right of a landlord to re cover possession if the tenant has without being so autho rised by contract, sublet in whole or in part the premises, or assigned or transferred in any other manner his interest therein. The adverb "unlawfully" qualifies all the three verbs sublet, assigned and transferred. That is clear from 915 the terms of section 15(1) which prohibits "subject to any con tract to the contrary" subletting of premises or assignment or transfer of interest therein. Section 15(1) provides : "Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein : Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification." By cl. (1) of section 15 all transfers and assignments of interest in the premises, and subletting of premises, by tenants are, subject to any contract to the contrary, made unlawful. The clause however saves contracts to the contrary and to be effective can operate only in favour of contractual tenants. A statutory tenant having no interest in the property, it was plainly unnecessary to prohibit transfer of what was ineffective. Nor can there be letting of the premises by a statutory tenant, for letting postulates a transfer of the right to enjoy property made for a certain time, express or implied, in consideration of price paid or promised and a statutory tenant has merely a personal right to resist eviction. Section 15(1) therefore applies only to contractual tenants. The proviso to the clause also furnishes an indication to that effect for the exemption which the Provincial Government may grant can only be in respect of leases or a class of lease. Sub section(2) is in terms an exception to sub s.(1). It provides that : "Notwithstanding anything contained in any judgment, decree or order of a Court or any contract. the bar against subletting, assignment or transfer of premises contained in subsection (1) or in any contract shall, in respect of such sub lessees , assignees or transferees as have entered into possession despite the bar before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordi nance, 1959 and as continue in possession at such 916 commencement, have no effect and be deemed never to have had any effect. " The exception clause could manifestly not apply to statutory tenancies when the principal clause applied only to contractual tenancies. The effect of the clause is to vali date assignments, transfers and sub tenancies granted by contractual tenants, despite the prohibition contained in sub section (1) or even in the contract of tenancy, and this validation is effective, notwithstanding any judgment, decree or order of a Court. The sub section is plainly retrospective, and protects sub tenants of contractual tenants and removes the bar against sub letting by sub section (1) as well as by contract, provided that the transferee is in possession at the commencement of the Ordinance. The argument that by restricting the operation of section 13(1)(e) to contractual tenants subletting by statutory tenants would be protected, is without force, Sections 12 and 13(1) have to be read together. Clause (e) of section 13(1) entitles a landlord to obtain possession, where a contractual tenant has during the subsistence of the tenancy sublet the premises or assigned or transferred his interest therein. Where a statutory tenant has purported to sublet the premises, or has purported to assign or transfer his interest therein, and in pursuance of such a transaction parted with possession, he would forthwith forfeit the protection which the statute accords to him by section 12(1). In the light of this legal position the claim of the Company founded on section 14 may be considered. The section enacts : "Where the interest of a tenant of any premises is determined for any reason, any sub tenant to whom the premises or any part thereof have been lawfully sublet before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. " There is abundant indication in the section that it applies to contractual tenancies alone. In the first instance it speaks of the interest of the tenant and determination of 917 that interest. It then invests a sub tenant to whom the premises have been lawfully sublet before the date of the Ordinance with the rights of a tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. The subletting to be lawful must be permitted by contract, or validated by sub section (2) of section 15. The object of section 14 is to protect sub tenants. By that section forfeiture of the rights of the tenant in any of the contingencies set out in section 13 does not in all cases destroy the protection to the sub tenants. The protection which a sub tenant is entitled to claim against his own landlord (that is the head tenant) becomes on determination of the head tenancy available to him against the head landlord, but the condition on which such a claim may be sustained is that there is a lawful subletting. A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases. His personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which subletting may operate. If it be assumed that a statutory tenant has the right of subletting, some very surprising consequences may ensue. A statutory tenant by parting with possession of the premises would forfeit all rights in the premises occupied by him, but he would still, if section 14 is construed as suggested by the Company, be able to create an interest in the person inducted in the premises not derivatively but independently, for the statutory tenant had no interest in the premises and the protection granted by the statute is by the very act of transfer of possession extinguished. Again even though the sub tenant of a statutory tenant may not be protected, because the bar against such subletting is not effectively removed by section 15(2), he would still be entitled to claim the rights of a tenant under section 14 on determination of the tenancy of the head tenant. Having regard to these considerations there can be little doubt that a sublessee from a statutory tenant under the Act acquires no right of a tenant in the premises occupied by him. 918 Even under the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, protection was accorded to the sub tenant of a part of the premises occupied by a statutory tenant : when the statutory tenant parted with possession of the entirety of the premises occupied by him either by one subletting or more or by subletting of part and surrendered of the rest of the premises, the persons claiming a right of occupation derivatively from the statutory tenant had no protection : Solomon vs Orwell(1). In that case a statutory tenant of a dwelling house bad sublet a part of the house, vacated the premises in her occupation by removing herself therefrom. The landlord then filed a suit against the sub tenant who had remained in possession of a part sublet to her. The subtenant submitted that after the surrender of the statutory tenancy, she was entitled to the same rights against the landlord as the statutory tenant had and therefore her tenancy could not be terminated by merely giving a notice to quit. This contention was rejected by the Court holding that "a statutory tenant had no interest capable of existing in law as an estate, but merely a statutory right of occupation which could not be the subject of surrender at common law, and, therefore, when the tenant vacated the premises the sub tenant 's right of occupation automatically came to an end. " We therefore hold that before the date of the institution of the suit, Manekal as a statutory tenant had no right to sublet the premises and the Company acquired no right of a tenant on the determination of the tenant 's right by virtue of section 14 of the Act. One more argument remains to be considered. It was urged on the assumption that a statutory tenant has an interest in the property occupied by him, and that by purporting to sublet he transferred that interest that the doctrine of 'ut lite pendente nihil innovetur ' enunciated in section 52 of the Transfer of Property Act did not operate against the Company and the Company was not bound by the decree obtained against the tenant. Reliance in support of that plea was placed upon the Transfer of Property Act and the Indian Registration (Bombay Amendment) Act, XIV of 1939. By this Act the rule of 'Lis Pendens ' applies only when a notice of the pendency 919 of the suit in which any right to immoveable property is directly and specifically in question, is registered under section 18 of the Registration Act. The Act is some what clum sily worded : it applies not to proceedings in Court but to notices in respect of suits or proceedings. But the reason for the method of drafting adopted is not far to seek. Condition of registration of notice relating to the suit is only to apply where the suit is in respect of property situate in the area to which the Act is extended. A suit relating to immoveable property may, in certain cir cumstances, lie in a Court other than the Court within the territorial jurisdiction whereof it is situate (e.g. under cl. 12 of the Letters Patent and section 17 Code of Civil Proce dure) and it appears that the Legislature intended to make the Act applicable only to transfers of title to immoveables only in areas where the litigants were sufficiently sophisticated to understand the importance of registration. As Bombay Act XIV of 1939, it intended to apply to the situs of immoveable property and not the Court proceeding, application of the rule of 'Lis Pendens ' is, in respect of proceedings relating to immoveable properties situate in certain areas, made conditional upon the registration of the notice of the pendency of the suit. But this Act did not apply to the suit filed by the trustees. The Act by section 2 applies only to notices in res pect of suits or proceedings which relate to immoveable property situate wholly or partly in Greater Bombay. By the proviso to section 2 it may be extended by the Provincial Government by notification to notices relating to immoveable properties situate wholly or partly in such other areas as may be specified. The suit was filed by the trustees in the Court of Small Causes at Ahmedabad and our attention has not been invited to any notification issued by the appropriate Provincial Government extending the Act to notices relating to immovable properties in areas outside Greater Bombay. Whereas the rule of 'Lis Pendens ' under the Transfer of Property Act aplies to all suits and proceedings which are not collusive in which the right to immoveable property is directly and specifically in question, by virtue of the amended Act the rule applies in proceedings relating to immoveable property in the areas notified, only if a notice of suit is registered, and from the date of regis 920 tration. The section in terms applies only to notices in respect of suits or proceedings which relate to immoveable property in the Greater Bombay Area it does not apply to any suits in which property in Greater Bombay is not the subject matter in dispute. The Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 57 of 1959, does not also assist the Company. By that Act, amongst other things, uniformity in the provisions of the Transfer of Property Act as amended in its application to the State of Bombay as it existed after the enactment of the , was sought to be achieved. Section 3 of the Act enacted that the provisions of Bombay Act XIV of 1939 which amended the Transfer of Property Act in its application to the pre reorganized State of Bombay, were extended to and shall apply to that part of the State to which they did not apply immediately before the commencement of that Act. Enactment of this Act was necessitated because of section 119 of the States Reorganization Act, 1956, which continued, notwithstanding the formation of the new States, the territorial extent of the laws previously in operation. It was found expedient to secure uniformity of the laws in the State, and therefore it was enacted by the State Legislature that one of the condi tions of the applicability of the rule of 'Lis Pendens ' was that notice of a suit or proceeding in which any right to immoveable property within the area notified under section 2 of Act XIV of 1939, is directly and specifically in question, is registered under section 18 of the Registration Act. The decree in the suit filed by the trustees against Maneklal was therefore enforceable against the Company. The appeal fails and is dismissed with costs. ORDER BY COURT The appeal is dismissed with costs. On the Appellant 's undertaking to vacate and deliver possession of the property within one month from today, execution of the decree obtained by the Respondent in Suit No. 707 of 1956 against Maneklal Mafatlal, is stayed for one month. September 5, 1963.

IN-Abs

The respondents granted to one Maneklat for five years a lease of the ground and the first floor of a building named Anand Bhawan in the town of Ahmedabad. After the expiration of the period of the lease, a suit was instituted by the respondents against Maneklal for a decree in ejectment and the realisation of arrears of rent. The suit was decreed. However, Maneklal sublet a part of the premises in his occupation to the appellant after the institution of the suit against him but before the promulgation of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959. In execution of the decree, the respondents obtained possession of the first floor but were obstructed as to the rest by the appellant and two others who claimed to be sub lessees from Maneklal and thereby to have acquired rights of tenancy of the ground floor upon determination of the tenancy of Maneklal. The appellant filed a suit for a declaration that it was not bound to deliver possession of the premises in its occupation in execution of the decree passed against Maneklal and for an injunction restraining the respondents form enforcing the decree. The trial Court refused to grant the interim injunction against the respondents. The lower appellate court also refused to issue the interim injunction. The High Court dismissed the appeal of the appellant on the ground that a statutory tenant re 893 maining in possession after determination of its contractual tenancy was in law not competent to sublet the premises in whole or in part and a person claiming to be a sub tenant from a statutory tenant could not effectively plead the protection of section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended by the Ordinance of 1959. The appellant came to this Court by Special Leave. Held (per Hidayatullah and Shah, JJ. Sarkar, J. dissenting) (i) Maneklal was a statutory tenant and as such had no right to sublet the premises and the appellant acquired no right of a tenant on the determination of the right of Maneklal by virtue of section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended in 1959. (ii)The appellant was bound by the decree obtained by the respondents against Maneklal and it could not take advantage of the Transfer of Property Act and the Indian Registration (Bombay Amendment) Act, 1939. By section 15(1), all transfers and assignments of interests in the premises and sub letting of premises by tenants are, subject to any contract to the contrary, made unlawful. This provision applies only to contractual tenants and not to statutory tenants who have no interest in the property. A statutory tenant cannot sublet the premises because subletting involves a transfer of the right to enjoy property for a certain period in consideration of price paid or promised and a statutory tenant has merely a personal right to resist eviction. Section 15(2) is in the nature of an exception to section 15(1). It applies to contractual tenancies. It protects subtenants of contractual tenants and removes the bar against subletting imposed by section 15(1) as well as by contract, provided the transferee is in possession of the premises at the commencement of the Ordinance. A statutory tenant is a person who remains in occupation of the premises let to him after the determination of or the expiration of the period of the tenancy. He has no estate or interest in the premises occupied by him. He merely enjoys the protection of the law in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal. It is not capable of being transferred or assigned and devolves on his death only in the manner provided in the Act. On the other hand, the right of a contractual tenant is an estate or interest in the premises and in the absence of a contract to the contrary, is transferable and the premises may be sub let by him. Roe vs Russel, , Lewis vs Reeves, , Krishna Prasad Bose vs Sm. Sarajubala Dassi, A.I.R. 1961 cal. 505 and Solomon vs Orwell, [1954] 1 All E. R. 874, referred to. 894 Per Sarkar, J. (1) The word 'tenant ' in section 13(1)(c) of the Bombay, Rents, Hotel and Lodging House Rates Conrtol Act, 1947 includes not only contractual tenants but also statutory tenants and a statutory tenant has the power to sublet. There is no justification for the view that sub letting by a statutory tenant of a part of the demised premises results in a parting with possession of the premises or that such parting deprives him of the protection of the Act. Section 13(1)(e) of the Bombay Act implies that a statutory tenant can sublet a part of the premises lawfully. Section 15 of the Bombay Act deals not only with contractual tenants but also with statutory tenants. The result is that the sub letting by Maneklal of the premises must be held to have been lawful. (ii)The appellant was not bound by the decree obtained by the respondent against Maneklal. It is true that a sub tenant under the general law of landlord and tenant is bound by the decree obtained by the landlord against the tenant for possession, though he was not made a party to the suit, but where a statue like the Bombay Act gives sub tenant a right to continue in possession even after determination of the tenancy of the statutory tenant, the sub tenant is not bound by the decree and his tenancy does not come to an end with the tenancy of the superior tenant. A decree obtained by a landlord against his tenant does not give him a right to evict a subtenant like the appellant who is entitled to the benefits of section 14 of the Act. Section 52 of the Transfer of Property Act cannot be resorted to by the respondents in the present case to evict the appellant. Baker vs Turner, , Keeves vs Dean, , Roe vs Russel, , Campbell vs Lill, , Vevindramuthu Pillai vs Maya Nandan, (1920) 1. L.R.43 Mad. 696 and Yusuf vs joytish Chandra Banerji, (1932) 1. L. R. Cal. 739, referred to.

ivil Appeal No. 528 of 1963. Appeal from the 'judgment and order dated March 28, 1962 of the Rajasthan High Court in D.B. Civil Writ Petition No. 164 of 1961. G.S. Pathak, K. Jinder, B. Dutta, d. B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant. G.S. Kasliwal, Advocate General for the State of Rajasthan, S.K. Kapur and B.R.G.K. Achar, for the respondents. October 3, 1963. The Judgment of the Court vas delivered by SHAH J. By order of the President of India, H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur hereinafter called 'the appellant ' was recognised 3 as the Ruler of Udaipur with effect from July 4, 1955 in succession to his father the late Maharana Bhupal Singh. A, dispute arose between the appellant and his employees in the "Motor Garage Department" about the conditions of employment and representations were made by the latter to the Government of Rajasthan through the Motor Workers Mazdoor Union, Udaipur. The Government of the State of Rajasthan, on December 18, 1957 referred under section 10 of the (14 of 1947), the following dispute to the Industrial Tribunal, Rajasthan: "Whether the Maharana Sahib Bahadur of Udaipur is liable to pay to the staff working with him in the Palace Power House and Motor Garage, consequent to their retrenchment, the arrears of claims or the due salary, leave wages, overtime wages and weekly holidays as per schedule appended here to and if so, to what extent. If not. to what relief the staff is entitled to under the provisions of the , as the question of payment of the claims has arisen with the termination of their services due to retrenchment effected by the employers. " Two preliminary objections were raised before the Industrial Tribunal by the appellant against the maintainability of the reference: (1) That the reference to the Industrial Tribunal for adjudication of the dispute was not maintainable without the previous sanction of the Central Government to the making of the reference. (2) That on the date when the reference was made no Industrial Tribunal was constituted under section 7A of the , as amended by Act 36 of 1956, and on reconstitution of the Tribunal, the reference became incompetent. The Tribunal rejected both the objections and a writ petition filed by the appellant challenging the 4 validity of the order of the Tribunal was dismissed by the High Court of Rajasthan. The appellant has appealed to this Court, with certificate granted by the High Court of Rajasthan. The appellant contends in the first instance that without the sanction of the Union Government under section 87B of the Code of Civil Procedure, the reference to the Industrial Tribunal was incompetent. But the dispute between the parties relates to the claim made by the employees for retrenchment and other compensation and leave facilities: the dispute is raised before the Industrial Tribunal in a reference under the , and not before a civil court in a suit. The appellant is therefore not "sued" in a court. Section 86 Code of Civil Procedure on which reliance is placed by the first sub section provides that: "No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified 111 writing by a Secretary to that Government :" and by section 87B the provisions of section 86 apply in relation to the Ruler of any former Indian State as they apply in relation to the Ruler of a foreign State. The appellant is recognised under article 366(22) of the Constitution as a Ruler of an Indian State, but section 86 in terms protects a Ruler from being "sued" and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint or petition in the nature of a plaint or where the claim is not in respect of a dispute ordinarily triable in a civil court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure. The proceeding for adjudication under the is rounded in a reference made by the local Government under section 10 and the allied sections under the and is not commenced by a plaint or petition. An Industrial Tribunal is again not a court within the meaning of section 86: it is a Tribunal consti 5 tuted for adjudicating industrial disputes. Section 86 of the Code excludes the jurisdiction of the civil courts and must be strictly construed. It does not debar the commencement of proceedings for adjudication of an industrial dispute for two reasons: neither party to the proceeding is sued by the initiation of the proceeding, and the Tribunal is not a court. It was urged however that by article 362 of the Constitution the personal rights, privileges and dignities of the Ruler of an Indian State guaranteed or assured under any agreement or covenant made prior to the Constitution are preserved, and a fetter is placed upon the exercise of power, legislative and executive, of the Union and the States, against infringement of the guarantee or assurance given under the covenant or agreements entered into by a Ruler of an Indian State. Consequently, it is submitted, as a Ruler of an Indian State the appellant is entitled to the same privileges which a sovereign enjoy,, under rules of International Law against foreign jurisdiction, and the same immunity from being proceeded against either in the ordinary or extraordinary civil or criminal tribunals, and from payment of all taxes, and being subjected to police or other administrative regulations. The position of the former Rulers of Indian States has, since the year 1947, been fundamentally altered. Prior to 1947 the Indian princes were, notwithstanding the varying degree of suzerainty exercised over them by the British Crown, recognised as having a. degree of sovereignty and were in an international sense regarded qua British India as foreign sovereigns, and entitled to certain rights, privileges and immumties. On the enactment of the Indian Independence Act, the suzerainty which the British Crown had over the Indian States lapsed and with it all the treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty exist 6 ing at that date towards Indian States or the Rulers thereof and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise also came to an end. Like other States the State of Udaipur executed an agreement of accession and thereby in matters of defence, external affairs and communications concerning the State, the Government of India assumed sole responsibility. This accession was followed by a process of integration of the Indian States in Rajasthan which culminated in the formation of the United State of Rajasthan. The Rulers of the Indian States in the Rajasthan area including the Ruler of Udaipur formed the United State of Rajasthan, under a covenant the provisions whereof were guaranteed by the Government of India. This covenant was modified by an agreement which became effective from May 15, 1949. On the enactment of the Constitution on January 26, 1950 the Union of Rajasthan became one of the Part 'B States, and by the Constitution (Seventh Amendment) Act, 1956, the Part 'B ' State of Rajasthan was recognised as one of the States in India. As a result of the constitutional developments leading to the promulgation of the Constitution the father of the appellant who was at one time recognised as a sovereign of an independent State acquired the status of a citizen of India. The appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under article 366(22) of the Constitution has not altered his status, but as a citizen he is undoubtedly assured a privileged position. The covenant of the United State of Rajasthan to which the appellant 's father as the Ruler of Udaipur was a party consists of 20 articles. It would be fruitless for the purpose of this appeal to catalogue all the articles dealing with the rights, privileges and dignities of the Ruler of Udaipur. A few only need be set out. By article XI as Ruler of a covenanting State he was entitled to receive annually from the revenues of the United State of Rajasthan for his 7 privy purse the amounts specified against his State in Sch. 1 thereof. By article XII he remained entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties), belong ing to him on his making over the administration of that State to the Raj Pramukh. By article XIII the Ruler of each covenanting State, as also the members of his family, were entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before August 15, 1947, and by article XIV the succession, according to law and customs, to the gaddi of each covenanting State, and the personal rights, privileges, dignities and titles of the Ruler were guaranteed. By article XV guarantee was given against any action or proceeding in any court whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by him or under his authority during the period of his administration of that covenanting State. The covenant is in general terms, and does not purport to make a comprehensive list of the personal rights, privileges and dignities except those which have been specifically referred to. The agreement which came into force on May 15, 1949 makes no departure from the articles of the covenant. The covenant which was entered into by the Rulers of the Indian States in Rajasthan and the agreement of May 15, 1949, had the concurrence of the Government of India and the provisions thereof were guaranteed by the Government of India. In order to give constitutional recognition to the guarantees and assurances under the covenants and agreements articles 362, 363, 131 proviso and 291 were incorporated in the Constitution. Article 362 with which we are directly concerned provides: "In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in article 8 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State." The Article declares that in the exercise of legislative and executive power by the Union and the State due regard shall be had to the guarantee or assurance given under any covenant or agreement with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. It must be emphasized, that these rights, privileges and dignities which are, for historical reasons, recommended to be respected, avail the Rulers in their status as Indian citizens and not in recognition of any sovereign authority continuing to remain vested in them. It is in that view unnecessary to enter upon a discussion as to. what immunities and privileges, a foreign sovereign would be entitled to in the Republic of India. The question on which attention must be concentrated is: does the reference of the industrial dispute by the Government of the State of Rajasthan which attracts the application of the , trench upon the guarantee or assurance under the covenant executed by the appellant 's father, with respect to the personal rights privileges and dignities of the Ruler of the State of Udaipur, and if it does so trench, are the courts competent to grant relief ? The , as originally enacted applied to British India. But by the amendment made by the Industrial Disputes (Appellate Tribunal) Act (48 of 1950), section 34 and the Schedule thereto, the Act was extended to the whole of India except the State of Jammu and Kashmir, and since then by the enactment of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 36 of 1956, the Act extends to the whole of India. The , therefore, applied at the material time to the territory of Rajasthan. The appellant is a citizen of India, the Act extends to the territory of Rajasthan and prima facie he is governed by the provisions of the Act. The plea raised by the appellant is that by virtue of article 362 of the Constitution reference of an 9 industrial dispute under the machinery provided under the Act for settlement of industrial disputes infringes the guarantee or assurance in respect of his personal rights, privileges and dignities assured to him by the covenant which formed the Union of Rajasthan. But the plea of immunity from the jurisdiction of the Industrial Tribunal, in the matter of adjudication of an industrial dispute, because it was a personal right or privilege, was never raised in the High Court, and no evidence has been led in that behalf. As observed in the White Paper on Indian States, para 240 at p. 125, the rights enjoyed by the Rulers varied from State to State and were exercisable both within and without the States. They covered a variety of matters ranging from the use of red plates on cars to immunity from civil and criminal jurisdiction, and exemption from customs duties etc. In truth no reliance at all was placed on article 362 of the Constitution in the High Court. In the absence of evidence directed to the question whether the appellant as "Ruler of the Indian State of Udaipur" was entitled by virtue of the covenant or agreement relied upon by him to the privilege of not being proceeded against in the Industrial Tribunal, we would not be justified in entertaining his plea. It may also be mentioned that if exemption from the jurisdiction of the Industrial Tribunal be claimed relying on the guarantee or assurance under the covenant being disputed, the questions whether the courts have jurisdiction to deal with the dispute if the covenant or the agreement was one of the nature referred tO in article 363, or the dispute relates to any right accruing under or liability or obligation arising out of any provisions of the Constitution relating to such treaty, agreement etc., may fail to be determined. This Court in Sudhansu Shekhar Singh Deo vs State of Orissa(1) observed at p. 786: "If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsis (1) [1961] 1 S.C.R.779,786. 10 tent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot, relying upon the agreement or covenant, be questioned in any court, and that is so expressly provided by article 363 of the Constitution." But whether the bar to the jurisdiction of a court arising out of article 363 can be effectively pleaded has, it must be observed, not been investigated before the High Court. It was also not raised before us: it has fallen to be mentioned by us because it arises out of the plea raised for the first time before this Court in which reliance is placed on article 362 by the appellant. We therefore decline to express any opinion on the questions whether by article 362 the appellant is privileged against a reference under the and also whether the courts have jurisdiction to adjudicate upon the plea set up by the appellant. The second contention was, in our judgment, rightly negatived by the High Court. The was applied to the territory of Rajasthan by the Industrial Disputes (Appellate Tribunal) Act (48 of 1950), and an Industrial Tribunal was thereafter constituted by notification dated June 2, 1953, under section 7 of that Act. The was, however, amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act (36 of 1956), and section 7 as originally enacted was deleted and in lieu thereof sections 7, 7A. 7B and 7C were enacted. The power to appoint an Industrial Tribunal was, under the amended act, conferred upon the appropriate Government by section 7A. But it appears that no fresh notification appointing the Tribunal was issued under section 7A, and the Tribunal originally constituted under section 7 'functioned. To that Tribunal reference of the present dispute was made by order dated December 18, 1957. The High Court of Rajasthan in Writ Petition No. 107 of 1958 Mundra Metal Works Private Ltd. vs The State of Rajasthan and two others held that the reference made to the Tribunal which was constituted under section 7 of the Industrial 11 Disputes Act before it was amended by Act 36 of 1956 was incompetent. The State Government then reconstituted the Tribunal under section 7A of the Act by notification dated April 16, 1959, but no fresh 3 reference of the dispute in the present case was made by the State Government to the reconstituted Tribunal. Relying upon this development the appellant urged that the Tribunal reconstituted by notification dated April 16, 1959 had no jurisdiction to entertain the reference originally made, and in the absence of a fresh reference to the reconstituted Tribunal the proceeding was incompetent. He also urged that the constitution and the appointment of the Tribunal made after March 30, 1959 were invalid. It is unnecessary however to consider the merits of these contentions because the Legislature has remedied the defects, if any, in the constitution of the Tribunal, by enacting the Rajasthan Industrial Tribunal (Constitution and Proceedings) Validating Act, 1959, which was reserved for the consideration of the President of India and has received his assent. By section 2(1) of ' that Act, notwithstanding any judgment, decision or order of any court and notwithstanding any defect or want of form or jurisdiction, the Industrial Tribunal for Rajasthan, constituted under section 7 of the , by Government notification dated the 2nd June, 1953, as amended by order dated the 9th March, 1956, shall, as respects the period commencing on the 10th day of March 1957 and ending with the 15th day of April, 1959, be deemed to have been duly constituted under section 7A of the said Act. By sub section (2) it is provided that notwithstanding any judgment, decision or order of any court all references made to and all proceedings taken and orders passed by the Industrial Tribunal constituted in sub section (1) between the period 10th March., 1957 and 15th April, 1959, shall be deemed respectively to have been made, taken and passed as if the said Tribunal were constituted under section 7A of the Act. It is clear from the validating provisions that the Tribunal originally constituted under section 7 of the , before it was amended by Act 36 Of 1956 is to be deemed to 12 have been duly constituted under s.7A, and the reference made on December 18, 1957 is to be deemed to have been made as if the Tribunal were constituted under section 7A of the amended Act. The Validating Act is, because of Item 22, List III of the Seventh Schedule to the Constitution, within the competence of the State Legislature, and it was reserved for the consideration of the President and has received his assent. It must by virtue of article 254(2) prevail in the State of Rajasthan. The contentions raised in this appeal must therefore fail. The appeal is dismissed with costs. Appeal dismissed.

IN-Abs

A dispute arose between the appellant and his employees in the "Motor Garage department" in respect of the claim made by the employees for retrenchment and other compensation and leave facilities. The Government of the State of Rajasthan, 'on December 18, 1957, referred under section 10 of the , the above mentioned dispute to the Industrial Tribunal, Rajasthan. Two preliminary objections were raised before the Industrial Tribunal by the appellant against the maintainability of the reference: (1) That without the sanction of the Union Government under section 87B of the Code of Civil Procedure, the reference to the Industrial Tribunal was incompetent. (2) That on the date when the reference was made no Industrial Tribunal was constituted under section 7A of the as amended by Act 36 of 1956, and on reconstitution of the Tribunal, the reference became incompetent. The Tribunal rejected both the objections. The High Court also dismissed the writ petition filed by the appellant challenging the validity of the order of the Tribunal. Hence this appeal. Held, (i) Section 86 read with section 87 of the Code of Civil Procedure in terms protects a Ruler from being "sued" and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint or petition in the nature of a plaint, or where the claim is not in respect of a dispute ordinarily triable in a civil court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure. Section 86 of the Code excludes the jurisdiction of the civil courts and must be strictly construed. It does not debar the commencement of proceedings for adjudication of an 1/SCI New Delhi/64 1 2 industrial dispute for two reasons:neither party to the proceeding is saed by the initiation of the proceeding and the Tribunal is not a court. (ii) Article 362 of the Constitution declares that in the exercise of legislative and executive power by the Union and the State due regard shall be had to the guarantee or assurance given under any covenant or agreement with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. These rights, privileges and dignities which are, for historical reasons, recommended to be respected, avail the Rulers of Indian States in their status as Indian citizens and not in recognition of any sovereign authority continuing to remain vested in them. In the present case, the appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under article 366(22) of the Constitution has not altered that status, but as a citizen he is assured a privileged position. (iii) By sub section (2) of the Rajasthan Industrial Trjbunal (Constitution and Proceedings) Validating Act, 1959, the Tribunal originally constituted under section 7 of the , before the Act was amended by Act 36 of 1956, is to be deemed to have been duly constituted under section 7A, and the reference made on December 18, 1957 is to be deemed to have been made as if the Tribunal were constituted under section 7A of the amended Act. The Validating Act is, because of Item 22 List III of the Seventh Schedule to the Constitution, within the competence of the State Legislature. As the Act was reserved for the consideration of the President and has received his assent, by virtue of article 254(2) it must prevail in the State of Rajasthan. Mundra Metal Works Private Ltd. vs State of Rajasthan, W.P.No. 107/58, referred to.

Criminal Appeal NO. 56 of 1960. Appeal by special leave from the judgment and order dated November 27, 1959 of the Patna High Court in Criminal Appeal No. 63 of 1957. D.P. Singh, for the appellants. K.K. Sinha, for the respondent. October 4, 1963. The Judgment of the Court was delivered by DAs GUPTA J. These seven appellants were tried by the Assistant Sessions Judge, Saran, on charges under section 395 of the Indian Penal Code and also under section 323 of the Indian Penal Code but were acquitted by him of both the charges. The prosecution case was that on November 15, 1956 when Bhadai Sah, a businessman belonging to Teotith, within police station, Baikunthpur, was passing along the village road on his way to purchase patua, the seven appellants armed with lathis surrounded him and demanded that he should hand over the monies he had with him. Bhadai had Rs. 250 with him but he refused to part with them. Kesho Singh one of the appellants tried to take away forcibly the currency notes from his pocket but Bhadai caught hold of his arm and raised an alarm. On this all the appellants assaulted him with their lathis and as he fell injured Kesho Singh took away the money from his pocket. Bhadai thereupon filed a petition of complaint in the Court of the Sub Divisional Magistrate, Gopalgunj, on November 22, 1956. The 39 Magistrate after examining him on solemn affirmation made an order asking the Sub Inspector of police, Baikunthpur, to institute a case and report by December 12, 1956. Ultimately, a charge sheet was submitted by the Police and the accused persons were committed to the ' Court of Sessions. The Sessions trial ended, as already stated, in the acquittal of all the appellants. Against the order of acquittal, Bhadai Sah filed an appeal under section 417(3) of the Code of Criminal Procedure in the High Court of Judicature at Patna. On the Following day two learned Judges of the High Court made the order: "The appeal will be heard". The appeal then came up for hearing before two other learned Judges of the Court who being of opinion that the learned Sessions Judge had rejected the prosecution evidence "on unsound standards without any real effort to assess the credibility of the evidence" and that the prosecution case was Fully established by the evidence, set aside the order of acquittal and convicted the appellants under section 395 of the Indian Penal Code and sentenced them to two years ' rigorous imprisonment. Against this order of the High Court the present appeal has been filed by special leave of this Court. The main contention urged in support of the appeal is that in this case no appeal lay to the High Court against an order of acquittal under section 417(3) of the Code of Criminal Procedure. This provision in section 417 was introduced in the Code by the Amending Act XXVI of 1955, giving a complainant a right of appeal against acquittal where a case is instituted upon a complaint. Before this new legislation, only the State Government had the right to appeal against an order of acquittal. The result of the new provision in sub section 3 is that if an order of acquittal is passed by any court other than a High Court in a case instituted upon a complaint, the High Court on an application made to it by the complainant in this behalf may grant special leave to appeal from the order of acquittal and on such leave being granted the complainant may present such an appeal to the High Court. It 40 is to be noticed that this right is limited only to cases instituted upon a complaint. On behalf of the appellants it is argued that the case against them was not instituted on any complaint but was instituted on a police report. The Code does not contain any definition of the words "institution of a case". It is clear however and indeed not disputed, that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts that is, facts constituting the offence made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate 's own knowledge or suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by courts of sessions on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken. by the High Court of offences upon a commitment made to it in the manner provided in the Code. An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a. complaint of facts which constitute such offence, a case is instituted in the Magistrate 's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such. facts made by any police officer it is a case instituted in the Magistrate 's court on a police report. To decide whether the case in which the appellants were first acquitted and thereafter convicted was instituted on a complaint or not, it is necessary to find out whether the Sub Divisional Magistrate, Gopalgunj, in whose Court the case was instituted, took 41 cognizance of the offences in question on the complaint of Bhadai Sah filed in his Court 0n November 22, 1956 or on the report of the Sub Inspector of Police dated the 13th December, 1956. It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari vs State of U. P.(1) and again in Gopal Das vs State of, Assam(2) In the case before us the Magistrate after receipt of Bhadai Sah 's complaint proceeded to examine him under section 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by section 200 the Magistrate could have issued process at once under section 204 of the Code of Criminal Procedure or could have dismissed the complaint under section 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under section 202 of the Code of Criminal Procedure. That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magis (1) ; (2) A.I.R (1961) S.C. 986. 42 trate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. " If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under section 203 of the Code of Criminal Procedure. We find that in the case before us the Magistrate after completing the examination under section 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words : "Examined the complaint on s.a. The offence is cognizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56. " If the learned Magistrate had used the words "for investigation" instead of the words "for instituting a case" the order would clearly be under section 202 01 ' the Code of Criminal Procedure. We do not think. that the fact that he used the words "for instituting a case" makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under section 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under section 202 of the Code of Criminal Procedure and not under section 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under section 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under section 202 of the Code of Criminal Procedure and not under section 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words "for instituting a case" in this order of November 22, 1956 he was actually taking action under section 202 of the Code of Criminal Procedure, 43 that being the only section under which he was in law entitled to act. The fact that the Sub Inspector of Police treated the copy of the petition of complaint as a first in formation report and submitted "charge sheet" against the accused persons cannot make any difference. In the view we have taken of the order passed by the Magistrate on November 22, 1956, the report made by the police officer though purporting to be a report under section 173 of the Code of Criminal Procedure should be treated in law to be a report only under section 202 of the Code of Criminal Procedure. Relying on the provisions in section 190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the learned counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was actually received in the shape of a charge sheet under section 173 of the Code, after December 13, 1956. The insuperable difficulty in the way of this argument, however, is the fact that the Magistrate had already examined the complainant under section 200 of the Code of Criminal Procedure. That examination proceeded on the basis that he had taken cognizance and in the face of this action it is not possible to say that cognizance had not already been taken when he made the order "to sub Inspector, Baikunthpur, for instituting a case and report by 12.12.56." Cognizance having already been taken by the Magistrate before he made. the order there was no scope of cognizance being taken afresh of the same offence after the police officer 's report was received. There is thus no escape from the conclusion that the case was instituted on Bhadai Sah 's complaint on November 22, 1956 and not on the police report submitted later toy the Police Sub Inspector, Baikun 44 thpur. The contention that the appeal did not lie under section 417(3) of the Code of Criminal Procedure must therefore be rejected. The next contention raised on behalf of the appellants is that the High Court was not justified in interfering with the order of acquittal passed by the learned Assistant Sessions Judge. The reasoning on which the learned Assistant Sessions Judge rejected the evidence of the prosecution witnesses and the reasons for which the learned Judges of the High Court were of opinion that there was no real effort by the learned ' Sessions Judge to assess the credibility of the evidence have been placed before us. It is quite clear that the High Court examined the matter fully and carefully and on a detailed consideration of the evidence came to the conclusion that assessment of the evidence had resulted in a serious failure of justice. The principles laid down by this Court in a series of cases as regards interference with orders of acquittal have been correctly followed by the High Court. There is nothing, therefore, that would justify us in reassessing the evidence for ourselves. As relevant parts of the evidence were however placed before us, we think it proper to state that on a consideration of such evidence we are satisfied that the decision of the High Court is correct. As a last resort the learned counsel for the appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void. As we have already pointed out, the order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under section 202 of the Code of Criminal Procedure. So, the argument that the learned Magistrate acted without jurisdiction cannot be accepted. At most it might be said that in so far as the learned Magistrate asked the police to institute a case he acted irregularly. There is absolutely no reason, however, to think 45 that irregularity has resulted in any failure justice. The order of conviction and sentence passed by the High Court cannot be reversed or altered on account of that irregularity. In the result, the appeal is dismissed. Appeal dismissed.

IN-Abs

The respondent lodged a complaint before the Sub Divisional Magistrate alleging that the appellants assaulted him with lathis and forcibly took away currency notes from his pocket. After completing the examination under section 200 of the Code of Criminal Procedure, the Magistrate made the following order "Examined the complaint on s.a. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12.12.56. " Ultimately, a charge sheet was submitted by the police and the appellants were committed to the court of sessions but the trial ended in acquittal. On appeal by the respondent under section 417(3) of the Code of Criminal Procedure, the order of acquittal was set aside by the High Court and the appellants were convicted under section 395 of the Penal Code and sentenced to two years rigorous imprisonment. It was mainly urged on behalf of the appellants that in this case no appeal lay to the High Court under section 417(3) as the case against them was not instituted on any complaint but on a police report. Held: (i) When on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation. he cannot be said to have taken cognizance of any offence. R.R. Chari vs State of U.P., ; and Gopal Das vs State of Assam, A.I.R. 1961 S.C. 986, applied. In the present case, as it is clear from the very fact that the Magistrate took action under section 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under section 202 and not under section 156(3) of the Code of Criminal Procedure. Therefore, it must be held that though the Magistrate used the words "for instituting a case" in his order he was actually taking action under section 202 of the Code, that being the only section under which he was in law entitled to act. 38 Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officers ' report was received. Thus the case was instituted on complaint and not on the police report submitted later. The contention therefore that the appeal d d not lie under section 417(3) must be rejected. (ii) The order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under section 202 of the Code of Criminal Procedure. So the contention that he acted without jurisdiction cannot be accepted. At most it might be said that in so far as he asked the police to institute a case he acted irregularly, but there is no reason to think that it has resulted in any failure of justice.

Civil Appeal No. 530 of 1963. 14 Appeal from the judgment and order dated February 14, 1963, of the Madhya Pradesh High Court in First Appeal No. 34 of 1962. U.M. Trivedi, Malik Arjun Das, Shanti Swarup Khanduja and Ganpat Rai, for the appellant. G.S. Pathak, U.N. Bhachawat, Rameshwar Nath and S.N. Andley, for respondent No. 1. October 3, 1963. The Judgment of the Court was delivered by SHAH J. Eight candidates (including the appellant Mohan Singh and the first respondent Bhanwarlal) filed nomination papers for election to the Madhya Pradesh Legislative Assembly from the Sitamau constituency. The nomination of one Hussain Khan was rejected by the Returning Officer at the initial scrutiny and another candidate Himmat Singh withdrew his candidature before the date of polling, which took place on February 24, 1962. On the counting of the votes Mohan Singh was found to have secured the largest number of votes at the election, and he was declared elected. Bhanwarlal applied under section 80 read with sections 100 and 101 of the Representation of the People Act (43 of 1951), to the Election Commission of India for an order declaring the election of Mohan Singh void, and Mohan Singh disqualified because of committing corrupt practices detailed in the petition and for an order declaring the applicant Bhanwarlal elected. Among the many grounds of corrupt practices alleged in the petition, two grounds set out in cls. (c) & (d) of para 11 of the petition survive for consideration in this appeal. It was averred in these clauses that Mohan Singh the successful candidate had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard to the personal character or conduct of the applicant Bhanwarlal which were false and which Mohan Singh believed to be false or did not believe to be true and that the statements were calculated 15 to prejudice the prospects of Bhanwarlal at the election. Copies of the two leaflets were annexed to the petition, and were marked annexures 'D ' & 'E '. The petition was referred for trial by the Election Commission to the Election Tribunal, Ratlam, under section 86 of the Representation of the People Act. Mohan Singh by his written statement denied that he had published the leaflets and submitted that the leaflets which appeared to have been published by the electorate contained "a factual and fair criticism of the public; activities" of Bhanwarlal and that they were not calculated to prejudice his prospects at the election. Mohan Singh applied to the Tribunal for an order dismissing the petition in limine on the ground, among others, that there was non compliance with section 82 of the Act, because one of the candidates at the election named Himmat Singh against whom allegations of corrupt practice in regard to the withdrawal of his candidature were made was not joined as a respondent. The Tribunal rejected the application for dismissal of the petition and held that it was established on the evidence that Mohan Singh and his agents did commit, amongst others, the corrupt practice defined in section 123(4) of the Act by publishing the leaflets, annexures 'D '& 'E ', containing statements which were false, to the knowledge and belief of Mohan Singh, and made with the knowledge that they would reasonably prejudice the election chances of Bhanwarlal. In coming to that conclusion the Tribunal primarily relied upon the testimony of one Rameshchandra, a compositor in the Maheshwari Printing Press, Mandsaur, and upon certain corroborative circumstances. In appeal by Mohan Singh against the order, the High Court of Madhya Pradesh on a review of the evidence agreed with the Tribunal that Mohan Singh was instrumental in getting printed leaflets annexures 'D ' & 'E ' and the leaflets were distributed in certain villages in the constituency by Mohan Singh and his agents Satyanarayan and Kailash. 16 In this appeal with special leave it was urged that the election petition filed by Bhanwarlal was liable to be dismissed in limine, as it did not comply with the requirements of section 82 of the Representation of the People Act. On the merits it was urged that Mohan Singh did not publish the leaflets annexures 'D ' & 'E ' and that in any event the publication did not constitute a corrupt practice within the meaning of section 123 (4) of the Act. Whether for alleged non compliance with the requirements of section ,82 of the Act, the petition by Bhanwarlal was not maintainable must first be determined, for if the petition did not comply with the mandatory provisions of the statute, irrespective of whether a corrupt practice was committed by Mohan Singh, the petition must stand dismissed without further investigation. In paragraph 11(b) of the petition it was averred that on January 20, 1962, Mohan Singh, "offered at Nahargarh to Shri Himmat Singh an independent candidate to help him in procuring a job for him in Dalauda Sugar Factory or elsewhere to withdraw his candidature from the election. That as a consequence of this offer of illegal gratification Himmat Singh withdrew his candidature from the Sitamau Assembly constituency. " The language used is somewhat ungrammatical, but the purport is clear that Mohan Singh with a view to persuade Himmat Singh to withdraw from the election offered to help him to secure employment with the Dalauda Sugar Factory, or with some other employer, and in consequence of this offer which amounted to illegal gratification Himmat Singh had withdrawn himself from being candidate at the election for the Sitamau constituency. Section 123 (1) defines the corrupt practice of "bribery" and by el. (B) receipt of, or agreement to receive, any gratification, whether as a motive or a reward (a) by a person for standing or not standing as, or for withdrawing from being, a candidate; or 17 (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw his. candidature, constitutes the corrupt practice of bribery by a person other than the candidate. It is submitted that by para 11 (b) it was averted that Himmat Singh who had filed his nomination paper had agreed to receive gratification, as a motive or a reward for withdrawing from being a candidate, and that it was necessary in view of section 82 of the Act to implied Himmat Singh as ?. party to the petition, and failure to implied him would involve dismissal of the petition. To appreciate the argument it is necessary to refer to certain relevant provisions of the Act. By section 80 no election is liable to be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. Section 81 prescribes the g. rounds on which, the persons by whom and the period during which an election petition may be presented, and also the procedure for presentation of the petition. By section 82 it is enacted that all contesting candidates shall be joined as party respondents where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, and where no such further declaration is claimed, all the returned candidates shall be joined. Again where allegations of corrupt practice are made against another candidate, such other candidate shall be joined as a respondent. Section 79 which is the interpretation section in respect of Parts VI, VII and VIII (and section 82 occurs in Part VI) defines the expression "candidate" as meaning a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate. If the provisions, among others, 1/SCI/64 2 18 of sections 81 or 82 have not been complied with, the Election Commissioner must dismiss the petition (section 85), and if the Commission does not so order the Tribunal is enjoined by section 90(3) to dismiss the petition which does not comply with the provisions of sections 81 or 82. Himmat Singh had filed his nomination paper, and on that account by virtue of the definition of section 79 he was a candidate for the purposes of Parts VI, VII & VIII, and did not cease to be a candidate merely because he withdrew his candidature. If therefore the petition contained any imputation of corrupt practice made against Himmat Singh, it could not be regarded as properly constituted unless he was impleaded as a respondent, for, by the definition of "candidate" in section 79(b), the expression "any other candidate" in s, 82(b) must include a candidate who had withdrawn his candidature. But in our judgment in para 11 (b) there is no allegation of corrupt practice against Himmat Singh. What is alleged is that Mohan Singh had offered to help Himmat Singh "in procuring a job in Dalauda Sugar Factory or elsewhere" and that as a consequence of that offer Himmat Singh had withdrawn his candidature from the election. There is no express averment in the petition about the acceptance of the offer by Himmat Singh, but it would border upon supererogation to insist that even if offer to help to procure a job amounted to offer of gratification, an allegation that in consequence of this offer Himmat Singh had withdrawn his candidature from the election did not amount to a plea of acceptance of that offer unless it was so expressly averred. However in our view a mere offer of help to secure employment without more is not offer of gratification within the meaning of section 123 (1) (B) of the Act. The expression "gratification" is not defined in the Act but the Explanation to sub section (1) of section 123 furnishes an indication as to what in the view of the Parliament amounts to gratification. The Explanation states: "For the purposes of this clause the term 'gratification ' is not restricted to pecuniary graft 19 fications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bonafide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78. " The Explanation extends the expression "gratification" to include all forms of entertainment and all forms of employment for reward but not payment of bona fide expenditure incurred at or for the purpose of election if duly entered in the account of election expenses. Gratification in its ordinary connotation means satisfaction. In the context in which the expression is used and its delimitation by the Explanation, it must mean something valuable which is calculated to satisfy a person 's aim, object or desire, whether or not that thing is estimable in terms of money; but a mere offer to help in securing employment to a person with a named or unnamed employer would not amount to such gratification. There is no plea that Mohan Singh had offered employment to Himmat Singh with the Dalauda Sugar Factory or with another employer; it was merely alleged that Mohan Singh had offered to assist or help Himmat Singh in obtaining employment with the "Dalauda Sugar Factory or else where". The acceptance of offer which constitutes a motive or reward for withdrawing from the candidature must be acceptance of gratification; and if gratification does not include all offers and acceptances of mere promises, but requires, to constitute it, an offer and acceptance relating to a thing of some value, though not necessarily estimable in terms of money, a mere offer to help in getting employment is not such offer of gratification within the meaning of section 123(1)(B) as to constitute it a corrupt practice. It was in the circumstances not necessary on the allegations made in para 11(b) of the petition to implead Himmat Singh as a respondent to the petition. We therefore agree 20 with the High Court, though for different reasons, that the petition filed by Bhanwarlal was not defective. Counsel for Mohan Singh challenged the finding of the High Court that Mohan Singh was instrumental in publishing the leaflets annexures 'D ' & 'E '. He urged that in the trial of an election petition approach to the evidence must be as in a criminal trial and no fact may be held proved unless it is established beyond reasonable doubt. The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit: the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous. But the testimony of Rameshchandra corroborated by the circumstances set out in detail in the judgments of the Tribunal and the High Court was accepted and the testimony of witnesses for Mohan Singh who claimed that other persons without his consent or connivance were responsible for getting the leaflets printed was disbelieved. The evidence about the distribution of the leaflets in question by the appellant and his agents was also accepted by the Tribunal and the High Court. It was also found that these leaflets were distributed simultaneously. In recording their conclusions the Tribunal and the High Court did not proceed on mere grounds of probability. The findings recorded by the Tribunal and the High Court are therefore concurrent findings of fact rounded on appreciation of oral evidence and no ground is made out for departing from the settled practice of the Court against interference with those concurrent findings of fact. The next question to be considered is whether the publication of the leaflets amounts to commission of a corrupt practice within the terms of section 123 (4) of the Representation of the People Act, 1951. Section 123 sets out what the diverse corrupt practices recognised by the Act are. Clause (4) defines a corrupt practice by publication of false statements calculated 21 to prejudice the prospects of a candidate 's election. To bring a corrupt practice within the purview of el. (4) there must be a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent: the publication must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true, the statement must be in relation to the personal character or conduct of the candidate; and it must be reasonably calculated to prejudice the prospects of the candidates election. The expression "statement of fact" in section 123 (4) includes not only an express imputation but also an innuendo if one such may reasonably be raised from the language in which it is couched and the manner of its publication Annexure 'D ' is in Hindi. The caption of that leaflet is "The surety (security) of Shri Nahata has to be forfeited because he has defrauded the public and has shown his face after five years to take votes. " Counsel for Mohan Singh submitted that the expression "defrauded" is not a correct rendering into English of the Hindi expression "dhoka diya"; it means "misled". The caption is followed by a photograph of Mohan Singh together with his election symbol and it is stated that the ballot paper of Mohan Singh is of pink colour and that the election symbol is the picture of a tamp It then proceeds to state that "Sitamau constituency has awakened. Nahata (Bhanwarlal) has run away. Shinde, Kishen Gupta Patil Patel, you may safeguard the interests of your Bhanwarlal Nahata as much as you like but his surety (security) is sure to be forfeited. " Then follow nine paragraphs the third of which alone is material. That para graph reads: "We have heard that your friend has collected 28 thousand rupees from several villages in the name of opium. The agriculturists did not get the licenses and those agriculturists who got them had to spend a lot of money and time and the licenses for opium were received on execution of bonds for 8 seers. " 22 The leaflet concludes by a note which reads: "Every voter will get ' two ballot papers one is of pink colour for Legislative Assembly for Thakur Mohan Singh . Put the seal on the symbols of lamp on both the ballots pink and white. You read this pamphlet and give it to your friends to spread the message from house to house. Submitted by Nahata Virodhi Morcha Sitamau Constituency. " Annexure 'E ' bears the caption: "The Bureaucrats of yesterday Congressmen of to day". It consists of two parts the first relates to certain allegations against one Dr. Raghubir Singh who it appears was a candidate from the constituency for Parliament and the second relates to Bhanwarlal. The portion dealing with Bhanwarlal Nahata states: "Let Sriman Shri 1008 of Shri Nahata tell? (1) Did you not defraud the agriculturists with respect to the licences of opium ? (the other six questions are not relevant, and need not be reproduced) Public has already decided and now it is not going to fall prey to your fraud and greed. On all sides "the public has decided to put seal on lamp and make it victorious. Therefore the congressmen should not be misled while making propaganda. Submitted by Goswami Mahant Ratnagir. " It is said that the last paragraph is not correctly rendered into English: it merely stated, it is urged, that the public have already known the truth and they are not going to fall a prey to the misleading promises and inducements etc. No authorised translation of the two leaflets is furnished, but we will proceed to ascertain the purport of the relevant parts of the two leaflets as incorporated in the printed book, with the modifications suggested by counsel for Mohan Singh. Paragraph 3 of annexure 'D ' as it stands rendered into English is not very clear in its import. To a person completely unacquainted with the local conditions the expression "in the name of opium" may convey no meaning. But in considering whether a 23 publication amounts to a corrupt practice within the meaning of section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate 's election. The test in cases under section 123(4) is whether the imputation beside being false in fact, is it published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election? And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them. It is common ground that in the territory which forms the Sitamau constituency, licences for cultivation of opium are granted by the authorities to agriculturists, and the statement made in paragraph 3 apparently is that Bhanwarlal had collected Rs. 28,000 from the agriculturists in the constituency for securing licences for cultivation of opium but the agriculturists did not get the licences and even those who obtained the licences had to spend considerable sums of money. The innuendo in the statement cannot be mistaken: it is that a large amount of money was collected from agriculturists by Bhanwarlal on the 'representation that he would obtain licences for opium cultivation, but he did nothing in that behalf and misappropriated the amount. That is further made clear by paragraph 1 in annexure 'E ' relating to Bhanwarlal. The form in which that allegation is made is in the interrogative form. By annexure 'E ' certain questions were addressed to Bhanwarlal and one of the questions was whether he had not defrauded the agriculturists with respect to the licences of opium? The interrogative form is often employed not with a view to secure information but to make and emphasize an assertion. The use of the interrogative form would not make the statement any the less an imputation if it is fairly capable of being 24 so read. As we have already observed the evidence establishes that the leaflets annexures 'D ' & 'E ' were published simultaneously and annexure 'D ' contains an allegation about the collection of Rs. 28,000 by Bhanwarlal Nahata "in the name of opium", and in annexure 'E ' an express imputation of defrauding the agriculturists in the matter of licences for opium cultivation is made. On a reasonable reading of these two leaflets there was no doubt that the person responsible for the publication of these two leaflets intended to convey that Bhanwarlal had deceived the agriculturists into parting with the sum of Rs. 28,000 on the representation that licences for cultivation of opium would be obtained for them. The two leaflets also clearly imply that he misappropriated the fund collected by him. Bhanwarlal denied that he had utilised any fund collected from the agriculturists for his own purposes. He stated that some amounts of money were collected from cultivators of opium by the District Congress Committee, and receipts were given by the District Congress Committee in respect of those collections on behalf of the District Congress Committee. He denied that he had misled the agriculturists or that he had misappropriated any amount collected from the agriculturists. He asserted that the amounts collected from the agriculturists were for the District Congress Committee, and did in fact go to that body. The imputation is undoubtedly in relation to the personal conduct of Bhanwarlal, and if the testimony of Bhanwarlal be accepted, the imputation must be held to be false. No attempt was made at the trial to prove the truth of the imputations. Even in the written statement filed by Mohan Singh it was not his plea that the imputations against Bhanwarlal were true or that he believed them to be true. From the manner in which and the time when the leaflets annexures 'D ' and 'E ' were published, there can be no doubt that those leaflets were published as a part of a political campaign to injure the prospects of Bhanwarlal at the election, and if without making an 25 enquiry about the collection of the amount of Rs. 28,000 and the destination therefore, it was imputed against Bhanwarlal that he had defrauded the agriculturists and misappropriated the amount collected, the inference that the statement made was to the knowledge of the maker false or was not believed by him to be true, would readily be made. The imputation was on the face of it one reasonably calculated to prejudice the prospects of the candidate Bhanwarlal at the election. The High Court was therefore right in holding that the corrupt practice charged against the appellant Mohan Singh under section 123 (4) was established. The appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant was declared elected to the Madhya Pradesh Legislative Assembly. Another candidate Himmat Singh withdrew his candidature before the date of polling. Respondent 1 one of the defeated candidates, challenged the election by a petition under the Representation of the People Act alleging that the appellant had disqualified himself by committing corrupt practices. It was alleged that he had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard to the personal character or conduct of respondent 1 which were false and which the appellant believed to be false or did not believe to be true and that the statements were calculated to prejudice the prospects of respondent 1 at the election. The appellant denied 13 the said allegations and applied to the Election Tribunal for dismissing the petition in limine because Himmat Singh against whom allegations of corrupt practice in regard to the withdrawal of candidature were made, was not joined as a respondent. The Tribunal rejected the application and held that it was established on the evidence that the appellant did commit corrupt practice by publishing the two leaflets. In appeal the High Court agreed with the Tribunal. It was urged on behalf of the appellant that the election petition was liable to be dismissed in limine, as it did not comply with the requirements of s.82 of the Act, that the appellant did not publish the leaflets, and that in any event the publication did not constitute a corrupt practice within the meaning section 123(4) of the Act. Held: (i) The election petition was not detective. There was no allegation of corrupt practice against Himmat Singh. It was merely alleged that the appellant had offered to assist or help Himmat Singh in obtaining employment with "Dalauda Sugar Factory or elsewhere". The acceptance of offer which constitutes a motive or reward for withdrawing from the candidature must be acceptance of gratification. Gratification does not include offers and acceptances of mere promises, but requires ,an offer and acceptance relating to a thing of some value, though not necessarily estimable in terms of money. A mere offer to help in getting employment is not such offer of gratification within the meaning of section 123(1)(B) as to constitute it a corrupt practice. On the allegations therefore, it was not necessary to implead Himmat Singh as a respondent to the petition. (ii) The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous. (iii) In considering whether a publication amounts to a corrupt practice within the meaning of section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate 's election. The test in cases under section 123(4) is whether the imputation, besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. In ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them.

ivil Appeal No. 593 of 1963. Appeal by special leave from the judgment and order dated December 19, 1962, of the Madras High Court in Writ Appeal No. 157 of 1961. M.C. Setalvad, and R. Gopalakrishnan, for the appellant. G.S. Pathak, O.C. Mathur, J.B. Dadachanji and Ravinder Narain, for respondent No. 1. Ranganadham Chetty and A.V. Rangant, respondents Nos. 2 and 3. The Judgment of P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, Ragubar Dayal JJ. was delivered by Gajendragadkar J. Subba Rao J. delivered a dissenting opinion. GAJENDRAGADKAR J. The short question which this appeal raises for our decision relates to the limits of the jurisdiction of the High Court in issuing a writ of certiorari while dealing with. orders passed by the appropriate authorities granting or refusing to grant permits under the provisions of the (hereinafter called 'the Act '). 67 The State Transport Authority, Madras, (hereinafter referred to as Authority)issued a notification on the 4th July, 1956, under section 57(2) of the Act calling for applications for the grant of two stage carriage permits to run as an express service on the route Madras to Chidambaram. 107 applications were received in response to the said notification; some of these were rejected as time barred or otherwise defective, and the others which were in order were examined by the Authority. On the 8th May, 1957, the Authority found that Provincial Transport (Private) Ltd., Madras, was the most suitable amongst the applicants and granted one permit to it. As regards the second permit, the Authority held that none of the other applicants was suitable, and so, it refused to grant the said permit to anyone of them:it decided to call for applications afresh under section 57(2) of the Act. Against this order, appeals were preferred by 18 claimants for permits before the State Transport Appellate Tribunal (hereinafter called "the Appellate Tribunal); amongst them was the appellant Syed Yakoob and respondent No. 1 K.S. Radhakrishnan. The Appellate Tribunal confirmed the grant of the first permit to the Provincial Transport (Pvt.) Ltd: and so Car as the second permit was concerned, it allowed the appeal preferred by the appellant and directed that the said second permit should be issued to him; respondent No. 1 's claim for the said permit was accordingly rejected. This order was passed on the 7th July, 1958. The validity of this order was challenged by respondent No. 1 by his writ petition No. 44 of 1959 11led in the High Court of Madras. Srinivasan J., who heard the writ petition held that th e Tribunal had overlooked material considerations in deciding the question of the grant of the second permit and allowed considerations not germane to the question to vitiate its order. That is why the rule issued on the writ petition filed by respondent No. 1 was made absolute. 68 This order was challenged by the appellant before a Division Bench of the said High Court by an appeal preferred under Clause 15 of the Letters Patent. The Division Bench has held that the order passed by Srinivasan J. could be sustained on the ground that the Appellate Tribunal had overlooked material considerations in favour of respondent No. 1, and so, 'it has affirmed the decision of the learned single Judge on that ground alone. In regard to the finding of the learned single Judge that an. irrelevant consideration had vitiated the finding of the Appellate Tribunal, the Division Bench held that the consideration in question was not irrelevant, and so, it differed from the view taken by Srinivasan J. In the result, the appeal preferred by the appellant before the Division Bench was dismissed. It is against this order that the appellant has come to this Court by special leave and to his appeal he has impleaded respondent No. 1 and has added the Authority and the Appellate Tribunal as respondents 2 and 3 Mr. Setalvad for the appellant contends that in issuing a writ of certiorari in respect of the impugned order passed by the Appellate. Tribunal, the High Court has clearly exceeded its jurisdiction under article 226 of the Constitution. In our opinion. this contention is well founded and must be accepted. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the 69 dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was ' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath vs Syed Ahmed Ishaque(1), Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam(2), and Kaushalya Devi vs Bachittar Singh(3). It is, of course, not easy to define or adequately describe what an error of law apparent on the face of (1) ; (2) ; (3) A.I.R. 1960 S.C. 1168. 70 the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened. In the present case, the question raised by the appellant presents no difficulty whatever. The point which was raised before the High Court by respondent 71 No. 1 lies within a very narrow compass; it is a very short and simple question of fact. It appears that in dealing with the rival claims of the appellant and respondent No. 1 for the second permit on the route in question, the Appellate Tribunal was ultimately influenced by the fact that the appellant had a workshop at Madras which is one terminus of the route in question, whereas respondent No. 1 had a workshop and a place of business only at Cuddalore which is an intermediate station on the route and did not possess a workshop at either of the terminii of the route; the other terminus being Chidambaram. In fact, that appears to be the effect of the finding made by the Authority also. Respondent No. 1 urged before the High Court that in coming to the conclusion that he had no workshop at Chidambaram, the Appellate Tribunal had failed to consider material evidence adduced by him. It is on this narrow ground that a writ has been issued in favour of respondent No. 1. Mr. Setalvad contends that the question as to whether respondent No. 1 had a workshop at Chidambaram is a pure question of fact and the High Court had no jurisdiction to interfere with the finding recorded by the Appellate Tribunal and seek to correct it by issuing a writ of certiorari. In this connection, he relies on the fact that both the Authority and the Appellate Tribunal have, in substance, found that respondent No. 1 had no workshop at either of the two terminii on the route and the fact that no reasons have been given in support of the said finding would not justify the interference of the High Court in its jurisdiction under article 226. It may be conceded that it would have been better if the Appellate Tribunal had indicated why it rejected the case of respondent No. 1 in regard to his alleged workshop at Chadambaram, but we do not think that the failure of the Appellate Tribunal to give a reason in that behalf, or to refer specifically to the evidence adduced by respondent No.1, would, by itself, constitute such an error in its decision as to justify the issue of a writ of certiorari under article 226. In this connection, we ought to add that it has not been suggested by 72 respondent No. 1 that in dealing with his claim for a permit, admissible evidence which he wanted to adduce had been excluded by the Tribunal from the record;the argument that some evidence was not duly considered by the Tribunal, would normally pertain to the realm of the appreciation of evidence and would, as such, be outside the purview of an enquiry in proceedings for a writ of certiorari under article 226. It appears that when respondent No. 1 applied for the permit, he sent a letter dated 11th July, 1956, in which he had stated that he had a workshop at Chidambaram and that he was running it in order to maintain the service efficiently and without any breakdown whatsoever. The argument is that this letter has not been challenged by any party to the proceedings and has been completely ignored by the Authority and the Appellate Tribunal when they reached the conclusion that respondent No. 1 did not possess a workshop at Chidambaram. As we have already pointed out, neither the Authority nor the Appellate Tribunal has given reasons in support of the findings of fact recorded by it; but the said fact alone does not, in our opinion, justify the conclusion of the High Court that the letter in question had not been considered by the said Authorities, and so, the High Court was not right in issuing a writ of certiorari on that basis alone. But apart from this aspect of the matter, the record shows that the assertion of respondent No. 1 that he had a workshop at Chidambaram was contradicted by one of the claimants for a permit and is entirely inconsistent with the reports submitted to the Authority and the Appellate Tribunal by the department. D. Kanniah Pillai, one of the applicants for the permit, had specifically averred in his application that the other applicants amongst whom respondent No. 1 was included, were all for away from the Headquarters having no workshop at Chidambaram. Thus, it would not be right to assume that the claim made by respondent No. 1 that he had a workshop at Chidambaram was not disputed by any other competitor. 73 What is more significant, however, is the evidence supplied by the report made by the Regional Transport Officer, South Arcot. This report is made under different columns. Column 4 speaks about the possession of workshop or repair or maintenance facilities and its location. The report is made in respect of each one of the applicants. In regard to respondent No. 1 under column 4, the report shows that he was maintaining a workshop as per Government Order at Cuddalore, and column 5 speaks about the location of his residence or place of business as Cuddalore. A similar report has been submitted about the appellant and that shows that the appellant had workshop facilities at Madras and that he had a residence and place of business at the terminus. When the present dispute went before the Appellate Tribunal, a fresh report appears to have been called for, and this report which has been made by the Secretary, State Transport Authority, also shows that respondent No. 1 had a workshop at Cuddalore on the route, whereas the appellant had a workshop at Madras. It would thus be clear that on the question as to whether respondent No. 1 had a workshop at Chidambaram, there was his own assertion stating that he had such a workshop. and there were the two reports made by the Transport Officers which contradicted the said assertion; the said assertion was also challenged by one of the applicants. " On this state of the record, it was, we think, not permissible to the High Court to consider these questions of fact and to hold that the finding recorded by the Appellate Tribunal was a finding without any evidence. To say that material considerations were ignored by the Appellate Tribunal in holding that respondent No. 1 did not own a workshop a.t Chidambaram would be plainly unreasonable when it is remembered that the evidence disclosed a sharp conflict between the versions of the parties, and the version of respondent No. 1 was inconsistent with the reports made by the Transport Officers which must have been treated as more reliable by the Appellate Tribunal. There 74 can be little doubt that if respondent No. 1 had owned a workshop at Chidambaram, it would have been mentioned in col. 4, because the said column is obviously intended to indicate all places where the claimant owns a workshop and possesses repair facilities. It appears that before Srinivasan J. the appellant 's learned counsel conceded that the allegation made by respondent No. 1 that he owned a workshop at Chidambaram had not been challenged before the Transport Authorities, and naturally Srinivasan J. was considerably impressed by the said concession; but as the Division Bench which heard the Letters Patent Appeal has pointed out, the said concession was not correctly made; in fact, the record distinctly shows that the claim made by respondent No. 1 was challenged by one of the applicants for permit and was plainly inconsistent with the reports to which we have just referred. Therefore, the concession on which Srinivasan J., relied has been properly left out of account by the Division Bench in dealing with the appeal. The Division Bench thought that apart from the said concession, it did appear that the Appellate Tribunal had overlooked the claim made by respondent No. 1 in his letter of the 11 th July, 1956. As we have already indicated, we find it difficult to sustain this finding. In our opinion, apart from the fact that the plea raised by respondent No. 1 could not be validly raised under article 226, even on the merits the said plea is not well founded. The question on which respondent No. 1 sought for the intervention of the High Court under article 226 was a simple question of fact, and we are satisfied that on that question of fact, the Appellate Tribunal was justified in coming to the conclusion that the claim made by respondent No. 1 about the existence of a workshop at Chidambaram was not well founded; but even if the said finding did not appear to the High Court to be satisfactory, that would be no reason for issuing a writ under article 226. There was evidence in support of the finding of the Appellate Tribunal and it is not a 75 case where the finding is based on no evidence at all. We ought also to add that though the Division Bench was satisfied that the concession on which Srinivasan J., substantially acted had been wrongly made before him, its attention does not appear to have been drawn to the reports made by the Transport Officers to which we have just referred. We have no doubt that if the Division Bench had taken into account those reports, it would have hesitated to confirm the finding made by Srinivasan J. It appears that Srinivasan J., was inclined to take the view that the decision of the Appellate Tribunal was vitiated by the fact that it took into account certain irrelevant considerations. The Division Bench has held that the said considerations cannot be said to be irrelevant. These considerations centre round the question as to whether preference should be given to an applicant for permit who has his headquarters at the terminus as against another who has only a branch office at the said terminus. The practice usually followed by the Tribunals under the Act appears to be to give one mark under col. 3 to the applicant who has his headquarters at the terminus and give only 1/2 mark to an applicant who has only a branch office at the terminus. Having held that the consideration on which marks are thus allotted cannot be said to be irrelevant, the Division Bench has indicated that the policy underlying the said practice may be open to doubt. In our opinion, it would have been better if the Division Bench had not expressed any opinion on this aspect of the matter, particularly when it came to the conclusion that the said matter was primarily for the decision of the Appellate Tribunal. Mr. Pathak for respondent No. 1 has relied on a recent decision of this Court in K.M. Shanmugam vs The S.R.V.S. (P) Ltd.(1) in support of his contention that the error committed by the Appellate Tribunal really amounted to a contravention of section 47 of the Act. He argues that the Appellate Tribunal was (1) ; 76 under an obligation, in considering the question about the grant of a permit, to take into account the interests of public generally under section 47(a) and inasmuch as the Appellate Tribunal has ignored the fact that 'respondent No. 1 owns a workshop at Chidambaram and thereby has refused his application for a permit, the interests of the,public generally have been sacrificed. This argument prima facie appears to be far fetched and fanciful; but Mr. Pathak urges that the observations made by this Court in the case of K.M. Shanmugum are in his favour. In our opinion, the said decision does not lend any assistance to Mr. Pathak 's contention. In that case, this Court was satisfied that "the Tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a branch at Kumbakonam, its other branch at Manmargudi should be ignored. " The judgment shows that this Court took the view that it was obviously an untenable proposition to hold that even if a company has a well equipped office on a route in respect of which a permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route, and it was observed that was precisely what the Appellate Tribunal had held and that, according to the Court, clearly was an error apparent on the face of the record. It is in that connection that this Court referred to the mandatory provisions of section 47. We do not think that this decision can be legitimately pressed into service by Mr. Pathak in the present case. It is only after it is proved that respondent No. 1 had a workshop at Chidambaram that any subsequent question about the interests of the public generally can possibly arise. If, as in the present case, the Appellate Tribunal has held that respondent No. 1 did not own a workshop at Chidambaram, no consideration of public interests can arise at all, and it is with this question that the present writ proceedings are concerned. We ought to add that the decision in the case of K.M. Shanmugam cannot justify a party whose application for permit has been rejected by the authorities under the Act, to move the High 77 Court under article 226 and invite it to consider all questions of fact on the plea that the decision on the said questions of fact may assist him to invoke the provisions of section 47. That clearly is not the effect of the said decision. Mr. Pathak has also urged that even if we come to the conclusion that the High Court was not competent to issue a writ in the present proceedings, having regard to the nature of the questions raised before it by respondent No. 1, we should not reverse the decision of the High Court under article 136 of the Constitution. The jurisdiction of this Court under article 136, though very wide, is exercised by the Court in its discretion, says Mr. Pathak, and he contends that where the order under appeal furthers the ends of justice, we should not reverse the said order on technical grounds. We are not impressed by this plea. It may be conceded that in a proper case this Court may refuse to exercise its jurisdiction under article 136 where the interests of justice patently indicate the desirability of adopting such a course; but we do not see how a plea of such a kind can be entertained where it is clearly shown that the impugned orders passed by the High. Court are without jurisdiction. If Mr. Pathak 's argument were to be accepted, in a majority of cases if the High Court interfered with questions of fact in issuing writs of certiorari against the decisions of special Tribunals, it may always be urged that what the High Courts have done is in the interests of justice and this Court should not interfere with the decisions of the High Courts. In the circumstances of the present case, we do not see how considerations of justice can really arise. The Tribunals of fact have found that respondent No. 1 does not own a workshop at Chidambaram and having regard to the other relevant circumstances which the Tribunals have considered, the fact that he does not own a workshop at Chidambaram has ultimately proved decisive against respondent No. 1 and in favour of the appellant. If that be so, a decision based on facts found by the 78 Tribunal cannot be reopened on the plausible plea that a further enquiry should be made because that would be just. If findings of fact were allowed to be disturbed by High Courts in such writ proceedings, that may lead to an interminable search for correct findings and would virtually convert the High Courts into Appellate Courts competent to deal with questions of fact. That is why we think, in entertaining petitions for writs of certiorari, it is necessary to remember that findings of fact recorded by special Tribunals which have been clothed with jurisdiction to deal with them, should be treated as final between the parties, unless, of course, it is shown that the impugned finding is based on no evidence. Therefore, we do not think the plea made by Mr. Pathak that in the interests of justice we should refrain from setting aside the order under appeal, can be upheld. There is one more point to which reference must be made. It appears that in the writ petition filed by respondent No. 1 he claimed that the orders passed by the Authority and the Appellate Tribunal should be set aside, and a rule was issued in terms of the prayer made in the said petition. Ultimately, the said rule has been made absolute. It is obvious that in the writ petition, respondent No. 1 did not challenge the grant of the permit to the ' Provincial Transport (Pvt.) Ltd., but unfortunately, having regard to the prayer made by respondent No. 1 in his writ petition, the orders ultimately passed in the said proceedings ,may, if technically construed, mean that the orders of the Authority as well as the Appellate Tribunal have been set aside and that clearly was not and could not have been the intention of the High Court in issuing the writ. It would, we think, be better if in issuing a writ on a writ petition and in making it absolute in case the writ petition succeeds, care is taken to draw the order more accurately. The result is, the appeal is allowed, the order passed by the High Court is set aside and the writ 79 petition filed by respondent No. 1 is dismissed; Respondent 1 to pay the cost of the appellant in this Court. Mr. Ranganathan Cherry who appears for respondents 2 and 3 has asked for his costs. We do not think this request can be accepted. It may be that in such proceedings, the Authority and the Appellate Tribunal are proper and necessary parties, but unless allegations are made against them which need a reply from them, it is not usual for the authorities to be represented by lawyers in Court. In ordinary cases, their position is like that of courts or other Tribunals against whose decisions writ proceedings are filed; they are not interested in the merits of the dispute in any sense, and so, their representation by lawyers in such proceedings is wholly unnecessary and even inappropriate. That is why we direct that respondents 2 and 3 should bear their own costs. SUBBA RAO J. I have had the advantage of perusing the judgment of my learned brother, Gajendragadkar J. I cannot agree. The facts lie in a small compass and they are as follows:The State Transport Authority, Madras, called for applications for the grant of two stage carriage permits on the route Madras to Chidambaram. 107 applications were received by the said Authority. The appellant and the first respondent are two of the said applicants. The State Transport Authority gave one of the permits to the Provincial Transport (Private) Limited, Madras: we are not concerned with this permit. As regards the second permit, the said Authority found none of the applicants suitable and, therefore, refused to grant the same to any one of them and directed fresh applications to be called for. Against the said order, the appellant, first respondent and others preferred appeals to the State Transport Appellate Tribunal. The appellant herein was respondent 16 and respondent herein was appellant 7 before the said Appellate Tribunal. The first respondent secured the highest total marks, viz., 71/2 , under columns 1 to 5 under the scheme of marking sanctioned by the State Government. The appellant got only 41/2 marks. Ignoring the highest total of 80 marks secured by the first respondent, the Appellate Tribunal rejected his claim on the ground that he had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route. Excluding the first respondent, the Appellate Tribunal, for the reasons mentioned in the order, preferred the appellant in a competition between him and appellant 14 before the Tribunal. The main ground of preference was that the appellant had got his workshop in the headquarters at Madras. In file result, the Appellate Tribunal rejected the application of the first respondent and gave the permit to the appellant. The first respondent filed a writ petition under article 226 of the Constitution in the High Court Judicature at Madras for the issue of a writ of certiorari for quashing the order of the said Tribunal. The said petition was heard by Srinivasan J., and he quashed the order of the Appellate Tribunal mainly on the ground that the Tribunal did not take into consideration a material and relevant circumstance to the enquiry before it, namely, that the petitioner had the necessary repair and maintenance facilities at Chidambaram, one of the terminii of the route in question. In that view the learned Judge quashed the order of the Appellate Tribunal. On Letters Patent Appeal, a Division Bench of the High Court, consisting of Ramachandra Iyer C.J., and Venkataraman J., held that the learned Judge should not have given a finding on the question whether the first respondent had the above said facilities at Chidambaram, but agreed with him that the Appellate Tribunal had overlooked the claim made by the first respondent to the effect that he had such facilities at Chidambaram. Hence the appeal. Mr. Setalvad, learned counsel appearing for the appellant, contended that the Appellate Tribunal had held on the material placed before it that the, first respondent had no such facilities at the terminal and that, therefore, the High Court had n0 jurisdiction to interfere with the finding of fact arrived at by the Appellate Tribunal. 81 Mr. Pathak, learned counsel for the first respondent, argued that though the first respondent clearly stated in his letter dated July 11, 1956, to the Transport Authority that he had such facilities, the State Transport Authority as well as the State Transport Appellate Tribunal had ignored that material circumstance which was germane to the question of public interest under section 47 of the , and, therefore, the High Court had rightly quashed that order under article 226 of the Constitution and directed the Tribunal to dispose of the appeal on merits. Alternatively he contended that though there might be some material for the Appellate Tribunal to come to the conclusion that the first respondent had no such facilities, three learned Judges of the High Court, on the admissions made and the material placed before them, have held that the Tribunal did not decide that question and that they only gave a further opportunity to the Appellate Tribunal to decide the appeal on merits and that in the circumstances it is not a fit case for this Court to interfere under article 136 of the Constitution. The first respondent has a fundamental right to carry on business in transport. The is a law imposing reasonable restrictions in public interests on such right. Under section 47 of the said Act the Regional Transport Authority shall in considering an application for a stage carriage permit, have regard, inter alia, to the interests of the public generally. The fact that the first respondent has a separate workshop or at any rate has the necessary repair and maintenance facilities at one of the terminii of the route, viz., at Chidambaram, is certainly a consideration germane to the question of public interest. Indeed, the scheme of marking system suggested by the Government also recognizes the importance of such facilities at either of the terminii of the route. If the first respondent had placed before the authorities concerned the said circumstance in support of his claim for a permit and if that was ignored or not investigated into by the said authorities, the High Court would certainly 1 SCI/64 5 82 have jurisdiction under article 226 of the Constitution to quash the order of the authorities and direct them to ascertain whether the claim of the first respondent was true, and if it was true, to take that into consideration before issuing the permit to one or other of the claimants before them. In such an event the High Court would not be interfering with the finding fact arrived at by the Appellate Tribunal based on the material placed before it, but would only be quashing the order on the ground that an important and material circumstance was ignored or not investigated into by the Tribunal. If a Tribunal ignores or fails to investigate a material circumstance put forward by a claimant and gives a finding against him, the said finding can certainly be said to be vitiated by an error of law apparent on the face of the record. In the present case, the State Transport Authority was considering the competing claims of 107. persons for two permits. The said Authority gave its decision on May 8, 1957. The first respondent filed his application for a permit on July 11, 1956. On the same day he addressed a letter to the said Authority to the following effect: "Chidambaram is one of the terminii of this proposed route. A separate office and workshop are located at Chidambaram in order to maintain the service efficiently and without any breakdown or whatsoever. " None of the innumerable applicants in his application denied specifically the c|aim of the first respondent that he had a separate office and workshop at Chidambaram. This fact was conceded before Srinivasan J., though the learned judge put the concession somewhat higher than was actually made. Nor did the learned counsel for the appellant go back on the limited concession before the Division Bench. But one Kanniah Pillai, who was applicant No. 43 D), stated in his application thus: "The applicant Nos. 43, 57, 69, 78 and 81 are residents of Chidambaram but No. 57 is a fleet 83 owner. 69 and 78 have no workshop. No. 81 is a new entrant. The rest all are far away from the headquarters having no workshop at Chidambaram. " Except this vague and implied denial by Kanniah Pillai, there is nothing on the record to suggest that any other applicant denied the claim of the first respondent. The fact remains that the appellant did not at any stage of the proceedings refute the claim of the first respondent. With this background let me first look at the order of the State Transport Authority,. The said Authority has ignored the said letter of the first respondent claiming to have a workshop at Chidambaram, but it stated in an omnibus clause that the first respondent and some of the other applicants were residents either in the middle or off the route and they were not so well situated as an applicant who had facilities at one end of the route with all the necessary facilities. It may be stated that this is an implied finding against the first respondent, but the complaint of the first respondent is that it is made in utter disregard of his claim. So too, the Appellate Tribunal observed in its order disposing of the 18 appeals before it that the first respondent, who had secured the highest number of marks, including those column 1 of the mark list, 'had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route. This observation was also made in utter disregard of the claim made by the first respondent that he had a workshop Chidambaram, one of the terminii of the route, and though the other applicants, except one, had not denied the said fact. The High Court, therefore, found on the material placed before it that the said Authority as well as the Tribunal had failed to consider the specific claim made by the. first respondent in regard to his work.shop at Chidambaram and, therefore, rightly set aside the order of the Appellate Tribunal so that the Appellate Tribunal might consider the claim made by the first respondent. I 84 do not see any flaw in the reasoning of the High Court. Nor can I say that it has exceeded its jurisdiction under article 226 of the Constitution. But, Mr. Setalvad. contended that there was material before the Tribunal and that the Tribunal gave its finding on the basis of that material. He relied upon an extract from the report of the Regional Transport Authority, South Arcot, dated January 31, 1957. That was a report sent by the said Authority to the State Transport Authority. Against the name of the first respondent in column 4 under the heading "possession of workshop or repair or maintenance facilities and its location" it is stated, "maintaining a workshop at per G.O. at Cuddalore". Again in the report sent by the State Transport Authority to the State Transport Appellate Tribunal, against the name of the first respondent in column 8 under the heading "Place of residence or principal place of business and the nearest distance" the entry is "Cuddalore on the route". This information given by the Transport Authority is presumably gathered from the earlier report of the. Regional Transport Authority. Reliance is placed upon a letter dated January 10, 1957, written by the first respondent to the Secretary, State Transport Authority, in support of the contention that even the first respondent, though on July 111, 1956, he claimed to have had a workshop at Chidambaram, did not mention it therein. But a perusal of that letter shows that he did mention that he had the sector and terminal qualifications. Basing the argument on the said documents, it was contended that there was material on which the Appellate Tribunal could have come to the finding which it did, viz., that the first respondent had no workshop at either of the terminii of the route. Firstly, these documents were not expressly relied upon by the Tribunal for holding that the first respondent had no workshop at Chidambaram. Secondly, these documents were not relied upon by the appellant either before Srinivasan J., or before the Division Bench to the effect that the Appellate Tribunal gave a finding on the basis of the 85 said material. Thirdly, one of the said documents, viz., the letter of the first respondent, does not support the contention. The other two reports did not say that the first respondent had no workshop at Chidambaram. The officers who made the report did not make any enquiry as regards the fact whether the first respondent had a workshop at Chidambaram on the basis of the claim made by him. There is, therefore, absolutely no evidence to controvert the first respondent 's claim and that is the reason why the appellant did not place the said documents before the High Court in support of his contention that there was material before the State Transport Authority and the State Transport Appellate Tribunal for holding that the first respondent had no workshop at Chidambaram. A perusal of the two orders shows that presumably in view of the innumerable applications, the specific claim of the first respondent was completely missed by the Transport Authority and the Appellate Tribunal. This is, therefore, a clear case of a finding made by the Tribunal without any evidence to support it and by ignoring a specific claim made before it. I am, therefore, of opinion that the High Court rightly set aside the order of the Appellate Tribunal. The next question is whether this is a fit case for interference under article 136 of the Constitution in exercise of this Court 's extraordinary jurisdiction thereunder. Srinivasan J., and, on appeal, the Division Bench on the basis of the material placed and the concession made before them, came to the conclusion that the Appellate Tribunal had ignored the specific claim set up by the first respondent. The first respondent had secured the highest number of marks. His claim, if substantiated, would certainly tilt the balance in his favour. The material placed before us was not relied upon by the appellant before the High Court. The High Court gave a further opportunity to the Appellate Tribunal to consider the claim of the first respondent. Though the High Court quashed the order of the Tribunal, the observation in the judgment clearly shows that the Tribunal 86 could reconsider the matter. Indeed, learned counsel for the first respondent conceded that fact. The appellant would have every opportunity to establish that the first respondent has no workshop at Chidambaram. Instead of following the straight course, he is trying to shut out further enquiry to arrive at the truth. In the circumstances I am of the view that this is not a case which calls for the exercise of this Court 's extraordinary jurisdiction to set aside the order of the High Court. In the result, the appeal fails and is dismissed with costs of the first respondent. ORDER BY COURT In accordance with the opinion of the majority the appeal is allowed and the Writ Petition filed by Respondent No. 1 is dismissed. Respondent No. 1 to pay the costs of the appellant in this Court. Respondents 2 and 3 to bear their own costs.

IN-Abs

The State Transport Authority issued a notification under the , calling for applications for the grant of two stage carriage permits for the route Madras to Chidambaram. A large number of applications were received. The authority granted the first permit to one of the applicants and for the second it decided to call for fresh applications. The appellant, as also a number of other applicants, appealed to the State Transport Appellate Tribunal. The Tribunal confirmed the grant of the first permit and as regards the second it allowed the appeal of the appellant and directed that it should be granted to him. Respondent No. 1 moved the High Court under Art.226 of the Constitution for the issue of a writ of certiorari and the single Judge who heard the matter held that the Appellate Tribunal had overlooked relevant considerations, and allowed irrelevant considerations to prevail and so made the Rule absolute. A Letters Patent appeal was preferred by the appellant. The Division Bench affirmed the order of the single Judge on the ground that the Appellate Tribunal had overlooked material considerations in favour of the respondent No. 1 and dismissed the appeal The appellant came to this Court by special leave and it was contended on his behalf that in issuing the writ of certiorari the High Court exceeded its jurisdiction under article 226 of the Constitution. Held: (per Gajendragadkar, Wanchoo, Shah and Dayal JJ.). The contention raised on behalf of the appellant was well founded and must prevail. A writ of certiorari is issued for correcting errors of jurisdiction committed by courts or tribunals, in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly, i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice. The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal. That necessarily means that the findings of fact arrived at by the inferior court or tribunal arc binding. 65 An error of law apparent on the face of the record can, however, be corrected by a writ of certiorari, but not an error of fact however grave it may appear to be. A writ of certiorari can also be issued if it is shown that in recording a finding of fact, admissible and material evidence has, not been admitted, or inadmissible evidence affecting the impugned finding has been admitted. A finding of fact based on no evidence would also be an error of law and as Such amenable to such a writ. But a finding of fact cannot be challenged in such a proceeding on the ground that the relevant and material evidence was insufficient to sustain the finding. Adequacy or sufficiency of evidence or an inference of fact to be drawn from the evidence or finding of fact are entirely within the jurisdiction of the Tribunal. Hari Vishnu Kamath vs Syed Ahmed Ishaque, ; , Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam, ; and Kaushalya Devi vs Bachittar Singh, A.I.R. 1960 S.C. 1168, relied on. It is neither possible nor desirable to define or describe all cases of errors which can be said to be errors of law apparent on the face of the record. Whether or not an error is such an error would depend on the facts and circumstances of each case and the nature and scope of the law misconstrued or contravened. It was not open to a party on the authority of the decision of this Court in K.M. Shanmugam vs S.R.V.S. (P) Ltd., to come to the High Court under article 226 to have all questions of fact reconsidered so as to invoke the plea of 'public interest ' under section 47 of the . K. M. Shamnugam vs S.R.V.S. (P) Ltd., 1 [1964] 1 S.C.R. 809, held inapplicable. In the present case the controversy centered round the fact whether the respondent No. 1 had a workshop at Chidambaram, one of the two terminii of the route and that the tribunal had failed to duly consider some evidence in that connection. That argument was an argument related to appreciation of evidence and as such was outside the purview of a proceeding for a writ of certiorari. The High Court was therefore, in error in issuing the writ of certiorari. In issuing a writ and in making it absolute, care should be taken to draw the order accurately. Unless allegations are made against them, the State Transport Authority or the Appellate Tribunal should not be represented through lawyers. Their position in ordinary cases is just the same as that of courts and other tribunals. Per Subba Rao J. Where the tribunal ignores or fails to investigate a material circumstance germane to a question of public 1 SCI/64 5 66 interest under section 47 of the Act put forward by a claimant for permit and gives a finding against him, that finding is vitiated by an error of law apparent on the face of the record and is liable to be quashed by a writ of certiorari. and the Appellate Tribunal failed to consider the specific claim of the respondent 1 as to the existence of his workshop at Chidambaram and was, therefore, right in setting aside their orders. The High Court could not be said to have exceeded its jurisdiction under article 226 of the Constitution. This was a clear case where the Tribunal made a finding that was based on no evidence and was contrary to the specific claim made before it. Since the first respondent had secured the highest number of marks, this claim, if substantiated, would tilt the balance in his favour. This Court would not interfere in such a matter in the exercise of its extraordinary jurisdiction under article 136 of the Constitution to set aside the High Court 's order.

ON: Criminal Appeal No. 117 of 1961. 27 Appeal from the judgment and order dated March 21, 1960 ', of the Calcutta High Court in Criminal Revision No. 376 of 1957. A.N. Sinha and P.K. Mukherjee, for the appellant M.C. Setalvad, Sukumar Ghose and B.N. Ghosh, for the respondent. October 4, 1963. The Judgment of the Court was delivered by WANCHOO J. This is an appeal on a certificate granted by the Calcutta High Court. The respondent, the Calcutta Tramways Co. Ltd., is running tramcars in the city of Calcutta. It gets electricity in bulk from the Calcutta Electric Supply Company and gets the same converted from alternate current to direct current at a high voltage for electric traction for running tram cars of the company. For this purpose it has an electric transformer house in 129/4 A and 130 D, Cornwallis Street. The appellant Corporation was of opinion that the premises were being used for a purpose which was dangerous to life, health or property and was likely to create a nuisance. It therefore ordered the respondent to take out a licence under section 437 (1) (b) of the Calcutta Municipal Act, No. XXXIII of 1951, (hereinafter referred to as the Act) and fixed a fee therefore. The respondent however refused to take out a licence and consequently it was prosecuted under section 537 of the Act. The respondent raised a number of points in defence, namely, (i) that the prosecution had not been properly filed; (ii) that the electric transformer house was neither a factory nor a place of trade, nor a place of public resort and therefore section 437 (1) (b) had no application; (iii) that the use of the transformer house for converting high voltage alternate current into low and medium pressure direct current was neither a use which was dangerous to life, health or property nor the same was likely to create a nuisance; and (iv) that as section 437 (1) (b) of the Act vests absolute power in the Corporation to form the opinion required thereunder, it was an unreasonable restriction on the freedom of trade 28 guaranteed under article 19 (1) (g) of the Constitution and therefore that provision is unconstitutional. The Magistrate held that the complaint was properly filed. He further held that the transformer house. was meant for the trade which the respondent was carrying on and therefore was covered by section 437 (1) (b). He also held that the Corporation had properly formed the opinion that the use of the transformer house was likely to be dangerous to life, health or property and was also likely to create a nuisance. He further seems to have held that even though section 437 (1) (b)made the opinion of the Corporation conclusive and final, there could be no doubt that the use of the transformer house was dangerous to life, health or property and was likely to create a nuisance. Finally he seems to have held that section 437 (1) (b) as it stood was not unconstitutional. He therefore convicted the respondent and sentenced it to a fine of Rs. 100 only. The respondent then went in revision to the High Court, and the main point urged there was that the provisions of section 437 (1) (b) were unconstitutional. The High Court held that inasmuch section 437 (1) (b) made the opinion of the Corporation conclusive and not liable to be challenged in any court, the provision was unconstitutional inasmuch as it amounted to an unreasonable restriction on the fundamental right enshrined in article 19 (1) (g). The High Court further held that the provision with respect to the conclusiveness and non justiciability of the opinion of the Corporation was so embedded in section 437 (1) (b) that it was not severable and therefore it struck down section 437 (1) (b) as a whole as unconstitutional. Another point which was urged before the High Court was that the fee of Rs. 500 was in the nature of a tax which neither the State Legislature nor the Corporation of Calcutta could levy. The High Court did not decide this question in view of its decision on the constitutionality of section 437 (1) (b). The present appeal has been brought to this Court by the appellant on a certificate granted by the High Court. 29 Two main questions therefore that arise for our decision are: (1) whether the provision in section 437 (1) (b) which makes the opinion of the Corporation conclusive and non justiciable in any court amounts to an unreasonable restriction on the right to carry on trade etc. enshrined in article 19 (1) (g); and (2) even if it be so, whether the provision relating to conclusiveness and non justiciability is severable or not. Section 437 (1) (b) reads as follows: "(1) No person shall use or permit or suffer to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely, (a) (b) any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance; (c) The contention on behalf of the appellant is that even though the opinion of the Corporation has been made conclusive and non justiciable, the restriction on trade resulting from the imposition of licence fee on the basis of such conclusiveness and non justiciability is a reasonable restriction in the interest of the general public. On the other hand it has been urged on behalf of the respondent that by making the opinion of the Corporation in such matters conclusive and non justiciable, the law makes it possible that any opinion of the Corporation, howsoever capricious or unreasonable it may be, must prevail and therefore the provision is an unreasonable restriction on the right to carry on any trade etc. enshrined in article 19 (1) (g). Reliance in this connection has been placed on the decision of this Court in Joseph Kuruvilla Vellukunnel vs The Reserve Bank of India.(1) It is urged that the mere fact that the opinion of the Corporation has been made con (1) [1962] Supp. 3 S.C.R. 632 30 clusive and non justiciable would not make the provision unreasonable with respect to carrying on any trade etc. In that case, section 38 (1) of the Banking Companies Act, provided that notwithstanding anything contained in the , the High Court shall order the winding up of a banking company, if an application for its winding up has been made by the Reserve Bank under section 37, or this section. It was urged in that case that the provision amounted to an unreasonable restriction on the right to carry on banking as the whole procedure was a denial of the principles of natural justice, chiefly as it denied access to courts, for ordinarily it was for the court to be satisfied after a fair trial that an order of winding up a company was called for and the court was free to. reach a decision after the company had shown cause and there was also a right of appeal against such decision. This Court held by a majority that in view of the history of the establishment of the Reserve Bank as a central bank for India, its position as a banker 's bank, its control over banking companies and banking in India, its position as the issuing bank, its power to license banking companies and cancel their licences and numerous other powers, the provision could not be challenged as unreasonable as the Reserve Bank makes an application for winding up only where it is satisfied that it was necessary to wind up a tottering or unsafe banking company in the interest of the depositors. We are of opinion that the decision in that case must be confined to the very special circumstances of the trade of banking, which is a very sensitive credit organisation and to the very special position the Reserve Bank occupies in the banking world in this country. That decision cannot be extended as a matter of course to other cases where substantially similar provisions are made in other laws relating to exclusion of the jurisdiction of courts. In other cases of this kind, the question has to be examined on the merits in each case to see whether the restriction created by conclusiveness and non justiciability is a reasonable restriction in the circumstances of the particular case. 31 We must therefore proceed to consider whether in the circumstances of this case the restriction contained in the parenthetical clause ins. 437 (1) (b) by which the opinion of the Corporation has been made conclusive and non justiciable, can be said to be a reasonable restriction on the right to carry on trade etc. enshrined in article 19 (1) (g). In Dr. N.B. Khare vs The State of Delhi,(1) this Court held that a law providing reasonable restrictions on the exercise of the rights conferred by article 19 may contain substantive provisions as well as procedural provisions and the court has to consider the reasonableness of the substantive provisions as well as the procedural part of the law. The parenthetical clause which makes the 6pinion of the Corporation conclusive and non justiciable is in the nature of a procedural provision and we have to see whether in the circumstances of this case such a procedural provision is reasonable in the interest of the general public. It has been urged that the Corporation which is an elected body would exercise the power conferred on it under section 437 (1) (b) reasonably and therefore the provision must be considered to be a reasonable provision. This in our opinion is no answer to the question whether the provision is reasonable or not. It is of course true that malafide exercise of the power conferred on the Corporation would be struck down on that ground alone; but it is not easy to prove mala fide, and in many cases it may be that the Corporation may act reasonably under the provision but it may equally be that knowing that its opinion is conclusive and non justiciable it may not so act, even though there may be no mala fides. The vice in the provision is that it makes the opinion of the Corporation, howsoever capricious or arbitrary or howsoever unreasonable on the face of it may be, conclusive and non justiciable. The conferment of such a power on a municipal body which has the effect of, imposing restrictions on carrying on trade etc. cannot in our opinion be said to be a reasonable restriction within the meaning of article (1) ; 32 19 (6). Such a provision puts carrying on trade by those residing within the limits of the municipal Corporation entirely at its mercy, if it chooses to exercise that power capriciously, arbitrarily or unreasonably, though not mala fide. We therefore agree with the High Court that the conferment of such a power on the Corporation as it stands in the parenthetical clause in section 437 (1),(b) must be held to be an unreasonable restriction on the right to carry on trade etc. This brings us to the next question whether this parenthetical clause is severable from the rest of the provision. In this connection it may be observed that in the Calcutta Municipal Act, 1923, which was repealed by the Act, the corresponding provision was contained in section 386 and there was no provision making the opinion of the Corporation conclusive and non justiciable. In similar provisions of other laws also there is no provision making the opinion of the Corporation conclusive and non justiciable. In the Madras City Municipal Act, No. IV of 1919, there was a similar provision in section 287 read with Sch. VI, which provided for licences where a place was used for any purpose in any area which in the opinion of the Commissioner was likely to be dangerous to human life or was likely to create or cause nuisance. Similarly in the Delhi Municipal Corporation Act, No. 66 of 1957, there is a provision in section 417 (1) which provides that no person shall use or permit to be used any premises for any purpose which in the opinion of the Commissioner was dangerous to life, health or property or likely to create a nuisance. We have referred to these Acts and the provision in the Calcutta Municipal Act which was the predecessor of the Act to show that it is quite possible to work such a provision without the opinion of the Corporation being made conclusive and non justiciable. The question therefore is whether this provision contained in the parenthetical clause in section 437 (1) (b) can be severed from the rest of the provision. 33 The principles governing severability were considered by this Court in R.M.D. Chamarbaugwalla vs The Union of India.(1) Seven principles were there laid down in that connection, of which three are material for our purpose, namely " (1) In determining whether the valid parts of ,1. statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. "(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand if they are "so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest then it will be upheld notwithstanding that the rest has become unenforceable". "(3) Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. " Learned counsel for the appellant urges that the parenthetical clause in section 437 (1) (b)is severable in view of the first two principles set out above. On the other hand, learned counsel for the respondent urges that in view of the third principle the parenthetical clause with respect to conclusiveness and non justiciability is not severable. The High Court has also taken the view that even if the parenthetical clause is distinct and separate from the rest of the provision, the whole provision contained in section 437 (1) (b) constitutes a single scheme intended to be operative (1) [1957] S.C.R. 093 1 SCI/64 3 34 as a whole and therefore section 437 (1) (b) must be struck down. We are of opinion that the view taken by the High Court is not correct. We have already pointed out that such a provision did riot exist in the earlier Act relating to this very Corporation and it is no one 's case that without such provision the earlier provision did not work. The first question therefore is whether it was the intention of the legislature when it passed section 437 (1) (b) that if it knew that the parenthetical clause was invalid it would not have enacted the rest of section 437 (1) (b). The answer to this question in our opinion can only be one. In view of the corresponding provision in the Calcutta Municipal Act, 1923, we cannot accept that the Legislature would not have provided for the licensing of premises which in the opinion of the Corporation were used for purposes which were dangerous to life, health or property or were likely to create a nuisance, unless that opinion was to be conclusive and non justiciable. Similar provision had existed in the earlier law without the provision relating to conclusiveness and non justiciability in respect of using premises for purposes which were dangerous to life health or property or were likely to create a nuisance. Such a provision in our opinion is a very reasonable provision in the interest of the general public and we do not see why it should be held that the Legislature would not have enacted such a provision unless the opinion of the Corporation was also to become conclusive and non justiciable. The first proposition out of the three set out above is in our opinion clearly applicable to this case and we have no doubt that the Legislature would have enacted the provision contained in section 437 (1) (b) without the parenthetical clause. So far as the second principle is concerned, we are of opinion that the valid and invalid provisions in section 437 (1) (b) are not so inextricably mixed that they cannot be separated. On the other hand we are of opinion that they are distinct and separate 35 and even if we strike out the parenthetical clause as to conclusiveness and non justiciability what remains is in itself a complete code for the particular purpose independent of the invalid part. Therefore, the remaining provision contained in section 437 (1) (b) can and should be upheld notwithstanding that the parenthetical clause providing for conclusiveness and non justiciability is invalid. Finally we are of opinion that the third proposition does not apply in the present case. That proposition applies only where the valid and the invalid provisions even when they are separate and distinct form part of a single scheme which is intended to be operative as a whole;if that is really so, then the whole must go and there is no question of severability. But making a certain opinion conclusive and non justiciable is a separate matter altogether and it cannot be said that it is so embedded in section 437 (1) (b) as to make conclusiveness and non justiciability of the opinion of the Corporation a part of the scheme for licensing which is provided therein. As we read section 437 (1) (b) it cannot be said that the whole of it is a part of a single scheme which was intended to be operative as one whole. This is really another aspect of the first proposition relating to the intention of the Legislature and it seems to us that the scheme in section 437 (1) (b) is not such a single scheme that it must be said that the Legislature must have intended it to be operative as a whole. We see no difficulty in holding that the provision in the parenthetical clause cannot be said to be part of a single scheme of such a nature that either the whole must be operative or nothing at all. We are therefore of opinion that the parenthetical clause consisting of the words "which opinion shall be conclusive and shall not be challenged in any court" is severable from the rest of section 437 (1) (b) and therefore only these words of this section can be struck down and not the whole of the section. It may be added that the respondent does not rely on any of the remaining principles set out in R.M.D. Chamarbaugwalla 's case.(1) (1) ; 36 The order of the High Court striking down the whole of section 437 (1) (b) must therefore be set aside and only the portion in parenthesis which makes the opinion of the Corporation conclusive and non justiciable struck down as an unreasonable restriction ' on the right to carry on trade etc. under article 19 (1) (g). In the view we have taken the judgment of the High Court must be set aside. It has been urged on behalf of the respondent that as the Magistrate dealt with the matter on the looting that the opinion of the Corporation was conclusive and non justiciable it should be given an opportunity to show before the Magistrate that the opinion of the Corporation that the purpose for which the premises in this case were used was dangerous to life, health or property or was likely to create a nuisance was wrong. It is also urged that the point whether the impost in this particular case was a fee properly so called or a tax which was taken before the High Court arises in this case and opportunity should be given to the respondent to raise this point before the Magistrate. In view of this contention we set aside the order of the Magistrate also and remand the case to him for decision according to law, including the above two points. The parties will be at liberty to adduce such relevant evidence as they think fit to do. Case remanded.

IN-Abs

The respondent company got its supply of electricity from the Calcutta Electric Supply Co., converted the same from alternate current to direct current in its transformer house for running its tram cars. The appellant Corporation was of opinion that the use of the premises as transformer house was dangerous to life, health and property and was likely to cause a nuisance and asked the respondent to take a licence under section 437(1)(b) of the Calcutta Municipal Act, 1951. The respondent refused to do so and was therefore prosecuted under section 537 of the Act. The trial Magistrate held in favour of the appellant and convicted the respondent and sentenced it to pay a fine of Rs. 100 only. The respondent moved 26 the High Court in revision. That Court held that the provision in s, 437(1) (b) which made the opinion the Corporation conclusive and non justiciable unreasonably restricted the fundamental right enshrined in article 19(1) (g) of the Constitution and since that provision was inseverable the entire section was unconstitutional. The corporation appealed to this Court. Section 437(1)(b) of the Act provided as follows ' "(1) No person shall use or permit or suffer to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely, (a) (b) any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance. " Held: The power conferred on the Corporation by section 437(1)(b) of the Calcutta Municipal Act, 1951, in the parenthetical clause "which opinion shall be conclusive and shall not be challenged in any court" which was in the nature of a procedural provision, was an unreasonable restriction within the meaning of article 19(6) of the Constitution and must be struck down. The clause makes the opinion of the Corporation, however unreasonable, capricious and arbitrary, conclusive and non justiciable and thereby places trade and business within the municipal limits entirely at the mercy of the Corporation, even though it may not act mala fide. The decision of this Court in Joseph Kuruvilla Vellukunnel vs Reserve Bank of India, must be confined to the special circumstances of the trade of banking and cannot be extended as a matter of course to other cases involving substantially similar provisions and each case should be judged on its own merits. Joseph Kuruvilla Vellukunnel vs The Reserve Bank of India, [1962] Supp. 3 S.C.R. 632, held inapplicable. So judged in the light of the principles laid down by this Court, the parenthetical clause was severable from the rest of the section and, consequently, that clause alone, and not the entire section should be struck down. The scheme of the section was not so integrated as to indicate that the Legislature wanted it to be operative as a whole. Dr. N.B. Khare vs State of Delhi, ; and R.M.D. Chamarbaugwalla vs Union of India, [1957] S.C.R. 930, relied on.

No. 42 of 1960. Under Article 32 of the Constitution of India for the enforcement of fundamental rights. G.S. Pathak, A.P. Chatterji, E. Udayarathnam, Durgabhai Deshmukh, B. Dutta and S.S. Shukla, for the petitioners and the intervener. 47 Ranadeb Chaudhuri, S.P. Varma and P.K. Bose, for respondents Nos. 1 and 2. C.K. Daphtary, Solicitor General, S.N. Ghorai, S.N. Andley and Rameshwar Nath, For respondent No. 3. N.C. Chattejee, S.N. Ghorai, S.N. Andley and Rameshwar Nath, for respondent No. 4. October 7, 1963. The Judgment of the Court was delivered by SINHA C.J. This petition under article 32 of the Constitution arises out of the unfortunate difference which has a long history behind it, between two sections of the Calcutta High Court Bar. The four petitioners in the petition, as originally presented, are advocates duly enrolled in the Calcutta High Court (to be hereinafter referred to as the Court) between the years 1948 and 1952, and claim to be entitled to appear and plead in the said High Court in the exercise of its Original as well as Appellate jurisdictions. The respondents are; (1) the State of West Bengal, represented by the Chief Secretary, and (2) the Chief Justice of the Court. It appears that the petitioners generally practice the Court in the exercise of its Original jurisdiction. In the year 1956 they were called to the English Bar by the Hon 'ble Society of the Middle Temple in the Michaelmas Term. The petitioners duly notified to the Registrar, Original Side of the Court, to correct the register of advocates practising on the Original side, by adding "Barrister at Law" after their names. Thus, the petitioners who started as advocates of the Court claim to have become entitled to the additional qualification of a "Barrister" though they had not read for a period of 12 months in the chambers of a practising Barrister in England or a practising Barrister in Calcutta, as required by the rules of the Original side of the Court. In other words, according to the rules of the Court, there were three classes of advocates practising in the Court; namely, (1) a Barrister who had read for not less than 48 12 months in the chambers of a practising Barrister in England or in Calcutta; (2) a Barrister who had not so read in the chambers of a Barrister; and (3) any person who had obtained a Bachelor 's degree in Law of a recognised university and had obtained the qualification to practise on the Original side of the Court after passing the necessary tests. The High Court is said to maintain two lists of advocates entitled to appear and plead in the said Court on the Original side, namely, list 1 containing the names of persons enrolled as advocates on the basis of their being Barristers at Law, and list 11 containing the names of other advocates than Barristers at Law. The petitioners claim that inasmuch as they were persons duly qualified to appear and plead in the said Court in the exercise of its Original jurisdiction and were so enrolled as advocates, it was not necessary for them to further read in the chambers to become advocates of list 1, of the Court, according to the classification set out above. A portion of the building of the said Court has been allotted for the use of advocates of the Court. That portion has again been sub divided into two portions; (1) one occupied by the Bar Library Club consisting of advocates. of list 1 aforesaid, and (2) the other in the occupation of the Bar Association which consists of advocates other than advocates of list 1. The petitioners, though they have been able to add the word "Barrister" to their names, have not been admitted to the Bar Library Club, which is rather of an exclusive character. The petitioners thus suffer from a disability, because it is said that litigants and/or solicitors generally prefer to engage an advocate who is a barrister and is a member of the Club. The petitioners ' application for becoming members of the Club was not entertained by it, and, thus, they are being excluded from that portion of the Court building which is in the exclusive occupation of advocates of list 1 aforesaid. The petitioners and another advocate made representations to the Hon 'ble the Chief Justice of the Court for having equal advantage and facilities of accommodation meant for the advocates of the Court, that 49 is to say, for that portion of the building which is in the occupation of the Bar Library Club. In reply to the aforesaid representation, the petitioners were informed by tILe Secretary to the Hon 'ble the Chief Justice that free accommodation had been provided by the Court, in different parts of the Court building, to the different sections of the legal profession, namely, for Barristers, advocates other than Barristers, and attorneys who are entitled to practise in the Court as such, and not for the use of any Club. But it was further pointed out in that communication from the Secretary to the Chief Justice that as the petitioners had not read in the chambers of a Barrister for one year, they were not entitled to the use of the rooms allotted to Barristers of that class. The petitioners made further representations to the Hon 'ble the Chief Justice but without any tangible results. It further appears that a suit had been instituted in the City Civil Court, which was pending in 1960, but was withdrawn Later, with reference to the rights of accommodation similar to that claimed by the petitioners, though they were not parties to that st;it. The petitioners were informed in February, 1960, by the Secretary to Hon 'ble the Chief Justice that the Chief Justice could not do anything in the matter in view of the pending suit. The petitioners ' grievance seems to be contained in paragraphs 36 and 37 of their petition, which is to the following effect: "The exclusive use of a large portion of the said space and the reference to or of the Advocates who are members of the said Club as members of the English Bar and/or reference to them as counsel and to the other Advocates as Advocates has generally given an impression that Advocates who are members of the said Club are superior class of Advocates than the Advocates who are members of the Indian Bar. Since your petitioners are not members of the said Club you, ' petitioners are generally included in the latter category. 1 SCI/64 4 50 Your petitioners state that due to the discrimination exercised and the non availability of equal opportunities to your petitioners as hereinbefore stated your petitioners have been and are being greatly prejudiced in their profession. The provisions made in the rules for original side of the said Court and for Barristers are ultra vires the Indian Bar Council 's Act and/Or amounts to discrimination. " Thus, the gist of the petitioners ' complaint is that they have been denied by the State equality before the law. The petitioners further state that they made demands for justice from the respondents, which they have not yet granted to them; hence the petitioners pray for a writ in the nature of mandamus directing them to allow the petitioners to have the use and benefit of the space in the Court, now occupied by the Bar Library Club, and not to discriminate and/ or differentiate between different sections of the Advocates enrolled in the Court and entitled to practise on the Original side of that Court. This Court, in due course, directed the rule to issue and also granted liberty to the petitioners to apply for impleading the Bar Library Club as a party respondent. In response to the notice, the Registrar of the Court put in an affidavit on behalf and under the direction of the second respondent the Chief Justice of the Court. The affidavit states the relevant facts as follows. Separate accommodation is provided in the High Court building for (1) Barristers who practise as advocates of the Court on being enrolled under the Original side rules of the Court; (2) for Advocates enrolled as such by the High Court and (3) for the Attorneys of the Court for their legal work in the Court. Setting out the history of the privilege of occupation of certain rooms in the Court by the different branches of the legal profession, it is stated that free accommodation in the then Supreme Court building was first provided in the year 1825 51 to the Barristers then practising before the Supreme Court, and that privilege has been continued in the High Court building as well. The Barristers have their association known as the Bar Library Club. The association of the other advocates is known as the Bar Association, and the association of the attorneys is called the Incorporated Law Society. Each of the three branches of the profession looks after the accommodation provided by the Court. The accommodation thus provided by the Court is only for bona fide professional business. The Barristers, Advocates and Attorneys are all licensees in respect of the accommodation provided for them, which is rent free; the cost structural additions or alterations are borne by the Government; only electrical installations are to be set up and maintained by the licensees at their own cost. It was further stated that the legal position in regard to the High Court building is and has always been that it has been placed at the disposal of the Hon 'ble the Chief Justice and the Hon 'ble Judges of the Court for the administration of justice, and that the allocation of accommodation inside the Court building is a matter entirely for the Court, subject of course to the condition that no part of the premises should be allowed to be utilised except for bona fide purposes of the Court 's work. As regards the representation made by the petitioner to the Chief Justice, it is stated that the matter was examined by His Lordship and a minute was recorded, the relevant portion of which is as follows: "But the persons recently called to the English Bar under consolidated regulation No. 43, arc not entitled to practise in this Court as Barristers. Under the Rules of the Court, a Barrister of England or Northern Ireland becomes qualified to practise in this Court as a Barrister Advocate only after reading for twelve months in the Chambers of a Barrister in London or in Calcutta and upon his enrollment as an Advocate thereafter. The Advocates who have recently been called to the English Bar under regulation 43 but who have not read in Chambers for a year 52 and have not been enrolled as Advocates on the completion of such reading, are only entitled to practise in the Court, including the Original Side, on the strength of their being Advocates of the Appellate Side, but they are not entitled to practise in Court as Barristers. Consequently, at the present moment, they are not entitled to use the rooms allotted to Barristers, entitled to practise as such. " It was also stated in the affidavit that further representations were made to the Hon 'ble the Chief Justice, but it was not considered proper by him that any administrative order should be passed on those representations in view of the pendency of a suit, which in the meantime bad been filed in the City Civil Court at Calcutta, being Title Suit No. 339 of 1958 with leave under Order 1 rule 8 of the Code of. Civil Procedure for a declaration that all Advocates are entitled to the use of the rooms in the High Court building now used by the Barristers. It appears that in pursuance of the leave granted by this Court, Shri Dipak Kumar Sen and Shri Mathura Nath Banerjee, joint secretaries of the Bar Library Club of the Court, who were added as respondents 3 and 4, put in an affidavit in answer to the petitioners ' claim, by way of an objection to the maintainability of the Writ Petition. They state that they were not public servants, and, therefore, no writ lay against them or against any other member of the Bar Library Club, or the Bar Library Club itself, for anything done by them. They denied the petitioners ' right to be members of the Club or to use the rooms in the possession. of the Club. It is further stated that the Bar Library Club is "a private proprietary Association of members governed by its own Rules", and that the action of the said members or of the said Club is not amenable to any writ. They add that the Hon 'ble the Chief Justice of the Court was also not amenable to any writ for actions complained of; the Hon 'ble the Chief justice had discharged his administrative duties and his actions were not justici 53 able. Likewise, it was further contended that the 'first respondent, the State of West Bengal, also was similarly not amenable to any writ inasmuch as the said respondent had discharged executive and not judicial functions in allowing certain accommodation in the High Court building to be used by the members of the Bar Library Club. The history of the establishment of the Club is then set out. Dealing with the claim of the petitioners, it is stated that by a resolution of the Bar Library Club, passed on June 14, 1957, and confirmed on February 14, 1958, it was decided by the members of the said Club that Advocates of the Calcutta High Court, called to the, Bar under regulation 43, should not be admitted as members of the Bar Library Club. The statement in the affidavit filed under the directions of the Hon 'ble the Chief Justice, as aforesaid, to the effect that the accommodation was given to Barristers practising in the Calcutta High Court as such was not correct and that the true position was that it was "given to the members of the Bar Library Club". It was claimed that the accommodation given respectively to the three Associations, namely, the Bar Library Club, the Bar Association and the Incorporated Law Society was used and controlled by the said Associations for the benefit of their respective members and persons who were not members of the respective associations could not claim any legal right to use the accommodation provided for that particular association. In answer to the contention that the petitioners had been denied equality before the law, it was asserted that the High Court orders regulating the manner in which the different associations shall be provided accommodation was based on reasonable classification of legal practitioners, and that there was no discrimination. It was also claimed that the Club had complete discretion in he matter of admission of members to it; that no ne had a legal right to claim membership of th Club and that as the petitioners were not members of the Club, they had no legal right to use the accommodation allotted to it And, lastly, it was contended that the petition 54 was bad for non joinder, first, of the Hon 'ble Judges of the High Court, and secondly, of the members of the Bar Library Club, other than those already impleaded, namely, the respondents 3 and 4 aforesaid. On these pleadings and further affidavits filed on behalf of some of the petitioners and some of the respondents, the matter was placed before a Constitution Bench of this Court, presided over by Gajendragadkar J., on April 16, 1962, and the Court made the following order: "Mr. A V. Viswanatha Sastri for the Petitioners wants to raise the larger question about the constitutionality of the allotment of rooms to different sections of the Bar in the Calcutta High Court. We think that it is desirable that the petitioners should move the learned Chief Justice of the Calcutta High Court and place before him their case that the allotment of the rooms offends against article 14 of the Constitution and that the Barristers, who constitute the Bar Library Club, cannot be treated as constituting a branch of the profession by themselves. Since this aspect of the matter was not placed before the learned Chief Justice it is necessary that the petitioners should pray for redress before the learned Chief Justice of the Calcutta High Court in the first instance before moving this Court. The petition, is, therefore, adjourned for three months to enable the petitioners to move the Chief Justice in that behalf. " In pursuance of the order of this Court, set out above, the petitioners made a further representation to the Hon 'ble the Chief Justice of the Court on May 11, 1962, stating that all advocates enrolled in the Court and entitled to appear and plead on the Original side stand on the same footing, without any distinction and/or discrimination, and as such are entitled to the use of the accommodation allotted to and occupied by the Bar Library Club in a portion of the Court building. They also recited the previous 55 history of their representations to the successive Chief Justices of the Court and pointed out that the allotment of separate accommodation for Barristers as such, who cannot practise as such, offended against article 14 of the Constitution. They, therefore, represented to the Hon 'ble the Chief Justice that as advocates of the Court they may be allowed to use the said space occupied by the Bar Library Club and/or its members, and equal rights and privileges for the purpose of carrying on their ' profession may be accorded to them. The Bar Association of the Court separately wrote a letter dated May 22, 1962, representing to the Hon 'ble Chief Justice their grievances in similar terms. To that representation, the Secretary to the Hon 'ble the Chief Justice sent an answer dated June 21, 1962. In that letter it is stated "that his Lordship thinks that it is eminently desirable that the Bar Library Club and the Bar Association should amalgamate, and that the rooms in the High Court buildings allotted to the Bar Library Club and the Bar Association should no longer remain in their exclusive occupation but should be thrown open to all who are members of the two Associations, on terms and conditions to be mutually agreed upon between the two Associations. . and that nothing will give His Lordship greater pleasure than to see the two Associations merge into one and occupying the rooms allotted to them jointly from July 1, when the Centenary celebration of the Calcutta High Court will begin. " A copy of the said letter was also forwarded to the petitioners in answer to their representation to the Chief Justice. Apparently the two wings of the profession, represented by the two organisations aforesaid, could not agree to such terms as were contemplated in the letter aforesaid. The attempt at amalgamation of the two organisations or to come to any agreed terms between them having failed, the Bar Association moved this Court by making an application for intervention by the members of the Bar Association. That application for inter 56 vention, filed in July 1962, was allowed by the Court on September 27, 1962. With the application for intervention the correspondence between the previous Chief Justices and the Association was enclosed. It is noteworthy that the scope of the representation made by the Association is much wider than the grievance sought to be ventilated by the petitioners in their petition to this Court, as will appear from the Following extract from their representation to the Chief Justice: "Accordingly we on behalf oF the Bar Association humbly represent 'that no separate space may be allotted to the said group of Advocates who call themselves Barristers but who practise in this Court as Advocates and are therefore in no way to be separately treated from the Advocates in general, and this allotment of separate rooms to the Bar Library Club offends against article 14 of the Constitution. We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all Advocates practising in this High Court and the rooms now occupied by Bar Library Club may be allotted to such Bar Association. " In answer to the petitioners ' further affidavits and the application for intervention filed and allowed, as aforesaid, an affidavit was filed in this Court on behalf of respondents 3 and 4 to the effect that accommodation in the Court building had been provided for the use of the three groups of lawyers, namely. (1) Banister Advocates who are not entitled to act and do not act either on the Original side or the Appellate side, and plead only; (2) Attorneys who only act on the Original side, and (3) Non Barrister Advocates who both act and plead and who belong to the Bar Association. It is also stated that the space occupied by the Bar Library Club is used exclusively as library and reading room to enable the members of the Club to prepare for the hearing of the cases in which they are engaged; the inner study room of the Club, where silence has to be maintained, is exclusively reserved 57 for members oF the Club for the purposes of study only: in other rooms of the Bar Library Club every member of the legal profession is allowed free access. A very important statement was also made in the affidavit to the effect that in view of the controversy raised recently about admission of non Barrister Advocates as members of the Bar Library Club, the Club by its resolution adopted on 'March 2, 1962, has altered its rules so as to admit non Barrister Advocates also as members. We shall have to say something more later with respect to this. It is further stated that as a result of the amendment aforesaid, of the rules of the Club, there is now no restriction whatever against any member of the legal profession, not being an Attorney, becoming a member of the Club, irrespective of whether or not he is a Barrister, provided that he confines his practice to pleading only. In pursuance of this amendment, it was further stated that three Advocates who were not Barristers had been recently admitted as members of the Club and that more such applications have been received for admission as members. And, finally, it is said that the Attorneys who only act on the Original side have been given two rooms in the Court building for their occupation, the Bar Library Club whose membership is confined only to those advocates who only plead but do not act has been allotted four rooms, and the Bar Association whose members are entitled both to act and to plead have been allotted six rooms in the premises of the Court. Besides those statements in their affidavit, in answer, the respondents 3 and 4 have also raised several points in answer to the petition, as originally made, as also in the intervention petition. It is contended that the original petitioners or the members of the Bar Association have no fundamental rights which they can enforce by a writ under article 32 of the Constitution, and that, therefore, they have no cause of action. It is also pointed out that the case tried to be made out by the original petitioners and that 58 made out in the petition for intervention are inconsistent inasmuch as the former claim to be admitted to the use and occupation of the accommodation allotted to the Bar Library Club in preference to the space occupied by the Bar Association whereas the interveners represented to Hon 'ble the Chief Justice that there should be no preferential accommodation given to the Club and that both the wings should become one. It is also contended that all the wings of the profession being mere licensees of the Court in respect of the accommodation allotted respectively to them, none of the Associations can claim any legal or fundamental rights. It is also suggested that the allotment of three separate portions of the Court premises, as aforesaid, can be justified on the ground of reasonable classification, having regard to the nature of business transacted by them in the discharge of their respective duties. It would thus appear that the condition now prevailing at the Bar of the Calcutta High Court vis a vis the different sections is the result of a historical process which began about two hundred years ago, soon after the grant of the Diwani to the East India Company in 1765. When the Supreme Court was established in Calcutta, most of the work was in the hands of English Barristers so far as pleading was concerned, and so far as acting was concerned it was in the hands of attorneys or firms of Attorneys, again mostly British. Even before the establishment of the Calcutta High Court in 1862, the Bar Library Club had come into existence in 1825 and the Court had granted the members of the English Bar accommodation within the Court precincts. After the establishment of the High Court, this arrangement continued and the three sections of the Bar which came to function in the High Court were allotted separate accommodation. The Bar Library Club continued to have its separate accommodation from that allotted to the Vakils, as they were called until the passing of the Indian Bar Councils Act (XXXVIII of 1926). It was again the result of British rule in India, which 59 introduced their own legal system in this country, that the member of the English Bar who practised in the High Court on the original side, or even on the appellate side, continued to enjoy higher status in the matter of seniority, so much so that a Vakil on the appellate side of the High Court of even 50 years ' standing would be junior to a Barrister with even one year 's standing. This naturally led to the agitation for a unified bar with equal rights of audience, according to seniority in standing, irrespective of whether he was a Barrister from England or was a Vakil with a law degree from one of the recognised universities in India. The result was the Indian Bar Councils Act, (XXXVIII of 1926). So far as practice on the original side of the Court was concerned, much depended on the goodwill of the Attorneys or firms of Attorneys, who in course of time ceased to be entirely British in character. Thus, we have now most of the members of the English Bar who are Indians, and so are the Attorneys. Much of the differences, between an Advocate who was not a Barrister and an Advocate who was a Barrister, and much of the disabilities of the former class in the way of appearance on the original side, have disappeared as a result of the Indian Bar Council Act, 1926, and the Advocates Act (XXV of 1961) which have the benefit of unifying the Bar of India. In spite of that, vested interests die hard, and this litigation is a result of the conflict between vested interests viz. those who wish to join that group of vested interests, and those who wish to abolish those interests. The petition, as filed in this Court originally, was based on the grievance that in spite of the fact that those advocates had been called to the English Bar they were not being admitted to the Bar Library Club, and represented an attempt to be admitted to those exclusive rights which were enjoyed by the members of the Club. On the other hand, the members of the Bar Association, who have intervened later in this controversy in this Court, have attempted to abolish the exclusiveness and to claim those rights for every one who is entitled to be called an Advocate. 60 Successive Chief Justices of the Court, beginning from late Sir Trevor Harris have sympathized with the attempt of the Advocates of all classes to get unified into one organisation on an equal footing, but they rightly pointed out that the desired result could be achieved only by mutual agreement amongst the two sections of Advocates. The present Chief Justice reiterated in his letter of June 21, 1962, that the Court would be very pleased to see that the two Associations merge into one and occupy the rooms allotted to them jointly with effect from July 1, 1962, which was the date originally fixed for ' the Centenary celebrations of the Court. The occassion was quite an appropriate one for the consummation of the desired unification of the entire Bar of the Court. But circumstances did not prove propitious to such a desirable result. It only shows that we cannot completely wipe out the past and that much of ' the legal system introduced during the British regime must continue for the better or for the worse. The situation has not been rendered less complex by the continued existence of the third wing of the profession, the Attorneys. Though opinion has been sharply divided as to the desirability of the continuance of this old institution imported from England, the fact remains that a large section of litigants on the Original side of the Court continues to employ the services of that class, and those who have been cultivating the good will of that class naturally have the advantage on their side. We have, therefore, to take full notice of the fact that there are two sections of Advocates practising at the Bar of the Court, besides the Attorneys, namely, the members of the Bar Library Club who only plead but do not act, and, secondly the members of the Bar Association who not only plead but act also, though there may be many who only plead but do not act. And then there are the Attorneys who only act. It is entirely the lookout of the litigants, through their attorneys, to engage as their advocates, only for pleading, such members of the Bar as they 61 choose. It is not entirely correct to assert that membership of the Club is a determining factor in being chosen to plead a case. Litigants are naturally interested in the best results in their litigation and must be presumed to act in the best interests of their cause. And, therefore, what has happened in the Bombay High Court during the last 50 years and more, may also happen in the Court, if the Bar Association is able to throw up advocates of the right caliber. Viewing the whole case from the point of view of the litigant public and the practising lawyers themselves, we think that the best interests of the Court will be served, and we are only interested in the best interest of the Court itself, by recognising the necessity for the three categories of legal practitioners in the Court, namely, (1) those who only plead, (2) those who both plead and act, and (3) those who only act. With that end in view, and at the instance of the Court, the members of the Bar Library Club recognised the need for amending their rules so as to admit such advocates as would only plead irrespective of the question whether or not they were Barristers. Accordingly, they intimated to the Court that they had made necessary amendments in their rules. 'the principal amendment is in rule 1, which is to this effect: "1. Rule (1) shall be deleted and the following shall be substituted in its place: 1. The Bar Library Club shall consist of: (a) Barristers of England or Ireland, or members of the Faculty of Advocates in Scotland after passing the examination or examinations prescribed by the authorities in England or Ireland or Scotland, as the case may be, who arc enrolled Advocates of the Calcutta High Court: (b) Other Advocates of the Calcutta High Court, who are entitled to practise on the Original side of the Calcutta High 62 Court under the rules lot the time being as the Committee of the Club may from time to time determine as hereinafter referred to." In Rule 25, the following consequential changes had been made: "In rule 25 after the words 'purposes of the Club ' add the words: " 'and determine from time to time having regard the accommodation in the club the number of the Advocates mentioned in Rule 1 (b) herein to be admitted as members of the Club '. " It was pointed out on behalf of the petitioners and the interveners that the Club has, even by amending rule 1 read with additions to rule 25, quoted above, reserved to itself the right to limit the membership. The learned Solicitor General, on behalf of the Bar Library Club, very appropriately intimated to us that the additions to rule 25, objected to on behalf of the petitioners, shall be withdrawn so that the petitioners may be assured that there will be no discrimination exercised in the matter of admission and that any application for admission shall be dealt with on its merits. Of course, only those Advocates who undertake not to act shall be eligible for admission as members of the Club. This arrangement, agreed to by the respondents 3 and 4 representing their Club, is a great improvement upon the position as it was when this Court was moved, and we are satisfied that nothing better could have been achieved as a result of these proceedings. It will be noticed that we have not dealt with this case in the legalistic way in which it was sought to be presented on either side. We have been chiefly guided by considerations of 'public good ', that is to say, that the Court should be assured of efficient and willing assistance from the Bar. It is only to be hoped that this forward step is a precursor of further improvements in the relations between the 63 different sections of the Bar so that they may grow into a unified bar with all the best traditions which it has inherited from the past and which it is its duty to uphold in the years to come to the lasting credit of the legal profession and to the lasting benefit of all concerned with law and litigation. In view of what we have said, the final position which emerges is this. There are three sections of the Bar in the Court, viz., (1) those who only plead, (2) those who both plead and act and (3) those who only act. This classification in our opinion is reasonable taking into account the past history to which we have already referred. Grant of separate accommodation therefore to these three sections of the Bar cannot amount to denial of equality before the law. The Bar Library Club has already agreed before us to change its rules so that the Club conforms exactly to the first section;and admission to it will be governed by rules which are common to all lawyers who want only to plead;there is therefore no reason to interfere with accommodation provided by the Court to the three sections of the Bar. We have also no doubt that the Chief Justice will see that the undertaking given by the Bar Library Club will be carried out. We may add that in case the undertaking is not carried out, the Chief Justice will see that necessary and appropriate rules are framed which will carry out the purpose for which the accommodation is placed at the disposal of the three sections of the Bar and the same are implemented so that there is no denial of equality before the law and accommodation is used for the three sections we have indicated above. In this view of the matter, the petition fails and is hereby dismissed. We leave the parties to bear their own costs. Petition dismissed.

IN-Abs

The High Court of Calcutta had separately allotted rooms in the Court premises to the Barristers for use and occupation for their Bar Library Club, to Advocates other than Barristers for their Bar Association and to the Attorneys for their Incorporated Law Society. The petitioners, who were Advocates of the Calcutta High Court and generally practiced on its Original Side and were called to the English Bar, had not read for a period of 12 months in the Chambers of a practising Barrister in England or in Calcutta as required by the rules of the Original bide but applied for becoming members of the Bar Library Club and their applications were refused. Their representation to the Chief Justice was also refused. On their application under article 32 the Constitution this Court issued a Rule against the State of West Bengal and the Chief Justice. The Joint Secretaries of the Bar Library Club were later on added as parties and the Bar Association appeared as intervener. The result of this intervention of the Bar Association was that the petition as it originally stood was broadend into a claim to abolish the exclusiveness of the Bar Library Club in favour of all other Advocates as was indicated in the representation made by the Association to the Chief Justice of Calcutta High Court which to the following effect : 46 We on behalf of the Bar Association humbly represent that no separate space may be allotted to the said group of advocates who call themselves Barristers but who practice in this Court as Advocates and are therefore in no way to be separately treated from the Advocates in general, and this allotment of separate rooms to the Bar Library Club offends against article 14 of the Constitution. We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all the Advocates practicing in this High Court and the rooms now occupied by Bar Library Club may be allotted to such Bar Association. " While the matter was pending in this Court, the Bar Library Club altered its rules so as to admit all such Advocates as would undertake only to plead and not to act and the Attorney General, appearing on its behalf, gave the assurance that there would be no discrimination, all Advocates who undertook not to act would be eligible for admission to the club. This position was agreed to by the Joint Secretaries representing the Bar Library Club. field: This altered position meant a great improvement on the existing one and no better could be expected in the presents proceeding. Regard being had to the historical growth of the three sections of the Bar in the Calcutta High Court, namely, (1) those who only pleaded, (2) those who both pleaded and acted, and (3) those who only acted, it could not be said that classification was unreasonable or that the grant of separate accommodation to them amounted to a denial of equality before the law. Since the Bar Library Club had agreed to change its rules so as to conform exactly to the first classification, admission to it would be governed by rules which would be common to all lawyers who wanted to plead only and, consequently, there was no reason to interfere with the separate grant of accommodation by the court to the three sections. If the Bar Library Club failed to carry out the undertaking given by it would be the duty of the Chief Justice to frame such rules as were necessary to carry out the purpose for which the accommodation was granted and to see that there was no violation of equality.

il Appeals Nos. 62 and 63 of 1953. Appeals under Article 132 (1) of the Constitution of India from the Judgment and Order dated 22nd December, 1952, of the High Court of Judicature at Patna (Ramaswami and Sarjoo Prosad JJ.) in Miscellaneous Judicial Cases Nos. 238 and 242 of 1952. P. R. Das (J. C. Sinha and L. K. Chaudhry, with him) for the appellant in both the appeals. M. C. Setalvad, Attorney General for India (L. N.Sinha and Bajrang Sahai, with him) for the respondents in both the appeals. April 17. The Judgment of the Court was delivered by section R. DAB J. 721 DAS J. This judgment disposes of Civil Appeals No. 62 of 1953 and No. 63 of 1953 which have been heard together. The Motipur Zamindari Company Ltd., the appellant in Civil Appeal No. 6.) of 1953, was incorporated in 1932 under the Indian Companies Act and has its registered office in Bengal. It supplies sugar cane to a sister concern named Motipur Sugar Factory Ltd. Raja Jankinath Roy and Narendra Nath Roy and Co., Ltd., the appellant in C. A. No. 63 of 1953, was incorporated in 1933 under the Indian Companies Act and also has its registered office in Bengal. This company owns Zamindari Properties in Purnea in the State of Bihar as well as in Malda in the State of West Bengal. It carries on business, amongst others, as banker and financier. On the 30th December, 1949, a bill entitled the Bihar Land Reforms Bill was passed by the Bihar Legislature and having been reserved for the consideration of the President received his assent on the 11th September, 1950. The Act so passed and assented to was published in the Bihar Gazette on the 25th September, 1950, and was brought into force on the same day by a notification made by the State Government in exercise of powers conferred on it by section 1(3) of the Act. Many of the proprietors and tenure holders of Zamindari estates took proceedings against the State of Bihar for appropriate orders restraining the State Government from taking over the estates under the provisions of the Act which they claimed to be beyond the legislative competency of the Bihar Legislature and otherwise void. On the 12th March, 1951, a Special Bench of the Patna High Court held that the Act was unconstitutional on account of its contravention of article 14 of the Constitution. The State of Bihar appealed to this Court. Pending that appeal, the provisional Parliament passed the Constitution (First Amendment) Act, 1951. The respondents in the main appeal took proceedings in this Court, contending that the Act amending the Constitution was invalid. This 722 Court however, on 5th October, 1951, upheld the validity of the amending Act. On 6th November, ' 1951, notifications were issued under section3 of the Bihar Act declaring that certain Touzies belonging to the appellants specified in the notification had passed to and become vested in the State. Both the appellants made separate applications to the Patna High Court under article 226 of the Constitution praying for mandamus or suitable direction or order restraining the respondent from taking possession of their respective estates or tenures by virtue of the said notifications and for other ancillary reliefs. The appeals filed by the State of Bihar against the order of the Special Bench declaring the Act to be void came up for hearing before this Court and this Court upheld the validity of the Act, except as to a few provisions mentioned in the majority judgment which were hold to be severable. Thereafter, the two applications made by the two appellants under article 226 before the Patna High Court came up for hearing and were dismissed by a Bench of that Court on the 22nd December, 1952. The present appeals have been filed with leave of the Patna High Court against the said dismissal. The question raised before the High Court was whether the Act was, on its true construction, intended to apply to Zamindari estates of companies incorporated under the Indian Companies Act. In support of the appellants ' contention that it was not, it was urged that the Bihar Legislature had no authority to legislate with respect to trading corporations or non trading corporations whose objects were not confined, to one State. Reference was made to entries 43, 44 and 45 of List I to show that it was Parliament alone which was authorized to make law with respect to matters set forth in those entries. The contention was that the Bihar Legislature in enacting the Act invaded the Union field and so the Act was invalid. This argument was sought to be reinforced by reference to the provisions of the Act and the winding up provisions of the Companies Act. The Patna High 723 Court overruled this contention and Mr.P.R.Das appearing in support of these appeals has not challenged this part of the decision of the Patna High Court. The main point urged by Mr. P. R. Das is that even if the Bihar Legislature could make a law for acquiring Zamindari estates of incorporated companies it did not, by the Act, in fact do so. Section 3 authorises the State Government to declare by notification that the estates or tenures of a proprietor or tenure holder have passed to and become vested in the State. It will be recalled that it was under this section that the State Government on the 6th November, 1951, issued the notifications with respect to the estates of the appellants situate within the State. Mr. P. R. Das 's principal contention is that the appellant companies do not come within the terms, " proprietor" or " tenure holder" as defined by the Act and consequently no part of their estates were intended 'to be vested or did in fact vest in the State. " Proprietor" is defined by section 2(o) as meaning a person holding in trust or owning for his own benefit an estate or a part of an state and includes the heirs and successors in interest of a proprietor and, where a proprietor is a minor or of unsound mind or an idiot, his guardian, committee or other legal curator. Tenure holder is defined by section 2 (r) as meaning a person who has acquired from a proprietor or from any tenure holder a right to hold land etc. The argument is that the word "person" in the two definitions referred to above does not, in the context of the Act, include a company. It is conceded that under section 4(40) of the Bihar General Clauses Act the word "person" would ordinarily include a company, but it is urged by Mr. P.R. Das that the definitions given in that section apply only where there is nothing repugnant in the subject or context. His contention is that the definition of "proprietor" and "tenureholder" indicates that a company which owns Zamindaries is not covered by that definition. We are unable to accept this contention. It is not disputed 94 724 that a company can own an estate or a part of an estate and, indeed, the appellant companies are fighting these appeals only to protect the estates they own. Therefore, they come within the first part of the definition. The definition after stating what the word means proceeds to state what else the definition would include under certain specified circumstances, namely, the heirs and successor in interest etc. The word "heir" certainly is inappropriate with regard to a company, but there is nothing inappropriate in the company having a successor in interest. It is pointed out that there is no provision in the definition of proprietor to include the directors, managing agents and, in case of winding up, the liquidator of the company. This circumstance does not appear to us to be a cogent reason for holding that the word "proprietor" as defined does not cover a company. It is to be noted that the agent or, in case of insolvency, the official assignee or receiver of an individual proprietor are also not included in the definition. Reference to proprietor who is a minor or of unsound mind or an idiot and his guardian etc. , was obviously necessary because those proprietors suffer from legal disabilities. Mr. P. R. Das refers us to various sections and rules framed under section 43 of the Act to show that ' only natural persons were intended to be affected by the Act, because, ha urges, the company is not competent to do the acts therein referred to. It is not ,disputed by Mr. P. R. Das that there is no difficulty on the part of an incorporated company to do all these acts by its directors or managing agents or other officers empowered in that behalf by its articles of association, but his contention is that the provisions of the Indian Companies Act should not be imported into the consideration of the provisions of his Act. He relies primarily on the case of Pharmaceutical Society vs The London and Provincial Supply Association, Limited(1) whore it was held,that a corporation (1) 725 did not come within the word "person" used in the Pharmacy Act, 1868 (31 & 32 Vic., Chapter 121). Reliance was placed upon the observations of Lord Selborne L.C. at page 863. The preamble to that Act recited, amongst other things, that it was "expedient for the safety of the public that persons keeping open shop for the retailing, dispensing or compound ing of poisons, and persons known as chemists and druggists should possess a competent practical knowledge of their business. " This clearly comtemplated persons skilled in matters pharmaceutical and not impersonal corporate bodies which would know nothing about that particular business. Indeed, Lord Blackburn in his speech in the House of Lords in the Pharmaceutical Society 's case(1) referred to this preamble and observed at page 870: "Stopping there, it is quite plain. that those who used that language were not thinking of corporations. A corporation may in one ' sense, for all substantial purposes of protecting the public, possess a competent knowledge of its business,, if it employs competent directors, managers, and so forth. But it cannot possibly have a competent knowledge in itself. The metaphysical entity, the legal 'person ', the corporation, cannot possibly have a competent knowledge. Nor I think, can a corporation be supposed to be a 'person known as a chemist and druggist '. " His Lordship then referred to the provisions of sections 1 and 15 of that Act and came to the conclusion that the word "person" in that Act. meant a natural person. The effect of 'that case is that whether the word "Person" in a statute can be treated as including a corporation must depend on a consideraiion of the object of the statute and of the enactments passed with a view to carry that object into effect. In view of the object of that Act as recited in the preamble there could be no manner of doubt that the word "person" in that Act could not possibly, include a corporation. Lord Selborne towards the end of page 863 indicated, by reference to the 18th (1) (188o) L.R. 5 App. 857 726 section, that the legislature by the word "person" referred only to individual persons as it was clearly repugnant to the subject of that Act to include a corporation within the word "person" as used in 'that Act. Mr. P. R. Das urges that the judgment of Lord Selborne was founded on the fact that the corporation could not come within the term "person" on the ground that it could not make an application in writing signed by it. From this Mr. P. R. Das urges that the necessary implication of this part of the judgment of Lord Selborne is that it was not permissible to take the provisions of the Companies Act into consideration for construing another Act. If that were the implication of the speech of Lord Selborne, with respect, we are unable to accept the same. Indeed, one cannot think of a company unless one has in view the provisions of the Companies Act, for a company is the creature of the Companies Act. Its existence, powers and rights are all regulated by that Act. The trend of the, speeches of the noble Lords in the case relied on by Mr. P. R. Das is that the object of the particular Act under consideration was entirely repugnant to the word "corporation" being included within the term "Person" as used in that Act, and as we apprehend it, that decision lays down nothing beyond that. In support of his contention that a company owning an estate was never intended to be affected by the Act, Mr.P. R. Das draws our attention to the winding up sections of the Indian Companies Act and urges that it is not possible to fit in the scheme of winding up into the scheme of the Bihar Act. If the Zamindari assets of the company are taken over and compensation is paid by non transferable bonds it will, he contends, be impossible, to apply the law of winding up in case the company goes into liquidation. There will, according to him, be conflict of jurisdiction between the Court where the winding up is proceeding, which may conceivably be in another State, land the Bihar Government and its officers. 'We see no force in this contention. Upon a 727 notification being issued under section 3, the Zamindari estate will vest in the State and the company will cease to have any interest in it. Its only right will be to receive compensation. In case of winding up the liquidator will have to pursue the remedy provided by this Act. He or the company will be in no worse position than the official assignee or official receiver of an individual proprietor who may happen to become insolvent in another State. Finally, Mr. P. R. Das strongly relies on section 41 of the Act and contends that that section would be wholly inapplicable to a company and that circumstance by itself would indicate that the Bihar Legislature did not intend that a company owning an estate should be governed by this Act. A corporation, it is true, cannot be made liable for treason, felony or any misdemeanour involving personal violence or for any offence for which the only penalty is. imprisonment or corporal punishment. (Halsbury, 2nd Edition, Volume IX, article 5, p. 14). Section 41 does not prescribe punishment by imprisonment only. Mr. P. R. Das suggests that the infliction of imprisonment or fine would depend upon the gravity of the offence and not on the character of the offender. This argument, however, would seem to run counter to the opinion of Lord Blackburn set forth at pages 869 870 of the report of the very case relied on by Mr. P. R. Das. The recent cases of Director of Public Prosecutions vs Kent and Sussex Contractors Limited(1) and Rex vs I.C.B. Haulage, Limited and Another(2) seem to indicate that a corporation may be convicted even of an offence requiring an act of will or a state of mind. Apart, however, from the consideration whether a company may be held guilty of wilful failure or neglect, as to which we need not express any definite opinion on this occasion, there can be no difficulty in applying the provisions of section 41 to the officers or agents of the company. On a notification under section 3(1) being published the estate vests in the State. Section 4 sets out the (1) [1944] I.K.B. 14 6. (2) [1944] I.K.B. 551. 728 consequences of such vesting. Clause (g) of that section empowers the Collector by written order served in the prescribed manner to require any person in possession of. such an estate or tenure or any part thereof to give up possession of the same by a date specified in the order and to take such steps or use such force as may be necessary for securing compliance with the said order. If any officer or agent of the company in the possession of the estate wilfully fails or ignores to comply with such lawful order, then surely he can be proceeded against under section 41. Likewise, under section 40, the. officers therein mentioned are authorized at any time before or after the date of vesting by a written order served in the prescribed manner to require a proprietor or tenureholder or any other person in possession of such an estate or tenure or any agents or employees of such proprietor, tenure holder or other person to produce at a time and place specified in the order such documents, papers or registers or to furnish such informa tion relating to such estate or tenure as such officer may from time to time require for any of the purposes of this Act. A wilful failure or neglect to comply with such order would clearly bring the recalcitrant officer or agent of the company within the penalty provided under section 41. Section 41 therefore, does not necessarily preclude the application of the Act to incorporated companies. It cannot be denied that a company is competent to own and hold property. The whole. object of the impugned Act is thus stated by Mahajan J. in the State of Bihar vs Kameshwar Singh(1): " Now it is obvious that concentration of big blocks of land in the hands of a few individuals is contrary to the principle on which the Constitution of India is based. The purpose of the acquisition contemplated by the impugned Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of a few individuals and to so distribute the ownership and control of the (1) at p. 941. 729 material resources which come in the hands of the State as to subserve the common good as best as possible. In other words, shortly put, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised. " In view of this, purpose there is no reason to differentiate between an individual proprietor and a company which owns estates or tenures. Indeed, there is not only nothing repugnant in the subject or context of the Act which should prevent the inclusion of a company owning estate within the definition of "proprietor", such inclusion is necessary in order to give full effect to the very object of the Act. In Appeal No. 63 of 1953 Mr. P. R. Das raises an additional point, namely, that the appellant company in that appeal owns estates which are situate in Purnea in the district of Bihar and in Malda in the district of West Bengal but it has to pay a single Government revenue at Purnea. It is further alleged that the appellant company has let out portions of the estates on Patni leases, each of the Patnis comprising land situate both within and outside Bihar. The acquisition of that part of the estate, which is situate in Bihar has made it difficult, if not impossible, for the appellant company to pay its revenue or recover its rent. That part of the estate which is in Bihar cannot be severed from the rest and therefore the notification covering only the portion of the estate situate in Bihar is invalid. We do not think there is any substance in this argument. As stated by the High Court it is a simple case of apportionment of the revenue and also apportionment of the rent. The necessity for such apportionment cannot possibly affect the validity of the notification. For reasons stated above these appeals fail and must be dismissed with costs. Appeals dismissed.

IN-Abs

The word " person " in the definitions of " proprietor "" and tenure holder " contained in a. 2 (o) and section 2 (r) respectively of the Bihar Land Reforms Act, 1950, includes companies incorporated under the Indian Companies Act, 1913. There is nothing repugnant in the subject or context of the Act to prevent the inclusion of a company within the terms proprietor " and " tenure holder ". On the contrary such inclusion is necessary in order to give full effect to the object of the Act. Pharmaceutical Society vs The London and Provincial Supply Association, Limited distinguished.

N: Criminal Appeals Nos. 227 and 228 of 1960. Appeals by special leave from the judgments and orders dated September 16, and AugUst 26, 1960 of the Allahabad High Court in Criminal Misc. Case No. 1519 of 1960. N.C. Chatterjee, D.P. Singh and M.I. Khowaja, for the appellants. C.P. Lal, for the respondent No. 1. October 9, 1963. The Judgment of the Court was delivered by HIDAYATULLAH J. This judgment will govern the disposal of Criminal Appeals Nos. 227 and 228 of 1960. In both these appeals the appellant is one Mohammad Ikram Hussain an Advocate of the Allahabad High Court residing in 49, Zero Road, Allahabad. The second respondent in these appeals is one Mahesh Prashad, a resident of 4, Gujrati Mohalla Allahabad City but who has not appeared in this Court. The other two respondents are the State of U.P. on whose behalf a belated appearance was made by Mr. C.P. Lal, Advocate and the Station House Officer, Kotwalli, Allahabad who was not represented at the hearing. The two appeals are in a sense connected and impugn two orders of the High Court of Allahabad made respectively on August 26, 1960 and September 16, 1960. They were passed in a proceeding initiated by Mahesh under section 491, Criminal Procedure Code and article 226 of the Constitution for a writ, order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant and for delivery of the said Kaniz Fatima to him. The first order was made by the High Court overruling the objections of the appellant, directing him to bring before the Court the said Kaniz Fatima alleged to be held in unlawful confinement. By that order the High Court gave the appellant 10 days ' time to obey the direction. As the direction was not complied with and Kaniz Fatima was not brought 89 into the Court, the High Court passed the second order committing the appellant for contempt and sentencing him to simple imprisonment for 3 months and to pay the costs. The High Court was moved for a certificate but declined it by its Order dated October 14, 1960. The present appeals have been filed by special leave granted by this Court. On July 28, 1960, Mahesh Prashad filed a petition in the High Court of Allahabad against the Station House Officer, Kotwali Allahabad and Ikram Hussain, the appellant. This petition purported to be under section 491, Criminal Procedure Code and article 226 of the Constitution. Mahesh Prashad stated therein that sometime in October 1959 he made the acquaintance of Kaniz Fatima, the daughter of the appellant and a marriage between them took place on December 25, 1959 according to Vedic rites after Kaniz Fatima had embraced Hinduism. Mahesh stated that they used to meet clandestinely and Kaniz Fatima became pregnant. She left home in early June 1960 and went to live with him at his house No. 4, Gujrati Mohalla, Allahabad but on June 23, 1960, the Station House Officer, Kotwali Allahabad searched the house and arrested Mahesh and took away Kaniz Fatima in spite of protests on her part as also on his. Mahesh further stated that he was 23 years of age and that Kaniz Fatima 's age, according to the record of the Allahabad municipality was 21 years and according to the medical examination at Dufferin hospital immediately after she was taken away from his house, 19 years. He further stated mat a prosecution was started against him under sections 363, 366, 368 and 376, Indian Penal Code and that, after he was released on bail on July 15, 1960, he searched for his wife but could not find her and learnt that the appellant was keeping her confined against her wishes at Jaunpur. He asked for a writ for the production of Kaniz Fatima in Court and for her release and swore an affidavit in support of his petition. In answer to the notice which was issued by the High Court on July 29, 1960, the Station House Officer, and the appellant appeared before 90 the High Court and put in their affidavits. Before we deal with those affidavits in detail we shall set down the version of the appellant in regard to the disappearance of Kaniz Fatima. Kaniz Fatima according to the appellant was a student at the Hamidia Girls College, Allahabad, where she had enrolled herself in July 1958. She appeared for the High School Examination of 1959 but was unsuccessful. The result was announced about the 17th June 1960 and on June 20, 1960 Kaniz Fatima disappeared. The appellant then filed a report in the police station house to the following effect: "To The Dy. Superintendent Police, Allahabad. Sir, My daughter Kaniz Fatima alias Sheela, aged about 15 years, medium fair complexion, thin body appeared in the High School Examination of 1960 from Hamidia Girls Inter College. Unfortunately she failed in the examination. She became very despondent. Yesterday, the 20th of June 1960 at about 5 o 'clock in the morning she disappeared from the house and has not returned home tilt this time. I was not in Allahabad yesterday. I hope, she will be traced and restored to me, I shall be obliged. Yours faithfully, Sd/ Mohd. Ikram Hussain, 49, Zero Road, Allahabad. " The police caused a searched to be made at the house of Mahesh on the evening of June 23, 1960 and found Kaniz Fatima in that house. Kaniz Fatima then made a statement to the police which is Annexure 'B ' to the special leave petition No. 882 of 1960 in Criminal Appeal No. 227 of 1960. In that statement Kaniz Fatima stated that she had appeared for the High 91 School Examination from Hamidia College, Allahabad and the result was out on June 17, 1960. As she had failed in the examination she was very depressed and as her parents used to make sarcastic remarks she decided to leave the house and go to her aunt Sardar Begum in Rani Mandi. Accordingly she left in the early hours of the morning but lost her way as she was a Parda girl and had no money even to hire a rickshaw. On the way she met two men Mahesh and Sudama who offered to show her the way to Rani Mandi but instead took her to the house in Gujrati Mohalla from where she was recovered. She alleged that they criminally assaulted her and kept her confined against her will. She gave her age as about 15 years or 16 years but stated that she did not know the age entered in the college register. On the next day another statement of Kaniz Fatima was recorded by the police and it is Annexure 'E ' to the petition above mentioned. By this statement she expressed a desire to live with her father, the appellant, and the police handed her over to the appellant taking from him a 'Sapurdaginama ' (Annexure H) containing an undertaking that he would produce the said Kaniz Fatima whenever required by the police or the Court in connection with the case against Mahesh Prashad and. others. It is thus that the appellant got back his daughter Kaniz Fatima while Mahesh Prashad was arrested and charged with abduction and rape but was released on bail on or about July 15, 1960. On July 28, 1960, he filed this petition for a writ of habeas corpus. We need not concern ourselves with the affidavit of the Station Officer, Kotwali, Allahabad. His position was quite clear. He had handed over the girl to her father after taking a statement from her. The appellant made a return on affidavit supporting it by an affidavit of one Ram Nath. The appellant 's return stated the facts already narrated by us in regard to the disappearance of Kaniz Fatima and her recovery from No. 4, Gujrati Mohalla, Allahabad, He stated further that Kaniz Fatima was not with him, having disappeared for a second time in the circumstances 92 now to be narrated. The appellant stated that Kaniz Fatima was very dejected over what had happened to her and was sent to his brother in law, Syed lqtedar Hussain, 51, Sabzi Mandi, Allahabad and his wife Mst. Shabbiri Begum, the sister of Kaniz Fatima 's mother. This was on July 8, 1960. The appellant and his wife used to go to see Kaniz Fatima at that house which was less than half a mile from their house. On July 20, 1960, Iqtedar Hussain and Shabbiri Begum informed him that Kaniz Fatima had disappeared. He felt very dejected and his son Imdad Hussain and Iqtedar Hussain searched for the girl at the houses of all their relatives in Allahabad and also at Faizabad. The appellant stated that he did not report to the police because of the scandal and humiliation. He expressed his inability to bring the girl. He stated that the allegations about the con. version of Kaniz Fatima, her marriage and pregnancy were entirely false. He contended that no marriage could take place because Mahesh was already married with a wife living. The affidavit of Ram Nath was earlier filed in support of the last allegation. The appellant now filed an affidavit by Iqtedar Hussain in support of his affidavit about the second disappearance of Kaniz Fatima. Mahesh Prashad thereupon filed an affidavit in rejoinder by which he reiterated that he was married to Mst. Ram Rati but alleged that he had divorced her according to the custom of the caste and that Ram Rati had remarried and was living with her husband. He alleged that his marriage with Kaniz Fatima had taken place in the presence of respectable persons of the locality and that the story of the disappearance of Kaniz Fatima was false and she was illegally and improperly being detained against her wish by the appellant. On this material the High Court passed the first order on August 26, 1960. From that order it appears that the High Court did not enter into any question of fact except the age of Kaniz Fatima. The High Court held that if Kaniz Fatima was a minor no 93 habeas corpus application would lie because the father would be the guardian but if Kaniz Fatima was major then the application was competent and Kaniz Fatima was the best person to judge for herself where she would live. The learned Judges were of the opinion that the issue whether Mahesh and Kaniz Fatima were married was not at all relevant. The age of Kaniz Fatima was taken by the learned Judges to be 19 years in view of the result of the medical examination and holding that she was major the learned Judges addressed themselves to what they described as the main question: Whether the appellant had Kaniz Fatima in his control ? In this connection the learned Judges referred to the undertaking given by the appellant to the police to produce Kaniz Fatima whenever required and observed that it was his duty to keep a watch on her movements. Finding that there was no date mentioned in the affidavit regarding her second disappearance they ordered a fresh affidavit to be filed. That affidavit was filed on the 11 th August 1960 and was supported by the affidavit of Iqtedar Hussain of the same date. We have referred to the contents of these documents. The learned Judges pointed out that the appellant 's conduct was somewhat strange because he had neither reported the second disappearance of Kaniz Fatima to the police nor informed the Magistrate in whose Court the criminal case was pending about it. They were of opinion that it was also very unlikely that Kaniz Fatima who had brought such troubles on her head by running away from home would leave the house for the second time without the connivance or aid of someone, and they concluded that person could be none other than her father. They took into consideration that the appellant had denied the fact of marriage and conversion to Hinduism on the basis of personal knowledge when this could only be on information received from Kaniz Fatima and had further sworn an affidavit about the state of mind of Kaniz Fatima immediately before her second disappearance which he could not have known unless he was present personally. Holding, therefore, that 94 Kaniz Fatima was not minor and the petition could be proceeded with, they made an order for the production of Kaniz Fatima in Court. The appellant did not produce the girl in obedience to the direction of the High Court and the second order was passed committing him for contempt and sentencing him as stated already. In these appeals both these orders are challenged. Against the first order it is contended that the High Court was in error in ordering the production of Kaniz Fatima, acting on the affidavits of Mahesh which were patently false. Against the second order, it is contended that it was impossible for the appellant to carry out the Court 's order because Kaniz Fatima was not with him and her whereabouts were not known to him and that the committal for contempt and the punishment imposed were unjustified. Lastly, it was urged that the sentence was too heavy. From what we have stated above it will appear that the action of the Court is questioned on two connected but in essence entirely separate matters. The disobedience of the order of the Court entailing punishment for contempt is a very different matter from the action taken in the habeas corpus petition. The order of commitment for contempt presents no difficulty. Even if the direction was inexpedient, an order had been made for bringing Kaniz Fatima before the Court and it had to be complied with unless the appellant could plead and prove his inability to comply with it. The question whether the Court ought, on the materials present before it, to have called upon the appellant to bring Kaniz Fatima in Court is something which does not enter into the obedience of the order made. A direction given by the High Court in a proceeding for a writ. of habeas corpus for the production of the body of a person has to be carried out and if disobeyed the contemner is punishable by attachment and imprisonment. A valid excuse will, however, be that it is impossible to obey the order. 95 We have heard Mr. N.C. Chatterjee in support of the contention that the appellant did not know the whereabouts of Kaniz Fatima and was unable to comply with the orders of the High Court. We are not satisfied that the appellant could not have brought Kaniz Fatima before the Court. His conduct belies his assertion that he did not know where Kaniz Fatima was. When Kaniz Fatima disappeared for ' the first time the appellant lost no time in making a report to the police and the efficiency of the police was demonstrated by the discovery of Kaniz Fatima within two days. If Kaniz Fatima disappeared a second time the appellant, unless he knew where she had gone, should logically have enlisted the support of the police immediately. There would, of course, be no point in reporting to the police if the whereabouts were to be kept secret because the police might have found Kaniz Fatima thus proving the report to be false. If Kaniz Fatima disappeared in mysterious circumstances it should have occurred to the appellant that perhaps Mahesh and Sudama whom she had charged with abduction and rape might have had a hand in her second disappearance and then what better move was open to the appellant than to go to the police? It is not his ease that he got disgusted and let Kaniz Fatima go her own way. He started a search for her on his own and his son and brother visited the houses of relatives in Allahabad and his son went to Faizabad to make enquiries there. It is clear that, on his own showing, he was anxious to find Kaniz Fatima and spared no efforts to find her but he did not enlist the support of the police. This as stated already was very surprising because on the first occasion the police had found Kaniz Fatima almost at once and restored her to him. The conclusion is inescapable that he avoided the police this time. Again the High Court is right in thinking that Kaniz Fatima who had a harrowing experience would not venture out a second time. Kaniz Fatima had stated that she had got lost when she left the house on the first occasion and that she did not know her way in the town as she had always travelled in 96 a closed rickshaw. It would be very unlikely that she would venture out a second time. It is not suggested that she left the house to do away with herself or to go away on her own. These possibilities have not been canvassed before us. Of the two alternatives which might have suggested themselves namely that she had left the house to go to some relative or was taken away by Mahesh and Sudama, neither came in the way of making a report to the police. But if the appellant knew where Kaniz Fatima had gone and was not anxious that her whereabouts should be discovered the report to the police would not be made. The excuse that the appellant was saving himself from scandal and humiliation cannot appeal to anyone because there was enough of scandal and humiliation already and little could be added to it. The High Court 's conclusion that the appellant was harbouring Kaniz Fatima and keeping her hidden was impeccable. In these circumstances, we are of opinion that when the Court did make an order for the production of Kaniz Fatima even if another court would have taken some other steps it had to be carried out unless it was impossible for the appellant to comply with it. In our opinion the High Court 's commitment for contempt was justified because the High Court rightly reached the conclusion that the appellant having the knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wailfully and deliberately disobeying the direction of the Court. In so far as the offence of contempt is concerned there was a manifest disobedience of the order and the High Court could punish it brevi manu by ordering the appellant to be detained in prison. The High Court 's powers for punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record. The learned Judges were perhaps in error in describing it as contempt in facie curiae. That is contempt of a different sort. This was contempt by disobedience of an order of the High Court which is sometimes a civil contempt 97 punishable under the Code of Civil Procedure and sometimes a criminal contempt punishable by imprisonment. The only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act which limits the term for which a person can be imprisoned to six months simple imprisonment. The High Court was justified in punishing this contempt. In view of the grossness of the contempt it cannot be said that the punishment of three months simple imprisonment was excessive. We therefore decline to interfere with the order of September 16, 1960. Criminal Appeal No. 227 of 1960 against that order is dismissed. The first order by which Kaniz Fatima was ordered to be brought into Court was questioned on the ground of want of jurisdiction and for irregularity in the exercise of that jurisdiction. The High Court acted with jurisdiction. The writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At Common Law a writ of habeas corpus was available to the husband for regaining the custody of his wife if she was wrongfully detained by anyone from him without her consent. What amounts to wrongful detention of the wife is, of course, a question for the Court to decide in each case and different circumstances may exist either entitling or disentitling a husband to this remedy. There was also no material irregularity vitiating the order for inexpediency is not the same thing as irregularity and all that has been pointed out is that the High Court acted without sufficient enquiry and deliberation. We shall say something about this because this criticism is perhaps justified. Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used. Then there is the remedy of a civil suit for restitution of conjugal rights. Husbands take re 1 SCI/64 7 98 course to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case. It is of course singularly inappropriate in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. In the present case the police had before them a report by the appellant that Kaniz Fatima had not returned home and on search the police found her in a house where she normally would not be found unless she went there herself or was carried there against her will. The police arrested Mahesh in the house and examined Kaniz Fatima and her statement was as follows: " . . . . . I had sat for the High School Examination from the Hamidia College, Allahabad this year i.e. 1960. The result was out on the 17th of June 1960. I failed in the examination, I felt much depressed, as it was at my instance that my parents had sent me to study in the school. On my having failed, my parents often passed sarcastic remarks at me. I felt much grieved and made up my mind to leave the house and move away for some time to the house of my aunt (mother 's sister) named Sardar Begum, who was married to Shri Ziarat Hussain and was living at Rani Mandi. Therefore, I left my house for Rani Mandi in the very early hours as I had been to Rani Mandi on the screened rickshaw from my house several times, therefore, I thought that I would find out my way. As I had left the house without the knowledge of my parents, hence I had no money with me even to hire a rickshaw to go to Rani Mandi. I was proceeding for Rani Mandi when I lost the way and when I could not find the way 99 to Rani Mandi even after covering a long distance, these two men Mahesh and Sudama met me in the way. 1 inquired from them about the way. Thereupon Mahesh told me that they would lead me to Rani Mandi. Having pretended to take me to Rani Mandi Mahesh fraudulently took me to that house in Gujrati Mohalla from where I have been recovered. In addition to Mahesh, his companion Sudama was also there. Being pushed in, I was thrust in the house from where I have been recovered. Since then, I have been kept in concealment in that house against my will up to this day. They have committed the bad act with me by force. My age is about 15 or 16 years. 1 don 't know my age in the college register. " Later Kaniz Fatima stated in writing that she wanted to return to the appellant. Kaniz Fatima had described her age as 15 or 16 years and in view of her allegation that she was compelled to sexual intercourse and brought to the house by a trick, offences under sections 363,366 or 368, Indian Penal Code, depending on her age, and section 376, Indian Penal Code were alleged against Mahesh. If Kaniz Fatima was below 18 years of age there would be an offence under section 368, Indian Penal Code at the very least unless she was married to Mahesh because Mahesh admitted that he had sexual intercourse with her. In these circumstances, with a prosecution pending against Mahesh the learned Judges might well have satisfied themselves first about the factum of marriage and the age of the girl with more circumspection. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course especially when a man seeks the assistance of the Court to regain the custody of a woman. Before a Court accedes to this request it must satisfy itself at least prirna facie that the person claiming the writ is in fact the husband and further whether valid marriage between him and the woman could at all have taken place. 100 In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from school registers which showed that on June 20, 1960 she was under 17 years of age. There were also the affidavit of the father stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam. As against this the learned Judges apparently held that Kaniz Fatima was over 18 years of age. They relied upon what was said to have been mentioned in a report of the Doctor who examined Kaniz Fatima, though that report was not before them. Reference to it was made in the affidavits of Mahesh and the Sub Inspector which were both hearsay and not admissible under the Evidence Act in proof of the contents of a document. The primary documentary evidence ought to have been summoned. The High Court thus reached the conclusion about the majority without any evidence before it in support of it and in the face of direct evidence against it. With regard to the marriage, the learned Judges referred to the denial by the appellant on personal knowledge that conversion to Hinduism or marriage had taken place but they did not look into the affidavits of Mahesh himself on the subject. These affidavits create some doubt. Mahesh stated that he first met Kaniz Fatima on the 25th October, 1959 and that they fell in love with each other and decided to marry but "there were hurdles in their way" and marriage with the "consent of their respective parents became impossible". Ram Nath 's affidavit (part of which even Mahesh accepted) showed that Mahesh 's father was dead and his mother had remarried. There would have been very little difficulty with regard to his parents, if there were any. The question of the consent of the parents of Kaniz Fatima never arose. The marriage surprisingly enough was said to have taken place two months after the first meeting and the date mentioned was Dec. 25, 1959. The 101 affidavit of the appellant was that 25th December, 1959 was a holiday and Kaniz Fatima was with him and that no conversion or marriage had taken place that day. The appellant 's affidavit on personal knowledge that no marriage had taken place was therefore a proper affidavit. It could not be stated that he could not swear to such a fact on personal knowledge. The affidavits of Mahesh filed from time to time showed contradictions which apparently went unnoticed. In his first affidavit filed with the petition he stated that Kaniz Fatima and he had decided to get married "secretly" and that the marriage was done without the knowledge of the parents of either party to the marriage and that he and Kaniz Fatima met after marriage "only clandestinely". In another affidavit he stated that the marriage took place "at the residence of the applicant amidst the respectable persons of the Mohalla and the community" which could hardly be called a 'secret ' marriage. In the same affidavit he also stated that since marriage Kaniz Fatima and he "were living together and cohabited in the aforesaid premises" and that it was only "after the lapse of four months" that Kaniz Fatima was taken away from his house. His exact words have been reproduced from his affidavits. This contradiction was pointed out in the affidavits of the appellant but the learned Judges declined to go into it because they were of opinion that the question of marriage and other questions arising therefrom were irrelevant. The learned Judges did not see that even the eligibility of Mahesh to marry Kaniz Fatima was called in question because it was alleged on affidavit that he had a wife already living. Under sections 5 and 11 of the Hindu Marriage Act (XXV of 1955) a second marriage, with a previous married wife living, is null and void. Mahesh admitted that he was previously married but he stated that he had divorced his wife according to the custom of the caste and that his former wife married another person and was living with him. The learned Judges referred to these facts and merely stated that as he was a Kori or Kachhi, divorce was possible but did not try to 102 ascertain whether divorce as alleged had taken place or not. These were some of the circumstances which remained undetermined when the Court ordered the production of the girl in Court. There is no doubt that the proceeding is a discretionary one. Whether the Court feels satisfied with one affidavit or with another is a matter mainly of its opinion and conviction. The learned Judges must have felt impressed by the affidavit of Mahesh, because there was nothing else before them in support of his version. They did not ask him to produce affidavits from the respectable persons of the "Mohalla and community" before whom the marriage and conversion was said to have taken place or even to produce the photograph which he asserted was taken of Kaniz Fatima and himself by a photographer, Inspite of this if they ordered the production of Kaniz Fatima they acted with jurisdiction. Even if some other person may consider the order inexpedient, the order had to be carried out unless it was impossible for the appellant to comply with it. For his refusal to comply with it he has been punished and we need express no sympathy with him but we cannot help expressing a sense of doubt about the truth of some of the statements of Mahesh in his affidavits. In our opinion the writ nisi in this case for the production of Kaniz Fatima should have been preceded by some more enquiry. It is wrong to think that in habeas corpus proceedings the court is prohibited from ordering an inquiry into a fact. All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received, if the Court requires it. No such absolute rule was brought to our notice. It may be that further evidence would have borne 'out what Mahesh stated and then the order could always be passed for the production of Kaniz Fatima; but if the evidence did not bear out what Mahesh alleged then the order which the appellant disobeyed and for which he has to suffer 103 imprisonment would never have been passed. The learned Judges failed to notice that Mahesh 's affidavit was that she was pregnant 'for 6 months and not as they state that she ran away early in June 1960 because she became pregnant. It would be difficult to hide such an advanced pregnancy till June 20, 1960 when she, left the house. It remains to mention that Mahesh made several other wild assertions which he swore on personal knowledge of whom a few are quoted here as illustrations: ". . . . They in fact want to marry the deponent 's wife to some person belonging to their own community and religious order, knowing it full well that the deponent has legally wedded Smt. Kaniz Fatima and both of them were living together as husband and wife." "That the parents of the deponents wife wish to procure abortion of the conception which she is presently carrying and thereby cause criminal mischief to the deponent 's married life and happiness and marry her again to some other person of their caste and community and religious order. " "That the deponent further apprehends that the police of police station Kotwali in league with the parents of the deponent 's wife are detaining her against her wishes, illegally and forcefully with a view to use her for immoral and criminal inter course and purpose. " These statements some of which could not be true to his personal knowledge went without comment. The aftermath may now be mentioned. Mahesh did not appear in this Court. The notice issued by the Supreme Court to Mahesh was returned with the endorsement that he had left the house without leaving an address behind. As a result of these proceedings, we were informed the police dropped the criminal case. The petition for habeas corpus was not renewed or pressed again in the High Court. Mahesh apparently ceased to take any interest in this case, his wife 104 and his child for whose safety he was so solicitous. Mahesh saved himself from penal consequences if his act in any way had amounted to a crime, and the appellant in trying to save his daughter from him overreached himself and suffered penalty under the law. The High Court relied upon certain cases and Mr. N.C. Chatterjee attempted to distinguish them. The cases referred to by Mr. Chatterjee were The Queen vs Barnardo(1), The Queen vs Barnardo(2), and Thomas John Barnardo vs Mary Ford(3). We do not consider it necessary to refer to them because the principles on which a person is released from private detention and custody are well settled and also well known. The High Court can always order the production of the body of a person illegally detained and can punish disobedience of its order by attachment and commitment. There is neither doubt nor complexity in this proposition, once it is held that the disobedience was wailful. We pass no order in the other appeal but we hope that if Mahesh renews the petition, the High Court will put him to strict proof of his allegations regarding the age, the conversion of Kaniz Fatima and his marriage with her and his lack of interest in her welfare for over three years before ordering a second time that Kaniz Fatima be brought into Court. No. 227 of 1960. Dismissed. No. 228 of 1960. No orders passed (1) 23 Q.B.D., p.305. (2) 24 Q.B.D., p.283.

IN-Abs

Proceedings under section 491 of the Code of Criminal Procedure and article 226 of the Constitution of India were started by one Mahesh for a writ, order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant, her father and for delivery of the said Kaniz Fatima to him. On August 26, 1960, the High Court passed an order by which the objections of the appellant were overruled and he was directed to bring before the Court Kaniz Fatima alleged to be held in unlawful confinement. The appellant was given ten days time to obey the direction. As the direction was not complied with and Kaniz Fatima was not produced in Court 87 the High Court passed another order on September 16, 1960 by which the appellant was committed for contempt and sentenced to simple imprisonment for three months and to pay the costs. The appellant came to this Court by special leave against the orders of the High Court. Held: The order of the High Court committing the appellant for contempt was justified because the High Court rightly reached the conclusion that the appellant having knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wailfully and deliberately disobeying the direction of the Court. In so far as the offence of contempt was concerned, there was manifest disobedience of the order and the High Court could punish by ordering the appellant to be detained in prison. (ii) A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent. Hence the order of the High Court was not without jurisdiction. However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law. In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used. There is also the remedy of a civil suit for restitution of conjugal rights. In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a a clear case. That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman. Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place. (iii) The writ nisi for the production of Kaniz Fatima should have been preceded by some more inquiry. It is wrong to think that in habeas corpus proceedings the Court is prohibited from ordering an inquiry into a fact. All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received if the court requires it. The Queen vs Barnardo, ; The Queen vs Barnardo, and Thomas, John Barnardo v, Mary Ford, , referred to. 88

Appeal No. 472 of 1962. Appeal from the judgment and decree dated December 23, 1960, of the Bombay High Court in First Appeal No. 464 of 1958. R.K. Garg, S.C. Agarwala, D.P. Singh and M.K. Ramamurthi, for the appellants. S.V. Gupte, Additional Solicitor General, V.D. Mahajan and R.N. Sachthey, for the respondent. October 23, 1963. The Judgment of the Court was delivered by WANCHOO J. This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court. The appellant was in the service of the Union of India. He was appointed on June 11, 1949 as an officiating Assistant Director Grade II in the office of the Textile, Commissioner, Bombay and was working as such till September 15, 1954. The appointment was temporary and his services were liable to be terminated on one month 's notice on either side. He was posted after the date of his appointment in the Textile Commissioner 's office at Ahmedabad and continued to work there 193 till February 1954. He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15, 1954. No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him. He therefore brought a suit in the City Civil Court at Bombay, and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner 's office at Ahmedabad was against him. Because of this on December 29, 1953, the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him. The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954. While he was at Bombay he received the notice terminating his services. He claimed that he was a quasi permanent employee under the Central Civil Services (Temporary Service) Rules, 1949, (hereinafter referred to as the Rules) and no action under r. 5 of the Rules could be taken against him. He was further entitled to the protection of article 311 of the Constitution and as his services were terminated without complying with that provision the order was bad and liable to be set aside. It was further contended that if r. 5 applied to him, it was bad inasmuch as it was hit by article 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory. The appellant therefore prayed that the order of August 13, 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service. There was also a claim for arrears of salary and costs of the suit and such other consequential reliefs as the court might deem fit to give. The suit was opposed by the Union of India and its main defence was that the appellant was not a quasi permanent employee and that r. 5 of the Rules I SCI/64 13 194 applied to him and that action was properly taken under ' that rule when terminating the appellant 's services by order dated August 13, 1954. It was also contended that r. 5 was perfectly valid and that there was no discrimination practised against the appellant when his services were terminated. It was admitted that the memo. dated December 29, 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary, Government of India, New Delhi and to state why disciplinary action should not be taken against him. It was also admitted that from December 1953 onwards some department inquiry was conducted against the appellant but it was averted that the said departmental inquiry was not pursued as the evidence against him was not considered to be conclusive. But as the appellant 's work was not found satisfactory, he was transferred to Bombay in February 1954 to give him a chance of improvement. As his work and conduct were ultimately found to be unsatisfactory, his employment was terminated under r. 5 of the Rules as he was a temporary employee. On these pleadings three main questions arose for decision before the trial court, namely, (i) whether the appellant was a quasi permanent employee and r. 5 of the Rules did not apply, to him (ii) whether r. 5 was invalid as it was hit by article 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory, and therefore hit by article 16 of the Constitution, and (iii) even if the appellant was a temporary government servant, whether he was entitled to the protection of article 311(2) of the Constitution in the circumstances of this case. The trial court held on all these points against the appellant and dismissed the stilt. The appellant then went in appeal to the High Court. The High Court agreed with the trial court and dismissed the appeal. The appellant then applied for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us. 195 The first question that fails for consideration is whether the appellant was a quasi permanent employee and r. 5 did not apply to him. If the appellant is held to be a quasi permanent employee, he will be entitled to the protection of article 311(2) and as admittedly the provisions of article 311(2) were not complied with in the present case, his suit would have to be decreed and no further question would arise for decision. Rule 3 of the Rules, which falls for consideration in this connection, is as follows: "A Government servant shall be deemed to be in quasi permanent service: (i) if he has been in continuous Government service for more than three years; (ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi permanent capacity has issued a declaration to that effect, in accordance with such instructions as the Governor General may issue from time to time. " The contention on behalf of the appellant is that as there is no conjunction "and" between the two sub clauses of r. 3, a Government servant must be deemed to be quasi permanent if he complies with either of the two sub clauses. It is urged that a temporary government servant will become quasi permanent if he has been in continuous government service for more than three years or if a declaration is made in his favour as required by sub cl. The appellant thus reads the word "or" between the two sub clauses. On the other hand, the respondent contends that looking at the scheme of the Rules the word "and" should be implied between the two sub clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi permanent service. In this connection our attention was drawn to two cases of this Court in which this rule was mentioned. In Parshotam Lal Dhingra vs Union of India,(1) this Court, when referring to r. 3 at p. 858, used (1) [1958] S.C.R. 196 the conjunction "or" between the two sub clauses. Learned counsel for the appellant relies on this to show that we should read the word "or" between the two sub clauses. We are however of opinion that this Court was not specifically dealing with the interpretation of r. 3 in that case and what has been said there about r. 3 was merely for purposes of illustration. The other case of this Court to which reference has been made is K.S. Srinivasan vs Union of India.(1) There while quoting r. 3 at p. 1307, this Court used the word "and" between the two subclauses. That is probably due to the fact that the brochure on "Central Civil Services (Temporary Services) Rules 1949" printed by the General Manager, Government of India Press, New Delhi, 1959, contains the word "and" between the two sub clauses in r. 3. That also in our opinion is not conclusive in favour of the respondent, because it is not disputed before us that in the Government gazette where the Rules were first published, neither the word "and" nor the word "or" appears between the two sub clauses of r. 3. This aspect of the matter was considered by the Bombay High Court in B.M. Pandit vs Union of India(2) where the learned Judges pointed out at p. 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word "and" nor the word "or" appeared between the two subclauses and this position is accepted on behalf of the respondent before us. The question therefore arises whether we have to read the two sub clauses conjunctively or disjunctively. We may add that the Bombay High Court ' in the case mentioned above read the two sub clauses conjunctively and we are of opinion that view is correct. The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind, the North West Frontier Province and Baluchistan (1) ; (2) A.I.R. 1962 Bom. 45. 197 who had come to India on account of the Partition. This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi permanent service. Rule 3 provided in what circumstances a government servant shall 'be deemed to be quasi permanent. Quasi permanent service is defined in r. 2(2) as meaning "temporary service commencing from the date on which a declaration issued under r. 3 takes effect and consists of periods of duty and leave (other than extraordinary leave) after that date. " R, de 3 therefore must be read with r. 2(b) which defines "quasi permanent service". Under r. 2(b), quasi permanent service begins from the date on which a declaration is issued under r. 3. It follows therefore that before a government servant can be deemed to be in quasi permanent service a declaration must be issued under the second sub clause of r. 3, for that is the sine quo non for the commencement of quasi permanent service. Without such a declaration quasi permanent service cannot begin. If therefore the appellant 's contention were to be accepted and a temporary government servant can be deemed to be in quasi permanent service, if only the first sub clause has been fulfilled, viz., that he has been in continuous government service for more than three years, there will be complete irreconcilability between r. 2(b) and the first clause of r. 3. Therefore, reading these two rules together the conclusion is inevitable that we must read the two sub clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi permanent service, namely, (i) that he has been in continuous government service for more than three years, and (ii) that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi permanent capacity has issued a declaration to that effect. It is however urged that the definitions in r. 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of r. 3 the two sub clauses must be read disjunctively. 198 We are of opinion that there is no force in this argument, and as a matter of fact the context of r. 3 itself requires that rule must be read in harmony with the definition of "quasi permanent service" in r. 2(b), for it could not possibly be the intention of the rule making authority to create disharmony between the definition in r. 2(b) and the provision in r. 3. The contention on behalf of the appellants that the two sub clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi permanent service. This will in our opinion also be clear from the scheme of the Rules following r. 3. Rule 4 provides that "a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued, and the date from which it takes effect. " This rule is clearly meant to apply to all quasi permanent employees and shows that no government servant can be deemed to be in quasi permanent service until a declaration has been issued. Rule 6 provides that "the service of a Government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service. " Now under the definition of r. 2(b), quasi permanent service begins with a declaration issued under sub cl. (1)of r. 3. Therefore the protection of r. 6 can only be given to a quasi permanent employee after a declaration has been made. This again shows that a declaration is necessary before a Government servant can claim to be in quasi.permanent service. Rule 7 provides that a government servant in respect of whom the declaration has been issued under r. 3, shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi permanent service. This again shows that a quasi permanent employee can become eligible for permanent appointment only when a declaration has been issued under 199 r. 3. Again r. 8 provides that a government servant in quasi permanent service shall as from the date on which his service is declared to be quasi permanent be entitled to the same conditions of service in respect of leave, allowances and disciplinary matters as a government servant in permanent service holding the specified post. Here again the benefit of r. 8 can only be availed of by a quasi permanent government servant in whose favour a declaration has been made. Then r. 9 provides that a government servant in quasi permanent service shall be eligible for a gratuity under certain circumstances. This gratuity will be at the rate of half a month 's pay for each completed year of quasi permanent service, such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service. This again contemplates a declaration before the benefit of r. 9 can be claimed by a quasi permanent employee. Rule 10 provides that where a government servant in quasi permanent service is appointed substantively to a permanent pensionable post, the entire period of quasi permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension. Now under r. 2(b) quasi permanent service only commences after the declaration and therefore unless a declaration is made, the benefit of r. 10 cannot be taken by a quasi permanent employee. The scheme of the rules therefore clearly shows that a declaration under r. 3 is necessary before a temporary government servant can claim to be a quasi permanent employee. Otherwise if the two sub clauses of r. 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub cl. (1) but will get none of the advantages mentioned above. We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r. 2(b) defining "quasi permanent service" and r. 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub clauses should be read conjunctively and that two conditions 200 are necessary before a government servant can be deemed to be in quasi permanent service, namely, (i) continuous service for more than three years, and (ii) declaration as required by sub cl. (ii)of r. 3. It is not in dispute that though the appellant had been in service for more than three years by 1954, no declaration as required by sub cl. (ii) of r. 3 has ever been made in his case. He cannot therefore claim to be in quasi permanent service. It follows therefore that he cannot claim the benefit of r. 6, which lays down that the services of a government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service. If he could claim the benefit of r. 6, he would have been certainly entitled to the protection of article 311. As he is not entitled to the benefit of r. 6, he cannot claim the benefit of article 311 (9.2) on the ground that he must be deemed to be in quasi permanent service. The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954. The rule that applies to a temporary government servant is r. 5 which lays down that "(a) the service of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant. (b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant; Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances, at the same rates at which he was drawing them immediately before the termination of his services, for the period of the notice or, as the case may be, for the period by which such notice falls short of one month or any agreed longer period." 201 In short r. 5 gives power to the Government to terminate the services of a temporary government servant by giving him one month 's notice or on payment of one month 's pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned. This rule is being attacked on the ground that it is hit by article 16, which provides that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". We have not been able to understand how this rule can possibly be hit by article 16, which provides for equality of opportunity. These Rules show that there are two classes of employees namely, (i) permanent employees, and(ii) temporary employees, the latter being divided into two sub clauses (a) quasi permanent, and (b) temporary. It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate. There can also be no doubt, if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees. Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees. It has been urged on behalf of the respondent that article 16 in any case will not apply to matters relating to termination of service. We do not think it necessary for present purposes to decide whether article 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that article 16 will apply even in the case of rules relating to termination of service. But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate 202 equality of opportunity provided in article 16. The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances. In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service. We are therefore of opinion that considering the nature of the employment of a temporary government servant, a provision like that in r. 5 in respect of termination of service is a. reasonable provision which cannot be said to deny equality of opportunity provided in article 16. The attack therefore on r. 5 on the ground that it is hit by article 16 of the Constitution must fail. It is next urged that even if r. 5 is good, the order by which the appellant 's services were dispensed with was bad, because it was discriminatory. In this Connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifica tions as he had. We are of opinion that there is no force in this contention. This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office. In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in consider ing whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the appellant 's services were terminated because his work was found to be unsatisfactory. We shall deal with the question whether termination in this case is liable to be set aside on the ground that article 311 (2) was not complied with later; but where termination of the service of a temporary 203 government servant takes place on the ground. that his conduct is not satisfactory there can in our opinion be no question of any discrimination. It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is. Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct. A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory. We therefore reject the contention that the appellant was denied the protection of article 16 and was treated in a discriminatory manner. We now come to the last question whether the appellant Was entitled to the protection of article 311(2) of the Constitution, even though he was a temporary government servant. It is well settled that temporary servants are also entitled to the protection of article 311(2) in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank: (see Parshotam Lal Dhingra vs Union of India("). But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. It is also not disputed that the mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions, the court has to apply the two tests mentioned in Parshotam Lal Dhingra 's case(1), namely (1) whether ( ) ; 204 the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. It is on these principles which have been laid down in Parshotam Lal Dhingra 's case() that we have to decide whether the appellant was entitled to the protection of article 311(2) in this case. Before however we consider the facts of this case, we should like to make certain general observations in connection with disciplinary proceedings taken against public servants. It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case there is nothing further to be said and his services terminate when the post comes to an end. Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and,/or conduct of a temporary servant (1) ; 205 may arise on complaint against him. In such cases two courses are open to government. It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this inquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant. In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross examine the witnesses tendered against him. He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so. After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned. The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted 206 on the public servant concerned. It then communicates a copy of the enquiry officer 'sreport and its own conclusion thereon and asks himto show cause why the tentative punishment decidedupon be not inflicted upon him. This procedure is required by article 311(2) of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank. The servant concerned has then an opportunity of showing cause by making a represen tation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh. Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be confused with the regular departmentalenquiry (which usually follows such a preliminaryenquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right. In short 207 a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in article 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in ParshotamLal Dhingra 's case(1) and in Shyamlal vs The Stateof Uttar Pradesh(2) that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant. In Shyamlal 's case(2) what happened was that the government servant concerned was called upon to explain certain matters which cast an imputation upon him; but later it was made perfectly clear to him by the government that it was not holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments, although the government desired to give him an opportunity to show cause why he should not be compul (1) (1958] 1 S.C.R. 828 (2) 208 sorily retired, and after considering his explanation he was compulsorily retired under the relevant service rule. It was held in that case that this did not amount to punishment within the meaning of article 311(2), even though there was some imputation at an earlier stage and even though the servant concerned was asked to explain why he should not be compulsorily retired. As we have said already it is not usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have no right some kind of preliminary enquiry is usually held before the government decides to dispense with their set vice or revert them to their substantive posts. The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of article 311(2). Whether such termination would amount to dismissal or removal within the meaning of article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service. Let us now turn to the facts of this case. On December 29, 1953, a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India. By that memorandum he was informed about four matters and his explanation was called in that connection. The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice. The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made. Instances of these were also brought to his notice. The third matter related to a certain visit to a certain mill on a certain date which was 209 never undertaken. The fourth matter was general relating to his work and conduct being not satisfactory and his not attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director. He was required to submit his explanation by January 6, 1954 and also asked to state why disciplinary action should not be taken against him. The contention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should not be taken against him. Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should not be taken against him. It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him. But though this may appear to be so, what is important to see is what actually happened after this memo randum for the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it. It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being conducted against the appellant, though the written statement went on to say that departmental enquiry was not pursued as the evidence was not considered to be conclusive. In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant. This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were 210 not pursued further. It is however clear that no formal departmental enquiry as contemplated under article 311(2) read with the relevant Central Services Rules was ever held after the notice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross examine witnesses produced against him and would also have been entitled to lead evidence. It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him, no departmental enquiry followed that memorandum and the matter was dropped. That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954, which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad. The respondent 's case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement. The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and conduct were found unsatisfactory even after his transfer to Bombay. On these facts there can in our opinion be no doubt that even if a departmental enquiry was contemplated in December 1953 it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him on December 29, 1953; what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more, the government came to the conclusion that his work and conduct were not satisfactory and therefore decided to terminate his services under r. 5. We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29, 1953, but later decides not to hold a departmental enquiry for taking punitive action, it can never thereafter proceed to take action against a temporary government servant in the terms of r. 5, 211 even though it is satisfied otherwise that his conduct and work are unsatisfactory. The circumstances in this case are in our opinion very similar to the facts in Shyamlal 's case("), the difference being that in that case he was compulsorily retired and in this case the appellant 's services have been terminated. In Shyamlal 's case(1) also at one stage, the government made imputation against his conduct but later withdrew them and did not follow up the matter by holding a departmental enquiry. This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r. 5 because his work and conduct were found unsatisfactory. The order terminating his services makes no imputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil consequences as explained in Parshotam Lal Dhingra 's case(2). We are therefore of opinion that on the facts of this case article 311(2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under r. 5, for the termination of service here does not amount to infliction of the penalty of dismissal or removal. It remains now to consider certain cases on which reliance was placed on either side. Strong reliance has been placed on behalf of the appellant on Madan Gopal vs The State of Punjab(3). In that case Madan Gopal was a temporary government servant. A charge sheet was served on him on February 5, 1955 and he was charged with having taken bribes in two cases. He was also asked to explain why disciplinary action should not be taken against him. He was further asked to state if he wanted to be heard in person and also to put forth any defence. It will be clear that charges were served upon Madan Gopal (1) ; (2) ; (3) [1963]1 3 S.C.R. 716. 212 in that case while in the present case no charges were ever served on the appellant and the communication of December 29, 1953 was headed as a memorandum. Further the charge sheet in Madan Gopal 's case(,) besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence, which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose. Further in Madan Gopal 's case(,) an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner. The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately. On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer. The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one month 's pay in lieu of notice. Obviously in that case a departmental enquiry was held by the enquiry officer, a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report, though he did not use the word "dismiss" or "remove" in his order. In those circumstances this Court held in conformity with what had been said in Parshotam Lal Dhingra 's case(2) that the mere use of the word "termination" would not conclude the matter and as the facts showed as they did in Madan Gopal 's case() that the order was one of dismissal or removal and was passed as a punishment after inquiry, article 311(2) should have been complied with. The facts of that case in our opinion are very different from the facts in the present case. (1) [1963] 3 S.C.R. 716. (2) ; 213 As we have already pointed out no departmental enquiry was really held after the memorandum of December 29, 1953 in this case and no enquiry officer was appointed and no report was made by any enquiry officer. Whatever might have been the intention behind the memorandum dated December 29, 1953, the matter was not pursued and the departmental enquiry if it was ever intended to be held was dropped. The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under r. 5 and dispensed with his services. On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal. The next case is The State of Bihar vs Gopi Kishore Prasad(1). That was a case of a probationer and this Court laid down five propositions therein. It is the third proposition therein on which strong reliance has been placed on behalf of the appellant. It is in these terms : "But, if instead of terminating such a person 's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of article 311(2) of the Constitution. " it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two (1) A.I.R. 1960 S.C. 689. 214 stand more or less on the same footing the protection of article 311(2) would be available. We are of opinion that this is reading much more in the proposition then was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified. The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged. His explanation was then considered and the Government finally decided to discharge him. The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that article 311(2) was applicable in that case and that is why some enquiries were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under article 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned. The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of article 311. All that the third proposition lays down is that if the govern ment chooses to hold an enquiry purporting to act under article 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages. Gopi Kishore Prasad 's case(1) was considered by this Court in a later case in the State of Orissa (1)A.I.R, 215 vs Ram Narayan Das,(1) which was also a case of a probationer. In Ram Narayan Das 's case,(1) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him. This Court in Ram Narayan Das 's case(1) referred to the rules, which provided that " where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by article 31 1. Gopi Kishore Prasad 's case(1) was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad 's case(2) referred to "an enquiry into allegations of misconduct or inefficiency With a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed," which means that where the Government purports to hold an inquiry under article 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein. The third proposition therefore in Gopi Kishore Prasad 's case(2) Must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under article 311(2) but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or (1) ; (2) A.I.R. 1960 S.C. 689. 216 removal. The same view has been taken in Jagadish Mitter vs Union of India(1) We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which article 311(2) applied. It was in our opinion an order which was Justified under r. 5 of the rules and the appellant was not entitled to the protection of article 311(2) in the circumstances. The appeal therefore fails and is hereby dismissed. In the circumstances we pass no order as to costs. Appeal dismissed.

IN-Abs

The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month 's notice on either side. He was appointed in June 1949. On August 1954 he was informed that his services would be terminated from September 1954. No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him. Before such termination the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him. Certain preliminary enquiries were held against him but he was not heard therein. No regular departmental enquiry however followed and the proceedings were dropped. Claiming that he is a quasi permanent servant he brought a suit against the Union of India alleging that the termination of his service was not justified. He prayed in the suit for a declaration that the termination of his service was illegal. He also claimed arrears of salary. The trial Court dismissed the suit and he appealed to the High Court 191 without success. The present appeal was filed on a certificate granted by the High Court. The first contention raised by the appellant was that he was a quasi permanent employee and r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 did not apply to him. Secondly it was contended that r. 5 was invalid as it was hit by article 16 of the Constitution and in any event the action taken against him was discriminatory and therefore hit by article 16. It was further contended that even if the appellant was a temporary servant he was entitled to the protection of article 311 (2) of the Constitution. : (i) Sub cls. (1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained therein should be fulfilled before a Government servant can be deemed to be in quasi permanent service. The Government servant has to show that he has been in continuous Government service for more than three years and that the appointing authority has made a declaration under sub cl. (2) of r. 3. This being the position, since no declaration has been made in his case, the appellant cannot claim the benefits of r. 6 which places a quasi permanent servant and a permanent servant on the same footing in the matter of termination of service. Hence he cannot claim the protection of article 311(2) on the ground that he must be deemed to be in quasi permanent service. B.M. Pandit vs Union of India, A.I.R. 1962 Bom. 45, Purshottarn Lal Dhingra vs Union of India, ; and K.S. Srinivasan vs Union of India, ; , distinguished. (ii) R. 5 which provides for termination of the services of a temporary Government servant by giving him one month 's notice is not hit by article 16. The classification of Government servants into permanent, quasi permanent and temporary is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory. (iii) Where termination of service of a temporary Government servant takes place as it has taken place in the present ease, on the ground that his conduct is not satisfactory there cannot be any question of any discrimination. The contention of the appellant that he was denied the protection of article 16 and was treated in a discriminatory manner is rejected. (iv) Temporary Government servants are also entitled to the protection of article 311(2) in the same manner as a permanent Government servants, if the Government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank. purshottam Lal Dhingra vs Union of India, ; Held, that when a preliminary enquiry is held to determine whether a prima facie case for a formal departmental enquiry is made out in the case of a temporary employee or a Government servant holding a higher rank temporarily there is no question 192 of its being governed by article 311(2). Such a preliminary enquiry may even be held ex parte. It is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the Government servant gets the protection of article 311. Shyamlal vs State of U.P. ; and Purshottam Lal Dhingra vs Union of India, ; , explained. Held, that even if a departmental enquiry against the appellant was contemplated it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him. Simply because the Government issued such a memorandum but later decided not to hold a departmental enquiry for taking punitive action, it cannot be said that the Government can never thereafter proceed to take action under the terms of r. 5 even though it is satisfied otherwise that the appellant 's conduct and work are unsatisfactory. Madan Gopal vs State of Punjab, [1963] 3 S.C.R. 716, State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 S.C. 689. State of Orissa vs Ram Narayan Das, ; and, Jagdish Mitter vs Union of India, A.I.R. distinguished.

Appeal No. 307 of 1963. Appeal by special leave from the judgment and decree dated September 27, 1962, of the Madhya Pradesh High Court in Second Appeal No. 158 of 1962. S.V. Gupte, Additional Solicitor General of India, O.C. Mathur, Revindra Narain and J.B. Dadachanji for the appellant. M.C. Setalvad, Rameshwar Nath and S.N. Andley, for the respondents. October 24, 1963. The Judgment of the Court was delivered by MUDHOLKAR J. This is an appeal by special leave against the judgment of the High Court of Madhya Pradesh dismissing the defendant 's appeal in which he had challenged the decision of the courts below ordering his ejectment from certain premises which are in his occupation as the tenant of the plaintiffs. It is common ground that the defendant was a tenant of the plaintiffs and the rent of the premises in his occupation was Rs. 110 p.m. It is not disputed that the defendant was in arrears of rent from April 1, 1958 to March 31, 1959 to the extent of Rs. 1,020. On April II, 1959 the plaintiffs served a notice on the defendant bringing to his notice the fact of his being in arrears of rent for 12 months and requiring him to remit to them Rs. 1,020 within one month from the date of service of notice and stating that on his failure to do so, a suit for ejectment would be filed against him. In addition to this the notice called upon the defendant to vacate the premises by April 30, 1959 upon two grounds: (1) that the premises were required by the plaintiffs "genuinely for business"; and (2) that the defendant had sublet a portion of the premises to two persons without the permission of the plaintiffs and without having any right to sublet the premises. 242 This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320. It may be mentioned that this amount consisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it on July 4, 1959 and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. In their notice the plaintiffs also stated that they had cashed the cheque under protest. The defendant did not vacate the premises and, therefore, the present suit for eviction was instituted on August 14, 1959. The plaintiffs claim for eviction on the grounds that the premises were required by them bona fide for the purpose of their business and that the defendant had illegally let them out was negatived by the courts below and, therefore, must be left out of question. The only question is whether the plaintiffs are entitled to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him. The tenancy being from month to month it was open to the plaintiffs to terminate it by giving 15 days ' notice expiring at the end of the month of the tenancy as provided for in section 106 of the . The premises are, however, situated in Jabalpur in which the Madhya Pradesh Accommodation Control Act,1955 (No. 23 of 1955) (herein referred as the Accommodation Act) is in force. Section 4 of the Act provides that no suit shall be filed. in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds set out in that section. One of the grounds set out in that section is that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord. It is because of this provision that before the plaintiffs 243 could succeed it was necessary for them to establish that the defendant had failed to pay rental arrears within one month of the receipt by him of a notice of demand. From the undisputed facts it is clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl. (a) of section 4. According to the learned Additional Solicitor General, however, in spite of these circumstances the plaintiffs ' suit could not have been decreed because: (1) the notice of April 11, 1959 was invalid for the purpose of section 106 of the inasmuch as the defendant did not have 15 clear days notice expiring by the end of the month of tenancy; (2) that the notice as well as the default were both waived by the plaintiffs by reason of (a) acceptance of the cheque for Rs. 1,320, which included rent up to June 30, 1959; (b) giving a fresh notice on July 9, 1959 and (c) filing of a suit on August 14, 1959 in which reliance was placed only on the second notice. (3) that the second notice was not valid with reference to the and the Accommodation Act; and (4) that there was no cause of action for the suit on August 14, 1959 under section 5 of the Accommodation Act because no rent was in arrears on that date. We shall deal with the points in the order in which he has mentioned them. The learned Additional Solicitor General contends and rightly that the provisions of section 4 of the Accommodation Act are in addition to those of the and that before a tenant 244 can be evicted by a landlord he must comply both with the provisions of section 106 of the and those of section 4 of the Accommodation Act. The Accommodation Act does not in any way abrogate Ch. V of the which deals with leases of immovable property. The requirement of section 106 of the is that a lease from month to month can be terminated only after giving fifteen days ' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant. Section 106 of the does not provide for the satisfaction of any additional requirements. But then, section 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant. Here the contention is that the ground set out by cl. (a) of that section does exist because the defendant was in arrears of rent for a period of one year and despite service upon him of a notice to pay the amount within one month of receipt thereof, he has failed to pay it. Now, the learned Additional Solicitor General states that the notice of April, 1959 may be a good notice for the purposes of section 4(a) of the Accommodation Act but it is not a good notice for the purposes of Is. 106 of the for two reasons: in the first place it does not purport to determine the tenancy and in the second place the notice falls short of the period of 15 days specified in section 106 of the . The High Court has, however, treated this as a composite notice under section 4(a) of the Accommodation Act and section 106 of the and in our opinion rightly. It has to be observed that the plaintiffs, after requiring the defendant to pay the rental arrears due up to the end of March, 1959 within one month from the date of service of the notice, Proceeded to say "failing which 245 suit for ejectment will be filed". These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts. Even so, the question would arise whether the notice was ineffective under section 106 of the because it was not a notice of 15 clear days. It was held by the Calcutta High Court in Subadini vs Durga Charan Lal(1) that the notice contemplated by section 106 must be notice of 15 clear days. In calculating the 15 days ' notice the day on which the notice is served is excluded and even if the day on which it expires is taken into account it will be clear that the defendant had only 14 clear days ' notice. Therefore, if the view taken in the aforesaid case is correct the period of notice falls short of that provided in section 1.06 of the by one day. The correctness of the aforesaid decision was not questioned by the same High Court in Gobinda Chandra Saha vs Dwarka Nath Patita(2). No decision was brought to our notice in which a contrary view has been expressed. But Mr. Setalvad who appears for the plaintiffs, contends that a notice to quit should be liberally construed. In this connection he referred us to a decision in Harihar Banerji vs Ramsashi Roy (3) In that case the Judicial Committee of the Privy Council has observed at p. 225: . . . that notices to quite, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and, circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed at res magis valeat quam pereat." (1)ILR 28 Cal.118. (2) A.I.R. 1915 Cal. 313, (3) 45 I.A. 222. 246 The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the description of the demised premises and the Privy Council held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for. Here the question is entirely different and that is whether the landlord had given the minimum period contemplated by section 106 of the to the tenant within which to vacate the premises. This provision is evidently intended to confer a facility on the tenant and must, therefore, be so construed as to enable him to have the fullest benefit of that facility. It seems to us that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is not permissible. We, therefore, approve of the view taken in Subadini 's case(1) and hold that the notice dated April 11, 1959 was ineffective as it does not fulfil the requirements of section 106 of the . Mr. Setalvad for the plaintiffs, however, points out that a notice complying with the requirements of section 106 was actually given by the plaintiffs to the defendant on July 9, 1959 and no fault could be found with it since it in fact gave more than 15 days ' clear notice to the defendant to vacate the premises. He further points out that the suit was actually based upon this notice and, therefore, was competently instituted. We think the contention to be correct. This brings us to the second and the fourth points raised by the learned Additional Solicitor General which we will deal with together. His contention is that there were actually no arrears on the date of suit and that unless a tenant is in arrears on the date of suit he is not liable to be evicted because of the provisions of section 4(a) of the Accommodation Act. The opening words of section 4, cl. (a) are as follows: (1) I.L.R. 247 "No suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds: (a) that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord;" This provision clearly speaks of a tenant having failed to make payment to the landlord of the arrears of rent due from him within the time prescribed in that clause. It does not mean that the ground on which eviction is claimed must subsist till the date of suit. It is well to bear in mind that this Provision is quite different from the analogous provisions of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947, or the West Bengal Premises Tenancy Act, 1956. The protection to tenants given by these Acts is more extensive and a tenant in arrears of rent is given time to pay the arrears even after the institution of the suit. Indeed, in order to bring the Madhya Pradesh law in line with these Acts the Accommodation Act has been substituted by the M.P. Accommodation Control Act, 1961 (Act 41 of 1961). Clause (a) of section 12 of that Act entitles a landlord to bring a suit for the eviction of the tenant where the latter has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner. Sub section (3) of that section provides that no order for the eviction of a tenant could be made on the grounds specified in cl. (a) of Sub section (1) if the tenant makes payment of deposit as required by section 13. Sub section (1) of section 25 gives a right to the tenant to make ail application within certain time for depositing the rental arrears in court. The scheme of the new Act is thus a substantial departure in this respect from that of section 4 of the 1955 Act. The learned Additional Solicitor General, however, 248 says that if we look to some of the other grounds specified in section 4 and to the provisions of sections 16 and 17 of the new Act it would appear that when a suit is instituted at the instance of the landlord for the eviction of the tenant the latter must be in arrears on the date of the institution of the suit. In this connection he refers us to the provisions of cls. (g),(h), (j) and (k) of s.4 and contends that the grounds referred to in those clauses must necessarily continue to exist till the dates the institution of the suit and that cl. (a) should be read as containing a similar condition. Clauses (g) and (h) deal with cases where the landlord, broadly speaking., requires the accommodation for his own residence or for his own business. Clause (j) deals with a case where a tenant had given written notice to quit and in consequence of that notice the landlord has contracted to sell or let the accommodation or has taken any other step as a result of which his interests would seriously suffer if he is not put in possession of that accommodation. Clause (k ) deals with accommodation which was let to the tenant for use as a residence by reason of his being in the service of the landlord and the tenant has ceased, whether before or after the commencement of the Act. to be in such service. It is not necessary for us to decide in this case whether the grounds referred to in these clauses must necessarily continue to exist on the date of suit. It is sufficient to say that the language of cl. (a) must be given its natural meaning and that there is no warrant for modifying that language because while dealing with other grounds set out in other clauses, the legislature has used different language. If we were to uphold the contention of the learned Additional Solicitor General we would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to, make payment etc. " It is certainly not open to a court to usurp the functions of a legislature. Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by 249 it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords. As far as sections 16 and 17 are concerned, they are of no assistance to the defendant. It is not necessary for us to reproduce their provisions; but it is sufficient to say that they were intended to give a limited retrospective operation to the provisions of the new section 4. We have no doubt, therefore, that the ground set out in cl. (a) of section 4 need not be shown by the landlord to exist at the date of institution of the suit. All that is necessary for him to establish is that the tenant was in fact in. arrears, that he was given one month 's notice to pay up the arrears and that in spite of this he failed to pay those arrears within one month of service of notice on him. It is said that such an interpretation will lead to this result that the landlord who had served notice upon a tenant under cl. (a) of section 4 and in compliance with which the tenant had failed to pay the arrears within one month of the service of notice, may continue the tenancy of the defaulting tenant, go on receiving lent from him and then at his sweet will may terminate the tenancy. The intention to give such a right to the landlord cannot reasonably, accord ing to the learned Additional Solicitor General, be attributed to the legislature. Theoretically that is possible; but the argument based upon it is farfetched. The landlord who wants to evict a tenant and, therefore, avails himself of the ground furnished by cl. (a) of section 4 would not wait for years to file a suit against his defaulting tenant. It seems to us that in furnishing the ground to the landlord the legislature intended to give only a limited protection to the tenant or to put it slightly differently, the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent. That is all. Indeed, while it is open to a legislature to give wide protection to ever defaulting tenants, it does not follow from it that whenever it gives protection it must be deemed to have given him the protection of the widest amplitude. 250 Then it is said that such an interpretation will deprive a tenant, for whose benefit section 4 was enacted, of the benefit of section 114 of the which provides for relief against forfeiture for non payment of rent. What is forfeiture is set out in section 111 (g) of the , which runs thus: "By forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;" The effect of cl. (a) of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy. It does not convert a periodic tenancy into one of fixed or indefinite duration nor insert therein a clause of re entry on the ground of nonpayment of rent. The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist. The next question is whether, as contended by the learned Additional Solicitor General, the default made by the defendant in failing to pay the arrears within one month of the receipt of the notice dated April 11, 1959, can be said to have been waived by the plaintiffs. It is no doubt true that by cashing the cheque for Rs. 1,320 on July 4, 1959 the plaintiffs received not merely the arrears of rent up to March, 1959 but also rent upto June 30, 1959. There is no 251 substance in the plea made on their behalf that they had received the amount under protest. In the first place this is not a case to which illustration (a) to section 113 of the which says that acceptance of rent falling due after the expiry of a notice to quit amounts to waiver of the notice applies. Then again when the plaintiffs cashed the cheque they had not filed a suit on the basis of the notice of April 11, 1959. Merely saying that they accepted the money under protest is, therefore, of no avail to them. Even so, it is difficult to infer, merely from the acceptance of the payment, a, waiver of the right which had accrued to them under section 4(a) of the Act in consequence of the default made by the defendant in paying arrears of rent. The reason is quite simple. The tenancy, as was indeed argued by the learned Additional Solicitor General, hah not be en validly terminated by the notice of April 11 , 1959 and therefore the relationship of landlord and tenant continued. Consequently the plaintiffs were within their right in accepting the rent and cannot be fastened with the intention to waive the default just because of this action since the defendant was, by virtue of the Accomodation Act entitled to remain in possession as tenant and liable to pay rent. The learned Additional Solicitor General, however, faintly contended that if the notice of April 11, 1959 could also be construed as being intended to be notice under section 106 of the then even though it was ineffective the acceptance of rent by the plaintiffs on July 4, 1959 amounted to a waiver of the right accruing from the notice. As we have already indicated, so far as the suit is concerned, it is based upon the notice of July 9, 1959, that is to say, the eviction of the defendant is claimed on the basis of a notice requiring him to quit by the end of July, 1959. The right accruing to the plaintiffs to institute the suit on the basis of this notice has not been waived at all and the receipt by them of rent prior to this date does not by itself terminate the right accruing to them under the notice dated July 9, 1959. It may be that if the notice of April 11 , 1959 is construed 252 as a composite notice, that is, one contemplated by cl. (a) of section 4 as also one under section 106 of the , acceptance of the rent could, along with other circumstances, have led to the inference of waiver of the right flowing from the notice under section 106 of the . But it is difficult to see how such a construction of the notice can at all support a plea of waiver of the right accruing from cl. (a) of section 4. As already pointed out, the notice of April 11, 1959 in so far as it purported to be under section 106 of the was ineffective and, therefore, the relationship of landlord and tenant continued between the plaintiffs and the defendant. Accepting rent under such circumstances from the defendant cannot justify the inference of waiver of quite a different right and that is to take advantage of the statutory right under section 4 of the Accommodation Act accruing by reason of the default made in the payment of rental arrears. Indeed, the notice of April 11, 1959 as it stands, could not by itself have furnished the plaintiffs with the right to institute a suit. Till they acquired that right, not only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to. Therefore, from the sole circumstance of acceptance of rent after April 11, 1959 waiver cannot at all be inferred. We are, therefore, unable to accept the argument of the learned Additional Solicitor General that by cashing the cheque for Rs. 1,320 the plaintiffs waived all rights which accrued to them under the notice dated April 11, 1959. As we have already said, no right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises. So far as the right accruing under section 4 (a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the 253 rent by the plaintiffs would not by itself operate as waiver. As regards the last point, we have in fact dealt with it already. What was contended was that the notice of April 11, 1959 was not a valid notice with reference to both the laws, that is, the and the Accommodation Act. We have pointed out that though the notice could be construed to be composite notice it was ineffective in so far as it purports to be under section 106 of the . It was not suggested that in so far as it was a notice under the Accommodation Act it was invalid. There is, therefore, nothing more to be said about it. For the foregoing reasons we uphold the decree of the High Court and dismiss the appeal with costs. Appeal dismissed.

IN-Abs

The defendant was a tenant of the plaintiffs. The defendant was in arrears of rent for one year to the extent of Rs. 1,020. On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the date of service of notice, failing which suit for ejectment would be filed. This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320. This amount consisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. The defendant did not vacate the premises. Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him. From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl. (a) of section 4 of the Madhya Pradesh Accommodation Control Act, 1953. Held:(i) Though the notice dated April 11, 1959 could be construed to be composite notice under section 4(a) of the accommodation Act and section 106 of the it was ineffective 240 under section 106 of the because it was not a notice of 15 clear days. In the present case, the defendant had only 14 clear days ' notice. Subadini vs Durga Charan Lal, I.L.R. and Gobind Chandra Saha vs Dwarka Nath Patita, A.I.R. 1915 Cal. 313, approved. Harihar Banerji vs Ramsashi Roy, L.R. 45 I.A. 222, dis tinguished. (ii)The suit was actually based upon the notice dated July 9, 1959 which gave more than 15 days ' clear notice to the defendant to vacate the premises. This notice was a valid notice under section 106 of the . (iii)The contention that a suit under cl. (a) of section 4 of the Act is not maintainable unless a tenant is in arrears on the date of the suit, cannot be sustained. If this contention had to be accepted it would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to make payment etc. " It is certainly not open to a court to usurp the functions of a legislature. Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords. (iv)The ground set out in cl. (a) of section 4 need not be shown by the landlord to exist at the date of institution of the suit. All that is necessary for him to establish is that the tenant was in fact in arrears, that he was given one month 's notice to pay up the arrears and that in spite of this he failed to pay these arrears within one month of service of notice on him. (v)The effect of cl. (a) of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy. The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist. (vi)By cashing the cheque for Rs. 1,320 the plaintiffs did not waive all rights which accrued to them under the notice dated April 11, 1959. No right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises. So far as the right accruing under section 4(a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not by itself of operate as waiver.

ivil Appeal No. 672 of 1962. Appeal by special leave from the judgment and order dated December 10, 1958, of the Patna High Court in Appeal from Appellate Decree No. 716 of 1954. S.P. Varma, for the appellants. Sarjoo Prasad and Mohan Behari Lai, for the respondents. 107 October 10, 1963. The Judgment of P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo and J.C. Shah JJ., was delivered by Subba Rao J. Raghubar Dayal J. delivered a separate Opinion. SUBBA RAO J. This appeal by special leave is directed against the judgment of the High Court of ' Judicature at Patna and raises mainly the question of the scope of the right of pre emption under the Mohamedan law as applied by custom in Bihar. The facts lie in a small compass. On June 17, 1930, Chathilal Sah of Sahebganj, who was the owner of a house and two golas bearing holdings Nos. 184 and 185 situated in mahalla Sahebganj, executed a will bequeathing the said property to his daughter Parbati Kuer and nephew Ram Swarup in equal shares. Under the said will Ram Swarup was to get the entire property in case Parbati Kuer died unmarried or issueless. On July 18, 1940, Ram Swarup sold one half of the said property to the plaintiff respondent 1. On July 27, 1942, the plaintiff respondent 1 acquired under a patta some lands adjoining the said property. On October 10, 1949, defendant 3 (respondent 3 herein), alleging to be the husband of the said Parbati Kuer, sold the remaining half of the disputed property to defendants 1 and 2. It may be mentioned at this stage that the land on which the said house and golas stand is Dih Basgit Lagani (rent paying) land. On December 10, 1949, respondent 1 filed Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra for a declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the said property to him. To that suit, the first appellant and his two sons were made defendants 1, 2 and 2A and their vendor was made defendant 3. The defendants contested the suit, inter alia, on the ground that the ceremonies of pre emption were not performed and that under the Mohamedan, law the plaintiff was not entitled to pre emption, as the land on which the said house and golas stood was "rent paying" land. The learned Munsif dismissed the suit. But, on appeal the Subordinate 108 Judge of Chapra allowed the appeal and granted a decree for pre emption in favour of the plaintiff respondent 1. On appeal, the High Court agreed with the Subordinate Judge and dismissed the appeal. Defendants 1, 2 and 2A have preferred the present appeal by 'special leave against the Judgment of the High Court. Mr. Varma, learned counsel for the appellants, raised before us the following four points: (1) the right of pre emption infringes the fundamental right of a citizen under article 19(1) (f) of the Constitution and it is not saved by cl. (5) thereof: (2) the first respondent failed to establish his title and, therefore, his suit should have been dismissed on that ground; (3) the ceremonies of pre emption were performed only on October 11, 1949 whereas the sale deed in favour of the appellants was executed and registered on October 20, 1949 and, as the said performance of the ceremonies was premature, they having been performed before the sale was completed, the right of pre emption could not be enforced; and (4) there is no right of pre emption in respect of leasehold interest and, therefore, there cannot be a right of pre emption in respect of a house standing on such land, as Mohamedan law does not recognize a right of pre emption in mere super structure. Mr. Sarjoo Prasad, learned counsel for the respondents controverts the correctness of the said propositions. We shall deal with his arguments in the course of the judgment. To appreciate the first contention, some dates may be recapitulated. Respondent 1 purchased one half share of the property by a sale deed dated July 18, 1940. Appellants 1 and 2 purchased the other half of the property on October 10, 1949. The suit was filed on December 10, 1949. The Munsif dismissed the suit on April 14, 1953. The Constitution came into force on January 26, 1950. The appellants had no fundamental right on the date when they purchased the property. But it is said that under the law of pre emption a person who seeks the assistance of a court with a view to enforce the right of pre emption is bound to establish that the 109 right existed on the date of the sale, on the date of the institution of the suit, and also on the date of the decree of the primary court See Nuri Mian vs Ambica Singh(1) and, therefore, the restriction on the appellants ' fundamental right to acquire the property was not finally imposed before the Constitution, but became crystallized into an irrevocable restriction only at the time of the passing of the decree which was subsequent to the coming into force of the Constitution. We need not express our opinion on this question, as it has been held by this Court in Bhau Ram vs Baij Nath(2) that a right of pre emption vis a vis co sharers was not an unreasonable restriction on the fundamental right of a person to acquire, hold and dispose of property. But learned counsel contends that decision should be confined to a case of co sharers who are related to each other, and should not be extended to co sharers who are not related to each other. Reliance is placed upon the following observations in that judgment found at p. 1483: "If an outsider is introduced as a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. " This sentence does not, in our view, sustain the distinction sought to be made by the learned counsel between co sharers who are relatives and co sharers, who are not relatives. The word "outsider" in the said passage can only mean a person who is not a co sharer. The judgment of this Court finally settled the question as between co sharers. Following the decision we hold that the law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 19 (1) (f) of the Constitution. The second question, namely, that of the plaintiff 's title does not call for consideration by us. It was not raised in the courts below, and it being a pure question of fact, we cannot allow it to be raised for the first time before us. We, therefore, disallow it. (1) Cal. (2) ; 110 The next point raised by the learned counsel is that the ceremonies of pre emption performed in this case were premature, as the sale was completed only on October 20, 1949 whereas the ceremonies were performed on October 11, 1949. This Court, by a majority, held in Ram Saran vs Domini Kuer(1) that the registration under the Registration Act is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in section 61 of that Act. Learned counsel contends that a perusal of the sale deed dated October 10, 1949, ex facie shows that it was copied only on October 20, 1949. The question as to when a document was copied out in the concerned register is certainly a question of fact. The argument was not raised either before the trial court or before the first appellate court. No issue was framed on the point. It was raised for the first time before the High Court. The learned Judges of the High Court pointed out that if the appellants wanted to take advantage of the said point, it was their duty to have raised it either in the trial court or in the first appellate court and to have adduced evidence by calling for the register from the registration department to show on what date the actual copying of the record was made under section 61 of the Registration Act. In the circumstances, the learned Judges refused to allow the appellants to raise the point. The High Court, in our opinion, was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal. If the plea had been taken at the earliest point of time, the respondents might have had many defences and might have explained the various dates found on the documents. We cannot allow the appellants to raise the said plea. Now we come to the substantial point raised in the appeal. The right of pre emption is sought to be enforced in respect of a rent paying land with a house thereon. Learned counsel for the appellants contends that the right of pre emption does not arise (1) ; 111 on the sale of a leasehold interest in land and that in the absence of such a right there cannot be a right of pre emption in respect of the super structure alone. Learned counsel for the respondents, on the other hand, contends that under Mohamedan law the right of pre emption exists in the case of akar i.e., a house or mansion, to enable the co sharer to have peaceful enjoyment thereof and that the fact that there is no right of pre emption in respect of a leasehold interest in land does not in any way detract from that right. He further contends that whatever might have been the strict incidents of the right of pre emption under Mohamedan law, this Court cannot ignore the modern evolution of law recognizing the transferability and heritability of leasehold interest in land. Before we consider the problem thus presented for our decision, it would be convenient at the outset to notice certain general principles relevant to the present enquiry. It has not been disputed that Hindus in the Province of Bihar came to adopt the Mohamedan law of pre emption as a custom. This was because under the Muslim rule the law of pre emption under the Mohamedan law was administered as a rule of common law of the land in those parts of the country which came under their domination. We must, therefore,. look to Mohamedan law to ascertain the incidents of the right of pre emption unless it is established in a particular case that by custom the said law has been modified to any extent. Being a customary law, it is not permissible for courts to extend the custom beyond the limits within which upto now it has been recognized. The concept of rationalization is out of place in the ascertainment of the customary incidents of the right of pre emption. This Court in Bishan Singh vs Khazan Singh(1) considered the law on the subject and laid down the propositions flowing from the discussion. The following propositions are relevant to the present enquiry: (1) The right of pre emption is simply a right of sub (1) 78. 112 situation, but not of re purchase i.e., the pre emptor takes the entire bargain and steps into the shoes of the original vendee; (2) it is a right to acquire the whole of the property sold and not a share of it; and (3) the right being a very weak right, it can be defeated by all legitimate methods, such a.s the vendee allowing the claimant of a superior or equal right being substituted in his place. It is, therefore, settled law that the pre emptor must take the entire bargain: he cannot split up the bargain and claim to be substituted in respect of a portion of it either on the ground that he does not require a part of it or for the reason that he is entitled to claim pre emption only in respect of a part of it. Further, the right being a weak one, a court need not be astute to rationalize the doctrine so as to make it fit into modern trends of property law. Indeed, it should be reluctant to extend it beyond the incidents clearly recognized by Mohamedan law or by custom. With this background let us now turn to the question that arises in this case. The subject can conveniently be considered under three heads: the pre emptor; (ii) the vendor; and (iii) the property in respect of which the right is claimed. In Baillie 's "Digest of Moohummudan Law" the following passage appears at p. 478: "When it is said that akar (such as mansions, vine yards and other kinds of land) are proper objects of the right of pre emption, it is by virtue of a right of milk, or ownership, that they are so. " Mahmood 3. in Gobind Dayal vs Inayatullah(1) observed at p. 779 thus: "pre emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as these 113 on which such latter immovable property is sold to another person. " The same learned Judge in Sakina Bibi vs Amiran(1) states that in the pre emptive tenement (the tenement by the ownership of which the pre emptor wants to exercise his right of pre emption ), the pre emptor should have vested ownership and not a mere expectancy of inheritance or a reversionary right, or any other kind of contingent right, or any interest which falls short of full ownership. Beaumont C.J. in Dashrathlal vs Bai Dhondubai(2), after considering the law on the subject, accepted the view that the custom of preemption only exists as between free holders, that is to say neighbouring lands in respect whereof the custom is claimed to apply must be freehold and that the land sought to be pre empted must also be free hold. This Court, in Shri Audh Bihari Singh vs Gajadhar Jaipuria(3), has laid down the correct legal position thus: ". . the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself." This legal requirement of the full ownership of the pre emptor may be traced either to the fact that "in ancient times Mohamedan law did hot recognize leases although it recognized hire of|and for the purpose of user, or to the circumstance that the right was conferred to enable the pre emptor to prevent an undesirable person from becoming his neighbour" which would not be the case if he was only a temporary occupant of the property in respect whereof the right arose. Whatever may be the reason, it may safely be held now that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption. (1) (1888)I.L.R.10 All. 472, 477. (2) A.I.R. 1941 Bom.262. (3) ; , 80. 1 SCI/64 8 114 The next question, namely, the quantum of interest which the vender shall possess in the land sought to be pre empted depends upon the doctrine of reciprocity. Unless the land in respect of which the custom is claimed and the land sought to be pre empted are freeholds, the principle of reciprocity will be defeated. To illustrate: "A" has full ownership in a land in respect of which he claims the right of pre emption;the co sharer vendor has only a leasehold interest in respect of the land sought to be pre empted; if the pre emptor had sold the land earlier, the vendor having only a leasehold interest in his land, could not have claimed the right of pre emption in respect of his land, for he had no full ownership in the land. The absence of this reciprocity gives an advantage to one of the sharers which the Mohamedan law does not permit. This doctrine of reciprocity has been succinctly stated by Mahmood J. in Gobind Dayal vs Inavatullah(1) in the passage we have extracted earlier. In Mt. Bibi Saleha vs Amiruddin(2) the said doctrine was restated. It was held therein that a mukarraridar holding under a co sharer had no right to pre empt as against another co sharer and as a mukarraridar could not claim pre emption, the co sharer on the doctrine of reciprocity, which is well understood in the Mohamedan law, could not claim pre emption against the mukarraridar. A Full Bench of the Bombay High Court in Deshrathlal vs Bai Dhondubai(3) has given its approval to the said principle. This Court in Shri Audh Behari Singh vs Gajadhar Jaipuria(4) succinctly put the legal position in the following words: "The crux of the whole thing is that the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself. " That leasehold interest is not subject to the law of pre emption has been well settled: see Baboo Ram (1) All. (2) [1929] I.S.R. 8 pat 251. (2) A.I.R. 1941 Bom. (4) ; ,80. 115 Golam Singh vs Nursingh Sabey(1), Mohammad Jamil vs Khub Lal Raut(2); Sakina Bibi vs Amiran(3); Phul Mohammad Khan vs Qazi Kutubuddin(4); Moorooly Ram vs Baboo Hari Ram(5); Rameshwar Lal vs Ramdeo Jha(6); and Nathuni Ram vs Gopinath(7). Indeed this legal position has not been controverted by learned counsel for the respondents. Now let us address ourselves to the main contention of the respondents, namely, that the right of pre emption exists in the Mohamedan law in respect of akar which includes a building, that the main purpose intended to be served by the said right is to prevent an undesirable person from becoming the sharer of the house and that, therefore, it would be unrealistic to negative that right in the case of a house on the ground that the land on which the house stands is a leasehold interest. Reliance is placed upon the following passage in Charles Hamilton 's "The Hedaya", 2nd Edn., at p. 558: "It is observed, in the abridgment of Kadooree, that Shaffa does not affect even a house or trees when sold separately from the ground on which they stand. This opinion (which is also mentioned in the Mabsoot) is approved; for as buildings and trees are not of a permanent nature, they are therefore of the class of movables. " Relying upon this passage it is contended that, as in the present case the house was sold along with the ground, the doctrine of "Shaffa" applies to the house. But this passage must be understood on the assumption that the right of pre emption exists in respect of the land on which the house stands. In Baillie 's "Digest of Moohummudan Law", the legal position is made clear. Therein the author says at pp. 479 480: "When a person has purchased a palm tree to cut it down, or when he has purchased it absolutely, there is no right of pre emption in it. But (1) (2) [1921] 5 Pat. L.J. 740. (3)[1888] I.L.R. 10 All. 472, 477. (4) A.I.R. 1937 Pat. (5) [1867] 8 W.R.106. (6) A.I.R. 1957 Pat. (7) A.I.R. 1962 Pat. 226 (F.B.) 116 if it be purchased with its roots and the ground on which it stands, it is liable to the right. The rule is the same with regard to buildings purchased for removal, and the same buildings purchased with their foundations; and there is no preemption in the former case, while there is in the latter. " This passage indicates that a building sold as a superstructure is not subject to the right of pre emption, for it would be in effect a sale of a movable. Unless the house is sold with its foundations, that is to say with the land on which it stands, there is no right of pre emption in regard thereto. Though it may be said that in the present case the house was sold with its foundations, the same principle will have to be applied, for the right of pre emption cannot be invoked in the case of a leasehold interest. In effect and substance the right is sought to be invoked in the case of the building decors the foundations which the law does not permit. Reliance is placed upon the proposition found in para. 370 of Wilson 's Anglo Muhammadan Law, which reads: "If a house is sold apart from the ground on which it stands with a view to being pulled down, so that it is in fact a sale of the materials, no right of pre emption arises with respect to it. If it is sold for occupation as a house, then preemption can be claimed on the ground of vicinage by the owner of any adjoining land or house (and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own no land except that covered by the house). " It is said that the words in the brackets conceding the right of the owner of a site to pre empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre emption in respect thereof, the sale of the house can be pre empted. The opening word 117 of the passage, namely, "perhaps", shows that the author himself is not sure of the legal position. That apart, the illustration only deals with a land in respect of which there can be a right of pre emption, i.e., the owner of the land has a freehold interest therein. Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur vs Nur Ali(1). There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site. It was held that the right of pre emption under the Mohamedan law attached to such house. The judgment is not a considered one. The learned Judges observed at p. 100 thus: "The seller not only sold the materials of the house, but such interest as he possessed as an occupier of the soil. The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed. ' ' The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site. This judgment no doubt supports the contention of learned counsel for the respondents; but the learned Judges have not considered the well settled principle that there cannot be a right of pre emption in respect of a land over which the vendor has no full ownership. The decision suffers from the infirmity that the said well settled principle has escaped the attention of the court. Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh vs Bhagwati Pandey(2). There, the question was whether the pre emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre emption. The pre emptor was birtdar though he was described as a tenant in the Record of Rights for a particular purpose. The court held (1) (1880)I.L.R. 2 All. (2) A.I.R. 1934 Pat. 596. 118 that he was a full owner. This decision does not really support the respondents. There is a direct decision of a Full Bench of the Patna High Court on the question now raised, in Nathuni Ram vs Gopinath(1). There, as here, a right of pre emption was claimed in respect of a house which stood on a leasehold land. After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229: "On a careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that,in case of a sale of different properties, the. right of pre emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre emption cannot be allowed. with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house. " We agree with the conclusion. As this judgment has considered the earlier decisions on the subject, we need not again refer to them. To summarize: A right of pre emption is annexed to full ownership of property of co sharers. It is not attached to property held on subordinate tenure, such as leases etc. It is an incident of the co sharer 's property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the (1) A.I.R. 1962 Pat. 226 (F.B.) 119 property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre emptor, he should be in a position to pre empt the co sharer 's whole bargain. The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot ' operate unless both the co sharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre emption cannot be enforced against the house either, as the pre emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables. We, therefore, hold that the first respondent has no right to pre empt the sale executed in favour of the appellants. In the result, the appeal is allowed, the decrees of the Subordinate Judge 's Court and the High Court are set aside and that of the trial Court is restored. The appellants will have their costs throughout. RAGHUBAR DAYAL J. I agree that the law of pre emption regarding co sharers does not infringe the fundamental right conferred under article 19(1)(g), that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption, that the vendor must have proprietary right in the property sold and sought to be pre empted, that the sale of lease hold interest is not subject to the law of pre emption and that the sale of the super structure of a house is not pre emptible. I also agree that the pre emptor must pre empt for the entire property sold if that be pre emptible. I would, however, not like to express an opinion upon the point whether, in certain circumstances, the pre emptor can or cannot 120 pre empt part of the property sold. There have been cases where partial pre emption has been allowed. Some of the exceptional cases have been referred to at p. 778 of 'Muslim Law as Administered in India & Pakistan ' by K.P. Saksena, IV Edition. In Zainab Bibi vs Umar Havat Khan(1) the preemptor was allowed to pre empt that part of the property sold which was pre emptible and in support of the decision it was stated at p. 457: "So far as the Mohammedan Law is concerned, there is no doubt that where several properties are sold in portions of which a pre emptor has the right of pre emption, he is entitled to preempt that portion only on payment of a proportionate price. On this point there was a consensus of opinion among the three Imams as quoted in the Fatawa Alamgiri, referred to in Omur Khan vs Mooras Khan (1865 N.W.P. H.C.R. 173, 174)" This Court did express an opinion in Bishan Singh vs Khazan Singh(2): "The general law of pre emption does not recognize any right to claim a share in the property sold when there are rival claimants. It is well established that the right of pre emption is a right to acquire the whole of the property sold in preference to other persons (See Mool Chand vs Ganga Jal: ILR 11 Lah. 258, 273) " In that case the dispute lay between two rival preemptors and arose in these circumstances. One preemptor pre empted the entire sale and obtained the decree on condition that he would deposit a certain amount within a certain time. But, before he could deposit the amount, the rival pre emptor instituted another suit for the pre emption of the entire property sold and impleaded in that suit the first pre emptor. The rights of the two pre emptors were found to be equal. The entire property sold was clearly pre emptible. It was, in this context, that the observation (1) (2) ; ,884. 121 was made. It would be a matter for consideration at the appropriate time whether there can be any exception to this general rule that the entire property sold must be pre emptor by the pre emptor in his suit. I would therefore rest my decision on the facts that the sale of the lease hold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and that therefore the plaintiff pre emptor cannot pre empt the sale of the property sold. I therefore agree that the appeal be allowed, the decrees of the Subordinate Judge and the High Court be set aside and that of the trial Court be restored and that the appellants would have their costs throughout. Appeal allowed.

IN-Abs

One Chathilal Sah of Sahebganj, Bihar, was the owner of a house and two golas which stood on a rent paying land and he executed a will bequeathing the said property to his daughter and nephew in equal shares. In 1940 the nephew sold one half of the property to respondent No. 1 who two years later acquired under a patta some adjoining lands. In 1949 respondent No. 3 alleging to be the husband of the daughter sold the remaining half of the property to appellants 1 and 2. In December 1949 respondent filed a title suit for declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the same to him. The trial court dismissed the suit but in the appeal before the Subordinate Judge he succeeded and the High Court dismissed the appeal presented by the appellant. The present appeal is by special leave granted by this Court. Before this Court four contentions were raised by the appellants, two of which being pure questions of fact and not having been raised in the courts below were not considered by this Court. The questions of law raised were (a) the right of pre emption infringes the fundamental right of a citizen under article 19 (1) (f) of the Constitution and (b) there is no right of pre emption in respect of leasehold interest and therefore there cannot be a right of pre emption in respect of a house standing on such land. Held: (i) The law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 19(1) (f) of the Constitution. Bahu Ram vs Baij Nath, [1962] Supp. 3 S.C.R. 724 and Nuri Mian vs Ambica Singh, Cal. (ii) A right of pre emption is annexed to full ownership of property of co sharers. It is not attached to property held on subordinate tenure, such as lease etc. It is an incident of the co sharer 's property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. It does not matter if the inability to take the house arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre emptor, he should 106 be in a position to pre empt the co sharers ' whole bargains. The two doctrines which may, for convenience be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co sharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is no right of pre emption in respect of a land on subordinate tenure the right of pre emption cannot be enforced against the house either, as the pre emptor cannot be substituted for the entire bargain. The right must fail also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables. Case law reviewed. Bishan Singh vs Khazan Singh, ; , Goblad Dayal vs Inayatullah, All 775, Sakina Bibi vs Amiran, All 472, Dashrathlal vs Bai Dhondubai, A.I.R. (1941) Bom. 262, Shri Audh Behari Singh vs Gajadhar Jaipuria; , , Mr. Bibi Saleha vs Amiruddin(1929)I.L.R. 8 Pat. 251, Baboo Ram Golam Singh vs Nursingh Sabey, Mohammad Jamil vs Khub Lal Raut, , Phul Mohammad Khan vs Qazi Kutubuddin, A.I.R. 1937 Pat. 578, Mooroof ly Ram vs Baboo Hari Ram, , Rameshwar Lal vs Ramdeo Jha, A.I.R. 1957 Pat. 695, Nathuni Ram vs Gopinath, A.I.R. 1962 Pat. 226 (F.B), Zahur vs Nur Ali, All 99 and Chariter Dusadh vs Bhagwati Pandey A.I.R. 1934 Pat. Per Raghubar Dayal J While agreeing with the majority judgment on other points, no opinion is expressed on the point whether in certain circumstances the pre emptor can or cannot pre empt part of the property sold. There have been cases where partial pre emption has been allowed. Zainab Bibi vs Umar Hayat Khan, (1936) All. L.J. 456 and Bishan Singh vs Khazan Singh, ; Sale of leasehold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and therefore the plaintiff pre emptor cannot pre empt the property sold. The appeal should be allowed.

Appeal No. 470 of 1963. Appeal by special leave from the judgment and decree dated August 14, 1962, of the Gujarat High Court in Revision Application No. 425 of 1960. S.T. Desai, B. Parthasarathy, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant. N.C. Chatterjee and M.V. Goswami, for the respondent. October 22, 1963. The Judgment of the Court was delivered by SHAH J. Haji Gulamnabi Haji Safibhai hereinafter called 'the plaintiff ' is the owner of certain premises in the town of Baroda, and Vora Abbasbhai hereinafter called 'the defendant ' occupies the premises as plaintiff 's tenant on a monthly rental of Rs. 70. By notice dated December 1, 1956 which was served on December 3, 1956, the plaintiff called upon the defendant to deliver possession of the premises alleging that the latter had failed to pay rent since October 1, 1955. The defendant by his letter dated December 7, 1956 contended that he had paid rent at the agreed rate till April 1, 1956, and that he was entitled to get credit for Rs. 200 being the 160 costs incurred by him for "electric installation" in the premises made with the plain. tiff 's consent, and that the rent stipulated was excessive. On January 5, 1957 the defendant moved the Civil Judge, Junior Division, Baroda under section 11(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, called for the sake of brevity 'the Act ', for an order fixing the standard rent of the premises occupied by him and also for an order under section 11 (3) specifying interim rent. By letter dated January 7, 1957 the defendant informed the plaintiff about the application moved by him and requested the plaintiff to appear in the proceeding, and expressed his willingness to pay such amount as the Court ordered him to pay. On January 8, 1956 the defendant deposited in Court Rs. 500 to the credit of the plaintiff. On January 27, 1957 the plaintiff instituted a suit in the Court of the Civil Judge, Junior Division, Baroda, for a decree in ejectment on the ground of non payment of rent. On February 14, 1957 the defendant applied to the Court for an order specifying the rate at which interim rent may be deposited in Court so long as the standard rent of the suit property was not fixed, and submitted that the dispute between the parties related to fixation and payment of standard rent, and that without prejudice to his contentions he was ready to deposit the amount ordered by the Court. The Civil Judge on the same day ordered: "The defendant to deposit the arrears at the rate of Rs. 51 per month within 15 days from today." Pursuant to this order the defendant deposited Rs. 200 on March 2, 1956 to the credit of the plaintiff and deposited diverse other sums from time to time which by February 11, 1958, aggregated taking into account the amount of Rs. 500 deposited on January 8, 1956 to Rs. 1,479. No further steps it appears were taken in the application moved by the defendant under section 11 for fixation of standard rent but proceeding was amalgamated with the suit as the enquiry about the appropriate standard rent had also to be made in the suit. 161 On March 28, 1958, the Civil Judge, dismissed the plaintiff 's claim for a decree in ejectment. In the view of the Court the standard rent of the premises was Rs. 50 per month, that the defendant had paid the stipulated rent upto April 1, 1956 and that he was entitled to credit for Rs. 150 expended by him3 with the consent of the plaintiff for "electric installation" in the premises occupied by him. Taking into account the aggregate amount deposited, the Court held that the defendant was not liable to be evicted for non payment of standard rent and that in any event it was established that the defendant was ready and willing to pay the amount of standard rent and permitted increases within the meaning of section 12(1) of the Act. In appeal the District Court held that the "proper standard rent" of the premises was Rs. 70 per month, that rent had not been paid by the defendant since October 1, 1955 and that the defendant was not entitled to get credit for ' Rs. 150 spent by him for ' 'electric installation" But the learned Judge held that by depositing, pursuant to the order of the Court of First Instance, interim rent as ordered, the defendant had complied with the requirements of section 12(3) (b), and that he had otherwise proved his readiness and willingness to pay the amount of standard rent and permitted increases. The District Court accordingly confirmed the decree of the Trial Court, insofar as it related to the claim for possession and modified it in respect of the quantum of standard rent, and the consequential adjustment of the amounts deposited in Court. The High Court of Gujarat in exercise of its jurisdiction under section 115, Code of Civil Procedure reversed the decree of the District Court, and ordered the defendant "to hand over vacant and peaceful possession of the premises to the plaintiff within four months from the date of the order". In the View of the High Court the defendant was not ready and willing to pay the standard rent and permitted increases at the date of the suit and that he did not comply 1 SCI/64 11 162 with the requirements of section 12(3) (b) of the Act, because he had not deposited in Court the amount of standard rent at the rate determined by the order of the District Court and had not paid even the interim rent at the rate fixed by the Court of First Instance and that he had not paid costs of the suit which he was bound under section 12(3) (b) to pay. Section 12(1) of the Act confers, subject to certain provisions contained in section 13, protection upon tenants. It provides: "A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act." The clause applies to a tenant who continues to remain in occupation after the contractual tenancy is determined:it does not grant a right to evict a contractual tenant without determination of the contractual tenancy. Protection from eviction is claimable by the tenant even after determination of the contractual tenancy so long as he pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy consistent with the provisions of the Act. The premises in question are situated within the territory of the former State of Baroda and by virtue of section 3 of the Bombay Merged States (Laws) Ordinance VI of 1949 and the Bombay Act IV of 1950 called the Bombay Merged States (Laws) Act, 1950 which extended the Bombay Rents, Hotel and Lodging House Rates (Control) Act, LVII of 1947, to the territory of Baroda, the definition of 'standard rent ' in relation to any premises for purposes residential or nonresidential was enacted by section 5 c1. (10A). The clause provides: 163 " 'Standard rent ' in relation to any premises let for the purpose of residence or for non residential purpose means: (a) where the standard rent is fixed by the Controller under the House Rent Control Order, 1947, made by the Baroda Government, such standard rent, or (b) where the standard rent is not so fixed, subject to the provisions of section 11 (i) the rent at which the premises were let on the specified date, or (ii) where they were not let on the specified date, the rent at which they were last let before that date, or (iii) where they were first let after the specified date, the rent at which they were first let, or (iv) in any of these cases specified in section 11, the rent fixed by the Court: Provided that an increase in rent made in operation immediately before the 30th day of July 1949, in accordance with the provisions of the said House Rent Control Order, 1947, shall be deemed to be included in the standard rent." The expression 'specified date ' was defined in cl. (10) as meaning the first day of January, 1943, in the case of premises let for the purpose of residence and the first day of January 1944 in the case of premises let for non residential purpose. Where standard rent is not fixed under el. (a) in sub section (10A) of section 5 recourse must ordinarily be had to the Court for fixation of standard rent, under section 11 of the Act. Section 11 provides: "(1) In any of the following cases the Court may, upon an application made to it for that purpose, or in any suit or proceeding, fix the standard rent at such amount as, having regard, to the provisions of this Act and the circumstances of the case, the Court deems just 164 (a) where any premises are first let after the first day of September 1940, and the rent at which they are so let is in the opinion of the Court excessive; or (b) where the Court is satisfied that there is no sufficient evidence to ascertain the rent at which the premises were let in any one of the cases mentioned in sub clauses (i) to (iii) of clause (b) of sub section (10) of section 5; or (c) where by reason of the premises having been let at one time as a whole or in parts and at another time in parts or as a whole, or for any other reasons, any difficulty arises in giving effect to this Part; or (d)where any premises have been or at let rent free or at a nominal rent or for some consideration in addition to rent; or (e) where there is any dispute between the landlord and the tenant regarding the amount of standard rent. "(2) If there is any dispute between the landlord and the tenant regarding the amount of permitted increases the Court may determine such amount. (3) If an application for fixing the standard rent or for determining the permitted increases is made by a tenant who has received a notice from his landlord under sub section (2) of section 12, the Court shall forthwith make an order specifying the amount of rent or permitted increases to be paid by the tenant pending the final decision of =the application, and a copy of such order shall be served upon the landlord." (On account of some oversight the section has not been amended in its application to the merged territory of Baroda to make it consistent with the provisions of the Bombay Act IV of 1950. In cl. (b) reference should have been made to sub section (10A) and not sub section But that is a mere drafting error.) Section 11 authorises the Court to fix standard rent on an 165 application made for that purpose, or in any suit or proceeding when for deciding it is necessary to do so. Standard rent is fixed by the Court at such amount as having regard to the provisions of the Act and the circumstances of the case, the Court deems just. Clause (2) authorises the Court to fix the amount of permitted increases. By el. (3) the Court is required in an application moved by the tenant for fixing the standard rent and permitted increases, after he has received a notice under section 12(2), forthwith to make an order specifying the amount of rent which may appropriately be called interim rent, pending the final determination of standard rent. The reason of the rule contained in this clause is obvious: it is to prevent a tenant from making an application for fixation of standard rent a pretext for refusing to pay rent to the landlord. But by an order made under sub section (3) the Court merely specifies the amount of rent payable pending the determination of standard rent: the Court thereby does not fix standard rent within the meaning of section 5(10A) (iv). The protection given by sub section O) of section 12 is subject to the provisions of section 13 and also subject to certain limitations and restriction procedural as well as substantive contained in section 12. Sub section (2) of section 12 provides: "No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the . " It enacts a restriction upon the right of the landlord to sue the tenant in ejectment on the ground of nonpayment of standard rent or permitted increases, by requiring him to give one more opportunity to the tenant to pay rent due by him. Clause (3) (a) of section 12 166 specifies the circumstances in which the tenant is deemed to forfeit the protection. It provides: "Where the rent is payable by the month and there is n.o 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 section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. " In the context the expression "may" has a mandatory content: if the conditions of the clause are fulfilled the Court is bound to pass a decree in ejectment against tenant: Bhaiya Punyalal Bhagwandin vs Bhagwatprasad(1). Clause (3) (b) provides: "In any other case, no decree for eviction shall be passed. in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. " The clause deals with cases not failing within cl. (3) (a) i.e. cases (i) in which rent is not payable by the month (ii) in which there is a dispute regarding the standard rent and permitted increases, (iii) in which rent is not due for six months or more. In these cases the tenant may claim protection by paying or tendering in Court on the first day of the hearing of the suit or such other date as the Court may fix, the standard rent and permitted increases and continuing to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also by paying costs of the suit as directed by the Court. What the tenant has to pay or tender in (1) ; 167 Court to comply with the condition of cl. (b) of sub section (3) is standard rent and permitted increases, and the Court has under cl. (b) of sub section (1) merely the power to fix the date of payment or tender, and not the rate at which the standard rent is to be paid. Power to fix the standard rent of premises is exercisable under section 11(1) alone. To bring his claim within section 12(3)(b) the tenant must pay or tender the standard rent and permitted increases on or before the first day of hearing, or on or before such other date as the Court fixes, and also costs of the suit as may be directed by the Court. It may be noticed that the statute imposes upon the tenant obligation to pay or deposit the amount of costs if the Court so directs, and not otherwise. The observation made by the High Court to the contrary, viz: "It is, therefore, clear that the tenant in order to be entitled to claim the protection of section 12(3)(b) must deposit costs of the suit along with the arrears of standard rent and permitted increases . " is in our judgment erroneous. But in the practical working of cl. (3) (b) some difficulty may arise. Where there is no dispute as to the amount of standard rent or permitted increases, but rent is not payable by the month, or the rent is not in arrears for six months, by paying or tendering in Court the standard rent and the permitted increases and continuing to pay it till the suit is finally decided the protection granted by the clause is made effective. Where there is a dispute as to the standard rent, the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed. The Court would in such a case on the application of the tenant, take up the dispute as to standard rent in the first instance, and having fixed the standard rent, call upon the tenant to pay or tender such standard rent so fixed, on or before a date fixed. If the tenant pays the standard rent fixed, on or before the date specified, and continues to pay or 168 tender it regularly till the suit is finally decided, he qualifies for the protection of cl. (3) (b). If in an appeal filed against the decree, the standard rent is enhanced, the appeal Court may fix a date for payment of the difference, and if on or before that date the difference is paid, the requirement of section 12(3)(0) would be complied with: Clause (4) authorises the Court to pay to the landlord out of the amount paid or tendered by the tenant, such amount towards payment of rent or permitted increases due to him as the Court thinks fit. Then follows an Explanation: "In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under subsection (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. " The Explanation enacts a rule of evidence. 1f after service of the notice upon the tenant by the landlord under sub section (2) of section 12 the tenant makes an application under sub section (3) of section 11 before the expiry of a month and thereafter pays or tenders regularly the amount of interim rent specified by the Court till the disposal of the suit, the Court is bound to presume that the tenant is at the date of the decree ready and willing to pay the standard rent and permitted increases. Section 12(3) (b) requires the tenant to pay the standard rent, and not interim rent, and for the purpose of that clause the expression "standard rent" may not be equated with "interim rent" specified under section 11(3). Compliance with an order for payment of interim rent is made by the Explanation to section 12conclusive evidence of the readiness and willingness to pay the standard rent, but that by itself is not a ground for holding that the interim rent which 169 may be specified under sub section (3) of section 11 is standard rent fixed under sub section (1) of section 11. It is true that the statute requires the tenant to pay or tender in Court standard rent at the rate which may still remain to be fixed by order of the Court such order itself being liable to be varied or modified by an order of a superior Court. But that is not a ground for departing from the definition supplied by the statute. The legislature has prescribed conditions on which the tenant may qualify for protection of his occupation, and one of the important conditions is the readiness and willingness to pay the standard rent and permitted increases, which may be proved by obtaining an order of the Court fixing the rate of standard rent and complying therewith or by complying with the Explanation to section 12 or otherwise. The claim made by the defendant fell within the terms of section 12(3) (b) and not section 12(3) (a). The defendant had contended by his reply dated December 7, 1956, to the notice served by the plaintiff, that the contractual rent was excessive: he had then raised the same contention in the application filed for fixation of standard rent and in his written statement filed in the suit. There is nothing in section 12 to support the contention raised by Mr. Chatterjee on behalf of the plaintiff that the dispute concerning standard rent contemplated by el. (b) of sub section (3) is one which must have been raised before service of the notice under section 12(2). The entire tenor of the section is against that interpretation. On the view we have expressed, the District Court was apparently in error in assuming that by tendering in. Court rent at the rate specified in the order dated February 14, 1957 the requirement of section 12(3) (b) regarding payment or tender of standard rent was satisfied. Standard rent for the purpose of section 12(3)(b) is such rent as is already determined or may be finally determined under section 11(1). But it turned out that the amount deposited by the defendant pursuant to the order of the Court was not less than the amount fixed by the Trial Court. It is true that the defendant 170 did not continue to pay rent regularly till the suit was finally decided, and that deprived him of the protection under section 12(3) (b). The District Court enhanced the standard rent to Rs. 70 and directed adjustment of standard rent against the amount paid in Court. That Court, it is true, did not also strictly follow the requirements of law, but the defect was technical. The Court should have before disposing of the appeal fixed a date for payment of the difference between the Standard rent due and the amount actually deposited in Court. Tile District Court also held that the defendant had otherwise established his readiness and willingness to pay the standard rent. The question which then arises: had the High Court jurisdiction to set aside the order of the District Court in exercise of its powers under section 115 of the Code of Civil Procedure? The District Court on an erroneous view of section 12(3) (b) held that the requirements of that provision were complied with by the defendant, but it also held that having regard to the circumstances, the readiness and willingness contemplated by sub section (t) was otherwise established. The High Court had, in exercise of its powers under section 115 Code of Civil Procedure, no authority to set aside the order merely because it was of the opinion that the judgment of the District Court was assailable on the ground of error of fact or even of law. Jurisdiction to try the suit was conferred upon the Subordinate Judge by section 28(1) (b) of the Act, and the decree or order passed by the Subordinate Judge was by section 29(1) (b) subject to appeal to the District Court Of the District in which he functioned, but all further appeals were by sub section (2) of section 29 prohibited. The power of the High Court under section 115 Code of Civil Procedure was not thereby excluded, but the exercise of that power is by the terms of the statute investing it severely restricted. The High Court may exercise its powers in revision only if it appears that in a case decided by a Subordinate Court in which no appeal lies thereto the Subordinate 171 Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. As observed by the Privy Council in Balakrishna Udayar vs Vasudeva Aiyar(1): " . . . section (section 115 of the Code of Civil Procedure) applies to jurisdiction alone, the irregular exercise or non exercise of it, or illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved . " Therefore if the Trial Court had jurisdiction to decide a question before it and did decide it, whether it decided it rightly or wrongly, the Court had jurisdiction to decide the case, and even if it decided the question wrongly, it did not exercise its jurisdiction illegally or with material irregularity: Rajah Amir Hassan Khan vs Sheo Baksh Singh(2). Mr. Chatterjee for the plaintiff contended that the District Court in declining to pass a decree in ejectment refused to exercise a jurisdiction vested in it by law, and therefore the case fell within the terms of cl. (b) of section 115. Counsel relied in support of his plea upon Joy Chand Lal Babu vs Laksha Chaudhury and others(3). In Joy Chand Lal 's case(a), an application for relief under sections 30 and 36 of the Bengal MoneyLenders Act was dismissed by the Subordinate Judge on the view that the loan in question was a commercial loan which did not fall within the terms of the Act. The Judge however proceeded to consider whether the suit in which the application was made was a suit to which the Act applied, and held that it was such a suit. The High Court of Calcutta set aside the order. In appeal the Privy Council agreed with the High Court that the Subordinate Judge was bound, upon his finding that the loan was a commercial loan, to dismiss the application without determining whether the suit was one to which the Act applied. (1) L.R. 44 I.A. 261 (2) L.R. 11 I.A. 237 (3) L.R. 76 I.A. 131 172 Sir John Beaumont in dealing with the power of the High Court observed: "There have been a very large number of decisions of Indian High Courts on section 115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a Subordinate Court does not by itself involve that the Subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub section (c), nevertheless, if the erroneous decision results in the Subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under sub section (a) or sub section (b), and subs. (c) can be ignored. " The Privy Council distinguished between cases in which on a wrong decision the Court either assumes jurisdiction which is not vested in it or refuses to exercise jurisdiction which is vested in it by law, and those in which in exercise of its jurisdiction the Court arrives at a conclusion erroneous in law or in fact. In the former class of cases exercise of revisional jurisdiction by the High Court is permissible but not in the latter. This was pointed out by this Court in Manindra Land and Building Corporation vs Bhutnath Bannerjee and others(1) wherein after referring to the passage already quoted and another passage from the judgment in Joy Chand Lal 's case(2), the Court observed: "These remarks are not applicable to the facts of the present case. They apply to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is no such ouster of jurisdiction under the provisions of any law, but where it is left to the Court itself to determine certain matters as a result (1) ; (2) L.H. 76 I.A. 131 173 of which determination the Court has to pass a certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is this. In one, the Court decides a question of law pertaining to jurisdiction. By a wrong decision it clutches at jurisdiction or refuses to exercise jurisdiction. In the other, it decides question within its jurisdiction. In the present case, the question whether there was a sufficient cause was exclusively within the jurisdiction of the Court and the Court could decide it rightly or wrongly." Section 12(1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant. It merely confers a protection upon a tenant if certain conditions are fulfilled, and cls. (2) (3) (a), (3) (b) and the Explanation deal with certain specific cases in which readiness and willingness pay standard rent, may either be presumed or regarded as proved. The decision of the District Court that the tenant established or failed to establish his readiness and willingness to pay the standard rent does not affect the jurisdiction of the Court conferred by law upon it, and by wrongly deciding that a tenant is or is not entitled to protection, the Court does not assume to itself jurisdiction which is not vested in it by law or refuse to exercise a jurisdiction which is vested in it by law. Nor does the Court by arriving at an erroneous conclusion on the plea of the tenant as to his readiness and willingness act illegally or with material irregularity in the exercise of its jurisdiction. The High Court was in error in setting aside the decree of the District Court in exercise of the powers in revision under section 115 Code of Civil Procedure. The appeal must therefore be allowed and the order passed by the District Court restored. If any amount has been deposited as standard rent since the order passed by the District Court, the same should be paid over to the plaintiff at the rate of 174 Rs. 70 per month. We direct, having regard to the circumstances, that there shall be no order as to costs in this appeal. Appeal allowed.

IN-Abs

The Appellant was the tenant of the respondent occupying of the latter premises at a monthly rental of Rs. 70. The appellant appealed to the Civil Judge for fixing standard rent under section 11(1) and for specifying interim rent under section 11(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and deposited a certain amount to the credit of the respondent. Subsequently the respondent filed a suit before the Civil Judge for evicting the appellant on the ground of non payment of rent. The Civil 158 Judge ordered the appellant to deposit the arrears of rent at the rate of Rs. 51 per month within 15 days. He substantially complied with his order. The two proceedings were amalgamated. The Civil Judge fixed the standard rent at the rate of Rs. 50 per month and dismissed the suit for eviction on the ground that the appellant was willing to pay the standard rent within the meaning of section 12 of the Act. In appeal the District Court fixed the standard rent Rs. 70 per mensem and found that since the appellant had complied with the order to deposit arrears and since he was ready and willing and ready to pay standard rent he confirmed order of the lower court order of dismissing of the suit. The respondent took the matter in revision before the High Court under section 115 Code of Civil Procedure, 1908. The High Court reversed the order of the District Court and directed eviction on the grounds that appellant was not ready and willing to pay the standard rent, that he had not deposited the standard rent at the rate enhanced by the District Court and that he had not paid the interim rent at the rate fixed by the trial Court. Held: (i) Section 12 (1) of the Act applies to a tenant who continues to remain in occupation even after the determination of the contractual tenancy. Such a tenant is entitled to claim protection from eviction against eviction so long as he is willing and ready to pay the standard rent and permitted increases and observe other conditions under the Act. This protection is subject to the provisions of section 13 and to the limitations contained in section 12(2) and section 12(3) (a). The expression "may" in section 12(3) (a) has a mandatory content: if the conditions of this clause are fulfilled the court is bound to pass a decree in ejectment against the tenant. Bhaiya Punyalal Bhagwandin vs Bhagwat prasad; , (ii) The power to fix standard rent is exercisable under section 11(1) alone. To bring his claim within section 12(3) (b) the tenant must pay or tender the standard rent fixed by the court and permitted increases on or before the first day of hearing or on before such other date fixed by the court. The amount of costs has to be paid or deposited only if the court so directs. If in appeal the standard rent is enhanced the appeal court may fix a date for payment of the difference and if the tenant pays the difference on or before the day so fixed he will be entitled to get the protection of section 12(3) (h). (iii) Explanation to section 12 erects a rule of evidence. If the tenant pays or tenders regularly the interim rent specified by the court till the disposal of the suit the court is bound to presume that the tenant is at the date of the decree ready and willing to pay the standard rent and permitted increase. The expression "standard rent" in section 12(3) (b) shall not however to be equated with "interim rent" in section 11 (3). There is nothing in section 12 to support the contention that the dispute concerning standard rent contemplated by cl. (b) of sub section (3) is one which must be raised before service of notice under section 12(3). 159 (iv) The District Court ought to have before disposing of the appeal fixed a date for payment of the difference between the standard rent due and the amount actually deposited in court. The error committed by the District Court was however only technical. Held, further the High Court in exercise of its power under section 115 Code of Civil Procedure had no authority to set aside the order of the District Court merely because it was of opinion that the judgment of the District Court was assailable on the ground of error of fact or even of law. The High Court may exercise its power under that section only if the subordinate court has acted without jurisdiction or has failed to exercise its jurisdiction or has acted with material illegality or irregularity. Balakrishna Udayar vs Vasudeva Aiyar, L.R. 44 I.A. 261, Rajah Amir Hassan Khan vs Sheo Baksh Singh, L.R. 11 I.A. 237, Joy Chand Lal Babu vs Laksha Chaudhury, L.R. 76 I.A. 131, distinguished. Manindra Land and Building Corporation vs Bhutnath Bannerjee, ;

Civil Appeals Nos. 149 to 154 of 1959. Appeals by special leave from the judgment and order dated February 25, 1958 of the former Bombay High Court at Rajkot in Civil Revision Applications Nos. 46, 49,55, 57, 58 and 59 of 1958. S.P. Sinha, Shahzadi Mohiuddin and M.L Khowaja, for the appellants. N.S. Bindra and R.N. Sachthey, for the respondents. October 21, 1963. The Judgment of the Court was delivered by SUBBA RAO J. These six appeals filed by special leave raise a common question, namely whether the suits flied against the Western Railway for the refund of amounts collected from the appellant firm as wharfage or demurrage would lie in a Civil Court. Civil Appeals Nos. 152 and 153 of 1959 arise out of the suits filed for the recovery of the amounts collected from the appellant firm by way of demurrage and the other appeals are filed for the recovery of amounts collected from the said firm by way of wharfage charges. It would be enough if we gave the particulars of the claim in one of the suits, for it was stated at the Bar that the claims for refund were similar in all the other suits. Excepting the plaint in Civil Suit No. 109 of 1957, the other plaints are not placed before us. We are, therefore, proceeding on the assumption that the relevant allegations in all the plaints are similar, particularly as the assertion of learned counsel for the appellants to the said effect was not questioned by learned counsel for the respondent. Civil Suit No. 109 of 1957 was filed by the appellants in Civil Appeal No. 149 of 1959 for recovery of a sum of Rs. 295 from the Union of India representing the Western Railway. The appellants are 150 a firm doing business in Surendranagar. The said firm received a consignment of 125 bags of rice booked from Belanganj to Surendranagar railway station. At the time of effecting delivery of the said consignment, the Station Master at Surendranagar recovered a sum of Rs. 275 7 O from the appellant firm as wharfage charges. It is alleged in the plaint that the railway notifications and rules under which the railway had charged the wharfage at two annas to four annas per maund per day were illegal and ultra vires and that in any view the railway had no power under the rules to collect charges from the appellantfirm under the said rules for the "free time" under the head of wharfage charges. On those allegations the suit was filed for the refund of the amount collected by the said railway. The defendant denied either that the rules were ultra vires or that it collected the amount contrary to the rules. It pleaded that the civil court had no jurisdiction to entertain the suit. Similar suits were filed in respect of other amounts and similar contentions were raised. The learned Civil Judge dismissed all the suits on the ground that they were barred under section 26 of the Indian Railways Act, 1890 (Act IX of 1890), hereinafter called the Act. The said firm in all the suits preferred revisions against the judgment of the Civil Judge to the High Court of Bombay at Rajkot. The High Court agreed with the view of the Civil Judge and dismissed the revisions. Hence the appeals. The only question raised before us is whether section 26 of the Act is a bar against the maintainability of the said suits in a civil court for refund of the said amounts collected from the appellant firm by way of wharfage and demurrage charges. To appreciate the contentions of the parties it is necessary to notice the relevant sections of the Act. At the outset it may be mentioned that in the present appeals the amounts were collected between the years 1953 and 1955 and, therefore, we will be ignoring the later amendments made in the Act for the purpose of the present enquiry. 151 Section 3(14) "terminals" includes charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any services rendered thereat. " Section 26. "Except as provided in this Act, no suit shall be instituted or proceeding taken for anything done or any omission made by a railway administration in violation or contravention of any provision of this Chapter (Ch. V). " Section 32. "The Central Government may, by general or special order, fix the rates of terminal and other charges for the whole or any part of a railway, and prescribe the conditions in which such rates will apply. Section 34. (1) There shall be a Tribunal called the Railway Rates Tribunal, for the purpose of discharging the functions hereinafter specified in this Chapter. Section 41. (i) Any complaint that a railway administration (c) is levying charges (other than standardised terminal charges) which are unreasonable, may be made to the Tribunal, and the Tribunal shall bear and decide any such complaint in accordance with the provisions of this Chapter. Section 45. Nothing in this Chapter shall confer jurisdiction on the Tribunal in respect of scales of charges levied by a railway administration for the carriage of passengers and their luggage, parcels, military traffic and traffic in railway materials and stores, and demurrage charges, except on a reference made to the Tribunal by the Central Government. Section 46A. The decision of the Tribunal shall be by a majority of the members sitting and shall be final. 152 Provided that where a single member of the Tribunal has heard and decided any matter, he may, ,in his discretion, give leave to any party to appeal to the Full Bench; and if an appeal is filed in pursuance of such leave, the decision of the Full Bench or of a majority of the members thereof, as the case may be, shall be final. Section 46B. The Tribunal may transmit any order made by it to a Civil Court having local jurisdiction and such Civil Court shall execute the order as if it were a decree. Section 46C. In this Chapter, unless there is anything repugnant in the subject or context, (d) "demurrage" means the charge levied after the expiry of the free time allowed for loading or unloading a wagon. The scheme of the said provisions is clear. The Central Government fixes the rates of terminal and other charges for the whole or a part of a railway. If a railway administration levies charges other than the standardised terminal charges which are unreasonable, an aggrieved party may file a complaint against the administration before the Railway Rates Tribunal. The decision of the Tribunal is final. In regard to 'demurrage charges mentioned in section 45 of the Act, the Tribunal has no jurisdiction to entertain a claim in respect thereof, except by a reference made to the Tribunal by the Central Government. Section 26 bars the jurisdiction of ordinary civil courts to entertain a suit or a proceeding for anything done or any omission made by the railway administration in violation or contravention of any of the provisions of Chapter V. In regard to such violation, an aggrieved party can only proceed in the manner provided by the Act. The short question, therefore, is whether the said claims for refund are covered by the bar imposed by section 26 of the act. As section 26 bars the jurisdiction of civil courts, its provisions must be strictly construed. The bar is in respect of anything done or an omission 153 made by the railway administration in violation or contravention of any provisions of Chapter V of the Act. If the opening words "Except as provided in this Act" in section 26 of the Act are ignored, the bar appears to be comprehensive, for it may take in its sweep any dereliction of duty by the railway administration in respect of matters covered by the provisions of the said chapter. But such an intention to give a blanket licence to the railway administration to contravene the provisions of Chapter V of the Act shall not be attributed to the Legislature unless the section is very clear to that effect. The opening words "Except as provided in this Act" limit the operation of the bar. It can reasonably be interpreted to mean that the bar of a suit is limited to matters in respect whereof the Act has provided a remedy. So construed, before we apply the provisions of section 26 of the Act, two conditions shall be complied with, namely, (i) the railway administration shall have done an act or omitted to do an act in contravention of the provisions of Ch. V and (ii) the Act has provided a remedy in respect of that act or omission. It was argued that the charges levied by the railway administration under the heads of "wharfage" and "demurrage" are "terminals" in regard whereof rules were framed by the Government under section 32 of the Act, that the complaint of the appellants was that the rates were collected in excess of those prescribed under the rules and that, therefore, section 26 bars a suit for recovery of the same. The first question, therefore, is whether wharfage and demurrage charges are "terminals". "Terminals" has been defined by section 3(14) of the Act to include charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any services rendered thereat. Under s.32 of the Act the Central Government may, by general or special order, fix the rates of terminal and other charges for the whole or any part of a railway, and prescribe the conditions in which such rates will apply. In order to find out whether wharfage and 154 demurrage charges come under the definition of "terminals", it is necessary to ascertain the meaning of the words "wharfage" and "demurrage" as understood by the Act and the rules made thereunder. There is no definition of "wharfage". in the Act. But section 46C(d) defines demurrage to mean the charge levied after the expiry of the free time allowed for loading or unloading a wagon. But the rules, presumably made under the Act, give a clear idea of the meaning of these words. The relevant rule is r. 85 and it reads: "The actual wharfage and demurrage rules locally in force on different railways are published in each Railway 's Tariffs and may be ascertained on application at stations. The following wharfage and demurrage rules were in force on the B.B. & C.I. Railway, which is now named as the Western Railway. Clauses (A) and (B) thereof give the rates of wharfage and demurrage and clause (C) defines "demurrage" and "wharfage". Clause (C) reads: (i) When wagons required to be unloaded by consignees are not unloaded within the free time of six day tight hours, after being placed in position for unloading, demurrage as per clause (B) (ii) above will be charged for such time above six daylight hours, as the goods remain in the wagon, and wharfage at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by the end of the day following that on which they are unloaded." (ii) When wagons requiring to be unloaded by consignees are unloaded within the free time of six daylight hours, after being placed in position for unloading, wharfage at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by 155 the end of the day following that on which the free time of six daylight hours, expires. Demurrage is therefore a charge levied on the goods not unloaded from the wagons within the free time of six daylight hours and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose, Indeed section 46C(d) of the Act, which was inserted by Act 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule. Wharfage and demurrage are, therefore, charges levied in respect of goods retained in the wagons or in the railway premises beyond the free time allowed for clearance under the rules. The question is whether such charges are "terminals" as defined in the Act. The expression "terminal charges" was defined for the first time in the Indian Railways Act, 1890. It was taken from the definition in section 55 of the English Railway and Canal Traffic Act, 1888. Terminal charges are of two categories: (1) charges for services, and (2) charges for accommodation and appliances which facilitate business. The "service terminals" comprise of remuneration for the handling of goods at the terminal station i.e., where the railway employees are engaged in weighing, loading, unloading, etc. As distinguished from this "service terminals" there are "station terminals" which are charges for providing accommodation incidental to the business of a carrier, such as "working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses, cranes, hydraulic power, fixed appliances etc. " Both demurrage and wharfage would fall within the head of "station terminals", because they are charges levied for the use either of the wagon or of the platform or goods shed after the transit or conveyance is complete and is not incidental to the conveyance as such. Charges levied in respect of stations are included in the definition of "terminals" under the Act. As the wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the 156 station, and also in respect of goods kept on platforms of the station, the said charges could certainly be described as charges in respect of the station. If so, it follows that the said charges are "terminals" within the meaning of the definition of the said expression in the Act. Let us now see whether any remedy is provided by the Act for an aggrieved party to ask for a refund of the charges collected on the ground mentioned in the plaint. The Tribunal constituted under section 34 of the Act has jurisdiction to decide whether the charges levied by the railway administration other than the standardised terminal charges were unreasonable. The Act does not provide for any remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of wharf age or demurrage on the ground that the rules empowering the said administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules. If the impugned charges are standardised terminal charges, the dispute in regard thereto fails outside section 41 of the Act. If they are charges other than the standardised terminal charges, the jurisdiction of the Tribunal is confined only to the question of its reasonableness. It has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants. We do not propose to express our view in this case, as it has not been argued before us, whether the demurrage charges in question fell within the meaning of the expression "demurrage charges" in 157 section 45 of the Act and, if so, whether the jurisdiction of the Tribunal could only be invoked in the manner prescribed thereunder. For the foregoing reasons we hold that both the High Court and the trial Court went wrong in dismissing the suits on the ground that section 26 of the Act was a bar against their maintainability. We, therefore, set aside the judgment of the High Court as well as that of the trial Court and remand the suits to the trial Court for disposal in accordance with law. We should not be understood to have expressed any opinion on the other questions raised in the suits. The respondent will pay the costs of the appellants here. The costs of the courts below will abide the result. Suits remanded.

IN-Abs

Suits were filed against the Union of India representing the Western Railway for the refund of amounts collected by the Western Railway as wharfage and demurrage charges from the appellants. It was alleged in the plaint that Railway notifications and rules under which the Railway had charged the wharfage at two annas to four annas per maund per day were illegal and ultra rites and that in any view the railway had no power under the rules to collect charges from appellant firm for the "free time" under the head of wharfage charges. The respondent pleaded that Civil Court had no jurisdiction to entertain the suits and that rules were not ultra rites and money was not collected against the rules. Suits were dismissed by the trial court on the ground that they were barred under section 26 of the Indian Railways Act. Revisions were also dismissed by the High Court. The appellants came to this Court by Special Leave. Accepting the appeals, Held, that section 26 of the Indian Railways Act is not a bar to the maintainability of a suit for the refund of what fage or demurrage charged in excess. The bar under section 26 is not comprehensive. It is limited by the opening words "Except as provided in the Act" in the section. Two conditions must be complied with before applying section 26. The railway administration should have done an act or omitted to do an act in contravention of the provisions of Chapter V of the Indian Railways Act and the Act should provide a remedy in respect of that act or omission. In the present case, the Act does not provide for any remedy for an aggrieved party to approach the Tribunal appointed under section 34 of the Act for the refund of the amount collected in excess by the Railway Administration by way of wharfage or demurrage. The Tribunal has no jurisdiction to decide whether the rules empowering the administration to collect wharfage or demurrage charges are ultra vires or the amounts collected are in excess of what is leviable under the rules. Wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the station and also in respect of the goods kept on a platform of the station, beyond the free time allowed for clearance under the rules. The said charges 149 can certainly be described as charges in respect of the station and are terminals within the meaning of the definition of the term in the Act.

iminal Appeal No. 80 of 1963. Appeal by special leave from the judgment and order dated March 26, 1963, of the Punjab High Court in Criminal Misc. No. 186 of 1963. R. K. Garg, section C. Agarwal, M. K. Ramamurthi and D. P. Singh, for the appeallant. L. K. Kaushal, Senior Deputy Advocate General for the State of Punjab and B. R. G. K. Achar, for the respondent. October 11, 1963. The judgment of the Court was delivered by GAJENDRAGADKAR, J. The detenu Makhan Singh Tarsikka whose Habeas Corpus petition has been dismissed by the Punjab High Court, has brought this appeal before us by special leave. It appears that on the 22nd October, 1962, F.I.R., was filed at the Police Station, Jandiala, alleging that offences under sections 307, 324, 364 and 367 I.P.C. had been committed by certain persons including the appellant. In pursuance of the investigation which commenced on receipt of the said F.I.R., the appellant was arrested on the 25th October, 1962. On the 26th October, 1962, Emergency was declared by the President. On the 1st November, 1962, the appellant was transferred to judicial custody of the Sub Divisional Magistrate, Amritsar. Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him between 3rd November to the 19th November, 1962. On the 20th November, 1962, an order of detention was passed against the appellant under Rule 30(1)(b) of the Defence of India Rules, 1962 (hereinafter called the 'Rules '). This 935 order was served on the appelant on the 21st November, 1962 and it appears he was removed to the jail at Hissar. On the 30th January, 1963, he was brought back to Amritsar, and on the 9th February 1963 he filed the present writ petition. In his petition which was filed by the appellant, the main allegation which he made in challenging the validity of his detention was that the grounds ' set up in the order of detention were "very vague, concocted and totally false". The detention order had stated that the appellant was detained because he was found to be "indulging in activities prejudicial to the Defence of India and Civil Defence by making propaganda against joining the armed and civil defence forces and by urging people not to contribute to the National Defence Fund. " The order added that having regard to his activities, it was thought necessary to detain him in order to prevent him from carrying on the said prejudicial activities. On the 4th March, 1963, the appellant made an additional affidavit in which be urged that the fact that the depone it was in confinement before the declaration of emergency on the 26th October, 1962 and the Chinese invasion, clearly showed that the allegations against the deponent were false and concocted. By this supplementary affidavit, the appellant furnished an additional ground in support of his original plea that the grounds on which his detention had been ordered were false and concocted. On the 6th March, 1963, the appellant filed a third affidavit in which he stated that his political activities as a member of the Legislative Assembly were disliked "by the High ups". He referred to several Starred Questions of which lie had given notice in the Punjab Legislative Assembly to show that the ruling high ups were angry with him. These Questions, the appellant alleged, "revealed the naked corruption of the ruling high ups". The appellant further alleged that the Jandiala Police were enraged by the fact that at his instance the Punjab High Court bad appointed the Sessions Judge at Amritsar to hold an inquiry in village Ramana Chak affairs. According to him, the S.S.P., Amritsar who was a near relative of the ruling Chief was also hostile to him. It is on these additional grounds also that the appellant purported to 936 challenge the validity of his detention before the Punjab High Court. These three affidavits were duly challenged by counter affidavits made on behalf of the respondent, State of Punjab. It was in one of these affidavits that the res pondent brought out the fact that the appellant had nine interviews in jail between the 3rd November to 19th November, 1962 and. the information received by the respondent was that during these interviews, the appellant instigated the persons who saw him, to commit prejudicial activities. The affidavits filed by the respondent also disputed the other allegations made by the appellant in the three affidavits to which we have already referred. It appears that before the High Court it was urged by the appellant that the order of his detention had been passed malafide and his contention was sought to be supported on the ground that he had been arrested on the 25th October, 1962, and so, it would not be rationally possible to allege against him that he had indulged in the prejudicial activities mentioned in the said order. It was also argued before the High Court on his behalf that since a criminal case under section 307 I.P.C. was pending against him at the relevant time, it was not open to the detaining authority to detain him under Rule 30(1)(b) of the Rules. The learned Judge who heard the habeas corpus petition filed by the appellant, rejected both these Contentions. In the result, he held that the appellant had failed to make out a case that his detention was illegal, and so, the writ petition was dismissed. On behalf of the appellant, Mr. Garg has urged that the service of the order of detention which was effected on the 21st November, 1962 is illegal and in support of his argument he has relied on a recent decision of this Court in Rameshwar Shaw vs The District Magistrate Burdwan & Another(1). Mr. Garg points out that the material words used in section 3(1) of the Preventive Detention Act, 1960 (No. 4 of 1960) (hereinafter called 'the Act ') which were construed by this Court in the case of Rameshwar Shaw(1) are substantially the same as in Rule 30(1) of the rules with which the present appeal is concerned, and he contends that the said decision fully justifies his argument (1) 937 that the service of the impugned order of detention on the appellant when he was already in 'ail custody is outside the: purview of Rule 30(1). In our opinion, this argument is well founded and must be accepted. In the case of Rameshwar Shaw(1) this Court construed section 3(1) of the Act and held that the said provision necessarily postulates that a person sought to be detained would be free to act in a prejudicial manner if he is not detained. In other words, the freedom of action to the person sought to be detained at the relevant time must be shown before an order of detention can be validly served on him under the said section. If a person is already in jail custody, it was observed in the said judgment, how can it rationally be postulated that if be is not detained lie would act in a prejudicial manner?, and so, the effect of the said decision is that an order of detention cannot be validly served on person who is already in jail custody and in respect of whom it is rationally not possible to predicate that if the said order is not served on him, he would be able to indulge in any prejudicial activity. In the case of Rameshwar Shaw(1) this Court also considered the question as to whether an order of detention can be made against a person who is in 'Jail custody, and It was held that as an abstract proposition of law, there may not be any doubt that section 3(1)(a) of the Act does not preclude the authority from passing an order of detention against a person whilst he is in detention or in 'ail. But this Court also added that the relevant facts ,in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Dealing with this aspect of the matter, this Court emphasised the relevance of the considerations of proximity of time and concluded that whether ,in order of detention can be passed against a person who is in detention or in 'ail, will always have to be determined in the circumstances of each case. It would thus be seen that in the case of Rameshwar Shaw (1), his application was allowed and he was ordered to be set at liberty on the ground that the service of the order detaining him was (1) 60 2 S C India/64 938 effected when he was in jail. Mr. Garg naturally relies on this authority in support of his first contention that the service of the detention order against the appellant whilst he was in jail is similarly invalid. The learned Dy. Advocate General who appears for the respondent attempted to argue that the decision in Rameshwar Shaw 's case (1) would not be applicable to the present appeal, because the scheme of Rule 30(1) is radically different from the scheme of section 3(1) of the Act. He concedes that the operative portion of Rule 30(1) is subs tantially similar to section 3(1). Rule 30(1) provides. "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 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. " Then follow eight clauses which authorise the specified categories of orders which may be passed under Rule 30(1). Clause (b) relates to detention and it is with this clause that we are concerned in the present appeal. The argument is that the eight clauses indicate that it is not only the detention which can be ordered by the appropriate authority, but there are several other kinds of orders which can be passed ; under clause (a), for instance, the person can be directed to remove himself from India in such manner, by such time and by such route as may be specified in the order, and be prohibited from returning to India. Clause (c) authorises the appropriate authority to impose limitations against a person prohibiting him from going into any such area or place as may be specified in the order. Clause (d) contemplates a kind of internment of the person within the area specified in the order. Under clause (e) the movements of the person can be regulated by asking him to report himself or to notify his movements or both in the manner indicated in that clause. Clause(f) (1) 939 permits imposition of restrictions in respect of the employ ment or business carried on by the person, while under clause (g), restrictions may be imposed on the possession or use by the person of any articles mentioned in the order. Clause (h) is general in terms and it provides that the appropriate authority may make an order otherwise regulating the conduct of the person in any such particular as may be specified in the order. It is thus clear that the nature and the scope of the orders which can be validly passed under Rule 30(1) is very much wider than the order of detention which alone ,can be made under section 3(1) of the Act. But the question which we have to consider is : does this fact make any difference to the interpretation of the operative provisions of Rule 30(1) in relation to detention? In our opinion, the answer to this question must be in the negative. Rule 30(1)(b), like section 3(1)(a), clearly postulates that an order can be made under it only where it is shown that but for the imposition of the said detention, the person concerned would be able to carry out a prejudicial activity of the character specified in Rule 30(1). In other words, one of the conditions precedent to the service of the order permitted under Rule 300(1) (b) is that if the said order is not served on the person, he would be free and able to carry out his prejudicial activity in question. The fact that other kinds of orders can be passed against a person under Rule 36(1) does not alter the essential condition of a valid service of the order contemplated by Rule 30(1)(b) that if the said order is not served, the prejudicial activity may follow. Therefore, we are satisfied that on a plain construction of Rule 30(1)(b) it must be held that the order permitted by it can be served on a person who would be free otherwise to carry out his prejudicial activity. Such a freedom cannot be predicated of the appellant in the present case because he was in 'ail at the relevant time. Therefore, we do not think that the distinction which the Dy. Advocate General seeks to make between the provisions of Rule 30(1)(b) and section 3(1)(a) makes any difference to the construction of the Rule. The service of a detention order on a person who is already in jail ,custody virtually seeks to effectuate what may be called "a double detention ' and such double detention is not 940 intended either by section 3(1)(a) or by Rule 30(1)(b); it is plainly unnecessary and outside the purview of both the provisions. It was also argued by the learned Dy. Advocate General that in the case of an under trial prisoner who is entitled to interview his friends or relatives under rules framed in that behalf. it would be possible for him to send out messages and thereby carry on his prejudicial activities in an indirect way, and that could be stopped only if he is detained under Rule 30(1)(b). We are not impressed by this argument. It appears that Rule 13 of the Punjab Detenus Rules, 1950, allows a detenu to interview a near relative in accordance with these rules and Rule 19 requires that all interviews shall take place unless otherwise directed by the Dy. Inspector General, Criminal Investigation Department, in the presence of an officer deputed for the purpose by the Superintendent of Police of the district, and it provides that such officer may stop the interview if the conversation turns on any undesirable subject. The contention is that whereas an ordinary under trial prisoner is not required to interview his friends and relatives in the presence of the Police Officer, that is a condition imposed by Rule 19, and so, in order to prevent the appellant from carrying out his prejudicial activities by means of interviews even whilst lie is in jall custody it was necessary to make the order of detention and serve it on him though he was in 'Jail. That, it is suggested, is a distinctive feature of the scheme contemplated by Rule 30(1) of the Rules. The obvious answer to this argument, however, is that if the restriction contemplated by Rule 19 of the Punjab Detenus Rules was intended to be imposed against the appellant, under Rule 30(1) it could easily have been done by regulating his conduct whilst he was an under trial prisoner in jail. We have already seen that Rule 30(1)(h) authorises the appropriate authority to regulate the conduct of a person in any such particular as may be specified in the order, and there can be no difficulty in holding that if the respondent took the view that from jail, the appellant was carrying out prejudicial activities, an appropriate order could have been passed against him under R. 30(1)(h). That being so, we do not think that the argument that the scheme of R. 30(1) is radically different from the scheme 941 of section 3(1)(a) of the Act and affects the construction of the operative portion of Rule 30(1)(b), can be sustained. If the appropriate authority wants to detain a person under Rule 30(1)(b), it must be shown that when the order of detention is served on him, he was free to carry out his prejudicial activities and his prejudicial activities could be prevented only by his detention. Therefore, we must hold that the service of the order of detention on the appellant whilst he was in 'ail custody is invalid. In this connection, our attention has been drawn to two decisions to which reference may be made. In Emperor vs Mool Chand & Ors.(1), the Allahabad High Court has held that the detention of persons who have already been arrested cannot be said to be mala fide merely for the reason that the order of detention was passed against them when they had already been arrested. The mere fact, says the judgment, that persons were first arrested under some provisions of the ordinary law and were later ordered to be detained under the U.P. Maintenance of Public Order (Temporary Act) is not in itself, proof of mala fides and that it is for the party setting up mala fides to prove circumstances from which mala fides could be reasonably inferred. It would thus be seen that the point argued before the Court and which has been decided by the judgment, is that a detenu cannot succeed in proving that the order of his detention has been passed mala fide solely for the reason that prior to the date of the order, he had been arrested. In other words, in order to prove mala fides in passing the detention order, adequate evidence must be led and the mere allegation that the order followed the arrest of the detenu under the Cr. Procedure Code, for an offence will not sustain his plea of mala fides. We do not see how this judgment can assist the respondent in the present appeal. In Dayanand Modi vs The State of Bihar(2), the question raised was whether detention and prosecution of the same person can be simultaneously made. In other words, the point urged was whether a person who is being prosecuted under the ordinary criminal law can (1) I.T.R.1948 All 288. (2) I.L.R. 30 Patna 630. 942 be detained whilst the prosecution is still pending against him. This decision has no bearing on the question as to the construction of Rule 30(1)(b) and the effect of the service of an order of detention on a person who is already in 'ail custody. All that the Patna High Court did in that case was that it rejected the extreme proposition urged for the detenu that when an offence is alleged to have been committed, the State Government has no authority to detain, but must launch a prosecution and wait for the decision of the Court, or that the withdrawal of a pending prosecution will in certain cases amount to an acquittal and, therefore, deprive the State Government of any legal authority to make an order of detention on the same facts. As we will presently indicate, the problem which the Patna High Court has considered in that case was sought to be raised before us by Mr. Garg, but since we have come to the conclusion that the service of the order of detention on the appellant whilst he was in 'ail custody is invalid, we do not propose to deal with that question. We may, however, indicate the nature of the point which Mr. Garg sought to raise before us. Basing himself on the decision of the Full Bench of the Bombay High Court in Maledath Bharathan Malyali vs The Commissioner of Police(1), Mr. Garg contended that it was not open to the respondent to take simultaneously two actions against the appellant one under the ordinary Cr. Procedure Code and the other under Rule 3O(1)(b). The Bombay High Court appears to have held that the State cannot pursue both the rights at the same time if on the facts of a particular case it is apparent that these two rights are inconsistent and cannot be exercised at the same time, the two rights in question being the right to investigate and prosecute a person under the ordinary criminal law and the right to detain him under the Preventive Detention Act. As we have just mentioned, we do not propose to deal with this point in the present appeal. Mr. Garg also contended that the making of the (1) I.L.R. 943 order of detention itself is invalid, because at the time when the order was made the appropriate authority knew that the appellant was in 'ail, and so, the order passed was not justified and is, therefore, invalid under Rule 30(1). In support of this argument Mr. Garg has relied upon the observations made by this Court in the case of Rameshwar Shaw(1). It would be recalled that in that case also, Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid. In fact, this Court made no finding on that question and based its decision on the narrow ground that the service of the order was invalid. We propose to adopt the same course in the present appeal. In dealing with the question about the validity of the making of the order, it would be necessary to ascertain some more relevant and material facts. Even though the appellant was in jail custody, it is not unlikely that he could have applied for bail and might have obtained an order of bail, and_ bearing that contigency in mind, the appropriate authority would be justified in making an order of detention against the appellant, provided of course, the authority waited for the service of the order after the appellant was released on bail ; so that, on principle, it would be difficult to state as a general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigation is proceeding in regard to an offence alleged to have been committed by him. In fact, as we have already pointed out in the case of Rameshwar Shaw(1), as an abstract proposition of law, this Court has held that an order of detention can be validly made against a person in jail custody. Whether or not the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts. In the absence of any such facts in the present case, we do not think we would be justified in dealing with Mr. Garg 's argument that the making of the order was invalid. In fact, we were told that after the criminal case pending against the appellant was transferred from (1) 944 Amritsar to a court of competent jurisdiction in U.P. the said court has allowed the appellant 's application for ball, subject, of course, to his detention under the impugned order of detention ; and so, the possibility that the appropriate authority might have apprehended that the appellant would move for bail and might succeed in that behalf, cannot be ruled out in dealing with the question about the validity of the making of the order. Besides, when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may, in a given case, take the view that the criminal proceedings may end very soon and may terminate in his acquittal. In such a case, it would be open to the appropriate authority to make an order of detention, if the requisite conditions of the Rule or the section are satisfied, and serve it on the person concerned if and after he is acquitted in the said criminal proceedings. That leaves the question about mala fides to which Mr. Garg referred in the course of his arguments. We do not think Mr. Garg can be permitted to raise that point in the present appeal, because we find that adequate material has not been produced by the appellant in support of his plea in the present proceedings. In fact, the allegations of mala fides which were introduced by the appellant for the first time in the affidavit filed by him on the 6th March, 1963 are far from satisfactory. The case which Mr. Garg wanted to make under the head of mala fides is directed against the Chief Minister of Punjab, and it is plain that even the third affidavit filed by the appellant does not: disclose any allegations which can justify the said plea being raised. Therefore, we do not think it would be possible to entertain the said plea in the present case. A plea of mala fides must always be made by proper pleadings at the trial stage, so that the respondent has an opportunity to meet the said pleadings. Mr. Garg, no doubt attempted to refer us to certain averments made by the appellant in his petition for special leave, but we do not think we can permit Mr. Garg to make out a case of mala fides on the averments made for the first time in the application for 945 special leave. That is why we propose to express no opinion on the merits of the plea of mala fides which the appellant wanted to raise before us. The result is, the appeal is allowed and the order of detention passed against the appellant is set aside On the ground that the service of the order is invalid and is outside the scope of Rule 30(1)(b) of the Rules. We accordingly direct that the appellant should be released forthwith. Appeal allowed.

IN-Abs

On the 20th November, 1962, an order of detention was passed against the appellant under Rule 30(1)(b) of the Defence of India Rules, 1962. This order was served on the appellant on the 21st November, 1962, while lie was in jail custody as an under trial prisoner in connection with a criminal case pending against him. He was arrested on the 25th October, 1962 in connection with the .said criminal case and since then he was in jail custody. On the 26th October, 1962, Emergency was declared by the President. Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him between 3rd November to the 19th November, 1962. It was alleged by the respondent that during these interviews, the appellant instigated the persons who saw him, to commit prejudicial activities. The appellant moved a writ petition in the High Court against the said detention order. The High Court dismissed the writ petition on the ground that the appellant had failed to make out a case that his detention was illegal. Held : (i) The decision in Rameshwar Shaw 's case would be applicable to the present appeal, because the scheme of Rule 30(1) is not radically different from the scheme of section 3(1)(a) of the preventive Detention Act and does not affect the construction of Rule 30(1)(b) of the Rules. 933 Rameshwar Shaw vs District Magistrate, Burdhwan, ; relied on. (ii) It is true that the nature and scope of the orders which can be validly passed under Rule 30(1) of the Defence of India Rules is very much wider than the order of detention which alone can be made under section 3(1) of the Preventive Detention Act. But the operative portion of Rule 30(1) is substantially similar to section 3(1) of the Act. (iii) Rule 30(1)(b), like section 3(1)(a), of the Act clearly postulates that an order can be made under it only where it is shown that but for the imposition of the said detention, the person concerned would be able to carry out a prejudicial activity of the character specified in Rule 30(1). On a plain construction of Rule 30(1)(b) it must be held that the order permitted by it can be served on a person who would be free otherwise to carry out his prejudicial activity. Such freedom cannot be predicated of the appellant in the present case because he was in jail at the relevant time. (iv) The service of a detention order on a person who is already in jail custody virtually seeks to effectuate what may be called 'a double detention ' and such double detention is not intended either by section 3(1)(a) or by Rule 3O(1)(b); it is plainly unnecessary and outside the purview of both the provisions. (v) If the appropriate authority wants to detain a person under Rule 30(1)(b), it must be shown that when the order of detention is served on him, he was free to carry out his prejudicial activities and his prejudicial activities could be prevented only by his detention. Therefore, the service of the order of detention on the appellant whilst he was in jail custody was invalid. Emperor vs Mool Chand, A.I.R. 1948 All 288, inapplicable. Dayanand Modi vs State of Bihar, I.L.R. 30 Pat. 630 and Meledath Bharathan Malyali vs Commissioner of Police , I.L.R. , referred to. (vi) On principle, it would be difficult to state as a general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigation is proceeding in regard to an offence alleged to have been committed by him. This Court has held in Rameshwar Shaw that as an abstract proposition of law an order of detention can be validly made against a person in jail custody. Whether or not the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts. In the present case, the making of the order of detention was not invalid. In Rameshwar Shaw the petitioner was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid. 934 (vii) The plea of malafide cannot be permitted to be raised for the first time in the petition for special leave for the reason that a plea of malafides must always be made by proper pleadings at the trial stage, so that the respondent has an opportunity to meet the said proceedings. (viii) The order of detention passed against the appellant is set aside on the ground that the service of the order is invalid and is outside the scope of the Rules.

Civil Appeals Nos. 781 783 of 1962. Appeals by special leave from the judgment and order January 6, 1961, of the Andhra Pradesh High Court in Civil Miscellaneous Petition Nos. 4672 to 4674 of 1960. A. V. Viswanatha Sastri, M.S.K. Sastri and M.S. Narasimhan, for the appellant (in all the appeals). Ranganadham Chetty and R.N. Sachthey, for the respondent (in all the appeals). October 22, 1963. The Judgment of the Court was delivered by AYYANGAR J. The points raised in these three appeals which come before us by virtue of special leave under article 136 of the Constitution are somewhat 176 out of the ordinary and raise for consideration whether the common order passed by the High Court of Andhra Pradesh rejecting applications to review an earlier order by that court, is correct on the facts which we shall state presently. The appellant M/s Thungabhadra Industries Ltd. are ' manufacturers of groundnut oil, part of which they convert for sale into hydrogenated oil while the rest is sold as ordinary oil. Under the Madras General Sales Tax Act, hereinafter referred to as the Act, which has application to the State of Andhra Pradesh, while in regard to groundnuts the tax is levied at the point of purchase, groundnut oil is taxed at the point of sale. The result of this feature naturally is that when a person purchases groundnut and converts the same into oil and sells the oil extracted he has to pay tax at both the points. Rules have been framed in order to alleviate what might be considered a hardship by reason of this double levy. Rule 5(k) of the Turnover & Assessment Rules provides: "5. (k) in the case of a registered manufacturer of groundnut oil and cake, the amount which he is entitled to deduct from his gross turnover under rule 18 subject to the conditions specified in that rule". and Rule 18 referred to reads: "18. (1) Any dealer who manufactures groundnut oil and cake from groundnut and/or kernel purchased by him may, on application to the assessing authority having jurisdiction over the area in which he carries on his business, be registered as a manufacturer of ground nut oil and cake. (2) Every such registered manufacturer of groundnut oil will be entitled to a deduction under clause (k) of sub rule (1) of rule 5 equal to the value of the groundnut and/or kernel, purchased by him and converted into 'oil and cake if he has paid the tax to the State on such purchases: 177 Provided that the amount for which the oil is sold is included in his net turnover: Provided further that the amount of the turn over in respect of which deduction is allowed shall not exceed the amount of the turnover attributable to the groundnut and/or kernel used in the manufacture of oil and included in the net turnover. " The appellant is admittedly a manufacturer who is registered for the purposes of that rule. In respect of the year 1949 50 the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under the rule in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase. This claim was negatived by the Sales Tax authorities on the ground that "hydrogenated groundnut oil" was not "groundnut oil" within r. 18(2). Having failed before the departmental authorities in getting its claim to deduction allowed, the appellant approached the High Court with a Tax Revision Case numbered 120 of 1953 on its file but the High Court, by its judgment dated February 11, 1955, upheld the view of the department. An application was thereafter made to the High Court to grant a certificate of fitness under article 133(1) on the ground that substantial questions of law as to the interpretation of the General Sales Tax Act. and the Rules made thereunder, as well as of certain other enactments which were relied upon in support of their claim by the appellants, arose for decision in the case. The learned Judges by their order dated February 21, 1956 granted the certificate. In view of the points arising in this appeal we consider it would be convenient to set out the text of this order: "This petition raises a question of general importance namely whether hydrogenated groundnut oil popularly known as Vanaspathi is ground 1 SCI/64 12 178 nut oil so as to enable the assessee to claim exemption under Rules 18(2) and 5(1) (g) of the Turnover and Assessment Rules framed by the Government in exercise of the powers conferred by Section 3 and sub rules 4 and 5 of the Madras General Sales Tax Act, 1939. The answer to the question arising in this matter turns upon whether the chief characteristics of groundnut oil remain the same in spite of the chemical processes it undergoes, It also involves the interpretation of the notifications issued by the Government of India under the Essential Supplies (Temporary Powers) Act and certain provisions of the Vegetable Oils Products Control Order. In these circumstances we think it a fit case for appeal to the Supreme Court. Leave is therefore granted. " Thereafter the appeal was entertained in this Court and numbered as Civil Appeal 498 of 1958, was finally disposed of on October 18, 1960 and is now reported as M/s Thungabhadra Industries Ltd. vs The Commercial lax Officer, Kumool(1). Meanwhile in regard to the assessment of the three succeeding years 1950 51, 1951 52 and 1952 53, the same question as to whether "hydrogenated groundnut oil" was "groundnut oil" entitled to the deduction of the purchase turnover under r. 18(2) of the Turnover and Assessment Rules was raised and was decided against the appellant by the Sates Tax Officer. This order was taken up in appeal to the Deputy Commissioner of Commercial Taxes by the appellant and as apparently the identical question was pending in the High Court in regard to the year 1949 50, the appellate authority awaited the decision of the High Court and when T.R.C. 120 of 1953 was decided against the appellant on February 11, 1955, disposed of the appeal against the appellant by its order dated April 5, 1955. Thereafter the appellant approached the Sales Tax Appellate Tribunal but this was obviously a formality (1) ; 179 because the Tribunal were bound by the judgment of the High Court and the appeals were dismissed by order dated October 20, 1955. Against the orders of the Sales Tax Appellate Tribunal the appellant preferred three Tax Revision Cases T.R.C. 75,76 and 77 of 1956 in regard to the three assessment years. The learned Judges of the High Court dismissed the three Revision Cases on October 7, 1958 following their earlier decision in T.R.C. 120 of 1953 in regard to the assessment for the year 1949 50. At this date, it would be noticed, the correctness of the decision of the High Court in T.R.C. 120 of 1953 was pending adjudication in this Court by virtue of the Certificate of fitness granted by the High Court under article 133(1). Desiring to file an appeal to this Court against the judgment of the High Court in these three Tax Revision Cases as well, the appellant filed, on February 16, 1959, three miscellaneous petitions under article 133(1) of the Constitution praying for a certificate of fitness that the case involved substantial questions of law as to the interpretation of the Sales Tax Act and the Rules made thereunder etc. The learned Judges, however, by their order dated September 4. 1959 dismissed the petition stating: "The judgment sought to be appealed against is one of affirmance. We do not think that it involves any substantial question of law as to the interpretation of the Constitution; nor do we regard this as a fit case for appeal to the Supreme Court. " The question that arises for consideration in these appeals is primarily whether this order dated September 4, 1959, is vitiated by error apparent on the face of the record. How that matter becomes relevant is because the appellant filed three applications for review of this order under O. XLVII r. 1 of the Civil Procedure Code specifying this as the ground for relief. These applications for review were filed on November 23, 1959, and apparently notice was issued to the respondent State Government and the petition for review came on for hearing on January 6, 1961. 180 On that date the learned Judges dismissed the said applications and assigned the following as the reasons for their order: "The only ground argued in support of these review petitions is that leave to appeal to the Supreme Court was granted in similar circumstances in regard to previous year and there was no reason why leave should have been refused in these cases. We do not think that would furnish a sufficient ground for reviewing the order dismissing the petitions for leave to file an appeal t 0 the Supreme Court. That apart, the Supreme Court was moved under Article 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not flied in time. In the circumstances, we think that our order dated 4.9.1959 dismissing S.C.C.M.Ps No. 4823, 4825 and 4827 of 1959 cannot be reviewed. " The appellants thereupon made applications for special leave from this Court to challenge the correctness of this last order and the leave having been granted after notice to the respondent, the appeals are now before us. Before dealing with the arguments addressed to us on behalf of the appellant it is necessary to advert to an objection raised by learned Counsel for the respondent urging that the special leave granted to the appellant should be revoked. We declined to permit the respondent to urge any such argument in this case primarily for two reasons. In the first place, the special leave was granted after notice to the respondent and therefore after hearing the respondent as to any objection to the maintainability of the appeal or to the granting of special leave. In the circumstances, any ground in relation to these matters should have been urged at that stage and except possibly in some extraordinary cases where the ground urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding, the exercise of due care; except in such 181 circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave. Indeed, the very object of issuing notice to the respondent before the grant of leave is to ensure that the latter is afforded an opportunity to bring to the notice of the Court any grounds upon which leave should be refused and the purpose of the rule would be frustrated if the respondent were permitted to urge at a later stage at the stage of the hearing of the appeal and long after the appellant has incurred all the costs that the leave granted after notice to him should be revoked on a ground which was available to him when the application for special leave was heard. This apart, even the statement of the case filed on behalf of the respondent does not disclose any ground upon which the leave granted should be revoked: nor, of course, does it make any prayer seeking such relief. One of the objects which the statement of the case is designed to achieve is manifestly that no party shall be taken by surprise at the hearing and this is ensured by the provision in O. XIX r. 4 of the Supreme Court Rules reading: "No party shall, without the leave of the Court, rely at the hearing on any grounds not specified in the Statement of the Case filed by him. " Nor, of course, was there any contention that the ground that he proposed to submit came into existence after the filing of the statement of case. It was in these circumstances that we declined to permit the respondent to develop an argument to persuade us to hold that the leave granted by this Court should be revoked, though we might add that the matter mentioned by learned Counsel for the respondent in this respect would not, even if urged at the hearing of the special leave petition, have materially assisted him in resisting the grant of special leave. The point he desired to urge was that in the petition for special leave the appellant had averred that the decision of this Court reversing the judgment of the High Court in T.R.C. 120 of 1953 had been 182 brought to the notice of the High Court, but that this statement must be erroneous or untrue for two reasons: (1) This is not referred to in the order now under appeal, and (2) the decision of this Court was not reported in any of the law reports official or unofficial till long after January 1961 when the petition for review was heard. It is manifest that neither of the two circumstances would by itself prove the untruth of the averment in the special leave petition. The learned Judges might well have thought that the decision had no material bearing on the only point that arose for consideration before them, viz., whether their order of September 1959 was or was not vitiated by error of the sort which brought it within O. XLVII. r. 1 of Civil Procedure Code. It is obvious that so viewed, it would not have any relevance. As regards the other point, the appellant did not have need to wait for a report of the case in the law reports but might very well have produced a copy of the judgment of this Court and being a party to the proceeding here it is improbable that it had not a copy, so, that its statement that it drew the attention of the Court to the decision is not proved to be false by the decision not being reported till long after January, 1961. The oral application for revoking the leave granted is therefore rejected as entirely devoid of substance. We shall next proceed to deal with the merits of the appeals. Before doing so however, it is necessary to advert to a circumstance which the learned Judges considered a proper reason for rejecting the petition for review. This arises out of the second of the grounds assigned by the learned Judges in their order dated January 6, 1961, refusing to grant the review. This may be quoted in their own words: "That apart, the Supreme Court was moved under article 136 of the Constitution for special leave and that was dismissed, may be on the ground that it was not filed in time. " 183 The facts in relation to this matter might now be stated. As already seen, the applications for reviewing the order dated September 4, 1959, refusing the certificates were filed on November 23, 1959. During the pendency of those review applications the appellant filed, on November 30, 1959, petitions seeking special leave of this Court under article 136 of the Constitution but those petitions were filed beyond the period of limitation prescribed by the Rules. An application was therefore filed along with the special leave petitions seeking condonation of delay in the filing of the petitions. The petitions and the applications for condonation of delay came on together for hearing and this Court refused to condone the delay, so that the petitions for special leave never legally came on the file of this Court. O. XLVII r. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred. " In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII r. 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the 'terms of O. XLVII. r.1 (1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end. The next question is as regards the effect of the refusal of this court to condone the delay in filing the petition for special leave. Here again, it 184 was not contended that the refusal of this Court to entertain the petition for special leave on the grounds just now stated was a bar to the jurisdiction or powers of the Court hearing the review petition. This position was not contested by the learned Advocate for the respondent either. In these circumstances, we are unable to agree with the learned Judges of the High Court that the refusal by this Court to condone the delay in filing the petition for special leave was a circumstance which could either bar the jurisdiction of the High Court to decide the petition for review or even could be a relevant matter to be taken into account in deciding it. If therefore their original order dated September 4, 1959, was vitiated by an error apparent on the face of the record, the failure of the special leave petition to be entertained in this Court in the circumstances in which it occurred, could not be any ground either of itself or taken along with others to reject the application for review. We consider it would be convenient to consider the first part of the order of the High Court now under appeal after examining the principal question whether the order of September, 1959, rejecting the appellant 's petition for a certificate is vitiated by error apparent on the record. If one analysed that order only one reason was given for the rejection of the certificate of fitness. No doubt, in the first sentence of their order they stated that the judgment was one of affirmance, but that was merely preliminary to what followed where they recorded that the certificate was refused for the reason that the case did not involve any substantial question of law regarding the interpretation of the Constitution. The preliminary statement that their judgment was one of affirmance would, however, seem to show that what the learned Judges had in mind were the terms of article 133 of the Constitution where alone as distinct from article 132 there is reference to a judgment of affirmance, though per incuriam they reproduced the terms of article 132(1). As it was the case of no 185 party that any question of interpretation of the Constitution was involved, the reference to "the substantial question of law relating to the interpretation of the Constitution" must obviously have been a mistake for a substantial question of law arising in the appeal. Though learned Counsel for the appellant stressed this ground in the order of September, 1959 as itself disclosing an error apparent on the face of the record or was at least, ,indicative that the learned Judges did not apply their minds to the consideration of the question arising in the application for a certificate of fitness, we shall proceed on the basis that this was merely a clerical error in their order and that the learned Judges had really in mind the terms of article 133(1) which had been invoked by the appellants in their application for the certificate. On the basis that the words in the order of September, 1959 referring to a substantial question of law as to the interpretation of the Constitution were really meant to say that no substantial question of law was involved in the appeal sought to be filed in this Court how does the matter stand ? There was practically no question of fact that fell to be decided in T.R.Cs. 75 to 77 of 1956 and the sole question related to the claim to deduct the value of the groundnut on which purchase tax had been paid and which had been converted into hydrogenated oil which had been sold and which had been included in the appellant 's turnover. In fact, these T.R.Cs. were decided by the High Court not independently on a consideration of any particular facts which arose in them, but by following the decision of the High Court in T.R.C. 120 of 1953 which had accepted the construction which the departmental authorities had placed on r. 18(2) of the Turnover & Assessment Rules. The substantial points of law which were claimed to arise in the appeal had been set out in extension the petition seeking the certificate and, in fact, they were practically a reproduction of the contents of the earlier petition seeking a certificate against the decision in T.R.C. 120 of 1953. The learned Judges and the learned C.J. was a party 186 to the earlier decision and to the grant of the certificate of fitness on that occasion considered these points and had stated as their opinion that substantial questions of law of general importance were involved in the case and they had given expression to these views in a judgment which we have reproduced earlier. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the court held on an 'identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. No questions of fact were involved in the decision of the High Court in T.R.Cs. 75 to 77 of 1956. The entire controversy turned on the proper interpretation of r. 18(1) of the turnover & Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956 nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the appellant that the 187 order of September 1959 was vitiated by "error apparent ' ' of the kind envisaged by O. XLVII r. 1, Civil Procedure Code when it stated that "no substantial question of law arose" appears to us to be clearly well founded. Indeed, learned Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error. He, however, submitted that this Court should have regard not to whether the earlier order was so vitiated or not but to the grounds which were urged by the appellant at the hearing of the application for review and that if at that stage the point in the form in which we have just now expressed was not urged, this Court would not interfere with the order rejecting the application for review. He pointed out that at the stage of the arguments on the application for review the only ground which was urged before the Court, as shown by the judgment of the Court, was that the order of September, 1959 was erroneous for the reason that a certificate had been granted on a previous occasion. We have extracted the text of this order of January, 1961 in which this argument is noticed and it is stated that it was the only point urged before the Court. The question then arises as to what is meant by "in similar circumstances in regard to a previous year". Learned Counsel for the respondent submits that we should understand these words to mean that the appellant relied on the order dated February 21, 1956, granting the certificate of fitness in regard to the decision of the High Court in T.R.C. 120 of 1953 solely as some sort of precedent and no more. On that basis learned Counsel strenuously contended that the mere fact that in regard to an earlier year a certificate was granted would not by itself render an order refusing a certificate in a later year erroneous on the ground of patent error. We have already dealt with this aspect of the matter. We do not, however, agree that this is the proper construction of the argument that they rejected. The order dated February 21, 1956, in relation to the previous year 188 was placed before the court and was relied on not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose for decision in the appeals, and the attention of the Court was drawn to the terms of the previous order with a view to point out the failure to appreciate the existence of these questions and to make out that the statement in the order of September, 1959 that no substantial question of law was involved in the appeals was erroneous on the face of it. This is made perfectly clear by the contents of the petition for review where the aspect we have just now set out is enunciated. The earlier order being of the same Court and of a Bench composed in part of the same Judges, the earlier order was referred to as a convenient summary of the various points of law that arose for the purpose of bringing to the notice of the Court the error which it committed in stating that no substantial question of law arose in the appeals. If by the first sentence the learned Judges meant that the contention which they were called upon to consider was directed to claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellant 's argument. If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T.R.C. 120 of 1953 were not also involved in their judgment in T.R.Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical. If, besides, they meant to say that these were not substantial questions of law within article 133(1), they were again guilty of error. The reasoning, therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September, 1959. We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed. We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in Tungabhadra 189 Industries Ltd. vs The Commercial Tax Officer, Kurnool(1) regarding the construction of Rule 18(2) of the Turnover & Assessment Rules, since that decision is wholly irrelevant for considering the correctness of the order rejecting the applications for review which is the only question for decision in these appeals. Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeal were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T.R.Cs 75, 76 and 77 really depended on the correct construction of r. 18(2) of the Turnover & Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there whether it included "hydrogenated oil". This Court in its judgment in M/s Tungabhadra Industries Ltd. vs The Commercial Tax Officer, Kurnool(1) pronounced on the proper construction of the word 'groundnut oil ' occurring in r. 1 8 of the Turnover & Assessment Rules as they then stood. The assessment proceedings for 1950 51, 1951 52 and 1952 53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this Court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course, if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled (1) ; 190 to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of it bright to costs. In the result the appeal is allowed and the common judgment of the High Court in the three appeals is reversed and the petitions for review C.M.Ps 4672, 4673 and 4674 of 1959 on the file of the High Court are allowed with costs here and in the High Court one set of hearing fees. Appeal allowed.

IN-Abs

In respect of the assessment year 1949 50, the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under r. 18 of the Turnover and Assessment Rules in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase. The sales tax authorities rejected the claim on the ground that hydrogenated groundnut oil was not groundnut oil within that rule. This view was upheld by the High Court on February 11, 1955, in the Tax Revision Case No. 120 of 1953 filed by the appellant, but, on application, the High Court granted a certificate of fitness under article 133(1) of the Constitution of India on the ground that substantial questions of law arose for decision in the case. For the assessment years 1950 51, 1951 52 and 1952 53, the same question as to whether hydrogenated groundnut oil was raised and decided against the appellant by the sales tax authorities and the High Court. The appellant then applied for a certificate of fitness under article 133(1) of the Constitution, but the High Court dismissed the petition on September 4, 1959, stating: "The judgment sought to 175 be appealed against is one of affirmance. We do not think that it involves any substantial question of law . . . nor do we regard this as a fit case for appeal to the Supreme Court. " On November 23, 1959, applications for review were filed under 0. 47, r. 1, of the Code of Civil Procedure but they were dismissed. The appellant then applied for special leave under article 136 of the Constitution against the orders dismissing the applications for review and leave was granted after notice to the respondent. When the appeal came on for hearing in the Supreme Court, the respondent raised a preliminary objection that the special leave granted to the appellant should be revoked. The grounds for revoking the special leave were not urged by the respondent at the time of the hearing of the applications under article 136, nor were they set out in the statement of case filed by the respondent under O.XVIII of the Supreme Court Rules, 1950. Held (i) that where notice is given to the respondent before the hearing of the application for grant of special leave, no objection to the maintainability of the appeal or to the granting of special leave would be permitted to be urged at any stage after the grant of it, except possibly where the ground urged happens to arise subsequent to the grant of leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care. (ii) that the statement in the order dated September 4, 1959, that the case did not involve any substantial question of law,was an "error apparent on the face of the record" within the meaning of 0. 47, r. 1, of the Code of Civil Procedure inasmuch as this was a case where without any elaborate argument one could point to the error and say that here was a substantial point of law which stared in the face.

Civil Appeal No. 568 of 1961. Appeal by special leave from the order dated February 17, 1958, of the Life Insurance Tribunal at Nagpur in Case No. 17/XVI A of 1957. M.C. Setalvad, S.N. Andley, Rameshwar Nath and P.L. Vohra for the appellant. C.K. Daphtary, Attorney General for India, S.T. Desai, S.J. Banaji and K.L. Hathi, for the respondent. October 18, 1963. The Judgment of the Court was delivered by 128 SUBBA RAO J. This Appeal by special leave is directed against the order of the Life Insurance Tribunal, hereinafter called the "Tribunal", determining the dispute that was referred to it under s.16 of the (31 of 1956), hereinafter called the Act. The appellant is a company duly incorporated under the Indian Companies Act, 1882, and the . Prior to December 1957, its registered office was at Ajmer, but now it is in Calcutta. It was a composite insurer carrying on life insurance and general insurance business. The Act was passed to provide for the nationalization of life insurance business in India by transferring all such business to a Corporation established for the purpose. The Act came into force on July 1, 1956. On September 1, 1956, under section 3 of the Act the Central Government established a Corporation called the Life Insurance Corporation of India, hereinafter called the Corporation, which is the respondent in this appeal. Under section 7 of the Act on the appointed day, which was September 1, 1956, all the assets and liabilities appertaining to the controlled business of all insurers were statutorily transferred to and vested in the Corporation. Accordingly, the controlled business of the appellant as defined under the Act, i.e., all the business pertaining to its life insurance business, was transferred to and vested in the Corporation. Thereafter disputes arose between the appellant and the respondent in the matter of ascertainment of the compensation payable to the appellant and in respect of incidental and consequential matters thereto. By a letter dated May 21, 1957, the respondent offered to pay to the appellant towards compensation certain amount after setting off the amount due to it from the appellant in respect of part of the paid up capital of the controlled business and assets representing that part. By letter dated August 9, 1957, the appellant refused to accept the said offer in toto. On August 20, 1957, the respondent wrote a letter to the appellant informing it that as its offer was not accepted by the appellant 129 it had referred the dispute to the Tribunal. In due course, both the parties, i.e., the appellant and the respondent, appeared before the Tribunal and filed their respective statements; and the Tribunal framed as many as 8 issues. Issues Nos. 5, 6A, 7A and 7B which are relevant to the present enquiry read thus: Issue 5. Whether the petitioner (appellant herein) is entitled to the sum of Rs. 12,36,415 or in the alternative to Rs. 6,60,369 or in the further alternative to Rs. 5,95,764 as worked out respectively in annexures A to C to the Statement of Claim. Issue 6(A). Whether the petitioner is entitled to the unpaid dividends attributable and pertaining to the General Insurance Business of the petitioner as claimed in paragraph 6 of the Statement of Claim. Issue 7(A). Whether the Tribunal has jurisdiction to grant interest on the amount of compensation. Issue 7(B). If so at what rate and for which period. On issue 5 the Tribunal calculated the amount payable by the respondent to the appellant on the following lines: Amount payable towards compensation to the appellant was Rs. 5,95,764; out of the allocable paid up capital of Rs. 9_,79,683, the respondent had already received assets equivalent to Rs. 1,35,919; the balance receivable under that head was, therefore, Rs. 1,43,764; out of the sum of Rs. 5,95,764 payable to the petitioner appellant, the respondent was entitled to deduct Rs. 1,43,764; and the balance payable by the respondent to the appellant was Rs. 4,52,000. Briefly stated what the Tribunal did was that it ascertained the compensation payable to the appellant and set off against that amount the balance of the amour due to it from the appellant towards the allocable paid up capital. On Issue 6(A) it held that the appellant showed the unpaid dividends in the balance sheets as the liability of the life department, that it always regarded 1SC1/64 9 130 it as a liability appertaining to the life department and that as it was impossible to allocate the unpaid dividends of any shareholder to the several businesses carried on by the insurer, it would rely upon the books of accounts of the insurer to find out whether it was the liability of one department or the other. On that reasoning it held that the entire liability for the unclaimed dividends and assets equivalent to that liability appertained to the controlled business and, therefore, statutorily vested in the respondent Corporation. On issues 7(A) and 7(B) the Tribunal held that it had no jurisdiction to award interest on the amount of compensation. On the basis of the said findings the respondent was directed to pay to the appellant within two weeks a sum of Rs. 4,52,000 less any sum that might have been paid by the respondent to the appellant by way of admitted compensation. Hence the appeal. Mr. Setalvad, learned counsel appearing for the appellant, raised before us the following three points: (1) the Tribunal had no jurisdiction to decide on the question of the capital allocable to the controlled business as there was no dispute thereto between the parties and the said question was, therefore, not referred to it; (2) the liability of the appellant Company for unclaimed dividends and assets equivalent to that liability were not transferred to and vested in the Corporation under s.7(1) of the Act: and (3) the appellant would be entitled to interest on the amount of compensation payable to it and the Tribunal had jurisdiction to award the same. On the first question the learned counsel took us through the correspondence that passed between the parties and the pleadings before the Tribunal, and contended that the said correspondence, pleadings, and the issues disclosed that there was no dispute between the parties in respect of the capital allocable to the controlled business and, therefore, the Tribunal went wrong in deducting under that head a higher 131 amount than was agreed upon between the parties. As the answer to this argument mainly depends upon the said correspondence and the pleadings, we shall briefly scrutinise them. On May 21, 1957, the res pondent offered to the appellant to pay a sum of Rs. 3,30,023 in full satisfaction of the compensation payable to the appellant for the acquisition of its controlled business under the Act, and to set off ' against the said sum an amount of Rs. 1,71,365,1 being the part of the paid up capital of the appellant Company and assets representing such part, which had been allocated to the controlled business of the appellant Company in accordance with r.18 of the Life Insurance Corporation Rules, 1956, made under the Act. The letter concluded thus: "As the aforesaid assets have not yet been transferred to the Corporation the said amount of Rs. 1,71,365 will be set off against, and form a deduction from, the amount of compensation payable to your Company. " The offer was couched in clear and unambiguous terms. It was a composite offer. The letter could not be construed to contain two different matters, one an offer of compensation and the other a demand for payment of the amount due to the respondent in respect of the paid up capital allocable to the controlled business. On the other hand, in express terms the offer was for payment of compensation after setting off the amount due to the respondent. On August 9, 1957, the appellant wrote a letter in reply to the respondent 'section Therein an attempt was made to split up the offer. The appellant stated that the amount of compensation offered in the letter, namely, the sum of Rs. 3,30,023 was not acceptable to it. In regard to the amount of capital allocated by the Company to the controlled business, it stated that the assets worth Rs. 1,35,919 had already been transferred to the respondent and that having regard to the amount claimed by the respondent under that head, only a sum of Rs. 35,446 remained to be transferred to the Corporation by it. It asked that the said amount 132 might be deducted from the amount of compensation that might be ordered and decreed to be 'paid to it by the Tribunal. It would be seen from this letter that the appellant accepted a part of the offer and rejected the rest. On August 20, 1957, the respondent replied to the appellant that as its offer was not accepted, it had sent the necessary paper to the Tribunal. On August 22, 1957, the appellant received a notice from the Tribunal. The preamble to that notice read: "Whereas you have not accepted the amount determined by the Corporation and offered in full settlement of the compensation to you under the Act and whereas you have requested the Corporation to have the matter referred to the Tribunal for decision and whereas the Corporation has so referred the matter. " This clearly shows that the dispute before the Tribunal arose as the appellant did not accept the amount determined by the Corporation and offered in full settlement of the compensation payable to the appellant under the Act. It does not indicate that the accepted part of the offer was considered to be a closed matter between the parties and the disputed part only was put in issue. On September 13, 1957, the appellant wrote a letter to the respondent requesting it to pay the amount of compensation offered by it subject to adjustment on the basis of the decision to be given by the Tribunal. It also requested the respondent to supply to it a copy of the calculation sheet to show how the amount of compensation offered by it had been arrived at. On the same day, the respondent sent a copy of the said calculation sheet, which clearly showed not only the amount of compensation payable but also the amount of paid up capital allocable to the controlled business deductible therefrom. On September 17, 1957, the respondent made it clear to the appellant that if the appellant agreed to accept the amount offered by it in full satisfaction of the compensation payable to the appellant under the Act, the respondent 133 could make payment of the said amount to it. It is, therefore, clear that the dispute between the parties related to the composite offer made by the respondent i.e., the compensation payable as well as the set off of the amount due to the respondent calculated under r. 16 of the Rules made under the Act. That this was the dispute is also apparent from the pleadings before the Tribunal. On October 10, 1957, the appellant filed a statement before the Tribunal and in para 4 thereof, the contents of the letter written by the respondent on May 21, 1957 were extracted. How the appellant understood the scope of the offer is clear from the following extract from the said paragraph: "By and under the said letter the Defendant inter alia stated that part of the paid up capital of the Claimant, and assets representing such part, which had been allocated to the controlled business of the Claimant in accordance with Rule 18 of the Life Insurance Corporation Rules, 1956, amounted to Rs. 1,71,365 and that as the aforesaid assets had not till then been transferred to the Defendant, the said amount of Rs. 1,71,365 would be set off against, and form a deduction from the amount of compensation payable to the Claimant. " The appellant, therefore, understood the offer as a composite one. In para 5 thereof, the appellant gave the contents of its reply. On November 7, 1957, the respondent filed a statement before the Tribunal and in para. 3 thereof it reiterated its offer of compensation of Rs. 3,30,023 with a claim for set off on a calculation made in accordance with r.18 of the Rules. Throughout the correspondence and in the pleadings the respondent was consistently standing by the composite offer. It did not, either expressly or by necessary implication, accept the attempt made by the appellant to split up the said offer. When one party makes a composite offer, each part thereof being dependent on the other, the other party cannot by accepting a part of the offer compel the other 134 to confine its dispute only to that part not accepted, unless the party offering the composite offer agrees to that course. In this case not only there was no such agreement between the parties, but the respondent was throughout insisting upon the acceptance by the appellant of the entire offer in full settlement of the appellant 's claim against the respondent. Reliance is placed upon the circumstance that there was no specific issue framed by the Tribunal in respect of the paid up capital allocable to the controlled business of the appellant. But the pleadings clearly pinpoint the dispute between the parties in respect of the set off. As we will indicate later in our judgment, the calculation of the amount due towards paid up capital allocable to the controlled business depends on a basic factor that goes into the calculation of the amount due towards compensation. It was presumably found not necessary to frame a specific issue in respect thereof, for if that factor was settled one way or other, the amount due under the said head was only a matter of calculation and could certainly be taken into consideration in awarding the set off under the general issue, 8. Further, it does not appear from the order of the Tribunal that this question was raised before it. Indeed, it appears that both the parties proceeded on the basis that the calculation of the amount due towards compensation and that due towards paid up capital allocable to the controlled business were linked together and that by calculating the said two figures on the same basis one should be deducted from the other. If the question raised before us had been raised before the Tribunal, one would expect the Tribunal to deal with that matter. On the other hand, para 19 of the order shows that the appellant did not dispute the manner of the set off on the basis of the amount of compensation ascertained by the Tribunal. Mr Setalvad contended that under section 16(1)of the Act, read with Part A of the First Schedule, com 135 pensation should be computed in accordance with the provisions contained in para 1 or para 2 and paid to the insurer on the basis of the computation which was more advantageous to him and that for the purpose of calculating the compensation payable in accordance with para 1 the amount representing the paid up capital allocable to the controlled business had no relevance. He illustrated his argument by taking us through the alternative calculations made by the Tribunal and pointing out that while in the calculations made in terms of para 2 of Part A of the First Schedule the paid up capital allocable to the controlled business went into the calculations, in the calculations made in accordance with para 1 that item was not taken into consideration at all. Though prima facie this argument appears to be plausible, a deeper scrutiny of the figures indicates that there is an integral connection between the compensation and the amount representing the paid up capital allocable to the controlled business. Under r. 18(1) of the Rules, in respect of a Part A insurer like the appellant, the paid up capital allocable to the controlled business shall be that proportion of the total paid up capital of the insurer which the annual average of the profits from the controlled business during the period covered by the relevant actuarial investigation bears to the total of the annual average of profits plus two times the annual average of the profits from other business during that period. The factor will be, Annual average of surplus Total of annual average of surplus PLUS two times the annual average of profits from non life business. or shortly stated, L L+2 non L 136 On that basis the factor will be, Rs. 15,512.6 Rs. 90,523.8 (i.e. 15,512.6+75,011.2) =0.17136488 Rs. 15,512.6 being the annual average of surplus from the controlled business, as determined by the Corporation, and Rs. 75,011.2 being twice the annual average of profits from non life business. It is not disputed that the paid up capital of the Company was Rs. 10,00,000. If the factor was applied, the capital allocable to the controlled business would be, 0.17136488 Rs. 10,00,000 Rs. 1,71,365. The compensation to be given by the Corporation to the insurer to whom Part A of the First Schedule to the Act applies it is conceded that the said Part applies to the appellant is 20 times the annual average of the share of the surplus allotted to the shareholders of the appellant. On the basis that Rs. 15,512.6 was the annual average of the surplus allotted to the shareholders of the appellant, the Corporation ascertained the amount of compensation at a sum of Rs. 3,30,023 and offered the same to the appellant. It will be seen from the aforesaid calculations that there is an integral connection between the compensation payable to the insurer and the amount representing the capital allocable to the controlled business transferred to the Corporation. The common factor for both the amounts is the annual average of the surplus allotted to the shareholders. The same surplus must be the basis for calculating both the figures. Obviously two different figures cannot be given for the same surplus. If two different figures are given for the same surplus, not only one of the calculations must be wrong, but also grave injustice would be done to one of the parties. As the two figures cannot be disassociated, the respondent made a composite offer. What happened before the Tribunal is this: the appellant in annexure C to the Statement of 137 Claim claimed that the annual average of the surplus deemed to be allocated to the share holders was Rs. 29,125.2; the respondent stated that it was only Rs. 15,512.6: and the Tribunal came to the conclusion that the said annual average of the surplus was Rs. 29,125.2. The result was that the calculations made by the Corporation under the said two heads were upset. On that basis, applying the same formula the compensation was raised to a sum of Rs. 2,79,683.18. The Tribunal, therefore, rightly set off the said figures one against the other and held that the balance, after making other admitted deductions, was payable to the appellant. The above discussion clearly establishes the reason why a composite offer was made and why the dispute in respect of the said offer could not be split up into two parts. Both the amounts are payable under the provisions of the Act. Calculation of both depends upon the same "surplus". It is, therefore, reasonable to hold that the Act contemplates the setting off one against the other. Rule 12A of the Rules confers ample jurisdiction on the Tribunal to effectuate the said intention of the Legislature. The material part of r.12A reads: "The Tribunal may exercise jurisdiction in the whole of India and shall have power to decide or determine all or any of the following matters, namely : (iv) all claims for compensation payable under the Act to insurers whose controlled business has been transferred to and vested in the Corporation; and all matters connected with the determination, payment and distribution of such compensation. (vi) such supplemental, incidental or consequential matters which the Tribunal may deem it ' expedient or necessary to decide or determine for the 138 purpose of securing that the jurisdiction vested in it under the Act and in respect of matters referred to above is fully and effectively exercised. A combined reading of cls. (iv) and (vi) of r. 12A of the Rules makes it abundantly clear that a claim for set off of the nature that we are now considering is certainly covered by the wide phraseology of cl. (vi) of the said rule. This rule, it is said, was introduced after the decision on the dispute in the instant case was given. Be it as it may, the material clauses of the rule only recognize the pre existing principles inherent in the relevant dispute under the provisions of the Act. This Court in National Insurance Co. vs Life Insurance Corporation of India (1) held that the claim for set off was within the jurisdiction of the Tribunal. Hidayatullah J., speaking for the Court, observed at p. 1178: "No doubt, the Act says that the Corporation shall pay the compensation due to the Company but in another part it also says that the Company shall pay in lieu of the assets appertaining to the controlled business a sum of Rs. 6,00,000. These two provisions of law must be read together and in our opinion the Corporation was entitled to a set off in respect of the amount due to it and the Tribunal was perfectly right when it ordered such a set off. " We, therefore, hold that the dispute between the parties related not only to the compensation, but to the set off also, that dispute was referred to the Tribunal and that the Tribunal had jurisdiction to decide that dispute. The Tribunal in para 19 of its order rightly set off the amounts due from the one to the other and held that the balance of Rs. 4,52,000 was only due to the appellant towards compensation. The next question relates to the outstanding dividends or assets equivalent thereto taken posies (1) ; 139 sion of by the Corporation. Some material facts may be stated. The paid up capital of the Company was Rs. 10,00,000 divided into 40,000 shares of Rs. 25 each fully paid. On September 28, 1953, the appellant declared a dividend of 4% amounting to a sum of Rs. 40,000; again on September 29, 1954, it declared a dividend of 4% amounting to a sum of Rs. 40,000; and again in the year 1955 it declared a dividend of 6 % amounting to Rs. 60,000. In regard to the said amounts so declared certain payments were made to some of the shareholders and the balance of the outstanding dividends as on December 31, 1955, was Rs. 89,680. The balance sheets of the Company showed the unpaid dividends as the liability of the life department. Though the amounts representing the said dividends are not specifically shown in the assets, it cannot be disputed that the said amounts must have been included in the assets or cash shown in the balance sheets. The result was that the entire liability for the unclaimed dividends and assets equal to that liability were taken over by the respondent. The Tribunal relying on the books of account, the balance sheets and other documents of the Company held that the liability was only that of the life insurance business. Mr. Setalvad, learned counsel for the appellant, contended that under section 7(1) of the Act only the assets and liabilities appertaining to the controlled business of an insurer shall be transferred to and vested in the Corporation and that the dividends declared and the assets equivalent to the said liability were assets and liabilities of the Company and not those appertaining to the controlled business and, therefore, they did not vest in the Corporation. Section 7(1) of the Act reads: "On the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the controlled business of all insurers." An attempt is made to separate the Company 's assets and liabilities from the assets and liabilities 140 of the controlled business, and an argument is advanced that on a declaration of dividends the said dividends and the assets corresponding thereto cease to appertain to the business but belong to the Company. The question, therefore, is whether the dividends declared and the amounts in the hands of the Company representing them appertain to the controlled business of the insurer. Before we answer this question it will be convenient to know precisely the legal effect of a declaration of a dividend of a company. In Palmer 's Company Law, 20th Edn., the legal position is stated thus, at p. 625: "Where a dividend is declared and becomes payable, it is a debt in England, as will be explained in the following section, a speciality debt and each shareholder is entitled to sue the Company for his proportion. Until the dividend is declared and payable, the shareholder has no right to sue. " In re Savern and Wye and Severn Bridge Railway Co.(1), Romer J. observed thus: "In the first place, they contend that the company was in the position of a trustee for them of these dividends. In my judgment, this was not so. The declaration that the dividend was payable did not make the company a trustee of it for the shareholders. " The learned Judge said at p. 564 thus: "The dividends in question were declared and became payable more than twenty years before the present claims were made, and constituted debts due to the shareholders for which they could have sued at law, as was pointed out by Lindley L.J. in the passage in his treatise on Company Law (p. 437), which was cited in the argument before me." This decision is an authority for the view that when a company declares a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his share of the dividend for which (1) , 565. 141 he can sue at law and the declaration does not make the company a trustee of the dividend for the shareholder. Indeed, this legal position is not disputed. If so, the shareholders in the present case were only in the position of creditors in respect of the dividends declared in their favour and the amounts representing the dividends continued to be a part of the assets of the Company; and indeed the balance sheets filed in the present case show that no particular amounts had been earmarked for payment of dividends. To put it differently, the amount equivalent to the dividends declared continued to be a part of the assets of the Company and the dividends continued to be its debts. The said assets were part of the general assets of the Company and the said liabilities were part of the general liabilities of the Company. There cannot be any difference in law, in the matter of ownership of the assets, between a part of the assets equivalent to the dividends declared and the rest of the assets. With this background let us scrutinize the provisions of section 7(1) of the Act. Under that sub section, on the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the controlled business of all insurers. The first question is whether the dividends declared and the amounts representing the said dividends fell outside the expression "assets and liabilities" of the controlled business. It is said that though they are part of the assets and liabilities of the Company, they do not appertain to the controlled business. The word "appertain" in its ordinary meaning is "belong to, be appropriate to, relate to". The assets and liabilities must, therefore, belong to the controlled business of the insurer. That is no doubt a limitation or qualification imposed or made on "assets and liabilities". As the section is providing for the transfer of assets and liabilities of a Company which may have businesses other than life insurance business, it has become necessary to say that the said assets and liabilities are those that pertain only to the controlled business. The antithesis is not 142 between the Company and its business but between the controlled business and the other businesses of the insurer. That this is so is clear from the exhaustive enumeration of the categories of property in sub s.(2) of section 7 of the Act constituting assets appertaining to the controlled business. Sub section (2) of section 7 embodies an inclusive definition and in a sense it enlarges the meaning of the word "assets". The enumerated categories of assets include both movable and immovable properties and "all other interests and rights in or arising out of such property as may be in the possession of the insurer. " Liabilities shall be deemed to include all debts and obligations of whatever kind existing at the time of the statutory transfer. All the said rights and liabilities pertaining to the controlled business are transferred on the appointed day to the Corporation. The said enumeration does not leave any margin for allotment of any assets to the Company as distinguished from its controlled business. To illustrate, take the case of a company doing only the life insurance business. How is it possible to hold that the declared dividends and the assets representing the said dividends are those of the company unconnected with the business ? That may be so if the declared dividends are held in trust by the Company for a shareholder. But, as we have pointed out, the settled law on the point does not countenance any such concept of trust. The shareholders can only realise their dividends from the assets of the business, for they include the amounts representing the dividends. In any view, the definition of assets and liabilities of a controlled business in sub s.(2) of section 7 of the Act is certainly comprehensive enough to take in the said declared dividends and the corresponding assets. We cannot, therefore, accept this argument. Even so, it is contended that, the appellant being a composite insurer, the dividends declared and the assets equivalent to that liability appertained not only to the life business but also to the general business of the insurer and, therefore, under section 7(1) of 143 the Act only such part of the said assets and dividends allocable to the controlled business shall be transferred to the Corporation, but the Tribunal wrongly held that the entire dividends and the assets representing, the same were transferred to the Corporation. To appreciate this argument, some of the relevant provisions may be noticed. We have already noticed section 7 (1) of the Act where under all the assets and liabilities appertaining to the controlled business of, the insurer shall be transferred to an vested in the Corporation. Explanation (a) to section 7 of the Act reads: "The expression "assets appertaining to the controlled business of an insurer" 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." A further clarification is found in section 10 of the Act, which reads: (1) "For the removal of doubts it is hereby declared that in any case where an insurer whose controlled business has been transferred to and vested in the Corporation under the Act is a composite insurer, the provisions of the preceding sections shall only apply to the extent to which any property appertains to his controlled business and to rights and powers acquired, and to debts, liabilities and obligations incurred and to contracts, agreements and other instruments made by the insurer for the purposes of his controlled business and to legal proceedings relating to those purposes, and the provisions of those sections shall be construed accordingly." (2). The Central Government may. by rules made in this behalf, provide (b) for the allocation of the paid up capital or assets representing such paid up capital, 144 as the case may be, between the controlled business of the insurer and any other business; (c) for the apportionment and the making of financial adjustments with respect to any debts, liabilities or obligations incurred by any such insurer partly for the purposes of his controlled business and partly for other purchases and for any necessary variation of mortgages and encumbrances relating to such debts. liabilities or obligations. " Rule 18 of the Rules provides for the method of allocation of the paid up capital of the composite insurer. These provisions make it clear that in the case of a composite insurer only such part of the assets and liabilities allocable to the controlled business shall be transferred to and vested in the Corporation. As the dividends declared and the assets representing the said dividends appertain to the composite business, there is force in the argument of the learned counsel that only a part of such assets and liabilities referable to the controlled business could be transferred to and vested in the Corporation, and that the rest should be left with the insurer. This argument is sought to be met by the learned Attorney General by contending: that the appellant showed the said assets and liabilities as part of the life insurance business in the balance sheets duly approved by the Controller under the (Act No. 4 of 1938) and, therefore, it is precluded from questioning the correctness of the said balance sheets. This contention takes us to the consideration of the . Sections 10(1)and 11 of the said Act provide for separations of accounts and funds, and maintaining of account and balance sheets for different businesses in the insurance line. Under section 10(1), an insurer shall keep a separate account of all receipts and payments in respect of each class of insurance business mentioned ' therein; and under cl. (2) thereof, if he carried on the business of life 145 insurance, all receipts due in respect of such business shall be carried to and shall form a separate fund, the assets of which shall, after the expiry of six months, be kept distinct and separate from all other assets of the insurer. Section 11 of the enjoins every insurer in respect of insurance business transacted by him to prepare with reference to every year in accordance with the regulation contained in of the First Schedule a balance sheet in the forms set forth in of that Schedule. Form A has two columns, one under the heading "Life Annuity Business" and the other under the heading "Other classes of business". Under section 15(1) of the , the audited accounts and statements referred to in section 11 or section 13 (5) and the abstract and statement referred to in section 13 shall be furnished as returns to the Controller within the time prescribed thereunder. Under section 21 of the said Act, if it appears to the Controller that any return furnished to him under the provisions of the is inaccurate or defective in any respect, he may get the necessary information from the insurer and decline to accept the same unless the inaccuracy has been corrected and the deficiency has been supplied before the time prescribed. Under sub section (2) of section 21 of the said Act, the Court may, on the application of an insurer and after hearing the Controller, cancel any order made by the Controller or may direct the acceptance of any return which the Controller has declined to accept, if the insurer satisfied the Court that the action of the Controller was in the circumstances unreasonable. Section 22 of the said Act confers power on the Controller to order revaluation. Section 23 thereof says that every return furnished to the Controller, which has been certified by the Controller to be a return so furnished, shall be deemed to be a return so furnished and under sub section (2) thereof every document, purporting to be certified by the Controller to be a copy of a return so furnished, shall be deemed to be a copy of that return and shall be received in evidence as if it were the original return, unless some variation between 18CI/64 10 146 it and the original return is proved. The first question is whether under the provisions of the the contents of a certified balance sheet of an insurer are binding on the insurer in a Collateral proceeding. The provisions of the do not say that the correctness of the balance sheet certified by the Controller is conclusive for all purposes or that it could not be questioned in a collateral proceeding. For the purpose of the it would be accepted as correct. The said Act does not, expressly or by necessary implication, exclude the jurisdiction of courts and tribunals from going into the correctness of the said balance sheets. There is also no provision in the making the contents of the said balance sheets final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer. It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance sheets can be proved to be wrong. Mr. Setalvad argued that for the purpose of convenience of disbursement of dividends, the entire amount is shown as appertaining to the life insurance business, as the head office in Ajmer was only dealing with life insurance business and making the disbursements. Be it as it may, it is obvious in this case that the dividends declared appertained to the composite business and only a part of them appertained to the controlled business. The relevant entries in the certified balance sheets are, therefore, not correct. If so, it follows that under section 7(1) of the on the appointed day only such part of the said dividends and the corresponding assets appertaining to the controlled business were transferred to and vested in the Corporation. The next question is how to apportion the said assets and liabilities between the Corporation and the Company. Before the Tribunal the appellant did not ask for apportionment of the dividends but wanted a transfer of the entire liability to it with the assets 147 corresponding to ' the liability undertaking to reimburse the respondent for any claim of the shareholders against it. In the petition for special leave the appellant did not specifically ask for apportionment of the dividends between the Corporation and the Company. Even at the time of arguments Mr. Setalvad sought to sustain the claim of the appellant on a construction of section 7 of the Act, namely, that the said assets and liabilities only appertained to the Company, though at a later stage he pressed for apportionment as an alternative argument. The main contention we have rejected. Even if the apportionment was made, the allocable assets and liabilities would cancel each other, for both the Corporation and the Company would be liable to pay the entire amounts so allotted to the shareholders. But there may be a practical advantage to one or other of the parties in so far as a shareholder or shareholders may not care to claim the dividends payable to him or them. In the circumstances, we do not think we are justified in exercise of the extraordinary jurisdiction under article 136 of the Constitution to permit the appellant to raise the plea for the first time before us and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets. We, therefore, cannot accede to the request of Mr. Setalvad for this indulgence at this very late stage of the matter. The last point relates to the payment of interest. Both the parties agreed that in view of the decision of this Court in the National Insurance Co. Ltd. vs Life InSurance Corporation of India(1), the appellant will be entitled to interest at 4% on the sum of Rs. 4,52,000 from May 24, 1957, to the date of payment. In the result, subject to the said modification, the appeal is dismissed with proportionate costs. Appeal dismissed with modification.

IN-Abs

On the enactment of the , providing for the nationalisation of life insurance business. the 126 controlled business i.e., the life insurance business of the appellant, a composite insurer, vested in the respondent corporation. Thereafter disputes arose between the appellant and the respondent in the matter of ascertainment of the compensation payable to the appellant and in respect of incidental and consequential matters thereto. The respondent offered to pay the appellant towards compensation a certain amount after setting off the amount due to it from the appellant in respect of part of the paid up capital of the controlled business and assets representing that part. The appellant refused to accept this offer in toto. The dispute was referred to the Tribunal. The Tribunal ascertained the compensation payable to the appellant and set off against that amount the balance of the amount due from the appellant towards the allocable paid up capital. Relying upon the books of account of the appellant to find out whether the unpaid dividends of any share holder of the appellant was the liability of one department or the other, the Tribunal held that the entire liability for the unclaimed dividends and assets appertained to the controlled business, and therefore, statutorily vested in the respondent. The Tribunal held that it had no jurisdiction to award interest on the amount of compensation. On appeal by special leave, it was contended (i)that the Tribunal had no jurisdiction to decide on the question of the capital allocable to the controlled business as there was no dispute thereto between the parties and the said question was not referred to it; (ii) the liability of the appellant for the unclaimed dividends and assets equivalent to the liability were not transferred to and vested in the respondent under section 7(1) of the Act, and (iii) that the appellant would be entitled to interest on the amount of compensation payable to it and the Tribunal had jurisdiction to award the same. Held: The dispute between the parties related not only to compensation, but to the set off also, that the dispute was referred to the Tribunal, and the Tribunal had jurisdiction to decide that dispute. A combined reading of cls. (iv) and (vi) of r. 12A of the Rules under the Act makes it abundantly clear that a claim for set off is certainly covered by the wide phraseology of cl. (iv) of r. 12A. The calculations under r. 18(1) show that there is an integral connection between the compensation payable to the insurer and the amount representing the capital allocable to the controlled business transferred to the respondent. As these figures cannot be dissociated, the respondent made a composite offer. The Act contemplates the setting off one against the other. National Insurance Co. v Life Insurance Corporation of India ; , followed. (ii) The definition of assets and liability of a controlled business in sub section (2) of section 7 of the Act is certainly comprehensive enough to take in unclaimed dividends and corresponding assets. Sub sections (1) and (2) of section 7 of the Act provides that the assists and liabilities to be transferred must belong to the controlled 127 business of the insurer. The antithesis is not between the company and its business but between the controlled business and other business of the insurer. All the rights and liabilities pertaining to the controlled business are transferred to the Corporation. (iii) When a company declared a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his share of the dividend 'for which he can sue at law and the declaration does not make the company a trustee of the dividend for the shareholder. In re Seven and Wye Severn Bridge Railway Co. , applied. (iv) The provisions of the do not, expressly or by necessary implication, exclude the jurisdiction of the Courts and Tribunals from going into the correctness of the balance sheet certified by the Controller. For the purpose of the it would be accepted as correct. There is no provision in the making the contents of the balance sheet final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer. It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance sheet can be proved to be wrong. (v) The circumstances of the ease do not justify this Court exercise of the extraordinary jurisdiction under article 136 of the Constitution to permit the appellant to raise the plea of apportionment of the unclaimed dividends for the first time here and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets. (vi) In view of the decision of this Court in the National Insurance Co. Ltd. vs Life Insurance Corporation of India, the appellant will be entitled to interest at the rate of 4% on the amount of compensation. National Insurance Co. Ltd. vs Life Insurance Corporation of India ; , followed.

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

IN-Abs

' Eldee ', one of the branches of the respondent had advanced a loan to another concern, 'Castle '. The respondent claimed under section 15C of the Income Tax Act, exemption from tax in respect of 6 % of the capital employed in 'Eldee ' as a newly established undertaking and sought to include in the computation of the capital so employed the amount advanced to Castle '. The Income tax Appellate Tribunal directed inclusion of the amount advanced to 'Castle ' in the computation of capital invested for the purpose of section 15C. The Commissioner 's application under section 66(1) of the Act to the Tribunal to refer a question which arose out of the order of the Tribunal was rejected and his petition under s 66(2) for an order directing the Tribunal to state the case and refer it to the High Court was also dismissed. The question in dispute before the Revenue Authorities was whether 'Castle ' was a branch of the assessee. The Appellate Assistant Commissioner thought that the same eight persons were partners in these two undertakings and that the constitution of both the undertakings being the same, 'Castle ' could not be regarded as a separate entity. The Tribunal disagreed with that view relying upon only one circumstance that in the assessment for the year 1951 52 the income from 'Castle ' had not been computed and included in the assessment of the respondent. Held : Under the Income tax Act it is for the Tribunal to decide all questions of fact: the High Court has the power merely to advise the Tribunal on questions of law arising out of the order of the Tribunal. In so advising the High Court must accept the findings of the Tribunal on matters of appreciation of evidence. But the refusal of the Tribunal to state a case for the opinion of the High Court, on the view that a question of law does not arise out of the order is not conclusive. The High Court has the power to call upon the Tribunal to state the case if in its view a question of law arises out of the order of the Tribunal, and also if the Tribunal has misdirected itself in law in arriving at its findings. It is not open to the court to discard the Tribunal 's finding of fact, if there is some evidence to support the finding of the Tribunal on a question of fact, even if on a review of the evidence the court might have arrived at a difficult conclusion. It must however appear that the Tribunal had considered evidence covering all the essential matters before arriving at its con 428 clusion. If the conclusion of the Tribunal is based upon some evidence ignoring other essential matters it cannot be regarded as a finding not giving rise to a question liable to be referred to the Court. (ii) The conclusion of the Tribunal suffers from a double infirmity: it assumed the only fact on which its conclusion was founded and ignored other relevant matters on which the Appellate Assistant Commissioner relied. The Tribunal had therefore misdirected itself in law in arriving at its finding, and in refusing to require the Tribunal to state the case and to refer it, the High Court was in error.

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.

IN-Abs

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

Appeal No. 587 of 1962. Appeal by special leave from the judgment and order dated April 12, 1961, of the Bombay High Court in Civil Revision Application No. 441 of 1961. 232 S.V. Gupte, Additional Solicitor General of India and R.H. Dhebar, for the appellant. S.G. Patwardhan and A.G. Ratnaparkhi, for respondent No. 1. The Judgment of the Court was delivered by RAGHUBAR DAYAL J. This appeal, by special leave, raises the question whether the amount of interest decreed for the period subsequent to the institution of a suit comes within the expression 'amount or value of the subject matter in dispute ' in article 1 of Schedule 1 of the Bombay Court fees Act, 1959, hereinafter called the Act, for purposes of court fee payable on the memorandum of appeal. The plaintiff respondent No. 1 instituted Special Suit No. 5 of 1957 in the Court of the Civil Judge (Senior Division) at Ahmedabad to recover Rs.13,205 on account of the principal lent to defendant No. 7 and interest up to the date of the suit at the rate of 9 % per annum. On July 18, 1960, his claim was decreed in a sum of Rs. 13,033 6 6 with future interest from the date of suit till realization at 40% per annum on a sum of Rs. 10, 120. Defendant No. 7 appealed to the High Court against the decree. In the memorandum of appeal, defendant No. 7 valued the claim for purposes of jurisdiction and court fee at Rs. 13,033 6 6 and his grounds Nos. 1 and 48 of appeal were as follows: 1. That the lower Court erred in decreeing the plaintiff 's suit. That the decree is otherwise erroneous, unjust and illegal and therefore deserves to be set aside. " The remaining 46 grounds related to the merits of the plaintiff 's claim and did not deal with the correctness of the trial Court awarding future pendente site interest on the rate at which it was to be calculated. The Taxing Officer was of opinion that the appeal was against the whole decree and that the amount of value of the subject matter in dispute for purposes 233 of court fee was Rs. 14,036. 80nP. as the amount of interest from the date of the suit till the date of the decree on Rs. 10,120 came to Rs. 1,033.40 nP. and it bad been conceded by the counsel for the defendant appellant that the subject matter of the appeal was the decree passed by the trial Court. He therefore directed the defendant appellant to pay the deficit court fee of Rs. 70 on the memorandum of appeal and to amend the claim accordingly. The defendant appellant then filed a revision to the High Court under section 5(2) of the Act. His objection was upheld by the learned Judge who expressed the view: "The subject matter in appeal is the real matter in dispute between the parties and not something which must stand or fall with the decision oil it. In other words, it must mean the right which is in dispute between the parties. " He accordingly set aside the order of the Taxing Officer and held that the amount of court fee paid on the memorandum of appeal was the proper court fee. The State of Maharashtra has filed this appeal by special leave against this order. Mr. Gupta, for the appellant State, contends that the view expressed by the learned Judge is not correct and mainly relies on the construction put by Courts on the expression ' value or subject matter in dispute ' in the relevant provisions relating to the High Court 's giving leave to appeal to the Privy Council. In Gooroo persad Khoond vs Juggutchunder (1) the Judicial Committee said, in connection with the requirements of the directions in the Order in Council of April 10, 1938, with respect to the conditions for granting leave to appeal to the Privy Council, that leave to appeal was to be given in cases where the value of the matter in dispute in the appeal amounted to the specified sum of Rs. 10,000 and that in (1) 8 M.I.A. 166. 234 determining such value, the amount of interest decreed up to the date of the decree be included to the amount of the principal. Doorga Doss Chowdry vs Ramanauth Chowdry (1) is an authority for the proposition that the costs of a suit are no part of the subject matter in dispute. Their Lordships of the Privy Council said: sum claimed, it would be in the power of every litigant, by swelling the costs, to bring any suit up to the appealable value. " It may also be said that a litigant 's conduct may lead to a protracted trial and consequently to the increase in the amount of pendente lite interest which may raise the value of the subject matter in dispute in appeal to the appealable value. We do not consider it correct that the expression in the Act be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council. The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject litigant. The other provisions are for the purpose of allowing the party feeling aggrieved against the decision of the High Court to take up his case to the next higher Court. the Privy Council and therefore the relevant provisions in that regard had to be given a liberal construction. In the present case we have to construe the expression 'value of the subject matter in dispute in appeal ' for the purposes of determining the amount of Court fee due on a memorandum of appeal and not for determining such valuation for preferring an appeal to this Court. The relevant provision governing the question of court fee to be paid on the memorandum of appeal filed in a Civil Court is contained in article 1 of Sche (1)8 M.I.A. 262. 235 dule 1 of the Act. it is to be paid ad valorem according to the amount or value of the subject matter in dispute. The rates applicable with respect to the various amounts are mentioned in the article. The maximum amount of court fee, however, is Rs. 15,000. The amount of court fee payable, therefore, depends on the amount or value of the subject matter in dispute in appeal. The defendant appellant valued his claim at Rs. 13,033 6 6 and paid the requisite court fee on that amount. It is obvious therefore that he disputes in appeal that part of the decree which awarded Rs. 13,033 6 6 against him on account of principal and interest due up to the date of the institution of the suit. He did not dispute, according to the value of his claim, the amount of interest which could be found on calculation for the period between the date of the suit and the date of the decree at 4% per annum on a sum of Rs. 10,120 as had been awarded under the decree. Whether his appeal is competent or not without his including this amount in his claim in appeal, is a question different from that relating to the value of the subject matter in dispute in appeal. He does not dispute the decree for that amount and therefore the Court has not to decide about it and so this amount cannot be included in the amount of the subject matter in dispute in appeal covered by the relevant expression. None of his grounds of appeal refers specifically to this amount of interest between the date of the suit and the date of the decree. This makes it further plain that he does not question the propriety of awarding of future interest or the rate at which it was awarded or even the amount on which it could be awarded. It is not possible to say, in these circumstances, that the value of the subject matter in dispute in the appeal must include this amount of interest between the date of the suit and the date of the decree. Mr. Gupta has rightly conceded that it is well settled that the plaintiff has to value his appeal against the dismissal of his suit on the amount of the claim he had made in the plaint and has not to include 236 the interest due on the amount claimed up to the date of instituting the appeal, that the defendant has not to include that amount of future interest subsequent to the date of the decree till the institution of the appeal in the valuation of the appeal for the purposes of court fee and that no court fee is to be paid on the amount of costs decreed in the suit when the party aggrieved appeals against the decree. On what principle are these amounts not treated as forming part of the value of the subject matter in dispute in appeal? Such value is to be determined on the substantial allegation in the plaint or from the pleas in the memorandum of appeal with respect to the points in dispute between the parties and sought to be determined by the Court. Such are necessarily the points affecting the rights of the parties sought to be adjudicated by the Court. Claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the Court do not come within the purview of the expression 'subject matter in dispute in plaint or memo of appeal '. There appears no good reason to make a distinction between the decreed amount of costs and that of pendente lite interest for the purpose of determining the amount of the subject matter in dispute in appeal. It is true that costs of suit arise independently of the claim and are really those which are incurred by the plaintiff while the decree for the amount of pendente lite interest is directly related to the plaintiff 's claim though its award is within the discretion of the Court, but this will not justify the distinction. The costs too, and particularly the costs on account of court fee and counsel 's fee, arise directly on account of the claim put forward in Court. The reason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression 'amount or value of subject matter in dispute in article 1, Schedule 1, of the Act and that the plaintiff ' has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest 237 and costs according to the circumstances of the suit in view of sections 34 and 35 C.P.C. This principle equally applies to the non inclusion of the decreed amount ' of pendente lite interest in evaluating the subjectmatter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court an the plaintiff has no right or claim for that amount against ' the defendant. It is obvious that if the defendant appellant succeeds in establishing to the satisfaction of the appellate Court that the decree for the principal and interest up to the date of the suit is bad in whole or in part, that will itself lead the appellate Court to exercise its discretion with respect to the amount of costs and future interest in such a way that if the plaintiff 's claim is dismissed in too, he will not be awarded any future interest or any costs of the suit or appeal and that in case his claim succeeds in part, the amount of future interest and costs decreed in his favour would be appropriately modified by the appellate Court. The defendant appellant has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or correctness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject matter in the Trial Court he will have to pay court fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression 'value of the subjectmatter in dispute in appeal '. This has been the basis of the various decisions of the Courts in which court fee has been demanded on the amount of costs or future interest. In Mitthu Lal vs Chameli (1) it was held that no courtfee was to be paid on interest pendente lite granted by the lower Court unless the awarding of it was specifically challenged in appeal. It was said at p. 76: 57 All. 238 "Interest pendente lite is awarded under section 34 of the Civil Procedure Code. The Court may award it whether the plaintiff claims it or not. In this respect the court 's power stands on the same footing as its power to award costs to a successful party. It is well settled rule that no court fee is payable on the amount of costs awarded by a decree appealed from, if no ground is specifically directed against the award of costs. . . . . The same principle is applicable to interest pendente lite which the Court may award in the exercise of its power under section 34. On a proper reading of the appellant 's grounds of appeal in the lower appellate court we are satisfied that the subjectmatter of his appeal to that court was the principal amount and interest up to the date of the suit." In Keolapati, Mst. vs B.N. Varma "I it was held that unless the appellant expressly challenges the award of future interest, no court fee is to be paid on the amount of interest accruing from the date of the suit till the date of the filing of the appeal. In Ashutosh vs Satindra Kumar (2) it was said at at p. 382: "Costs are not regarded as being any part of a subject matter in dispute either in the suit or in the appeal. In the appeal, the appellant does not in such an event really dispute the order as to costs for it is the natural order that is ordinarily made following the decision as to the main subject matter in dispute and if he himself succeeds in the appeal in regard to the main subject matter, automatically he will expect to succeed with regard to the costs. " We therefore hold that the amount of pendente lite interest decreed is not to be included in the 'amount or value of the subject matter in dispute in appeal ' for the purposes of article 1 of Schedule 1 of the Act unless the appellant specifically challenges the cor (1) I.L.R. 12 Luck. (2) 239 rectness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree. The appellant here has not specifically challenged the decree in that respect and therefore the High Court is right in holding the memorandum of appeal to be, sufficiently stamped. The appeal T. is therefore dismissed with costs. Appeal dismissed.

IN-Abs

The plaintiff respondent No. 1 instituted a suit for recovery of the amount lent to the defendant with interest upto the date of the suit. His claim was decreed in a sum of Rs. 13,033 6 6 with future interest from the date of suit till realisation at 4 % per annum on a sum of Rs.10,120. Against this decree the defendant appealed to the High Court and valued the appeal at Rs. 13,033 6 6 and paid the requisite court fee on that amount. All his grounds of appeal related to the merits of the plaintiff 's claims and did not deal with the correctness of the trial court awarding future pendente lite interest on the rate at which it was to be calculated. The Taxing Officer directed the defendant to pay the deficit court fee of Rs. 70 on the memorandum of appeal as he was of the opinion that the appeal was against the whole decree and that the amount of value of the subject matter in dispute for purpose of court fee was Rs. 14,036.80nP. as the amount of interest from the date of the suit till the date of the decree on Rs. 10,120 came to Rs. 1,033.40nP. 231 The defendant challenged this order in revision before the High Court under section 5(2) of the Bombay Court fees Act, 1959. The High Court set aside the order of the Taxing Officer and the learned Judge expressed the view: "The subjectmatter in appeal is the real matter in dispute between the parties and not something which must stand or fall with the decision on it. In other words, it must mean the right which is in dispute between the parties". In this Court the appellant State challenged the correctness of the said view of the High Court and relied mainly on the construction put by courts on expression " value or subject matter in dispute," in the relevant provisions relating to the High Court 's giving leave to appeal to the Privy Council. Held:(i) That the expression 'amount or value of the subjectmatter in dispute ' in article 1 of Schedule 1 of the Bombay Court fees Act, cannot be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council. The Act is a taxing statute and its provisions have to be construed strictly, in favour of the subject litigant. Gooroopersad Khoond vs Juggutchunder, 8 M.I.A. 166 and Doorga Doss Chowdry vs Ramanauth Chowdry, 8 M.I.A. 262, held in applicable. (ii)Claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the court do not come within the purview of the expression 'subject matter in dispute in plaint or memo of appeal '. (iii)The amount of pendente lite interest decreed is not to be included in the 'amount or value of the subject matter in dispute in appeal ' for the purposes of article 1 of Sch. 1 of the Act unless the appellant specifically challenges the correctness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree. In the present case, the decree in that respect was not specifically challenged and therefore the view of the High Court must be held to be correct. Mitthu Lal vs Chameli, 57 All. 7 1, Keolapati Mst. vs B.N. Varma, I.L.R. 12 Luck. 466 and Ashutosh vs Satindra Kumar, 54 C.W.N.380, referred to.

Appeals Nos. 272 to 280 of 1962. Appeals by special leave from the Award dated June 3, 1960, in reference (IT) Nos. 84 and 251 of 1959, June 15, 1960, in References (IT) Nos. 112 and 252 of 1959, June 16, 1960, in References (IT) Nos. 121 of 1959, and 7 of 1960, June 15, 1960, in References (IT) Nos. 123, 180 and 236 of 1959 of the Industrial Tribunal, Maharashtra at Bombay. S.V. Gupte, Additional Solicitor General N. V. Phadke, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for the appellants (in all the appeals). M.C. Setalvad, K.T. Sule, Madan G. Phadnis, Jitendra Sharma and Janardan Sharma, for the respondents (in C.A. No. 272/1962). K.T. Sule, Madan G. Phadnis, Jitendra Sharma and Janardan Sharma, for the respondents (in C. As. 273 280/62). November 14, 1963. The Judgment of the Court was delivered by WANCHOO J. These nine appeals by special leave arise out of the awards of the Industrial Tribunal, Bombay and will be dealt with together. There were disputes between the four appellants companies and the respondents, their workmen, which were referred for adjudication to the Industrial Tribunal by nine reference orders on various dates between April to December 1959. The main dispute which gave rise to the references was with respect to wages, dearness allowance and gratuity. The references included other items also but we are not concerned in the present appeals with those items. Of the four companies who are the appellants before 364 us, Greaves Cotton and Co., is the first company and its main activity is to invest money in manufacturing concerns. The second company is Greaves Cotton and Crompton Parkinson Private Limited and its main business is distribution of the products of a manufacturing concern known as Crompton Parkinson (Works) India Limited and service and repair to the said products at its workshop. The third company is Konyon Greaves Private Limited and its main business is to manufacture high grade interstranded ropes for the textile industry. The last company is Ruston and Hornsby (India) Private Limited and its main business is to manufacture oil engines and pumps. The last three companies are controlled by the first company, namely Greaves Cotton and Co., in one way or the other and that is how the main dispute relating to wages and dearness allowance was dealt with together by the tribunal. There were two references each with respect to the first three companies and three references with respect to Ruston and Hornsby Private Limited; and that is how there are nine appeals before us. There were nine awards, though the main award dealing with the main dispute relating to wages and dearness allowance was common. It appears that wages and dearness allowance prevalent in the four companies had been continuing since 1950 when the last award was made between the parties. It may also be stated that there was no .serious dispute before the Tribunal as to the financial capacity of the companies and further, as the first company controls the other three companies, the wages and dearness allowance are the same so far as the clerical and subordinate staff are concerned. The same appears to be the case with respect to factory workmen. The Tribunal dealt with clerical and subordinate staff separately from the factory workmen. So far as the clerical and subordinate staff are concerned, the Tribunal, after a comparison of wages and dearness allowance prevalent in the four companies with wages 365 and dearness allowance prevalent in comparable concerns revised them. Further it provided bow the clerical and subordinate staff would be fitted in the new scales after making certain adjustments and in that connection it gave one to three extra increments depending upon length of service between 1950 to 1959. Finally, it ordered that the award would have effect from April 1, 1959, which was a week before the first reference was made with respect to the first company. The Tribunal then dealt with the case of the factory workmen and prescribed certain rates of wages. Further it gave the same dearness allowance to the factory workmen as to the clerical and subordinate staff and directed adjustments also on the same basis. Finally it considered the question of gratuity and the main provision in that respect was that the maximum gratuity allowable would be upto 20 months and a provision. was also made to the effect that if an employee was dismissed or discharged for misconduct which caused financial loss to the employer, gratuity to the extent of that loss only will not be paid to the employee concerned. The main attack of the appellants is on the award as regards wages and dearness allowance. It is urged that the industry cum region formula, which is the basis for fixation of wages and dearness allowance has not been properly applied by the Tribunal and it had been carried away by the recommendations of the tripartite conference which suggested need based minimum wages. It is also urged that whatever comparison was made was with concerns which were not comparable and the wages awarded were even higher than those prevalent in any comparable concern. It is also urged that the Tribunal did not consider the total effect of the increase it was granting in basic wage and dearness allowance together as it should have done, for the purpose of finding out whether the total pay packet in the appellants ' concerns can bear comparison with the total pay packet of the concerns with which the Tribunal had compared the appellants ' concerns. In this connection it is urged that in flying 366 scales of wages the Tribunal increased the maximum and the minimum and the annual rate of increment and decreased the span of years in which the maximum would be reached. Adjustments made by the Tribunal are also attacked and so is the order making the award enforceable from April 1, 1959. As to the factory workmen it is urged that the Tribunal made no attempt to make a comparison with wages prevalent even in what it considered to be comparable concerns. Lastly it is urged that the Tribunal created a new category of factory workmen called higher unskilled which was not demanded and which in any case did not exist in any comparable concern. The first question therefore which falls for decision is whether the Tribunal went wrong in not following the industry cum region principle and in leaning on the recommendations of the Tripartite Conference. It is true that the Tribunal begins its award with a reference to the recommendations of the Tripartite Conference wherein the need based minimum wage was evolved. It is urged that this disposed the Tribunal to pitch wage scales too high. It is however clear from the award that though the Tribunal discussed the recommendations of the Tripartite Conference at some length, when it actually came to make the award it did not follow those recommendations. The reason why it referred to those recommendations was that the respondents workmen based their claim on them and wanted that the Tribunal should fix wagescales accordingly. But the Tribunal 's conclusion was that it was not feasible to do so, though looking at the financial stability of the appellants, emoluments needed upgrading. It then went on to consider the wages prevalent in comparable concerns and finally fixed wages for the appellants on the basis of wages prevalent in such concerns. Though therefore the recommendations of the Tripartite Conference are referred to in the Tribunal 's award, its final decision is not based on them and what the Tribunal has done is to make comparisons with what it considered comparable concerns so far as clerical and subordi 367 nate staff are concerned. We are therefore not prepared to say that reference to the recommendations of the Tripartite Conference in the opening part of the award was irrelevant and therefore the rest of the award must be held to be vitiated on that ground alone. The main contention of the appellants however is that the tribunal has gone wrong in applying the industry cum region formula which is the basis for fixing wages and dearness and has made comparison with concerns which are not comparable. It is also urged that the Tribunal has relied more on the region aspect of the industry cum region formula and not on the industry aspect when dealing with clerical and subordinate staff and in this it went wrong. Reference in this connection is made to two decisions of this Court, namely, Workmen of Hindusthan Motors vs Hindusthan Motors( ',) and French Motor Car Company vs Their Workman (2 ) and it is emphasis that the principles laid down in Hindusthan Motors ' case(") were more applicable to the present case than the principles laid down in the French Motor Car Co. 's case(2). In the Hindusthan Motors case(1), this Court observed that it was ordinarily desirable to have as much uniformity as possible in the wage scales of different concerns of the same industry working in the same region, as this puts similar industries more or less on an equal footing in their production struggle. This Court therefore applied the wage scales awarded by the Third Major Engineering Tribunal in Bengal in the case of Hindusthan Motors also. It is urged that the Tribunal should have taken into account comparable concerns in the same industry and provided wage scales on the same lines so that, so far as manufacturing concerns in the present appeals are concerned, there will be equality in the matter of competition. In the French Motor Car Co. 's case(2) however this Court held so far as clerical staff and subordinate staff are concerned that it may be possible to take into account (1) (2) [1963] Supp. 368 even those concerns which are engaged in different lines of business for the work of clerical and subordinate staff is more or less the same in all kinds of concerns. We are of opinion that there is no inconsistency as urged in the principles laid down in these two cases. As we have already said the basis of fixation of wages and dearness allowance is industry cum region. Where there are a large number of industrial concerns of the same kind in the same region it would be proper to put greater emphasis on the industry part of the industry cum region principle as that would put all concerns on a more or less equal footing in the matter of production costs and therefore in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose wages and dearness allowance also go into calculation of production costs. But where the number of comparable concerns is small in a particular region and therefore the competition aspect is not of the same importance, the region part of the industry cum region formula assumes greater importance particularly with reference to clerical and subordinate staff and this was what was emphasised in the French Motor Car Co. 's case() where that company was already paying the highest wages in the particular line of business and therefore comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage scales and dearness allowance. The principle therefore which emerges from these two decisions is that in applying the industry cum region formula for fixing wage scales the Tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry; in such a case in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small it is the region part of the industry cum region formula which (1) [1963] Supp. 369 assumes importance particularly in the case of clerical and subordinate staff, for, as pointed out in the French Motor Car Co. 's case,(" there is not much difference in the work of this class of employees in different industries. In the present cases it does appear that the Tribunal has leaned more on the region part of the industry cum region formula and less on the industry part. But we think that it cannot be said that the Tribunal was wrong in doing so for two reasons. In the first place these four companies are not engaged in the same line of industry; but on account of certain circumstances, namely, that Greaves Cotton and Co. is the controlling company of the other three, it has been usual to keep the same scales for clerical and subordinate staff in all these concerns. In the second place, it is not clear, as was clear in the Hindusthan Motors case(" that there are a large number of comparable concerns in the same region. As a matter of fact the main company out of these four is Greaves Cotton and Co. Limited, which is in the main an investment and financial company and the Tribunal was therefore right in taking for comparison such companies as would stand comparison with the main company in the present appeals (namely, Greaves Cotton & Co). Both parties filed scales of wages prevalent in what they considered to be comparable concerns and it is clear from the documents filed that some of the comparable concerns were the same in the documents filed by the two parties. On the whole therefore we do not think the Tribunal was wrong in putting emphasis on the region aspect of the industry cum region formula in the present case insofar as clerical and subordinate staff was concerned. , for the four companies before us do not belong to the same industry and Greaves Cotton and Co. controls the other three. Considering therefore the standing of the main company (namely, Greaves Cotton and Co. Ltd.), it was not improper for the Tribunal in the present cases to rely on the comparable concerns (1) [1963] Supp. 1/SCI/64 24 (2) 370 which were cited on behalf of the respondents, some of which were common with the comparable concerns cited on behalf of the appellants. What the Tribunal lid thereafter was to consider the minimum for various categories of clerical and subordinate staff prevalent in these comparable concerns and the maximum prevalent therein at id also the annual increments and the span of years in which. the maximum would be reached. The Tribunal then went on to fix scales for various categories of clerical and subordinate staff of the appellants which were in between the scales found in various concerns. Further, as the financial capacity of the appellants was not disputed, the Tribunal pitched these scales nearer the highest scales taking into account the fact that for nine years after 1950 there had been no increase in wage scales. We do not think therefore that the wage sales fixed by the Tribunal, learning as it did, on the region aspect of the industry cum region formula, for the clerical and subordinate staff can be successfully assailed by the appellants. It has however been urged that the Tribunal overlooked considering what would be the total wage packet including basic wages and dearness allowance and that has made the total wages (i.e. basic wage and dearness allowance) fixed by the Tribunal much higher in the case of the appellants than in comparable concerns which it took into account. It is true that the Tribunal has not specifically considered what the total wage packet would be on the basis of the scales of wages and dearness allowance fixed by it as it should have done; but considering that wage scales fixed are less than the highest in the comparable concerns though more than the lowest, it cannot be said that the total wage packet in the case of the appellants would 'be necessarily higher than in the case of the other comparable concerns. This will be clear when we deal with the dearness allowance which has been fixed by the Tribunal, for it will appear that the dearness allowance fixed is more or less on the same lines, i.e. less than 371 the highest but more than the lowest in other comparable concerns. On this basis it cannot be said that the total wage packet fixed in these concerns would be the highest in the region. Though therefore the Tribunal has not specifically considered this aspect of the matter which it should have done its decision cannot be successfully assailed on the ground that the total wage packet fixed is the highest in the region. This brings us to the case of factory workmen. We are of opinion that there is force in the contention of the appellants insofar as the fixation of wagescales for factory workmen is concerned. The respondents wanted that separate wages should be fixed for each category of workmen. The Tribunal however rejected this contention and held that the usual pattern of ' having unskilled, semi skilled and skilled grades should be followed and the various workmen, though they should be known by their designation and not by the class in which they were being placed, should be fitted in these categories. In the present concerns, there were six categories from before, namely (i) unskilled, (ii) semiskilled 1, (iii) semiskilled If, (iv) skilled 1, (V) skilled 11, and (vi) skilled 111. The Tribunal kept these categories though it introduced a seventh category called the higher unskilled. It is not seriously disputed that this category of higher unskilled does not exist in comparable concerns; nor have we been able to understand how the unskilled category can be sub divided into two namely, lower and higher unskilled, though we can understand the semi skilled and skilled categories being sub divided, depending upon the amount of ' skill. But there cannot be degrees of want of skill among the unskilled class. The Tribunal therefore was not justified in creating the class of higher unskilled. It is neither necessary nor desirable to create a higher unskilled category and only the six categories which were prevalent from before should continue. The main attack of the appellants on the wages fixed for these six categories is that in doing so, the 372 Tribunal completely overlooked the wages prevalent for these categories in concerns which it had considered comparable. A look at the award shows that it is so. The Tribunal has no where considered what the wages for these categories in comparable concerns are, though it appears that some exemplars were filed before it; but the way in which the Tribunal has dealt with the matter shows that it paid scant regard to the exemplars filed before it and did not care to make the comparison for factory workmen in the same way in which it had made comparison for clerical and subordinate staff. In these circumstances, wage scales fixed for factory workmen must be set aside and the matter remanded to the Tribunal to fix wage scales for factory workmen dividing them into six categories as at present and then fixing wage after taking into account wages prevalent in comparable concerns. The parties will be at liberty to lead further evidence in this connection. Then we come to the question of dearness allowance. So far as clerical staff is concerned, dearness allowance prevalent in the appellants ' concerns was as follows on the cost of living index of 411 420: Basic salary D.A at cost of Verification for in Rs. living index every 10 point group 411 420 movement 1 to 100 115% of basic salary 5% or the textile scale on 30 day month which ever is higher 101 to 200 35% 1 1/2% 201 to 300 25% 1% 301 and above 17 1/2% 3/4% 373 The Tribunal fixed the dearness allowance as follows: When the consu Variation for Salary slab mer price index each 10 point rise is between 411. or fall in the 420 index On 1st Rs. 100 115% 5% On 2nd Rs. 100 50% 2.% On 3rd Rs. 100 25% 1%. Balance upto 20% 1.% Rs. 600 A comparison of these figures will show that on the first hundred and the third hundred there is no difference in the scale fixed by the Tribunal; but there is a slight improvement on the second hundred and a very slight one above three hundred. This scale fixed by the Tribunal is in line with some scales of dearness allowance recently fixed by Tribunals in that region. The main improvement is on the second hundred and it cannot really be said that employees in that wage range do not require the higher relief granted to them by tribunals in view of the rise in prices. We do not think therefore that the dearness allowance fixed by the Tribunal, taking into account what was already prevalent in these concerns and also taking into account the trend in that region, can be successfully assailed so far as clerical staff ' is concerned. This brings us to the case of subordinate staff. It appears that in these concerns, subordinate staff was getting dearness allowance on different scales based on the old textile scale of dearness allowance. The Tribunal has put the subordinate staff in the same scale of dearness allowance as clerical staff. The reason given by it for doing so is that incongruity in the payment of dearness allowance between clerical and subordinate staff should be removed. It appears that on account of different scales of 374 dearness allowance for subordinate and clerical staff a member of 'the subordinate staff drawing the same wages would get less dearness allowance than a member of the clerical staff. The discrepancy is very glaring as between clerical staff and factory workmen who also have different scales of dearness allowance. The Tribunal therefore thought that dearness allowance which is meant to neutralise the rise in cost of living, should be paid to clerical staff, subordinate staff as well as factory workmen on the same scale, for the need for neutralisation was uniformly felt by all kinds of employees. It also pointed that there was a trend towards uniformity in the matter of scales of dearness allowance as between clerical staff and other staff and factory workmen and referred to a number of firms where same scales prevailed for all the staff. It has however been urged on behalf of the appellants that the pattern in the region is that there are different scales of dearness allowance for clerical staff and other staff including factory workmen and the Tribunal therefore should have followed this pattern. The reasons given by the Tribunal for giving the same scales of dearness allowance to all the categories of staff, including the factory workmen appear to us to be sound. Time has now come when employees getting same wages should get the same dearness allowance irrespective of whether they are working as clerks, or members of subordinate staff or factory workmen. The pressure of high prices is the same on these various kinds of employees. Further subordinate staff and factory workmen these days are as keen to educate their children as clerical staff and in the circumstances there should be no difference in the amount of dearness allowance between employees of different kinds getting same wages. Further an employee whether he is of one kind or another getting the same wage hopes for the same amenities of the and there is no reason why he should not get them, simply because he is, for example, a factory workman, though he may be coming from the same class of people as a member of clerical staff. On the whole therefore the Tribunal was in 375 our opinion right in following the trend that has begun in this region and in fixing the same scale of dearness allowance for subordinate staff and factory workmen as in the case of clerical staff. So far therefore as subordinate and clerical staff are concerned, we see no reason to disagree with the rate of dearness allowance fixed by the Tribunal. This brings us to the case of the dearness allowance for factory workmen. In their case we have set aside the award relating to wage scales. It follows that we must also set aside the award relating to dearness allowance as we have already indicated that the Tribunal has to take into consideration the total pay packet in fixing wages and dearness allowance. When therefore the case goes back to the Tribunal for fixing wages and dearness allowance for factory workmen, it will be open to the Tribunal to fix the same rates of dearness allowance for factory workmen as for clerical staff; but in doing so the Tribunal must when making comparisons take into account the total wage packet (i.e. basic wages fixed by it as well as dearness allowance) and then compare it with the total wage packet of comparable concerns and thus arrive at a just figure for basic wage, for each category of factory workmen. But the entire matter is left to the Tribunal and it may follow such method as it thinks best so long as it arrives at a fair conclusion after making the necessary comparison. This brings us to the question of adjustment. We have already said that the Tribunal allowed one to three increments depending upon the length of service between 1950 and 1959. It has been urged that no adjustment should have been allowed taking into account the fact that incremental scales were in force previously also in these concerns and the Tribunal has increased both the minimum and the maximum in its award and has granted generous annual increments reducing the total span within which a particular employee belonging to clerical and subordinate staff will reach the maximum. Reliance in this connection has been placed on the 376 French Motor Car Co. 's case (". It is true that the Tribunal has given larger increments thus reducing the span of years for reaching the maximum. That alone however is no reason for not granting adjustment. But it is said that in the French Motor Co. case( ' ', this Court held that where scales of pay were existing from before no adjustment should be granted by giving extra increments and that case applies with full force to the facts of the present case. Now in that case this Court pointed out on a review of a large number of awards dealing with adjustments that "generally adjustments are granted when scales of wages are fixed for the first time. But there is nothing in law to prevent the industrial tribunal from granting adjustments to the employees in the revised wage scales even in a case where previously pay scales were in existence; but this has to be done sparingly taking into consideration the facts and circumstances of each case. The usual reason for granting adjustment even where wage scales were formerly in existence is that the increments provided in the former wage scales were particularly low and therefore justice required that adjustment should be granted a second time." Another reason for the same was that the scales of pay were also low. In those circumstances adjustments have been granted by tribunals a second time. This Court then pointed out in that case that the incremental scales prevalent in that company were the highest for that kind of industry and therefore struck down the adjustments granted and ordered that clerical staff should be fixed on the next higher step in the new scales if there was no step corresponding to the salary drawn by a clerk in the new scale. The question therefore whether adjustment should be granted or not is always a question depending upon the facts and circumstances of each case. Let us therefore see what the circumstances in the present cases are. Tables of comparative rates of increments were filed before the Tribunal (1) [1963] Supp. 377 for various grades of clerks. It is clear from the examination of these tables and pay scales prevalent in the appellants ' concerns from 1950 that pay scales were not high as compared to pay scales in comparable concerns. If anything, they were on the low side. Further, as an example, in the case of junior clerks, the first rate of increment was Rs. 5 in the appellants ' concerns and this rate went on for 13 years; in other concerns where the first rate of increment was Rs. 5 it lasted for a much shorter period, which in no case exceeded eight years and was in many cases three or four years. In some concerns the first rate of increment was higher than Rs. 5. Almost similar was the case with senior clerks. So it appears that in the appellants ' concerns the first rate of increment was generally on the low side and lasted for a longer period than in the case of comparable concerns. In these circumstances if the Tribunal decided to give increments by way of adjustments it cannot be said that the Tribunal went wrong. The facts 'in these cases are different from the facts in the case of the French Motor Car Co. 's case(2) and therefore (1) we see no reason for interfering with the order of adjustment. After the change in wage scales, dear ness allowance and adjustment, the employees of the appellants ' concerns will stand comparison with some of the best concerns in that region. But considering that there is no question of want of financial capacity and that Greaves Cotton & Co. which is the main company concerned in these appeals, has a high standing in that region, we do not think that the total wage packet fixed is abnormal or so disproportionate as compared to the total wage packet in other comparable concerns as to call for any interference with adjustments. The next question is about the so called retrospective effect of the award. The first reference was made to the Tribunal on April 8, 1959, while the last was in December 1959. What the Tribunal has done is to grant wage scales etc., from April 1, 1959. This cannot in our opinion be said to be really (1)[1963] Supp. 378 retrospective, because it is practically from the date of the first reference in the case of the main company. On the whole therefore we see no reason to interfere with the order of the Tribunal fixing the date from which the award would come into force. Lastly we come to the question of gratuity. The attack in this connection is on two aspects of the gratuity scheme. The first is about the fixation of 20 months as the maximum instead of ' 15 months, which was usual so far, The second is with respect to deduction from gratuity only to the extent of the financial loss occasioned by misconduct in case of dismissal for misconduct. So far as the second provision is concerned it cannot be disputed that this is the usual provision that is being made in that region. So ear as the increase in the maximum from 15 months to 20 months is concerned, it appears that the Tribunal has relied on a number of cases in which the maximum is higher than fifteen months wages. In these circumstances considering that tri bunals have now begun to, give a higher ceiling and in one concern, namely Mackinnon Mackenzie, the ceiling has been fixed even so high as thirty moths by agreement, we do not think that any interference is called for in the present case. We therefore dismiss the appeals so far as retrospective effect and adjustments as also fixation of wages and dearness allowance with respect to clerical and subordinate staff are concerned. We allow the appeal with respect to factory workmen and send the cases back to the Tribunal for fixing the wage structure including basic wage and dearness allowance and for granting adjustments in the light of the observations made by us. The new award pursuant to this remand will also come into force from the same date, namely, April 1, 1959. The appeals with respect to gratuity are dismissed. In the circumstances we order parties to bear their own costs. Two months from today is allowed to pay up the arrears. Appeal partly allowed and remanded.

IN-Abs

The disputes between the appellant companies and the workmen which were referred to the Industrial Tribunal for adjudication, related to wages, dearness allowance and gratuity. The companies raised objections to the award of the Tribunal on various grounds. Held:(i) The reference in the award to the recommendations of the Tripartite Conference wherein the need based minimum wage was evolved, did not vitiate the award, as the final decision was based not on them but on a consideration of the wages prevalent incomparable concerns so far as clerical and subordinate staff were considered. (ii) In applying the industry cum region formula for fixing wage scales the Tribunal should lay stress on the industry part of the formula if there were large number of concerns in the same region carrying on the same industry, but where the number of industries of the same kind in a particular region was small, it was the region part of the formula which assumed importance particularly in the case of clerical and subordinate staff. In the present case, the Tribunal was right in leaning more on the region part of the industry cum region formula and less on the Industry part. Workman of Hindustan Motors vs Hindustan Motors, [1962] 2. J.352 and French Motor Car Company vs Their Workman [1963] Supp. considered. (iii)The Tribunal was not justified in creating two classes of higher unskilled and lower unskilled in the category of unskilled factory workmen in the matter of fixation of wage scales. (iv)Employees getting same wages should get the same scales of dearness allowance irrespective of whether they were working as clerks, or members of subordinate staff or factory workmen. (v)In fixing the same rates of dearness allowance for factory workmen as for clerical staff, it was necessary for the Tribunal when making comparisons to take into account the total wage packet and then compare it with the total wage packet of comparable 363 concerns and thus arrive at a just figure for basic wage for each category of factory workmen. (vi)There is nothing in law to prevent an industrial tribunal from granting adjustments to the employees in the revised wage scales even in a case where previously pay scales were in existence, but this has to be done sparingly, taking into consideration the facts and circumstances of each case.

Appeal No. 717 of 1963. Appeal from the judgment and order dated April 30, 1962, of the Madhya Pradesh High Court at Jabalpur in Misc. Appeal No. 75 of 1961. S.T. Desai and LN. Shroff, for the appellants. G.S. Pathak and Remeshwar Nath, for respondents Nos. 1 to 3. A. V. Viswanatha Sastri and Remeshwar Nath, for respondents nos.4 and 5. November 19, 1963. The Judgment of A.K. Sarkar and J.C. Shah, JJ. was delivered by Shah, J. M. Hidayatullah, J. delivered a separate Opinion. SHAH, J. Vrajlal Manilal & Company, a firm consisting originally of four partners (1) Manilal Anandji, (2) Jivrajbhai Ujamshi Sheth, (3) Punjabhai section Patel, and (4) Chintamanrao, has been doing business of manufacturing bidis at Sagar and Delhi since 1944. From time to time fresh partnership deeds were executed readjusting the shares of the partners admitting new partners and adjusting the shares of the partners. In 1954 Manilal Anandji retired from the firm and on January 27,1955, Punjabhai section Patel died. On February 16, 1956, a fresh deed of partnership was executed. The firm then consisted of eight partners Jivraj and his two sons being entitled in the aggregate to annas /4/3 share in a rupee in the profits, Chintamanrao and his two sons to annas /7/6 share in a rupee, and the two sons of Punjabhai section Patel to the remaining annas /4/3 share. By paragraph 7 the books of account were to be maintained by the managing partner, the financial year of the firm 483 being from Diwali to Diwali, and profits and losses were to be ascertained at the close of the year and a copy of the balance sheet with profits and loss statement was to be supplied to each partner, and if no objection regarding the accounts was raised within four months from the end of the year, the ' accounts were to be deemed conclusive and binding unless vitiated by fraud. By paragraph 12 it was stipulated that a partner desiring to retire from the partnership may, unless the other partners agreed to ' his retirement otherwise, do so after giving six months notice to all the partners in writing terminable at the ' end of the year i.e., the Diwali immediately following the date of the notice. Paragraph 13 provided: "In case of retirement of any partner the valua , tion of the Firm will be made on the following, basis for the purpose of settling the account of the retiring partner: "(a) Goodwill of the Firm: That is, right to use the trade marks, trade labels and the name of the Firm. In making the valuation of the above the net profits of the last five years will be taken as the value of the Goodwill of the Firm. (b) Outstandings, Udhari (Recoveries) : That is, loans and debts outstanding against persons other than partner will be calculated at 85 % of the book value of the Firm. (c) Stock of Raw Materials: That is, tobacco, bidis, bidi leaves, labels and other moveable property will be valued at the book value of these in the books of the Firm and all, such stock and moveables, thus valued shall be given to the remaining partners. (d) Immoveable Property: Such as buildings, godowns, gardens, lands etc. will be valued at the parchase price or their book value in the books of the Firm as the case may be, and all these shall be given to the remaining partners. " 484 Paragraph 16 incorporated a clause for reference of disputes between the partners relating to the business or dissolution of the firm to arbitration. In April 1958 Jivraj and his two sons appellants in this appeal desired to retire from the partnership, and a deed of reference was executed on April 16, 1958, appointing Ambalal Ashabhai, Becharbhai Somabhai and Chaturbhuj Jasani as arbitrators to decide the dispute. It was recited in the deed of reference that since Jivraj and his two sons had expressed a desire to retire and the remaining five partners had agreed to take over the entire business of the firm, it was "necessary to effect the final account of the retiring partners with regard to the matters mentioned below, as far possible, according to and taking into consideration the terms and conditions of the Partnership Agreement. Goodwill of Trade Mark.Property. 3.Credits (Udhari) 4.Dead stock. Stock in trade i.e. the raw material, or the finished goods invested in the business. Other matters connected with these transactions. Profit and Loss Account. The Receipt ond Payments account of the amounts of the partners. By Paragraph 6 it was provided that the firm shall be continued by the remaining five partners and that those five partners shall make full payment to the retiring partners Jivraj and his two sons of such amounts, in such manner, and on such conditions, as shall be decided upon by the arbitrators. Paragraph 7 set out the powers exercisable by the arbitrators in the matter of calling for production of account books and documents and other information from the parties. The deed of reference was subsequently modified, and the parties agreed that the reference be 485 " carried out by the sole arbitrator Shri Jasani". Pursuant to this modified agreement, Jasani entered upon the reference, and made his award on January 9, 1959. By his award he fixed the value of the goodwill of the entire firm at Rs. 32 lakhs including in that amount the "depreciation and appreciation of the property, dead stock and dues to be recovered". He also fixed the profits for the broken period of Samvat year 2014 from the commencement of the year till April 19, 1958 at Rs. 2,80,000 and after adjusting the personal accounts of the three retiring partners awarded to Jivraj Rs. 3,46,223.58 nP. to Amritlal son of Jivraj Rs. 4,04,519.99 nP. and to Bhagwandas son of Jivraj Rs. 3,86,019.14 nP, and directed that the ownership over the assets of the firm i.e. property moveable and immoveable, Trade mark, labels, stock in trade, long term leases and contracts etc. shall remain with the remaining partners, subject to the liabilities of the firm, the retiring partners not being responsible for the liabilities of the firm, nor having any interest in the firm or its business. This award was filed in the Court of the Additional District Judge, Sagar, under section 14(2) of the Indian . Chintamanrao and his sons then applied for an order setting aside the award on diverse grounds. In this appeal by the retiring partners, two heads of objections only survive for determination and we propose to refer only to those two heads, viz: (1) That the arbitrator in making his award travelled outside his jurisdiction delimited by the agreement of reference in that in fixing Rs. 32 lakhs as the value of the di visible assets of the firm he included therein the depreciation and appreciation of the property, dead stock and outstandings, which he was by the terms of the reference incom petent to include. (2) That the arbitrator was guilty of legal misconduct in that he had in the course of arbitration proceedings admitted in his record 486 a statement of account prepared by Jivraj and his sons without the knowledge of the other partners and without giving them an opportunity to make their submissions thereto. The retiring partners resisted the petition to set aside the award and submitted that they were entitled to have the assets of the firm in which they had a share, fixed at an amount much in excess of Rs. 32 lakhs and that the arbitrator had not overstepped his jurisdiction in fixing the value of the goodwill at Rs. 32 lakhs, and that the statement of account referred to by the applicants was prepared under the directions of the arbitrator and in his presence and it was admitted in the record of the arbitrator to the knowledge of the remaining partners who had assented thereto. The Trial Court upheld these and certain other objections, and set aside the award. The High Court confirmed the decision of the Trial Court, insofar as it related to the two objections hereinbefore set out. The question which we propose to consider first is: whether in making the valuation of the firm" for determining the share to be paid to the retiring partners, did the arbitrator overstep the limits of his authority under the agreement of reference? It may be recalled that by cl. 6 of the arbitration agreement the remaining partners had to "make full payment to the retiring partners of such amount as may be decided" by the arbitrator. But in determining the amounts to be awarded to the retiring partners, the authority of the arbitrator was restricted. He had, in determining the amounts due to the retiring partners, to take "final accounts with regard to the matters" set out in cl. 4, "as far as possible, according to and taking into consideration the terms and conditions of the Partnership agreement". By this direction the clauses of the partnership agreement were incorporated in the agreement of reference. The "final account" of the retiring partners with regard to the eight matters 487 specified in cl. 4 was undoubtedly to be made, as far as possible, according to and taking into consideration the terms and conditions of the partnership agreement. The language used in the deed of reference is of compulsion, not of, option: it means that if there be in the partnership agreement any term or condition, which deals with any particular matter of which an account was to be taken under cl. 4 of the agreement of reference, it has to be strictly followed. Use of the expression "as far as possible" did not confer any discretion upon the arbitrator to ignore the terms and conditions of the partnership agreement. In paragraph 13 of the partnership agreement, in making "valuation of the firm" for the purpose of settling accounts, the value of the goodwill, the outstandings, stock of raw material and moveable and immoveable property had to be taken as directed therein. In the matter of valuation of the goodwill of the firm, therefore, no discretion was left to the arbitrator:the value of the goodwill had to be the aggregate ofthe net profits of the last five years. Debts due to the firm from persons other than partners had to be "calculated at 85 % of the book value of the firm". In respect of the stock of raw materials and other moveable property the "book value in the books of the firm" had to be accepted by the arbitrator and in the case of immoveable property such as buildings, godowns, gardens, lands etc. "the book value in the books of the firm" was to be accepted and if none such was available the purchase price as mentioned in the books was to be accepted. In all these matters the arbitrator had by cl. 4 of the arbitration agreement to make the final account of the retiring partners according to and taking into consideration the terms and conditions of the partnership agreement and had no option. It is necessary to remember that the partnership agreement does not grant to a retiring partner a share in the aggregate of the four items mentioned in cls.(a), (b), (c) & (d) of paragraph 13 i.e., goodwill of the firm, outstandings, stock of raw materials including 488 moveable and immoveable property. The partnership agreement merely provides that the "valuation of the firm" shall be made as set out therein for the purpose of settling the account of the retiring partners i.e., in ascertaining the.amount due to the retiring partners valuation of the assets in cls.(a) to (d) of paragraph 13 shall be made in the manner set out therein. The arbitrator was therefore bound to adopt the valuation prescribed by the partnership agreement, but that is not to say that the retiring partner was entitled to a share equal to the aggregate of the values of the four items mentioned in paragraph 13. It is neces sary to emphasize this matter because on behalf of the retiring partners a considerable argument was advanced before us on the assumption that they were entitled to a share equal to the aggregate of the values of the four items of property mentioned in paragraph 1 3 of the partnership agreement, and that by the method of valuation adopted by the arbitrator they were awarded much less than what they were under the partnership agreement entitled to. Paragraph 13 merely prescribes the valuation in respect of four out of the items which had to be considered in ascertaining the "valuation of the firm". The phraseology used in paragraph 13 in the opening part of the paragraph makes it clear beyond all doubt that the valuation of the firm had to be made on the basis specified for the purpose of settling the account of the retiring partner. The specific items in paragraph 13 do not prescribe any method of valuation of the debts and liabilities of the firm, but the debts and liabilities must be taken into account in assessing the value of the share of the retiring partners. The arbitrator had to make a valuation of the firm i.e. of all the assets of the firm and of the debts due by the firm and thereafter to settle the account of the retiring partners. We may now turn to the award made by the arbitrator. The dispute between the parties has to be resolved on a true interpretation of the following clause: "I assess the value of the goodwill at Rs. 32 lakhs. 489 This amount includes the depreciation and appreciation of the property, dead stock and dues to be recovered. " (We have taken this as the correct rendering into English of the original award which is in Hindi. It is accepted by both the parties before us as a true rendering.) The arbitrator has, as he has observed in his award, taken only the value of the goodwill, in determining the amounts to be allotted to the retiring partners, and has not expressly referred to the valuation of the three other items, viz., the outstandings, the stock in trade and moveables and the immoveable property mentioned in paragraph 13 of the partnership agreement. Counsel for the retiring partners urged that on the admission made by Chintamanrao, the value of the goodwill alone was Rs. 21,70,650/10/and if the value of the immoveables, stock in trade etc.and outstandings be added thereto, the aggregate would considerably exceed Rs. 32 lakhs. But this argument is founded on the fallacious assumption that the debts and liabilities of the firm have to be ignored in determining the shares of the retiring partners. Counsel for the respondent submitted that in substance the goodwill had alone to be valued by the arbitrator for the property, moveable and immoveable, stockin trade and the outstandings of the firm were approximately equal to the aggregate of the debts and obligations of the firm. Reliance in this behalf was placed upon a balance sheet Ext.A 13 of the assets and liabilities of the firm, showing the financial position of the firm on April 16,1958, and the value of the tangible assets, such as the stock of raw materials, moveable and immoveable property and outstandings, according to the balance sheet, was approximately equal to the debts and liabilities of the firm. But it is not necessary for us to decide whether the submission of the respondents is correct. The arbitrator has in his award stated that Rs. 32 lakhs is the value of the goodwill alone, and for some reason not disclosed by him he has not valued the other 490 assets. He has also not disclosed in his award how he has arrived at the valuation of Rs. 32 lakhs. One thing, however, stands out prominently in the award, that in assessing the value of the goodwill, he has included the depreciation and appreciation of the property, dead stock and the outstandings. The arbitrator could undoubtedly make a lump sum valuation of the firm in the award made by him. He was not obliged in the absence of a direction in that behalf to set out in his award the valuation of the different components which aggregated to the lumpsum. The arbitrator had to "value the firm", and in doing so to abide by the specific directions, but he was not obliged to set out in the award separate valuations of all or any of the items mentioned in para 4 of the deed of reference, or in paragraph 13 of the partnership agreement, nor to set out the extent of the debts and obligations assessed by him. What then is the effect of the inclusion by the arbitrator in the valuation of Rs. 32 lakhs, of the depreciation and appreciation of the property, deadstock and dues to be recovered? Ratio of the decisionDiverse arguments were submitted by counsel for the appellants in support of the plea that the inclusion of what is called the depreciation and appreciation in respect of the various items does not amount to overstepping the limits of the jurisdiction of the arbitrator. It may be re iterated that the powers of the arbitrator were, by the terms of cl. 4 of the deed of reference, clearly restricted. He was "to take final account of the retiring partners with regard to the matters mentioned therein, as far as possible, according to and taking into consideration the terms and conditions of the partnership agreement". Restriction on the power of the `rbitrator in valuing the property, dead stock and outstandings was explicit. He could not therefore adopt any valuation different from the valuation prescribed by paragraph 13 of the partnership agreement. But the arbitrator has, as he has himself stated, in valuing the goodwill at Rs. 32 lakhs included in that amount the value of the depreciation and appreciation of the property, dead stock and dues to be recovered. 491 Counsel for the appellant submitted that reduction of outstandings of the firm by 15 % in respect of the dues from persons other than the partners was a mode of ascertaining the depreciation in respect of that item provided by cl. (b) of paragraph 13 of the partnership agreement, and the arbitrator in taking into consideration that depreciation has not acted outside his jurisdiction. It would be difficult to regard the method of valuation as prescribed in respect of the outstandings as "including depreciation". Even assuming that the reduction of the outstandings of the firm from persons other than the partners by 15 % as directed in cl.(b) of paragraph 13 of the partnership agreement be regarded as depreciation of the assets, inclusion of depreciation and appreciation in respect of the other assets was not permitted by the deed of partnership. In valuing the moveable property including the stock of raw materials, the arbitrator could not adopt any valuation other than that mentioned in cl.(c) of paragraph 1 3 of the partnership agreement, namely, the book value as given in the books of the firm. Similarly, in the valuation of immoveables such as buildings, godowns, gardens, lands etc., he had to accept the book value as mentioned in the books of account of the firm and if no book value was available the purchase price as mentioned in the books was to be accepted. The arbitrator had no power to make any adjustment in respect of those items by including depreciation or appreciation in their value. The principle of Cruikshank and others vs Sutherland and others(1) on which reliance was placed by counsel for the retiring partners, has, in our judgment no application to this case, because in that case though there was an article of the partnership providing that the share of a deceased partner in the assets of the partnership should be ascertained by reference to the annual account made up on April 30 next after the death, the articles were wholly silent as to the (1) 492 principle to be adopted in preparing a full and general account of the property. There was no usage or course of dealings between the partners from which an inference could be drawn that on the death of a partner his share shall be paid out on the footing of book value. The executors of the deceased partner claimed that his share be determined "at the fair value of the firm". At p. 138 it was observed by Lord Wrenbury. "Even if there were a usage to state an account for one purpose in one way, that is not a usage to state it for another purpose in the same way. There is a passage in Blisset vs Daniel (10 Hare, at p. 515) which is useful reading in this connection. An account stated for one purpose is not necessarily stated for another purpose. The fact is, that in this partnership an account has never been stated with a view to fitting the case of a retiring partner, or a deceased partner, or a senior partner who is going to exercise an option of taking over all the assets. The partners have never had any such event in view in making the account which they have made. There has never been an account prepared which was intended to meet all the various contingencies of events such as these. In the case before us there is no dispute that the duty of the arbitrator was to make "valuation of the firm" subject to paragraph 13 of the partnership agreement and it may even be granted that in arriving at that valuation he was not bound by paragraph 7, but on this question we express no opinion. But the values as mentioned in the different clauses had to be accepted in making up the partnership account in respect of the four matters specifically enumerated. The principle of Cruikshank 's case(1) did not apply, because the partnership agreement in this case itself provides that the book value in the books of the firm shall be accepted. (1) 493 The expression "book value" in the context in which it occurs in the partnership agreement means, the value entered in the books of account. Adoption of the book value is therefore obligatory and there is no scope of any adjustment in the value in the light of any depreciation or appreciation of the property, outstandings, stock in trade or dead stock, apart from what may actually be included in the book value, in the books. It is the book value alone which has to be taken. If the depreciation or appreciation has been taken into account by the partners in assessing the book value, that was evidently part of the book value as entered in the books of account. If there was no book value entered in respect of any immoveable property, the decisive value was to be the purchase price. It was then urged that it was for the arbitrator to adjudicate upon the true meaning of the partnership agreement and to give effect thereto, and if in making a "valuation of the firm" he was of the opinion that depreciation and appreciation in respect of certain items of assets should be included for the purpose of making up the account of the partners, the Court had no jurisdiction to set aside the award on that account, merely because the Court took a different view as to the true meaning of the arbitration agreement. But if the partnership agreement was incorporated in the deed of reference, the limits of the jurisdiction of the arbitrator must be determined by the Court and not by the arbitrator. By assuming that he was entitled to include, beside the value of the four items as mentioned in paragraph 13, some amount by way of appreciation in the value of those items, the arbitrator purported to set at naught the specific directions given in that behalf An award made by an arbitrator is conclusive as a judgment between the parties and the Court is entitled to set aside an award if the arbitrator has misconducted himself in the proceedings or when the award has been made after the issue of an order by the Court superseding the arbitration or after 494 arbitration proceedings have become invalid under s.35 of the or where an award has been improperly procured or is otherwise invalid: s.30 of the . 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 has com mitted some mistake in arriving at his conclusion. As observed in Chempsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd.(" at p. 331: "An error in law on the face of the award means, in their Lordships ' view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the "arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if. in a narrative a reference is made to a contention of one party, that opens the door to seeing first what that contention is, and then going to the contract on which the parties ' rights depend to see if that contention is sound." The Court in dealing with an application to set aside an award has not to consider whether the view of the arbitrator on the evidence is justified. The arbitrator 's adjudication is generally considered binding between the parties, for he is a tribunal selected by the parties and the power of the Court to set aside the award is restricted to cases set out in section 30. It is 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 conclusion. On the assump tion that the arbitrator must have arrived at his conclusion by a certain process of reasoning, the Court cannot proceed to determine whether the conclusion is right or wrong. It is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion where it (1) L.R. 50 I.A. 324.495 is not disclosed by the terms of his award. But the arbitrator has in the present case expressly stated in his award that in arriving at his valuation, he has included the depreciation and appreciation of the property, outstandings and dead stock, and in so doing in our judgment the arbitrator has travelled outside his jurisdiction and the award is on that account liable to be set aside. The question is not. one of interpretation of paragraph 13 of the partnership agreement but of ascertaining the limits of his jurisdiction. The primary duty of the arbitrator under the deed of reference in which was incorporated the partnership agreement, was to value the net assets of the firm and to award to the retiring partners a share therein. In making the "valuation of the firm". his jurisdiction was restricted in the manner provided by paragraph 13 of the partnership agreement. It was next urged that the depreciation or appreciation which had been entered in the assessment of the book value were "other matters connected with" the "transactions" mentioned in the deed of reference. But manifestly those other matters were apart from the valuation of the goodwill, property, outstandings and the dead stock. It was then urged that when the arbitrator stated that he had included depreciation and appreciation of certain assets in the value of the goodwill in the award, he merely meant that such depreciation and appreciation was included as was in the circumstances permissible. But that would be ignoring the express recital in the award. In fact under the scheme of valuation envisaged by the partnership agreement and therefore the deed of reference, there was no scope for including in the valuation, appreciation of the assets. Again to argue, as was sought to be done, that even though the arbitrator stated that he had included in the amount of Rs. 32 lakhs "the depreciation and appreciation" of the property, dead stock and dues, there being no power to include appreciation, appreciation in the property and the 496 dead stock could not have been included amounts to reaching a conclusion from an assumed premise of which the conclusion was a component. It was also urged that the expression depreciation and appreciation had no such meaning as decrease or increase in the market value of the property, ,dead stock and outstandings, and the clause merely meant that in fixing the valuation such depreciation or appreciation as had gone into the assessment of the book value of the different items was taken into consideration. But the arbitrator has not said that he merely took into consideration the depreciation and appreciation which went into the book value assigned by the partners to the assets in the account: he has clearly stated that he had included the depreciation and appreciation in those assets in the valuation of the goodwill. Finally it was urged that the recital about the inclusion of depreciation or appreciation was a mere surplusage and should be discarded. But it would be difficult to regard a statement made by the arbitrator relating to what he says he had included in the valuation of the goodwill, as a mere surplusage, especially having regard to the orders made by him insisting upon the production of documentary evidence and certain books of account from Chintamanrao. It may be pointed out that by cl. 7 of the deed of reference very wide powers were conferred upon the arbitrator to call upon the disputing parties to produce the accounts etc. which the arbitrator desired and to produce any other papers or documents which the arbitrator would like to inspect, and to reply to any enquiry verbal or written of any sort or in any connection and in any form the arbitrator wanted. The orders passed by the arbitrator in exercise of these powers tend to indicate that in his view he was competent to ascertain and include in the valuation of the firm the depreciation and appreciation on the various items which were taken into account in arriving at the valuation. By order dated September 16, 1958, the arbitrator gave direction, amongst 497 others, to Chintamanrao to file a statement of houses etc.of immoveable property, valuation of the same as shown in the books of account, i.e. figures regarding it, and "also the approximate value statement as it existed" at the date of demand according to the estimate of Chintamanrao. In the note to the order, it was stated that Chintamanrao had produced certain papers but they were incomplete, and therefore he was ordered to bring copies of the incomplete papers and also those papers which were not sent by him. On October 10, 1958, Chintamanrao produced a statement of the net profits of the five years preceding the date of dissolution which he called the price of the goodwill for Samvat years 2009 to 2013. The aggregate of the net profits was Rs. 21,70,650/10/which he called "price of the goodwill". He then submitted a statement of the outstandings of the different shops aggregating to Rs. 9,16,366/ and the value of the goods purchased, and other property, and submitted that the total value of the goodwill of the firm by taking into account the profits of the firm for the last five years "as per the statement filed was Rs. 21,70,650/10/3 and deducting therefrom 15 % of the outstandings of the firm considered as irrecoverable, the balance was Rs. 20,33,295/12/9" and that this was the amount from which the shares of the retiring partners were to be computed. On December 2, 1958, an application was filed by Chintamanrao inviting the attention of the arbitrator to the agreement of reference and to the terms of the deed of partnership, especially paragraphs 7 and 13, and submitting that the book values of items (2) to (5) in paragraph 4 of the agreement of reference were already in the books of account and could be easily found without any detailed or elaborate examination of the books of account, it was unnecessary to enter upon any detailed inspection of the various entries. On this application an order was passed on December 5, 1958, by the arbitrator that the inspection of the books of account do start on December 21, 1958, in his presence at Sagar in the office of Messrs Virajlal Mannilal and Company and that Chintamanrao do 1 SCI/64 32 498 make arrangements for giving inspection of all the books of account. On December 22, 1958, another application was submitted by Chintamanrao stating that it was not necessary to produce certain registers and manufacturing accounts and that the orders in that behalf were beyond the jurisdiction of the arbitrator and that he was unable to produce the ,documents demanded. It was submitted by that application that the kind of inspection claimed and granted amounted to re opening of the accounts for the last five years which were closed with the consent and to the knowledge of all the partners and which could not in law be re opened. On December 23, 1958, an application was made by Amrat Lal son of Jivraj (one of the retiring partners) submitting that the arbitrator had to value the goodwill and this had to be done by ascertaining the value of the profits of the five years, and for that purpose the arbitrator was entitled to ascertain yearly profits by scrutinising the account books and finding out the yearly net profits. On these applications on December 25, 1958 the arbitrator gave a direction that Chintamanrao do produce the papers mentioned in item No. 2 in the order dated September 16, 1958, namely, the gross and net profits of the last five years, and that he do produce the other papers which were ordered to be produced by the order dated September 16, 1958. Thereafter on January 9, 1959, the arbitrator made his award. The insistence of the arbitrator upon production of the gross and net profits of the last five years indicate that it was the opinion of the arbitrator that he was entitled to take into consideration not only the book value of the assets given in the partnership books of account but the depreciation and appreciation of those assets. The specific use of the expression by the arbitrator that he had included the depreciation and appreciation of various items of property and the procedure followed by him including the orders therefore clearly establish that the expression used by him was not a mere surplusage. 499 It is clear that the arbitrator has included in his valuation some amount which he was incompetent, by virtue of the limits placed upon his authority by the deed of reference, to include. This is not a case in which the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication. It is a case of assumption of jurisdiction not possessed by him, and that renders the award, to the extent to which it is beyond the arbitrator 's jurisdiction, invalid. It is, however, impossible to sever from the valuation made by the arbitrator the value of the depreciation and appreciation included by the arbitrator. The award must, therefore, fail in its entirety. In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea for setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground. We accordingly hold that the award was properly set aside by the Courts below. Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under section 16 of the . No such request was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in 500 acceding to that request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under section 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under section 19. We have, therefore, refrained from considering that question also. The appeal fails and is dismissed with costs in one set. HIDAYATULLAH, J. This appeal arises out of an arbitration award which was set aside by the Additional District Judge, Sagar on the objection of the respondents. The judgment of the Additional District Judge was confirmed on appeal by the High Court and the present appeal has been filed on a certificate granted by the High Court under article 133 (1)(c) of the Constitution. The arbitration was without the intervention of the Court. Previously it proceeded before three arbitrators but the authority of two of the arbitrators was revoked by the Additional District Judge, Sagar, at the agreed request of the parties to the reference. It then proceeded before one Chaturbhuj V. Jasani who gave his award on January 9, 1959. The arbitration proceedings were necessary because of the retirement of the appellants from a firm called Virajlal Mannilal & Co. which at that time consisted of eight partners in three groups. These groups were the three appellants (Jivraj and his two sons) owning /4/3 share, respondents Nos.1 3 (Chintamanrao and his two sons) owning /7/6 share and the two remaining respondents, who are brothers, owning the balance. By agreement this retirement was to take place on April 15, 1958. In revoking the award the High Court, in concurrence with the court below, has upheld two objections (a) that the arbitrator exceeded his jurisdiction and (b) that he was guilty of misconduct in receiving some evidence behind the back of Chintamanrao. 501 The firm of which the several parties here were partners had a written deed of partnership executed on February 16, 1956. This deed replaced earlier deeds to which reference is not necessary. The partnership kept its accounts from Diwali to Diwali and every year it drew up a balance sheet and a profit and loss account, copies of which documents were given to all the partners. The accounts so stated were subject to objection but if none was made, they were conclusive and binding on the partners. All this was provided in the deed of partnership which also provided for the retirement of partners and its 13th paragraph laid down special terms as follows: "In case of retirement of any partner the valuation of the Firm will be made on the following basis for the purpose of settling the account of the retiring partner: (a) Goodwill of the Firm: That is, right to use the trade marks, trade labels and the name of the Firm. In making the valuation of the above, the net profits of the last five years will be taken as the value of the Goodwill of the Firm. (b) Outstandings, Udhari (Recoveries): That is, loans and debts outstanding against persons other than partner will be calculated at 85 % of the book value of the Firm. (c) Stock of Raw Materials: That is, tobacco, bidis, bidi leaves, labels and other moveable property will be valued at the book value of these in the books of the Firm and all such stocks and moveables, thus valued shall be given to the following partners. (d) Immovable Property: Such as buildings, godowns, gardens, lands etc. will be valued at the purchase price or their book value in the books of the firm as the case may be, and all these shall be given to the re maining partners. " 502 As a result of an arrangement reached aliunde by which the businesses of these partners, which were in different firm names and various places, were to be divided between the appellants on the one hand and the respondents on the other, the parties desired an arbitration to separate the shares of the appellants as partners retiring from the firm Virajlal Mannilal & Co. A deed of reference was executed by them on April 16, 1958. After the usual recitals, it provided that a final account of the partners should be taken with regard to eight matters as far as possible according to and taking into consideration the terms and conditions of the partnership agreement. " The eight matters were: 1.Goodwill of Trade Mark.Property. 3.Credits (Udhari).Dead Stock.Stock in trade i.e., the raw material or the finished goods invested in the business.Other matters connected with these transactions.Profit and Loss Account. The Receipt and Payments account of the amounts of the partners. It was further provided that the firm Virajlal Mannilal was to continue with the respondents after the appellants had retired therefrom and the appellants were to be. paid an amount to be determined by the arbitrator and in such a manner and on such conditions as he might direct. The arbitrator having filed the award in Court, the respondents filed objections, only two of which noticed above succeeded and the award was set aside. I shall therefore proceed straight to those objections of which only the first was fully argued before us. In making his award the arbitrator gave the appellants a 14/3 share from a lump amount of Rs.32 lacs which he described as "goodwill" of the firm, adjusting, in the respective shares of the three appellants in that sum, all amounts standing to their credit 503 or debit, as the case may be, in the account books of the firm. He also assessed the "goodwill" for the period from Diwali to the date of retirement and made suitable additions. His real decision is contained in three or four lines in the award which of course contains other matters and his exact words in Hindi have given rise to some difference because they have been translated in two different ways on the record of the case. The two translations are (1) The value of the goodwill of the whole firm 1 assess at Rs. 32,000,00, (Rupees thirtytwo lacs). In this sum property, dead stock and depreciation and appreciation of Udhari are also included; (2) The value of the goodwill of the whole firm 1 assess at Rs. 32,000,00/ (Rupees thirtytwo lacs). In this sum the depreciation and appreciation of property, dead stock and Udhari is also included. " The second translation is probably more accurate than the first, but to my mind it is not a matter of mere words but of what the arbitrator has done. The award is in Hindi and the two words "appreciation" and "depreciation" are in English. They might well have been used to still all controversy about issues which the parties had raised before him relating to these matters. The arbitrator might, in other words, have used these words loosely without meaning anything except to show that he had looked into everything which the parties desired him to see. The dispute is thus whether the arbitrator exceeded his jurisdiction by adding back depreciation amounts to the book value and/or allowing for appreciation of property which was successfully claimed by the respondents in the High Court and the Court below to be not open to him? In this appeal it was contended on behalf of the appellants that the deed of partnership as well as the order of reference left the arbitrator a free hand and even if the arbitrator wrongly interpreted the deed of partnership and did add back the depreciation and/or 504 appreciation, no question of jurisdiction could arise. Reliance is placed upon the observations of the Judicial Committee in the well known case of Chamsey Bhara & Co. vs Jivraj Balloo Spg. & Wvg.Co.(1) where it was observed: "An error in law on the face of the award means, in their Lordships ' view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties ' rights depend to see if that contention is sound. Here it is impossible to say, from what is shown on the face of the award, what mistake the arbitrators made. The only way that the learned judges have arrived at finding what the mistake was is by saying; "inasmuch as the arbitrators awarded so and so, and inasmuch as the letter shows that the buyer rejected the cotton, the arbitrators can only have arrived at that result by totally misinterpreting Rule 52". But they were entitled to give their own interpretation to Rule 52 or any other Article, and the award will stand unless, on the face of it, they have tied themselves .down to some special legal proposition which then, when examined, appears to be unsound." Mr. Desai contends that the arbitrator might have interpreted the partnership deed wrongly but that was a matter within his jurisdiction and the error, if any, not being one of law on the face of the award, the Civil Court had no authority or jurisdiction to set aside the award. The other side contends, as has so far been held in the case, that the reference, read with the partnership deed, created an area of (1) I.L.R. at 586. 505 jurisdiction which the arbitrator has outstepped. The first point is therefore to decide what were the limits of the arbitrator 's action as disclosed by the reference and the deed of partnership and then to see what the arbitrator has actually done and not what be may have stated loosely in his award. This is the only way in which the excess of jurisdiction can be found If the interpretation of the deed of partnership lies with the arbitrator, then there is no question of sitting in appeal over his interpretation, in view of the passage quoted above from Champsey 's case but 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 that he has exceeded his jurisdiction on proof of such action. The arbitrator derived his authority from the reference and we must turn to its terms in the first instance. The material portion has been quoted and it shows that in view of the retirement of Jivraj and his sons, parties considered it necessary "to effect the final account of the retiring partners with regard to the matters mentioned below as. ' far possible according to and taking into consideration the terms and conditions of the partnership agreement" and then followed the eight items. The words underlined are in the recitals but they do show that the parties desired a division in accordance with the terms of the partnership agreement. The words "as far possible" show some latitude in one sense, but the force of those words is to be discovered with the aid of the other words "according to and taking to consideration etc." which lay down that the terms of the partnership agreement must prevail over personal opinion. The partners appointed the arbitrators to decide the eight matters and to enable them to give their decision undertook by cl. 7 of the reference to furnish all accounts, documents and information which the arbitrators might require of them. Now the deed of partnership which was to prevail as far as its terms were applicable provided that to settle the final account of the retiring partners 506 four items of assets should be valued in a particular way. These directions were contained in cl. ' 13 of the deed already set out earlier. Thus goodwill was equal to five years ' net profits; debts due to the firm were to be taken not at their book value but at 85 % of that value; stocks of raw materials were to be valued at book value; and immovable properties at purchase price or their book value in the books of the firm as the case may be. The goodwill took no account of anything but the net profits. Admittedly, the net profits of the preceding five years were Rs. 21,70,650/ 10/ . This set at rest sub clause (a) of cl. 13 of the partnership agreement. Admittedly also the outstandings (Udhari) came to Rs. 9,16,366/ at their book value and 15% thereof came to Rs. 137,354/13/6. The net Udhari therefore was Rs. 7,79,011/2/6. Differences really arose in the matter of valuation of raw materials and immovable properties and in this connection. the appellants asked to see an account of gross profits for the past five years which the arbitrator ordered Chintamanrao to produce. According to the appellants the value of properties given by Chintamanrao was the written down value and the right figure according to the agreement was not Rs. 6,24,369/ as stated by Chintamanrao but Rs. 16,57,000/ . In reply Chintamanrao stated that it was not the practice of the firm to prepare an account of gross profits but he added that gross profits could be calculated from the account books by the other side or by the arbitrator and he offered the services of an accountant to prepare such an account. The documents which the arbitrator is said to have received behind the back of Chintamanrao (though not some of the other respondents) are the abstracts which show the gross profits and what was excluded to reach the net profits. The net profits in these accounts and the net profits given by Chintamanrao agree. I do not refer to the dispute about the production of the documents since that part of the case was not argued before us, but these accounts prime facie do show that in working out net profits for the five years, depreciation of immovable property and goods was taken 507 into account. The same depreciation appears to have been taken into account in the balance sheet while valuing the assets against the liabilities. In other words depreciation of immovable properties and goods over the five years for which the goodwill was to be calculated appeared to have been taken twice over. I would have persuaded myself to go into this matter more deeply but for the fact that such depreciation does not altogether account for the difference between 21 lacs and 32 lacs. The balance sheets show a very slender difference between the assets and liabilities over the five years and it may be taken that the value of Udhari, raw materials and immovable properties is offset by the liabilities. Nothing remains except a very petty sum as profit to be carried over for addition to the goodwill. The duplicated depreciation does not in fact account for the increase from Rs. 21 lacs to Rs. 32 lacs. The conclusion is therefore inescapable that the arbitrator meant what he said when he spoke of including appreciation and depreciation in the valuation of the properties etc. For this reason he must be held to have exceeded his jurisdiction and it is not a question of his having merely interpreted the partnership agreement for himself as to which the Civil Court on authority could have had no say, unless there was an error of law on the face of the award. Reliance is placed upon the case of Cruickshank and others vs Suiherland and others ' " that if accounts in the past were not prepared to meet the contingency of retiring partners, the accounts must be recast for this special purpose and the arbitrator must necessarily have freedom to value property in his own way and not by accepting old accounts already made by the partners. The intention here was that the arbitrator should prepare the final accounts as the partners would themselves have done under the partnership agreement, and the arbitrator had to follow cl. 13 of the partnership agreement which was binding on (1) 508 the partners and therefore on him. The partnership agreement did not speak of market value or fair value. It stated that the purchase price or the book value as the case may be alone could be taken into account. This meant that the book value where available and the purchase price in other cases only were to enter in the calculations. There was thus no option to go to fair value or market price at all. I do not think that we should supersede the arbitration agreement under s.19. No circumstance was made out for such a course. I would have directed a remit to the arbitrator under section 16 of the but my brethren take a different view of the matter and I leave the matter there. The contention of the appellants on the question of juris diction decided against them must fail and I agree that the appeal should be dismissed with costs. Appeal dismissed.

IN-Abs

The appellants and the respondents entered into a partnership in the business of manufacturing bidis. Under the agreement a partner was entitled to retire after giving notice of six months to all partners. It contained a clause for reference of disputes between the partners relating to the business or dissolution of the firm to arbitration. It also contained a clause providing how four items including goodwill should be valued. According to this clause goodwill was equal to five years net profits for debts due to the firm were to be taken not at their book value but at 85% of that value, stocks of raw materials were to be valued at book value and immovable properties were to be valued at their purchase price or, their book value. About two years later the appellants desired to retire from the partnership and a deed ,of reference was executed and a sole arbitrator was appointed. This provided that the remaining partners shall continue the firm and they shall make full payment to the retiring partners of such amounts in such manner and on such conditions as shall be decided upon by the arbitrator. The arbitrator gave the award. He fixed the value of the goodwill of the firm at Rs.32 lakhs including in that amount the "depreciation and appreciation of the property, dead stock and dues to be recovered. " The award was filed in the Court under section 14(2) of the Indian . 481 The respondents applied for an order setting aside the award on diverse grounds, two out of which survived for consideration in the present appeal. The first was that the arbitrator in making this award exceeded his jurisdiction because in fixing Rs. 32 lakhs as the value of the devisable assets of the firm he included therein the depreciation and appreciation of the property dead stock and outstandings; secondly that the arbitrator was guilty of misconduct. The trial court upheld these and certain other objections and set aside the award. The High Court confirmed the decision of the trial court insofar as it related to the two contentions. The present appeal is on a certificate granted by the High Court. Held:(i) An award made by an arbitrator is conclusive as a judgment between the parties and the court is entitled to set aside an award if the arbitrator has misconducted himself in the proceeding or when the award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35 of the or where an award has been improperly procured or is otherwise invalid under section 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 has committed some mistake in arriving at his conclusion. Champser Bhara and Company vs Jivrai Balloo Spinning and Weaving Company Ltd., L.R. 50 I.A. 324 and Cruikshank and others vs Sutherland and others, , distinguished. (ii)It is 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. (iii)In the present case the arbitrator had included depreciation and appreciation of certain assets in the value of the goodwill which he was incompetent to include by virtue of the limits placed upon his authority by the deed of reference. This was not a case in which the arbitrator has committed an error of fact or law in reaching his conclusions on the disputed questions submitted for adjudication. It was a case of assumption of jurisdiction not possessed by him and that rendered the award to the extent to which it was beyond the arbitrators ' jurisdiction, invalid. It is, however, impossible to sever from the valuation made by the arbitrator the value of the depreciation and appreciation included by the arbitrator. The award must therefore fail in its entirety. Per Hidayatullah, J. (i) 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 that he exceeded his jurisdiction on proof of such excess. (ii)In the present case the arbitrator in working out net profits for four years took into account depreciation of immovable 1/SCI/64 31 482 property. For this reason he must be held to have exceeded his jurisdiction and it is not a question of his having merely interpreted the partnership agreement for himself as to which the Civil Court could have had no say, unless there was an error of law on the face of the award.

Appeals Nos. 494 496 of 1962. Appeal from the judgment and decrees dated March 12, 1957, of the Andhra Pradesh High Court in A.S. Nos. 566 to 568 of 1961. A.V. Viswanatha Sastri, T.V.R. Tatachari and B.R.G.K. Achar, for the appellants. Bhimsankaram, Chander Kohli and E. Udayaratnam, for respondents. November 20, 1963. The Judgment of the Court was delivered by HIDAYATULLAH, J. This judgment will dispose of Civil Appeals Nos. 494 to 496 of 1962. The State of Andhra Pradesh which now stands substituted for the Provincial Government of Madras is the appellant. The respondent is one J.S. Basappa, a groundnut oil merchant of Kurnool who was selling oil within the Province and also exported it to extra Provincial points. These three appeals concern salestax for the years 1944 45, 1945 46 and 1946 47. They arise out of three suits filed by Basappa against the Provincial Government of Madras now represented by the Government of Andhra Pradesh, the details of which are given below. For the year 1944 45, Basappa was assessed to sales tax amounting to Rs. 12,983 2 2 of which, according to him, a sum of Rs. 1,594 1 5 only represented sales within the Province. He claimed that the remaining sales took place outside the Province of Madras. He submitted that property in the goods remained with him till the export of the goods to an extraProvincial point and till payment of price after export. He claimed that these sales could not be included in 519 his 'turnover under the Madras General Sales tax Act, 1939 (Act No. IX of 1939) and sales tax was wrongly demanded from him. In respect of this assessment, he filed O.S. No. 14 of 1950 (original No. 0. section 40 of 1949) in the Court of the Subordinate Judge, Kurnool for refund of Rs. 11,389 0 9 ps. The Madras State Government in a written statement traversed 'all the allegations and stated that delivery of the goods was made in Kurnool when the goods were booked and further that the goods were despatch. ed at buyer 's risk and remained at buyer 's risk through out, it also contended that the notice under section 80 was not proper and the suit was not in accordance with that notice and was not maintainable because the orders under the Sales tax Act were made final by section 11(4) of the Sales tax Act and because Basappa had not exhausted his other remedies under the Salestax Act. Lastly, it contended that the suit was barred by time not having been filed within six months from 'the date of the act complained of as required by section 18 of the Sales tax Act or within one year as required by article 16 of the Indian Limitation Act. In respect of the year 1945 46, Basappa filed O.S. No. 44 of 1949 claiming a refund of Rs. 8,356/on similar grounds, and in respect of the year 1946 47 he filed O.S. No. 23 of 1949 for a declaration that the levy of Rs. 9,23 3 6 7 was illegal and without jurisdiction and for a permanent injunction to restrain the taking authority from collecting the tax. In this suit, in addition to the 'defences also taken in the other suits it was contended that, the suit was incompetent as a revision application was pending with the Board of Revenue. These suits were disposed of by the Subordinate Judge,, Kurnool by a common judgment dated February 22, 1951. The main points which were decided were: (1) whether the suits were not maintainable as (a) the civil court had no jurisdiction and (b) the assessee had not exhausted his other remedies, (2) whether the suits were barred by time, and ( 3) whether the sales took place outside the Province of Madras and the 520 levy of the tax in respect of some of the transactions was illegal. The Subordinate Judge held that. there was nothing in the Sales tax Act to exclude the jurisdiction of, the civil court and that the finality spoken of by s ' 11 ,of the Sales tax Act was, a finality arising under the Sales tax Act and had, no reference to , the jurisdiction of the civil court. He also held that Basappa was not required to exhaust his other remedies before moving the civil court by suit. On, the second point, the Subordinate Judge: held that O.S. No. 14 of 1950 and 44 of 1949 were barred by time under section 18 of the Sales tax Act or article 16 of the Limitation Act whichever might be applied. The learned Subordinate Judge held that article 62 of the Limitation Act was not 'applicable because Basappa had not pleaded in these two .suits that payment of the, tax was made under a mistake. The Subordinate Judge,, however, held that O.S. No. 23 of 1949 was in time. In O.S. No. 14 of 1 950 and 44 of 1949, he recorded findings that tax amounting to Rs. 7,203 12 9 in respect of O.S. 14 of 1950 and Rs. 5,370 7 0 in respect of O.S. No. 44 of 1949 were wrongly levied,, because those amounts concerned sales which took place outside the Province of Madras. In O.S. 23 of 1949 he held that sales of the value of Rs. 79,465/ took Place outside the Province and tax in respect of them at 1 % (which was the uniform rate applicable to all the three years) was not demandable. ' A declaration to this 'effect ' was granted and an injunction was issued restraining the State Government ' from recovering Rs. 793 10 6 from Basappa. In the result. O.S. No.14 f 1950 and 44 of 1949 were dismissed ' 'with costs and O. section No. 23 'of 1949 was 'partially decreed with proportionate costs. Basappa appealed in: all the three suits against the decision, of the Subordinate; Judge, Kurnool. The Government of Madras objected in the appeal of Basappa from% the. decision in 0.S. No. 23 of 1949 in respect: of the decree for Rs. 793 10 6. In the High Court, ' applications were made in, the appeals for urging an: additional ground that the whole assess 521 ment, was invalid because it included an illegal levy which was not severable from the legal demand. This ground 'was based upon the decision of this Court in M/s. Ram. Narain Sons Ltd. vs Assistant Commissioner of Sales Tax and others (1) This request was not opposed and permission was granted to Basappa. The High Court differed from the Subordinate Judge on the question of limitation and held that neither section 18 of the Sales tax Act nor article 16 of the Limitation Act was applicable to. , the suits, which were governed by article 62 'of the Limitation Act. The High Court accordingly held that O.S. 14 of 1950 and O.S. 44 of 1949 which were dismissed as barred by time were not barred. On the ' main question, the High Court classified all the sales into four categories which were: 1. Where the plaintiff himself was the consignor as well as the consignee, 2. Where the plaintiff himself was the consignor and the 'buyer the consignee, 3. Where the buyer was the consignor as well as the consignee, and 4. Where a third party was shown as the consignor, the consignee being the plaintiff. The Subordinate Judge had held that sales tax was properly demandable in respect of categories 2 and 3 but not in respect of categories 1 and 4. The second part of the decision was not assailed before the High Court. The High Court again considered categories 2 and 3 and held that sales coming under those categories were properly assessable to sales tax as the sales took place within the Province of Madras. The High Court, however,, acting upon the decision of this court in Ram Narain 's case(1) held that the legal and the illegal levies were so mixed up that the entire demand for tax was rendered illegal and void. In the result, the appeals filed by Basappa were allowed and the cross objection filed by the Provincial Government of Madras was dismissed. The High Court certified these cases and the present appeals have been filed. (1) ; 522 Three questions are raised by Mr. A.V. Viswanatha Sastri. They are, (1) that the civil court had no Jurisdiction to try these suits, (2) that the suits O.S. 14 of 1950 and 44 of 1949 were barred by time under section 18 of the Sales tax Act and (3) that the High Court was wrong in holding that the assessments were not capable of being split up and in declaring the total assessments to be void. The first two points give no trouble at all. Section 18 of the Act reads: "No suit shall be instituted against the, Govern. ment and no suit, prosecution or other proceeding shall be instituted against any Officer or servant of the State Government in respect of any act done or purporting to be done under this Act, unless the suit, prosecution or other proceeding is instituted within six months from the date of the act complained of. " This section applies to suits for damages and compensation in respect of acts under the Act. It is worded in familiar language by which 'authorities, including Government, are protected and indemnified in respect of bona fide acts done or purporting to be done under powers conferred by the statute. The periodof limitation prescribed in the section does not apply to the kind of suits which were filed by Basappa. This Point has no substance and was not even pressed in the High Court. Similarly, the first point must also be decided against the State of Andhra Pradesh, because of a recent, decision of this court in Firm of tlluri Subhayya Chetty Sow vs The State of Andhra Pradesh(1) That case was decided under section 18A of the Madras General Sales tax Act which was inserted by section 10 of the Madras General 'Sales tax Amendment Act, 1951 which came into force on May 15, 1951. That section reads "No suit or other proceeding shall, except as expressly 'provided in this Act, be instituted (1) ; 523 in any Court to set aside or modify: any assessment made under this Act. " The present appeals have to be decided without the assistance of section 18A, because the suits were filed in the Court of Subordinate Judge, Kurnool and were decided by him before the amendment came into force . Prior to the insertion of section 18A there was no: specific provision taking away the jurisdiction of the civil court except section 11(4) by which a finality attached to orders passed in appeal. Under that section, appeals were provided in respect of orders of assessment and there was also a provision for revision in section 12. It was provided by sub section (4) of section II that "every order passed in appeal under this section, shall, subject to the powers of revision conferred by section 12, be final. '. ' While enacting section 18A the Legislature added an elaborate machinery which did not exist earlier for correcting assessments. Mr. Sastri contends that in deciding whether the civil court 's jurisdiction is barred we must take into account the provisions of section 11 and section 12, because these provisions which provide adequate remedies " march with the construction" of section 11(4). He submits that the finality which was conferred on the appellate order subject to a revision must necessarily be a finality against determination of the same question by the civil court. It is pointed out by ,this court in Chetty 's case(1) that the exclusion of the jurisdiction of the civil court is not to be readily inferred and that even if a provision giving the orders a finality was enacted, civil courts still have jurisdiction to interfere where fundamental, provisions of the Act are not complied with, or where the statutory Tribunals do not act in conformity with the fundamental principles of judicial procedure. Gajendragadkar, J. speak ing for the court on that occasion summed up the law as follows: "In dealing with the question whether Civil Courts ' jurisdiction to entertain a suit is barred or not, ' it is necessary to bear in mind the fact that there. is a general presumption that there (1) ; 524 must be a. remedy in the. ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil Courts to entertain civil. causes will not be assumed unless the relevant statute contains an express provision to that, effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute, provides for certain remedies may not by itself necessarily exclude the jurisdicti on of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute.," Referring to the remarks of Lord Thankerton in Secretary of State represented by the Collector of South Arcot vs Mask & Co.(1) "it is also well settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the, provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial Procedure" it was observed: "It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the, provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it. is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with. Non compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non compliance with such fundamental provisions of the statute. as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation (1) 67 I.A. 222 at 236. 525 of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. " It was thus held that the civil court 's jurisdiction may not be taken away by making the decision of a tribunal final, because ' the civil court 's jurisdiction to examine the order, with reference to fundamental provisions of the statute non compliance with which would make the proceedings illegal and without jurisdiction, still remains, unless the statute goes further and states either expressly or by necessary implication that the civil court 's jurisdiction is completely taken away,. Applying these. tests, it is clear that without a provision like section 18A in the Act, the jurisdiction of the civil court would not be 'taken and at least where the action of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdic tion. Mr. Sastri says that we must interpret the Act in, the same way as if section 18A was implicit in it and that section 18A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of 'assessment, ;.Subject, however, to appeal and revision, was a finality for the purposes of 'the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy , of tax on a commodity ;which was not taxed at all or was exempt. present case, the taxing of sales which did not take place within the State was a matter wholly. outside the jurisdiction of the taxing authorities and in respect of such illegal action. the jurisdiction of the civil, court continued to subsist. In our judgment the suits were competent. The last question is whether the assessment as a whole must fail or only in respect of the part which was utside the ' jurisdiction of the sales tax authorities We have already reproduced the four categories into 'Which all the transactions of sale 'were classified. The High Court and the Court below. found that 526 categories 1 and 4 represented transactions of sale which could not be taxed at all by the authorities as those transactions took place outside the State. It may be mentioned that the Sales tax Act did not then contain any provision which established a nexus between the sales and the Province. That provision came later. The High Court relying upon Ram Narain 's case(" held that the assessments as a whole must fail. In Ram Narain 's case a portion of the assessment was invalid under article 286 of the Constitution and the question was whether the total assessment must fail. This Court observed: "The necessity for doing so is, however obviated by reason of the fact that the assessment is one composite whole relating to the pre Constitution as well as the post Constitution periods and is invalid in toto. There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid in toto." This Court cited with approval a passage from Bennett & White (Calgary) Ltd. and Municipal District of Sugar City No. 5(2) where the Judicial Committee observed : "When an assessment is not for an entire sum, but for seperate sums, dissected and earmarked each of them to a separate assessable item, a court can sever the items and cut out one or more along with the sum attributed to it, while affirming the ' residue. But where the assessment consists of a single undivided sum in respect of the totality of property treated assessable and when one component (not dismissible as 'de minimis) is on any view not assessable and wrongly included, it would seem clear that such .a procedure is barred and the assessment is (1) ; (2) at 816. 527 bad wholly. That matter is covered by authority. In Montreal Light Heat & Power Consolidated vs City of Westmount the court (see especially per Anglin C.J.) in these conditions held that an assessment Which was bad in part was infected throughout and treated it as 'invalid. Here their Lordships are of opinion, by parity. of reasoning,; that the assessment was invalid in toto. " It is urged by Mr. Sastri that the tax here is at the uniform rate of 1 % and as all the returns and documents necessary to seprate the bad part from the good are available, there is no need to cansel the whole assessment. He contends that these cases are rather governed by the other rule that where the assessment is for separate sums, only that portion need be declared illegal which is void. It is necessary to explain the distinction between the two classes of cases and how they are to be distinguished. A difference in approach arises only in those cases where the assessment of many matters results in amounts of tax which though parts of the whole assessment, stand completely separate. There the court can declare the "separate dissected and earmarked ', items illegal and excise them from the levy. In doing so, the court does not arrogate to itself the functions of the taxing authorities; but where the tax is a composite one and to separate the good part from the bad, proceedings in the nature of assessment have to be undertaken, the civil court lacks the jurisdiction. Here, theamount of tax is a percentage of the turnover and the turnover is a mixed one and it is thus not merely a question of cutting off some items which are separate but of entering upon the function of assessment which only the authorities under the. Sales tax Act can undertake. Cases of assessment based upon gross valuation such as the case from Canada refered to by the Judicial ' Committee afford a, parallel to a case of assessment of a composite turnover such as we have here. Just as in the Canadian case it was not possible to separate the valuation of movable properties from 528 that of immovable properties, embraced in a gross valuation roll, so also here, it is not possible to separate from ' the composite 'turnover transactions which are .validly taxed, from those which are not, for that must pertain to the domain of tax officers and the courts have no powers within that domain. In our opinion, the High Court was right in declaring the total assessment: to be affected by the portion which was illegal and void. In the result, these appeals fail and are dismissed with costs, one set only.

IN-Abs

The respondent, a groundnut oil merchant filed three suits alleging that the property in some goods remained with him till the exept of the goods to an extra provincial point and till the payment of price after export, and sales tax was not demandable on these sales under the Madras General Sales Tax Act, 1933. The appellant contended that the sales were not inter provincial sales, the suits were not maintainable in a civil court, the respondent had not exhausted his ' alternative remedies and the suits were barred by limitation under section 18 of the Act. Before the High Court an additional ground based upon the decision in M/s. Ram Narain Sons Ltd. vs Assistant Commissioner of Sales Tax, ; was raised that the whole assessment was invalid because it included an illegal levy which, was not severable from the legal demand. , Held: (i) SectioN 18 of the Sales Tax Act applies to suits for damages and compensation in respect of acts done under the Act. 'Me period of limitation prescribed in that section does not apply to the kind of suits which were filed by the respondent. (ii) The jurisdiction of civil courts is not necessarily taken away when the decision of a tribunal is made, final, because the civil court 's jurisdiction to examine the order with reference to fundamental provisions of the statute, non compliance with which would make the proceedings illegal and without jurisdiction, still remains unless the statute goes further and states either expressly or by necessary implications that the civil court 's jurisdiction is completely taken away. (iii) Applying the above principle the jurisdiction of the civil court was not taken away as the taxing of 'outside ' sales was a matter wholly outside the jurisdiction of the taxing authorities. Firm of Illuri Subhayya Chetty & Sons vs State of Andhra Pradesh, ; and Secretary of State represented by the Collector of South Arcot vs Mask & Co. 67 I.A. 222. 518 (iv) The entire assessment was void because it was not possible in the present case to separate from the composite turnover transaction which were validly taxed from those which were not, in as much as this pertains to the domain of tax officers and the courts have no powers within that domain. M/s. Ram Narain Sons Ltd. vs Assistant Commissioner of Sales Tax, ; and Bennett & White, (Calgary) Ltd. vs Municipal District of Sugar City,

Appeal No. 647 of 1963. Appeal from the judgment and order dated September 21, 1962, of the Punjab High Court in Civil Writ No. 280 of 1962. the appellant appeared in person. S.V. Gupte, Additional Solicitor General, N.S. Bindra and R.H. Dhebar, for the respondent (Union of India). S.M. Sikri, Advocate General, Punjab, N.S. Bindra and R.H. Dhebar, for the respondent (State of Punjab). November 19, 1963. The Judgment of P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo and J.C. Shah, JJ. was delivered by Wanchoo, J. Raghubar Dyal, J. delivered a dissenting Opinion. WANCHOO J. This is an appeal on a certificate granted by the Punjab High Court. The appellant joined the Indian Civil Service in 1939 and was governed in matters relating to discipline by the Civil Services (Classification, Control and Appeal) Rules, (hereinafter referred to as the Appeal Rules) made by 435 the Secretary of State for India in Council. He continued in service till the transfer of power under the Indian Independence Act, 1947. Under s.10 of that Act he continued to serve under the Government of India and was entitled to receive from the Government of India or of the Province which he might from time to time be serving the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed cir cumstances may permit as he was entitled to immediately before the transfer of power, which took place on August 15, 1947. The same guarantee was extended to the appellant and all members of what were the Secretary of State 's Services before August 15, 1947 by article 314 of the Constitution. As the appellant 's case is based on 'that Article we may set it out: "Except as otherwise expressly provided by this Constitution, every person who having been appointed by the Secretary. of State or Secretary of State in Council to a civil. service of the Crown in India continues on and after the commencement of this Constitution to serve under the Government of India or of a State shall be entitled to receive from the Government of India and the Government of the State, which he is from time to time serving, the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement. " We shall hereafter refer to such a person as a member of the (former) Secretary of State 's Services. It appears that the appellant was in the Indian Civil Service cadre in the State of Madras at the time of transfer of power, though later he was transferred to the Punjab. After the transfer of power the Indian 436 Civil Service as a Secretary of State 's Service came to an end and thereafter a new Service was constituted known as the Indian Administrative Service. Formal legal shape was given to the new Service after the enactment of the All India Services Act, No. LXI of 1951, and the Indian Administrative Service (Recruitment) Rules, 1954, (hereinafter referred to as the Recruitment Rules) were framed under Act LXI of 1951. By r. 3 of these Rules, the Indian Administrative Service was to consist of (a) members of the Indian Civil Service, not permanently allotted to the judiciary; (b) members of the Indian Civil Service per manently allotted to the judiciary who have been holding executive posts from the date of the commencement of the Constitution and who may be declared by the Central Government to be members of the Service in consultation with the State Government; (c) persons who, at the commencement of these rules, are holding substantively listed posts, other than posts in the judiciary, (d) persons recruited to the Service before the commencement of these rules: and (e) persons recruited to the Service in accordance with the provisions of these rules. The appellant thus became a member of the new Indian Administrative Service by virtue of these rules and continued to serve in the Punjab. In 1955, the Central Government framed the All India Services (Discipline and Appeal) Rules, 1955 (hereinafter referred to as the Discipline Rules) which were applicable to all members of the Indian Administrative Service and the Indian Police Service. On July 18, 1959, the appellant was suspended with immediate effect by the Governor of the Punjab on the ground that a criminal case was pending against him. The order also provided that for the period of suspension the appellant shall be paid subsistence 437 allowance which shall be equal to leave salary which he would have drawn under the leave rules applicable to him if he bad been on leave on half average pay with a further provision that in case the suspension lasted for more than twelve months a further order fixing the rate of subsistence allowance shall be passed. This order appears to have been passed under r. 7(3) of the Discipline Rules and in consequence thereof the appellant remained under suspension. The appellant filed a writ petition in the Punjab High Court on February 16, 1962, challenging this order of suspension. His contention was that he was entitled to. the guarantee contained in article 314 of the Constitution and the order of suspension passed against him violated that guarantee and was therefore ineffective and invalid. He relied for this purpose on r. 49 of the Appeal Rules, which provided for suspension as a penalty. He contended that the Appeal Rules which governed him and which must be held to have continued to govern him in view of the guarantee contained in article 314 provided for suspension as a penalty only and that there was no provision anywhere in any rule or statute immediately before January 26, 1950 on which date the Constitution came into force, providing for suspension otherwise than as a penalty. Therefore it was not open to the Governor to suspend him in the manner in which he did so in the present case, though it was not denied that he could be suspended pending criminal proceedings provided the suspension was as a penalty under r. 49 of the Appeal Rules; on the other hand mere suspension pending a criminal case not inflicted as a penalty was not provided at all by the Rules or the statute governing the appellant immediately before January 26, 1950. Therefore when the Governor proceeded to suspend him under r. 7(3) of the Discipline Rules, he violated the guarantee contained in article 314. The appellant also contends that as it was not open to any authority to suspend him except as a punishment immediately before January 26, 1950, r.7 of the Discipline Rules 438 which provides for suspension during disciplinary proceedings or during the pendency of a criminal charge insofar as it applies to him was ultra vires article 314 of the Constitution. He also attacked rr.3 and 10 of the Discipline Rules as violative of article 314 of the Constitution, r.3 being concerned with penalties to be imposed on members of the Indian Administrative Service and r.10 with the right of appeal. The contention in this connection was that r.3 omitted the penalty of suspension which was to be found in r.49 of the Appeal Rules with the result that suspension under r.7 was not open to appeal under r.10 which provided for appeals against penalties mentioned in r.3. Therefore the guarantee under Art.314 was violated inasmuch as previously whenever the penalty of suspension was inflicted on a member of the Secretary of State 's Services it was open to him to appeal under r. 5 6 of the Appeal Rules. Therefore the scheme of the Discipline Rules was such as to take away the protection to a member of the Secretary of State 's Service which was available to him immediately before the Constitution came into force and in consequence rr.3 and 10 also violated the guarantee contained in article 314 and were ultra vires. The appellant therefore prayed for an appropriate writ, order or direction in the nature of mandamus striking down rr.3,7 and 10 of the Discipline Rules being violative of article 314 of the Con stitution and also for an order striking down the order of the Governor dated July 18, 1959, by which he suspended the appellant and such other appropriate relief as was just and proper. The petition was opposed by the State of Punjab and its main contention was that rr. 3,7 and 10 of the Discipline Rules were perfectly valid and did not violate the guarantee contained in Art.314. It was urged that article 314 only gave restricted protection to the members of what were formerly the Secretary of State 's Services in respect of disciplinary matters and stress was laid on the words "or rights as similar thereto as changed circumstances may permit" appear 439 ing therein. It was also urged that suspension pending departmental enquiry or pending a criminal case was not the same thing as suspension by way of punishment and that previous to January 26, 1950, there could be suspension pending departmental enquiry or pending a criminal case and that no appeal lay from such suspension even then. It was also urged that suspension pending a departmental enquiry or pending a criminal case was not a disciplinary matter at all and was therefore not included within the sweep of article 314 and in any case the rule relating to suspension even if it is connected with disciplinary matters was liable to variation as changed circumstances might demand and r.7 was framed in view of the changeed circumstances. It was also urged that removal of suspension as a penalty under r. 3 could not affect the guarantee contained in article 314, for the effect of such removal was that there could be in future no penalty of suspension. against a member of the Indian Administrative Service. Therefore as the penalty had gone r. 10 did not naturally provide for an appeal against a penalty which did not exist. Rule 7 which provides for suspension does not provide for any penalty and therefore there was no necessity of providing for any appeal against it. It was urged that a difference must be made between suspension as a penalty and suspension as an interim measure only pending a departmental enquiry or pending a criminal case and if that difference was borne in mind there was no reason for holding that rr.3 and 10 were ultra vires article 314. The respondent State finally contended that the order of the Governor passed under r. 7(3) was perfectly valid and did not violate the guarantee contained in article 314. The High Court dismissed the petition. It was of the view that it was inconceivable that under the old rules prevailing 'before January 26, 1950, a civil servant could never be suspended while an enquiry into his conduct was pending. It was further of the view that suspension during the pendency of an enquiry was a power inherent in an employer like the 440 Government and the power to suspend was always implied in the authority making the appointment. The High Court therefore rejected the contention of the appellant that under the old rules no member of the Secretary of State 's Services could have been suspended except by way of punishment. The High Court further held that even if the contention of the appellant be accepted that a member of the Secretary of State 's Services had a right of appeal even where he was suspended during a departmental enquiry there was a provision in the Discipline Rules for a memorial to the President (see r.20) and that in the opinion of the High Court gave a right as similar to the right existing before January 26, 1950, as the changed circumstances permitted. The High Court therefore dismissed the petition. The appellant then applied for a certificate which was granted; and that is how the matter has come up before us. The only question that has been debated before us is with respect to suspension whether as a punishment or otherwise of a member of one of the Secretary of State 's Services, in this case the Indian Civil Service, members of which have become members of the Indian Administrative Service under the Recruitment Rules; and it is only this question that falls to be determined in the present appeal. But the appellant has also challenged rr.3 and 10 of the Discipline Rules which do not deal with suspension at all. In these circumstances we do not propose to consider the vires of rr. 3 and IO, for that does not fall for decision as the order which is challenged has not been made under r. 3 and relates only to suspension. It is therefore unnecessary to decide whether rr. 3 and 10 can in the changed circumstances apply to those members of the Indian Administrative Service who were at one time members of the Indian Civil Service. We shall therefore express no view one way or the other on the vires of r. 3 and r. 10 and consider only r. 7 which deals with suspension. We should also like to make it clear that what we say during the course of ' this judgment 441 with respect to suspenion refers only to those members of the Indian Administrative Service who became members thereof under r. 3 (a) and (b) of the Recruitment Rules and not to other members of the Indian Administrative Service who were not members before 1947 of the Indian Civil Service, for it is only the former kind of members of the Indian Ad ministrative Service who are entitled to the protection of article 314 and the whole case of the appellant is based on that protection. Let us therefore turn to article 314 which we have already set out above. This Article came to be considered by this Court in the Accountant General Bihar vs N. Bakshi(1). In that case, however, that part of it was considered which related to "conditions of service as respects remuneration, leave and pension", and it was held that r. 3 of the All India Services (Overseas Pay, passage and leave salary) Rules, 1957, was ultra vires having regard to the guarantee contained in article 314 of the Constitution. That case is an authority for the proposition that where any rule is framed, which is inconsistent with the guarantee contained in article 314 with respect to remuneration, leave and pension, that rule would be bad. In the present case we are concerned with another part of article 314, namely, "the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement". The same principle will apply to this part of article 314 also and if any rule is framed which goes against the guarantee contained in this part of article 31.4 with respect to members of what were former Secretary of State 's Services, it will be bad. What article 314 provides with respect to disciplinary matters is that the members of the former Secretary of State s Services who continue to serve under the Government of India or of a State would be entitled to the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances (1) [1962] Supp. 1. S.C.R. 505. 442 may permit. Stress has been laid on behalf of the respondent on the words "rights as similar thereto as changed circumstances may permit", and it is urged that in view of these words it was open in the " changed circumstances" to frame rules in particular with respect to suspension pending departmental enquiry or pending criminal proceedings. These words in our opinion cannot bear this interpretation. What the words "changed circumstances" mean is the change in circumstances due to transfer of power in August, 1947, and the coming into force of the Constitution in January, 1950, and no more. Therefore when article 314 speaks of "rights as similar thereto as changed circumstances may permit", it only means that a member of the former Secretary of State 's Services would have rights similar to his pre existing rights as the changed circumstances resulting from constitutional changes may allow. As an illustration take a case where a member of a Secretary of State 's Service could before August, 1947, be dismissed only by the Secretary of State; but after the transfer of power and the coming into force of the Constitution, circumstances have changed and there is no Secretary of State, therefore we have to look to the changed circumstances and find out which would be the authority to dismiss such a member in the changed circumstances. If we do so, we find that the Government of India can be the only authority which now in the changed circumstances will have the power to dismiss such a member in the absence of a specific provision of law in force before January 26 , 1950. These words do not mean that as time passes circumstances change and therefore new rules may be framed to meet the new circumstances due to passage of time. The words "changed circumstances" in article 314 only refer to the constitutional changes which occurred after the transfer of power in August, 1947, and the coming into force of the Constitution in January 1950. Further, article 314 provides that the protection is limited only to those rights as to disciplinary matters which a member of the former Secretary of State 's 443 Services was entitled to immediately before the commencement of the Constitution i.e. on January 25, 1950. It is only those rights which are protected and no more. Another argument that is urged on behalf of the respondent is that suspension pending a departmental enquiry or pending a criminal proceeding cannot be said to be a disciplinary matter at all and therefore the protection of article 314 does not extend to such suspension. We cannot accept this argu ment. The words "disciplinary matters" with which we are concerned appear in a constitutional provision and must be given their widest meaning consistent with what disciplinary matters may reasonably include. Suspension is of two kinds, namely, as a punishment, or as an interim measure pending a departmental enquiry or pending a criminal proceeding. We shall deal with these aspect 's of suspension in detail later. So far as suspension as a punishment is concerned, it is conceded that it is a disciplinary matter. The dispute is only as to suspension pending a departmental enquiry or pending a criminal proceeding. There can in our opinion be no doubt that suspension of this kind also must be comprised within the words "disciplinary matters" as used in article 314. Take the case of suspension pending a departmental enquiry. The purpose of such suspension is generally to facilitate a departmental enquiry and to ensure that while such enquiry is going on it may relate to serious lapses on the part of a public servant , he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry. In such a case suspension pending a departmental enquiry cannot be but a matter intimately related to disciplinary matters. Take again the case where suspension is pending criminal proceedings. The usual ground for suspension pending a criminal proceeding is that the charge is connected with his position as a government servant or is likely to embarass him in the discharge of his duties or involves moral turpitude. 444 In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. Such suspension also in our opinion is clearly related to disciplinary matters. If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow where the acquittal is other than honourable. The usual practice is that where a public servant is being tried on a criminal charge, the Government postpones holding a departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial. Therefore, suspension during investigation, enquiry or trial relating to a criminal charge is also in our opinion intimately related to disciplinary matters. We cannot therefore accept the argument on behalf of the respondent that suspension pending a departmental enquiry or pending investigation, enquiry or trial relating to a criminal charge is not a disciplinary matter within the meaning of those words in article 314. Before we investigate what rights a member of the former Secretary of State 's Services had with respect to suspension, whether as a punishment or pending a departmental enquiry or pending criminal proceedings, we must consider what rights the Government has in the matter of suspension of one kind or the other. The general law on the subject of suspension has been laid down by this Court in two cases, namely, The Management of Hotel Imperial New Delhi vs Hotel Workers ' Union(", and T. Cajee vs U. Jormanik Siem(2). These two cases lay down that it is well settled that under the ordinary law of master and servant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract. It was further held that an order (1) ; (2) ; 445 of interim suspension could be passed against an employee while inquiry was pending into his conduct even though there was no specific provision to that effect in his terms of appointment or in the rules. But in such a case he would be entitled to his remuneration for the period of his interim suspension if there is no statute or rule existing under which it could be withheld. The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in section 16 of the General Clauses Act, No. X of 1897, which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, 446 it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the govern ment, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. These general principles will apply to all public servants but they will naturally be subject to the provisions of article 314 and this brings us to an in vestigation of what was the right of a member of the former Secretary of State 's Services in the matter of suspension, whether as a penalty or otherwise. As article 314 only guarantees protection to those rights which were in existence immediately before the Constitution came into force, all that is necessary is to find out the position before August 14, 1947, when the transfer of power took place and on January 25, 1950, just before the Constitution came into force. Members of the Secretary of State 's Services who are protected under article 314 were appointed either by the Secretary of State or by the Secretary of State in Council. Therefore on general principles it would have been open to the Secretary of State or the Secretary of State in Council, as the case may be, to suspend a member of such Services as the appointing authority as an interim measure pending a departmental enquiry or pending a criminal proceeding if it thought fit to do so. What 447 remuneration such a public servant would get during such interim suspension would depend upon the rules if any, and if there were no rules he would be entitled to his full emoluments during such interim suspension. But it appears that as the Secretary of State or the Secretary of State in Council was in London it was thought proper for the sake of administrative convenience to provide for suspension by authorities other than the appointing authority. Reference in this connection may be made to section 247 (2) of the Government of India Act. 1935, as in force upto August 13, 1947. That subsection provided that "any order suspending any such person (meaning thereby a member of the former Secretary of State 's Services) from office shall, if he is serving in connection with the affairs of the Federation, be made by the Governor General exercising his individual judg ment and, if he is serving in connection with the affairs of a Province, be made by the Governor exercising his individual judgment". This sub section therefore made a specific provision for suspension by authorities other than the appointing authority; this was in addition to the general right of the employer (namely, the Secretary of State who was the appointing authority) to suspend an employee (namely, a member of one of the former Secretary of State 's Services). Suspension in section 247 (2) cannot in our opinion be confined only to suspension as a penalty. The words are general and must be given their full meaning and would include any kind of suspension, whether as a penalty or otherwise; and this power vested firstly in the Secretary of State or the Secretary of State in Council, as the case may be, under the general law of master and servant and also in the Governor General and the Governor, as the case may be, by virtue of this provision of the statute. Further section 247 (3) also provided for remuneration of a suspended member of one of the former Secretary of State 's Services and laid down that "if any such person as aforesaid is suspended from office, his remuneration shall not during the period of his suspension be reduced except to such extent, if any, as may be directed by the Governor General exercising his in 448 dividual judgment or, as the case may be, by the Governor exercising his individual judgment". Besides this statutory provision relating to former Secretary of State 's Services, there was a general provision as to payment to a government servant under suspension in Fundamental Rule 53. That general provision is that a suspended governmentservant is at least entitled to one fourth of his pay. This general provision was subject ,to section 247 (3) andin the case of members of the former Secretary of State 's Services, the Governor General or the Governor as the case may be, had to specify the amount which could be even more than what was provided by F.R. 53. Here again when F.R. 53 speaks of suspension, it speaks of it in general terms. It applies to all kinds of suspension whether as a penalty or otherwise. Further r. 49 of the Appeal Rules deals with penalties and provides suspension as a penalty. It also provides for appeals in r. 56 etc. where suspension is inflicted as a penalty for good and sufficient reasons. Rule 49 applied to the former Secretary of State 's Services also and thus these members were subject to the penalty of suspension. A review therefore of the general law of master and servant, the provisions of the Government of India Act, 1935, of the Appeal Rules and the Fundamental Rules discloses that the position on August 13, 1947 with respect to members of the former Secretary of State 's Services with respect to suspension whether as a punishment or otherwise was as follows. Members of the former Secretary of State 's Services were liable to suspension either as an interim measure or as a punishment. Where suspension was as an interim measure and not as a punishment, it could be imposed either by the Secretary of State or the Secretary of State in Council as the appointing authority or by the Governor General or the Governor as the case may be as the statutory authority. Suspension could also be imposed by the proper authority as a punishment under the Appeal Rules and such orders of suspension were subject to appeals as provided by the Appeal Rules. There 449 was also provision for payment during suspension in the shape of subsistence allowance which was governed generally by F.R. 53 and in the case of members of the former Secretary of State 's Services, F.R. 53 was subject to section 247 (3) of the Government of India Act, 1935. Therefore, the contention of the appellant that there could be no suspension except by way of punishment under r. 49 of the Appeal Rules before 1947 is not correct. It is equally clear that where suspension before 1947 was an interim measure and not as a punishment under r. 49, there was no question of any appeal from such an interim suspension pending a departmental enquiry or pending a criminal proceeding. If the position on January 25, 1950, stood as it was on August 13,1947, the appellant could not susbstantially challenge the order of the Governor passed on July 18, 1959, for it would have been covered by section 247(3) of the Govemment of India Act, 1935, and the appellant could not claim anything more under article 314 of the Constitution. But article 314 does not speak of the protection which members of the All India Services had on August 13, 1947; it speaks of protection which they had immediately before the commencement of the Constitution i.e. on January 25, 1950, and that brings us to a consideration of the changes that took place between 1947 and 1950 after the transfer of power on August 15, 1947. The effect of the transfer of power on the Secretary of State 's Services in particular came up for consideration be fore this Court in State of Madras vs K.M. Rajagopalan(1) and it was held that "the conferral of Independence on India brought about an automatic and legal termination of service on the date of Independence. But all persons previously holding civil posts in India are deemed to have been appointed and hence to continue in service, except those governed by 'general or special orders or arrangements ' affecting their respective cases, The guarantee about prior conditions of service and the previous statutory safeguards relating to disciplinary (1) ; 1 SCI/64 29 450 action continue to apply to those who are thus deemed to continue in service but not to others". Section 10 of the Indian Independence Act provides or the Secretary of State 's Services and lays down that every person who having been appointed by the Secretary of State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof, shall be entitled to receive the same conditions of service as respects remuneration, leave and pension and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before the appointed day, i.e. August 15, 1947 By virtue of this provision those members of the Secretary of State 's Services who continued to serve the Government of India or the Government of any Province from August 15, 1947, were entitled to the protection of section 10. What Rajagopalan 's case(" decided was that the Government of India was not bound to continue in service every member of the Secretary of State 's Services because of section 10 of the Indian independence Act; but that the protection of that section only applied to such members of the afore said services whose services the Government of India agreed to continue after August 14, 1947. In Rajagopalan 's case(" the Government of India did not agree to continue Rajagopalan 's services and therefore, he could not claim the protection of section 10 of the Indian Independence Act. In the appellant 's case his service continued after the transfer of power and therefore he was entitled to the protection of section 10 of the Indian Independence Act, which was almost in similar terms as article 314 of the Constitution so far as disciplinary matters were concerned. On August 14, 1947, however, the India Provisional Constitution) Order, 1947, was promulgated as G.G.O. 14. By that Order, section 247 of the Government of India was substituted by a new section and sub sections (2) and (3) (1) ; 451 thereof to which we have already referred were repealed. The substituted section 247 read as under: "Conditions of service of persons orginally recruited by Secretary of State The conditions of service of all persons who, having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India, continue on and after the date of the establishment of the Dominion to serve under the Government of the Dominion or of any Province, shall (a) as respects persons serving in connection with the affairs of the Dominion, be such as may be prescribed by rules made by the Governor General; (b) as respects persons serving in connection with the affairs of a Province (i) in regard to their pay, leave, pensions, general rights as medical attendance and any other matter which immediately before the establishment of the Dominion was regulated by rules made by the Secretary of State, be such as may be prescribed by rules made by the Governor General; and (ii) in regard to any other matter, be such as may be prescribed by rules made by the Governor of Province. " It will be clear from this that sub sections (2) and (3) of section 247 disappeared on August 14, 1947. No rules framed by the Governor General under the new section with respect to what we have called interim suspension have been brought to our notice. Therefore no power was left in the Governor General or the Governor, as the case may be, to suspend a member of the former Secretary of State 's Services as an interim measure and only the appointing authority could suspend such a public servant, which in the changed circumstances would be the Government of India. The explanation for this may be that as the Secretary of State disappeared and his place was taken by the Government of India, 452 it might not have been thought necessary to continue the further powers conferred by section 247 (2) in addition to the general power of the appointing authority to suspend. Be that as it may, the fact remains that on August 14, 1947, section 247 (2) disappeared and therefore the Governor General and the Governor lost the power to suspend as an interim measure a member of the former Secretary of State 's Services and such power could only be exercised by the appointing authority which in the changed circumstances must be deemed to be the Government of India. As for suspension as a punishment that continued to be provided in the Appeal Rules and no change was made therein. It has however been urged that as the conferral of Independence on India brought about an automatic and legal termination of service on the date of Independence, there must in law have been reappointment of all members of the former Secretary of State 's Services. This reappointment in case of those serving in connection with the affairs of a Province must be deemed to have 'been made by the Governor of the Province concerned and consequently the Governor will have the power to suspend as the appointing authority. We are of opinion that there is no force in this argument. The antecedent circumstances with respect to such Services have been fully dealt with in Rajagopalan 's case (1) and those circumstances show that the question of the retention of officers serving in these Services was dealt with between the Government of India and His Majesty 's Government and it was the Government of India which decided ,that all such officers should continue except those whom the Government of India, was not prepared to invite to continue and in the case of this limited class the Government of India agreed to compensation. It was in consequence of this agreement between the Government of India and His Majesty 's Government that section 10 of the Independence Act provided that those officers who continued would have the same conditions of service etc. as they were entitled to immediately before August 14, 1947. The Governors of Provinces were nowhere in the picture in this matter and we can see (1) ; 453 no warrant for holding that the appointment must be deemed to be by the Governors of Provinces where such officers were serving in connection with the affairs of a Province. It is true that the Indian Administrative Service as an all India Service was legally and formally constituted in 1951. It is also true that under section 10 of the Indian Independence Act members of the former Secretary of State 's Services continued on and after August 14, 1947, to serve under the Government of either of the new Dominions or of any Province or part thereof It is also true that there are some passages in the correspondence between His Majesty 's Government and the Government of India which suggest that His Majesty 's Government was thinking on the lines that members of the former Secretary of State 's Services will become members of the Provincial Services. These however are not conclusive of the matter and we have to find out what actually took place after this exchange of correspondence between the Government of India and His Majesty 's Government in connection with the former Secretary of State 's Services. We have already indicated that section 10 was incorporated in the Indian Independence Act in consequence of this correspondence between the Government of India and His Majesty 's Government. Thereafter we find that the India (Provisional Constitution) Order, 1947 (i.e. G.G.O. 14) was passed on August 14,1947, under powers conferred on the GovernorGeneral by virtue of section 9 (1) (a) of the Indian Independence Act. Article 7 (1) of that Order is in these terms: "(1) Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor General or Governor General in Council or of a Province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the,Crownin connec 454 tion with the affairs of the Dominion of India or, as the case may be, of the Province. " Reading this provision along with the provision in section 10 of the Indian Independence Act, it would in our opinion be right to say that so far as the. members of the former Secretary of State 's Services are concerned they must be deemed to have been appointed to the posts on which they were serving at the time of conferral of Independence, by the Govemmentof India. The deemed appointment under article 7 (1) of G.G.O. 14 was "subject to any general or special orders or arrangements affecting his case", and these arrangements are clear from the correspondence which ensued between the Government of India and His Majesty 's Government. That correspondence and the special orders or arrangements contemplated by article 7 (1) of G.G.O. 14 show that so far as the members of the former Secretary of State 's Services were concerned, it was the Government of India which took the final decision whether to continue such officers or not. It is true that in so doing it consulted the various Provincial Governments and was to a large extent guided by the views of the Provincial Governments, particularly in connection with such officers who were serving in connection with the affairs of the Provinces; even so, as the facts in Rajagopalan 's case(1) show, the final decision whether to continue or not a member of the former Secretary of State 's Services was taken by the Government of India. In these circumstances it would in our opinion be reasonable to hold that in the case of the members of the former Secretary of State 's Services it was the Government of India which must be deemed to have appointed them after the conferral of Independence on India to the respective posts which they were holding whether under the Government of India or under the Governments of Provinces. This conclusion is reinfored by the fact that the system in force before 1947 was that all members of the Secretary of State 's Services were assigned to one Province or other and from them such members as were necessary used to be on deputation to the Government of India for serving it directly. It would be very anomalous (1) [1955].2 S.C.R. 541. indeed that the accident whether an officer was serving on August 13, 1947, on deputation under the Government of India directly or in the Province to which he was assigned should determine who the appointing authority must be deemed to be on the date of the transfer of power. Such an anomaly could in our opinion never have been intended and we have no doubt therefore in view of the history dealt with in Rajagopalan 's case(1) that on the conferral of Independence, even if there was legal termination of the services of members of the former Secretary of State 's Services, the reappointment must be deemed to be by the Government of India and not by the Governors of Provinces even in the case of officers who were serving in connection with the affairs of Provinces. In this connection our attention has been drawn to section 241 (1) of the Government of India Act 1935 as it then stood, which is in these terms: "(1) Except as expressly provided by this Act, appointments to the civil services of, and civil posts under, the Crown in India, shall be made (a) in the case of services of the Dominion, and posts in connection with the affairs of the Dominion, by the Governor General or such person as he may direct; (b) in the case of services of a Province, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct." This provision in our opinion does not apply in the peculiar circumstances arising out of the transfer of power in August 1947. It is a general provision relating to appointments to civil services and civil posts under the Dominion or under the Provinces. It has in our opinion nothing to do with the case of members of the civil services and holders of civil posts who were deemed to have continued by virtue of article 7 of G.G.O. 14 of August 14, 1947. Clause (b) of section 241 (1) therefore cannot in our opinion lead to the inference that in the case of those members of the former Secretary of State 's (1) 456 Services who were deemed to have been appointed in connection with the affairs of a Province under article 7 (1) of G.G.O. 14, the appointments must be deemed to have been made by the Governor. Such deemed appointments in our opinion must depend for their validity on article 7 G.G.O 14 and not on section 241 of the Government of India Act which is not a deeming provision and therefore we have to look to article 7 (1) to find out by whom the appointments must be deemed to have been made in these of the members of the former Secretary of State 's Services. As article 7 opens with the words "subject to any general or special orders or arrangements affecting his case " (i.e. each individual officer 's case), it must be held in view of the history which is elaborately set out in Rajagopalan 's case( ) that so far as members of the former Secretary of State 's Services were concerned, it was the Government of India who must be deemed to have made the appointments in view of the special orders and arrangements with respect to such officers. Reliance in this connection was also placed on the amendment of section 240 (2) of the Government of India Act by the same G.G.O. Section 240 (2) as it originally stood provided that " no such person as aforesaid (meaning thereby a member of a civil service of the Crown in India or a person holding any civil post under the Crown in India) shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed". Amendment of this sub section became necessary as the Secretary of State for India was disappearing and some authority had to be provided which could dismiss members of the former Secretary of State 's Services. G.G.O. 14 therefore provided that no member of a Secretary of State 's Services who continued in service after August 14, 1947, shall be dismissed by any authority subordinate to the Governor General or the Governor according as that person was serving in connection with the affairs of the Dominion or of a Province. This amendment gave power to the Governor to dismiss even members of the former Secretary of State 's Services and stress has been laid on behalf of (1) 457 the respondent on this amendment and it is urged that this shows that appointments of such members who were serving in connection with the affairs of the Provinces must be deemed to have been made by the Governor concerned. It appears however that the amendment by which the Governor could dismiss a member of the former Secretary of State 's Services may have crept in by inadvertence, for it would prima facie be against the provisions of the guarantee contained in s.10 of the Indian Independence Act. In any case this sub section was further amended by G.G.O. 34 and the power of dismissal was only vested in the Governor General and was taken away from the Governor. We are therefore of opinion that no inference can be drawn from the fact that for a short time section 240 (2) provided that the Governor may dismiss a member of the former Secretary of State 's Services, that the appointments of such members who were serving in connection with the affairs of the Province was by the Governor, and not by the Government of India. Such an inference is in our opinion against the conclusion which can be plainly drawn from the history relating to the continuance and appointment of the members of the former Secretary of State 's Services at the time of conferral of Independence and the provisions of article 7 (1) of G.G.O. 14 of August 14, 1947. The final position therefore on January 25, 1950, with respect to suspension of a member of the former Secretary of State 's Services whether as a punishment or as an interim measure pending departmental enquiry or pending a criminal proceeding was this. Such member could be suspended under the general law by the appointing authority, which in the changed circumstances was, the Government of India, as an interim measure pending a departmental enquiry or pending a criminal proceeding, but there was no power in any other authority to pass such an order of interim suspension, for as we have already indicated the power under section 247 (2) was repealed by G.G.O.14 of August 14. Besides this power of interim suspension otherwise than as a punishment, the power to suspend 458 as punishment continued under r. 49 of the Appeal Rules and an order of suspension made in exercise of that power was subject to appeal under r. 56 etc. , thereof So far as payment during the period of interim suspension or during the period of suspension as a penalty is concerned, section 247 (3) had disappeared and therefore the general provision contained in F.R. 53 applied. That general provision has made some distinction between the members of the Indian Civil Service and others; but that is a matter of detail, in which it is unnecessary to go. So the position immediately before the commencement of the Constitution was that members of the former Secretary of State 's Services could be suspended either as an interim measure pending departmental enquiry or pending criminal proceeding or as a punishment. Where suspension was as an interim measure and not as a punishment such suspension could only be by the appointing authority, which in the changed circumstances should be deemed to be the Government of India. Such interim suspension was not subject to any appeal. So far as suspension as a punishment was concerned, r. 49 of the Appeal Rules applied and the authorities specified in these Rules could pass an order of suspension as a punishment and that order would be subject to appeal provided in r. 56 and other rules therein. As to the payment during the period of suspension that was governed by F.R. 53. It is this position which was protected by article 314 of the. Constitution so far as suspension of members of the former Secretary of State 's Services was concerned whether as an interim measure or as a punishment. Then we come to the Discipline Rules 1955. Rule 3 of these Rules provides for penalties and omits suspension as a penalty. Now if suspension had remained a penalty under r. 3 of the Discipline Rules, the appellant would have been entitled to the same rights as respects suspension as a punishment or rights as similar thereto as changed circumstances would permit in view of article 314. But r. 3 of the Discipline Rules has altogether done away with the penalty of suspension for members of 459 the Indian Administrative Service, which includes the members of the lndian Civil Service under r. 3 (a) and (b) of the Recruitment Rules. Further rules corresponding to the Discipline Rules was repealed by r. 23 of the Discipline Rules , so after the Discipline Rules came into force in 1955 suspension could no longer be inflicted as a penalty on a member of the Indian Administrative Service (including members of the Indian Civil Service who became members of the Indian Administrative Service). It is therefore unnecessary for us to consider whether the order of July 18, 1959, can be justified as a punishment and if so whether the memorial provided by r. 20 of the Rules is a sufficient protection for the purpose of article 314 which speaks of "rights as similar thereto as changed circumstances may permit". Nor is it the case of the respondent that the appellant was suspended by way of punishment by the order of July 18, 1959. The respondent justifies the said order under r. 7 ( 3) of the Discipline Rules and thus the case of the respondent is that the appellant was suspended not as a punishment but that the order of suspension was passed by the Governor as an interim measure which he could do either pending a departmental enquiry or pending a criminal charge. The appellant has thus been suspended by the order of July 18, 1959, not as a punishment but as an interim measure pending a criminal charge against him; and this is what practically in terms the order says, for it places the appellant immediately under suspension because a criminal case was pending against him. But as we have already pointed out the power to pass an order of interim suspension in the case of a member of the former Secretary of State 's Services on January 25, 1950, was only in the appointing authority, (namely, the Government of India). The power to suspend a member of the Indian Administrative Service which the appellant became by virtue of r. 3 of the Recruitment Rules as punishment has disappeared from r. 3 of the Discipline Rules 1955. The appellant therefore could not be suspended by the Governor as an interim measure and such suspension could only be by the Government of India. The proper procedure therefore in a case 460 where the State Government wants a member of the former Secretary of State 's Services to be suspended pending departmental enquiry or pending investigation, inquiry or trial of a criminal charge against him is to approach the Government of India and ask it as the appointing authority to suspend such officer as an interim measure. It is not open to the Government of India by framing a rule like r. 7 of the Discipline Rules to take away the guarantee as to Disciplinary matters contained in article 314. We have already said that the guarantee in the case of a member of the former Secretary of State 's Services is that in disciplinary matters his rights would be the same or as similar thereto as changed circumstances would permit as they were immediately before the commencement of the constitution. The right in the matter of interim suspension As distinct from suspension as a punishment was that a member of the former Secretary of State 's Services could not be suspended by any authority other than the Government of India. That was guaranteed by article 314 and could not be taken away by framing a, rule like r. 7 of the Discipline Rules. We have already referred to Bakshi 's case(" in which it has been held that the rights guaranteed by article 314 of the Constitu tion could not be destroyed or taken away by the Central Government in exercise of its rule making power ' In the present case the right guaranteed to a member of the former Secretary of State 's Services with respect to interim suspension (as distinct from suspension as a punishment is that such a member cannot be so suspended except by the appointing authority which in the changed circumstances is the Government of India. That right has in our opinion been violated by r. 7 of the Discipline Rules insofar as it permits any authority other than the Government of India to suspend pending a departmental enquiry or pending a criminal charge a public servant who was a member of the, former Secretary of State 's Services. Rule 7 therefore insofar as it permits this violation of the guarantee contained in article 314 with respect to interim suspension (other than suspension (1) [1962] Supp. I S.C.R. 505. 461 as a punishment) is to that extent ultra vires article 314 i.e. insofar as it applies to the members of the Indian Adminstrative Service who fall within cls. (a) and (b) of r. 3 of the Recruitment Rules. it follows therefore that the order of the Governor dated July 18, 1959, purporting to be passed under r. 7 (3) of the Discipline Rules is without authority and must be set aside. This brings us to the question of relief to be granted to the appellant. it appears that on September 11, 1963, the Governor passed an order by which he reinstated the appellant for the period from July 18, 1959, to April 4, 1963, and granted him his full emoluments for that period. The writ petition in the present case was filed in February 1962. So the appellant is apparently not entitled to any further relief in the matter of his emoluments besides what has been granted to him by the Governor. The order of reinstatement contained therein is unnecessary in view of our decision and the order granting full emoluments may be taken to be in pursuance of our judgment. We therefore allow the appeal and declare r. 7 of the Discipline Rules insofar as it applies to members of the Indian Administrative Service who are members thereof by virtue of r. 3 (a) and (b) of the Recruitment Rules to be bad to the extent to which it permits an authority other than the Government of India to suspend as an interim measure (and not as a punishment) such members of the Services. In consequence we set aside the order of the Governor dated July 18, 1959. As however the order of September, 1963, has granted all such monetary reliefs to the appellant as we could grant him on setting aside the order of July 18, 1959, no further relief can be granted to the appellant. We order the respondent the State of Punjab to pay the costs of the appellant in this Court as well as in the High Court. RAGHUBAR DAYAL J. I am of opinion that this appeal should be dismissed. The appellant a member of the Indian Civil Service, was serving under the Government of Madras immediately before the appointed day ', i.e. August 15 462 1947, as laid down in sub section (2) of section I of the Indian Independence Act, 1947 (10 & 11 Geo. 6, Ch. 30) hereinafter referred to as the Independence Act. He continued to serve under the Government of Madras on and after the appointed day. Subsequently, he was transferred to the State of Punjab where he was serving on ,,July 18, 1959, when he was suspended by the Governor of Punjab as a criminal case was pending against him. 'the appellant was a member of the Indian Administrative Service in 1959 and the order of suspension appears to have been made by the Governor in exercise of the power conferred by r. 7 of the All India Services (Discipline and Appeal) Rules, 1955, hereinafter referred to as the Discipline Rules. The appellant challenges the validity of this order on the ground that this rule violates the provisions of article 314 of the Constitution. His contention is that prior to August 15, 1947, a member of the Indian Civil Service could be suspended by way of punishment in view of r. 49 of the Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as the Classification Rules and that there was no provision for his suspension otherwise than as a penalty and that his suspension, as a disciplinary measure, though permissible, would have been then treated as suspension by way of penalty and therefore as subject to an apeal under r. 56 of the Classification Rules. No appeal is provided under the Discipline Rules against an order of suspension under r. 7 which therefore violates article 314 of the Constitution as, according to that article, he was entitled to receive from the Government the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances, permitted as he was entitled to immediately before 'the commencement of the Constitution. He further contends that sub section (2) of section 10 of the Independence Act guaranteed to him the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances permitted, as he was entitled to immediately before the appointed day. It was further contended, during the course of the submissions in Court, that though prior to the appoin 463 ted day an order of suspension during the pendency of a departmental enquiry or of a criminal charge could have been made only by the Governor General or the Governor, such an order thereafter and till January 26, 1950 could be made only by the Governor General, and that therefore such a suspension order subsequent to the commencement of the Constitution could be made by the Union Government and not by the Government of Punjab and that for this reason too, r. 7 of the Discipline Rules empowering the State Government to make an order of such suspension violates article 314. I need not discuss the various points on which I agree with my learned brother Wanchoo, J. I agree that the expression 'changed circumstances ' in article 314 only refer to the constitutional changes which occurred after the transfer of power in August, 1947, and the coming into force of the Constitution in January, 1950, that suspension during the pendency of disciplinary proceedings or of a criminal charge is related to disciplinary matters within the meaning of those words in article 314, that from the appointed day there was no express provision in the Government of India Act or in the rules framed thereunder empowering the Governor General or the Governor to suspend, otherwise as penalty, officers appointed by the Secretary of State for India and that any order of suspension pending enquiry against a person appointed by the Secretary of State on a day immediately before the coming into force of the Constitution had to be made by the Government in the exercise of the general power of suspension which an employer has with respect to his employee, that this general power an employer has to suspend an employee pending an enquiry into his conduct vests in the appropriate authority where the Government is the employer and a public servant is the employee and that such an authority in the case of Government, in view of the peculiar structure of the hierarchy of Government, be taken to be the, authority which has the power to appoint the public servant concerned. I am however. further of opinion that the appropriate authority in this connection can also include officers superior to 464 the appointing authority and that in the case of members of All India Services serving under any state includes the Governor who, as the executive head of State, has administrative control cover all officers serving under the State Government. It would be anomalous to hold that the Governor could not suspend a person, appointed by the Secretary of State, during the pendency of departmental proceedings or a criminal charge against him, though he could have imposed a penalty of suspension on such a person in view of rr. 49 and 62 of the Classification Rules which were in force between the appointed day and January 25, 1950, and continued in force subsequently, up to the coming into force of the Discipline rules. 1, however, do not rest my decision on this view as, in my view, the appellant is to lie deemed to have been appointed by the Governor of Madras, on the appointed day, to the post corresponding to ,the post he was holding immediately before the appointed day under the Madras Government. I now deal with the question of the authority which should be taken to be the appointing authority for persons who had been appointed by the Secretary of State to the Civil Services or to any post under the Crown and who continued to serve the Government after the appointed day. To determine this question it is necessary to consider the following matters: (1) Did the Service known as the Indian Civil Service, whose members were to be recruited by the Secretary of State for India in view of section 244 (1) of the Government of India Act, cease to exist on and from the appointed day and, if so, whether any other AR India Service took its place immediately after it had ceased to exist? (2) If it ceased to exist, were the services of the members of the Indian Civil Service terminated immediately before the appointed day? (3) Which members of the Service continued in service of the Government on or after the appointed day. (4 ) Whether those who so continued did so on account of their becoming servants of the new Government under the provisions of any Act, or their continuance in service was on account of their fresh appointment. (5) If it was due to fresh 465 appointment, which authority appointed them and to which post or service Before I deal with the above questions, I may set out the relevant provisions which have a bearing in this connection. The Independence Act was enacted by the British Parliament on July 18, 1947, for setting up in India two independent Dominions and to provide for necessary consequential matters. By sub section (1) of section 1, two independent Dominions known as India and Pakistan were to be set up from August 15, 1947. Subsection ( 2) of that section provided for their being referred to as the new Dominions and August 15, 1947, being referred to as the appointed day. One of the consequences of the setting up of the new Dominions was stated in sub section (1) of section 7 to be that His Majesty 's Government in the United Kingdom was to have no responsibility as respects the government of any of the territories which, immediately before the appointed day, were included in British India. Section 9 empowered the Governor General to make such provisions by order as appeared to him to be necessary or expedient for certain purposes mentioned therein. Subsections (1) and (2) of section 10 of the Act read: "(1) The provisions of this Act keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appointments to the civil services of, and civil posts under, the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts. (2) Every person who (a) having been appointed by the Secretary of State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof; or (b) having been appointed by His Majesty before the appointed day to be a judge of the Federal SCI/64 30 466 Court or of any court which is a High Court within the meaning of the Government of India Act, 1935, continues on and after the appointed day to serve as a judge in either of the new Dominions, shall be entitled to receive from the Governments of the Dominions and Provinces or parts which he is from time to time serving or, as the case may be, which are served by the courts in which he is from time to time a judge, the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day The Governor General, in the exercise of the powers conferred on him by section 9 made the India (Provisional Constitution) Order, 1947 (G.G.O. 14 of 1947), hereinafter called the Provisional Constitution Order. Article 7(1) of this Order is: "Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor General or GovernorGeneral in Council or of a province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province." Sub section (1) of section 241 of the Government of India Act, as modified by this Order, reads: "Except as expressly provided by this Act, appointments to the civil services of, and civil posts under, the Crown in India, shall be made (a) in the case of services of the Dominion, and posts in connection with the affairs of the 467 Dominion, by the Governor General or such person as he may direct; (b) in the case of services of a Province, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct." Section 247 of the Government of India Act as modified reads: "The conditions of service of all persons who, having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India, continue on and after the date of the establishment of the Dominion to serve under the Government of the Dominion or of any Province shall, (a) as respects persons serving in connection with the affairs of the Dominion be such as may be prescribed by rules made by the GovernorGeneral; (b) as respects persons serving in connection with the affairs of a Province (i) in regard to their pay, leave, pensions, general rights as to medical attendance and any other matter which immediately before the establishment of the Dominion was regulated by rules made by the Secretary of State, be such as may be prescribed by rules made by the GovernorGeneral; and (ii) in regard to any other matter be such as may be prescribed by rules made by the Governor of the Province. " Sections 244 to 246 of the Government of India Act, 1935, which dealt with Services recruited by the Secretary of State was omitted from the Act by this Order. Reference may also be made to the announcement by His Excellency the Viceroy on April 30, 1947. It purported to relate to grant of compensation for premature termination of their service in India to members of the Civil Services appointed by the Secre 468 tary of State and to regular officers and British Warrant Officers of the Indian Naval and Military Forces. Its first 7 paragraphs are set out at pp. 548 to 550 in State of Madras vs K.M. Rajagopalan(1). Its para 8 stated inter alia: "In pursuance of their wish to give all possible help to the Government of India in building up the new services, His Majesty 's Government agree 'that their obligation covers the claim to ultimate compensation of those British members of the Services who are asked to serve on in India and decide to do so. " It may also be mentioned that subsequent to June 3, 1947, the Government of India made enquiries through the Provincial Governments from the members of the Secretary of State 's Services, including the Indian Civil Service. about their desire to continue in service of the Government after the transfer of power and also made enquiries from the Provincial Governments themselves about their readiness to retain those officers in service who expressed their desire to continue in service. This Court had occasion to discuss the effect of the steps taken by the Government of India prior to the appointed day and of the provisions of the Independence Act and the Provisional Constitution Order in Rajagopalan 's case(1) Rajagopalan was a member of the Indian Civil Service and was serving in the Province of Madras till August 14, 1947, when his services were terminated, though he had expressed his willingness to continue in the service of the, Govern.ment of Madras on and after the appointed day. What this Court directly held and observed in connection with the points urged before it in that case would be mentioned at appropriate places in discussing the five points I have formulated earlier. This first two points were directly decided in that case. This Court held that the Secretary of State and his Services disappeared as from the appoin (1) ; 469 ted day and that, section 10(2) of the Independence Act and article 7(1) of the Provisional Constitution Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amounted to an implicit statutory recognition of the principle of automatic termination of the Services brought about by the political change. It is clear therefore that the Indian Civil Service, one of the Secretary of State 's Services, ceased to exist from the appointed day and that the services of its members automatically terminated on August 14, 1947. This Court had not to consider whether any All India Service was set up to take the place of the Indian Civil Service on and from the appointed day, as the termination of Rajagopalan 's services was held to be valid. There is nothing on the record to show that any such new Service took the place of the Indian Civil Service at the changeover, though, subsequently, the Indian Administrative Service was set up as an All India Service. When it was actually set up is not known. Article 312 of the Constitution states in cl. (2) that the Services known at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under that article. The All India Services Act, 1951 (Act LXI of 1951) defined an All India Service to mean the service known as the Indian Administrative Service or the service known as the Indian Police Service. The Indian Administrative Service Recruitment Rules, 1954, came into force in 1954 and its r. 3 dealing with the constitution of the service provides inter alia that the Service shall consist of (a) members of the Indian Civil Service, not permanently allotted to the judiciary; (b) members of the Indian Civil Service permanently allotted to the judiciary who have been holding executive posts from the date of commencement of the Constitution; (d) persons recruited to the Service before the commencement of those Rules. It appears therefore that all the 470 members of the Indian Civil Service who continued to serve the Government on and after the appointed day were not made members of the Indian Administrative Service and that those who were made members of the Service became members of such Service in 1954. If the Indian Administrative Service had been set up to replace the Indian Civil Service immediately on the appointed day and the erstwhile members of the Indian Civil Service had become its members, the provisions of r. 3 (a) and (b) would have been different from what they are. This indicates that the Indian Administrative Service did not take the place of the Indian Civil Service automatically after the changeover on the appointed day and that therefore the members of the Indian Civil Service who continued in service did not continue so as members of any All India Service. The Viceroy 's announcement dated April 30, 1947, makes no mention of any All India Service replacing the Indian Civil Service immediately on the transfer of power though it specifically mentioned in para 8 about the giving of all possible help to the Government of India in building up the new Services and to the members of the Secretary of State 's Services continuing to serve under the Government in India after the transfer of power. The provisions of article 7(1) of the Provisional Constitution Order also do not refer to the persons in the Secretary of State 's Services to continue in service as members of any All India Service though it specifically deals with the appointment of such other employees of Government to the posts they had held on the day immediately preceding the appointed day. I am therefore of opinion that the service of the appellant as a member of the Indian Civil Service came to an end on August 14, 1947, and that thereafter he did not automatically or otherwise become member of any All India Service on August 15, 1947. In connection with point No. 3 formulated by me. this Court said in Rajagopalan 's case(1) at P. 552 (1) ; 471 that the continuance of service was contemplated only in respect of such of the previous servants who intimated their desire for the continuance of their services and whose offer in that respect was accepted, and at p. 563 that sub section (2) of section 10 of the Independence Act had nothing to say as to who were the persons who would continue in service and receive the benefit that being obviously left to be provided by delegated 'legislation in the shape of Orders of the Governor General and at p. 565 that in view of the provisions of article 7(1) of the Provisional Constitution Order, all persons who were previously holding civil posts were deemed to have been appointed and hence to continue in service excepting those whose case was governed by general or special orders or arrangements affecting their cases. It is clear therefore that only those members of the Secretary of State 's Services continued in service who had been holding civil posts immediately before the appointed day and were deemed to have been appointed to the corresponding post in view of the provisions of article 7 (1) of the Provisional Constitution Order. The persons who had been holding civil posts immediately before the appointed day did not automatically become servants of the new Government on the appointed day. Article 7(1) of the Provisional Constitution Order contemplates 'deemed appointment ' of such persons to their respective posts on that day. The language of this article is not consistent with any suggestion that they automatically, by the force of the Independence Act or the Provisional Constitution Order, became holders of the respective posts on the appointed day. The language is very much different from the language used in articles 374, 376, 377 and 378 of the Constitution which provide for certain persons holding office immediately before the commencement of the Constitution becoming, on such commencement, holders of corresponding posts on such commencement. The language is also different from that of article 375 of the Constitution which deals with the continuance of courts, authorities 472 and officers after the commencement of the Constitution and reads: "All courts of civil, criminal and revenue jurisdiction, all authorities and all officers, judicial, executive and ministerial, throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of this Constitution. " There is no such expression in this article which would indicate that any of these officers had to be freshly appointed or would be deemed to have been appointed to their respective posts on the commencement of the Constitution. The language of article 7(1) of the Provisional Constitution Order correspond to some extent to that of section 58 of 21 & 22 Vic. Cap. CVI, 1858, an Act for the better Government of India, which was passed when the .,Government of India was transferred to Her Majesty from the East India Company. Section 58 reads: "All persons who at the time of the commence ment of this Act shall hold any offices, employments, or commissions whatever under the said Company in India shall thenceforth be deemed to hold such offices, employments, and commissions under Her Majesty as if they had been appointed under this Act. . . " The language of article 7(1) of the Provisional Constitution Order, for purposes of comparison, may be just noted, and is ". any person who immediately before the appointed day is holding any civil post under the Crown . shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown. " The language of section 58 of the 1858 Act contemplated a fresh appointment, though deemed appointment, as is abundantly clear from the words 'shall. be deemed to hold such offices, employments, and corn 473 missions. .as if they had been appointed under this Act. ' I am therefore of opinion that the Provisional Constitution Order, by its article 7(1), provided for deemed fresh appointment of the members of the Secretary of State 's Services whose services had terminated automatically on the day immediately preceding the appointed day. I will now deal with the last point as to which authority would be deemed to have appointed the persons who had been in the Secretary of State 's Services, to their corresponding posts on the appointed day. The Government of India Act, 1935, hereinafter called the Act, as modified by the Orders of the Governor General, was in force on that day and the authorities competent to make appointments on that day would be deemed to have made the appointments of the erstwhile servants in the Secretary of State 's Services. No other authority could have made those appointments and therefore no other authorities could be deemed to have made those appointments which were deemed to be made in view of the provisions of article 7(1) of the Provisional Constitution Order. Section 241 of the Act provided that the GovernorGeneral, or such person as he may direct, would make appointments to the civil services of the Dominion and civil posts in connection with the affairs of the Dominion and that the Governor would make appointments to the services of a Province and posts in connection with the affairs of a Province. Such persons of the Secretary of State 's Services who were holding posts in connection with the affairs of a Province would therefore be appointed to the corresponding posts, on the appointed day, by the Governor of that Province, as only he could have made appointments to those posts. It is to be noticed that article 7(1) of the Provisional Constitution Order refers to appointments to posts and not to appointments to Services and that even prior to the appointed day the appoint 474 ments, to the various posts in the Provinces, of members of All India Services allotted to the cadre of the Provinces were also made by the Governor and not by the Governor General. In this respect, with regard to all appointments to posts in connection with the affairs of the Provinces there had been really no ,change. It is contended for the appellant that his deemed appointment to the post corresponding to the post he had held on August 14, 1947, was by the GovernorGeneral or the Government of India. Article 7(1) of the Provisional Constitution Order does not expressly provide so. Section 241 of the Act did not authorize the Governor General to make appointments to posts in connection with the affairs of the Provinces. The provisions of article 7(1) of the Provisional Constitution Order refer to all the persons employed in the civil services and holding civil posts under the Crown and are not restricted to those persons only who held posts and had been appointed by the Secretary of State. The mere fact that the Provisional Constitution Order was made by the Governor General would not lead to the result that the deemed appointments of all the persons serving under the Crown, whether as members of civil services or as holders of posts, had been made by the Governor General. That could not have been intended. All such employees would be deemed to be appointed by the appropriate authority on the appointed day and the appropriate authority for the appointment of a particular employee is to be found in section 241 of the Act. It is also true that the erstwhile members of the Secretary of State 's Services were not actually reappointed by the appropriate appointing authority and that they were merely deemed to be so appointed in view of the provisions of article 7(1) of the Provisional Constitution Order whose purpose was to validate the continuity of the service of such persons even though they had not been actually appointed. I see no reason why the provisions of section 241 of the Act be not applicable to the deemed appoint 475 ments of such persons who had been in the Secretary of State 's Services. Undoubtedly, it was not a special provision for the deemed appointments at the particular occasion, but was of general application to appointments on and after the appointed day. Appointments, whether actual or deemed to be made by the new Governments immediately on the changeover of the Government, must be governed by its provisions. This Court did not make any reference to section 241 of the Act in Rajagopalan 's Case.(1) This is not because that section did not govern all the erstwhile members of the Secretary of State 's Services, but because the Court was not concerned in that case with the question of such fresh deemed appointments as Rajagopalan did not continue in service as his services were held to be validly terminated on August 14, 1947. It has been urged in support of the appellant 's case that the retention of persons of the Secretary of State 's Services was dealt with between the Government of India and His Majesty 's Government as would appear from the various documents in connection with the steps taken for the setting up of the two Dominions and that only those officers continued in service whom the Government of India invited to continue and that those who were not so invited were to be paid compensation. It is not clear from the antecedent circumstances that it was the Government of India which decided about the continuance in service of such officers of the Secretary of State 's Services who had been prior to the changeover serving under the Government of a Province. Even if it was the Government of India which was to decide and invite the officers to continue, such a decision and invitation cannot amount to its appointing those officers to the various posts in connection with the affairs of a Province, in view of section 241 of the Act. of course, negotiations with respect to the services took place between the Government of India (1) ; 476 and His Majesty 's Government. A Provincial Government could not have continued such negotiations. I do not find any specific mention in any of the documents referred to in Rajagopalan 's Case ' ') to the effect that it was the Government of India which decided which officers were to continue in service. The Viceroy 's announcement dated April 30, 1947, practically sums up the result of the negotiations between the Government of India and His Majesty 's Government. It is clear from what was stated in paragraphs 3 and 6 of this announcement that the undertakings and assurances 'with respect to persons appointed by the Secretary of State and who were to continue in service were given by the Government of India with respect to those who were to continue under its service and by the Provincial Governments with respect to those who would join the Provincial Services. It is said in para 3, which dealt with the terms of pay etc., that the Government of India would then propose to Provincial Governments that they should give similar assurances to members of the Secretary of State 's Services who agreed to join Provincial Services. It was said in para 6 : "His Majesty 's Government have been reviewing the whole position. They have noted the undertaking which the Government of India have given in regard, to officers whom they desire should continue to serve under the Government of India . Many Indian members of the Secretary of State 's services will however become members of provincial services and in their cases His Majesty 's Government 's agreement that the need not be compensated is conditional upon the Provincial Governments guaranteeing the existing terms of service. If they are not prepared to do so His, Majesty 's Government reserve the right to reconsider the matter. It is therefore clear that the Provincial Governments were also concerned in the negotiations though they Were actually made by the Government (1) ; 477 of India and had to agree to guarantee the existing terms of service and safeguards in matters of discipline And had also to agree to pay compensation. It may look anomalous that some persons who had been members of the Secretary of State 's Services may be deemed to have been appointed to their respective posts, on the appointed day, by the Governor of a Province if they had been holding Posts under the Provincial Government and others be deemed to have been appointed by the Governor General if they happened to be then serving posts in connection with the affairs of the Government of India or the Dominion. Such an anomaly was bound to come into existence and had been contemplated during the negotiations between the Government of India and His Majesty 's Government. There was no other choice open to the members of the Secretary of State 's Services who were serving under the Government of a: Province when their services automatically came to an end and when they desired to continue ' in Government service. Their wishes were ascertained in the context of what was taking place. They knew of the; announcement by the Viceroy dated April 30, 1947. It was only with their consent that their services were continued after the changeover. They can therefore have no grievance for being appointed to provincial services or posts under the Provincial Governments and naturally, under its administrative control. In fact, even prior to the changeover, such persons had been under the administrative control of the Provincial Government. This Court, in Rajagopalan 's Case(1), refers at p. 551 to the Government of India asking the Provincial Govemments, by its letter dated June 18, 1947, to state, when forwarding the replies from the individual officers, about their willingness or otherwise to continue in service, whether for any reason they Would prefer such officer not to continue in service notwithstanding his desire to remain in service, and pointing out to the Provincial Government that in case it did not (1) ; 478 desire to retain the services of such persons, the Pro vincial Government would be incurring the liability to pay compensation. Such an enquiry indicates, to my mind, that the decision to continue such persons in service after the changeover rested with the Provincial Government and It was on this account that .it had to bear the liability to the compensation payable to such persons. Such a decision had to be taken by the Provincial Government because it was contemplated that officers serving under the Provincial Government would be appointed to their respective posts after the changeover by that Government itself and that the Government of India will have nothing to do with their appointments. In the circumstances, it follows that it was the Provincial Government which invited such officers to continue in service and not the Government of India. It is true that the Madras Government informed Rajagopalan of the Government 's decision not to retain him in service after August 15, 1947, and stated that a formal communication in that respect would issue from the Government of India. The Government of India in a way approved of the decision of the Madras Government not to continue Rajagopalan in service. But it does not follow that the Government of India 's approval was necessary for the Government of Madras to continue under its service officers whom it was prepared to keep in service. The ter mination of service of such officers was prior to the coming into force of the Act as modified by the Provisional Constitution Order and therefore the termination order had to be formally made by the Government of India. The order had to be passed prior to the changeover and at that time it was proper that any order about the termination of the services be with the approval of the Government of India. The fresh deemed appointment was to be made on August 15, 1947, immediately after the changeover and, in view of the practical difficulties, such a fresh appointment was not actually made but was deemed to have been made, as provided by article 7(1) of the Provisional 479 Constitution Order. When the appointment was to be made of persons serving under the Provincial Governments, there was no necessity of obtaining prior approval of the Government of India to retain such officers in service. I am therefore of opinion that such members of the Secretary of State 's Services who were holdingposts under a Provincial Government immediately before the appointed day and continued in service on and after the appointed day are to be deemed to be appointed to the corresponding posts by the Governor of the Province, in view of the provisions of section 241 of the Act. The appellant was serving under the Madras Government immediately before the appointed day. He will therefore be deemed to be appointed by the Governor of the Province of Madras to the post he was holding on the appointed day. The Governor of the Province was his appointing authority and therefore he could be suspended on the day immediately before the commencement of the Dominion by the Governor of the Province where he might have been then serving. He can at best claim protection of his right of not being suspended pending departmental enquiry or of a criminal charge by any authority of a lower rank. Rule 7 of the Discipline Rules does not provide for such suspension of a person who had been a member of the Secretary of State 's Services by an authority lower than the Governor. The appellant was suspended by the Governor of Punjab on July 18, 1959. He had no right of appeal against such an order of suspension. The Discipline Rules did not provide for an appeal against such an order of suspension and, in not so providing, cannot be said to violate the provisions of article 314 of the Constitution as the appellant had no right of appeal against such an order before the commencement of the Constitution. It follows that r. 7 of the Discipline Rules does not violate the provisions of that Article and that the impugned order of suspension was therefore valid. 480 1 would therefore dismiss the appeal. ORDER in accordance with the opinion of the majority the appeal is allowed with costs in this Court and in the ' High Court.

IN-Abs

The appellant joined the Indian Civil Service in 1939 and was posted in the province of Madras. After the transfer of power under the Indian independence Act on August 15,1947, he was 432 transferred to the Punjab and later when the Indian Administrative Service was constituted he became its member. On July 18, 1959, he was suspended by the Governor of the State of Punjab under r. 7(3) of the Indian Services (Discipline and Appeal) Rules, 1955, on the ground that a criminal case was pending against him. He challenged the order of suspension by a writ petition in the Punjab High Court as being violative of the guarantee contained in article 314 of the Constitution and contrary to r. 49 of the Civil Services (Classification, Control and Appeal) Rules which provided only for suspension as a penalty. His case was that there was no provision immediately before January 26, 1950, that provided for suspension otherwise than as penalty. The High Court dismissed the petition. Held: (per Gajendragadkar, Subba Rao, Wanchoo and Shah, JJ). The general law of master and servant and section 247 of the Government of India Act, r. 53 of the Fundamental Rules and rr. 49, 56 of the Civil Services (Classification, Control and Appeal) Rules, read together clearly show that members of the former Secretary of State 's Services were on August 14, 1947, liable to suspension either as an interim measure or as a punishment. Interim suspension could be imposed either by the Secretary of State as the appointing authority or the Governor General or the Governor, as the case might be, as the statutory authority. Management of Hotel Imperial, New Delhi v Hotel Workers ' Union, [19601 1 S.C.R. 476 and T. Cajee vs U. Jormanik Siem, ; , referred to. It was not therefore correct to say that there could be no suspension except by way of punishment under r.49 of the Appeal Rules before 1947. In a case of interim suspension before 1947 there was however no right of appeal. Article 314 of the Constitution, properly construed, affords such protection to the members of the Secretary of State 's Services as they were entitled to immediately before the commencement of the Constitution. There can be no doubt that suspension pending a departmental enquiry or a criminal proceeding falls within the word 'disciplinary matters ' used in that Article. It was not correct to say that as independence was conferred on India and the Services automatically terminated, there was in law reappointment of all the former Secretary of State 's Services, and those serving in a province must be deemed to have been reappointed by the Governor and that, consequently, the Governor as the appointing authority had the power to order suspension. Article 7(1) of India (Provisional Constitution) Order, 1947, G.G.O. 14, read with section 10 of the Independence Act, 1947, in the light of other relevant circumstances shows that the final decision whether or not the former members of the Secretary of State 's Services should continue was of the Government of India and that Government, therefore, must be deemed to have appointed 433 them to posts either under itself or in the Provinces. Section 241(b) of the Government of India Act, as it then stood, and s.240(2) of the said Act, as amended by G.G.O. 14, could not alter this position. State of Madras vs K.M. Rajagopalan, ; , referred to. On the eve of the commencement of the Constitution i.e. January 25, 1950, a former member of the Secretary of State 's Services could be suspended under the general law by the Government of India alone as the appointing authority as an interim measure pending departmental enquiry or criminal proceeding and by no other authority. He was liable to suspension as punishment under section 49 of the Civil Services (Classification, Control and Appeal) Rules. Rule 53 of the Fundamental Rules governed pay during interim suspension or suspension as penalty. While there was no appeal from an order of interim suspension, r. 56 of the Appeal Rules provided for an appeal from an order of suspension as penalty. It was this position which article 314 of the Constitution sought to protect. Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, violated the guarantee contained in article 314 in respect to interim suspension and was to that extent ultra vires in so far as it applied to the members of the Indian Administrative Services who fell within cls. (a) and (b) of r.3 of the Indian Administrative Services (Recruitment) Rules, 1954. The Governor 's Order under r.7(3) directing interim suspension of the appellant must, therefore, be set aside. The proper procedure would be to approach Government of India for such interim suspension. The Accountant General, Bihar vs N. Bakshi, [1962] Supp. 1 S.C.R. 505, referred to. Per Dayal, J. In view of the provisions of section 241 of the Government of India Act as modified by the India (Provisional Constitution) Order, 1947, G.G.O. 14 of 1947, members of the Secretary of State 's Services who were holding posts under a provincial Government immediately before the appointed day, i.e., August 15, 1947, and continued in service thereafter must be deemed in view of article 7(1) of the said Order to have been appointed to the corresponding posts by the appropriate authority, the Governor of the Province. That article generally applied to all appointments on and after the appointed day. The appellant cannot be deemed to have been appointed by the Governor General or the Government of India. It was not intended that merely because that Order was made by the Governor General, the deemed appointments must be taken to have been made by him. It would be anomalous to hold that the Governor, who was in administrative control of the services, could not pass an interim order of suspension against a person appointed by the Secretary of State, though he could impose a penalty of suspension under 1/SCI/64 28 434 rr. 49 and 52 of the Civil Services (Classification, Control and Appeal) Rules, which continued in force till the All India Services (Discipline and Appeal) Rules came into force in 1955. The Indian Civil Services ceased to exist from August 15,1947, and the services of its members automatically terminated on August 14, 1947. The appellant 's service, therefore, came to an end on August 14, 1947, but since he was serving under the Madras Government immediately before August 15, 1947, and continued to do so thereafter he must be deemed to have been appointed by the Governor of Madras to the post he was holding on the appointed day. Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, does not violate the provision of article 314 of the Constitution, nor can the absence of a right of appeal against interim suspension do so since the appellant had none before the Constitution. His suspension by the Governor of Punjab under r.7(3) was, therefore valid. State of Madras vs K.M. Rajagopalan, ; , considered.

Appeal No. 290 of 1963. Appeal from the judgment and order dated January 19, 1960, of the Andhra Pradesh High Court in case referred No. 7 of 1958. K. N. Rajagopal Sastri and R.N. Sachthey, for the appellant. K. Bhimasankaram and K.R. Sharma, for the respondent. November 20, 1963. The Judgment of the Court was delivered by SHAH, J. Baba Gowd, P.V. Rajareddy and Rajareddy Mallaram formed an association of persons called "Nizamabad Group Liquor Shops" called for the sake of brevity 'the Group '. For the Fasli year 1358 i.e. October 1, 1948 to September 30, 1949 the Group carried on business in liquor contracts obtained from the former State of Hyderabad. With the end of Fasli year 1358 the contracts came to an end. The business was then discontinued, and the Group was dissolved. The Group did not make a return of its income pursuant to the general notice under section 22(1)of the Indian Income tax Act. The Incometax Officer, Nizamabad Circle, issued a notice under section 34 of the Income tax Act calling upon Baba Gowdone of the members of the Group to file a return of the income of the Group, but Baba Gowd failed to file the return on the due date. The Incometax Officer then assessed the taxable income of the 511 Group under section 23(4) at Rs. 51,000, and determined Rs. 8,826 14 0 as the tax payable. Attempts made by the Income tax Department to recover the tax from Baba Gowd having proved unsuccessful, on March 13, 1954, the Income tax Officer issued a notice of demand addressed to Rajareddy Mallaramanother member of the Group. The latter then applied under section 27 of the Indian Income tax Act for can cellation of the assessment. The application was rejected by the Income tax Officer. In appeal to the Appellate Assistant Commissioner, the order was set aside and the Income tax Officer was directed to cancel the order of assessment under section 23(4) and to make a fresh assessment after giving an opportunity to Rajareddy Mallaram to file a return and to produce the books of account of the dissolved Group. The Income tax Appellate Tribunal, Hyderabad Branch modified the order of the Appellate Assistant Commissioner. The Tribunal held that a valid order of assessment under section 23(4) having already been made in the case there could be no occasion to issue a fresh notice to Rajareddy Mallaram or to make a fresh assessment, but somewhat inconsistently with that opinion, 'the Tribunal directed that the Appellate Assistant Commissioner do consider whether Rajareddy Mallaram had been prevented by sufficient cause from making the return. At the instance of Rajareddy Mallaram the following two questions were referred to the High Court of Andhra Pradesh by the Tribunal. "(1) On the facts and in the circumstances of the case, was the order of assessment made by the Income tax Officer under section 23(4) on 30 9 1953 bad in law? (2) If the answer to the above question is in the negative, was not the applicant liable for the amount of tax payable as determined in that order of assessment by reason of the terms of section 44 of the Income tax Act?" The High Court answered the first question in the affirmative and held that the second question did 512 not fallto be determined. In arriving at its conclusion the HighCourt recorded the following findings: "(1)On the facts and in the circumstances of this case, the order of assessment made by the Income tax officer under section 23 on 30 9 1953 is bad in law, (a) absolutely, because he Made the assess ment of the association and not of those who were members of the association at the time of the dissolution jointly and severally; and (b) particularly as against any member on whom notices under sections 34 and 22(4) were not served because of such failure to serve notices on him. The assessment is not binding on the petitioner, as no notice under section 22 was issued to him and as he was not assessed severally or jointly with others referred to above. (ii) The applicant is not liable for the amount of tax payable as determined in the order of assessment dated 30 9 1953, as that assessment was not made in conformity with section 44 of the Income tax Act. " The sole question which fell to be determined before the taxing authorities was whether the order of assessment made by the Income tax Officer, subsequent to the dissolution of the Group, assessing its income, after serving a notice upon one and not all the members of the Group, could be enforced against members of the Group who were not served. The material part of section 44 of the Indian. Income tax Act (insofar as it dealt with the liability of discontinued associations) before it was amended by section 11 of Finance Act XI of 1958 with effect from April 1, 1958, stood as follows: "Where any business, profession or vocation carried on by a association of persons has been discontinued, or where an 513 association of persons is dissolved, every person who was at the time of such discontinuance of dissolution a member of such association shall, in respect of the income, profits and gains of the . association, be jointly and severally liable to assessment under Chapter IV and ,for ' the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment. " The section declares the liability for assessment under Ch. IV of the Act in case of discontinuance, of the business of or dissolution of an association. The Group admittedly discontinued its business at the end, of Fasli year 1358 and it was also dissolved. Every person who was at the time of such discontinuance or dissolution a member of the Group was by the express terms of section 44 liable to be assessed jointly and severally in respect of, the,, income, profits and gains of the Group and was also liable for the amount of tax payable. This Court in examining the scheme of section 44 as it ' stood before its amendment in 1958 in its application to a firm which had discontinued its business observed: C.A. Abraham, Uppoottil, Kottayam Y. The Income tax Officer, Kottayam and another "In effect, the Legislature has enacted by section 44 that the assessment proceedings may be commenced and continued against a firm of which business is discontinued as if discontinuance has not taken place. It is .enacted manifestly with a view to ensure continuity in the application of the machinery provided for assessment and imposition of tax liability notwithstanding dis. ,continuance of the business of firms. By a fiction, the firm is deemed to continue after discontinuance for the purpose of assessment under, Chapter IV." In Abraham 's case (1) the Court was concerned with;the assessment of a firm of which the business was discontinued because of the ' dissolution of the (1)[1961] 2 S.C.R. 765 at p. 770. 514 firm, by the death of one of the partners. But section 44 as it stands amended by Act, 7 of 1939 applies to 'discontinuance of the business of associations of persons as well as of firms, and the question which directly fell to be determined in that case was whether penalty for concealing the particulars of income or for deliberately furnishing inaccurate particulars of income in the return could lawfully be imposed after discontinuance of the business. It is true that the validity of the order assessing the firm was not expressly challenged, though at the date of the order of assessment the firm stood dissolved, and its business was discontinued, but the 'Court could not adjudicate upon the validity of the order imposing penalty without deciding whether there was a valid assessment, for an order imposing penalty postulates a valid assessment. Counsel for the respondent contended that even if the assessment after dissolution of the Group be regarded as valid, it is binding upon only those persons who were served with the notice calling for a return, and in support of this plea. relied upon the clause "every person who was at the time of such dissolution, a member of such association shall in respect of the income of the association be jointly and severally liable to assessment". He urged that the expression "every person" in section 44 means all persons, and that by enacting that such persons shall be liable to assessment "jointly and severally" it was intended that after the association is dissolved only the members at the date of dissolution can be assessed in, respect of the income of the association. As: a, corollary to the argument it was submitted that all members who are sought to be assessed must be individually served with notice of assessment, and those not, served will not be bound by the assessment. The argument is plainly inconsistent with what, was observed by this Court in Abraham 's case(". If, by section, 44 the continuity of the. firm or association ,is for the purpose of assessment ensured, (1) at P. 770. 515 no question of assessing the individual members of the association can arise. Under Ch. IV of the Income tax Act an association of persons may be assessed as a: unit of assessment, or the individual members may be assessed separately in respect of their respective shares of the income, but the Act contains no machinery for assessing the income received by an association, in the hands of its members collectively. The unit of assessment in respect of the income earned by the. association is either the association or each individual member in respect of his share in the income. This is so when the association is existing, and after it is dissolved as well. There can be no partial assessment of the income of an association, limited to the share of the member who is served with notice of assessment. For the purpose of assessment the Income tax Act invests an association with a personality apart from the members constituting if, and if that personality is for the purposes of Ch. IV, insofar as it relates to assessment, continued, the theory of assessment binding only upon members who were served with the notice of assessment can have no validity. This view is supported by the use of the expression "tax payable" in section 44 which in the context in which it occurs can only mean tax which the association but for dissolution, or discontinuance of its business would have been assessed to pay. Since the primary purpose of section 44 is to bring to tax the income of the association after it is dissolved or its business is discontinued, assessment of an aliquot share of that income is not contemplated by section 44 of the Income tax Act. The effect of section 44 is as we have stated, merely to ensure continuity in the application of the machinery provided in Ch. IV of the Act for assessment and for imposition of tax liability notwithstanding discontinuance of the business of the association or its dissolution. By virtue of section 44 the personality of the association is continued for the purpose of assessment and Ch. IV applies thereto. What can be assessed is the income of the association received prior to its dissolution and the members of the association would be 516 jointly and severally assessed thereto in their capacity as members of the association. For the purpose of such assessment, the procedure is that 'applicable for assessment of the income of the association as if it had continued. A notice to the appropriate person under section 63(2) would, therefore, be sufficient to enable the authority to assess to tax the association. The plea 'that the respondent not having been served personally with the, notice of assessment is not liable to pay the tax, assessed cannot therefore be sustained. Counsel for the respondent then contended that the original assessment made under section 23(4) was invalid, because notice of assessment was not served upon the Group in the manner provided by section 63(2) of the lndian Income tax Act, Baba Gowd who was served with ' the notice not being the principal officer who .could be served, with notice on behalf of the Group. But no such contention was raised before the Tribunal. It does not arise out of the order of the Tribunal and the question referred by the Tribunal to the High Court does not. justify consideration of that plea. The respondent . 'cannot be permitted to raise a question which did not arise out of the order of the Tribunal, and has not been referred. The case must be decided on the footing that notice of assessment was properly served on Baba Gowd and that the assessment, was properly , made by the Income tax Officer tinder section 23(4). We hold that the answer to the first question will be in the negative. If the order of assessment is held to be valid, the application made by the respondent for setting aside the assessment on the ground that he was not served with the notice of assessment must fail. , The second question will be answered as follows "The applicant was liable 'for the amount of tax payable under the order of assessment. " The appeal is allowed. The respondent will pay the costs of this appeal in this Court and in the High Court. Appeal allowed.

IN-Abs

An association of three persons carrying on business in liquor was dissolved. No return was filed on behalf of the association or the individual members. The Income tax Officer issued a notice under section 34 of the Income tax Act calling upon Baba Gowd, one of the members of the association, to file a return of the income of the association but he did not so. The Income tax Officer then assessed the taxable income of the association under section 23(4) of the Act and determined the tax payable. Attempts to recover tax from Baba Gowd were not successful. The Income tax Officer then issued a notice of demand to the respondent, another member of the dissolved association. The respondent applied under section 27 for cancellation of the assessment. The application was rejected by Income tax Officer. The Appellate Assistant Commissioner ordered cancellation of the assessment and directed that fresh assessment be made after giving an opportunity to the respondent to file a return and to produce evidence in support thereof. The Income tax Appellate Tribunal held that a valid order of assessment had already been made and there was no occasion to issue a fresh notice to the respondent or to make a fresh assessment. At the instance of the respondent, the Tribunal referred to the High Court two questions whether the order of assessment made by the Income tax Officer under section 23(4) on September 30, 1953 was bad in law or not and whether the respondent was or was not liable for the amount of tax payable as determined in that order of assessment by reason of the terms of section 44 of the Incometax Act. The High Court held that the order of assessment under section 23 (4) was bad in law and the respondent was not liable. In appeal to this Court. Held:The order of assessment made by the lncome tax Officer under section 23(4) on September 30, 1953 was not bad in law and the respondent was liable for the amount of tax payable under the order of assessment. Under Chapter IV of the Income tax Act, an association of persons can be assessed as a unit of assessment or the individual members can be assessed separately in respect of their respective shares of income. The Act does not contain any machinery for assessing the income received by an association, in the hands of its members collectively. The unit of assessment in respect of the income earned by the association is either the association or each individual member in respect of his share in the income. This is so when the association is existing and the same is true after its dissolution. There can be no partial assessment of the income of an association, limited to the share of the member who is served with notice of assessment. The theory of assessment binding only those members who were served with the notice of assessment, is not valid. The use of the expression "tax payable" in section 44 in the context in which it occurs can only mean tax which the association but for its dissolution or discontinuance of its business, would have been assessed to pay. 510 By virtue of section 44, the personality of the association is continued for the purposes of assessment. What can be assessed is the income of the association recieved prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of association. For the purpose of such assessment, the procedure is that applicable for the assessment of the income of association as if it had continued. A notice to the appropriate person under section 63(2) would, therefore, be sufficient to enable the authority to assess to tax the association. The plea that the respondent was not served personally with the notice of assessment and was therefore not liable to pay the tax assessed, cannot be sustained. C.A. Abraham, Uppoottil, Kottayam vs Income tax Officer, Kottayam, ; , referred to.

Appeal No. 13 of 1963. Appeal by special leave from the award dated January 20, 1962, of the Industrial Tribunal No. 307 of 1961. M.C. Setalvad and A.N. Goyal. for the appellant. B.P. Maheshwari and O.P. Singh for the respondent. November 14, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR J. The short question of law which arises in this appeal by special leave relates to the construction of section 25 FF of the (No. 14 of 1947) (hereinafter called 'the Act ') This question arises in this way. Between the appellant, the Management of R.S. Madhoram & Sons (Agencies) (P) Ltd., and the respondents, its workmen an Industrial dispute arose in regard to the transfer of 57 employees from the management of R.S. Madho ram & Sons, which was their original employer, to the appellant. This dispute was referred for adjudication by the Delhi Administration to the Industrial Tribunal, New Delhi. The case of the respondents was that the impugned transfer is invalid, whereas the appellant contended that the said transfer was fully valid and justified under section 25FF of the Act. Certain other pleas were 381 raised by the parties before the Tribunal and they have been considered by it, but it is not necessary for the purpose of the present appeal to refer to them, since the only point which has been urged betoken us by Mr. Setalvad on behalf of the appellant is in relation to the finding of the Tribunal that section 25FF does not apply to the present case. R.S. Madhoram & Sons, and R.S. Madhoram & Sons (Agencies) (P) Ltd. are the two concerns involved in this dispute. The first is a firm consisting of the members of a joint Hindu family and the second is a company formed by the said members. The firm has been in existence since April 1, 1946 whereas the company came into existence on August 29, 1961. The head office of the firm is at Dehra Dun and it runs branches at Delhi, New Delhi, Mussoorie and Amritsar. The firm acts as selling representatives of Obeetee (Private) Ltd., Mirzapur: Commonwealth Trust Ltd., Calicut, and United Coffee Supply Co. Ltd., Coimbatore. It also acts as Government contractors as well as stockists of the Elgin Mills Co. Ltd., Kanpur. The 57 employees whose transfer from the firm to the company has given rise to the present dispute were originally employed by the firm. On the muster roll of the firm, 92 employees were entered. Out of these, 57 have been transferred by the firm to the company as a result of the agreement between the two concerns. The company was formed as a separate and different concern, and in accordance with its memorandum and articles of association and in pursuance of the agreement between it and the firm, it has taken over the retail business of the firm together with the staff employed by the firm in the said retail business as from September 15, 1961. The agreement shows that when the staff was taken over by the company from the firm, continuity of service was guaranteed to the staff and the terms and conditions of service enjoyed by them before the taking over also remained unaffected. The appellant contends that it is the successor in interest of the firm in regard to the retail business 382 which was one of the businesses carried on by the firm, and it argues that since the conditions prescribed by the proviso to section 25FF have been complied with, the grievance made by the respondents that the transfer of the 57 workmen in question is unjustified cannot be sustained. On the other hand, the respondents contend that section 25FF is inapplicable to their case, because the ownership or management of the undertaking has not been transferred by the firm to the company within the meaning of the said section. If the said section does not apply, then there is no scope for applying the provisions of the proviso. The Tribunal has upheld the plea raised by the respondents, and Mr. Setalvad contends that the finding of the Tribunal is based on a misconstruction of section 25FF of the Act. Before dealing with this point, it would be useful to refer to the relevant facts which preceded the transfer of 57 employees. It appears that on September 14, 1961, there was an agreement between the transferor and the transferee as a result of which the employees engaged by the transferor were transferred to the transferee company. This agreement provided that the service of the said workmen shall not be interrupted by reason of the transfer, that the terms and conditions of service applicable to the said workmen shall not be less favorable than those applicable to them immediately before the transfer, and that the transferee concern shall be liable to pay to the workmen in the event of their retrenchment, compensation on the basis that their service had been continuous and had not been interrupted by the transfer. Another agreement was executed between the firm and the company on September 15, 1961, as a result of which the company took over the entire retail business hitherto run by the firm. Clauses 2 to 5 of the said agreement provide the other terms and conditions subject to which the transfer of the retail business was effected between the firm and the company. 383 After this transaction was thus completed between the firm and the company, notice was issued to the workmen in question intimating to them that as a result of the transfer their services would be taken over by the transferee company. These workmen were told that in computing the length of their service, the period of their service with the transferor firm would be taken into account. They were also told that if any of them did not want to work with the transferee company, they should intimate accordingly to the said company within three days from the receipt of the notice whereupon their legal dues would be paid to them. For reasons which it is not easy to understand or appreciate, the respondent Union representing the appellant 's employees does not appear to have responded favourably to this notice and correspondence that passed between the respondent and the appellant shows that the workmen were not prepared to be treated as the employees of the transferee company. It seems that they were willing to do the work of retail business which had been transferred to the company, but they were unwilling to forego the status as the employees of the transferor firm. Attempts at conciliation were made, but the differences between the parties could not be resolved, and so, the matter ultimately went to the Industrial Tribunal for its adjudication. That is bow the only question which arises for our decision is whether section 25FF and its proviso apply to the present case. Section 25FF of the Act provides, inter alia, that where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who satisfies the test prescribed in that section shall be entitled to notice and compensation in accordance with the provisions of section 25FF as if the workman had been retrenched. This provision shows that workmen falling under the category contemplated by it, are entitled to claim retrenchment compensation in 384 case the undertaking which they were serving and by which they were employed is transferred. Such a transfer , in law, is regarded as amounting to retrenchment of the said workmen and on that basis section 25FF gives the workmen the right to claim compensation. There is, however, a proviso to this section which. excludes its operation in respect of cases falling under the proviso. In substance, the proviso lays down that the provision as to the payment of compensation on transfer will not be applicable where in spite of the transfer, the service of the workmen has not been interrupted. The terms and conditions of service are not less favorable after transfer then they were before such transfer, and the transferee is bound under the terms of the transfer to pay to the workmen in the event of their retrenchment, compensation on the basis that their service had been continuous and had not been interrupted by the transfer. The proviso, therefore, shows that where the transfer does not effect the terms and conditions of the employees, does not interrupt the length of their service and guarantees to them payment of com pensation, if retrenchment were made, on the basis of their continuous employment, then section 25FF of the Act would not apply and the workmen concerned would not be entitled to claim compensation merely by reason of the transfer. It is common ground that the three conditions prescribed by clauses (a) (b) and (c) of the proviso are satisfied in this case and so, if section 25FF were to apply, there can be little doubt that the appellant would be justified in contending that the transfer was valid and the 57 employees can make no grievance of the said transfer. The question, however, is: does section 25FF apply at all? It would be noticed that the first and foremost condition for the application of section 25FF is that the ownership or management of an undertaking is transferred from the employer in relation to that undertaking to a new employer. What the section contemplates is that either the ownership or the management of an undertaking should be transferred; normally this would 385 mean that the ownership or the management of the entire undertaking should be transferred before section 25FF comes into operation. If an undertaking conducts one business, it would normally be difficult to imagine, that its ownership or management can be partially transferred to invoke the application of section 25FF. A business conducted by an industrial undertaking would ordinarily be an integrated business and though it may consist of different branches or departments they would generally be inter related with each other so as to constitute one whole business. In such a case, s.25FF would not apply if a transfer is made in regard to a department or branch of the business run by the undertaking and the workmen would be entitled to contend that such a partial transfer is outside the scope of section 25FF of the Act. It may be that one undertaking may run several industries or businesses which are distinct and separate. In such a case, the transfer of one distinct and separate business may involve the application of section 25FF. The fact that one undertaking runs these businesses would not necessarily exclude the application of section 25FF solely on the ground that all the businesses or industries run by the said undertaking have not been transferred. It would be clear that in all cases of this character the distinct and separate businesses would normally be run on the basis that they are distinct and separate; employees would be separately employed in respect of all the said businesses and their terms and conditions of service may vary according to the character of the business in question. In such a case, it would not be usual to have one muster roll for all the employees and the Organisation of employment would indicate clearly the distinctive and separate character of the different businesses. If that be so, then the transfer by the undertaking of one of its businesses may attract the application of section 25FF of the Act. But where the undertaking runs several allied businesses in the same place or places, different 1/SCI/64 25 386 considerations would come into play. In the present case, the muster roll showing the list of employees was common in regard to all the departments of business run by the transferor firm. it is not disputed that the terms and conditions of service were the same for all the employees and what is most significant is the fact that the employees could be transferred from one department run by the transferor firm to another department, though the transferor conducted several branches of business which are more or less allied, the services of the employees were not confined to any one business, but were liable to be transferred from one branch to another. In the payment of bonus all the employees were treated as constituting one unit and there was thug both the unity of employment and the identity of the terms and conditions of service. In fact, it is purely a matter of accident that the 57 workmen with whose transfer we are concerned in the present appeal happened to be engaged in retail business which was the subject matter of the transfer between the firm and the company. These 57 employees had not been appointed solely for the purpose of the retail business but were in charge of the retail business as a mere matter of accident. Under these circumstances, it appears to us to be very difficult to ' accept Mr. Setalvad 's argument that because the retail business has an identity of its own it should be treated as an independent and distinct business run by the firm and as such, the transfer should be deemed to have constituted the company into a successor in interest of the transferor firm for the purpose of section 25FF. As in other industrial matters, so on this question too, it would be difficult to lay down any categorical or general proposition. Whether or not the transfer in question attracts the provisions of section 25FF must be determined in the light of the circumstances of each case. It is hardly necessary to emphasise that in dealing with the problem, what industrial adjudication should consider is the matter of substance and not of form. As has been observed by this Court in Anakapalla Cooperative Agricultural and In 387 dustrial Society vs Workmen and others(1) the question as to whether a transfer has been effected so as to attract section 25FF must ultimately depend upon the evaluation of all the relevant factors and it cannot be answered by treating any one of them as of overriding or conclusive significance. Having regard to the facts which are relevant in the present case, we are satisfied that the appellant cannot claim to be a successor in interest of the firm so as to attract the provisions of section 25FF of the Act. The transfer which has been affected by the firm in favour of the appellant does not, in our opinion, amount to the transfer of the ownership or management of an undertaking and so, the Tribunal was right in holding that section 25FF and the proviso to it did not apply to the present case. The result is, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

An industrial dispute arose between the appellant the Management of R.S. Madhoram & Sons (Agencies) (P) Ltd., and the respondents its workmen, in regard to the transfer of 57 employees from the Management of R.S. Madhoram & Sons, which was there original employer, to the appellant. By agreement the transferor firm transferred its retail business to the appellant. This dispute was referred for adjudication to the Industrial Tribunal. The case of the respondents was that section 25FF is inapplicable to their case, because the ownership or management of the undertaking has not been transferred by the firm to the company within the meaning of that section. The case of the appellant was that the said transfer was fully valid and justified under section 25FF of the Act. In the present case, the muster roll showing the list of employees was common in regard to all the departments of business run by the transferor firm. The employees could be transferred from one department run by the transferor firm to another department. In the payment of bonus all the employees were treated as constituting one unit and there was thus both the unity of employment and the identity of the terms and conditions of service. The respondents succeeded before the Tribunal. The appellant has come to this Court against the award of the Tribunal. Held: (i) The first and foremost condition for the appli cation of section 25FF is that the ownership or management of an undertaking is transferred from the employer in relation to that undertaking to a new employer. Normally this would mean that the ownership or the management of the entire undertaking should be transferred before section 25FF comes into operation. If an undertaking conducts one business it would normally be difficult to imagine that its ownership or management can be partially transferred to invoke the application of section 25FF. It may be that one undertaking may run several industries or businesses which are distinct and separate. In such a case, the transfer of one distinct and separate business may involve the application of section 25FF. On the facts of this case it was held that the retail business of the transferor firm was not a separate and distinct business and as such, the impugned transfer did not amount to the transfer of 380 the ownership or management of an undertaking so as to attract the provisions of section 25FF of the Act. In the present case. the appellant cannot claim to be a successor in interest of the firm so as to attach section 25FF of the Act. (ii)It would be difficult to lay down any categorical or general proposition as to the application of section 25FF. Whether or not the transfer in question attracts the provisions of section 25FF must be determined in the light of the circumstances of each case. The question as to whether a transfer has been effected so as to attract section 25FF must ultimately depend upon the evaluation of all the relevant factors and it cannot be answered by treating anyone of them as of over riding or conclusive significance. Anakapalle Co operative Agricultural and Industrial Society vs Its Workmen, [1963] Supp. 1.S.C.R. 730, relied on.

Civil Appeal No. 150 of 1963. Appeal by special leave from the judgment and decree dated January 9, 1962 of the Calcutta High Court in Appeal from Original Decree No. 48 of 1961. N.C. Chatterlee, R.K. Garg, S.C. Agarwal, M.K. Rarnatnurthi and D.P. Singh, for the appellant. M.C. Setalvad and B.P. Maheshwari, for the respondent. October 10, 1963. The Judgment of the Court was delivered by RAGHUBAR DAYAL J. Raj Kishore Tewari, appellant in this appeal by special leave, was occupying certain premises as sub tenant of Susil Chandra Banerjee, under a registered lease dated April 10, 1954. His tenancy commenced from April 1, 1954. The rent fixed was Rs. 220 per mensem. Subsequent 123 ly it was reduced to Rs. 205 by an agreement dated June 9, 1954. The tenancy was monthly. Susil Chandra Banerjee was the tenant of Govindaram Bhansali from September 15, 1943, at a monthly rental of Rs. 153 plus certain other charges. On June 16, 1955, the landlord obtained a decree of ejectment against Susil Chandra Banerjee. In view of sub section (2) of section 13 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950), hereinafter called the Act, the appellant became the tenant of the landlord after the determination of the tenancy of Susil Chandra Banerjee. On March 19, 1957, the land lord respondent gave a notice to the appellant asking him to deliver possession of the premises on the expiry of the last day of April 1957, on the ground that he, being the statutory tenant, had not paid rents to him since June 16, 1955, and, as such, was not entitled to any protection under the West Bengal Premises Tenancy Act, 1956 (Act XII of 1956). Subsequently, on June 10, 1957, the respondent instituted the suit for ejectment of the appellant from the premises. The suit was resisted by the appellant on various grounds. His defence was however struck off due to certain default. Ultimately, the suit was decreed on December 15, 1959. An appeal to the High Court was unsuccessful. The High Court refused to give leave to appeal to this Court. Thereafter, the appellant obtained special leave from this Court and filed the appeal. The only point urged for the appellant is that the notice of ejectment dated March 19, 1957, was invalid in view of the fact that under the law the notice must be to require the appellant to deliver possession on the expiry of the month of tenancy, that the tenancy was from the 16th of a month as the decree for ejectment against the tenant of the first degree was passed on June 16, 1955, and that this notice required the delivery of possession on the expiry of the last day of April. We may say that this point was not raised in the written statement. It was however allowed to be raised in the appellate Court but was repelled. 124 The only point to determine in this appeal is the date from which the tenancy of the appellant vis a vis the respondent commenced. The relevant portion of sub s.(2) of section 13 of the Act is: "(2) Where any premises or any part thereof have been or has been sub let by 'a tenant of the first degree ' or by a tenant inferior to a tenant of the first degree ', as defined in explanation to sub section (1), and the sub lease is binding on the landlord of such last mentioned tenant, if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in clause (h) of the proviso to sub section (1) of section 12, the sub lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the latter had not been so determined. " There is nothing in these provisions which should persuade us to hold, as urged for the appellant, that the sub tenant becomes a tenant of the landlord from the date on which the tenancy of the tenant against whom a decree for ejectment is passed is determined. The provisions only lay down that the sub tenant would become the tenant of the landlord if the tenancy in chief is determined lawfully. On the other hand, this sub section lays down that the subtenant would be tenant on the terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the tenant had not been determined. This means that the terms and conditions of the tenancy between the erstwhile sub tenant and the landlord continue to be the same which were the terms and conditions of the sub tenancy. Such terms and conditions of the tenancy in the case of the appellant were that he was to be a monthly tenant on the payment of a certain rent and that his tenancy was to 125 commence from the first day of April 1954. It is clear therefore that his tenancy was by the calendar month. It commenced on the first day of the month and expired on the last day of the month. This period of monthly tenancy was in no way affected by the provisions of sub section (2) of section 13 whose effect was simply this that the sub tenant instead of being sub tenant of the tenant who had been ejected, got a direct connection with the landlord and became his tenant in chief or, as the Act describes, tenant in the first degree. The statutory provision just brought about a change in the landlord of the sub tenant. The proprietor landlord took the place of the tenantin chief from whom the sub tenant had secured the tenancy. We are therefore of opinion that the High Court was right in rejecting the contention of the appellant with respect to the invalidity of the notice for ejectment dated March 19, 1957. The result is that the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant was a sub tenant of S on a monthly basis commencing from April 1, 1954. S was the tenant of the Respondent from September 15, 1943 on a monthly rental. On June 16, 1955, the respondent obtained a decree of ejectment against section In view of sub s(2) of section 13 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the appellant became the tenant of the respondent after the determination of the tenancy of section The respondant gave a notice to the appellant asking him to deliver possession of the premises on the expiry of the last day of April 122 1957, since he being a statutory tenant had not paid rent since June 16, 1955. The respondant instituted a suit for ejectment, which was decreed, and an appeal to the High Court by the appellant was unsuccessful. On appeal by special leave, it was contended that the notice was invalid for under the law the notice must be to require the appellant to deliver possession on the expiry of the month of tenancy, that the tenancy was from the 16th of a month as the decree for ejectment against S was passed on June 16, 1955 and that this notice required the delivery of possession on the expiry of the last day of April. Held: The contention was untenable and rightly rejected by the High Court. The provisions of Sub section (2) of section 13 of the West Bengal Rent Control (Temporary Provisions) Act, 1950 only lay down that the sub tenant would become the tenant of the landlord if the tenancy in chief is determined, on the same terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the tenant had not been determined. This means that the terms and conditions of the tenancy between the erstwhile sub tenant and the landlord continue to be the same which were the terms and conditions of the sub tenancy. The period of monthly tenancy commencing from the first of the month and expiring on the last day of the month, was in no way affected by the provisions of Sub section (2) of section (13) whose effect was simply that the sub tenant instead of being sub tenant of the tenant who had been ejected, got a direct connection with the landlord and became his tenant in chief.

Appeal No. 514 of 1963. Appeal by special leave from the judgment Award dated August 21, 1962, of the Fourth Industrial Tribunal, West Bengal in Case No. VIII 332 of 1961. A.V. Viswanatha Sastri, D.N. Gupta, S.C. Mazumdar and B.N. Ghosh, for the appellant. D.L. Sen Gupta and Janardan Sharma, for the respondents. November 29, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The industrial dispute between the appellant, Mcleod & Company Ltd., and the respondents, its workmen, which has given rise to the present appeal centered round two items of claim made by the respondents. The respondents claimed that they should be given cash allowance in lieu of the tiffin arrangements at present made by the appellant, and they urged that the practice started by the appellant of re employing retired persons should be discontinued. The Tribunal has granted the first claim and has directed that the clerical staff should be paid As. /8/ per day and the subordinate staff As. /6 ' per day on all working days in lieu of the tiffin arrangements which are at present made by the appellant. In regard to the second claim, the Tribunal has ordered that the appellant should stop the re employment of retired workmen in the category of clerks above 'C ' grade. In respect of the 570 subordinate staff as also in regard to the lowest grade clerks, the Tribunal thought it unnecessary to make any such direction. That is how the latter claim has been partially allowed. It is against this award that the appellant has come to this Court by special leave. The total number of employees in the employment of the appellant is about 453. 36 of them are officers; 90 are junior grade Assistants, while 196 are clerks and 131 belong to the subordinate staff. It is in regard to the last two categories of the appellant 's employees that the two items of dispute have reference in the present proceedings. It appears that in 1956 there was an industrial dispute between the parties, one of the items in dispute being the claim made by the respondents in respect of tiffin on working days. In those proceedings, however, the said claim was not pressed and the matter was left to the discretion of the appellant. After the award was published, the parties entered into direct negotiations in respect of the claim of tiffin allowance and according to the evidence of Mr. Mazumdar, the General Secreatry of the respondents ' Union, the management then assured the respondents that it would consider the quantum and value of free tiffin afterwards and a settlement was then reached. Accordingly, two cups of tea and two biscuits are given by the appellant to the clerical staff, whilst one cup of tea and one biscuit is given to the members of the subordinate staff. On Saturdays the same ration of tiffin is supplied to the clerks and the sub staff alike. In the present dispute, the respondents contended that the tiffin arrangements made by the appellant were unsatisfactory and they urged that a cash allowance should be given to them in that behalf. This claim has been allowed by the Tribunal. Mr. Sastri for the appellant contends that the Tribunal has erred in law in making an award in respect of the cash allowance for tiffin, because he argues that it is not obligatory on the part of the appellant to make any provision for the tiffin of its employees. Under the relevant 571 provisions of the Factories Act, a canteen had been started by the appellant, but there is no obligation on the appellant, either statutory or otherwise, for providing any further facility to the employees by way of giving them a cash allowance for tiffin. He also emphasised the fact that the wage structure which prevails in the appellant 's concern represents a fair wage structure and the dearness allowance is paid to the respondents according to the Bengal Chamber of Commerce Formula; the said formula takes care substantially of the rise in the cost of living from time to time. That is another reason on which Mr. Sastri relies in resisting the respondents ' claim for cash allowance in lieu of tiffin. Prima facie, there is some force in these contentions. But, on the other hand, the evidence shows that in the region as many as 31 comparable concerns are supplying free tiffin to their employees (Ext. 10). Besides, as we have already seen, the appellant has throughout been making provision for tiffin of its employees and, in fact, when after the award was pronounced in the proceedings of 1956 and this question was taken up for direct negotiations between the parties, the appellant agreed to consider the claim sympathetically and make a suitable provision in that behalf That is how the prevailing arrangements for tiffin came to be introduced. Under these circumstances, if the Tribunal took the view that the appellant was under an obligation to provide some cash allowance for tiffin to its employees, we do not see how we can interfere with it on the ground that the impugned decision is erroneous in law. The history of the relations between the parties coupled with the prevailing practice in the comparable concerns in the region strongly supports the view taken by the Tribunal that in the appellant 's concern it was an implied condition of service that in addition to the wages and dearness allowance, a provision for tiffin was an amenity to which the employees were entitled. That being so, we do not think that the appellant 's grievance against the direction in the award that 572 As. /8/ and As. /6/ per day should be paid respectively to the members of the clerical staff and the substaff on all working days, can be upheld. That takes us to the respondents ' claim that the practice of employing retired men should be stopped. Mr. Sastri contends that in acceding partially to the demand made by the respondents, the Tribunal has overlooked the fact that the re employment of retired persons was mainly inspired by humanitarian considerations. When it appeared to the appel lant that some employees who had retired found it difficult to maintain themselves and their families, the appellant sympathetically and generously considered their request for re employment and that is, the basis on which some of the re employments have been made. It may be conceded that some of the re employments may have been actuated by humanitarian motives and the appellant cannot, therefore, be blamed on that account; but there are some other factors in relation to this problem of re employment which cannot be ignored. It appears that as many as 6 persons have been re employed and the correspondence between the parties on this subject shows that the respondents felt that the policy adopted by the appellant in re employing the retired personnel was not based solely on humanitarian grounds. When the respondents had raised a dispute on this point in 1960, the State Government had refused to make a reference on the ground that only 4 cases of reemployment had been brought to its notice, and so, the problem did not call for any consideration at that stage. Thereafter, the respondents represented to the State Government that though the company gave assurances to its employees that re employment would not be resorted to on a liberal scale, those assurances were disregarded and the practice was being followed in many cases and that posed a serious problem to the respondents. Besides, it does appear that when retired persons are re employed, they are paid a much smaller salary for doing the same work than they were drawing before retirement. Take, 573 for instance, the case of Chandi Charan Banerjee. Before he retired, he was drawing a basic salary of Rs. 380 and dearness allowance. On his re employment, he got a consolidated salary of Rs. 250 without any dearness allowance. and that means that the re appointed employee was getting about half his former wages for doing the same work . This aspect of the matter introduces a serious infirmity in the, appellant 's case as it was presented before us by Mr. Sastri. If re employments are made on the basis of reduced salary, that really means that the appellant is introducing a wage structure in respect of the reemployed personnel which is definitely inferior to the wage structure devised for the employees of the appellant by the award , and that clearly cannot be permitted under industrial law. Besides, if senior persons are re employed after retirement, that is apt to retard or hamper the prospects of promotion to which the junior employees are entitled to look forward. It is in the light of these facts that the question posed by the respondents ' demand must be considered. Thus considered, we see no justification for Mr. Sastri 's grievance that the limited direction issued by the award is either improper or unjustified. The fact that the re employed persons have made an affidavit supporting the practice adopted by the appellant can have no material bearing in dealing with the point; in the very nature of things, the said re employed persons are bound to support the appellant. The result is, the appeal fails and is dismissed with cost. Appeal dismissed.

IN-Abs

The disputes between the appellant company and its workmen were referred to the Industrial Tribunal. The workmen claimed that (1) they should be given cash allowance in lieu of the tiffin :arrangements made by the company, and (2) the practice started ,by the company of re employing retired persons should be discontinued. The Tribunal directed : (1) the clerical staff should be paid As. /8/ per day and the subordinate staff As. /6/ per day on all working days, and (2) the company should stop the reemployment of retired workmen in the category of clerks above C grade. In respect of the subordinate staff as also in regard to the lower grade clerks, the Tribunal thought it unnecessary to make any such direction. The evidence showed that in the region 31 comparable concerns were supplying free tiffin to their employees and that the appellant company had been throughout making .provision for tiffin to its employees. It was also found that the policy adopted by the company of re employing the retired personnel was not based solely on humanitarian grounds and that when retired persons were re employed they were paid a much smaller salary for doing the same work than they were drawing before retirement. 569 Held:(i) Though under the provisions of the Factories Act there was no obligation on the company, either statutory or otherwise, for giving the workers a cash allowance for tiffin, the history of the relations between the parties coupled with the prevailing practice in the comparable concerns showed that it was an implied condition of service that in addition to the wages and dearness allowance a provision for tiffin was an amenity to which the employees were entitled, and that the decision of the Tribunal could not be interfered with. (ii) The limited direction issued by the Tribunal in respect of the re employment of retired persons was neither improper nor unjustified.

minal Appeal No. 143 of 1962. Appeal from the judgment and order dated December 2, 1961 of the Judicial Commissioner 's Court at Manipur in Criminal Revision No. 20 of 1961. B.K. Khanna and R.N. Sachthey, for the appellant. W.S. Barlingay, and A.G. Ratnaparkhi, for the respondent. November 29, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question of law which arises in this appeal relates to the construction of cl. 3(2) of the Manipur Foodgrains Dealers Licensing Order, 1958. This question arises in this way. The respondent was charged with having committed an offernce punishable under section 7 of the in that on February 9 , 1960, he was found storing 178 Mds. of paddy in his godown without any licence in violation of cl. 3 of the said Order. The case against the respondent was that on February 9, 1960, his godown was searched and 178 Mds. of paddy was found stored in it. This fact was not denied by the respondent though he pleaded that the paddy which was found in his godown was meant for the consumption of the members of his family who numbered fifteen. He also pleaded that out of the stock found in his godown 40 Mds. of paddy belonged to Lalito Singh, his relation. The learned Sub Divisional Magistrate, Bishanpur, who tried the case of the respondent did not believe his statement that the stock was meant for the consump 576 tion of the members of his family. He, however, believed the evidence of Lalito Singh that. 40 Mds. out of the stock belonged to him, and so he passed an order directing that out of the stock which had been attached 40 Mds. should be released in favour of Lalito Singh. In regard to the rest of the stock, conclusion the learned trial Magistrate came to the that as a result of the provisions contained in cl. 3(2) of the Order a presumption arose against the respondent and that presumption took his case under cl. 3(1) of the Order. That in turn attracted the provisions of cl. 7 of the Order and made the respondent liable under section 7 of the . On these findings the learned Magistrate convicted the respondent if the offence charged. He, however, held that it was not necessary to direct the forfeiture of the paddy and that the ends of Justice would be met if he was fined to Day Rs. 500/ in default to suffer rigorous imprisonment for three months. Against this Order the respondent preferred an appeal before the learned Sessions Judge at Manipur The learned Sessions Judge substantially agreed the view taken by the learned Magistrate. He believed the witnesses who had referred to the circumstances under which the paddy stored in the godown of the respondent was recovered, and he held that the respondent had been properly convicted under section 7 of the . The order of sentence also was confirmed. The respondent then moved the Judicial Commissioner, Manipur, by a Revision Application and his Revision Application succeeded. It appears that before the present Revision Application came on for hearing before the learned Judicial Commissioner he had examined the question of law in regard to the construction of clause 3(2) of the Order in a group of revision applications Nos. 7, 11 and 13 of 1961, and had pronounced his judgment on June 5, 1961. He had held in that judgment that the effect of the presumption which can be legitimately raised under cl. 3(2) is not that the person against whom the said 577 presumption has been drawn is a dealer in respect of the said goods; and so, merely on the strength of the said presumption, clause 3(1) cannot be attracted; following his earlier decision the learned Judicial Commissioner allowed the respondent 's Revision Application and set aside the order of conviction and sentence passed against him. It is against this order that the Manipur Administration has come to this Court by special leave, and on behalf of the appellant Mr. B.K. Khanna has contended that the view taken by the learned Judicial Commissioner is based on a misconstruction of cl. 3(2) of the Order. That is how the only question which falls for our decision in the present appeal is in regard to the construction of the said clause. At this stage, it would be convenient to refer to the relevant provisions of the Order. Clause 2(a) defines a dealer as meaning a person engaged in the business of purchase, sale or storage for sale, of any one or more of the foodgrains in quantity of one hundred maunds or more at any one time. Clause 2(b) defines foodgrains as any one or more of the foodgrains specified in the Order including products of such foodgrains other than husk and bran. It is common ground that paddy is one of the foodgrains specified in Schedule 1. Clause 3 with which we are directly concerned in this appeal reads thus: "(1) No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority; (2) For the purpose of this clause, any person who stores any foodgrains in quantity of one hundred maunds or more at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale. " Clause 7 provides that no holder of a licence issued under this Order shall contravene any of the terms and conditions of the licence, and if he has been 1 SCI/64 37 578 found to have contravened them his licence is liable to be cancelled or suspended. These are the main provisions with which we are concerned in the present appeal. In dealing with the point raised by Mr. Khanna before us, it is necessary to bear in mind that clause 3 in question ultimately imposes a penalty on the offender and as such, it is in the nature of a penal clause. Therefore, it is necessary that it must be strictly construed. There is no doubt, as Mr. Khanna has contended, that if cl. 3(2) which is in the nature of a deeming provision provides for a fiction, we ought to draw the fiction to the maximum extent legitimately permissible under the words of the clause. Mr. Khanna contends that the effect of cl. 3 is that as soon as it is shown that the respondent had stored more than 100 mds. of paddy he must be deemed to have stored the said foodgrains for the purpose of sale; and his argument is that in drawing a statutory presumption under this clause, it is necessary to bear in mind that this presumption is drawn for the purpose of sub clause (1) of cl. 3. Therefore, it is urged that it would be defeating the purpose of cl. 3(2) if the view taken by the learned Judicial Commissioner is upheld, and the presumption raised under cl. 3(2) is not treated as sufficient to prove the charge against the respondent. In dealing with the question as to whether the respondent is guilty under section 7 of the , it is necessary to decide whether he can be said to be a dealer within the meaning of cl. 3 of the Order. A dealer has been defined by cl. 2(a) and that definition we have already noticed. The said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, 579 but that he must be carrying on the business of such purchase, sale, or storage, and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single, casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirement as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word 'business ' redundant and meaningless. It has been fairly conceded before us by Mr. Khanna that the requirement that the transaction must be of 100 mds. or more at any one time governs all classes of dealings with the commodities specified in the definition. Whether it is a purchase or sale or storage at any one time it must be of 100 mds. or more. In other words, there is no dispute before us that retail transactions of less than 100 mds. of the prescribed commodities are outside the purview of the definition of a dealer. The forms prescribed by the Order support the same conclusion. The form for making an application for licence shows that one of the cloumns which the applicant has to fill requires him to state how long the applicant has been trading in foodgrains, and another column requires him to state the place or places of his business. Similarly, Form B which prescribes the licence shows that the licence authorises the licence holder to purchase, sell or store for sale, the foodgrains specified in the licence, and clause 2 of the licence says that the licensee shall carry on the aforesaid business at the place indicated in the licence. Similarly, Form C which pertains to stocks shows that the particulars of the godown where stocks are held have to be indicated and the quantity sold and delivered as well as the quantity sold but not delivered have to be separately described. These Forms, therefore, support the conclusion that a dealer who comes within the definition prescribed by clause 2(a) should be carrying on the business of purchase, 580 sale or storage, and that would exclude solitary or single cases of sale, purchase or storage. Bearing in mind this necessery implication of the definition of the word "dealer". let us proceed to inquire whether the respondent 's case falls under cl. Clause 3(1) prohibits persons from carrying on business as dealers except under and in accordance with the terms of the licence issued to them. In other words, whoever wants to carry on the business of a dealer must obtain a licence. There is no doubt that if a person carries on a business as described by cl 2(a) and does it without obtaining a licence as required by cl. 3(1), he would be guilty under section 7 of the . In this connection, cl. 3(2) raises a statutory presumption. It is no doubt a rebuttable presumption which is raised by this provision. If it is shown by a person with whom a storage of more than 100 mds. of one or the other of the prescribed foodgrains is found that the said storage was referrable to his personal needs or to some other legitimate cause unconnected with and distinct from the purpose of sale, the presumption would be rebutted, in case, of course, the expla nation given and proved by the person is accepted by the Court as reasonable and sufficient. What does this presumption amount to? It amounts to this and nothing more that the stock found with a given individual of 100 or more maunds of the specified foodgrains had been stored by him for the purpose of sale. Having reached this conclusion on the strength of the presumption, the prosecution would still have to show that the store of the foodgrains for the purpose of sale thus presumed was made by him for the purpose of carrying on the business of store of the said foodgrains. The element of business which is essential to attract the provisions of cl. 3(1) is thus not covered by the presumption raised under cl. That part of the case would still have to be proved by the prosecution by other independent evidence. It may be that this part of the case can be proved by the prosecution by showing 581 that store of 100 mds. or more of the foodgrains was found with the said person more than once. How many times it should be necessary to prove the discovery of such a store with the said person, is a matter which we need not decide in the present case. All that is necessary to be said in connection with the presumption under cl. 3(2) in this case is that after the presumption is raised under it, some evidence must be led which would justify the conclusion that, the store which was made for the purpose of sale was made by the person for the purpose of carrying on the business. Mr. Khanna contends that in construing the effect of cl. 3(2) we must remember that this clause makes direct reference to cl. 3(1), and that no doubt is true; but the fact that cl. 3(2) directly refers to cl. 3(1) does not help to widen the scope of the presumption which is allowed to be raised by it. The presumption would still be that the store is made for the purpose of sale, and that presumption would be drawn for the purpose of cl. That is the only effect of the relevant words in cl. 3(2) on which Mr. Khanna relies. Mr. Khanna then urges that if the Legislature had intended that after drawing the presumption about the storage for the purpose of sale, the prosecution should still have to cover some further ground and lead additional evidence to prove that the said store had been made for the purpose of business of storage, then the statutory presumption would really serve no useful purpose. There may be some force in this contention. But, on the other hand, in construing cl. 3(2), it would not be open to the Court to add any words to the said provision; and in fact as we have already indicated, the words reasonably construed cannot justify the raising of a presumption would take in the requirement as to business which is one ingredient of the definition of a dealer. There,,fore, we do not think that the argument urged by Mr. Khanna about the general policy underlying cl. 3(2) can assist his contention in view of the plain words used by cl 3(2) itself. 582 It appears that cl. 3(2) may have been deliberately worded so as to raise a limited presumption in order to exclude cases of cultivators who may on occasions be in possession of more than 100 mds. of foodgrains grown in their fields. If a cultivator produces more than 100 mds. in his fields or otherwise comes into possession of such quantity of foodgrains once in a year and casually sells them or stores them, the Order apparently did not want to make such possession, sale or storage liable to be punished under cl. 3(1) read with section 7 of the . However that may be, having regard to the words used in cl. 3(2), we are unable to hold that the Judicial Commissioner was wrong in coming to the conclusion that cl. 3(2) by itself would not sustain the prosecution case that the respondent is a dealer under cl. 3(1); and that inevitably means that the charge under section 7 of the is not proved against him. That being so, we must hold that the order of acquittal passed by the Judicial Commissioner is right. The appeal accordingly fails and is dismissed. Appeal dismissed.

IN-Abs

The respondent was found storing over 100 mds. of paddy in his godown without any licence in violation of cl. 3 of the Manipur Foodgrains Dealers Licensing Order. He was charged with having committed an offence under section 7 of the Essential Commodities Act. The respondent 's main defence was that the paddy was meant for the consumption of the members of his family, which was disbelieved by the Trial Magistrate. The Trial Magistrate held that as a result of the provisions contained in cl. 3(2) of the Order a presumption arose against the respondent, taking his case under cl. 3(1) of the Order, which in turn attracted the provisions of cl. 7 of the Order and made the respondent liable under, section 7 of the Essential Commodities Act. On these findings the Magistrate convicted the respondent under section 7 of the Act. An appeal by the respondent to the Sessions Judge was dismissed. The respondent then filed a Revision Application to the Judicial Commissioner, which succeeded. The Judicial Commissioner held that the effect of the presumption which can be legitimately raised under cl. 13(2) of the Order is not that the person against whom the said presumption has been drawn is a dealer in respect of the said goods; and so, merely oil the strength of the said presumption, cl. 3(1) of the Order cannot be attracted. In appeal by special leave, Held: (i) Under cl. 2(a) of the Order before a person can be said to be a dealer, it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule and that sale must be in quantity of 100 minds. or more at any one time; the concept of business in the context must necessarily postulate continuity of transactions. A single, casual or solitary transaction of sale. purchase or storage would not make a person a dealer. (ii) Cl. 3(2) raises a statutory presumption that the stock of 100 mds. or more of specified goods found with ail individual, had been stored by him for the purpose of sale. After the presumption is raised under cl. 3(2), some evidence must be led which would justify the conclusion that the store which was made for the purpose of sale was made by the person for the purpose of carrying on the business. The element of business which is essential to attract the provisions of el. 3(1) is not covered by the presumption raised under cl. 575 (iii)Cl. 3(2) may have been deliberately worded so as to raise a limited presumption in order to exclude cultivators who may on occasions be in possession of more than 100 mds. of foodgrains grown in their fields; the Order, apparently did. not want to make such possession, sale or storage liable to be punished under cl. 3(1) read with section 7 of the Essential Commodities Act.

Appeals Nos. 26, 27 and 30 to 36 of 1952. These were appeals under article 132 (1) of the Constitution from the Judgment and Order dated 10th January, 1952, of the Travancore, Cochin High Court in Original Petitions Nos. 5, 19, 34, 35, 71, 83, 88, 89 and 90 of 1951, quashing the assessments severally made on the respondents in each appeal under the Travancore Cochin General Sales Tax Act, 1124 M. E. The respondents who were assessed under the Travancore General Sales Tax Act which came into force in March, 1949, claimed exemption from sales tax in respect of the purchases made by them after the Constitution of 1950 came into force till the end of the accounting year 1950 on the ground that under article 286 (1) (b) the State had no power to levy tax on such purchases. The sales tax authorities having rejected the claim the respondents applied to the High Court under article 226 and the High Court quashed the assessments so far as they related to the said period. The State preferred the present appeals. These appeals were heard in part with certain other appeals in September and October, 1952, but as it was found that the material facts had not been clearly ascertained by the High Court the cases were remitted to the High Court for further enquiry and findings. The connected appeals were disposed of on the 16th of October, 1952, and the judgment is reported as the State of Travancore Cochin vs The Bombay Co. Ltd. ([1952] S.C.R. 1112). The hearing of these appeals was continued after the High Court had returned the record With its findings. 57 T. N. Subrahmanya Iyer, Advocate General of Travancore Cochin State (T. R. Balakrishna Iyer, with him) for the appellants. M. K. Nambiyar (N. Palpu, with him) for the respondents in Civil Appeals Nos. 26, 27 and 30 to 36. M. C. Setalvad, Attorney General for India and C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with them) for the Union of India. V. K. T. Chari, Advocate General of Madras (V. V. Raghavan, with him) for the State of Madras. V. Rajaram Iyer, Advocate General of Hyderabad (B. N. Sastri, with him) for the State of Hyderabad. section M. Sikri, Advocate General of Punjab (M. L.Sethi,with him) for the State of Punjab. A. R. Somanatha Iyer, Advocate General of Mysore (R. Ganapathy Iyer, with him) for the State of Mysore. K. B. Asthana for the State of Uttar Pradesh. (States of Bombay and Orissa were not represented.) 1953. May 8. The judgment of the Chief Justice and Mukherjea, Vivian Bose and Ghulam Hasan JJ. was delivered by the Chief Justice. section R. Das J. delivered a separate judgment. PATANJALI SASTRI C. J. These are appeals from an order of the High Court of Travancore Cochin quashing the assessments severally made on the respondents in each appeal under the Travancore Cochin General Sales Tax Act, 1124 M. E. (Act No. XVIII of 1124 M. E.) (hereinafter referred to as the Act). The Act provided by section 3 for the levy of a tax on the total turnover of every dealer for each year. " Turnover " is the aggregate amount for which goods are either bought or sold by a " dealer" [section 2(d)], who is a person carrying on the business of buying and selling goods [section 2 (d) ]. " Sale", with all its grammatical variations and cognate expressions, is defined as meaning, among other things, every transfer 8 58 of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration [section 2(h)]. The sale or purchase is to be deemed to have taken place in the State, wherever the contract might have been made, if the goods were actually in the State when the contract was made or, if the goods are actually produced in the State, at any time after the contract in respect thereof was made. By section 3 (4) the turnover is to be determined in accordance with such rules as may be prescribed, and rule 4 of the rules framed under the Act prescribes that, in the case of certain goods including " cashew and its kernel", the gross turnover of a dealer is the amount for which the goods were bought by him, and in all other cases the amount for which the goods were sold by him. The respondents are dealers in cashew nuts in the State, and their business consists in importing raw cashew nuts from abroad and the neighbouring districts in the State of Madras in addition to purchases made in the local market, and, after converting them by means of certain processes into edible kernels, exporting the kernels to other countries, mainly America. The oil pressed from the shells removed from the cashewnuts was also exported. The Constitution having come into force on January 26, 1950, the respondent in each appeal claimed exemption under article 286 (1) (b) in respect of the purchases made from that date till May 29, 1950, the end of the account year. The sales tax authorities having rejected the claim, the respondents applied to the High Court under article 226, and that court upheld the claim and quashed the assessments in so far as they related to the said period. The State has preferred the appeals. The appeals were heard in part along with certain other appeals from the same order, and as it was found that the material facts relating to the course of business of the respondents in the present appeals had not been clearly ascertained, these appeals were remitted to the High Court for further enquiry and 59 findings in regard to those matters. The connected appeals, however, in which the materials on record were found sufficient for their disposal were finally decided, and the decision is reported in The State of Travancore Cochin vs The Bombay Co. Ltd. (1) (hereinafter referred to as the previous decision). Before considering how far the cashew nut purchases made by the respondents are, on the findings returned by the High Court, entitled to the protection of article 286(1)(b), it is necessary first to ascertain the scope of such protection. That clause, so far as it is material here, reads thus: 286. (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) * * * * * * (b)in the course of the import of the goods into, or export of the goods out of, the territory of India. In the previous decision this Court referred to four different views then adumbrated in the course of the argument as to the meaning and scope of the said sub clause as follows: (1) The exemption is limited to sales by export and purchases by import, that is to say, those sales and purchases which occasion the export or import, as the case may be, and extends to no other transactions however directly or immediately connected, in intention or purpose, with such sales or purchases, and wheresoever the property in the goods may pass to the buyer. (2) In addition to the sales and purchases of the kind described above, the exemption covers the last purchase by the exporter and the first sale by the importer if any, so directly and proximately connected with the export sale or import purchase as to form part of the same transaction. (3) The exemption covers only those sales and purchases under which the property in the goods concerned is transferred from the seller to the buyer during (1) ; 60 the transit, that is, after the goods begin to move and before they reach their foreign destination. (4) The view which found favour with the learned Judges of the High Court, namely, "the clause is not restricted to the point of time at which goods are imported into or exported from India; the series of transactions which necessarily precede export or import of goods will come within the purview of this clause. " This Court, however, found it unnecessary for the purpose of the cases then before it to go any further than to hold that " whatever else may or may not fall within article 286 (1) (b), sales and purchases which themselves occasion the export or import of the goods, as the case may be, out of or into the territory of India come within the exemption" and that the third view set out above, which was put forward on behalf of the State of Bombay and which seeks to limit the operation of the clause exclusively to sales and purchases effected during the transit of the goods, was too narrow and could not be accepted. It may be mentioned at once, to clear the ground, that if the Bombay view was considered to be too narrow, the view expressed by the Court below cannot but be regarded as too wide. This, indeed, was recognised by learned counsel who appeared in the cases, none of whom made any serious attempt to support it. Nor was any question raised or argument advanced as to the scope and effect of clause (2) of article 286, for, although the respondents in two of these appeals(1) purchased cashew nuts in the adjoining districts of the State of Madras during the period in question, it was not disputed that such purchases unless they were exempt under article 286(1)(a), would fall within the explanation to clause (1) (a) as interpreted in the majority decision ', of this court in the recent case of The State of Bombay vs United Motors (India) Ltd. (2), or under the Sales Tax Continuance Order, 1950 (C. O. No. 7 of 1950), issued by the President on January 26, 1950, in exercise of the powers conferred by the proviso to clause (2) of article 286, and would, in either case, be taxable. (1) Civil Appeals Nos. 33 and 36 of 1952, (2) [1953] S.C.R. 1069. 61 With reference to the aforesaid decision, it may be mentioned in passing that in order to remedy what was felt to be the unsatisfactory position in regard to the levy of tax by the States in America on sales in interstate commerce, the North Carolina Department of Revenue proposed that Congress should pass legislation authorising the States to tax certain sales in interstate commerce. The proposed bill ran thus: " That all taxes levied by any State upon sales of property or measured by sales of property may be levied upon or measured by sales of property in inter state commerce by the state into which the property is moved for use or consumption therein, in the same manner and to the same extent that said taxes are levied upon or measured by sales of property not in inter state commerce. Provided: that no State shall discriminate against sales of property in inter state commerce; nor shall any state discriminate against the sale of the products of any other state. Provided, further: that no state shall tax the sale in inter state commerce of property transported for the purpose of resale by the consignee as a merchant or as a manufacturer. Provided, further: that no county, city, or town, or other subdivision of any State shall levy a tax upon or measure any tax by sales of property in interstate commerce"(1). It is interesting to note that the bill sought to bring about substantially the same result as the combined operation of article 286 clause (1) (a) explanation, clause (2) and article 304 as they were interpreted by the majority in that decision would produce. It is possible that these provisions of our Constitution were inspired by the proposed bill. The only question debated before us was whether in addition to the export sale and import purchase, which were held in the previous decision to be covered by the exemption under clause (1) (b), the following two categories of sale or purchase would also fall within the, scope of that exemption: (2) See Selected Essays on Constitutional Law, Vol. I, Book V, P. 367 published by the Association of American Law Schools, 1938. 62 (1) The last purchase of goods made by the exporter for the purpose of exporting them to implement orders already received from a foreign buyer or expected to be received subsequently in the course of business, and the first sale by the importer to fulfil orders pursuant to which the goods were imported or orders expected to be received after the import. (2) Sales or purchases of goods effected within the State by transfer of shipping documents while the goods are in the course of transit. As regards the first mentioned category, we are of opinion that the transactions are not within the protection of clause (1) (b) What is exempted under the clause is the sale or purchase of goods taking place in the course of the import of the goods into or export of the goods out of the territory of India. It is obvious that the words "import into" and "export out of" in this context do not refer to the article or commodity imported or exported. The reference to "the goods" and to "the territory of India" make it clear that the words "export out of" and "import into" mean the exportation out of the country and importation into the country respectively. The word "course" etymologically denotes movement from one point to another, and the expression "in the course of" not only implies a period of time during which the movement is in progress but postulates also a connected relation. For instance, it has been held that the words "debts due to the bankrupt in the course of his trade" in section 15(5) of the English Bankruptcy Act, 1869, do not extend to all debts due to the bankrupt during the period of his trading but include only debts connected with the trade [see In re, Pryce, ex parte Rensburg(1).] A sale in the course of export out of the country should similarly be understood in the context of clause (1)(b) as meaning a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. The time (1) and Williams on Bankruptcy, 16th Edn., p. 307. 63 factor alone is not determinative. The previous decision proceeded on this view and emphasised the integral relation between the two where the contract of sale itself occasioned the export as the ground for holding that such a sale was one taking place in the course of export. It is, however, contended that on this principle of connected or integrated activities a purchase for the purpose of export must be regarded as covered by the exemption under clause (1) (b). We are unable to agree. The phrase "integrated activities" was used in the previous decision to denote that "such a sale" (i.e., a sale which occasions the export) "cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction. " It is in that sense that the two activities the sale and the export were said to be integrated. A purchase for the purpose of export like production or manufacture for export, is only an act preparatory to export and cannot, in our opinion, be regarded as an act done "in the course of the export of the goods out of the territory of India", anymore than the other two activities can be so regarded. As point ed out by a recent writer "From the legal point of view it is essential to distinguish the contract of sale which has as its object the exportation of goods from this country from other contracts of sale relating to the same goods, but not being the direct and immediate cause for the shipment of the goods. When a merchant shipper in the United Kingdom buys for the purpose of export goods from a manufacturer in the same country the contract of sale is a home transaction; but when he resells these goods to a buyer abroad that contract of sale has to be classified as an export transaction"(1). This passage shows that, in view of the distinct character and quality of the two transactions, it is not correct to speak of a purchase for export as an activity so integrated with the exportation that the former could be regarded as done "in the course of " the latter. The same reasoning applies to the first (1) Schmittoff Export Trade, 2nd Edn., P. 3. 64 sale after import which is a distinct local transaction effected after the importation of the goods into the country has been completed, and having no integral relation with it. Any attempt therefore to invoke the authority of the previous decision in support of the suggested extension of the protection of clause (1)(b) 'to the last purchase for the purpose of export and the first sale after import on the ground of integrated activities must fail. Nor is it correct to say that it is necessary to extend the exemption to these transactions to avoid double taxation. It is true that in the previous decision it was indicated that the object underlying the exemption was the avoidance of double taxation on the foreign trade of this country which is of great importance to the nation 's economy. But the double taxation sought to be avoided consisted in the imposition of export duty by the Central Government and the imposition of sales tax by the State Government on the same transaction in its different aspects as an export and a sale. Such double taxation is already avoided by our holding that the export sale and the import purchase are exempt under clause (b) from the levy of sales tax by the State. The foreign trade of this country thus already enjoys immunity from double tax burden and suffers only one tax, namely, the export or import duty as the case may be. The claim now made for extension of the exemption under clause (1)(b) in the name of avoiding double taxation cannot be supported. Not the least among the reasons for rejecting the view that the last purchase for the purpose of export and the first sale after import are also within clause (1) (b) is the practical difficulty in giving effect to the exemption in regard to these transactions, having regard to the general pattern of sale tax legislation in this country of which our constitution makers must have been well aware. The tax is usually levied on the annual turnover of the seller who is allowed under certain conditions to pass it on to the buyer by adding it to the price charged for the goods at each individual sale. Supposing A is the seller from whom 65 B the export merchant purchases the goods for export. If the sale is to be exempt, how is A to be satisfied that the goods would actually be exported subsequently? And even if they were, it must be difficult for A to prove to the Sales Tax Officer that they were so exported by B if proof was required. On the other hand, B might be keeping the goods, waiting for orders to come, or might change his mind and not export the goods at all but sell them locally. In that case, what would be the position of A vis a vis the Sales Tax Officer demanding the tax ? Could A escape liability, if he failed to collect the tax from B at the time of the sale ? Or is A to collect the tax, ignoring B 's declaration of his intention to export and leaving him to apply for refund by producing evidence of actual export, whenever that takes place? Even if a sales tax enactment provides for adjustment on those lines, would not such legislation, in so far as it compels B to suffer the tax until he actually exports the goods, contravene clause (1)(b) which ex hypothesi exempts the transaction from sales tax? And what would be the position if the goods were burnt or otherwise lost in the meanwhile, and the export never took place? Athough, as pointed out in the previous decision, American cases are not of much assistance in interpreting article 286 because of the different wording of the import export clause of the Federal Constitution, it is interesting to see that such uncertainties led the American courts to lay down the rule that "It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.": Empresa Siderurgica, section A. vs Merced(1). Similar difficulties and uncertainties are encountered in bringing within the exemption the first sale after import. How is the exemption to be applied to the (1) ; 9 66 goods imported from abroad after they are mingled with other goods and lose their distinctive character as imports? Here again, the American courts, with their practical approach to such problems, have evolved the doctrine of "original or unopened package" that is to say, the rule that the first sale of imported goods will 'be exempt from State taxation provided only such sale is made in the original packages in which the goods have arrived. Any sale of such goods made after the package is opened does not enjoy such exemption. Are we to import the same doctrine here to make the exemption workable ? Even in America, as pointed out in Balsara 's case(1), difficulties arose from time to time in applying the doctrine as "sometimes very intricate questions arose before the courts such as whether the doctrine applied to the larger cases only or to the smaller packages contained therein or whether it applied to smaller paper packages of cigarettes taken from loose files of packages at the factory and transported in baskets. " Hence this court has unanimously decided that "the doctrine has no place in this country" following the lead of Gwyer C. J. in the earlier case of Boddu Paidanna(2). It was said that clause (1) (b) should be construed in the light of the constitutional purpose and the commercial background and reference was made to the manner in which a large proportion of the export trade of the country was carried on by merchant houses who purchased goods from the producers and manufacturers to resell them to buyers abroad by means of contracts concluded with them. Similarly with regard to import trade, large import houses imported machinery and consumer goods wholesale and sold them to retail dealers or, in some cases, to the customers direct. This practice, it was argued, must have been well known to the makers of our Constitution, and it was reasonable to assume that they realised the importance of the foreign trade to the well being of the country and would not have desired to cripple the same by allowing the States to (1) ; , 699. (2) 67 tax such purchases and sales by the export and import merchants in this country. Such general considerations based largely on speculation are not of much assistance in construing the scope and effect of a specific constitutional provision seeking to restrict the power of State taxation. It is true, as pointed out in the previous decision, that the export import trade is important to our national economy, but it is no less true that the State power of taxation is essential for carrying on its administration, and it must be as much the constitutional purpose to protect the one as not unduly to curtail the other. The question really is, how far did the constitution makers want to go in protecting the foreign trade by restricting the power of taxing sales or purchases of goods which they conferred on the States under entry 54 of List II. The problem before them was one of balancing and reconciling the rival claims of foreign trade in the interests of our national economy and of the State 's power of taxation in the interests of the expanding social welfare needs of the people committed to its charge, and we have their solution as expressed in the terms of clause (1) (b). It is for the court to interpret the true meaning and scope of those terms without assuming that the one constitutional purpose was regarded as more important than the other. This court has already held in the previous decision that clause (1) (b) protects the export import trade of this country from double taxation by prohibiting the imposition of sales tax by the State on export sales and import purchases, and we find no warrant in the language employed to extend the protection to cover the last purchase before export or the first sale after import. As regards sales or purchases effected in the State by transfer of shipping (c.i.f.) documents while the goods are still in transit, we have already observed that the words "in the course of" imply a movement or progress and, therefore, a beginning and an end of such movement or progress. As clause (1) (b) is concerned only with exempting certain sales or purchases from taxation by the States in this country, it is 68 sufficient to determine where the course of export begins and where the course of import ends. In this connection, it is useful to remember that the power to make laws with respect to duties of customs including export duties (entry 83 of List I) and also with respect to import and export across customs frontiers and the 'definition of customs frontiers (entry 41 of List 1) is vested exclusively in the Central Legislature, and detailed provisions have been made in the Indian , for the levy of customs duties by the officers of the Central Government who are stationed along customs frontiers as defined by the Central Government where, after appraising the goods exported or imported, the duties chargeable, if any, are computed and levied, and it is not until this process is completed that the goods can be shipped for transportation or cleared by the consignee or his representatives as the, case may be. It would seem, therefore, logical to hold that the course of the export out of, or of the import into, the territory of India does not commence or terminate until the goods cross the customs barrier. It is, however, to be noted that the question of imposing sales tax on transfer of goods in the course of export would not often arise in practice for, where the goods are transported pursuant to a contract of sale already concluded with a foreign buyer and the shipping documents have been forwarded to him, any further sale of such goods by the Indian seller is impossible, and where the export trade is conducted through representatives or branch offices, the sale by the latter of the exported goods usually takes place abroad and would not then be subjected to tax by the State in India. It is in relation to import of goods from abroad that the question of exemption assumes practical importance. It is well known that sales or purchases by transfer of shipping documents while the goods are in transit are a characteristic feature of foreign trade and as they take place in the course of import as defined above, and are regarded commercially as incident to the import transaction, they fall within the terms of clause (1) (b) and would be entitled, in our view, to the protection of that 69 clause, if the State is constitutionally competent to tax such sales, as to which we express no opinion. Our conclusions may be summed up as follows (1) Sales by export and purchases by import fall within the exemption under article 286 (1) (b). This was held in the previous decision. (2) Purchases in the State by the exporter for the purpose of export as well as sales in the State by the importer after the goods have crossed the customs barrier are not within the exemption. (3)Sales in the State by the exporter or importer by transfer of shipping documents while the goods are beyond the customs barrier are within the exemption, assuming that the State power of taxation extends to such transactions. It remains to consider in the light of the foregoing discussion how far the cashew nut purchases made by the respondents are within the exemption under article 286. It will be recalled that these purchases fell into three groups: I. Purchases made in the local market, II. Purchases from the neighbouring districts of the State of Madras, and III. Imports from Africa. As regards Group 1, the High Court finds that the purchases of raw nuts whether African or Indian are all made with the object of exporting their kernels" though there were some negligible sales in the local market of what are called " factory rejects". The High Court further finds that the bulk of the kernels were in fact exported by the respondents themselves, a small quantity being sold by the respondents to other exporters who also subsequently exported the same. Thus, on the whole, respondents could be said to have purchased the raw nuts for the purpose of exporting the kernels and to have actually exported them. But, it will be seen, the purchases are not covered by the exemption on the construction we have placed on clause (1) (b), even if the difference between the, raw materials purchased and the manufactured 70 goods (kernels) exported is to be ignored. It may, however, be mentioned here that the High Court has found that the raw cashew nuts and the kernels manufactured out of them by various processes, partly mechanical and partly manual, are not commercially the same commodity. This finding, which is not seriously disputed before us, would be an additional ground for rejecting the claim to exemption in respect of these purchases, as the language of clause (1) (b) clearly requires as a condition of the exemption that the export must be of the goods whose sale or purchase took place in the course of export. As regards Group 11, the High Court has found that such purchases were made only by the respondents in Civil Appeals Nos. 33 and 36 of 1952. The High Court 's finding as to how these purchases and the deliveries under them were effected is by no means clear. The respondent 's contention was that the purchases were effected and the deliveries taken by their own paid servants outside the State of Travancore Cochin, and it was thus a case of a person buying goods and taking delivery thereof outside the State and bringing them across the border after the transaction was completed in all respects outside the State. On the other hand, the contention on behalf of the State was that though the purchases were made outside the State in the neighbouring districts of Madras, deliveries were effected through the ordinary commercial channels by employing commission agents who made the purchases and arranged for the deliveries at the respondents ' depots at Trichur or Quilon. All that can be said here is that, if the transactions took place in the manner alleged by the respondents in these two appeals, they would be exempt under clause (1) (a). This indeed was not disputed by the Advocate General of the, appellant State. On the other hand, if, as claimed by the Advocate General, the purchases were effected by the employment of firms doing business as commission agents outside the State, and the deliveries were made through normal commercial channels, the transactions would partake of an inter State character and fall under clause (2). In that case, it would be un 71 necessary to inquire further whether they would be covered by the explanation to clause (1)(a), as they would be clearly taxable under the President 's Order (C. O . No. 7 of 1950) to which reference has been made already, as it was admitted that sales tax was validly levied on such purchases before the commencement of the Constitution. As the taxability of such purchase,, on either view of the facts was not disputed, no arguments were addressed to us on the scope of clause (2) and the explanation to clause (1)(a), as has, been stated. Group III may be sub divided into two categories according to the findings of the high Court: (a) purchases made through intermediaries called in these proceedings as"the Bombay party" doing business as commission agents at Bombay, who acted as agents for the respondents charging commission. The dealings are thus described by the High Court: "The goods are purchased when they are in the high seas and shipped from the African port to Cochin or Quilon. Goods are never landed at Bombay. The Bombay party only arranges for purchases on behalf of the assessees, gets delivery of the shipping documents on payment at Bombay through a bank which advances money against the shipping documents and collects the same from the assessees at destination", and (b) the Bombay party indented the goods on their own account and sold the goods as principals to the respondents and other customers; but the goods were shipped direct to Cochin or Quilon on c. i. f. terms. The shipping documents were made out in the name of the Bombay party as consignees and were delivered to them against payment through bankers at Bombay. The Bombay party cleared the goods through their own representatives at the port of destination and issued separate delivery orders to the respondents and other customers for the respective quantities ordered. It will be seen that in respect of the purchases falling under (a), the Bombay party acted merely as the agents of the respondents, privity being established between the latter and the African sellers. The purchases are 72 thus purchases which occasioned the import, and therefore come within the exemption. As regards (b), the Bombay party are the purchasers, and they sell the goods as principals to the respondents at the port of destination by issuing separate delivery orders against payment. No privity being established between the respondents and the African sellers, the respondents ' purchases can only be described as purchases from the Bombay party of the goods within the State; in other words, they were local purchases and stand on the same footing as purchases falling under Group I above, and for the same reasons they do not come within the exemption. It would appear that the cashew nuts sold and exported to the American buyers were packed in tins placed in wooden boxes. The sales tax authorities have included the value of these packing materials in addition to the value of the kernels in computing the turnover of the respondents for purposes of assessment. It was urged that such inclusion was inadmissible inasmuch as these articles could not be regarded as separate articles of, sale apart from the kernels which are packed therein, and that even if they were to be so regarded, their sale to the American buyers was a sale which occasioned the export just as much as the sale of the kernels. The latter contention must prevail in view of the previous decision, and no sales tax can be levied in respect of these articles. In the result, the decison of the High Court quashing the assessments in question is affirmed but the cases will go back to the Sales Tax Officer concerned in the respective appeals for making fresh assessments according to law and in the light of this judgment. Each party will bear its own costs throughout. DAS J. This and eight other appeals have been filed by the State of Travancore Cochin against the judgment and order of the High Court of that State dated the 10th January, 1952, quashing the orders of assessment of sales tax made against the respondents respectively by the Sales Tax Officer and upheld on appeal by the Assistant Commissioner. These appeal* 73 were heard together immediately after the hearing of C.A. No. 204 of 1952 [The State of Bombay vs The United Motors (India) Ltd. & Others(1)] bad been concluded and judgment had been reserved by another Constitution Bench. The question of construction of article 286 of the Constitution which is involved in the present appeals was also raised in the Bombay appeal. That Constitution Bench has since delivered judgments in that appeal. The majority of that Bench have put upon clause (1)(a), the Explanation thereto and clause (2) of that article a meaning which, in spite of my pro found respect for their opinions, I am unable to accept as correct. It is again my misfortune that I am unable to agree to the interpretation my learned brethren are now seeking to place upon clause (1)(b) of that article. As the questions involved in these appeals are of very great importance and as the draft of this judgment was prepared before the judgments in the Bombay appeal had been delivered I consider it right to keep my views on record for whatever they may be worth. It is, however, needless for me to say that the majority decision in that Bombay appeal, so long as it stands, is binding on me. The respondents in each of these appeals carry on business in what is now the United State of Travancore Cochin. They buy raw cashew nuts locally and in neighbouring States and also import them from Africa and after putting them through a certain process they obtain cashew nut oil and edible cashew nut kernels. They export the edible kernels to foreign countries in large quantities. In compliance with the requirements of the relevant Sales Tax Act then in force the repondents filed returns in the prescribed forms of their respective turnovers for the period between the 17th August, 1949, and the 29th May, 1950. Each of the respondents claimed exemption from sales tax on their respective purchases made between the 26th January, 1950, when the Constitution came into force, and the 29th May, (1) ; 10 74 1950. The claim, however, was rejected by the Sales Tax Officer. On appeal the Assistant Commissioner upheld the assessment orders. The respondents appeal to the High Court. By its judgment dated the 10th January, 1952, the High Court accepted the appeals, quashed the assessment orders in so far as they included tax on the purchases made after the date of the Constitution and directed a refund of the tax overpaid. The State has now come up on appeal before us. As the questions involved in these appeals are of general importance and the other States as well as the Union of India are interested in the decision, notices were directed to be issued by this court to the Advocates General of all interested States and to the Attorney General for India. Many of these States as also the Union of India intervened and participated in the general discussion on the legal points involved in these appeals. After several days ' hearing before us in September and October, 1952, it was found that the parties were seriously at variance on several material facts and it was felt that the appeals could not be satisfactorily disposed of without proper findings on those facts. Accordingly on the 8th October, 1952, the appeals were remitted to the High Court with directions to investigate into the disputed facts under certain heads set forth in the annexure to the order of remand. The High Court has now returned the records with their findings and the appeals are before us again for final disposal. The assessments in question were made under the Travancore General Sales Tax Act, 1124 (Act XVIII of 1124). That Act came into force on the 7th March, 1949, and was, after the commencement of the Constitution, continued in force subject to the other provisions of the Constitution and it was in operation during the period of assessment. After the integration of Travancore and Cochin that Act was replaced by the United State of Travancore and Cochin General Sales Tax Act, 1125 (Act XI of 1125) but we are not concerned with the latter Act, for it came into force 75 on the 30th May, 1950, that is to say, immediately after the expiry of the period relevant for the purposes of these appeals. The relevant provisions of Act XVIII of 1124 have been summarised in the judgment just read by my Lord the Chief Justice and need not be set forth again. Suffice it to say that the rules framed under I the Act ' prescribed that in the case of cashew and its kernels the gross turnover of a dealer would be the amount for which those goods were purchased by him and, therefore, sales tax was payable on the purchase and not on the sale of cashew and its kernels. The respondents do not contend that it was not within the power of H.H. the Maharaja of Travancore to enact that law at the time he did so but they maintain that, as after the commencement of the Constitution Travancore Cochin became a Part B State and as such amenable to and bound by the Constitution, that law, in view of article 286, could no longer impose or authorise the imposition of any tax on their purchases of raw cashewnuts. This contention, therefore, raises important questions as to the extent of the power of the States under the Constitution to impose a tax on the sale or purchase of goods. In order, however, to correctly appreciate the meaning and import of the relevant provisions of the Constitution it will be helpful to bear in mind what the position was prior to the commencement of the Constitution. Under the Government of India Act, 1935, the Federal Legislature alone could make laws, under entry 19 in List I, with respect to import and export across customs frontiers as defined by the Federal Government and, under entry 44 of the same List, with respect to duties of custom including export duties. On the other hand the Provincial Legislatures alone could make laws, under entry 26 in List II, with respect to trade and commerce within the Province, under entry 29, with respect to production, supply and distribution of goods, under entry 48, with respect to taxes on the sale of goods and under entry 49, with respect to ' cesses on the entry of goods into a 76 local area for consumption, use or sale therein. Section 297 of that Act, however, prohibited the Provincial Legislature or Governments from imposing certain restrictions on internal trade and ended by saying that any law passed in contravention of that section would, to the extent of the contravention, be invalid. It should be noted that clause (a) of sub section (1) of that section was directly and expressly related to and constituted a restriction on the legislative power of the Province under entries 27 and 29 and not entry 48 in List II. That section obviously was inserted in that Act for the purpose of achieving, as far as possible, free trade within India by preventing the Provinces from checking or hampering the distribution of goods or from setting up barriers against internal trade in India regarded as one economic unit. Pursuant to the legislative power thus conferred on them the Provincial Legislatures enacted Sales Tax Acts for their respective Provinces. In enacting the Sales Tax Acts, the Provincial Legislatures, however, did not confine the operation of their legislation to sales or purchases which took place exclusively within their respective territories. Although in most of those Acts "sale" was first defined as meaning a transfer of the property in the goods, so as to make the passing of the property within the Province the principal basis for the imposition of the tax, yet by means of Explanations to that definition, they gave extended meanings to that word and thereby enlarged the scope of their operation. Thus some of those Acts purported to tax a sale or purchase irrespective of the place where it took place, if only the goods were within the Province at the time the contract for sale or purchase was made or the goods were produced or manufactured within the Province after the contract had been made. In short, if any one or more of the ingredients of sale, e.g. the contract, delivery, payment of price, or the passing of property etc., took place within a particular Province or the goods were produced or manufactured or otherwise found there that Province felt free to impose a tax on that transaction of sale or purchase 77 although all the other ingredients thereof took place outside that Province. The Indian States were not governed by the distribution of legislative powers contained in the Government of India Act, 1935, and were, therefore, generally free to make whatever laws they thought fit to make. They, however, enacted Sales Tax Acts on the model of the Sales Tax Acts of neighbouring Provinces in British India. Thus the Travancore Act XVIII of 1124 was substantially a reproduction of the Madras Sales Tax Act. The result of the imposition of tax on the sale or purchase of goods on the basis of a very slight connection or nexus between the sale or purchase and the taxing Provinces or States was that in some cases one single transaction of sale or purchase became liable to be taxed in different Provinces or States. This imposition of multiple taxes was certainly calculated to hamper and discourage free trade within India, which section 297 of the Government of India Act, 1935, was designed to achieve. This was the position immediately before the Constitution of India came into operation. Our Constitution makers were well aware of this evil. Articles 245 and 246 distribute legislative power between Parliament and the State Legislatures as per three Lists set forth in the Seventh Schedule to the Constitution. Thus Parliament alone is empowered to make laws, under entry 41 in the Union List, with respect to trade and commerce with foreign countries, under entry 42, with respect to inter State trade and commerce and under entry 83, with respect to duties of customs, including export duty. The State Legislatures, on the other hand, are alone authorised to make laws, under entry 26 in the State List with respect to trade and commerce within the State, under entry 27 with respect to production, supply and distribution of goods, under entry 52 with respect to taxes on the entry of goods into a local area for consumption, use or sale therein and under entry 54 with respect to taxes on sale or purchase of goods other than newspapers. 78 It may be mentioned in passing that in List I in the Seventh Schedule to the Government of India Act, 1935, there was no separate or specific entry corresponding to entry 42 in the Union List in the Seventh Schedule to the Constitution. This shows that our Constitution has deliberately assigned interState trade and commerce, like foreign trade, to the exclusive care of Parliament and, therefore, out of the .reach of the law making powers of the State Legis latures. Having thus distributed legislative powers between Parliament and the State Legislatures, article 265, which is in Part XII of the Constitution and headed "Finance, Property, Contracts and Suits" provides that no tax shall be levied or collected except by authority of law. Article 286, which is also in Part XII, imposes some restrictions on the legislative competency of the State Legislatures. That article runs as follows: " 286. Restrictions as to imposition of tax on the sale or purchase of goods. (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b) in the course of the import of the goods into or export of the goods out of, the territory of India. Explanation. For the purposes of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce: 79 Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions, of this clause, continue to be levied until the thirty first day of March, 1951. (3)No law made by the Legislature of a State imposing, or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. " In these appeals we are not concerned with sales or purchases of essential commodities and, therefore, nothing further need be said about clause (3). Leaving out that clause, the rest of the article, broadly speaking, enjoins that no State law shall impose or authorise the imposition of tax on sale or purchase of goods made (a) outside the State, (b) in the course of the import of the goods in to or the export of the goods out of India, (c) in the course of inter State trade and commerce. I may here mention that in the exercise of the powers conferred on him by the proviso to clause (2) of article 286 the President did, by the Sales Tax Continuance Order, 1950, direct that any tax on the sale or purchase of any goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution should, until the 31st March, 1951, continue to be levied notwithstanding that such imposition was contrary to the provisions of clause (2) of article 286. Quite apart from the marginal note to article 286, a cursory perusal of that article will show that its avowed purpose is to put a restriction on the power of the 80 State Legislatures to make a law imposing tax on the sale or purchase of goods under entry 54 in the State List. It may be recalled that the Provincial Legislatures purporting to act under entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, enacted Sales Tax Acts imposing tax on sales or purchases of goods on the basis of one or more of the ingredients of sale having some connection with the Province and that this practice resulted in the imposition of multiple taxes on a single transaction of sale or purchase thereby raising the price of the commodity concerned to the serious detriment to the consumer. That evil had to be curbed and that is what has been done by clause (1)(a) of article 286. It imposes a ban that no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place outside the State. This provision clearly indicates that in making it our Constitution proceeds on the footing that a sale or purchase has a location or situs. The explanation to clause (1)(a) then goes on to say that for the purpose of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has, by reason of such sale or purchase, passed in another State. The non obstante clause in the Expla nation also clearly implies that the framers of the Constitution adopted the view that a sale or purchase has a situs and further that it ordinarily takes place at the place where the property in the goods passes. The Explanation, however, provides that, in spite of such general law, a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State. In effect, therefore, the Constitution, by this Explanation to clause (1)(a), acknowledges that under the general law the sale or purchase of the kind therein 81 mentioned may not really take place in the delivery State, but nevertheless requires it to be treated as if it did. That is to say, the Explanation creates a legal fiction. Reference may be made to Income tax Commissioner, Bombay vs Bombay Trust Corporation(1) where Viscount Dunedin explains the meaning of a legal fiction. When a legal fiction is thus created, for what purpose, one is led to ask at once, is it so created? In In re Coal Economising Gas Company(2) the question arose as to whether under section 38 of the Companies Act, 1867, a shareholder could get his name removed from the register on the ground that the prospectus was fraudulent in that it did not disclose certain, facts, or whether his remedy was against the promoter only. James L.J. said at pages 188 9: " The Act says that an omission shall be deemed fraudulent. It provides that something which under the general law would not be fraudulent shall be deemed fraudulent and we are dealing with a case of that kind. Where the Legislature provides that something is to be deemed other than it is, we must be careful to see within what bounds and for what purpose it is to be so deemed. Now the Act does not say that the prospectus shall be deemed fraudulent simpliciter but that it shall be deemed fraudulent on the part of the person wilfully making the omission as against a shareholder having no notice of the matter omitted ; and I am of opinion that the true intent and meaning of that provision is to give a personal remedy against the wrongdoer in favour of the shareholder." So it was held that the fiction did not operate as against the company and there could, therefore, be no rectification of the register. Again, in Ex parte Walton(3), referring to section 23 of the English Bankruptcy Act, 1869, James L.J. said: "When a statute enacts that something shall be deemed to have been done, which in fact and in truth (1) [1929] L.R.57 I.A. 49 at P. 55. (3) [1881]. L.R. 17 Ch 756. (2) 82 was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. " The above observations were quoted with approval by Lord Cairns and Lord Blackburn in Arthur Hill vs The East and West India Dock Company(1). Lord Blackburn went on to add at page 458: "I think the words here 'shall be deemed to have surrendered. . . mean, shall be surrendered so far as is necessary to effectuate the purposes of the Act and no further;. . . ." In the case now before us, we have fortunately not to speculate as to the purpose for which the Explanation has introduced the fiction. It will be noticed that the Explanation does not say simpliciter that the sale or purchase is to be deemed to take place in the delivery State. By its opening words it expressly says that the sale or purchase is to be deemed to take place in the delivery State for the purposes of clause (1)(a). Therefore, the only effect of this assignment of a fictional location to a particular kind of sale or purchase in a particular State is to attract the ban of clause (1)(a) and to take away the taxing power of all other States in relation to such a sale or purchase even though the other ingredients which go towards the making up of a sale or purchase are to be found within these States or even if under the general law the property in the goods passes in any of those States. The purpose of the Explanation ends there and cannot be stretched or extended beyond that purpose. It is said by some of the Advocates General that a sale or purchase which falls within the Explanation is subject to the taxing power of the State in which the property in the goods passes under the general law as well as to the taxing power of the State in which, by virtue of the Explanation, the property in the goods is to be deemed to pass. On the other hand some of the other Advocates General contend that by virtue of the Explanation the latter State alone becomes entitled to tax such a sale or purchase. Both these contentions (1) [1884] L.R. 9 App. Cas 448, 83 appear to me to be founded on a misapprehension as to the real purpose of clause (1) (a) and the Explanation thereto. As I have already said, the only object of clause (1)(a) is to prevent the imposition of multiple taxes on a single sale or purchase and, therefore, it provides that no law of a State shall impose a tax on sale or purchase which takes place outside the State. Thus by one stroke the taxing power of all States outside whose territories the sale or purchase is, by the fiction, deemed, to take place is eliminated. To say that the effect of clause (1) (a) read in the light of the Explanation is to permit both States, namely, the State where the property passes under the general law as well as the State in which, by force of the Explanation, the sale or purchase is deemed to take place, to tax such sale or purchase is to stultify the very purpose of that clause, for, then it will fail to prevent the imposition of multiple taxes which it is obviously designed to prevent. It is quite clear also that clause(1)(a) in terms only takes away the taxing power of all States with respect to a sale or purchase which, by reason of the fiction introduced by the Explanation, is to be deemed to take place outside their respective territories. The purpose of the Explanation is only to explain the scope of clause (1)(a). By fictionally locating a sale or purchase in a particular State it, in effect, says that it takes place outside all other States so as to give it the benefit of the exemption of clause (1)(a). The Explanation is neither an exception nor a proviso. It is not its purpose nor does it purport, substantively and proprio vigore, to confer any power on any State, not even on the delivery State, to impose any tax. The fiction of the Explanation cannot be extended to any purpose other than the purpose of clause (1)(a), that is, to any purpose other than the purpose of taking away the taxing power of all States outside whose territories the sale or purchase is, by the fiction, deemed to take place. There its purpose ends and it cannot be used for the purpose of giving any taxing power on the delivery State, for that is quite outside its avowed purpose. Whether the 84 delivery State can tax the sale or purchase of the kind mentioned in the Explanation will depend on other provisions of the Constitution. Neither clause (1) (a) nor the Explanation has any bearing on that questionl. It is urged that even if by virtue of clause (1)(a) all States in relation to which a sale or purchase is, by the Explanation, to be deemed to take place outside their limits are precluded from taxing such sale or purchase and assuming that the Explanation does not, by implication or otherwise, permit even the delivery State to tax such sale or purchase, nevertheless the delivery State has the power under entry 54 in the State List read with article 100(3) of the Constitution to make a law imposing a tax on such sale or purchase. This certainly would be the position if there was nothing else in the Constitution. It should be borne in mind that the State Legislatures may make laws with respect to taxes on sale or purchase of goods (entry 54). If in purported exercise of powers under those entries a State Legislature makes a law imposing taxes on sale or purchase which partakes of the character of a sale or purchase made in the course of interState trade or commerce it may quite easily encroach upon the Union Legislative field under entry 42 in the Union List and such encroachment may conceivably give rise to questions as to the validity of the State legislation. It is in order to protect the free flow of inter State trade, which is placed in the care of Parliament alone, against any interference by State taxation and to prevent a recourse to the argument of pith and substance in justification of such encroachment by a State on the Union field that the Constitution, by article 286 (2), has expressly placed a restriction on the legislative power of the State in relation to tax on inter State sale or purchase. Clause (2) of article 286 provides that, except in so far as Parliament may by law otherwise provide, no law of a State shall impose a tax on the sale or purchase of goods when such a sale or purchase takes place in the course of inter State trade or commerce. Clause (2), 85 therefore, places yet another ban on the taxing power of the State under entry 54 read with article 100 (3), in addition to the ban imposed by clause (1) (a). A sale or purchase contemplated by the Explanation to clause (1) (a) undoubtedly partakes of the nature of a sale or purchase made in the course of inter State trade and, therefore, no State, whether it is the State in which the property in the goods passes under the general law or the State where the goods are delivered as mentioned in the Explanation, can impose a tax on such sale or purchase, unless and until Parliament lifts this ban. This appears to me to be the purpose and design of clause (2). It is said that if the sale or purchase referred to in the Explanation is to be bit by clause (2) then clause (1) (a) was wholly redundant, for there was no point in exempting it from the ban imposed by clause (1)(a)and hittin it by clause (2). As already stated the purposeof clause (1)(a) is to place a sale or purchase taking place outside a State beyond the taxing power of that State. The Explanation only explains, by an illustration as it were, the scope of that ban. Clause (1) (a) only contemplates one aspect of a sale or purchase, namely, its territorial location, and by imposing a ban on the taxing power of a State with respect to a sale or purchase, which takes place outside its limits, it purports to remedy the particular evil of multiple taxation founded on the nexus theory to which reference has been made. That is the limited purpose of clause (1) (a) and that purpose is fulfilled by placing a ban on those States in relation to which a sale or purchase is, by reason of the Explanation, deemed to take place outside their territories. Whether the delivery State where the sale or purchase is deemed to take place can tax such a sale or purchase is not, as I have said, the concern of clause (1) (a) or the Explanation. It is only when the question of the competency of a State Legislature under entry 54 of the State List to make a law imposing a tax on a sale or purchase which by the fiction is deemed to. take place within its territory is raised that clause (2) comes 86 into play. That clause looks at a sale or purchase in its inter State character and imposes another ban in the interest of the freedom of internal trade. The immediate purpose of the two bans are, therefore, essentially different and I see Do reason to hold that although clause (1)(a) read with the Explanation does not expressly authorise the State, in which the sale or purchase is, by the Explanation, to be deemed to take place, to tax such sale or purchase, it must nevertheless, by implication, be regarded not only as having authorised that State to do so but as having also exempted it from the ban imposed by clause (2). To adopt this course is to resort to the fiction created by the Explanation for quite a different and collateral purpose which is entirely beyond its avowed purpose. This, as I have explained, is, on principle and on authority, not permissible for the court to do. The same argument is advanced in a different and more attractive language. It is urged that once it is determined, with the aid of the fiction introduced by the Explanation that a particular sale or purchase has taken place within the delivery State, it must follow as a corollary that the transaction loses its inter State character and falls outside the purview of clause (2), not because the definition in the Explanation is used for the purpose of clause (2) but because such sale or purchase becomes, in the eye of the law, a purely local transaction. I am unable to accept this argument which appears to me to overlook the declared purposes of clause (1)(a) and of the Explanation. In all interState sale or purchase the property passes and the sale or purchase takes place in one or the other State according to the rules laid down in the Sale of Goods Act and the inter State character of the sale or purchase is not affected or altered by the fact of the property passing in one State rather than in another. What is an inter State sale or purchase continues to be such, irrespective of the State where the property passes. While, therefore, to locate a sale or purchase, by a legal fiction, in a particular State, is to make it appear to be an outside sale or purchase in relation to 87 all other States, so as to attract the ban of clause (1)(a) on those States, such location cannot possibly alter the intrinsic inter State nature or character of the sale or purchase. A sale or purchase which falls within the Explanation does not become, in the eye of the law, a purely local sale for all purposes or for all times. It is to be deemed to take place in the delivery State only for the purpose of clause (1)(a), i.e., for taking ing away the taxing power of all other States. I can see no warrant, for the argument that the fiction embodied in the Explanation for this definitely expressed purpose, can be legitimately used for the entirely foreign purpose of destroying the inter State character of the transaction and converting it into an intra State sale or purchase for all purposes. Such metamorphosis appears to me to be completely beyond the purpose and purview of clause (1) (a) and the Explanation thereto. To accede to this argument will mean that the Sales Tax Officer of the delivery State will have jurisdiction to call upon dealers outside that State to submit returns of their turnover in respect of goods delivered by them to dealers in that State under transactions of sale made by them with dealers within that State. Thus a dealer in, say, Pepsu who delivers goods to a dealer in, say, Travancore Cochin will become subject to the jurisdiction of the last mentioned State and will have to file returns of their turnover and support the same by producing their books of account there. I cannot imagine that our Constitution makers intended to produce this anomalous result. On the contrary, it appears to me that they enacted clauses (1) (a) and (2) for the very purpose of preventing this anomaly. I repeat that it is not permissible, on principle or on authority, to extend the fiction of the Explanation beyond its immediate and avowed purpose which I have explained above. In my judgment, until Parliament otherwise provides, all sales or purchases which take place in the course of inter State trade or commerce are, by clause (2) of article 286, made immune from taxation by the law of any State, irrespective of the place where the sales or purchases may take place, either under the general law or by virtue 88 of the fiction introduced by the Explanation to clause (1) (a). If a particular inter State sale or purchase takes place outside a State, either under the general law or by virtue of the fiction created by the Explanation, it is exempted from taxation by the law of that State both under clause (1) (a) and clause (2). If such inter State sale or purchase takes place within a particular State, either under the general law or by reason of the Explanation, it is still exempt from taxation even by the law of that State under clause (2), just as a sale or purchase which takes place within a State, either under the general law or by reason of the Explanation, cannot be taxed by the law of that State, if such sale or purchase takes place in the course of import or export within the meaning of clause (1) (b). I It is next contended that the ban imposed by article 286(2) is itself subject to the provisions of article 304. That article is one of the seven articles (articles 301 to 307) grouped under the heading "Trade, commerce and intercourse within the territory of India " in Chapter XIII. Article 301 proclaims that, subject to the provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Article 302 empowers Parliament to impose by law such restrictions on the freedom of trade, commerce and intercourse between one State and another as may be required in public interest. Indeed, entry 42 in the Union List gives exclusive power to Parliament to make laws with respect to inter State trade and commerce and clause (2) of article 286 also recognises this power of Parliament. Article 303 prohibits both Parliament and State Legislatures from showing preference to one State over another, or discriminating between the States. Then comes article 304 which runs as follows: "304. Notwithstanding anything in article 301 or article 303, the legislature of a State may by law (a) impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject, so, however as not 89 to discriminate between goods so imported and goods so manufactured or produced, and (b)impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purpose of clause (b) shall be introduced or moved in the Legislature of a State Without the previous sanction of the President. " The argument is that the ban imposed by clause (2) of article 286 should, like article 301, be subordinated to article 304. 1 am unable to accept the correctness of this argument. Article 301 is expressly made subject to the other provisions of Chapter XIII which includes article 304 but no part of article 286 is so subjected. Article 304 (a) gives power to the State Legislatures to put a tax on goods imported from other States whereas article 286 restricts their taxing power on sale or purchase, i.e., the transaction itself as distinct from the goods. Article 304 appears to me to be closely related to entry 52 in the State List and restricts the State 's powers under that entry but article 286 controls the State 's powers under entry 54 in the State List. In the circumstances article 304 cannot properly be read into article 286. Article 304, of course, can have no bearing whatever upon clause (1) (b) of article 286. An argument is advanced suggesting that if all sales or purchases that take place in the course of interState trade and commerce are put beyond the taxing power of the States then that fact will very seriously and prejudicially affect the economy of the States and may prevent them from discharging the responsibilities, which all welfare States are expected to do. Apart from the benefit that a free flow of trade is likely to bring to the public generally the apprehended danger appears to me, to be more assumed than real. The proviso to clause (2) empowers the President to direct the continuation, up to the 31st March, 1951, of the sales tax which was being levied before the commencement of the Constitution and in fact the President, on 90 the same day as the Constitution came into force, actually made an order in exercise of this power as herein before stated. There was, therefore, no immediate danger to State revenue and the status quo was maintained. Further, clause (2) itself empowers Parliament to lift the ban imposed by it, should Parliament, in the interest of State economy, think fit to do so. The Constitution has thus itself provided ample safeguards and this court need not assume unto itself the functions of Parliament and indirectly under the guise of interpretation seek to secure the safety of State finance which Parliament itself has adequate direct power to do. Finally, it is said that the effect of holding that the ban imposed by clause (2) extends to all sales or purchases which take place in the course of inter State trade or commerce will be to place at a disadvantage the consumers of similar goods manufactured or produced locally, for the actual consumer will have to pay no tax if he buys similar goods manufactured in another State direct from the manu facturers or sellers in that other State. I do not think this objection has much force. Very few actual consumers take the trouble of importing goods for their own consumption direct from the manufacturers or sellers outside their State. Further, the cost of carriage, handling charges and the risk of loss and damage in transit will effectively deter actual consumers from procuring goods direct from outside, for in all probability the cost of such enterprise will exceed the sales tax which the consumer will save by not buying the local goods. Besides, if India is to be regarded as one economic unit there can be no objection to a consumer in one State getting goods cheaply from a neighbouring State. I now pass on to another important object of article 286 which is to encourage our foreign trade. Power is given exclusively to Parliament to make laws under entry 41 with respect to trade and commerce with foreign countries and under entry 83 with respect to duties of custom including export duties. If in addition to the import or export duty, which Parliament 91 alone can impose, the State Legislatures were left free to make a law under entry 54 in the State List levying another tax on a sale or purchase which takes place in the course of the import of the goods into or the export of the goods out of the territory of India such double taxation will necessarily increase the price of the goods. Such imposition may easily result in our not getting imported goods which may be of everyday requirement at a reasonable price or our not being able to compete in the world market with our exported goods. This will discourage and hamper our foreign trade and eventually affect the Union revenue. It is to avoid that calamity that article 286(1) (b) was introduced in the Constitution. Article 286 (1) (b) has to be construed in the light of its aforesaid constitutional purpose and against its commercial background. Import and export trade is principally carried on by big mercantile houses. They purchase goods locally either against orders secured from overseas buyers or in anticipation of such orders and send the goods out of India by land or sea to be delivered eventually to the overseas buyers. They purchase goods in foreign countries against orders secured from local Indian buyers who may be wholesale or retail dealers or in anticipation of such orders and bring them into India by land or sea to be delivered to their constituents. In some cases the manufacturers or producers in India may themselves export their goods direct to overseas buyers and the retail dealers or even actual consumers in India may occasionally import goods direct from overseas sellers. Export and import transactions of this clause are, however, comparatively speaking, smaller in volume than the great bulk of foreign trade put through by the big export and import houses. The constitutional purpose is to foster this foreign trade and to preserve the Union revenue. For achieving that purpose, the Constitution has by clause (1) (b) of article 286 imposed a ban on the State Legislatures preventing them from impinging upon the Union field of foreign trade and imposing tax on sales or purchases made in the course of import or export under the guise or pretence of making laws 92 with respect to taxes on sale or purchase of goods under entry 54 in the State List. The question arises: what is the scope of the ban thus imposed on the States ? The answer will depend on the meaning that may be ascribed to the phrase "in the course of" occurring in clause (1) (b). It should be noted that the same phrase is also used in clause (2) of that article. In The State of Travancore Cochin vs The Bombay Company Ltd.(1), this court has held that " Whatever else may or may not fall within article 286(1)(b) sales and purchases which themselves occasion the exports or imports of the goods, as the case may be, out of or into the territory of India come within the exemption. . In other words, this court has held that sales or purchases which themselves occasion the imports or exports are sales or purchases which take place " in the course of" import or export. This was sufficient to dispose of that case and it was not then necessary to decide what else might fall within that phrase. This court is now called upon to decide that point. Article 286(1)(b) exempts from taxation by a State law all sales or purchases which take place "in the course of the import of the goods into or the export of the goods out of the territory of India. " The word "course" conveys to my mind the idea of a gradual and continuous flow, an advance, a journey, a passage or progress from one place to another. Etymologically it means and implies motion, a forward movement. The phrase II in the course of " clearly has reference to a period of time during which the movement is in progress. Therefore ' the words "in the course of the import of the goods into and the export of the goods out of the territory of India" obviously cover the period of time during which the goods are on their import or export journey. This view, which has been said to be founded on mechanical test, is accepted by the Advocate General of the appellant State and, indeed, by all Advocates General other than those of Uttar Pradesh and Mysore. The Advocates General of the two last mentioned States seek to limit the (1) ; 93 exemption only to such sales or purchases as themselves occasion the export or import. That narrow view, however, fails to take note of the etymological meaning of the word "course" and the very large number of sales or purchases that take place while the goods are on the high seas by the endorsement and/or delivery against payment from hand to hand of the relative shipping documents covering goods worth crores of rupees. In the case of exports from India, such sales or purchases in India will not be many for the shipping documents will ordinarily be sent to the foreign country and the sales or purchases, if any, during transit, by delivery of the shipping documents will take place there. In some cases, however, where the goods are shipped to the exporter himself or his agent without any previous sale, such sale by delivery of shipping documents may take place in India. But take the case of an Indian importer who places an order or indent with an overseas merchant for the supply of a large quantity of goods. The goods are shipped and the shipping documents are sent by air mail and presented to the Indian importer by the overseas merchant through his bank. The Indian importer receives the shipping documents against payment. The goods are, however, on the high seas on their import journey and it will take some time before the steamer will arrive. The market may fluctuate in the meantime. Is the importer to wait patiently with folded hands trusting to luck that the market may be in his favour when the goods actually arrive? Is he not to be allowed to make a gain in case there is a rise in the market rate or cut his loss if there is a downward tendency in the market price ? Is he to keep his money locked up all this time ? The exigencies of foreign trade require that he must be permitted to sell the goods by delivering the shipping documents and realise his money and to again invest it in fresh imports. This is how foreign trade is done. It is stated in Halsbury 's Law of England (Hailsham Edn.), Vol. 29, p. 210: "280. The commercial reason for the evolution of the 'c.i.f. ' contract lies in the length of the time taken 94 in the carriage of goods by sea. It is to the advantage of neither seller nor buyer that the goods, the subject matter of the contract should remain en dehors commerce while they are in course of shipment. It is to the seller 's interest to receive the money equivalent to the goods as soon as possible after the date of the contract of sale, and until he has received actual payment of the price he normally desires to be able, if he wishes, to obtain credit upon the security of the transaction. The buyer, on the other hand, normally desires to be able to deal with the goods, for resale or finance, as soon as possible. To meet these business necessities on the part of both buyer and seller the 'c.i.f. ' contract was evolved. " Such sales or purchases, by delivery of shipping documents while the goods are on the high seas on their import journey were and are well recognised species of transactions done every day on a large scale in big commercial towns like Bombay and Calcutta and are indeed the necessary and concomitant incidents of foreign trade. To hold that these sales or purchases do not take place "in the course of" import or export but are to be regarded as purely ordinary local or home transactions distinct from foreign trade, is to ignore the realities of the situation. Such a construction will permit the imposition of tax by a State over and above the customs duty or export duty levied by Parliament. Such double taxation on the same lot of goods will increase the price of the goods and, in the case of export, may prevent the exporters from competing in the world market and, in the case of import, will put a greater burden on the consumers. This will eventually hamper and prejudicially affect our foreign trade and will bring about precisely that calamity which it is the intention and purpose of our Constitution to prevent. It is, therefore, clear, to my mind, that the ban imposed by article 286(1)(b) protects all sales or purchases of goods that take place during the period the goods are on the high seas. This construction appears to me to be imperative not only etymologically but also commercially and constitutionally. Indeed, this view is implicit in our judgments in the case of The State Of 95 Travancore Cochin vs The Bombay Company Ltd.(1) referred to above, in which we said at page 1120: "We are not much impressed with the contention that no sale or purchase can be said to take place in the course of ' export or import unless the property in the goods is transferred to the buyer during the actual movements, as for instance where the shipping documents are endorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped or where such documents are cleared on payment or an acceptance by the Indian buyer before the arrival of the goods within the State. This view which lays undue stress on the etymology of the word 'course ' and formulates a mechanical test for the application of clause (b) places, in our opinion, too narrow a construction upon that clause in so far as it seeks to limit its operation only to sales and purchases effected during the transit of the goods, and would, if accepted, rob the exemption of much of its usefulness. " The question immediately arises as to how the period of time covering the "course" of import or export is to be measured. When does it begin and when does it end? The learned Advocate General of Travancore Cochin contends and in this he is supported by all the Advocates General other than those of Uttar Pradesh and Mysore that this period is confined within two terminii, namely, when the journey of the goods begins and when it ends. They maintain that the process of import or export ordinarily begins and ends at water 's edge, although the period of journey of the goods from the port to the place of the importer or his representative in case of import or to the port from the place of the exporter or his representative in case of export may be added to the period of the actual voyage on the high seas. This contention cannot be accepted in view of our decision in the case of The State of TravancoreCochin vs The Bombay Co. Ltd.(1) referred to above. According to that decision the phrase "in the course of " is not limited within these two terminii, i.e., from the point of time the goods are handed over to the carrier (1) ; , 96 upto the time they are delivered by the carrier. By adopting the principle of integrated activities we have included the agreement for sale to, or purchase from, the foreign merchant as taking place within the period connoted by that phrase. The agreement for sale or purchase, which occasions the export or import as the case may be, is obviously, in point of time, anterior to the actual and physical handing over of the goods to the carrier for taking the goods out of the country or for bringing them into the country as the case may be, but, nevertheless, such a sale or purchase has been held to have taken place "in the course of" export or import and as such exempt from taxation by the States. The question is how far backward we can trace the commencement of the "course" of export and how far forward we can fix the termination of the "course" of import. In my judgment the purchase made by the exporter to implement his agreement for sale with the foreign buyer is to be regarded as having taken place "in the course of" export. I take this view, not because I read the words "in the course of" as synonymous with the words "for the purpose of" but because I regard the purchase by the exporter as an activity so closely integrated with the act of export as to constitute a part of the export process itself and, therefore, as having taken place " in the course of the export. The learned Attorney General accepts this position but the Advocates General of the States demur. They maintain that in this view of the matter one cannot stop at the last purchase by the exporter but has to include the purchase by the person who sells to the exporter and all previous sales or purchases until one reaches the producer. I find no substance or cogency in this line of reasoning. In the last purchase by the exporter we have at least one party who is directly concerned with or interested in the actual export. The exporter is the connecting link, the commercial vinculum, as it were,. between the last purchase and the export. But in the earlier sales or purchases neither the sellers nor the purchasers are personally concerned with or interested in the actual 97 export of the goods at all. Therefore the earlier sales or purchases may be too remote and may not be regarded as integral parts of the process of export in the same sense as the last purchase by the exporter can be so regarded. The line of demarcation is easily perceptible. Let me explain my meaning step by step. As I have already stated, in some cases the exporters receive orders from the foreign buyers and then export the goods. It has been held by us that these orders themselves occasion the export and, therefore, they take place " in the course of " export. But these orders can occasion the export only if the exporters have the goods to export. The exporters are not necessarily the producers or manufacturers and in great many cases they have to procure the goods to implement the foreign orders. The overseas orders in such cases immediately necessitate the purchase of the goods and eventually occasion the export. The three activities are so intimately and closely connected, like cause and effect, with the actual export that they may well be regarded as integral parts of the process of export itself. As according to our previous decision the contract for sale with the foreign buyer starts the export stream and occasions the export, the purchases by the exporter to implement such contract necessarily take place, chronologically speaking, after the export stream has started and, therefore, must be an activity undertaken in the course of the export. Logically there can be no getting away from this conclusion. Therefore, these purchases to implement the sale which occasions the export must be immune from sales tax. Is there any compelling reason to confine this immunity to sales or purchases to implement a foreign order or sale ? It cannot be overlooked that in a great majority of cases the export merchants, who, as I have said, are not, generally speaking, the actual producers or manufacturers of goods, start purchasing goods in advance, after taking into account the estimated quantity of the year 's total production, the prevailing local prices, the likely demand from foreign countries 13 98 and the prices ruling or likely to rule in the foreign markets. Such anticipatory purchases form by far the largest part of the activities of the export merchants and are regarded by businessmen as necessary incidents of the export trade. Is there any logical reason why purchases by the exporters in anticipation of future foreign orders should not also be taken as starting the " course " of the flowing stream of the export trade ? The goods, it is true, are stored in godowns for a while awaiting actual exportation but that is like a stream falling into a lake and getting out by an outlet at the other end so that the undercurrent of the flow, even if imperceptible on the surface, is nevertheless continuous. One cannot overlook or ignore these well known preliminary but essential activities of the export merchants which necessarily precede and lead up to and, indeed, occasion or eventually make possible the ultimate physical movement of the goods. To hold that these purchases are independent local purchases totally distinct from the export trade will be to unduly narrow down the wide meaning of the flexible phrase in the course of". I find support for the views I have expressed above by the recent decision of the High Court of Australia in The Queen vs Wilkinson: Ex parte Brazell, Garlick and Coy (1) to which reference may now be made. Section 11(3) of a New South Wales statute called the Marketing of Primary Products Act, 1927 1940, provides, inter alia., that every producer who, except in the course of trade or commerce between the States, sells or disposes of or delivers any commodity, in respect of which a Board has been appointed, to persons other than the Board, and every person other than the Board who, except as aforesaid, buys, accepts or receives any such commodity from a producer shall be guilty of an offence. Brazeil, a producer of potatoes in New South Wales at Dorrigo in New South Wales agreed to sell 48 bags of potatoes of Garlick Coy & Co., who were buying agents for J. E. Long & Co., general produce merchants, whose head office was at Jennings on the New South Wales side of (1) ; 99 the border of that State and Queensland and who carried on business of purchasing and selling potatoes in both States. It was a term of the sale that the potatoes should be delivered from Brazell 's lorry on trucks at Dorrigo in New South Wales. The potatoes were loaded at Dorrigo railway station into a truck and consigned by Garlick Coy & Co. to J. E. Long & Co. at Wallangarra on the Queensland side of the border adjoining Jennings. The potatoes arrived at Wallangarra and were sold by J. E. Long & Co. to a purchaser in Queensland. Brazell was charged with the offence of disposing of and Garlick and Coy, the two partners of Garlick Coy & Co. were charged with the offence of receiving the potatoes in contravention of section 11(3) of the Act. The question was whether the sale by Brazell to Garlick Coy & Co. in New South Wales was in the course of trade and commerce between the States. It was found that it was no part of the contract of sale between Brazell and Garlick Coy & Co. that the potatoes would go to any ascertained buyer in New South Wales or in any other State other than Garlick Coy & Co. who were, as Brazell believed, acting as agents for J. E. Long & Co., that Brazell was only concerned with the sale of his potatoes and that when he received his money he had no further interest in the potatoes, that there was no evidence that at the time Garlick Coy & Co. received the potatoes from Brazell there was any contract in existence for sale of them to any person in Queensland or any other State or that J. E. Long & Co. had any definite orders for the supply of them to any ascertained inter State buyers or that the potatoes purchased by Garlick Coy & Co. were to fill any such orders. There was no binding agreement between Brazell and Garlick Coy & Co. or J. E. Long & Co. that the potatoes would be sold to buyers in Queensland, The Magistrate answered the question in the negative and convicted Brazell, Garlick and Coy, who thereupon moved for a writ of prohibition to restrain the informants and the Magistrate from further proceeding on those convictions. In a joint judgment Dixon, McTierman, Fullager and Kitto, JJ. said : 100 "In our opinion on the foregoing facts the disposal and the receiving made the subject of the informations were in the course of trade and commerce between the States, within the meaning of the exception in section 11(3). Under the agreement for the sale and purchase of the potatoes the agents buying were required to consign the potatoes to a railway station in Queensland, and they did so consign them. For the purpose of the exception the delivery of the potatoes from the lorry into the railway truck can bear only the aspect of an essential and integral, even if initial, step in the transportation of the potatoes to Queensland. " In a separate but concurring judgment Williams J. said : " It was submitted to the Magistrate that the transaction must be looked at as a whole and not split up into separate contracts of sale and purchase. The Magistrate rejected this submission. In doing so he fell into error. He should have regarded the transaction as a whole. On this basis the facts proved that the acts done by the appellants were done in the course of trade and commerce between the States. " After stating the facts shortly Webb J. said: "The potatoes went to Queensland and were sold by the principal in that State. It may be that there was no binding stipulation that the potatoes would be sold in another State, and that they could have been resold in New South Wales without breach of agreement. But a legal nexus with inter State trade, by a contract with the grower, is not required to secure the immunity given by section 92. " Reference was made in this case to the earlier case of Clements and Marshall Pty Ltd. vs Field Peas Marketing Board (1) where there were two sets of contracts, the first being contracts of sale by the producers to the dealers and the second contracts of resale by the dealers to buyers in other States. After pointing out that it was only the second set of contracts which in themselves were inter State transactions Dixon J. said at page 429: (1) (1947) 76 C.L.R 401, 101 "We should consider the commercial significance of transactions and whether they form an integral part of a continuous flow or course of trade, which, apart from the theoretical legal possibilities, must commercially involve transfer from one State to another." The reasonings adopted by the learned Judges in the above cases apply with full force not only to clause (2) but also to clause (1)(b) of article 286 and we should construe the words "in the course of" in the same way as it has been done in the case of Queen vs Wilkinson(1). So construed, the purchases made by the exporter even without any previous order for export form "an essential and integral, even if initial, step" in the exportation of the goods. They form "an integral part of a continuous flow" which is commercially involved in the export process. No "legal nexus" between these purchases and the actual physical export is required to secure immunity from State taxation. In my judgment the last purchases by the exporters whether in fulfilment of foreign orders already secured or in anticipation of future orders must, in a commercial sense, be "in the course of " the export. The only way to give business efficacy to article 286 (1)(b) is to construe it in this commercial sense. Tax such purchases and you tax the export itself and by that process eventually cripple our export trade and bring about an adverse trade balance against us in the long run. It must always be borne in mind that with our exports we pay for our imports. The same considerations apply to the first sale by the importers of the imported goods. I leave out of consideration the comparatively few cases of retail dealers themselves importing goods direct from overseas sellers and the still fewer cases of actual consumers importing goods for their own consumption. In by far the largest majority of cases it is the import merchants who bring goods into the country from abroad. Their business is to bring in the goods and thereby augment the general mass of goods in the country. In some cases the importers secure orders from local dealers and pursuant to such orders the importers import the goods (1) ; 102 from foreign lands. In most cases, however, the importers, in intelligent anticipation of local demands for such goods, place orders or indents with foreign sellers who, pursuant to such orders, send out the goods. Each of these orders or indents placed with the foreign sellers by the intending importers occasions the import and these purchases by the importers are certainly "in the course of" import of the goods into India within the meaning of our previous decision, and as such exempt from sales tax. We have also seen that the sale or purchase of goods during the period they are on the high seas is also "in the course of" import and as such immune from taxation by State law. The question then arises as to where the course of import ends. Does it end at the water 's edge ? If the sale by the importers while the goods are on the high seas be ,,in the course of" import and not liable to sales tax, there can be no logical reason why the first sale by the importers to dealers should not also be exempted. If such sale is to be regarded as purely a local sale and as such liable to taxation by the States, then, in effect, the tax will be a burden on the import itself. The importers have to pay the customs duty imposed by Parliament and if again the States impose additional taxes on the same goods such multiple taxation will raise the price of the goods to the detriment of the actual consumers and will eventually have an adverse effect on our import trade which it is the purpose of the Constitution to prevent. After all the business of the importers who bring the goods into our country is only to make the goods available to the internal trade, for they are not usually retail dealers who sell to the consumers direct. That business is completed only by the first sale by the importers to the dealers, wholesale or retail. It is only after that first sale of the goods by the importers to the dealers that the goods become parts of the general mass of property in the State concerned and thereafter subject to the taxing power of that State. The first sale by the importers to dealers, therefore, appears to me to be so inextricably wound up with the import itself that it may be commercially regarded as the culmination of the import activities and, 103 therefore, the end of the course of import. I arrive at this conclusion not by applying the American doctrine of unopened original package, which has now been abandoned even by the Supreme Court of America and has recently been rejected by us in the Prohibition Case(1) but on a construction of the phrase "in the course of" ' in the light of its etymology, the purpose of the Constitution and against the background of the known notions and practices of businessmen engaged in foreign trade. , If, however, a particular importer himself happens to be a retail dealer of the goods and sells the goods to the actual consumers and such cases are comparatively few then such retail sales may, like local retail sales of similar goods, be liable to sales tax by the State. Whether an importer is or is not a retail dealer is a question of fact which is capable of proof and, therefore, need not be regarded as creating any insuperable difficulty in the matter of the assessment of the sales tax. For reasons stated above, I find no difficulty in holding that just like the last purchases by the exporters themselves for the purpose of sending the goods out of the country the first sales by the importers to dealers of goods brought by them into the country also come within the somewhat elastic expression " in the course of " export or import. As stated above, it is possible to draw the line there. Reference is made to Clive M. Schmitthoff 's Export Trade (2nd Edition, page 3) where the learned lecturer says: "When a merchant shipper in the United Kingdom buys, for the purpose of export, goods from a manufacturer in the same country the contract of sale is a home transaction, but when he resells these goods to a buyer abroad that contract of sale has to be classified as an export transaction. " The argument formulated on this authority is that this passage clearly establishes that the last purchase by the exporters and the first sales by the importers are home transactions and cannot be classified as export or import transactions at all, This distinction between (1) ; , 104 a home transaction and an export transaction made by the learned lecturer for the purposes of his book takes us nowhere. Nor do the American decisions which distinguish between intra State trade and inter State trade throw any light on the problem of construction of article 286 (1)(b) which is couched in language quite different from that used in the American Constitution. In America the question is clear cut, namely, is it an inter State transaction or an intra State transaction. Our problem, on the other hand, is to find out whether a given sale or purchase has taken place "in the course of" import or export. Simply to say that the particular sale or purchase is a home transaction does not solve our problem, for to say so is not to say that it cannot have taken place "in the course of" import or export. Indeed, article 286 (1)(b) postulates a home transaction, that is, a transaction which takes place within the State and then places it beyond the taxing power of that State on the ground that the transaction, has taken place "in the course of " import or export. If the transaction is not a home transaction, i.e., if it takes place outside the State, clause (1) (b) need not be invoked at all, for then clause (1)(a) will prevent that State from taxing that outside transaction. It is only when a particular transaction is a home transaction in the sense that it take,,; place within the State that the further question arises, namely, whether that home transaction has taken place "in the course of" import or export within the meaning of clause (1)(b). The circumstance that a sale or purchase is a home transaction does not, therefore, conclude the matter and we have yet to solve that further question by the proper construction of clause (1)(b) according to its natural meaning and in the light of the Constitutional purpose and against the commercial back ground as explained above. A second argument founded on that passage is that if those home transactions are removed from the sphere of State taxation then the States will be deprived of one of the principal and fruitful sources of revenue and the economy of the States will be crippled and may 105 even collapse. It is pointed out that there is no provision in clause (1)(b), such as there is in clause (2), under which Parliament may lift the ban and, therefore, to place these home transactions beyond the taxing power of the States will irretrievably deprive them of a very large part of revenue which they have been realising from these sales or purchases made by the big importers or exporters many of whom are foreigners. There is no reason, it is urged, why they should not be made to pay sales tax like ordinary sellers or buyers in the States. As already stated, the imposition of double taxation may eventually hamper our own foreign trade. The object of our Constitution, apparent from the distribution of legislative powers and from article 286, is to place our inter State trade and our foreign trade beyond the taxing power of the State. In the case of inter State trade power is expressly given to Parliament by clause (2) of that article to lift the ban but in the case of foreign trade no such power is given to Parliament by that article to relax or lift the ban imposed by clause (1) (b) on the legislative power of the State Legislatures. It is for Parliament alone to make laws with respect to foreign trade. If the import or export of particular commodities is not beneficial to our country then Parliament, which is in a much better position than this court to know and judge of such matters, will, I am sure, make laws restricting or even prohibiting such imports or exports. If our imports or exports may bear the additional burden of taxation without any detriment to the consumers and our foreign trade and without any risk to the Union revenue, Parliament, I have no doubt again, will increase the customs or export duty and augment the revenue of the Union. If on its correct interpretation clause (1)(b) of article 286 causes loss to the States ' revenue by depriving them of the taxes on such sales or purchases then such loss will clearly and solely be attributable to the intention of the Constitution as expressed in that clause. If that clause results in any danger to the economy of the States, I have no manner of doubt that Parliament 14 106 Will make good the loss to the States on the recommendation of the Finance Commission under some appropriate article out of articles 268 to 281 grouped under the heading " Distribution of Revenues between the Union and the States " in the very chapter in which occurs article 286 which is engaging our attention. In any event, the court must construe the Constitution as it finds it and if the construction of the plain language leads to any inconvenience to the States it will be for authority other than this court to rectify and remove the same. It is said that it will be very difficult for the Sales Tax Officer to ascertain how much of the goods purchased by the exporters had actually been exported or how much of the goods imported by the importers had actually been distributed amongst the dealers as opposed to actual consumers. It is pointed out that ordinarily sales tax is levied on sales and the sellers are permitted to pass on the tax to the purchasers at the time of such sales. How, it is asked, is the seller to know whether his purchaser will actually honour his representation that he wants the goods for the purpose of export? If the seller has no confidence in the integrity of his purchaser he will not sell to him without sales tax. The purchaser who is really exporter will not then perhaps buy from such a seller or if in the case of urgency he buys on payment of the sales tax may claim the refund, if there be any provision in that behalf, on proof that he actually exported the goods. It is said that exporters may change their minds and sell the goods locally after obtaining the exemption or the importers may sell the goods themselves in retail to the consumers after having got the exemption. There is no substance in this line of theoretical reasoning, for these are matters capable of being proved. If the exporters or their sellers cannot prove to the satisfaction of the officer that the exporters purchased so much goods for export and did actually export the same or the importers or their purchasers cannot prove that the importers imported so much goods and distributed so much amongst the dealers as 107 opposed to actual consumers, they will not get the ' benefit of the exemption and that is all. If the Sales Tax Officer finds no difficulty in ascertaining whether the goods are delivered in a State only for the purpose of consumption within that State or whether they were delivered for the purpose of resale out of that State so as to ascertain the applicability of the Explanation to clause (1) (a), why cannot the same officer find out what goods were purchased by the exporters for the purpose of export or what part of the imported goods were sold by the importers to the dealers ? If the Income tax Officer can without difficulty ascertain the income, profits and gains of a business and work out the provisions of, section 10 of the Indian Income tax Act and also can ascertain under section 42 of that Act the income deemed to accrue or arise within the taxable territory, there cannot be any insuperable difficulty in the way of the Sales Tax Officer determining the turnover of a particular dealer and working out the exemptions he is entitled to under article 286(1) (b). In any case the assumed difficulty of the Sales Tax Officer cannot alter or affect the correct construction of the constitutional provisions in question. To summarise : The State Legislatures, under entry 54 of the State List, have power to make laws with respect to tax on the sale or purchase of goods. On this general power article 286 places four restrictions, namely, that no law of a State shall impose or authorise the imposition of tax on the sale or purchase of goods when such sale or purchase takes place (1) outside the State, (2) in the course of import or export, (3) in the course of inter State trade and commerce and (4) in respect of essential commodities. The Explanation to clause (1) (a) only explains what is an outside sale or purchase, for by saying that a particular sale or purchase is to be deemed to take place in a particular State it only indicates that it is to be deemed to take place outside all other States so as to attract the ban of clause (1) (a) and thereby take away the taxing power of those other States with respect to such sale or purchase. The Explanation does not operate as an 108 exception or a proviso but only explains sub clause (a). The, fiction created by the Explanation is only for the purposes of sub clause (a), so that sales or purchases of the kind which fall within the Explanation get the benefit of the ban imposed by sub clause (a). Therefore, the purpose of the Explanation read with sub clause (a) is only to take away the power of taxation of those States in relation to those sales or purchases which are to be deemed to be outside sales or purchases. Its purpose is not and, indeed, it does not purport, to confer any taxing power on any State, and it cannot be resorted to for any such extraneous or collateral purpose. It does not convert an inter State sale or purchase into an intra State sale for any purpose other than the limited purpose of sub clause (a). If a sale or purchase takes place outside a State, either under the general law or by virtue of the fiction created by the Explanation, then that State cannot, under clause (1) (a), tax such sale or purchase. If a sale or purchase takes place within a State, either under the general law or by reason of the Explanation, then, if such a sale or purchase takes place " in the course of " inter State trade and commerce, no State, not even the State where the sale or purchase takes place as aforesaid can tax it by reason of clause (2), unless and until Parliament by law provides otherwise. A sale or purchase "in the course of" import or export within the meaning of clause (1) (b) includes (i) a sale or purchase which itself occasions the import or export as already held by this court, (ii) a sale or purchase which takes place while the goods are on the high seas on their import or export journey and (iii) the . last purchase by the exporter with a view to export and the first sale by the importer to a dealer after the arrival of the imported goods. If a sale or purchase takes place within a State, either under the general law or by reason of the Explanation, then, if it takes place in the course of import or export as explained above, no State, not even the State within which such sale or purchase takes place can tax it by reason of clause (1) (b). This, in short, is the true meaning and import of article 286 as I read and understand it, 109 I have already stated, however, that the majority decision of this court in C. A. No. 204 of 1952 [The State of Bombay vs The United Motors (India) Ltd.(1)] has taken a different view of the meaning of clause (1) (a), the Explanation and clause (2) of article 286. In disposing of the present appeals, in so far as such disposal depends on those provisions, I am bound to follow the majority decision rather than my own view of them. Bearing in mind the principles laid down by this court in The State of Travancore Cochin vs The Bombay Company Ltd.(2) and in C. A. No. 204 of 1952 [The State of Bombay vs The United Motors (India) Ltd. and others (1)] and those explained above, I now proceed to consider the rival claims on their respective merits. There is really no substantial controversy as to the nature of the business carried on by the respondents. All of them are exporters of cashew nut kernels on a fairly big scale. They procure raw cashew nuts from three sources, namely, (i) from within the State of Travancore Cochin, (ii) from neighbouring States and (iii) from Africa. Then they put the raw cashew nuts through a certain process and obtain oil and edible kernels. These edible kernels they export to foreign countries. It will be recalled that the Travancore Sales Tax Act imposes taxes only on the purchase of "cashew and its kernels" but not on the sale thereof. The respondents claim exemption from sales tax for the period between the 26th January, 1950, when the Constitution came into force and the 29th May, 1950, which is the close of the assessment year. In support of their claim for exemption they rely oil article 286 of the Constitution. It is necessary, therefore, to take each of the three categories of purchases and see if they or any part of them come within any of the exemptions provided by that article. As regards local purchases of raw cashew nuts there is no controversy that those purchases take place within the State and are, therefore, not entitled to the protection of article 286 (1) (a). These purchases do not take place " in the course of " inter State trade or (1) ; (2) ; 110 commerce and, therefore, are not within clause (2) of that article. The only question is whether these local purchases can be said to take place " in the course of " export within the meaning of article 286 (1) (b). There is no dispute that the respondents do not sell the raw cashew nuts or any portion of it within or without the State of Travancore. They do not sell the edible kernels, which they obtain as a result of the manufacturing process or any part of them within Travancore Cochin or any other State in India except what have been described as factory rejections of negligible quantity which are not fit for export. All edible kernels are exported to foreign countries. Therefore, the res pondents claim that all their purchases, whether made locally or in neighbouring States or from abroad, are, " in the course of " export within the meaning of clause (1) (b) in the sense explained above. The appellant State, however, maintains that commercially " the goods " exported are entirely different from " the goods " purchased by reason of the process of manufacture they are put through and are, therefore, not entitled to the benefit of the ban imposed by clause (1) (b). The High Court has, on remand, enquired into the process of manufacture through which the raw cashewnuts are passed before the edible kernels are obtained. The High Court, in its judgment on remand, goes minutely into the different processes of baking or roasting, shelling, pressing, pealing, and so forth. Although most of the process is done by hand, part of it is also done mechanically by drums. Oil is extracted out of the outer shells as a result of roasting. After roasting the outer shells are broken and the nuts are obtained. The poison is eliminated by pealing off the inner skin. By this process of manufacture the respondents really consume the raw cashew and produce new commodities. The resultant products, oil and edible kernels, are well recognised commercial commodities. They are separate articles of commerce quite distinct from the raw cashewnuts. Indeed, it is significant that the respondents place orders for "cashew nuts " but orders are placed 111 with them for " cashew nut kernels ". In the circumstances, " the goods " exported are not the same as the goods purchased. The goods purchased locally are not exported. What are exported are new commodities brought into being as a result of manufacture. There is a transformation of the goods. The raw cashews are consumed by the respondents in the sense that a jute ' mill consumes raw jute, or a textile mill consumes cotton and yarn. The raw cashews not being actually exported the purchase of raw cashews cannot be said to have been made " in the course of " export so as to be entitled to immunity under clause (1) (b). As regards the purchases of raw cashew nuts from the neighbouring States, the position, as found by the High Court on remand, is that the bulk of such purchases were made by the respondents or their agents from sellers in the neighbouring States and the goods so purchased were delivered by the sellers to the respondents or their agents in the States where the purchases took place. The contract of purchase was fully implemented when as a direct result of the purchase delivery was given outside Travancore. The respondents or their agents thereafter brought, the goods, which by then had become their own goods, into Travancore, by rail or otherwise. The delivery of the goods under the contract for purchase having already taken place outside Travancore, the subsequent despatch of those goods to Travancore cannot possibly be said to have been delivery within that State as a direct result of the purchase within the meaning of the Explanation. Indeed, the learned Advocate General of Travancore Cochin concedes that as purchases of this type did not fall within the Explanation they must be regarded as having taken place outside TravancoreCochin and must, accordingly, be exempt from taxa tion by Travancore Cochin under article 286 (1) (a). If it could be shown that although such sales or purchases took place entirely in those other States yet they were made between two parties residing or carrying on business in two States and for the purpose of consumption or of sale in the purchasers ' State then these sales or purchases might have been said to have 112 been made "in the course of " inter State trade and commerce and as such exempt from taxation by both the States under article 286 (2). The transactions of sale or purchase with which we are concerned having taken place within the period covered by the President 's order made under the proviso to that clause, no protection under clause (2) can be claimed for these transactions. Further, if the cashew nuts purchased in neighbouring States were for the purpose of exporting them out of the territories of India and were actually so exported, then these purchases would be " in the course of " export and as such exempt from tax under article 286 (1) (b). As a matter of fact, however, the cashew nuts purchased in the neighbouring States were not actually exported but were put through a process of manufacture and the goods that were exported were not the same as those that were purchased as explained above and, therefore, clause (1) (b) gives no protection to these purchases. On the facts of these cases, these purchases, however, took place outside Travancore Cochin and as such are, therefore, immune from taxation by Travancore Cochin only under clause (1) (a) which is not affected by the President 's order made under the proviso to clause (2). The learned Advocate General of Travancore Cochin says that there is another type of purchase from neighbouring States where the seller in the neighbouring State directly delivers the goods under the contract for sale or purchase to the respondents in Travancore. Learned counsel for the respondents maintains that there is actually no case of purchase of this type. It is not necessary at this stage to go into this controversy, for, the matter having been fully argued, it is just as well to lay down the correct principle applicable to such purchases, if any. If there is no such purchase where the seller from the neighbouring State delivers the goods as a direct result of such purchase to the respondents in Travancore, no question will arise. Assuming that there are cases of such purchases, then it is clear that the first condition of the Explanation is satisfied, namely, the goods are delivered within the State as a direct result of such purchase. The next question is 113 was such delivery for the purpose of consumption in the State ? The raw cashew nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew nut oil and edible cashew nut kernels, are obtained. It follows, therefore, that the raw cashew nut is consumed by the respondents in the sense I have mentioned. Consequently, such purchases will fall squarely within the Explanation and will be deemed to take place in Travancore so that under clause (1)(a) the neighbouring States will not be entitled to impose any tax on these sales or purchases. According to my view, and on the reasonings adopted in the Australian case, these purchases are "in the course of" inter State trade and as such will be protected by clause (2) but according to the majority view in the Bombay appeal, which must prevail, such purchases will become, as a result of the Explanation, an intra State purchase in Travancore and consequently out of the protection of clause (2) and liable to taxation by Travancore law. Even if according to my view these purchases fall within clause (2) they will nevertheless be liable to be taxed under the Travancore Act, in spite of that clause, by virtue of the order made by the President in exercise of the powers conferred on him by the proviso to that clause. These purchases will not get any protection under clause (1) (b) because the goods purchased were not the goods that were exported. These purchases, if any, will, therefore, be liable to be taxed under the Travancore Act. The third source from which the respondents purchase raw cashew nuts is Africa. The respondents place orders for the purchase of raw cashew nuts with commission agents in Bombay and the Bombay agents pass on the orders to the African sellers or their agents in Bombay. The African sellers theft send the goods by steamer and send the bills of lading, invoice etc. to their bank in Bombay. The bank presents the documents to the Bombay agents of the respondents and the Bombay agents pay the price 15 114 and take delivery of the shipping documents in Bombay. The Bombay agents then prepare their own invoice showing the amounts paid by them on account of the respondents and their own commission and send their invoice together with the shipping documents to their Travancore bank. The Travancore bank presents all these documents to the respondents who pay the Bombay agents ' invoice amount and take delivery of the shipping documents. All these generally happen while the goods are on the high seas. On arrival of the goods at Travancore port, the respondents clear the goods on presenting the bill of lading etc. This is the main type of purchase of African raw cashew nuts. The appellant State concedes that these are not liable to tax. In the first place the purchases were outside the State and, therefore, clause (1)(a) applies. In the next place these purchases took place I 'in the course of " import and as such are exempt from taxation under article 286(1)(b), because (i) they themselves occasioned the import as already held by this court and (ii) the property in the goods passed and the purchases took place when the goods were on the high seas. These purchases, however, cannot be said to have taken place "in the course of" export, for reasons already explained. There is another type of purchase of African raw cashew nuts. There the African sellers ship raw cashew nuts on their own initiative or at the instance of their Bombay agents and while the goods are on the high seas, they are sold by endorsement and delivery of the bills of lading etc. at Bombay to the Bombay agents of the respondents and then the same procedure is followed as in the first case. Here the purchase by the respondents did not occasion the import, but, nevertheless, the sale or purchase was outside the State and further the goods being on the high seas at the time when the property passed such sale or purchase must be regarded as having taken place "in the course of" import of the goods according to the mechanical test explained above. The learned Advocate General of the appellant State does not dispute that such purchases are also to go free from sales tax, 115 The next type of purchase of African raw cashewnuts is as follows: The different respondents place separate orders with the same Bombay commission agents and the Bombay commission agents place one consolidated order for the entire quantity of the goods with the African sellers. The African sellers thereupon ship the entire lot of goods under one bill of lading and they send the bill of lading and invoice etc. to their Bombay bank and the Bombay bank presents the same to the Bombay agents. The Bombay agents pay for the entire lot of goods and obtain delivery of the shipping documents and then they prepare separate invoices for each of their constituents, namely, the respondents, including their own commission and split up the consignment in the sense that the draw separate delivery orders covering the respective quantity of goods ordered by each respondent and send such invoice and delivery orders to the Travancore bank, who presents the same to the respondents who receive the delivery orders against payment. The goods are then cleared on the original bill of lading on arrival of the steamer at Travancore and thereafter the respondents take delivery of the goods from the warehouse of sellers or the Bombay agents against their respective delivery orders. A purchase of this type cannot properly be said to occasion the import of the goods. What really occasions the import of the goods is the order placed by the Bombay agents. The Bombay agents not having passed the orders placed by the respondents separately to the African sellers and the African sellers not having shipped the respective quantities of goods under separate bills of lading none of the orders can be said to have occasioned the import, for in such a case there is no privity between the African sellers and the individual respondents and the import is referable only to the order placed by the Bombay agents which in the eye of the law is not the order of any of the respondents but a consolidated order placed by the Bombay agents on their own responsibility and account with the object of eventually distributing the goods amongst the different respondents in fulfilment of their respective orders. In the next place the delivery of the bill of 116 lading covering the entire goods to the Bombay agents cannot be said to be a delivery to the respondents of the goods separately ordered by each of the respondents. The sale in such a case takes place in Travancore on the handing over of the delivery orders to the respective respondents and the delivery of the goods thereunder from the warehouse in Travancore. These goods, therefore, cannot claim exemption from tax under the provisions of article 286 (1) (a) or 286 (1) (b) or 286 (2). The last type of transaction in African raw cashewnuts is where the purchase takes place after the cashew nuts arrive in Travancore port and are thereafter sold and delivered ex godown to the respondents. This is clearly a case of intra State sale and clauses (1) (a) and (2) of the article can have no application to it. The respondents cannot claim exemption under clause (1)(b) for reasons stated above. As the respondents do not claim any exemption from taxation with respect to pre Constitution purchases, the same need not be discussed separately. For reasons stated above, the decision of the High Court must be upheld only to the extent that the assessments should be quashed. The matter must, however, go back to the Sales Tax Officer who must make a reassessment in the light of the principles laid down in the two previous cases referred to regarding clause (1) (a), the Explanation and clause (2) and in the light of the principles discussed above regarding clause (1)(b). Agent for the appellants in all the appeals: G. H. Rajadhyaksha. Agent for the respondents in Appeals Nos. 26 and 33: Rajinder Narain. Agent for the respondents in Appeals Nos. 27, 30 to 32 and 34 to 36: section Subramanian. Agent for the Union of India and the States of Madras, Hyderabad, Punjab and Mysore: G. H. Rajadhyaksha.

IN-Abs

Held, by (PATANJALI SASTRI C.J., MUKHERJEA, VIVIAN BOSE and GHULAM HASAN JJ.) (i) Sales and purchases which themselves occasion the export or import of the goods, as the case may be, out of, or into, the territory of India come within article 286 (1) (b) and are exempt from State taxation. (ii) Purchases in the State by the exporter for the purpose of export as well as sales in the State by the importer after the goods have crossed the customs barrier are not within the exemption. (iii) Sales in the State by the exporter or importer by transfer of shipping documents while the goods are beyond the customs barrier are within the exemption, assuming that the State power of taxation extends to such transactions. The word " course " etymologically denotes movement from one point to another and the expression " in the course of " in article 286 (1) (b) not only implies a period of time during which the movement is in progress but postulates also a connected relation. Consequently, a sale in the course of export out of the country 54 should be understood in the context of article 286 (1) (b) as meaning a sale taking place not only during the activities directed to the end of exportation of the goods out of the country, but also as part of or connected with such activities. But a purchase of goods for the purpose of export is only an act preparatory to their export and not an act done in the course of the export of the goods, The respondents purchased raw cashew nuts within the State of Travancore Cochin, from the neighbouring states and also imported such nuts from Africa, for the purpose of refining them and exporting them to America. Imports from Africa were made in the following ways: (a) purchases were made through intermediaries doing business as commission agents at Bombay who acted as agents for the respondents charging commission; (b) the commission agents at Bombay indented the goods on their own account and they sold the goods as principals to the respondents. In either case the goods were shipped direct from Africa to a port in the Travancore Cochin State. It was found as a fact that the process of the factory was such that the goods were not the same goods commercially after refinement: Held, (i) as regards purchases made in the local markets of the State they were not exempted under article 286 (1) (b); (ii) as regards purchases made in the neighbouring States, if the purchases were effected and delivery was taken by the respondents ' servants outside the Travancore Cochin State, they would be exempt under article 286, cl. (i) (a), and if the purchases were effected by employing firms doing commission business outside the State and deliveries were made through normal commercial channels the transactions would be of an inter State character and would fall under cl. (2) but they would be taxable under the Sales Tax Continuance Order (No. 7 of 1950) issued by the President under cl. (2) as such tax was being levied before the Constitution. (iii) As regards imports from Africa, where the Bombay merchants merely acted as agents, the transactions would be purchases which occasioned the import and would be exempt under article 286 (1) (b), but where the Bombay merchants did not act as agents for the respondents, purchases from them would be on the same footing as local purchases and would not be exempt. Per S.R. DAS J. The Explanation to article 286 (1) (a) is not an exception or a proviso but only explains cl. (1) (a). It does not confer taxing power on any State but only takes away the power of taxation of a State in respect of sales and purchases in which delivery does not take place within the State by enacting that such sales shall be deemed to have taken place outside that State within cl. (1) (a). Consequently, if a sale or purchase takes place outside a State, either under the general law or by virtue of the fiction created by the Explanation, then that State cannot, under (1) (a), tax such sale or purchase. If a sale or purchase takes place within a State, either under the general law or by reason of the Explanation, then, if such a sale or purchase takes place 55 " in the course of " inter State trade and commerce, no State, not even the State where the sale or purchase takes place as aforesaid can tax it by reason of (2), unless and until Parliament by law provides otherwise. A sale or purchase " in the course of " import or export within the meaning of (1) (b) includes (i) a, sale or purchase which itself occasions the import or export as already held by this court, (ii) a sale or purchase which takes place while the goods are on the high seas on their import or export journey. and (iii) the last purchase by the exporter with a view to export and the first sale by the importer to a dealer after the arrival of the imported goods. If a sale or purchase takes place within a State, either under the general low or by reason of the Explanation, then, if it takes place in the course of import or export as explained above, no State, not even the State within which such sale or purchase takes place can tax it by reason of (1) (b). As regards local purchases, as those purchases took place with. in the State they were not entitled to the protection of article 286 (1) (a), since on the findings of the High Court, the goods purchased were so altered that they cannot be deemed to be the same as the goods which were exported, and the purchases cannot be said to have been made "in the course" of export so as to be entitled to immunity from taxation under article 286 (1) (b). As regards purchases from the neighbouring States, if the goods were taken delivery of by the agents of the respondents outside the State, such purchases must, under the Explanation, be regarded as having taken place outside the State and accordingly would be exempt from taxation under article 286 (1) (a). If however, the goods were directly delivered to the respondents in the Travancore Cochin State the Explanation to article 286 (1) (a) will apply in view of the finding of the High Court which implies that the goods are also consumed in the State, and the neighbouring States will not be entitled to tax these sales or purchases, but the purchases are " in the course of " inter State trade and as such will be protected by (2); but as the majority of the Court have taken a different view and as such view must prevail, such purchases will become, as a result of the Explanation to (1) (a), an intra state purchase and will lose the protection of (2). Even if such purchases fall within (2), they would be liable to be taxed under the President 's Order of 1950. They are not protected by (1) (b) as the goods exported are different goods. As regards purchases from Africa (1) where the Bombay merchants act as agents of the respondents and pay the price and take delivery of the shipping documents in Bombay the purchases fall within (1) (a) and also (1) (b) and are not liable to tax as they take place outside the State within (1) (a) and also "in the course of import" within (1) (b); (ii) where the African sellers ship the goods on their own initiation or on that of their agents and while the goods are on the high seas they are 56 purchased by the, respondents ' Bombay agents, the sale or purchase would be exempt under (1) (a) and under (1) (b); (iii) where the respondents place separate orders with the same commission agent at Bombay and the latter places a consolidated order with the African seller on his own responsibility and the Bombay agent after paying for the entire lot, prepares a separate invoice for each of their constituents and the latter receive the delivery orders from a Travancore bank against payment and take delivery from a Travancore warehouse the sale takes place in the Travancore Cochin State and the goods cannot claim exemption under (1) (a), (1) (b) or (2) of article 286.

Appeal No. 132 of 1963. Appeal by special leave from the award date July 5, 1961 of the Industrial Tribunal Assam Reference No. 39 / 59. D. L. Sen, and Janardan Sharma, for the appellants. Sankar Bannerjee, S.N. Mukherjee and B.N Ghose, for respondent No. 1. A.V. Viswanatha Sastri, B.P. Maheshwari an P.K. Ghose, for respondent no.2. December 2, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR J. The industrial dispute which has given rise to this appeal arose between the appellants, the workmen of Subong Tea Estate, and the management of Subong Tea Estate represented by respondents 1 & 2. Respondent No. 1, M/s. Macneill 604 & Barry Ltd., who managed the Subong Tea Estate, has transferred the said estate to respondent No. 2, M/s. Gungaram Tarachand otherwise known as Hindusthan Tea Company. On the occasion of the retrenchment of the 8 employees in question, respondent No. 1 has paid adequate retrenchment compensation to them. The appellants, however, contended that at the relevant date when the 8 workmen were retrenched, respondent No. 2 was their employer, and so, respondent No. 1 had no authority to pass the orders of retrenchment. It was further their case that the impugned retrenchment is invalid and illegal inasmuch as it is not justified under section 25F of the (No. 14 of 1947) (hereinafter called the Act), and has not been carried out according to the principles prescribed by section 25G of the said Act. That is how the dispute in regard to the impugned retrenchment came to be referred by the Governor of Assam for industrial adjudication to the Industrial Tribunal, Assam, under section 10(1) (d) of the Act. Four issues were referred to the Tribunal for its adjudication. The first issue was whether the impugned retrenchment of the 8 workmen was justified ; the second was whether respondent No. 2, the transferee Co., was justified in refusing to maintain the continuity of service and original terms and conditions of the workmen concerned; under the third issue, the Tribunal was required to consider whether the workmen concerned were entitled to reinstatement and any other relief; the fourth issue which was added some time later, required the Tribunal to decide whether the retrenched workmen were entitled to any further relief in case their retrenchment was held to be valid. The Tribunal has answered all these questions against the appellants, except in regard to two employees Mr. G. C. Bhattacharjee and Mr. P. K. Sarma Chowdhury in whose cases the Tribunal has recommended that respondent No. 1 should pay them gratuity ex gratia in such sums as respondent No. 1 may consider reasonable with due regard to compensation already paid to them. it is this award which is challenged before us by the 605 appellants in the present appeal which has been brought to this Court by special leave. Before dealing with the points of law raised in the present appeal by Mr. Sen Gupta on behalf of the appellants, it is necessary to state the material facts in some detail. The agreement of transfer between respondent No. 1 and respondent No. 2 (hereafter called the Vendor and the Vendee respectively) was reached on the 12th January, 1959. It was agreed between the parties that when the agreement was completed, it would take effect from the Ist January, 1959. This agreement was subject to the approval of the Reserve Bank of India. The said approval was accorded on the 15th July, 1959, and the conveyance was actually executed on the 28th December, 1959. Pending the execution of the conveyance, on the 17th February, 1959, the Vendee was put in possession of the tea garden. These facts are not in dispute. On the 31st August, 1959, Mr. Hammond, the Manager of the Vender Co., served notices on the 8 employees in question intimating to them that their services would be terminated with effect from the 1st October, 1959. The said employees were told that they would be paid the salary for the month of September, but would not be required to work. They were also informed that retrenchment compensation under section 25F of the Act as well as pro rata dues on account of leave wages earned on 31st August, 1959 would be paid to them and their claims for Provident Fund dues would likewise be settled. In pursuance of these notices, the eight employees were paid retrenchment compensation due to them on the 31st August, 1959. On the Ist September, 1959, the Union representing the said employees, protested against the retrenchment in question. Mr. Bhattacharjee, the Secretary of the Union, alleged in his communication to the Vender Co. that the impugned retrenchment was invalid and that Mr. Hammond had no power to terminate the services of the said employees. The said employees 606 further complained that they were compelled to take notices of retrenchment and receive the amount of compensation, and that the acceptance of the said amount by them was without prejudice to their claim for continuity of service and to their right to challenge the validity of their retrenchment. The case made by the Union and the retrenched workmen in substance, was that on the 17th February, 1959, the tea garden had been delivered over to the Vendee and that there after the Vendor had no right, title or connection with the said garden and as such, it ceased to be the employer of the employees working in the garden. This position was disputed by the Vendee and that has ultimately led to the present dispute. The decision of the main question about the validity of the impugned retrenchment depends upon the applicability of section 25FF of the Act to the facts of this case, and that, in turn, will need an examination of the relevant facts in relation to the transfer of title and management of the tea garden from the vendor to the Vendee. In that connection, it would be useful to refer to the negotiations that took place between the parties and the correspondence that passed between them before the sale deed was actually executed. This evidence would give us an idea as to the intention of the parties and their conduct which would have a material bearing in deciding the question as to whether or not transfer of management had taken place in favour of the Vendee prior to the date of the impugned orders of retrenchment. On 24/26 of Dec., 1958, the Managing Agents of the Vendor Co. wrote to the Vendee that the Vendor was agreeable, pending the completion of the sale, to deliver possession of the estate to the Vendee against the payments as specified in clause 10 of the vendor 's letter of offer, and they added that after the Vendee obtained possession, he would be precluded from claiming avoidance of the contract on any ground whatsoever, save and except on the ground of the Reserve Bank 's sanction not being obtainable. The letter further specified the consequences of the 607 delivery of possession of the tea garden to the Vendee. One of the consequences thus enumerated was that after the delivery of possession, the management and the operational control of the estate would be in the hands of the Vendee, and the Garden Manager of the Vendor would be allowed to continue to occupy the Bungalow in order to assist the working of the estate under the management and control of the Vendee. It appears that the Vendee was not prepared to continue the European employees and members of the administrative staff, and so, the Vendor intimated to the Vendee in this letter that from the date of the delivery of possession, the Vendee will not have to pay the salary or remuneration of the Garden Manager and the other European employees of the estate, but the entire Indian staff and labourers would continue to be employed by the Vendee during the period that the garden will remain in its possession pending the completion of the sale. Clause 13 of this letter referred to the agreement that the sale was to take effect from the 1st January, 1959, and added that the management and operational control of the estate would be delivered over to the Vendee on its taking possession of the tea estate. On the 5th January, 1959, the Vendee replied to the above letter, and so far as the statements in paragraphs 10 and 13 of the Vendor 's letter are concerned, the Vendee accepted them as correct. 0n the 30th January, 1959, M/s. Macneill & Barry Ltd wrote to the Vendee expressing their regret that they could not make over possession of the tea estate to the Vendee 's Manager until they received the Vendee 's acceptance of the title in accordance with the terms and conditions of sale already agreed upon between them. Correspondence followed between the parties and on the 11th February, 1959, M/s. Macneill & Barry Ltd. wrote to the Vendee that they,had duly received the Vendee 's acceptance of the title of the Vendor. Along with this letter, a provisional state ment of account covering the running expenses and 50 per cent of the value of the Stores, was sent to 608 the Vendee. The letter further expressed the hope that the Vendor expected to receive a cheque for a total sum of Rs. 1,70,000 to cover the items shown in the accompanying statement. The letter further added that after the said cheque was received, possession would be delivered over to the Manager of the Vendee. Meanwhile, on the 9th February, 1959, M/s. Macneill & Barry Ltd. wrote to the Vendee that they proposed to lay off all workers and clerical staff members, other than those required for essential works for a period of 45 days from the 18th February, 1959 and this decision had been taken by them as an economy measure in respect of all the tea gardens under their management. They, therefore, wanted the advice of the Vendee immediately as to whether the Vendee desired that the proposed lay off should apply to Subong Tea Estate which was being sold to the Vendee. The letter added that if lay off was effected, it may give rise to an industrial dispute and that whatever the decision in the said dispute would be, would bind the Vendee. At this stage, we may add that the vendee ultimately told Macneill & Barry Ltd. that it was not agreeable to declare a lay off and accordingly, no lay off was declared in respect of the tea estate in question, though it appears that lay off was declared by Macneill & Barry Ltd. in respect of the other tea estates under their management. On the 13th February 1959, Macneill & Barry Ltd. wrote to the Vendee that they had received a cheque for Rs. 1,20,000 and thereafter had instructed their Manager telegraphically to deliver possession of the garden to Mr. Gopiram Agarwalla, the Vendee 's Manager on the 16th February. The Vendor 's Manager had also been instructed to deliver the Cash Balance on the same day. In pursuance of this letter, Mr. Hammond, the Acting Manager of the Vendor Co., handed over possession to the Manager of the Vendee on the 17 February, 1959. And on the 21 st February, 1959, Mr. Hammond reported to the Labour Officer that the new owners had decided not to lay 609 off the workmen of the said garden. After delivering possession to the Vendee 's Manager, Mr. Hammond made a report in that behalf to Macneill & Barry Ltd. He added that he had obtained a receipt from the Vendee in token of the delivery of possession of the garden. He also informed his principal that the Vendee had decided to continue and employ all workmen and not to declare any lay off, and so, lay off notices had not been issued in respect of the employees of the said garden. After the tea garden was delivered over to the Vendee, on the 3rd March, 1959 Macneill & Barry Ltd. enquired from the Vendee whether the tea chests which had already been ordered by the Vendor would be needed by the Vendee, and the Vendee replied by saying that it would make its own arrangement for getting the supply of tea chests, and that the order under reference given by the Vendor in that behalf may be cancelled. It appears that pending the formal execution of the conveyance, the Controller of Licensing had called upon the Vendee to produce the relevant documents in support of the transfer of the tea garden in its favour. This communication was addressed by the Controller of Licensing to the Vendee on the 4th May, 1959. The approval of the Reserve Bank was, however, not received till the 15th July, 1959. Pending the receipt of the said sanction, it was arranged between the Vendor and vendee that Mr. Hammond should sign the necessary excise documents. On the 28th August, 1959, the Vendee wrote to Macneill & Barry Ltd. enquiring from them the name of the person to whom the Vendee should submit its indent for the supply of Sulphate of Ammonia. Apparently, the Vendee was experiencing some difficulty in securing the said article and it wanted the assistance of the Vendor in that behalf. While the tea estate was thus being managed by the Vendee with the assistance, where necessary, of the Vendor, the Vendee wrote to M/s. Macneill & Barry Ltd. on the 25th August, 1959, and informed them that it had 1/SCI/64 39 already sent a list of the Indian staff whose services it wished to retain, and had called upon the Vendor to terminate the services of the surplus staff forthwith. This letter told Macneill & Barry Ltd. that action should be promptly taken to terminate the services of the said surplus staff as from the 1st September, 1959. In accordance with this letter, notices were served by Mr. Hammond on the 8 workmen concerned on the 31st August, 1959, and as we have already indicated, these workmen were paid their retrenchment compensation and their services were terminated. Amongst these 8 workmen, one was a Doctor engaged by the Vendor Co. in its Dispensary, two were Pharmacists in the said Dispensary and the remaining five were members of the clerical staff. This retrenchment led to a threat of strike, and so, Macneill & Barry Ltd. wrote to the Vendee that for the strike which was the result of retrenchment, the Vendor would not be responsible. As a result of the retrenchment, the letter added, the medical staff had become under staffed and that naturally led to grievances on the part of the employees. The letter further told the Vendee that it was not the duty of the Vendor to ensure that the retrenched employees leave the tea estate and that it was entirely the concern of the vendee to face the situation which may arise as a result of the said retrenchment. On the 28th December, 1959, the sale deed was eventually executed. The consideration for the transfer recited in the saledeed is Rs. 3,75,000. By this sale deed it was agreed that once the conveyance was completed, the transfer was deemed to have taken effect from the 1st January, 1959, and the purchaser had covenanted by this sale deed that he would be under obligation to every employee or labourer of the tea estate in question (except the European management and any other member of the Company 's executive staff) either to continue his services on the same terms and conditions of service as were applicable to him before the sale of the said tea estate, or to pay him 611 compensation Prescribed by law, subject to the other conditions specified in the document. While these developments were taking place between the Vendor and the Vendee, the Union of the appellants was making efforts to make enquiries in regard to the transfer of the tea garden from the Vendor to the Vendee. On the 13th January, 1959, the Secretary of the appellants ' Union wrote to Macneill & Barry Ltd. enquiring whether the Vendor proposed to transfer the tea garden, and drew their pointed attention to the requirements of section 25FF of the Act. Since no reply was received, the same query was repeated on the 17th April, 1959, and a copy of this query was forwarded to the Labour Officer, Cachar and the Labour Commissioner, Assam. When the Labour Officer addressed the same query to M/s. Macneill & Barry Ltd., the latter replied to the Union on the 25th April, 1959 that when making the transfer, they would bear in mind the requirements of section 25FF of the Act. They disputed the allegation of the appellants that there was any collusion between the Vendor and the Vendee in respect of the transfer under negotiation. Ultimately, when the retrenchment was effected, the appellants protested and persuaded the State Government to refer the dispute to the Industrial Tribunal for its adjudication. That, in brief, is the background of the relevant and material facts in the light of which the dispute between the parties has to be decided. It is somewhat remarkable that when the dispute was taken before the Industrial Tribunal, the Vendor did not accept its liability for retrenchment, and seemed to suggest that the Vendee was really concerned with it. From the date of delivery of possession of the tea estate until the completion of the sale, the Manager of the Vendor continued to remain in the estate in a supervisory capacity under the management and control of the Vendee, and so, it was urged that the Vendee alone had the right to retrench the workmen on the relevant date. 612 On the other hand, the Vendee contended that on the date the impugned retrenchment took place, the Vendor was the employer and the Vendee was in management of the garden as the Vendor 's Agent. That is why no claim could be made against the Vendee by the retrenched employees, and the dispute in regard to the said retrenchment was one in which the Vendee was not interested or concerned. The appellants challenged the correctness of the Vendee 's stand and, questioned the validity of the retrenchment on the basis that the Vendee was their employer and the retrenchment in question had contravened the provisions of section 25F and section 25G of the Act, and was otherwise invalid in law. The Tribunal has, in substance, upheld the plea raised by the Vendee and it has accordingly come to the conclusion that the retrenchment of the 8 workmen had been validly effected by the Vendor; the said employees had been paid their proper retrenchment compensation and as such, they were not entitled to any further relief in the present proceedings. Mr. Sen Gupta for the appellants contends that these findings are erroneous in law. The true legal position in respect of the industrial law as to retrenchment is not in doubt or in dispute. Section 25F of the Act prescribes the conditions precedent to a valid retrenchment of industrial employees. It provides that 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 one Month 's notice has been served on him as prescribed by subsection (a); compensation paid to him as provided for by sub section (b), and notice in the prescribed form is served on the appropriate Government as required by sub section (c). In other words, the three conditions prescribed by clauses (a), (b) and (c) of section 25F appear prima facie to constitute conditions precedent before an industrial workman can be validly retrenched. 613 Section 25G prescribes the procedure for effecting retrenchment. In substance, this provision requires that in the absence of any agreement between the employer and the workman, in effecting retrenchment in regard to any category of workmen 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. This industrial principle is generally described as "the last come first go" or, "the first come last go". Under section 25H, a rule has been prescribed for the re employment of retrenched workmen. This rule requires that after effecting retrenchment, if the employer proposes to take into his employment any persons, he shall give an opportunity to the retrenched workmen who offer themselves for re employment and these retrenched workmen shall have preference over new applicants. Thus, section 25F prescribes the conditions precedent for retrenchment, section 25G prescribes the procedure for retrenchment and section 25H recognises the right of retrenched workmen for re employment. In dealing with the question of retrenchment in the light of the relevant provisions to which we have just referred, it is, however, necessary to bear in mind that the management can retrench its employees only for proper reasons. It is undoubtedly true that it is for the management to decide the strength of its labour force, for the number of workmen re quired to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion, and so, occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertaking. In such a case, if any workmen become surplus, it would be open to the management to retrench them. Work men may become surplus on the ground of rationalisation or on the ground of economy reasonably and bona fide adopted by the management, or of other industrial or trade reasons. In all these cases, the man 614 agement would be justified in effecting retrenchment in its labour force. Thus, though the right of the management to effect retrenchment cannot normally be questioned, when a dispute arises before an Industrial Court in regard to the validity of any retrenchment, it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified for proper reasons. It would not be open to the management either capriciously or without ,.any reason at all to say that it proposes to reduce its labour force for no rhyme or reason. This position can not be seriously disputed. Having considered the general provisions prescribed by the Act in regard to retrenchment, it is now necessary to look at section 25FF. Section 25FF deals with cases where the ownership or management of an undertaking is transferred. Such a transfer may be effected either by agreement or by operation of law. The section provides that in all cases which do not fall under the proviso to the section, on a transfer of ownership or of management of an industrial undertaking, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer, shall be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. In other words, cases of transfer not covered by the proviso to section 25FF, attract the provisions of section 25F and that proceeds on the basis that the transfer in question brings about retrenchment of the employees to which the section applies. It is on that basis that the employees of the transferred undertaking become entitled to compensation and notice. The appellants contend that in the present case, transfer of management took place on the 17th February, 1959 when the Vendor delivered over to the Vendee possession and management of the tea estate; and the argument is that it is after the transfer of management thus took place that the retrenchment in question was effected. It is not a case where workmen were paid compensation on the 615 eve of transfer; it is a case where workmen of the transferred undertaking continued to be employed by the Vendee after transfer of management of the undertaking took place and as such, the retrenchment in question must, in law, be deemed to have been effected by the Vendee and must satisfy the test prescribed by section 25F and section 25G of the Act. Mr. Sastri for the Vendee, on the other hand, strenuously argues that on the date of retrenchment, the Vendee was not in law concerned either with the ' ownership or with the management of the undertaking. According to him, the delivery of possession on which the appellants base their case, cannot be said to amount to the transfer of the management of the undertaking under section 25FF. He contends that section 25FF deals with the transfer of the undertaking or the transfer of its management. The first relates to the transfer of the title and the second to the transfer of management as distinct from title. His case is that the. transfer which is evidenced by the conveyance executed between the parties on the 28th December, 1959 clearly shows that it was subject to two conditions; it had to receive the sanction of the Reserve Bank and the Vendee had made it clear that the staff whom the Vendee regarded as surplus had to be retrenched by the Vendor before the Vendee could take over the undertaking as an owner. Since these two conditions can be treated as conditions precedent to the transfer, there can be no question of the transfer of the undertaking having taken place before the date of retrenchment. Then as to the transfer of the management, Mr. Sastri 's argument is that the transfer of management to which section 25FF refers cannot take in cases of delivery of possession of the kind that took place between the parties to the present appears In the context, the transfer of ownership and transfer of management refer to the transfer of ownership on the one hand and transfer of management on the other, management and ownership being disintegrated from each other. If any undertaking is under the management of the Managing Agency and the rights 616 of the Managing Agency are transferred, it would be possible to postulate that the transfer of the Managing Agency amounts to the transfer of the management of the undertaking under section 25FF; where management is transferred as an incident of the transfer of ownership, it cannot be said that the incidental transfer of management evidenced by the delivery of possession is the kind of transfer of management which section 25FF has in view. Besides, Mr. Sastri urges that all that happened in the present case on the 17th February, 1959 was that the Vendee entered into possession, but continued to manage the estate as an Agent of the Vendor; until the two conditions precedent were satisfied, the Vendee could not have taken upon itself the task ' of managing the estate as an owner. If the sanction of the Reserve Bank had not been obtained, the whole transaction would have fallen through and that is an aspect of the matter which cannot be ignored in determining the effect of delivery of possession in the present case. That is why Mr. Sastri has supported the finding of the Tribunal that at the relevant date it was the Vendor who was the employer and as such, section 25FF came into play because the retrenchment was effected in consequence of one of the terms of transfer by which the Vendee refused to take over the surplus staff. There is no doubt some force in the contentions raised by Mr. Sastri, but in assessing the effect of these contentions, it will be necessary to bear in mind certain other facts which are of considerable significance. It is common ground that on the 15th July, 1959, the approval of the Reserve Bank was obtained, and so, there can be no doubt whatever that as from the 15th July, 1959, the essential condition precedent having been satisfied, the Vendee became the owner of the property. We have already noticed that the main stipulation in the conveyance was that whenever the conveyance may be actually registered, it was agreed to take effect from the Ist January, 1959. Even taking into account the fact 617 that the approval of the Reserve Bank was a condition precedent, there can be no escape from the conclusion that after the approval was obtained, the operative clause in the conveyance came into play and the Vendee who had already obtained possession of the estate became the owner of the property and his possession became the possession of the owner. Therefore, whatever may be the character of the Vendee 's possession from the 17th February to the 15th July, 1959, as from the latter date it would be impossible to accept the Vendee 's case that it continued to manage the property as the Agent of the Vendor. That is one important point which cannot be ignored. There are other aspects of this question which are equally important. We have noticed that when M/s. Macneill & Barry Ltd. had decided to declare a lay off in respect of all the tea estates under their management, they did not take that action in respect of the present tea estate, because on consulting the Vendee, they learnt that the Vendee was opposed to the lay off. The terms on which Macneill & Barry Ltd. enquired from the Vendee, what it thought about the proposed lay off, and the words in which the Vendee communicated its decision, clearly suggest that the parties treated the Vendee as the employer whose voice in the matter of lay off was regarded as decisive. It is not disputed that the leave pay as well as the wages from day to day were paid by the Vendee to all the employees including the 8 retrenched workmen. The work done by the employees was controlled, directed and supervised by the Vendee. the matter of purchasing fertilizer and the tea chests, it is the Vendee who decided and in fact, the order given by the Vendor for the supply of tea chests ha to be cancelled because the Vendee was going to make its own arrangements in that behalf. It is true that Mr. Hammond continued to stay in the Garden for some time, but as we have already seen until the conveyance was executed, the necessary excise documents could not be signed by the Manage of the Vendee and had to be signed by Mr Hammond 618 Thus, all the relevant facts in regard to the running of the tea estate and its management after the estate was delivered over to the Vendee on the 17th February, 1959, clearly and unambiguously show that the Vendee took charge of the estate and in fact, became the employer of the employees who were working in the estate. So far as the appellants are concerned, they were not parties to the transfer and in fact, did not know on what terms the transfer was being effected. So, in dealing with the technical question as to the effect of transfer, judged in the light of the relevant conditions agreed to between the parties in that behalf, we must bear in mind the factual position so far as the relations of the workmen with the Vendee are concerned. If the Vendee on taking possession of the estate, intervened in the management and continued the management of the estate on the basis that it was the employer in respect of the employees, then it would be idle for the Vendee to suggest that as between it and the employees, the relationship of employer and employee did not exist. We are, therefore, satisfied that at least from the 15th July, 1959, the tea estate was in the possession and management of the Vendee as an owner and that the conduct of the parties clearly shows that the Vendee was the employer and the workmen working in the garden including the 8 retrenched workmen were the Vendee 's employees. If that be so, whether or not the transfer of management took place on the 17th February, 1959, there can be little doubt that after the 15th July, 1959, the Vendee accepted the employees as its workmen and became answerable to them in that character. The impugned retrenchment cannot, therefore, be taken to attract the operation of section 25FF at all. It is not retrenchment consequent upon transfer; it is retrenchment effected after the transfer was made and it had been brought about by the transferee who, in the meanwhile, had become the employer of the retrenched workmen. Therefore, we are satisfied that Mr. Sen gupta is right in contending that the Tribunal erred in law in holding that the impugned retrench 619 ment had been properly effected by the Vendor and that the only relief to which the retrenched employees were entitled was compensation and notice under section 25FF of the Act. It is true that the notices for effecting the retrenchment were issued by Mr. Hammond and it was Mr. Hammond who paid the retrenchment compensation to the 8 employees. Mr. Sastri sought to make a point against the appellants by suggesting that the employees had accepted retrenchment com pensation and should not now be permitted to question the validity of the retrenchment. Apart from the fact that such technical pleas are not generally entertained in industrial adjudication, we cannot overlook the fact that after retrenchment compensation was paid to the employees on the 31st August, 1959, the next day they complained that they had been forced to accept the said compensation, because they were virtually told that if they did not accept the compensation, they would not receive their wages for the month of August. The notices issued by Mr Hammond and the payment of compensation made by him, and the fact that the payment of wages for the month of August was made by the Vendee 's Manager, can all be explained on the basis that once the Vendor and the Vendee agreed to retrench the 8 workmen, they decided to adopt the course which would apparently comply with the provisions of section 25FF. That being so, we are not impressed by the argument that the acceptance of retrenchment compensation by the 8 workmen should be held to create a bar against them in the present proceedings. It is not disputed that if we hold that the retrenchment ostensibly effected by Mr. Hammond is invalid be cause the Vendor Co. represented by Mr. Hammon had ceased to be the employer, then it would follow that the retrenchment must be deemed to have been effected by the Vendee and in that case, it is clearly invalid. It is conceded that if the retrenchment is held to be effected by the Vendee, it has not complied with section 25F or section 25G of the Act, and there can be 620 little doubt that failure to comply with section 25F would make the retrenchment invalid, and so would the failure to comply with section 25G, because no reasons have been recorded by the Vendee for departing from the rule prescribed by section 25G. In fact, we ought to add that no case has been made out for effecting any retrenchment at all, and as we have already emphasized, the employer 's right to retrench his employees can be validly exercised only where it is ,shown that any employee has become surplus in the undertaking. That being so, we must hold that the retrenchment of the 8 workmen being invalid in law, cannot be said to have terminated the relationship of employer and employee between the Vendee, respondent No. 2 and the 8 workmen concerned. They are accordingly entitled to reinstatement with continuity of service; they would also be entitled to recover their full wages for the period between the date of the retrenchment and the date of their reinstatement. In this connection, it has been brought to our notice that these 8 employees have been paid their retrenchment com pensation. The only direction we can make in that behalf is that when the Vendee reinstates the said employees and pays them their backwages, appropriate adjustments should be made taking into account the amount of retrenchment compensation received by each one of them. In the result, the appeal is allowed, the award made by the Tribunal is set aside and respondent No. 2 is directed to reinstate the 8 workmen without interruption of service and to pay them their back wages as indicated in this judgment Respondent No. 2 will pay the costs of the appellants in this appeal. Appeal allowed.

IN-Abs

On the 12th January, 1959, respondent No. 1, who managed the. Subong Tea Estate, agreed to transfer the aforesaid Estate of respondent No. 2. This agreement was subject to the approval to the Reserve Bank of India. The said approval was accorded on the 15th July, 1959, and the conveyance was actually executed on the 28th December, 1959. On the 17th February, 1959, the vendee i.e. respondent No. 2 was put in possession of the tea garden. On the 31st August 1959, the manager of the vendor company, served notices on the 8 employees in question intimating to them that their services would be terminated with effect from the Ist October, 1959. The eight employees were also paid retrench ment compensation. The Union representing the said emplo yees, protested against the retrenchment in question. The dispute in regard to the impugned retrenchment was referred to the Industrial Tribunal, under section 10(1) (d) of the Act. The Tribunal held that the impugned retrenchment had been validly effected by the vendor. It is against this award that the appellants have come to this Court. Held: (i) Section 25F of the Industrial Disputes Act provides that no workmen 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 one month 's notice has been served on him as prescribed by sub section (a); compensation paid to him as provided by sub section (b), and notice in the prescribed form is served on the appropriate Government as required by sub section In other words, the three conditions prescribed by cls. (a), (b) and (c) of section 25F appear prima facie to constitute conditions precedent before an industrial workman can be validly retrenched. (ii) Section 25F prescribes the conditions precedent for re trenchment, section 25G prescribes the procedure for retrenchment and section 25H, recognises the right of retrenched workmen for re employment. (iii) The impugned retrenchment cannot, therefore, be taken to attract the operation of section 25FF at all. It is not retrenchment consequent upon transfer it is retrenchment effected after the transfer was made and it had been brought about by the transferee who, in the meanwhile, had become the employer of the 603 retrenched workmen. The impugned retrenchment being invalid in law, can not be said to have terminated the relationship of employer and employee between the vendee. respondent No. 2 and 8 workmen concerned. Therefore, the Tribunal erred in law in holding that the impugned retrenchment had been properly effected by the vendor and that the only relief to which the retrenched employees were entitled was compensation and notice under s.25FF of the Act. (iv) The acceptance of retrenchment compensation by the 8 workmen should not be held to create a bar against them in the present proceedings for the reason that such technical pleas are not generally entertained in industrial adjudication. (v) In the present case, if the retrenchment effected by the vendor company is invalid because it had ceased to be the employer, then it would follow that the retrenchment must be deemed to have been effected by the vendee. The retrenchment effected by the vendee is invalid for the reason that it has not complied with section 25F or section 25G of the Act. In the present case no case has been made out for effecting any retrenchment at all. The management can retrench its employees only for proper reasons. The employer 's right to retrench his employees can be validly exercised only where it is shown that any employee has become surplus in the undertaking. Workmen may become surplus on the ground of rationalisation or on the ground of economy reasonably and bonafide adopted by the management or of other industrial trade reasons.

Appeal No. 128 of 1963. Appeal by special leave from the judgment and order dated September 21, 1961 of the Bombay High Court in Income Tax Reference No. 32 of 1959. N.D. Karkhanis, R.N. Sachthey and B.R.G.K. Achar, for the appellant. R.J. Kolah, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the respondent. December 2, 1963. The Judgment of the Court was delivered by SHAH, J. Henry Gannon who was a registered holder of 2674 shares of Gannon Dunkerley & Company a private Limited Company with its registered office in Bombay died on May 13, 1945, having made and published a will disposing of his extensive estate in the United Kingdom and in British India. The National Bank of India Ltd. obtained probate of Gannon 's will in the United Kingdom and appointed the respondent James Anderson its attorney to administer the estate in British India. Anderson applied for and obtained in India on August 14, 1946, Letters of Administration "durante absentia" to the estate of Gannon in British India. 450 out of the shares were specifically bequeathed by Gannon to certain legatees, and in the course of administration, share certificates with transfer forms duly executed were delivered to the legatees in respect of those shares and no question arises in this appeal in regard to those shares. By agreement dated August 14, 1946, between the executor to the estate, the Company and one Morarka, the executor agreed to sell the remaining 2224 shares of the Company to Morarka and pursuant thereto the relevant share certificates with transfer deeds were handed over to Morarka on October 12, 1946, against payment of the price at the rate of Rs. 140 per share. Morarka, for some reason which is not clear from the record, failed to present the transfer deeds and the share certificates for registration at 593 the office of the Company and the name of Gannon remained at all material times on the register of shareholders in respect of those 2224 shares. In the assessment of the Company for the assessment years 1946 47 and 1947 48 the Income tax Officer, Bombay, made an order on March 26, 1953, under section 23A of the Income tax Act, 1922 (as it then stood) that certain undistributed parts of the assessable income of the Company shall be deemed to have been distributed as dividends amongst the shareholders as at the dates, viz., May 26, 1947, and December 22, 1947, of the General Meetings of the Company. The net dividends so deemed to be distributed in respect of the shares were Rs. 61,051 and Rs. 3,73,099. The Income tax Officer then issued on March 28, 1953, a notice under section 34(1)(b) of the Income tax Act addressed to "James Anderson, Administrator to the Estate of late Mr. Henry Gannon" reciting that he had reason to believe that Anderson 's "income assessable to income tax for the year ending 31st of March 1949" had escaped assessment and that he proposed to re assess the escaped income and for that purpose called upon Anderson to make a return of his total income and the total world income assessable for the year ending March 31, 1949. In compli ance with the requisition Anderson submitted a return, but did not include therein the dividend deemed to have been distributed under the order dated March 26, 1953. The Income tax Officer in his order of assessment included dividends deemed to be distributed and after processing the amount under section 18(5) included it in the total income of Anderson and levied tax thereon at the appropriate rate. Anderson 's appeals against the order of the Income tax Officer to the Appellate Assistant Commissioner and to the Income tax Appellate Tribunal, Bombay, were unsuccessful. At the instance of Anderson the following questions were referred by the Tribunal to the High Court of Bombay under section 66(1) of the Income tax Act: 1/SCI/64 38 594 "(1)Whether in the facts and in the circumstances of the case the assessment made on Mr. James Anderson, Administrator to the estate in India of Mr. Henry Gannon (deceased) is valid in law? If the above question is answered in the affirmative (2 ) whether in the facts and in the circumstances of the case the dividends of Rs. 61,051 and "Rs. 3,73,099 deemed to have been distributed on 26th May 1947 and 22nd December 1947 respectively under section 23A of the Income tax Act were assessable in the hands of the applicant?" The High Court answered the first question in the negative and declined to answer the second question. With special leave, the Commissioner of Income tax, Bombay, has appealed to this Court. The estate of Gannon to which the Letters of Administration relate, vested by virtue of section 211 of the Indian Succession Act, in Anderson, but he did not take steps to get his name entered in the register of shareholders maintained by the Company, and the Income tax Officer sought to tax the dividends deemed to have been distributed in the hands of Anderson as administrator of the estate of Gannon. The order made by the Income tax Officer under section 23A gives rise to a notional income: it merely creates a fiction about distribution and consequential receipt of dividend. The order by its own force however does not charge the income to tax: it has to be followed by an order of assessment to make tax on such income eligible. The sole question in this appeal is whether the Act contains machinery for assessing dividends deemed to have been distributed by virtue of an order under section 23A in respect of the shares held by a shareholder, when before the date on which the fiction of distribution becomes effective viz. , the date of the relevant General Meeting of the Company the registered shareholder has died and his representatives have not been substituted in the register of the Company. 595 It was held by this Court in Commissioner of Income tax, Bombay City II vs Shakumtala and others(1) following Howrah Trading Company Ltd. vs Commissioner of Income tax, Central Calcutta(2) that the expression "shareholder" in section 23A of the Indian Income tax Act, 1922, means a shareholder registered in the books of the company, and such shareholder alone is liable to be taxed in respect of the dividend deemed to be distributed. Counsel for the Commissioner submits that the principle of those cases applies only when the registered share holder is alive and the beneficial ownership in the shares is vested as a result of some transaction inter vivos in a person in whose name the shares do not stand in the Company 's register, but not where by the grant of representation to the estate of a registered shareholder who has died, the representative is invested, without his name being entered in the register, with the rights of the shareholder. Whether on the death of a shareholder his executor or administrator may enforce the rights of the shareholder or incur liability in respect of the shares to the Company, depends upon the nature of the right and the obligation, and terms of the statute and the articles of the Company which create those rights and obligations. The legal representative of a deceased person cannot vote on behalf of the shareholder and may not become a director of the Company on the strength of the representation alone. Again by the express provision contained in section 35 of the Indian Companies Act, 1913, a transfer of the share or other interest of a deceased member by his legal representative although he is himself not a member is as valid as if he were a member at the time of the execution of the transfer. This implies that the legal representative does not acquire in all cases the rights of a shareholder of a company in respect of shares of which the name of the deceased was registered as holder. But if the estate of a shareholder of a com (1) (2) 596 pany is by virtue of the Articles of the Company liable in respect of calls upon shares whether made during the life time of the holder or after his death, the legal representative is obliged to satisfy the calls in his representative character. This obligation arises not because the legal representative becomes, by virtue of probate or Letters of Administration, a shareholder in place of the person whose estate is vested in him, but because as a representative it is his duty to discharge the obligations enforceable against the estate. Under an order made by the Income tax Officer under section 23A of the Indian Income tax, 1922, dividend is deemed to be distributed among the shareholders and by the express provision contained in the statute the proportionate share of the dividend of each shareholder has to be included in the total income of such shareholder for the purpose of assessing his total income. The statute therefore in terms applies to the shareholder and makes the dividend taxable as his income. The obligation to pay the tax on the dividend so deemed to be distributed is of the shareholder, and may be enforced against him or his legal representative in the manner and to the extent the statute permits. There is no special machinery devised by the Income tax Act enabling assessment and levy of tax in respect of such deemed income from the estate of the shareholder in the hands of his legal representative when the order of the Income tax Officer pursuant to which the income was to be deemed to be distributed becomes effective was made after the death of the shareholder, and the general provision in section 24B for enforcement of liability against the legal representative of a deceased person to pay tax which would have been payable if such person had not died, has a limited application. In Commissioner of Income tax Bombay vs Ellis C. Reid(" it was observed by the Bombay High Court in rejecting the claim made by the Income tax Department to assess a deceased person 's estate (1) I.L.R. 5 Bom. 312: 597 in the hands of his legal representative to tax, that the definition of "assessee" in section 2(2) of the Indian Income tax Act, 1922 (as it stood at the material date) in terms only applied to a living person, the words being "a person by whom income tax is payable" and not "a person by whom or by whose estate Income tax is payable", and in the absence of appropriate provisions, for collecting tax from the estate of a deceased person in the Act, the claim of the Income tax Officer to make an assessment under section 23(4) must fail. The Court also observed that throughout the Income tax Act there is no reference to the decease of a person on whom the tax had been originally charged, and it was difficult to suppose that the omission was unintentional. In Reid 's case(" the tax payer had died after the commencement of the financial year but before the income of the previous year was assessed, and it was held that the executors under the will of the tax payer were not liable to pay tax on receipt of income due to the deceased, notwithstanding that he died while assessment proceedings were pending, because the proceedings could not be continued and the assessment could not be made after the tax payer 's death. To rectify the lacuna in the machinery of assessment the Legislature enacted section 24B, by the Indian Income tax (Second Amendment) Act, 18 of 1933. The first sub section of section 24B provided: "Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge the tax assessed as payable by such person, or any tax which would have been payable by him under this Act if he had not died." In interpreting that enactment this Court held in a recent case: Commissioner of Income tax, Bombay City 1 vs Amarchand Shroff (2) that by the incorporation of section 24B the Legislature has extended the legal personality of a deceased person for the duration (1) I.L.R. (2) 598 of the entire previous year in the course of which he died, and therefore the income either received by him before his death or by his heirs and representatives after his death in that previous year becomes assessable to tax in the relevant assessment year, but not the income received in the year subsequent to the previous or account year. In Amarchand Shroff 's case(1), 'A ' who was a partner in a firm of solicitors which maintained accounts "on cash basis" died on July 7, 1949. Outstandings of the firm in respect of professional services rendered prior to the death of 'A ' were realized during five years subsequent to 'A 's death and were divided between the partners of the firm and certain sums were paid to the heirs and legal representatives of 'A ' as his share. The Income tax Department sought to assess the amounts received by the legal representative of 'A ' as his share to tax under section 34 (1)(b) read with section 24B. It was held that section 24B did not authorise the levy of tax on receipts by the legal representative of a deceased person in the years of assessment succeeding the year of account in which such person died and accordingly the income received by him before his death and that received by his heirs and legal representatives after his death in that previous year became assessable to income tax in the relevant assessment year, but not receipts by the legal representatives after the expiry of the account year in which 'A ' died. In the case before us Gannon died in May 1945, and the dividend in respect of which orders under section 23A were passed was deemed to be distributed in the year of account ending March 31, 1949. The legal personality of Gannon as held in Amarchand Shroff 's case(1) came to an end for the purpose of section 24B at the end of the account year in which Gannon died and no tax could be levied under section 24B on the dividends deemed to have been received by him or his legal representatives after the end of that year. Counsel for the Commissioner sought to rely on the following observations made by Kapur, J, who spoke for the Court in Amarchand Shroff 's case(1) (at p. 67): (1)48 I.T.R. 59. 599 "In the present case the amounts which are sought to be taxed and which have been held not to be liable to tax are those which were not received in the previous year and are there fore not liable to tax in the several years of assessment. It cannot be said that they were income which may be deemed by fiction to have beer received by the dead person and therefore they are not liable to be taxed as income of the deceased, Amarchand, and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assessees for the purpose of assessment in regard to those years", and on the latter part of the opinion sought to raise two arguments (1) that even if after the expiry of the year of account receipts which if the person earning had not died would have been treated as his income, ceased to be liable to assessment as income of the deceased, they could still be taxed as his income in the hands of the legal representatives and (2) that where the income was notional as under section 23A the legal personality of the deceased must be regarded as extended to the end of the year in which such notional income must be deemed to have been received by the legal representatives of the deceased. The first argument is plainly inconsistent with what was decided in Amarchand Shroff 's case(1). In that case the Court held that the receipts by the heir or legal representative for professional services rendered by the deceased solicitor were liable to be brought to tax in the hands of the legal representatives only to the limited extent permitted by section 24B. The second argument involves the importation into the expression "deemed by fiction to have been received" a concept which was wholly alien to what was decided by the Court, for in Amarchand Shroffs case(1) the Court was dealing not with a fiction of distribution by an order under section 23A of dividends which never reached the shareholder or his legal representative, but to a fiction of receipt by a deceased person of income by extending (1) 600 his legal personality. Section 24B does not warrant the application of two different interpretations in the matter of extension of the legal personality of the deceased according as the income is actual or notional. Section 24B in terms refers to the liability of the legal representative to pay tax assessed as payable by such deceased person, or any tax which would have been payable by him under the Act if he had not died, and if the expression "tax which would have been payable under this Act, if he had not died" is intended to impose liability for tax on income received in the year of account in the course of which the tax payer died, a different interpretation of the same expression in the context of notional income would be impermissible. The Legislature not having made any provision generally for assessment of income receivable by the estate of the deceased person, the expression "any tax which would have been payable by him under this Act if he had not died" cannot be deemed to have supplied the machinery for taxation of income received by a legal representative to the estate after the expiry of the year in the course of which such person died. It was then urged that apart from section 24B, the legal representatives of a deceased person also represent his estate in the matter of taxation of income and it is competent to the taxing authorities to assess them on income received on behalf of the estate. Counsel did not rely upon any specific provision of the Act in support of the contention, and merely asserted that the Act seeks to tax all assessable incomes, and income received by a legal representative of the estate of a deceased person should not be permitted to escape tax to the detriment of public revenue. But if the Legislature has failed to set up the procedure to assess such income, the Courts cannot supply it. The expression "assessee" in section 2(2) as substituted by the Indian Income tax (Amendment) Act, 25 of 1953, with effect from April 1, 1952, means a person by whom income tax or any other 601 every person in respect of whom any proceeding and this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him. By section 3 where income tax is chargeable for any year at any rate or rates prescribed by the Act of the Central Legislature, tax at that rate shall be charged for that year in accordance with and subject to the provisions of the Act in respect of 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. The charge to income tax has therefore to be in accordance with and subject to the provisions of the Act, and the Legislature has not provided that the income received by a legal representative which would, but for the death of the deceased, have been received by such deceased person, is to be regarded for the purpose of assessment as the personal income of the legal representative To assess tax on such receipts on the footing that it is the personal income of the legal representative is to charge tax not in accordance with the provisions of the Act. We therefore agree with the High Court, though for somewhat different reasons. The appeal therefore fails and is dismissed with costs. Appeal dismissed.

IN-Abs

G, a holder of certain shares of a private limited company made a will disposing of his estate and died on May 13, 1945. The respondent obtained Letters of Administration "durante absentia" to the estate, and in pursuance of an agreement between himself, the company and one M to sell the shares to M, handed over the share certificates to M against payment of the price. M failed to present the share certificates for registration and the name 591 of G remained on the register of shareholders of the Company. The Income tax Officer made an order under section 23A of the Income tax Act (as it then stood) that certain undistributed part of the assessable income of the company shall be deemed to have been distributed as dividend amongst the shareholders as at the dates of the general meetings, viz., May 26, 1947 and December 22, 1947. The Income tax Officer then issued a notice under section 34(1) (b) to the respondent proposing to re assess his income and calling upon him to file a return for the relevant year. The respondent submitted a return, but did not include the dividend deemed to have been distributed by the order passed under section 23A The Income tax Officer included the dividends in the total income of the respondent and levied tax. The respondent 's appeals to the Appellate Assistant Commissioner and the Income tax Appellate Tribunal were unsuccessful. On reference, the High Court held that the assessment made on the respondent Administrator to the estate of G (deceased) was not valid in law. In appeal by special leave: Held (i) The legal representative does not acquire in all cases, the right of a share holder in respect of shares of which the deceased was registered as holder. But if the estate of a share holder of a company is by virtue of the Articles of the Company liable in respect of calls whether made during the life time of the holder or after his death, the legal representative is obliged to satisfy the calls in his representative character. (ii) There is no special machinery devised by the Income tax Act enabling assessment and levy of tax in respect of such deemed income from the estate of the share holder, in the hands of his legal representative when the order of the Income tax Officer pursuant to which the income was to be deemed to be distributed becomes effective was made after the death of the share holder. The provision in section 24B for enforcement of liability against the legal representative of a deceased person to pay tax which would have been payable if such person had not died, has a limited application. The expression "tax which would have been payable under this Act, if he had not died," in section 24B is intended to impose liability for tax on income actually received or deemed fictionally to be received in the year of account in the course of which the taxpayer died. This expression does not supply machinery for taxation of income received by a legal representative after the expiry of the year in the course of which such person died. Commissioner of Income tax Bombay vs Amarchand Shroff, [1963] Supp. I S.C.R. 699 and Commissioner of Income tax, Bombay vs Ellis C. Reid. I.L.R. , referred to. (iii) To assess tax on such receipts after the expiry of the year in the course of which the original owner died on the footing that it is the personal income of the legal representative is to charge tax not in accordance with the provisions of the Act.

Appeal No.547 of 1961. Appeal from the judgment and decree dated October 16, 1956 of the Kerala High Court in Appeal Suit No. 135 of 1953. T.N. Subramania lyer, M.S. Narasimhan and M.S. Sastri, for the appellant. A.V. Viswanatha sastri, T.S. Venkateswara Iyer, K. Jayaram and R. Ganapathy Iyer, for respondent No. 1. December 3, 1963. The Judgment of the Court was delivered by AYYANGAR J. This appeal is directed against the judgment of the High Court of Kerala and has been filed on the strength of a certificate of fitness 650 granted by the High Court under article 133(1)(a) of the Constitution. The appeal arises out of a suit filed by the respondent The Chaldean Syrian Bank Ltd. which for shortness we shall refer to as the Bank, for the recovery of certain sums due on a mortgage by deposit of title deeds executed by Kalayanasundaram Pillai the appellant 's father who was impleaded as the 1st defendant and is now the 2nd respondent before us. The mortgage on which the Bank laid this suit was evidenced by exhibit 'E ' a memorandum recording the deposit of title deeds of certain properties in the former princely State of Cochin. The debt for which the said deposit was made was the principal and interest due on two promissory notes for Rs. 50,000 and Rs. 30,000 respectively which were marked as Exs. A & B in the case. It was not in dispute that the property which was the subject of mortgage belonged to the joint family composed of the 1st defendant and his son the appellant. The appellant was a minor on the date of the suit transaction and even at the date of the suit. To the suit that it filed the Bank impleaded not merely Kalyanasundaram and his minor son, but the latter 's sisters and mother and even the lessees of the mortgaged property. These were defendants 3 to 11. They, however, have dropped out of the proceedings at earlier stages and the only parties to the appeal whose rights we are called on to adjudicate are the Bank and the appellant. The Bank 's suit was decreed by the trial court against the father Ist defendant and there was no appeal against it and that decree is no longer in challenge. The trial Judge however held that the Bank had no right to obtain a mortgage decree against the appellant and his half share in the family property, but on appeal by the Bank, the learned Judges allowed the appeal and modified the decree by passing a mortgage decree against the appellant qua his share as well. It is the correctness of this variation that is questioned in this appeal. 651 The execution of the promissory notes and the receipt of consideration therefore as recited therein were admitted by the 1st defendant, as also the creation of the security by the deposit of the title deeds of properties and whatever contentions were raised in respect of these matters on behalf of the appellant have now been abandoned. Some point was made on behalf of the appellant regarding the suit debt being avyavaharika, but this also has been found against and given up. The only question that survives is whether the mortgage evidenced by exhibit 'E ' is binding on the appellant. Here again it is now common ground, that the debt was a personal borrowing by the father, not for any purpose binding on the joint family. A few more facts have to be stated in order that the precise range of the controversy in this appeal might be properly understood. That Kalyanasundaram and the members of his family were permanent residents of Palghat in the then State of Madras that he with the appellant formed members of an undivided Hindu family and that the properties which were the subject of the mortgage were joint family properties, none of these were in dispute The family possessed properties not merely in Cochin but also in Palghat. We shall now proceed to detail the circumstances in which the borrowings which has given rise to this litigation were made. In or about May 1945 Kalyanasundaram entered into a contract with the Government of India for the supply of 100 tons of black pepper and also into further contracts of the same type later in the year. He had apparently no ready cash to implement these contracts and approached the Bank for funds for financing the undertaking. For this purpose he executed three promissory notes in favour of the Bank for a total of Rs. 1,10,000. The promissory notes marked Exhibits A and B for Rs. 50,000 and Rs. 30,000 respectively already referred to, were executed on November 14, 1945 and the debt evidenced by them was secured by a mortgage by deposit of 652 title deeds of properties in the Cochin State and this is the subject matter of the proceedings giving rise to this appeal. A few months later, on February 20, 1946 he executed another promissory note which is marked as exhibit 'C ' for Rs. 30,000. That also was accompanied by a further deposit of title deed which is recorded in exhibit 'F ' , but that was in part in relation to the family properties in Palghat in the State of Madras. As the amount due under these notes was not repaid at the time promised, the Bank filed the suit out of which the present appeal arises, in the Court of the Subordinate Judge, Chittur, which is in the Cochin State, for a mortgage decree in its favour for the amount of all the three promissory notes with the interest due thereon, though a mortgage decree was sought only against the properties in Cochin which were set out in the Schedule to the plaint. This suit was filed on June 17, 1948 but before the filing of the suit certain events happened to which it would be convenient to refer at this stage, because they figure largely in the defences that were raised in the suit on behalf of the appellant who was represented by his mother as guardian ad litem. On March 23, 1948 a petition for permission to file a suit in form pauperis was filed in the court of the Subordinate Judge at Palghat on behalf of the appellant by his uncle as his next friend. To that suit were impleaded as defendants Kalyanasundaram, the father, as well as the mother and as many as 31 other creditors of Kalyanasundaram including the respondent Bank. The relief sought in the suit was the effecting of a Partition of the family properties situated in Palghat and for the delivery of the half share therein to the minor plaintiff. With this was coupled a prayer for the setting aside of certain decrees which had been obtained by certain of the creditors who were impleaded as defendants, on the ground either that the promissory notes or other documents on which the decrees had been passed were not supported by consideration, or that these debts were tainted with illegality or immorality, the allegation being that 653 the father was leading a reckless and immoral life and was addicted to women. So far as the debt due to the Bank was concerned, the allegation was, though not expressed very clearly, that it was a borrowing for a personal business newly started by the father and would not, therefore, bind the minor 's share in the family properties. As already stated, the relief for partition in that suit was confined to the properties at Palghat in Madras. While this appli cation for leave to sue in forma pauperis was pending a notice was issued on May 27, 1948 through a lawyer purporting to act on behalf of the appellant, addressed to his father, in which the partition of the properties of the family situated in the Cochin State was demanded This notice was followed, by a deed of partition dated June 3, 1948 by which the properties of the family in the Cochin State were purported to be divided into two equal parts, the father being directed to pay the debts borrowed by him out of the share allotted to him, the deed reciting an agreement with the father that the minor should be free from any obligation discharge those debts. The debt due to the Bank which is the subject of the present proceedings, was among those the discharge of which the father under took under this deed marked as exhibit VI. The deed recited that this debt was a personal debt of the father and was therefore not binding on the son and this was assigned as the reason for the provision made for its discharge by the father without any obligation being laid upon the son in that behalf. One of the questions arising in the appeal is as regards the effect of this partition on the rights of the Bank to realise the moneys due to it from the share allotted to the son in the Cochin properties which were mortgaged under exhibit 'E. ' Reverting to the proceedings giving rise to this appeal, to the mortgage suit filed by the Bank several defences were raised on behalf of the appellant. It is not necessary to set out all of them but it would sufficient if those which have a bearing on the points urged before us are mentioned. Before dealing with 654 the controversial issues we may state that there were a few to which it is sufficient to make a passing reference. There was a formal denial of the truth and validity of the promissory notes and the passing of consideration thereunder and also about the sufficiency or admissibility of the memorandum exhibit 'E ' to create a mortgage by deposit of title deeds. These do not appear to have been seriously pressed and have been found in favour of the plaintiff bank. There was also an issue that the suit debt was tainted with illegality and immorality, but on the facts it was such an untenable plea that it was easily found against. Issue no 2 ran: "Whether the trade mentioned in the plaint was a new trade started by the 1st defendant or an ancestral trade and are not the debts contracted by the father the 1st defendant for purposes of the trade binding on defendant No. 2 even if the said trade be not ancestral?" This issue, at least the first part of it has been found in favour of the appellant that the trade viz., the supply of black pepper to the Government was a new trade started by the 1st defendant and was not an ancestral trade and that finding has not been disturbed by the High Court and being a concurrent finding on a question of fact was not naturally challenged before us. Closely related to this is issue No. 14 which ran: "Are the debts sued on incurred for family necessity and binding upon the 2nd defendant?" The learned trial Judge recorded a finding that the debts sued on were not incurred for family necessity nor for the benefit of the family. These findings also which were not varied by the High Court were not questioned before us. Incidentally it should be mentioned that the learned trial Judge found, when dealing with issue No. 9 which was a general issue relating 655 to the binding character of the debt on the appellant, that the mortgage was not for securing an antecedent debt, but this finding was reversed by the High Court, the learned Judges holding that to the extent of Rs. 59,000 the mortgage loan went in discharge of antecedent debts and we shall have occasion to deal with this matter in detail later in this judgment. The 13th issue ran: "Is the partition set.up by the defendants true and bona fide and binding upon the family?" This was answered in the affirmative and in favour of the appellant by the learned trial Judge but that finding has been reversed and the partition has been found not to be bona fide by the High Court and that is one of the points in controversy in the appeal before us. Issue No. 1 0 was in these terms: "Are the Defendants Cochin domiciles? Are they not governed by the law of the Indian Union being permanent residents of the Indian Union?" An issue in this form arose because of the different views entertained of the Hindu law as regards the scope of the pious obligation of a son to discharge the debts of the father which are not illegal or immoral. In the view of Hindu lawyers the repayment of a debt was conceived of not merely as a legal obligation which had been undertaken when the debt was incurred but non repayment was considered a sin. The duty of relieving the debtor from this sin was fastened on his male descendents to the third degree. The duty being thus religious, it was held not attracted if in its nature it was illegal, or immoral i.e., avyavaharika. Whatever might have been the extent of the son 's liability according to the Hindu law givers, under the Mitakshara law as administered in all the States, the liability of the son, grandson, great grand son etc., was not treated as a personal liability but as dependent on his becoming entitled to 656 family assets and that it extended to the entirety of his interest therein, but no more. The authorities to which it is wholly unnecessary to refer, have firmly established the following and the position is not in doubt: (1) A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of that debt. (2) The father can, so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral. In other words, the power of the father to alienate for satisfying his debts, is co extensive with the right of the creditors to obtain satisfaction out of family property including the share of the sons in such property. (3) Where a father purports to burden the estate by a mortgage for purposes not necessary and beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless the same was for the discharge of an antecedent debt. Where there is no antecedency, a mortgage by the father would stand in the same position as an out and out sale by the father of family property for a purpose not binding on the family under which he receives the sale price which is utilised for his personal needs. It need hardly be added that after the joint status of the family is disrupted by a partition, the father has. no right to deal with the family property by sale or mortgage even to discharge an antecedent debt, nor is the son under any legal or moral obligation to discharge the post partition debts of the father. (4) Antecedent debt in this context means a debt antecedent in fact as well as in time, i.e., the 657 debt must be truly independent and not part of the mortgage which is impeached. In other words, the prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated in fact so that they cannot be regarded as part of the same transaction. The latest of the rulings of the Privy Council in which the law as stated above was expounded is reported, as Brij Narain vs Mangla Prasad(1) and this Court in Panna Lal 'I vs Mst. Naraini(2) has expressly approved and adopted the same. in Cochin and Travancore, however, the law was understood somewhat differently. Both the High Courts of Cochin and Travancore when these States were under princely rule, held, following what they considered as the logical result of certain earlier decisions of the Privy Council, that a mortgage executed by a father, notwithstanding that the debt secured thereby be not incurred for family necessity or benefit but were purely personal, would be binding against the joint family property in the hands of the son even if the debt be not antecedent to the creation of the mortgage on the doctrine of the latter 's pious obligation to discharge them. This was on the principle enunciated by Bashyam Ayyangar in Chidambara Mudaliar vs Kootha Perumal(3) (a decision, however, subsequently overruled by a Full Bench of the Madras High Court in Venkataramayya V. Venkataramana(4) on the ground that it was inconsistent with several earlier rulings of the Privy Council) that it was difficult to make any distinction between a mortgage created for the discharge of an antecedent debt and a mortgage created for a debt then incurred, for in either case the debt not being avyavaharika is binding upon the son and the enforcement of the security exonerates the son from the burden of the father 's debt. (1) 51 I.A. 129. (3) I.L.R. (2) ; (4) I.L.R. 1/SCI/64 42 658 It would, therefore, be seen that if it were found that the debt to the Bank was not incurred for purposes necessary or beneficial to the family, the question whether the Hindu law rule applicable was the one as understood and applied in Cochin or that expounded in Brij Narain(1) would assume great importance, and for the ' ascertainment of the particular law which applied; the place of domicile of the family would have relevance. The learned Subordinate Judge found that the family of the father 1st defendant was a resident of and domiciled in Palghat and that therefore would not be governed by the rule of Hindu law as understood and applied by the High Courts of Travancore and Cochin. The learned Judges of the High Court while affirming the finding that the defendants were domi ciled in and residents of Palghat and were not even residents of Cochin, were still of the opinion that as the properties which were the subject of the mortgage were in Cochin, the Cochin view ' of the Hindu law was applicable to determine the rights of the parties on the basis of that interpretation of the law being the lex situs and applying that law came to the conclusion that eve a if the mortgage exhibit 'E ' was concurrent with and part of the same transaction as the debts which it secured, the mortgage was binding on the appellant 's share in the family property. It was on this line of reasoning that the learned Judges held that even though of the mortgage debt under exhibit 'E, only Rs. 59,000 was found by them as having been utilised for discharging the antecedent debts of the father, still the Bank was entitled to a mortgage decree against the share of the appellant to the extent of the entire mortgage money. This was one of the points which was canvassed before us, which. we shall deal with in its proper place. Pausing here and before setting out the points urged before us by the appellant, there is one matter that has to be mentioned merely for the purpose of clarification. As already stated, the suit as originally (1) 51 1. A. 129. 659 filed was for the recovery of the debt due under all the three promissory notes Exs. A, B & C and the interest accrued thereon which totalled over Rs. 1,27,000 though the property against which the mortgage decree was sought was confined to the Cochin property which was covered by the memorandum of deposit exhibit The learned Sub Judge, however, held that the suit in so for as the debt under the pronote exhibit C. for which properties in Palghat were given as security could not be sued for in his Court and disallowed the Bank 's claim to that extent. That portion of the decree has become final and was not challenged by the Bank on appeal. It might be mentioned that the Bank is stated to have subsequently filed a suit for that sum in the court in Palghat and has obtained a decree thereon. We are setting out these matters for pointing out that the appeal is practically confined to the binding character of the mortgage ExE in so for as it secured the repayment of the debts evidenced by. A & B. Learned counsel for the appellant urged the following contentions in support of the appeal: (1) The finding by the High Court that the partition of the family properties effected between the appellant and his father was not bona, ' fide was not justified on the, admitted facts and was based on erroneous reasoning. (2) The learned Judges erred in holding that the Hindu Law as understood and applied by the Courts in the previous Cochin State could determine the liability of the appellant who was a resident of Palghat. (3) The learned Judges erred in their finding that the mortgage evidenced Sy exhibit 'E ' was to any extent for the discharge of antecedent debts. The first question that falls for decision and of which the learned Judges of the High Court difference from the trial Judge was in relation to the nature of the partition which was evidenced by the registered instrument marked exhibit VI whether it was such as could be termed bona fide and satisfied the 660 requirements of a partition which would preclude the creditor of the father from having recourse to the share of the family property in the hands of the son. Before we deal with the facts relevant to that matter we consider it would be convenient to focus attention on the real points for determination in that context and for that purpose we shall extract a passage from the judgment of this Court in Pannalal vs Mst. Naraini(1) where this is dealt with. Mukherjea, J. explained the law on the point in these terms: "The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place. . . The question now comes as to what is meant by an arrangement for payment of debts. The expressions 'bona fide ' and 'mala fide ' partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not unoften lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defeat the crediditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appro priate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property, the liability of the sons for payment of the pre partition debts of the father will still remain . . . . An arrangement for payment of debts does not necessarily imply (1). ; 661 that a separate fund should be set apart for payment of these debts before the net assets are divided,, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case. We can conceive of cases where the property allotted to the father in his own legitimate share was considered, more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect there That may also be considered to be a proper arrangement for payment of the creditor in the circumstance of a particular case. After all the prima liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more the adequate for the purpose. If the arrangement made at the time of partition is reasonable a proper, an unsecured creditor cannot have an reason to complain. The fact that he is no party to such arrangement is, in our opinion immaterial of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he ha no charge or hen is diminished for purpose of realization of his dues. . Thus, in our opinion, a son is liable, even after partition for the pre partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition. " There are one or two observations which it is necessary to make before applying the law as here laid down to the facts of the present case. In the 662 first place we are here concerned primarily with the rights of the Bank as a secured creditor to proceed against the security, ignoring the partition. To such a situation the law as explained in the judgment in Pannalal 's case (1) would not have immediate relevance, for Mukherjea J. was dealing with the rights of an unsecured creditor of the father to proceed against the shares of the sons after a partition. In other words, the nature and bona fides of the partition and the right of the creditor to proceed against the share allotted to the son in such partition would arise for consideration only if the Bank were unable to establish that the mortgage was as such not binding on the son. This was the situation of the Bank when the learned trial Judge found that the mortgage was not binding on the appellant 's share in the family property. If, however, the mortgage were binding on the son either because it was created to raise money for purposes binding on the family as necessary or beneficial there for or was executed in order to discharge an antecedent debt of the father, the bona fides of the partition and the allotment of property to the sons cannot affect the rights of the secured creditor to proceed against the properties allotted to the son which are the subject of mortgage. In the present appeal, in view of the conclusion we have reached, for reasons which we shall discuss later in the judgment, that the mortgage under exhibit 'E ' was for securing the repayment of an antecedent debt, the bona fides of the partition would not have a crucial significance. Since however the question of the reality or the binding nature of the partition would arise in the event of the mortgaged, property being found in sufficient to dis charge the decree and the creditor or the decree holder thereafter seeks to proceed against properties allotted to the share of the appellant which were not included in the mortgage, we have thought it necessary and proper to examine it. Proceeding then to deal with the matter, we must first observe that the onus of proving that (1) ; 663 the partition arrangement is fair and bonafide in the sense explained by this Court in Panna Lal 's case(,,) was upon the appellant, and that the approach of the learned trial Judge to the question is vitiated by casting the burden of proving that the arrangement was mala fide on the creditor Bank. And for this reason. At the moment the liability was incurred by the father the creditor had a right to proceed against the entirety of the joint family estate including the share of the son since, the debt not being avyavaharika, the son was under a pious obligation to discharge it out of family property. Subsequent thereto a partition takes place by which the share of the son in the property is separated and vested in him, free from the rights and powers of the father. It is the plea of the son that by reason of an arrangement which he has entered into or which has been entered into on his behalf, he has discharged himself from liability to the creditor an arrangement to which the creditor is not a party but which under the law is binding on the creditor provided the arrangement fulfils certain conditions. From this it would seem to follow logically that the onus would be upon the son to establish that the nature of the arrangement under the partition was such, as made proper and adequate provision for the discharge of the debt, for that is the basis upon which his own discharge from liability depends. The learned trial Judge framed an issue regarding the partition being fair and bona fides and binding on the Bank but the entire discussion on the facts relating to it proceeded on the footing that the onus was upon the Bank to establish that the partition was mala fide. The,next error of the learned trial Judge lay in ignoring the circumstance that the partition did not make provision for the discharge of the entirety of the debts of the father, nor did it take into account, all the properties of the family. The partition was evidenced by a registered instrument dated June 3, 1948 The first feature of this deed is that though the, (1) ; 664 family had properties both at Palghat in the then State of Madras, as well as in the Cochin State, the partition deed which has been marked as exhibit VI dealt only with the properties in Cochin. These properties were divided into two parts which were stated to be equal in value and they were allotted respectively to the father and the minor son. It contained a recital that the father acknowledged that the debts incurred by him were for his own personal purposes and were not binding on the son and that as a consequence of this state of affairs the debt due to the Bank was directed to be discharged by the father a direction to which he expressed his agreement. The learned trial Judge found that the total property at Cochin was fetching an income of about 18 to 19 thousand rupees a year and computing the market value of the property on that basis considered that it. made ample provision for the discharge of the debt due to the Bank. But he paid no attention to the fact that besides the debts for the discharge of which provision was made in exhibit VI, the father had incurred several debts to creditors in Palghat and which the son was under a pious obligation to reply but to this we shall revert after setting out the grounds on which the learned Judges of the High Court based their finding. As stated earlier, the learned Judges of the High Court reversed the finding of the learned trial Judge on this point. Briefly stated their reasons were two fold: (f) That the partition was brought about in order to forestall the action of the creditors of the father, who sought to proceed against the family properties and so the transaction bore the stamp of mala fides. We have already referred to the suit in forma paupereis filed at the Sub Court, Palghat for the partition of the Palghat properties. In that plaint, and this also has already been adverted to a arg number of debts were set out and in regard to some of them the plaintiff claimed the relief of having them set aside on the ground that they were incurred for illegal or immoral purposes and so were not binding on him. The allegations in that plaint, therefore, 665 made it clear that there were a number of creditors who had filed suits against the father and that was heavily pressed for discharging them. It was in that situation that the suit in Palghat was filed And it was when things were in this state that the partition of the Cochin properties was brought about This necessarily showed that the partition was not bona fide. (2) In the deed of partition exhibit there is a recital that the debt due to the Bank was not binding on the appellant. There was thus a repudiation of liability on the part of the son and the learned Judges held that such a repudiation would by itself negative the partition being bona fide and binding on the creditor. Learned counsel for the appellant submitted that of the two reasons assigned by the learned Judges for their conclusion that the partition was not bonafide the first was insufficient and the second irrelevant and immaterial. As regards the first ground, he urged that at the most, it would occasion greater scrutiny and provided that, as found by the learned trial Judge, the properties allotted to the share of the father were fairly sufficient for the discharge of the debts binding on the son, the circumstances relied on would not per se render the arrangement mala fide. Regarding the 2nd ground, he pointed out that the fact that the father took over the liability for the reason that the debt was not binding on the son, was a matter of legitimate arrangement inter se between the coparceners and would have no bearing on the fairness or bona fides of the partition with was concerned really with ascertaining whether the property set apart for the father was or was not sufficient for the discharge of the indebtedness which he undertook. We see considerable force in the submission of the learned counsel., particularly was the criticism of the second of the above reasons The recital as to the character of the debt as against the son is a recital in a document to which the father and the son are parties and if between them the son repudiates the debt as binding on him, that is no reason by itself for holding the partition to be mala fide. 666 We agree that the real question for consideration in such cases is whether sufficient property has been set apart for the share of the father to enable him to discharge the debts which he has undertaken to discharge. Examined from this point of view we are ,,clearly of the opinion that the partition deed exhibit VI does not satisfy this test. In the first place, we agree with the learned Counsel for the respondent in his criticism that the learned trial Judge had really no basis in the evidence for recording his finding ;is regards the income from the property. That finding was based not on any evidence adduced directed to that point but by taking into account certain statements made to the Bank by Kalyanasundaram at the time the loan was raised. As a matter of fact the 1st defendant in his cross examination stated: "The properties partitioned and allotted to me (under exhibit 6) will fetch a pattom of 2,000 and odd (paras of paddy). I have got debt to the extent of Rs. 80,000. It is the debt under Exs. A & B. I have to pay other amounts to the bank. I have to pay a debt of about Rs. 2,00,000 to the bank. In addition to that I have also got other debts to the extent of more than rupees one lakh. The decrees obtained against me will come to more than Rs. 50,000 60,000. They are decrees obtained against me. " This would disclose two infirmities in the appellant 's case: (1) No provision was admittedly made under exhibit VI for the payment of all the debts of the father and there were considerably more debts payable by him than those for which provision was made for the discharge out of properties allotted to him. (2) There was no acceptable evidence regarding the value of the properties in Palghat and therefore one cannot proceed on the basis that the share of the father in the Palghat properties would be sufficient to discharge the debts not provided for under exhibit VI. Learned counsel for the appellant faintly suggested that for considering the bona fides of the partition under exhibit VI only the debts incurred in Cochin and 667 on which suits could be laid in Cochin should be considered but this is obviously incorrect because even assuming that in regard to each one of those debts, a suit could not be instituted in the Courts in the Cochin State, undoubtedly the decrees obtained in the Madras State could be transferred for execution to Cochin and vice versa. In these circumstances, unless the entirety of the debts payable by the father were taken into account and sufficient and adequate provision made for the discharge of these debts from and out of the share allotted to the father either his original share or any added assets to enable him to do so the partition cannot be held to be bona fide within the meaning of the decisions. We therefore agree with the High Court, though not for the same reasons, in its finding that the partition under exhibit VT is not such as to be binding against the Bank. We shall next deal with the second point which relates to the reasoning on the strength of which the learned Judges of the High Court granted a decree to the bank for the entire sum of Rs. 80,000 and odd covered by the two promissory notes 'A ' & 'B ' notwithstanding their finding that only Rs. 50,000 and odd out of the loan of Rs. 80,000 went towards the discharge of antecedent debts. We should add that we are reserving for later consideration the correctness of the grounds for holding that to the extent of Rs. 59,000 the mortgage was for discharge of antecedent debts which is the subject matter of the third of the points raised by the Appellant. Their reasoning may be set out in their own words: "When the plaint transactions took place British India and Cochin State were independent sovereign states and according to Private International law it is the law of the situs of the property that should govern contracts relating to it. " On this principle they applied the Hindu Law as administered in Cochin State to determine the rights of the creditor and under, that law even a mortgage, which was contemporaneous with the debt would 668 be binding on the sons, provided the same was not illegal or immoral, though the debt was not for a purpose binding on the family either by way of necessity or benefit. On this basis they held that the bank was entitled to a mortgage decree for the entire sum even though Rs. 20,000 and odd of it was held not to be for the discharge of any antecedent debt. Learned counsel for the appellant challenged the correctness of this reasoning and the application of the rule of the lex situs to a case like the present. We agree that the learned Judges were not right in the view they expressed about the applicability of this rule of Private International Law. The rule that they applied to determine the rights to immovable property in Cochin was not any statutory law which was binding on parties who had dealings in regard to land in that State in which event their reasoning was unexceptional. Taking the Cochin State itself, the power of a person to dispose of property or to encumber it would have depended upon whether he was a Hindu or a Muslim or a Christian and in each case the right of the owner to dispose of the property would depend upon his Personal Law as modified by any statute applicable to that community to which he belonged. There was in the matter of dispositions of the type we have to deal with in this case, no lex situs which could be applied irrespective of a personal law governing the owner. By way of example, let us take the case of a testamentary power of disposition over immovable property in that State. If the owner were a Christian he might be entitled to dispose of property to the full extent. If he were a Muslim, there would be a limi tation on such a power based upon the rules of Muslim Law applicable to him subject, of course, to any statutory modifications thereof. In the case of a Hindu, his power to dispose of by will would depend upon whether the property was self acquired or joint and whether he was a member of a Joint Hindu Fami the existence of coparceners and the like. The Cochin law itself, therefore, recognised that Hindu Law was a Personal Law and that the rights of dealing with property flowed from the Personal 669 Law of the owner. It is hardly necessary to cite authority for the position that Hindu Law is a Personal Law. The matter might be further illustrated by another example. Even among the Hindus, there are persons governed by the Dayabhaga system of Hindu Law. If such a one acquired property in Cochin it could not be that the Dayabhaga not being prevalent in Cochin some system of law not the Dayabhaga but either the Mitakshara or some other system would apply in the absence of course of some valid statutory provision to determine either the rights to property or its devolution. The reasoning of the learned Judges, therefore, proceeds upon a basic wrong assumption that the Mitakshara law as understood and administered in Cochin State was some sort of lex situs which would apply to determine the rights of parties whatever might be their Person Law i.e., Hindus following either the Mitakshara as understood elsewhere or governed by some system other than the Mitakshara or not being Hindus governed by some other system of law. As stated in Mayne ' Hindu , Law(1) though in a slightly different context "Prima facie any Hindu residing in a particular province of India is held to be subject to the particular doctrines of Hindu Law recognised in that province. . This law is not merely a local law, it becomes a personal law and a part of the status of every family which is governed by it. . . . In this respect the rule seems an exception to the usual principle, the lex loci governs matters relating to land and that the law of the domicil governs personal relations. The same rule as above would apply to any family which, by local usage, had acquired any special custom of succession, or the like, peculiar to itself, though differing from that either of its original, or acquired domicile The reason is that in India there is no lex loci, every person being governed by the law of his personal status." (1) Mayne 's Hindu Law, 11th Edn. para 56. 670 In the present case on the concurrent finding of the two courts that the family of the defendants were permanent residents of and domiciled in Palghat it would follow that the binding character of the father 's alienation by way of mortgage quoad the son had to 'be judged in the light of the principles laid down from very early times by the Privy Council and accepted by the Full Bench decisions of the Madras High Court and finally authoritatively expounded in Brij Narain vs Mangla Prasad(1) which has received the approval of this Court. When the Bank dealt with the 1st defendant, it must be taken to have contracted with him on the basis of such a law being applicable to the transaction, so that there is no question of hardship arising from the application of the British Indian Law to determine the scope of the father 's powers. This leads us to the third and last point urged in the appeal as regards whether and to what extent the debt under the mortgage evidence by exhibit 'E ' went towards the discharge of the antecedent debts of the father for it is only for such amount that the Bank can claim a mortgage decree against the share of the appellant in the family properties. Before examining the facts in relation thereto, it is necessary to narrate briefly the manner in which the attention of the Courts were directed to this point. In its plaint the Bank averred that the debt was incurred for a family purpose, it being stated to be in connection with a family business. This was denied and it is now common ground that the debt was incurred merely for the starting of a new business by the father and was not for any ancestral family business. So far as the plaint went, the Bank had no case that the debt secured by the mortgage was one binding on the family as being for a necessary purpose. Also in terms there was no plea that the mortgage was binding on the son 's share by reason of the debt being for the discharge of the antecedent indebtedness of the father. The defence on behalf of the appellant was threefold: Besides the usual formal denial of the (1) 51 I.A. 129. mortgage not being supported by consideration, the contentions raised were: (1) That the mortgage debt was not binding on the appellant 's share of the family properties for the reason that the debt was not incurred for purposes which in law were either necessary or binding on the family, and (2) that the debts were tainted with illegality or immorality. The findings which were recorded on these three defenses were concurrent and are no longer in controversy. It was found that the mortgage was fully supported by consideration, that the debt was not incurred for any necessary or beneficial purpose of the family and lastly that the purpose for which the debt was incurred was neither illegal nor immoral. In this context it should be remembered that the suit was filed by the bank on June 17, 1948 before Cochin became part of the Indian Union. At that date there could be no doubt that if the Courts at Cochin applied the Hindu Law as understood by ' the High Court of that State disregarding the circumstance arising from the domicile of the mortgagors, the question whether the debt secured by the mortgage was or was not for discharging an earlier antecedent indebtedness of the father was immaterial and nothing more was needed for the plaintiff to succeed in obtaining a mortgage decree as against the entire family property including the son 's share therein than a finding by the Court that the debt was not illegal or immoral. In fact, even the allegation in the Bank 's plaint that the debt was for the purpose of financing a family trade was superfluous, and the negativing of its averment in that regard would not have affected its rights in any manner. In the circumstances, the Bank could not be seriously blamed if it considered that the question whether there was not an antecedent debt which the mortgage under exhibit E discharged was not relevant at all and made no averment asserting such a fact. Accordingly no attention was apparently paid by either party to this question. By the date, however, of the arguments before the learned trial Judge the princely State of Cochin had acceded to the Indian Union and had become a Part 'B ' State under the 672 Constitution. Founding himself on this circumstance as also the fact that the defendants were permanent residents of and domiciled at Palghat learned,counsel for the appellant submitted to the trial Judge that the Hindu Law as understood and expounded in Brij Narain vs Mangla Prasad (1) would apply to determine the rights of the parties to the transaction and if that law were applied, on the finding that there had been a partition in the family which was stated to be fair under which a proper provision had been made for the discharge of the debts of the father, coupled with the finding that debts under Exs. A & B were not incurred for a family trade or for a purpose binding upon the family, the mortgagee was not entitled to a decree against the security under exhibit 'E ' which could not extend to the share allotted to the appellant under the partition exhibit VI. The learned trial Judge made an incidental finding, or more correctly an observation which it must be taken to be on the state of the pleadings, that the debts evidenced by Exs. A & B did not go to discharge any antecedent liability of the father. When the matter went up in appeal before the High Court the learned Judges considered that even if Brij Narain vs Mangla Prasad(1) was applied and even if the finding that there had been no ancestral trade and that the debt had not been incurred for a family purpose were accepted, there would still be need to ascertain whether there was any antecedent debt of the father which had been discharged by the execution of the promissory notes Exs. A and B and the mortgage deed exhibit E. For this purpose they called for a finding from the Subordinate Judge under O. XLI. r. 25, Civil Procedure Co de and having regard to the state of the pleadings and the evidence they raised a specific issue on that point and directed the Subordinate Judge to afford the parties a further opportunity of adducing such evidence as they desired on the matter. The Subordinate Judge accordingly heard further evidence and recorded a specific, finding that the debts under Exs. A and B were not for the purpose of discharging any antecedent debts which (1) 51 I.A. 129. 673 could really be termed to be independent transactions. The appeal was thereafter heard and the learned Judges, after considering this finding, dissented from the view there expressed and held that out of the Rs. 80,000 which were the principal amounts covered by the two promissory notes Exs. A & B, there was, an antecedent debt to the extent of Rs. 59,000 and odd. Though on this finding, if the decision in Brij Narain vs Mangla Prasad(1) were applied, the bank would have been entitled to a mortgage decree only in respect of the principal sum of Rs. 59,000 and odd and to a personal decree for the balance to be recovered out of the share of the appellant in the family property on the finding that the partition exhibit VI was not bonafide and therefore not impeding the rights of the creditor, they, nevertheless proceeded to grant a decree to the Bank for the entire sum due on the two promissory notes Exs. A and B for the reason that they considered that the law applicable to determine the rights of the Bank was not the Mitakshara law as understood and explained in Brij Narain 's Case(1) but the law as was understood and applied in the decisions of the High Court of Cochin prior to the Constitution. We have already dealt with the correctness of the view of the High Court on this point. What we are here concerned with is the finding by the learned Judges of the High Court that out of the sum of Rs. 80,000 covered by Exs. A and B a sum of Rs. 59,000 and odd really went in discharge of an antecedent debt and that to that extent, even applying the law as understood in what was formerly British India, the Bank would have the right to a mortgage decree as against the appellant. The learned counsel for the appellant has strenuously contended that this finding of the High Court is wrong and that the entire transaction by which the father obtained finances for implementing the pepper contract with the Government of India was one single and entire transaction and that it was not capable of being split up, as the learned Judges of the High Court had done (1) 511. A. 129. 674 in order to record a finding of antecedency for a part of the suit mortgage debt. On the other hand, the learned counsel for the respondent has submitted to us that not only were the learned Judges of the High Court right in holding that Rs. 59,000 and odd was an antecedent debt but that the learned Judges should have gone further and held that the entire sum of Rs. 80,000 covered by Exs. A and B was for the discharge of antecedent debts. This question of fact was the principal matter of contest before us. We shall start by briefly summarising the transactions between the 1st defendantfather ' and the Bank. The first defendant entered into a contract with the Government of India for the supply to them of 2000 Cwts. of pepper in or about May 7, 1945. The total cost of the supply was Rs. 1,37,000. He entered into similar contracts later in October and November 1945 and under these the value of the goods to be supplied was respectively Rs. 1,23,000 and Rs. 3,63,000. Even for implemening the first contract of May 1945, the first defendant apparently had need to borrow. An application for a loan was made on or about the 4th or 5th of June 1945 and then the 1st defendant sent the documents of title that he held in respect of his properties in Cochin and 'desired accommodation by way of an over draft for Rs. 50,000 from the Bank. The letter by the 1st defendant to the Bank is not on the record but it is seen that these documents were sent to the legal Advisor of the Bank on June 6, 1945 and the latter was directed to scrutinise them and inform the Bank whether the documents were complete. They were returned on the same day with a note stating that the Bank should satisfy itself whether the particulars set out in the letter were true and if this were so the amount could be paid on a mortgage by deposit of title deed. This letter of the Legal Adviser as well as the request of the 1st defendant was circulated to the directors of the plaintiff bank and the loan asked for was sanctioned by the President of the Bank on June 11, 1945 and the same was passed.by the 675 directors on the same day with a limit up to Rs. 50,000. But this was to be on a mortgage of the Cochin properties. However even before the request for the overdraft was circulated to the directors and their sanction obtained, the officers of the Bank, apparently acting on the instructions of the Secretary gave him loans to the extent of Rs. 45,000. A loan of Rs. 30,000 on a promissory note carrying interest at 6 1/4 % was granted on June 6, 1945 and two days later on a further promissory note Rs. 15,000 was lent. The sum of Rs. 45,000 and interest thereon was carried to the debit of what is termed as a No. 1 account at the Palghat branch of the Bank which was an overdraft account with a limit of Rs. 50,000. It should be noticed that the creation of the mortgage was long after this. Apparently, this overdraft account was opened under the directions of the Bank 's head office at Trichur by a letter dated June 18, 1945 (referred to in the opening entry) carrying out the directions of the President of the Bank dated June 11, 1945 to which reference has already been made. The amount due on the two promissory notes with interest due up to June 19, 1945 came to Rs. 45,054/11 and this was the debit with which the account opened. Subsequently there were operations in this account either i.e., both by way of payment in, as well as of withdrawal from this account and on November 14, 1945 the date of the promissory notes Exs. A & B the amount due under this account was Rs. 50726/15/4. We shall be referring to how this account was squared on November 20, 1945 after referring to the history of the No. 2 overdraft account of the 1st defendant with the Bank. The 1st defendant made a second application for a loan on October 8, 1945 to the Bank for overdraft accommodation up to a limit of Rs. 3,00,000. The security that he offered for the fresh advance that he required was the contracts entered into by the Government of India which he said would be pledged with the Bank and he suggested that the advances might be made to him on the security of the Inspection Notes of the goods that he would be supplying 676 to Government. He also promised that the receipt for Rs. 50,000 which had either been or would be deposited with the Government of India as security for the due fulfillment of the contract, would be pledged with them, so that they would be in a position to obtain payment of that sum from the Government themselves. The Bank, however, demanded that in addition to pledging the amounts which would be received from the Government under the contract, the 1st defendant should also create a mortgage by deposit of title deeds 'of properties in Palomar for the loan that he desired. The proposal by the 1st defendant was considered at a meeting of the Board of Directors of the plaintiff bank and it was resolved to give him additional overdraft facility to the extent of Rs. 60,000 which was split into two parts (1) Rs. 30,000 on the security of properties at Palghat in regard to which a mortgage was to be created by deposit of title deeds, and (2) a further sum of Rs. 30,000 to be advanced by an increase in the overdraft limit of Rs. 50,000 on the Cochlea properties. This resolution was passed on November 4, 1945. But even before this resolution was passed and obviously in anticipation of the decision of the Directors the overdraft account No. 2 of the, 1st defendant with the Bank at Palghat was opened on October 24, 1945 with a limit of Rs. 30,000. It would be seen that Exs. A & B were executed on November 19, 1945 and the deposit of title deeds and the memorandum in connection therewith was also on the same date. Between the 24th October 1945 and the 11th of November the 1st defendant had operated on this No. 2 account both by payment in, as well as by withdrawing from it and as a result of these transactions the amount owed by him to the bank on the 19th November 1945 was a sum of Rs. 59,952/12/5. The position on November 19, 1945 when the loan under Exs. A & B was raised and the mortgage exhibit E was executed was therefore this. Under the No. 1 account the 1st defendant owed the Bank Rs. 50,726/15/4. On the No. 2 account the amount due to the Bank was Rs. 59952/12/5. It, was with this state of the account 677 that Exs. A & B were executed and the loan of Rs.80,000 secured by the suit mortgage was raised. This sum of Rs. 80,000 was made available to the 1st defendant, not by the Bank itself adjusting the newly granted loan against the amounts due up to that date and keeping the Rs. 29,000 odd that would still have remained due to it as an unsecured debt due from him. On the other hand, the head office of the Bank at Trichur handed over to the 1st defendant a draft for Rs. 80,000 made out in favour of the 1st defendant on its branch at Palghat. That the draft was handed over to the 1st defendant is admitted. It was handed over at a time when so far as the previous indebtedness was concerned, the bank held no security though there might have been a promise to create one. This draft was taken by the 1st defendant to Palghat and was paid by him into his No. 2 account which therefore became reduced from a debit of Rs. 59,952 and odd to a credit of over Rs. 20,000. It was on this feature and this operation on the account that the learned Judges of the High Court relied on for their conclusion that the Rs. 59,000 odd was an antecedent debt which was discharged by the draft of Rs. 80,000 handed over by the Bank when Exs. A & B were executed. It now remains to narrate how the No. 1 account under which the 1st defendant was a debtor to the extent of Rs. 50,726 and odd became discharged. The 1st defendant drew a cheque in his own name on November 20,1945 from his No. 2 account in which he had an overdraft limit to the extent of Rs. 50,000 and paid this cheque into his No. 1. account. There was a small balance of Rs. 726/15,/4 due which was paid in cash and that account was closed on November 20, 1945. On these. facts the question now for consideration is whether this loan of Rs. 80,000 is or is not sufficiently dissociated from the liability of the 1st defendant under the No. 1 and No. 2 accounts which existed before that date, for admittedly the entire sum was utilised to discharge the debt remaining due to the Bank on November 20, 1945. 678 Learned counsel for the appellant raised a sort of preliminary objection that the learned Judges of the High Court having categorically found that there was an antecedent debt which was discharged by the suit mortgage loan only to the extent of Rs. 59,000 and odd and there being no appeal by the Bank against the finding that the balance of the Rs. 80,000 had not gone in discharge of an antecedent debt, the respondent was precluded from putting forward a contention that the entire sum of Rs. 80,000 covered by Exs. A & B went for the discharge of antecedent debts. We do not see any substance in this objection, because the respondent is entitled to canvass the correctness of findings against it in order to support the decree that has been passed against the appellant. Coming now to the merits of the controversy, the matter may be viewed thus. We are now concerned with the question whether Rs. 80,000 which were borrowed under Exs. A & B and in respect of which a crossed draft for that sum made in favour of the 1st defendant was handed over to him went in discharge of antecedent debts. If the previously existing debt on 14.11.1945 of over Rs. 1,09,000 being the total of the amount due under the No. 1 and 2 accounts was one owed to a third party and that debt had in part been discharged by a demand draft issued on the execution of Exs. A & B and the creation of a mortgage by virtue of exhibit E, there could be no doubt that it would be an antecedent debt. That, however, was not the case but the original indebtedness was to the Bank itself and that was discharged by the suit loan from the Bank. Learned counsel for the appellant laid great stress on the fact that the entirety of the transactions which resulted in the grant of an overdraft facility of Rs. 1,10,000 covered by Exs. A, B & C should be viewed as a single and entire transaction commencing from the grant of the loans on June 6, 1945 in anticipation of security being furnished, right up to the date when the suit promissory notes were executed and the mortgages by deposit 679 of title deeds was created. We are, unable to accept this submission in its entirety. It is, no doubt, true that the transaction with the Bank, so far as the debtor was concerned, was one by which he obtained a loan for financing the implementation of his contract with the Government of India for the supply of black pepper but that by itself would not be sufficient to negative such a financing being composed of independent transactions, though directed to the same end. Learned counsel for the appellant did not deny that this was possible nor did he contest the position that if there was a real dissociation in fact, the circumstance that the creditor was the same or that the several loans that were made, were for fulfilling the same purpose of the borrower would not by themselves detract from there being real antecedence for a later borrowing. It is, therefore, essentially a question of fact and the matter has to be viewed with reference (a) to the nature of the transactions, and (b) the intention of the parties, and (c) the inferences to be reasonably drawn from the form which the parties adopted for putting through their intention. It is in the context of these considerations that we are inclined to hold that there was a real and factual antecedency between the loan of Rs. 80,000 for which the draft was given on November 16, 1945 and the previously existing indebtedness of Rs. 1, 09,000 and odd in the overdrafts account No. 1 and 2 of the 1st defendant to the Bank which was discharged thereby. On November 16, 1945 when the draft was handed over there was admitted a debt of over Rs. 1, 09,000 due from the 1st defendant to the Bank. Though there had been an agreement that the title deeds of the 1st defendant 's Cochin properties would be deposited with the Bank a security, the same had not yet been done and the loan therefore still continued to be a loan on the personal security of the debtor. At that date this bank draft for Rs. 80,000 was handed over to the debtor for the purpose of discharging the previous loans due to the Bank. Learned counsel might be right in saying that the previous loan of Rs. 1,09,000 and odd 680 might have been granted in anticipation of the execution of the mortgage and the final determination of the amount of the overdraft that should be permitted to the 1st defendant but that does not by itself conclude the matter. The learned trial Judge negatived the plea of the respondent that the Rs. 80,000 went in discharge of an antecedent liability to the Bank by reason of the evidence of the Secretary of the Bank in which he stated that this sum of Rs. 80,000 was adjusted towards the earlier debts statement which was repeated by the 1st defendant himself as P.W.3. Learned counsel for the appellant drew our attention to this portion of the evidence and repeated the same arguments. In our opinion, however, this statement or this manner of describing how the draft was utilised does not by itself militate against this loan of Rs. 80,000 discharging an antecedent debt. Factually that the loan of Rs. 80,000 was adjusted by the Bank towards the 1 st defendant 's indebtedness is not correct, though it is possible that if the transaction took that form the submission on behalf of the appellant would have greater force and substance. That however, was not the form which the transaction took, and we cannot but assume that the form reflected the intention of the parties. If instead of handing over a demand draft to the 1st defendant, which has actually happened, the Bank had credited the amount to the 1 st defendant in his overdraft account then there would have been an unity between the transaction which started on June 6, 1945 and which culminated in the execution of the two promissory notes Exs. A and B and the security for the repayment thereof exhibit E so as to render all of them a single transaction, but that was not the method adopted by the creditor or the debtor. When a fresh loan of Rs. 80,000 was granted under Exs. A & B and a bank draft for that amount was handed over, it was done without taking into account the preexisting liability for Rs. 1,09,000 and odd owed by the 1st defendant to the Bank, so that when the draft was handed over there was a total liability of Rs. 1,89,000 payable by the 1st defendant to the Bank. If the appellant 's father had failed to credit 681 the demand draft into his No. 2 overdraft account which it was undoubtedly within his power to do, his total indebtedness would have been Rs 1,89,000. He however paid the draft into his No. account so that the total indebtedness to the Ban on the two accounts became Rs. 109,000. From No. 2 account a sum of Rs. 5,000 he drew to discharge ,a liability of Rs. 50,000 under the No. 1 account. so that in effect No. 1 and No. 2 accounts were fully discharged and Rs. 29,000 became thereafter outside the security created under exhibit E by the 1st defendant in favour of the Bank. In the circumstances we consider that the entire loan of Rs. 80,000 went in discharge of antecedent debts though the same was owned by the 1st defendant to the same creditor. Before concluding it is necessary to refer to variation which the High Court made as regards amount recoverable from the properties of the family in Cochin. This was because of the construction and effect of exhibit J which was the memorandum which evidenced the deposit of the title deeds of the Palgh properties and which was executed on April 23,1946. Under exhibit J the property mortgaged was not merely the properties in Palghat but the equity of redemption of the Cochin properties which had been the subject of mortgage under exhibit F for, Rs. 80,000. In other words, exhibit E created also a second mortgage on the Cochin properties. On a construction of exhibit J. the High Court held that the 1st mortgage of the Palghat properties was limited to the excess over Rs. 30,000 in the overdraft account It followed from this that the Bank could recover from the Chinese properties that excess and this was found to be, looking into the debits of the account of the 1st defendant, to amount to Rs. 3,792/2/1 The learned Judges of the High Court, therefore, granted in addition to the amounts covered by Exs A and B a decree for Rs. 3792 /211 recoverable from the Cochin properties. In view of the fact that a suit had already been instituted in the Palghat Sub Court for the entirety of the amount due to the extent 682 of Rs. 30,000 and interest due under exhibit C & F, the learned judges added in their judgment a reservation which was incorporated in the decree that was drawn up in these terms: "If in the suit instituted by the plaintiff in the Palghat Sub court the plaintiff obtains a decree for the whole amount due under exhibit C and realises the same, the plaintiff will not be entitled to ignore the decree in this case in respect of the above sum Rs. 3,792/2/1 and interest thereon". Learned counsel for the appellant faintly suggested that the learned Judges were in error in passing a decree for this further sum of Rs. 3792/2/1 in this suit. It is, however, unnecessary for us to go into the merits as to whether the learned Judges were right in the construction of exhibit J and the legal results flowing therefrom as we are satisfied that the appellant is not entitled to raise this point. This was not one of the points raised in the grounds of appeal to this Court when an application was made for the grant of a certificate of fitness, nor is this objection to the decree to be found in the statement of the case filed. In the circumstances, we need say no more about it. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

Kalayanasundaram and the members of his family were per manent residents of Palghat in the then State of Madras. and his son, the appellant, formed members of an undivided Hind family. The family had properties not only in Palghat but also in Cochin. In 1945, Kalayanasundaram entered into many contracts with the Government of India for the supply of black pepper As he had no ready money to implement those contracts, he app roached the Respondent Bank for funds to finance those contract For that purpose, he executed three promissory notes in favour the bank for a total sum of Rs. 1,10,000. He also deposited title deeds of his properties with the Bank as security. As Kalayanasudaram did not pay the borrowed amount, the Bank filed a suit against him on June 17, 1948. But even before that date, a deed of partition was executed on June 3, 1948 between Kalayanasundaram a the appellant, his son, by which the properties of the family in the Cochin State were divided into two equal parts, the father taking over himself the liability to pay the amount due to the Bank. It was stated in the deed of partition that the debt due to the bank was a personal debt of the father and hence was not binding on the son. To the mortgage suit filed by the Bank, several defences we raised. However, the trial court decreed the suit against the father and there was no appeal against that. Against the decision of the trial Judge that the Bank had no right to obtain a mortgage decree against the appellant and his half share in the family property an appeal was filed by the Bank which was accepted by the High Court which modified the decree by passing a mortgage decree against the appellant qua his share as well. The appellant came to this court in appeal after obtaining a certificate of fitness. The contentions raised by the appellant in this Court were th the finding of the High Court that the partition of the family properties effected between the appellant and his father was not bona fide was not justified on the admitted facts and was based ON 648 erroneous reasoning, that the High Court erred in holding that the Hindu Law as understood and applied by the Courts in the previous Cochin State could determine the liability of the appellant who was a resident of Palghat and that the High Court erred in holding that the mortgage evidenced by exhibit 'E ' was to any extent I for the discharge of antecedent debts. Dismissing the appeals, Held: (i) The finding of the High Court that the partition of family properties effected between the appellant and his father was not bona fide, was correct. The partition deed did not set apart sufficient property for the share of the father to enable him to discharge all his debts. Moreover, onus should have been placed on the ap pellant to establish that the nature of the arrangement under the partition was such as made proper and adequate provision for the discharge of the debt, but actually the onus was wrongly placed on the Bank. (ii) The view of the High Court that when the transactions took place, British India and Cochin State were independent sovereign states and according to Private International Law, it was the law of the situs of the property that should govern the contracts relating to it, was not correct. The rule was not any statutory law which was binding on parties who had dealings in regard to land in that State. Taking the Cochin State itself, the power of a person to dispose of property or to encumber it depends upon whether he is a Hindu, Muslim or Christian and in each case the right of the owner to dispose of the property depends upon his personal law as modified by any statute applicable to that community to which he belongs. There is no situs which can be applied irrespective of the personal law governing the owner. In the present case, Kalayanasundaram and his family were permanent residents of Palghat. The law applicable was the law laid down by the Privy Council and accepted by the Full Bench decisions of the Madras High Court and finally laid down by the Supreme Court. When the Bank dealt with Kalayanasundaram, it must be taken to have contracted with him on the basis of such a law being applicable to the transaction. (iii) There was a real and factual antecedency between the loan of Rs. 80,000 for which the draft was given on November 16, 1945, and the previously existing indebtedness of Rs. 1,09,000, and odd in the over drafts account No. 1 and 2 of Kalayanasundaram to the Bank which was discharged thereby. A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family, so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of debt. The father can, so long as the family continues undivided, alienate the entirety of the family property for the discharge of his antece 649 dent personal debts subject to their not being illegal or immoral. In other words, the power of the father to alienate for satisfying his debts is co extensive with the right of the creditors to obtain satisfaction out of family property including the share of the sons in such property. Where a father purports to burden the estate by a mortgage for purposes not necessary and beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless the same was for the discharge of an antecedent debt. Where there is no antecedency, a mortgage by the father would stand in the same position as an out and out sale by the father of family property for a purpose not binding on the family under which he receives the sale price which is utilised for his personal needs. After the joint status of the family is disrupted by a partition, the father has no right to deal with the family property by sale or mortgage even to discharge an antecedent debt, nor is the son under any legal or moral obligation to discharge the post parti tion debt of the father. Antecedent debt in this context means a debt antecedent in fact as well as in time. The debt must be truly independent and not part of the mortgage which is impeached. The prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated in fact so that they cannot be regarded as part of the same transaction. Brij Narain vs Mangal Prasad, 51 I.A. 129, Panna Lal vs Mst. Naraini; , , Chidambara Mudaliar vs Rootha Perumal, I.L.R. and Vankataramayya vs Vankataramana, , referred to.

Appeal No.126 of 1963. Appeal by special leave from the order dated April 3, 1962, of the Central Government Labour Court at Delhi in O.P. No. 15 of 1961. C.K. Daphtary, Attorney General, H.N. Sanyal Solicitor General, S.V. Gupte, Additional Solicitor General, K.B. Mehta, H.L. Anand and Vidhya Sagar, the appellant. Anand Prakash and S.N. Bhandari, for the respondent. December 2, 1963. The Judgment of the Court was delivered by DAs GUPTA J. The respondent, Nanak Chand 622 Jain, was a money tester in the cash department of the Agra Branch of the Imperial Bank of India. On December 20, 1952 it was detected that a packet containing 10 pieces of 100 rupee notes shroffed by another employee of the Bank and handed over by him to the respondent were missing. In connection with this the respondent and four other employees of the Bank were prosecuted, the trial in the Sessions Court ending with their acquittal the respondent having been given the benefit of doubt. Thereafter on December 10, 1954 the Bank served on the respondent a charge sheet alleging carelessness and dereliction of duty. An enquiry was held and the Enquiry Officer found the ' charge against the respondent established. On a consideration of the report of the Enquiry Officer the Bank decided to terminate his services with effect from May 16, 1955 by paying him three months pay and allowances. The respondent was given further hearing as regards the nature of the proposed punishment and thereafter his services were terminated as from the close of business on May 16, 1955. The validity of the enquiry proceedings was challenged by the respondent on the ground that he had not been given adequate facility for being represented by a Union official of his choice and ultimately after a decision of the Labour Appellate Tribunal that the employee had an unqualified option in regard to the selection of persons who would represent him at the departmental enquiry a fresh enquiry was held after withdrawing the order of termination of his services. This fresh enquiry. was held on the 21st and 22nd of November, 1956, On this occasion also the enquiry officer found the charges against the respondent proved. After consideration of the report and after giving the respondent an opportunity to show cause why the reposed punishment of termination of his services on payment of three months ' salary in lieu of notice should not be imposed on him the Bank decided in November 1960 to terminate his. services by giving him three months ' salary in lieu of notice in terms of Para 521 (2) (c) of the Sastry Award. 623 As an industrial dispute between the Bank and its employees was pending before the National Industrial Tribunal at this time, the Bank made an application on November 21, 1960 to that Tribunal under section 33(2) of the for approval of its action in terminating the services of the respondent. Before making this application the Bank had informed the respondent by its letter dated November 4, 1960 of its decision to terminate his services and tendered a payment order for Rs. 450.71 being his pay and allowances for three months. The National Industrial Tribunal transferred this application to the Central Government, Labour Court at Delhi, for disposal. Resisting this application the respondent contended inter alia that he had not been paid wages for one month as required under the proviso to section 33(2) and so the application should be dismissed. An application under section 33A of the was also filed by the respondent before the Central Government Labour Court at Delhi, complaining that the Bank had contravened the provisions of section 33 by not paying him the one month 's pay as required under the proviso. This application was resisted by the Bank which contended that the application was not maintainable and the action taken by it was legal and justified. It was urged by the Bank that there had not been any contravention o section 33(2) as alleged by the employee as three months ' pay and allowances had been paid. The Labour Court held that payment of three months ' salary in terms of Para 521 (2) (c) of the Sastry Award did not amount to compliance with the requirement of payment of one month 's wages under the proviso to section 33 (2). It held accordingly that the application under section 33A was maintainable and fixed the application for further hearing on other issues on a later date. When the application under section 33 (2) (b) of the that had been filed by the Bank came up for hearing before the Court the Presiding Officer, Mr. Vyas, held himself bound by 624 the decision of his predecessor Mr. Krishnamurty in the application under section 33A that there had been contravention of this requirement of payment of one month 's pay under the proviso. Accordingly, he rejected the Bank 's application for approval to terminate the services of the respondent. It is against this order that the present appeal has been filed by the Bank by special leave. The only question for our consideration is when payment of three months ' salary has been made in terms of Para 521 (2) (c) of the Sastry Award, is it correct to say that the requirement of payment of one month 's salary under the proviso to section 33(2) has not been complied with? On behalf of the Bank it is urged that it is unreasonable to think that three months ' salary already paid did not include the wages for one month required under the proviso. On the other hand learned counsel appearing on behalf of the respondent contends that the payment of three months ' pay and allowances as provided in para 521 (2) (c) of the Sastry Award has a different purpose from that of payment of one month 's wages in the proviso to section 33 (2). In support of this argument he has drawn our attention to the words of the provision as regards this payment in para 521 (2) (c). These words are shall be liable only for termination of service with three months ' pay and allowances in lieu of notice. . " According to the learned counsel the use of the words "in lieu of notice" in this provision marks the difference in character of the payment provided for in the proviso to section 33(2) and it is clearly not in lieu of notice. It appears to us that the words "in lieu of notice" in para 521(2) (c) have not the significance which the learned counsel attributes to them. We do not think that the Sastry Award intended that the services of such an employee could be terminated by giving him three months ' notice without paying him three months ' pay and allowances. Though the words "in lieu of notice" have been used it is clear that three months ' pay and allowances have to be paid in every 625 such case of termination of service. The object in making this provision appears therefore to be the same as in the proviso, viz., to give the employee some monetary assistance. It is difficult to see why therefore three months ' pay and allowances paid under para 521 (2) (c) should not be held to include pay for a lesser period as provided under the proviso to section 33(2). In our opinion, the payment for a longer period should be held to include payment for the shorter period and where three months ' pay and allowances had been paid under the provisions of para 521 (2) (c) no further payment of one month 's wages under the proviso to section 33 (2) is required. We have therefore come to the conclusion that the Labour Court erred in dismissing the Bank 's application under section 33 (2) on the ground that the requirement or payment of one month 's wages had not been complied with. Accordingly, we allow the appeal, set aside the order of the Labour Court and direct that the application under section 33 (2) (b) be disposed of on merits. There will be no order as to costs. Appeal allowed.

IN-Abs

The respondent who was an employee of the appellant Bank was acquitted of the charge of misappropriation of the latter 's money. But on an enquiry by the appellant the respondent was found guilty of carelessness and it was decided that his service should be terminated. In accordance with this decision he was informed of the termination of his services and the appellant tendered three months ' pay and allowances in lieu of notice. Since industrial dispute was pending between the appellant and its employees the former made an application to the Tribunal under section 33(2) of the for approval of its action. The Tribunal held that the payment of three months pay in lieu of notice in terms of para 521(2)(c) of the Sastry Award did not amount to compliance with the requirement of payment of one month 's wages under the proviso to section 33(2) of the Act The Bank filed the present appeal on special leave granted by this Court. Held: The payment for a longer period should be held to include payment for the shorter period and where three months pay and allowances had been paid under the provisions of para 521(2)(c) of the Sastry Award no further payment of one months wages under the proviso to section 33(2) is required.

Appeal No. 390 of 1963. Appeal by special leave from the award dated December 11, 1959, of the Industrial Tribunal, Assam at Gauhati in Reference No. 7 of 1959. C.B. Agarwal, J.N. Hazarika and K.P. Gupta, for the appellants. Sankar Bannerjee, P.K. Chatterjee, D.N. Gupta and B.N.Ghosh, for the respondents. November 25, 1963. The judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave arises from an industrial dispute between the respondent, the Management of 11 Tea Estates and the appellants, their workmen. It appears that the appellants raised a dispute against the respondent in regard to the lay off declared by them in the 11 550 estates in question in February, 1959. The said (ay off lasted for 45 days and the appellants ' contention was that the lay off was not justified, and so, they were entitled to their full wages for the period of the lay off. The respondent 's Managing Agents for the nine Companies that run the 11 tea estates in question, resisted this claim on the ground that the lay off was justified and they alleged that the appellants were not entitled to anything more than the compensation prescribed by section 25C of the (hereinafter called 'the Act '). This dispute was referred to the adjudication of the Industrial Tribunal by the Governor of Assam under section 10(1)(d) of the Act. The 11 tea estates which are concerned with this dispute were described in Appendix A to the order of reference. It is common ground that these 11 tea estates ' are run by nine Companies and M/s. Macneill and Barry Ltd. are the Managing Agents of all these companies. The case for the respondent was that the tea estates in question which are all situated in Cachar District had to face a long period of depression in trade by reason of the poor prices generally commanded by the tea produced by them. In 1959, the management faced a very difficult financial position and it took the view that in the interests of the employees and its own business, it would be appropriate to lay off the workmen for a certain period in order to avoid closure of business. The circumstances which caused financial depression were beyond the control of the management and lay off was, therefore, inevitable and fully justified. On the other hand, the appellants urged that there were other tea estates in the district of Cachar which had to face similar problems; the labour costs incurred by the respondent were not higher than the corresponding costs incurred by the other tea estates, the burden of taxes was the same for all the tea estates in the district and the quality of the tea produced was relatively similar. They contended that the difficulty which the respondent had to face 551 was partly the result of its mismanagement and neglect. They pleaded that the workmen employed by the respondent had been promised continuous work throughout the year and the declaration of lay off for such a long period as 45 days exposed them to the risk of semi starvation. The appellants also urged that depression in trade or financial difficulties which may be characterised as trade reasons did not justify the lay off under the relevant Standing Order, and so, they justified their claim for full wages during the period of the lay off. The Tribunal has held that the relevant Standing Order No. 8 justified the lay off. The trade reasons resulting from the depression in trade and financial liabilities arising therefrom fell within the scope of the Standing Order; it has also held that the last clause in the Standing Order which was general in terms could be relied upon by the respondent in support of its plea that the lay off was justified. In the alternative, the Tribunal thought that even if the lay off was not justified by the relevant clause in the Standing Order, the respondent had a common law right to declare a lay off and this right was recognised by section 25C of the Act. According to the Tribunal, section 25 C recognises this common law right and since it is a statutory provision, it over rides the relevant clause in the standing Order. Having thus found that the lay off was justified, the Tribunal proceeded to examine the question as to whether the trade reasons on which the respondent relied had 'been proved. It then considered the relevant documentary evidence bearing on the point and noticed some general features applicable to all the tea companies before it. "They have suffered losses which are by no means inconsiderable", said the Tribunal, "and some of the companies have not been able to declare dividends in time during the last ten years, though others have declared them from year to year. " The Tribunal rejected the respondent 's contention that the losses were due to high labour charges, but it found that the tea companies were not making adequate profits. It was satisfied that 552 the companies had reserves and large capital assets and would not have found it difficult to raise necessary finances. On the whole, the Tribunal thought it necessary to distinguish between the different tea estates with which it was dealing, and having considered their respective individual cases, it came to the conclusion that out of the nine companies, five companies need not have declared lay off for 45 days. In its opinion, there was justification for lay off in their cases, but its duration should have been 21 days. Acting on this finding, the Tribunal has ordered that for the 24 days in excess of three weeks for which the lay off was justified the said companies should pay their workmen full wages and not merely the compensation prescribed by section 25C of the Act. In regard to the remaining four companies, the Tribunal held that the lay off was fully justified, and so, the workmen were not entitled to full wages for the period of the lay off. In other words, the award made by the Tribunal partially granted relief to the appellants inasmuch as it gave them full wages against five companies for 24 days only. These five companies are: Bhubandhar, Doyapore, Western Cachar, Borak and Koyah. The other four companies in respect of which the Tribunal has given no relief to the workmen are: Doodputlee ' Majagram, Scottpore and Tarrapore. It is this award which has given rise to the present appeal by the appellants. The first question which arises for our decision is whether the Tribunal was justified in holding that section 25C recognises the common law right of the respondent to declare a lay off for reasons other than those specified in the relevant clause of the Standing Order. While dealing with this argument, we must proceed on the assumption that the financial difficulties experienced by the respondent at the relevant time which have been compendiously described by it as constituting trading reasons for the lay off do not fall within the purview of the said relevant clause. The respondent 's argument is that though the trading reasons may not justify the declaration of the lay off 553 under the said clause, as prudent employers who must be given liberty to run their industry in the best manner they choose, they have a common law right to declare a lay off if they feel that the alternative to the lay, off would be closure and acting bonafide they want to avoid closure and adopt the lesser evil,, of declaring the lay off. Does section 25C of the, Act justify this argument? Section 25C(1) which, recognises the right of the workmen who are laid; off, for compensation, provides that whenever a workman therein specified has been laid off, he shall be paid by the employer for whole of the period of the lay off, except for such weekly holidays as may intervene, compensation at the rate prescribed by the section. The proviso to this section lays down that the compensation payable to a workman during any period of twelve months shall not be for more than; 45 days; and this proviso seems to indicate that the legislature thought that normally the period of lay off within 12 months may not exceed 45 days. Section 25C(2), however, contemplates the possibility that the period of lay off may exceed 45 days, and it lays down that if during any period of 12 months, a work , man is laid off for more than 45 days, whether continuously or intermittently, he shall be paid compensation in the manner indicated by it. Thus, the position is that workmen who are laid off are entitled to compensation and the method in which the said compensation has to be calculated has been prescribed by the two clauses of section 25C. It is, however, significant that when section 25C deals with workmen who are laid off and proceeds to prescribe the manner in which compensation should be paid to them, it is inevitably referring to the lay off as defined by section 2(kkk) of the Act. The said section defines a "lay off" (with its grammatical variations and cognate expressions) as meaning: "the failure, refusal, or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or for any other reason 554 to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrench ed. " It would be legitimate to hold that lay off which primarily gives rise to a claim for compensation under section 25C must be a lay off as defined by section 2(kkk) If the relevant clauses in the Standing Orders of industrial employers make provisions for lay off and also prescribe the manner in which compensation should be paid to them for such lay off, perhaps the matter may be covered by the said relevant clauses; but if the relevant clause merely provides for circumstances under which lay off may be declared by the employer and a question arises as to how compensation has to be paid to the workmen thus laid off, section 25C can be invoked by workmen provided, of course, the lay off permitted by the Standing Order also satisfies the requirements of section 2(kkk). Whether or not section 25C can be invoked by workmen who are laid off for reasons authorised by the relevant clause of the Standing Order applicable to them when such reasons do not fall under section 2(kkk), is a matter with which we are not directly concerned in the present appeal. The question which we are concerned with at this stage is whether it can be said that section 25C recognises a common law right of the industrial employer to lay off his workmen. This question must, in our opinion, be answered in the negative. When the laying off of the workmen is referred to in section 25C, it is the laying off as defined by section 2(kkk), and so, workmen who can claim the benefit of section 25C must be workmen who are laid off and laid off for reasons contemplated by section 2(kkk); that is all that section 25C means. If any case is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and lay off would be permissible only where one or the other of the factors mentioned by section 2(kkk) is present, and for such lay off compensation would be awarded under section 25C. Therefore, we do not think that the Tribunal was right in holding that section 25C recognises the inherent right 555 of the employer to declare lay off for reasons which he may regard as sufficient or satisfactory in that behalf. No such common law right can be spelt out from the provisions of section 25C. That takes us to the question whether the lay off in the present case is justified under Rule 8 of the, Standing Orders which have been duly certified under ' the Industrial Employment (Standing Orders) Act, (No. 20 of 1946). The relevant portion of Rule 8 reads thus: "Closing and re opening of sections of the in dustrial establishments, and temporary stoppages of work, and the rights and liabilities of the employer and workmen arising therefrom. (a) (1) The Manager may at any time in the event of fire, catastrophe, break down of machinery, stoppage of power or supply, epidemic, civil commotion, strike, extreme climate conditions or other causes beyond his control, close down either the factory or field work or both without notice. In cases where workmen are laid off for short periods on account of failure of plant or a temporary curtailment of production, the period of unemployment shall be treated as compulsory leave either with or without pay, as the case may be, when, however, workmen have to be laid off for an indefinitely long period, their services may be terminated after giving them due notice or pay in lieu thereof. " It will be seen that the circumstances under which a lay off can be declared have been specifically described by Rule 8(a)(1). Two grounds have been urged before us by Mr. Banerjee in support of the Tribunal 's conclusion that the impugned lay off is justified. He contends that the clause "stoppage of supply" may cover cases of stoppage of financial assistance. The argument is that in 1959 when the lay off was declared. the companies found that they 556 could not raise enough money to carry on the operations in the tea gardens, and so, it was a case of stoppage of supply. If that be so, the lay off would be justified. In our opinion, this argument is wholly misconceived. Stoppage of supply must, in the context, mean stoppage of raw material or other such thing. In regard to the factory, the stoppage of supply may mean the stoppage of tea leaves, or in the case of field work, it may mean the stoppage of supply of other articles necessary for field operations. It is impossible to accept the argument that "supply" in the context can mean money or funds. The other argument urged before us is that the last clause of R. 8(a)(i) which refers to "other causes beyond his control" would take in the financial difficulties of the Cos. We are not inclined to accept this argument also. Other causes beyond his control for one thing should be similar to the causes that have preceded; even otherwise we see no justification for the argument that the financial difficulty which is alleged to have confronted the respondent was beyond its control. In fact, on this point the Tribunal has made a definite finding that though the respondent had produced a letter from the Chartered Bank of the 9th April, 1959 in which the Bank expressed its re luctance to afford financial facilities, it was by no means clear that the Companies acting through their Managing Agents completely failed to raise the necessary finances at the relevant time. As the Tribunal has observed, the letter written by the Bank shows that it had promised to consider the matter and write to the Companies again; no evidence was produced to show what the Bank subsequently stated and whether finances became available or not ' On the other hand, it is clear that at the end of the period of the lay off, all the Cos. started operating their tea gardens and we have been told that the operations have continued uninterrupted ever since. Besides, the letter on which reliance is placed was written in April, 1959, whereas the lay off was declared in February, 1959. Therefore, there is no evidence on the record which can justify 557 the assumption made by Mr. Banerjee when he raised the contention that the financial difficulties faced by the respondent at the relevant time were beyond its control. The fact that some of the Cos. have been incurring losses and have not made profits would not necessarily show that the financial position which they had to face at the relevant time was beyond their control. It is true, as Mr. Banerjee has pointed out, that the three Cos. Scottpore, Tarrapore and Doodputalee have not been able to pay dividends between 1951 to 1958 and it may be that with the exception of the year 1954, the position of all of them is not very satisfactory; but, on the other hand, there are other tea gardens in the same area and it is not suggested or shown that their position was any better than that of the companies before us. It is also true that at the relevant time, all the tea companies in Cachar in general, and the Managing Agents of the nine companies before us in particular M/s. Macneill and Barry Ltd. were trying their best to persuade the Assam Government to give them some relief in the matter of taxation. But the question which we have to decide is whether the financial position disclosed by the evidence on the record can be described as constitu ting a cause beyond the control of the respondent. We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by Rule 8(a)(i) before the clause in regard to other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rule 8(a)(i). Rule 8(a) (iii) which refers to temporary curtailment of production must obviously be read in the light of R. 8(a)(1) and if the case of the present lay off does not fall under R. 8 (a)(i), R. 8(a) (iii) would not improve the position. Mr. Banerjee has then urged that the present Standing Orders which were duly certified under the 558 Standing Orders Act came into force in 1950, whereas section 2(kkk) which defines a lay off was added to the Act by the Amending Act 43 of 1953 on the 24 th October, 1953. His argument is that the Standing Orders having been certified before the definition of the lay off was introduced in the Act, the respondent is entitled to rely upon the said definition in support r of the plea that the impugned lay off was justified. Basing himself on the definition of the lay off as prescribed by section 2(kkk), Mr. Banerjee urged that this definition was wider than R. 8(a)(1) of the respondent 's Standing Orders and would take in the trading reasons on which he relies. We are not prepared to accept the argument that in the present case, the respondent can rely on the definition of lay off as prescribed by section 2(kkk). It will be recalled that the Standing Orders which have been certified under the Standing Orders Act became part of the statutory terms and conditions of service between the industrial employer and his employees. Section 10(1) of the Standing Orders Act provides that the Standing Orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modification thereof came into operation. If the Standing Orders thus become the part of the statutory terms and conditions of service, they will govern the relations between the parties unless, of course, it can be shown that any provision of the Act is inconsistent with the said Standing Orders. In that case, it may be permissible to urge that the statutory provision contained in the Act should over ride the Standing Order which had been certified before the said statutory provision was enacted. Assuming without deciding that section 2(kkk) may include the trading reasons as suggested by Mr. Banerjee, the definition prescribed by section 2(kkk) is not a part of the operative provisions of the Act, and so, the argument that there is inconsistency between the definition and the relevant Rule of the Standing Orders does not assist Mr. Banerjee 's case. If there had been a provision in the Act specifically providing 559 that an employer would be entitled to lay off his workmen for the reasons prescribed by section 2(kkk), it might have been another matter. The only provision on which reliance has been placed is contained in section 25C and that, as we have already seen, merely takes in the definition of lay off inasmuch as it refers to the workmen as laid off and provides the manner in which compensation would be paid to them. An alleged conflict between the definition of lay off and the substantive rule of the Standing Orders would not, therefore, help the respondent to contend that the definition over rides the statutory conditions as to lay off included in the certified Standing Order. Therefore, we do not think Mr. Banerjee would be entitled to contend that section 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of section 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found in section 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them. (vide Management of Kairbetta Estate, Kotagiri vs Rajamanickam & Ors.)(1) According to him, the circumstances specified in section 2(kkk) which justify a lay off must be integrally connected with production, and so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dis (1) ; 560 pute must be governed by Rule 8(a)(1) of the respondent 's Standing Orders. In the result, we reverse the finding of the Tribunal that the lay off declared by the respondent for 45 days in 1959 was justified. That being so, it is unnecessary to consider the individual cases of the nine respective companies, because whatever may have been their respective financial position, under the relevant Rule they could not validly declare a lay off at all, nor could they have declared the lay off in exercise of their alleged common law right. The questions referred to the Tribunal must, therefore, be answered in favour of the appellants. The appeal is accordingly allowed and the appellants ' claim for full wages for the 45 days of lay off in respect of the 11 tea gardens is awarded to them. The appellants will be entitled to their costs throughout. Appeal allowed.

IN-Abs

As a result of the lay off declared by the respondent in the II tea estates, managed by them an industrial dispute arose between the respondent and their workmen, the appellant. The respondent justified the lay off on the ground that its financial position was very difficult and that the lay off was appropriate in the interests of the employees and their own in order to avoid closure of business. The appellants urged, inter alia, that the depression in trade or financial difficulties which may be characterised as trade reasons did not justify the lay off under the relevant Standing Order, and so, they justified their claim for full wages during the period of the lay off. The Tribunal held that the relevant Standing Order No. 8 justified the lay off, and the trade reasons resulting from the depression in trade and financial liabilities arising therefrom fell within the scope of the Standing Order. Alternatively, the Tribunal thought that even if the lay off was not justified by the relevant clause of the Standing Order, the respondent had a common law right to declare a lay off and this right was recognised by section 25C of the and since it is a statutory provision, it overrides the relevant clause in the Standing Order. In appeal by special leave: Held: (i) The Tribunal was not right in holding that section 25C of the recognises the inherent right of the employer to declare lay off for reasons which he may regard as sufficient or satisfactory in that behalf. No such common law right can be spelt out from the provisions of section 25C. When the laying off of the workmen is referred to in section 25C, it is laying off as defined by section 2 (kkk), and so, workmen who can claim the benefit of section 25C must be workmen who are laid off for the reasons contemplated by section 2(kkk); that is all that section 25C means. If in any case the lay off is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and lay off would be permissible only where one or the other of the factors mentioned by section 2(kkk) is present, and for such lay off compensation would be awarded under section 25C. 549 (ii) "Stoppage of supply" must, in the context, mean stoppage ' of raw material or other such thing. In regard to the factory, "stoppage of supply" may mean the stoppage of tea leaves, or in the case of field work, it may mean the stoppage of supply of other articles necessary for field operations. "Supply" in the context cannot mean money or funds. (iii) The last clause of r. 8(a) (i) of the Standing Order which refers to "other causes beyond his control" would not take in the financial difficulties of the companies. Other causes beyond his control for one thing should be similar to the causes that have preceded; even otherwise there is no justification for the argument that the financial difficulty which is alleged to have confronted the respondent was beyond its control. Rule 8(a) (iii) which refers to temporary curtailment of production must obviously be read in the light of r. 8(a) (i) and if the case of the present lay off does not fall under r. 8(a) (i), r. 8(a)(iii) would not improve the position. (iv) The present dispute must be governed by r. 8(a)(i) of the respondent 's Standing Orders. It cannot be accepted that the Standing Orders having been certified before the definition of the lay off was introduced in the Act, the respondent is entitled to rely upon the said definition in support of the plea that the impugned lay off was justified. Management of Kairbetta Estate, Kotagiri vs Raja manickam & Ors., ; , referred to.

Appeals Nos. 909 to 923 of 1963. Appeals from the judgment and orders dated July 26, and August 1, 1962, of the Calcutta High Court in Appeals from Original Orders Nos. 288 and 274 276, 278, 280, 279, 281, 273, 272, 271, 270, 269, 282 and 292 of 1961. H.N. Sanyal, Solicitor General, S.J. Banaji, Prasanta Kumar Ghose and K.L. Hathi, for the appellants. B. Sen, Salil Kumar Datta and Sukumar Ghose, for the respondents Nos. 1 to 5. November 22, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This is a group of 15 appeals which raise a common question about the validity of the orders passed by the appellant Life Insurance Corporation of India terminating the services of its employees who are the respondents in these appeals. The facts which give rise to the present disputes between the parties in all the 15 cases are substantially similar, and so, it would be enough if we state the relevant facts in one of these cases. One of the respondents is Sunil Kumar Mukherjee. He was in the insurance line since June, 1941 and had been confirmed in his service by the Metropolitan Insurance Co. Ltd. in March, 1950. Since about 1953, he had been working as Inspector of the said Company, and since March 18, 1955, he was holding the appointment as Inspector at Barrackpore. The appellant which took over the controlled business of the Metropolitan Insurance Co. Ltd., terminated the services of Mukherjee by an order passed on the 16th October, 1958. The respondent then moved the Calcutta High Court under article 226 of the Constitution and prayed for a writ of certiorari or other appropriate writ or order quashing the said impugned 531 order of discharge passed against him. Sinha J. who heard the writ petition allowed the petition and directed that a writ in the nature of certiorari quashing and/or setting aside the impugned order be issued. A further writ in the nature of mandamus was also issued directing the respondents to the writ petition not to give effect to the said impugned order. To the petition filed by the respondent, he had impleaded eight respondents, the principal amongst them being the appellant Corporation and the Union of India. Aggrieved by the decision of Sinha J. the appellants preferred an appeal under the Letters Patent before a Division Bench of the said High Court. Bose C.J. and Debabrata Mokerjee J. who heard the Letters Patent appeal substantially agreed with the view taken by Sinha J. and confirmed the order passed by him. The appellants then applied for and obtained a certificate of fitness from the said High Court and it is with the said certificate that they have come to this Court in appeal. On similar facts, the appellants have brought to this Court the other fourteen appeals, and a common question which has been raised by the learned Solicitor General on behalf of the appellants is that the High Court was in error in holding that the orders of discharge passed respectively against the respondents in these appeals were invalid. Before dealing with the points raised by the appellants in the present appeals, it would be convenient to set out the relevant orders passed in respect of the appointment and discharge of the respondent Mr.Mukherjee. When Mr. Mukherjee was appointed a whole time Inspector by the Metropolitan Insurance Co. Ltd. on the 18th or 19th March, 1955, the terms and conditions of his employment were communicated to him by a document which contained 14 clauses (Annexure A to the W.P.). Clause 13 of this document provided that the appointment was subject to termination without notice in case he was found guilty of fraud, misappropriation, breach of discipline, insubordination, acting detrimental to the interests of the company, disloyalty or gross neglect 532 of duty: provided, however, that he would be entitled to 30 days ' notice if his services were terminated for any other reason. It is thus clear that under the terms and conditions of Mr. Mukherjee 's original appointment with the Insurance Co., he was liable to be dismissed for misconduct and was entitled to receive 30 days ' notice if his services were terminated for reasons other than misconduct. When the Life Insurance Corpn. took over the business of the Metropolitan Insurance Co. Ltd., an order was issued in favour of Mr. Mukherjee on the 14th February, 1958. By this order it was stated that in terms of Government Order No. 53(1) I.S.N. (1) 57 dated 30th December, 1957, he was required to work as a Field Officer. It was also added that he would continue to be attached to Barrackpore Branch Office until further orders. This order was issued by the Divisional Manager. Thus, it appears that after this order was given to Mr. Mukherjee, he began to work as a Field Cfficer by virtue of his appointment under the relevant Government Order. One of the points which we have to consider in the present appeal is : what is the effect of this order of appointment? On the 16th October, 1958, the impugned order terminating Mr. Mukherjee 's services was passed. This order said that in terms of section 5 of the Categorisation circular of the 2nd December, 1957, Mr. Mukherjee 's case was examined by the Special Committee appointed by the Board of the Corporation to review the cases of Ex Branch Secretaries etc., and it was added that in accordance with the recommendations of the Committee which had been accepted by the Corporation, it had been decided to terminate his services with immediate effect. Mr. Mukherjee was also told that he would be paid his emoluments up to the current month and one month 's salary in lieu of notice. It is the validity of this order which has been successfully challenged by Mr. Mukherjee before the Calcutta, High Court, and the learned Solicitor General contends that the High Court was in error in upholding Mr. Mukherjee 's plea. 533 The history of the nationalisation of the Life Insurance business in this country is well known. On the 19th January, 1956, the Life Insurance (Emergency Provisions) Ordinance (No. 1 of 1956) was promulgated by the President for the purpose of taking over, in the public interest, the management of the life insurance business, pending nationalisation of such business. In due course, Act No. 9 of 1956 was passed which took the place of the original Ordinance and it came into effect on the 21st March, 1956. This Act was followed by Act 31 of 1956 (hereinafter called 'the Act ') which was published on the 1st of July, 1956. The appointed date under s.3 of this Act was the 1st of September,1956. Section 7 of the Act provides that on the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the controlled business of all insurers. That is how the Life Insurance Corporation took over all the assets and liabilities appertaining to the controlled business of all the insurers in this country. As a result of this taking over, section II proceeded to make a provision for the transfer of service of existing employees of insurers to the Corporation. For the purpose of these appeals, it is necessary to set out sec. 11 (1) & (2). These sub sections read as under: "(1) Every whole time employee of an insurer whose controlled business has been transferred to and vested in the Corporation and who was employed by the insurer wholly or mainly in connection with his controlled business immediately before the appointed day shall, on and from the appointed day, become an employee of the Corporation, and shall hold his office therein by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity and other matters as he would have held the same on the appointed day 534 if this Act had not been passed, and shall continue to do so unless and until his em ployment in the Corporation is terminated or until his remuneration, terms and conditions are duly altered by the Corporation: Provided that nothing contained in this sub section shall apply to any such employee who has, by notice in writing given to the Central Government prior to the appointed day, intimated his intention of not becoming an employee of the Corporation. (2) Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and conditions of service applicable to employees of insurers whose controlled business has been transferred to,, and vested in, the Corporation, it is necessary so to do, or that, in the interests of the Corporation and its policy holders, a reduction in the remuneration payable, or a revision of the other terms arid conditions of service applicable, to employees or any class of them is called for, the Central Government may, notwithstanding any thing contained in sub section (1), or in the , or in any other law for the time being in force, or in any award, settlement or agreement for the time being in force, alter (whether by way of reduction or otherwise) the remuneration and the other terms & conditions of service to such extent and in such manner as it thinks fit, and if the alteration is not acceptable to any employee, the Corporation may terminate his employment by giving him compensation equivalent to three months ' remuneration unless the contract of service with such employee provides for a shorter notice of termination. " 535 Then follow an explanation and sub sections (3) and (4) which are not relevant for our purpose. It would thus be seen that under section 11(1), persons who were employed by an insurer wholly or mainly in, connection with his controlled business before the appointed day, became the employees of the Corpora , tion as from the appointed day. After they thus became the employees of the Corporation, they held their offices by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges. In other words, on the taking over of the controlled business by the Corporation, the employees of the insurers to whom section 11 (1) applied became the employees of the Corporation, but their employment continued to be on the same terms and conditions as before. This state of affairs was to continue until the employment of the employee was brought to an end or until his remuneration, terms and conditions were duly altered by the Corporation. The scheme of section 11(1) is thus clear. With the transfer of the controlled 'business from the insurer to the Corporation, the employees of the former became the employees of the latter, but they were governed by the same terms and conditions until they were altered by the latter. The proviso to section II (1) shows that if any employee had, by notice in writing, conveyed to the Central Government prior to the appointed day his intention not to become an employee of the Corporation, his case was outside section 11 (1) In other words, such an employee would not become the employee of the Corporation and his case would have to be dealt with apart from section II (1) & (2). Section 11 (2) as it originally stood was substantially modified in 1957, and the plain effect of the provisions contained in the said sub section as modified, is that the Central Government. is given the power to alter (whether by way of reduction or otherwise) the remuneration and the other terms and conditions of service to such extent and in such manner as it thinks fit. It is significant that this power can 536 be exercised by the Central Government notwithstanding anything contained in sub section (1) or in the , or in any other law, or in any award, settlement or agreement for the time being in force. It was thought that for a proper functioning of the Corporation it was essential to confer upon the Central Government an over riding power to change the terms and conditions of employees who were wholly or mainly employed by the insurers prior to the appointed day. Having conferred such wide power on the Central Government, section 11 (2) further provides that if the alteration made by the Central Government in the terms and conditions of his service is not acceptable to any employee, the Corporation may terminate his employment by giving him compensation equivalent to three months ' remuneration unless the contract of service with such employee provides for a shorter notice of termination. It is thus clear that in regard to cases which fall under section 11 (2) if as a result of the alteration made by the Central Government any employee does not want to work with the Corporation, he is given the option to leave its employment on payment of compensation provided by the last part of section 11 (2). Thus, the scheme of the two sub sections of section II is clear. The employees of the insurers whose controlled business has been taken over, become the employees of the Corporation, then their terms and conditions of service continue until they are altered by the Central Government, and if the alteration made by the Central Government is not acceptable to them, they are entitled to leave the employment of the Corporation on payment of compensation as provided by section 11(2). After the Corporation took over the controlled business of insurers under the Act, two circulars were issued by the Managing Director, the first on the 30th September, 1957 and the second on the 2nd December, 1957. These circulars need not detain us at this stage, because, by themselves, they were without any authority in law. However, we would have occasion to refer to the second circular later on. 537 On the 30th December, 1957, an order was issued by the Central Government in exercise of the powers conferred on it by section 11(2) of the Act. This order was issued on blue paper and has been described by the High Court as the 'blue order '. We will refer to this order as 'the order ' in the course of this judgment. This order was issued because the Central Government was satisfied that for the purpose of securing uniformity, in the scales of remuneration and the other terms and conditions of service applicable to certain classes of employees of insurers, it, was necessary to clarify the position by making specific and clear provisions in that behalf. The object of the order was to secure the interests of the Corporation and its policy holders by making a reduction in the remuneration payable to the employees governed by the order, and effecting a revision of the other terms and conditions applicable to them. This order was confined in its operation to the officers of the insurers who were known as 'Field Officers ', and so, the order was named as the Life Insurance Corporation Field Officers ' (Alteration of Remuneration and other Terms and Conditions of Service) Order, 1957. It consists of 12 clauses. Clause 2 defines, inter alia, a Field Officer. In 1962, the designation 'Field Officer ' was changed into a "Development Officer", though curiously enough the title of the Order still refers to the Field Officer and does not incorporate a consequential amendment in the said designation. The definition of the "Development Officer" shows that it takes in a person however he was designated before the appointed day if he was wholly or mainly engaged in the development of new life insurance business for the insurer by supervising, either directly or through one or more intermediaries, the work of persons procuring or soliciting new life insurance business, and who was remunerated by a regular monthly salary, and who has become an employee of the Corporation under section 11 of the Act. This definition excludes certain categories of employees to which it is not necessary to refer. It is thus clear that the Order was intended to prescribe the terms and conditions of service in respect of Development Officers who had become employees of the Corporation under section 11 (1) of the Act. Clause 3 of the Order prescribes the duties of the Development Officer. Clause 4 prohibits the Development Officers from engaging themselves in certain activities. Clause 5 provides for the scales of pay and allowances . Clause 6 deals with the matter of leave and retirement, and provides that in the matter of leave and retirement, Development Officers shall be governed by the Life Insurance Corporation (Staff) Regulations, 1960, as amended from time to time. ' Clause 7 provides for increments, and clause 8 deals with new business bonus, while clause 9 refers to promotion of Development Officers. Clause 10 is relevant for our purpose and must be set out in full: "10. Penalties and termination of service: (a) In case of unsatisfactory performance of duties by a Development Officer or if a Development Officer shows negligence in his work or is guilty of misconduct or is otherwise incapable of discharging his duties satisfactorily, his remuneration may be reduced or his services may be terminated, after giving him an opportunity of showing cause against the action proposed to be taken in regard to him and after conducting such enquiry as the Corporation thinks fit. (b) The services of any Development Officer may, with the prior approval of the Chairman of the Corporation, be terminated without assigning any reason after giving the Development Officer three months ' notice thereof in writing. " Clause 11 prescribes that the actual pay and allowances admissible to any Development Officer under the scale of pay specified in paragraph 5 shall be determined in accordance with such principles as may be laid down by the Corporation by regulations made in this behalf under sec. 49 of the Act. The last clause lays down that if a doubt arises as to the interpretation of any of the provisions of the Order, the matter will be decided by the Central Government. 539 It is thus clear that in regard to the Field Officers subsequently designated as Development Officers who became the employees of the Corporation after the appointed day the Order provides a self contained with the material terms and conditions of service of the said Officers. In regard to the scales of pay and. allowances which have been prescribed by clause 5, clause 11 contemplates that the actual pay and allowances admissible to any Development Officer will have to be determined in accordance with the principles which the relevant regulation would in that behalf lay down, and so, in the matter of scales of pay and allowances clause 5 read with clause 11 has to be co related with the relevant regulation which had to be subsequently framed. In regard to the other terms and conditions of service, however, the Order makes specific and clear provisions. That being so, there can be no doubt that in regard to the Officers to whom the Order applies, if any action is intended to be taken for the termination of their services, it has to be taken under clause 10(a) or (b). Clause 10 (a) deals with two alternatives; it empowers the appropriate authority to reduce the remuneration of the Development Officer or to terminate his services; in either case, an opportunity of showing cause against the action proposed to be taken has to be given to him, and an enquiry has to be conducted in the manner which the Corporation may think fit. If the Development Officer shows negligence in his work, or is guilty of misconduct, or is otherwise incapable of discharging his duties satisfactorily, the Corporation may reduce his remuneration or may terminate his service ; but that can be done only after complying with the conditions prescribed by clause 10(a). Clause 10(b) empowers the Corporation to terminate the services of the Development Officer without assigning any reason and without holding any enquiry or giving him an opportunity to show cause, provided, of course, the order terminating his services is passed with the prior approval of the Chairman of the Corporation. is power can be exercised without complying 540 with clause 10(a) and is independent of it. Thus, in the matter of penalties and termination of service, two alternative powers are conferred on the authority and they are contained in the sub clauses (a) and (b) of clause 10. As envisaged by clause 11 of the Order, Regulations were framed in 1958 by the Life Insurance Corporation under section 49 of the Act read with clause 11 of the Order. These Regulations contain five Clauses; the first gives the title of the Regulations; the 2nd defines the "Categorisation Order" which is the same as the blue Order, as well as the "Corporation" and the "Field Officer". Regulation 3 deals with the conveyance allowance. Regulation 4 provides for the manner of fixing the pay of the Development Officer. Regulation 4 (1) lays down that the basic pay in the scale of pay prescribed for Field Officers by the Order shall be so fixed that the said pay together with the dearness allowance and conveyance allowance is not less than the total monthly remuneration to which the Officer was entitled before the 31st August, 1956. Regulation 4(2) provides that where the work of the Field Officer has been either below or above the adequate standard, the Corporation may fix his basic pay at such stage in the scale as it may think fit. Regulation 4(3) prescribes that in judging a Field Officer 's work, the Corporation shall observe the principles contained in the circular issued by the Managing Director on the 2nd December, 1957. Regulation 5 provides for the computation of total monthly remuneration which was paid to the Officer on the 31st August, 1956. It will be noticed that clause 4(3) of the Regulations makes the circular issued by the Managing Director on the 2nd December, 1957 a part of the regulation by treating it as its annexure and referring to its provisions for the purpose of determining the remuneration payable to the Development Officer. That is how the said circular which, when it was issued, had no legal authority, has now become valid as a part of the Regulations issued by the Corporation under section 49 of the Act read with clause 11 of the Order. 541 This circular contains five paragraphs. The object of the material provisions of this circular is to determine the quality of the work which the Development Officer puts in which would afford a basis for fixing his remuneration. Paragraph 4 of this circular deals with the problem of fitting in the respective Development Officers in the pay scales provided by clause 5 of the Order. It consists of eight clauses (a) to (h). In the present appeals, we are concerned with the last of these clauses. Paragraph 4, clause (h) reads thus: "If the actual performance is less than 50of the revised quota, the cases of such Field Officers will be referred to a Committee to be specially appointed in each Zone. The Committee will go through the past records of such Field Officers and decide whether they could be continued as Field Officers either as Probationers or on substantially reduced remunerations. In the case of those who cannot be continued as Field Officers, the Committee will examine whether any of them could be absorbed in administration and where this is possible, the Committee will fix the remuneration in accordance with the rules to be prescribed. Where the Committee decides that the poor performance of a Field Officer was not due to circumstances beyond his control or that he has made no efforts and not shown inclination or willingness to work, ' the services of such Field Officers will be terminated. " It is clear that paragraph 4(h) deals with the cases of persons whose actual performance is less than 50 % of the revised quota, and as such, who are re : garded as ineligible for fitting in the employment of the Corporation. Their cases are required to be referred to the Committee specially appointed in each Zone, and on examining the record of these Officers, if the Committee comes to the conclusion that some of them cannot be continued as Field Officers it may enquire whether any of them could be absorbed 542 in administration, and if yes, their remuneration may be suitably fixed: if the Committee thought that the poor performance was not due to circumstances beyond his control, or that he made no efforts or showed no inclination or willingness to work, the services of such Field Officer will be terminated. Paragraph 5 deals with the question of ex Branch Secretaries and Supervisory Officers, and it provides that if their work is found to be unsatisfactory, the Committee may recommend termination of the services of the officers concerned. In other cases, the Committee will make recommendations as to whether they should continue such Inspectors as Field Officers and if yes, on what remuneration; or whether their services could be utilised in any other capacity in the Corporation, and if yes, on what remuneration? The learned Solicitor General has contended that when the Corporation took over the controlled business of insurers in this country on the appointed day, it was found that a large number of employees in the category of Field Officers were either incompetent or unwilling to work efficiently, and so, it was thought desirable, in the interests of the Corporation itself and in the interests of the policy holders, to terminate their services. That is why a well devised scheme was framed by the circular and adopted in the Regulations laying down principles for determining the effi ciency of the work done by the said Officers. He urges that by the application of ' the principle laid down by paragraph 4 (h) of the circular, it was competent to the Corporation to terminate the services of the respondents, and that is what in fact has been done in each of the cases before us. In support ot this plea, he has relied on the fact that paragraph 4 (h) empowers the Corporation to terminate the services of incompetent officers and paragraph 5 also gives the same power in respect of ex Branch Secretaries and Supervisory Officers. The argument is that where cases are dealt with under the provisions of paragraph 4 (h) or paragraph 5 of the circular, there can be no question of applying the provisions of clause 10 of the Order. 543 it is common ground that before terminating the services of the respective respondents in the group of appeals before us, no enquiry has been held and no opportunity has been given to the said officers as required by clause 10(a) of the Order. It is also common ground that the impugned termination of their services has not been effected under clause 10(b) of the Order. The respondents ' contention is that the termination of their services can be brought about only under clause 10(a) or 10(b) of the Order, and since it has not been so brought about, the impugned orders are invalid. On the other hand, the learned Solicitor General contends that the power to terminate services conferred by paragraph 4 (h) of the circular is independent of clause 10 of the Order, and the same can be, and has been, validly exercised in the present cases. In considering the validity of these rival contentions, it is necessary to bear in mind the true legal position about the character of the relevant statutory provisions. It is plain that the provisions contained in section 11(2) of the Act are paramount and would override any contrary provisions contained in. the Order or the Regulations. Subject to the provisions of section 11(2), the provisions of ' the Order will prevail, because the Order has been issued by the Central Government by virtue of the powers conferred on it by section 11(2) itself The provisions of the Order in law partake of the character of the rules framed under section 48 of the Act. Thus next to the provisions of section 11(2) of the Act will stand the provisions of the Order. Then we have the Regulations issued by the Corporation under section 49(1) of the Act. But it must be borne in mind that the power of the Corporation to make Regulations is burdened with the condition that these regulations must not be inconsistent with the Act and the rules framed thereunder, so that if any of the provisions contained in the Regulations made by the Corporation under section 49 are found to be inconsistent either with section 11( 2) or with the Order made by the Central Government under section 11(2), they would be 544 invalid. It is in the light of this legal position that the problem posed before us in the present appeals must be decided. We have already noticed that as soon as the Field Officers or the Development Officers became the employees of the Corporation on the appointed day under section 11 (1), they initially carried with them their original terms and conditions of service, and this state of affairs continued until the Order was issued on the 30th December, 1957. As we, have already seen, the provisions of this Order provide for the terms and conditions of service in matters covered by the Order. In regard to remuneration, the Order did not completely resolve the problem, but it left the determination of the scale of pay and allowances payable to each employee in the light of the Regulations which would be framed by the Corporation in pursuance of the authority conferred on it by clause 11 of the Order; but in regard to the termination of services of the employees, clause 10 has made a specific provision, and wherever the Corporation wants to terminate the services of any Development Officer, clause 10 has to be complied with. It is true that paragraph 4(b) of the circular purports to say that in cases falling under the last part of the said paragraph, the services of the Field Officers will be terminated. If the said portion of paragraph 4 (h) is interpreted to mean that it confers on the Corporation an authority to terminate the services of the Development Officer independently of clause 10 of the Order, it would be inconsistent with the said clause and would, therefore, be invalid. We are, however, satisfied that the said portion of para 4 (h) really means that in cases falling under it, the services of the officers concerned would be liable to be terminated, and that means that the termination of the services of the said officers must be effected in the manner prescribed by clause 10 of the Order. That is how paragraph 4(h) and clause 10 can be reasonably reconciled. What we have said about para 4(h) is equally true about paragraph 5 of the circular. 545 in regard to the fixation of remuneration, however, the position is that clause 5 of the Order fixes the scales of pay and allowances and leaves it to the regulations to lay down the principles in the light of which each individual case should be judged. It was, therefore, perfectly competent to the Corporation to adopt the circular issued by the Managing Director, and in consequence, lay down the principles which should be followed in fitting individual officers into the scheme prescribed by clause 5 of the Order. But it is necessary to emphasise that the scope and purpose of fitting the officers obviously is to treat the officers as continuing to remain in the category of Development Officers and prescribe their remunerations accordingly. The total amount of remuneration would undoubtedly be determined in the light of the principles prescribed by the circular, but under the guise of fitting in a particular officer in the light of the said principles it would not be open to the Corporation to demote the officer from the grade of Development Officer to a lower grade, that would be beyond the competence of the regulations. All that the Regulations can purport to do is to lay down principles for fixing the actual pay and allowances admissible to the Development Officers. That is the direction contained in clause II of the Order and it is within the limits of the said direction that the principles can be validly laid down by the Regulations. After the remuneration is determined in the light of the principles laid down by the Regulations, if any officer is not inclined to accept the said altered remuneration, occasion may arise for the Corporation to exercise its power under section 11(2) of the Act and pay him compensation as therein contemplated. That, however, is a matter with which we are not concerned in the present appeals. What we are concerned with in the present appeals is the validity of the orders terminating the services of the officers on the ground that they are found to be incompetent. If the officers were found to be incompetent in the light of the pro visions of paragraph 4(h) of the circular, their services could no doubt be terminated, but such termination of services must 1/SCI/64 35 546 conform to the requirements of clause 10(a) or (b) of the Order. As we have already seen, it is common ground that the impugned orders terminating the services of the respective respondents have not been passed in accordance either with clause 10(a) or 10(b), and so, they must be held to be invalid. It is true that in the present proceedings the respondents had claimed relief under article 311(2) of the Constitution and had in their writ petitions challenged the validity of the Order and the Regulations. That, however, does not dis entitle the respondents from claiming the same relief on the alternative basis that though the Order and the Regulations may be valid, the impugned orders whereby their services have been terminated are invalid for the reason that they do not comply with clause 10 of the Order. Therefore, we are satisfied that the learned Solicitor General is not justified in contending that the impugned orders can be sustained under paragraph 4(b) of the Circular which has been adopted by the Regulations as annexure thereto. There is one more point which has yet to be examined. In regard to the case of Haridas Roy who is the respondent in C.A.No. 917 of 1963, the learned Solicitor General has contended that the order terminating his services is valid either under para 4(h) of the circular or under section 11(2) of the Act. Haridas Roy was originally employed by the Hindustan Co operative Insurance Society Ltd., before the appointed day as an Inspector of Agents. After the Corporation took over the controlled business of the said Insurance Co., he was appointed as a Field Officer under the Order, and the order of his appointment was communicated to him on the 15th February, 1958. It appears that on the 9th August, 1958, he was told that his case had been considered by the Zonal Committee and it had been decided to absorb him in the office as an Assistant on the emoluments mentioned in the order. Haridas Roy declined to accept this assignment and stated that he wanted to continue as a Field Officer as before. Thereupon, 547 his services were terminated by an order dated the 18th September, 1958. In this letter, Roy was told that his case had been carefully considered by the Zonal Committee and he was offered ex gratia to be absorbed on the administrative side as an Assistant; since he refused to accept that assignment, his services were terminated on payment of one month 's salary in lieu of notice less deductions, if any. This letter also told Roy that there were no extenuating circumstances in his case and his work was found to be of very poor quality. It would be noticed that the Corporation presumably examined the performance of Roy in the light of the principles laid down by the relevant provisions in the circular and held that his case fell under the last part of paragraph 4(h) of the said circular. That only means that having regard to his poor performance Roy became eligible to be dealt with under clause 10 of the Order. It was not open to the Corporation to require Roy to accept an assignment in a lower or different category. What the regulations are authorised to do is merely to determine his salary in the category of Development Officers, and so, we do not see how the order terminating his services because he refused to take an assignment as an Assistant can be justified. It would have been open to the Corporation to fix Roy 's salary at the minimum in the grade prescribed by clause 5 of the Order and if he had refused to take it, an occasion may have arisen for the operation of section 11(2) of the Act. Therefore, we are satisfied that the case of Roy cannot be distinguished from the cases of other respondents in the present group of appeals. The result is, the orders passed by the High Court are confirmed, and the appeals are dismissed with costs. One set of hearing fees. Appeals dismissed.

IN-Abs

One of the respondents Mr. S.K. Mukherjee was an employee of the Metropolitan Insurance Co. Ltd., and had been working as an Inspector when the appellant took over the company There after, in February 1958, he was directed to work as a field officer. By the order dated, October 16, 1958 his services were terminated with immediate effect and he was informed that he would be paid. his emoluments up to the current month and one month 's salary in lieu, of notice. He was not given. an opportunity to show cause against this termination. His petition before the High Court under article 226 of the Constitution challenging the vatidity of this order was allowed by 'the learned single Judge. After appealing ,,to a Division Bench without success the appellant came in appeal 529 to this Court with a certificate granted by the High Court. It was urged on behalf of the appellant that by the application of the principle contained in paragraph 4(h) of the Circular issued by the Managing Director under cl. 4(3) of the Life Insurance Corporation Regulation 1958, it was competent to the corporation to terminate the services of the respondents. It was contended that where cases are dealt with under paragraphs 4(h) and 5 of the Circular, there can be no question of the application of cl. 10 of the Life Insurance Corporation Field Officers Order, 1957, which empowers the appropriate authority to reduce the remuneration of the Development Officer or to terminate his services and in either case, an opportunity of showing cause against the action proposed to be taken has to be given to him. The contention of the respondents was that the termination of their services can be brought about only under cl. 10(a) or 10(b) of the order, and since it has not been so brought about, the impugned orders are invalid. Held: (i) The power of the corporation to make Regulations is burdened with the condition that these Regulations must not be inconsistent with the Act and the rules framed thereunder , so that if any of the provisions contained in the Regulations made by the corporation under section 49 of the Act are found to be inconsistent either with section 11(2) or with the order made by the Central Government under section 11(2) of the Act, they would be invalid. (ii) Paragraph 4(h) means that in cases falling under it, the services of the officers concerned would be liable to be terminated, and that means that the termination of the services, of the said officers must be effected in the manner prescribed by cl. 10 of the Order. That is how paragraph 4(h) of the Circular and cl. 10 of the Order can be reasonably reconciled. This applies equally to paragraph 5 of the Circular. (iii) It was competent to the corporation to adopt the Circular, and in consequence, lay down the principles which should be followed in fitting individual officers into the scheme prescribed by cl. 5 of the order. The total amount of remuneration would undoubtedly be determined in the light of the principles prescribed by the Circular, but under the guise of fitting in a particular officer in the light of the said principles it would not be open to the corporation to demote the officer from the grade of Development Officer to a lower grade; that would be beyond the competence of the Regulations. (iv) Since the orders terminating the services of the respective respondents have not been passed in accordance either with cl. 10(a) or (b), they must be held to be invalid. (v) An employee whose performance is poor is liable to be dealt with under cl. 10 of the order. But it is not open to the corporation to require that person to accept an assignment in a lower or different category. What the Regulations are authorised to do is merely to determine his salary in the category of develop 1/SCI/64 34 530 ment officers, and so, an order terminating his service on the ground that he refused to take an assignment in a lower category cannot be justified.

Appeal No. 78 of 1962. Appeal from the judgment and order dated April 13,1960, of the Bombay High Court in Income tax Reference No 40 of 1959. R.J. Kolah, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants. N.D. Karkhanis and R.N. Sachthey, for the respondent. November 25, 1963. The Judgment of the Court was delivered by SARKAR J. This is an appeal against a judgment of the High Court at Bombay given on a case stated to it under the Income tax Act and answering in the affirmative the following question: "Whether the levy of Rs. 68,501/ as penalty for concealment in the original return for the assessment year 1951 52 is legal?" The question arose, in the assessment of the appellant, a firm, for the year 1951 52 in respect of which the accounting year was the calendar year 1950. The assessee carried on business at Surat it had a branch at Bangkok to which it exported cloth from India. The branch also made purchases locally and sold them. During the last world war the business at Bangkok had been in abeyance but it was re started after the termination of the hostilities. In its return for the assessment year 1949 50 the assessee did not include any profit of the Bangkok branch but stated that the books of account of the Bangkok branch were not available and that therefore its profit might now be assessed on an estimate basis subject to action under section 34 or 35 on production of statement of account. : The assessment was there 563 upon made on the basis of profit at 5 % on the export to Bangkok branch appearing in the Surat books. For the year 1950 51 again there was no reference to the Bangkok branch in the return and a similar estimate was made for this year also. For the year, 1951 52 also the Bangkok business profits were not shown but on January 11, 1952, the Income tax Officer issued a notice to the assessee under section 22(4) of the Act to produce the profits and loss account and balance sheet with the relevant books. The assessee excused itself by alleging on January 29, 1952 that the books were at Bangkok and the profit and loss account and the balance sheet could not be drawn up unless its partner, Hatimbhai A. Malbary, went there personally and there was no certainty as to when he would go there and promising that in the following year these accounts for the calendar year 1950 would be produced. Thereupon the Income tax Officer made an estimate of the sales of the Bangkok branch at Rs. 7,50,000 and of the net profits at 5% thereon, amounting to Rs. 37, 5001 . This assessment was made on January 31, 1952. On the same day he issued a notice under section 28(3) of the Act requiring the assessee to show cause why a penalty under s.28(1)(c) for concealment of the particulars of the income of 1950 should not be levied. The assessee was heard on this notice and on January 22, 1954, the Income tax Officer imposed a penalty of Rs.20,000 on it as its explanation was not acceptable. In the meantime assessment proceedings for the year 1952 53 had commenced and this year also the assessee adopted a similar attitude as in the previous years. The Income tax Officer was however insistent and, therefore, after various adjournments, the assessee had on August 17, 1953 to produce the accounts and books of the Bangkok branch. It appeared from these books that in the calendar year 1950 the assessee had made a profit of Rs. 1,25,520/ . The Income tax Officer thereupon commenced proceedings under section 34 of the Act against the assessee in respect of the assessment year 1951 52 and gave 564 notice to the assessee to submit a return. The assessee then submitted a return stating therein correctly the profits for the calendar year 1950. The Income tax Officer completed that assessment after directing the .issue of a further notice under section 28(3) on April 8, 1954 requiring the assessee to show cause why penalty should not be levied for deliberately concealing the particulars of his income of 1950. Pursuant to this notice the Income tax Officer passed another order on February 28, 1957 imposing a penalty of Rs. 68,501. So there were two orders of penalty. The assessee appealed to the Appellate Assistant Commissioner against both the aforesaid orders of penalty but the appeals were rejected. There is no dispute as to the assessment of the income. The assessee then appealed to the Income tax Appellate Tribunal. The Tribunal observed, "It is indeed difficult to understand the action ' of the Department in splitting up one offence into two proceedings. So far as the levy on the basis of the 23(3) assessment is concerned, it appears to have no basis as till that stage the Department had not succeeded in establishing and bringing home any guilt. It was still in the region of estimate. . The levy of Rs. 20,000 has to be remitted in full. The levy of Rs. 68,501 is entirely different. With the definite knowledge that the Income tax Officer had obtained that the profit for the year was Rs. 1,25,520 he has clearly proved the guilt of concealment against the assessee. . The penalty is not at all excessive and accordingly confirmed. " The revenue authorities never questioned the cancellation of the first order of penalty. Thereafter the asseseee obtained a reference to the High Court of the question which we have set out at the beginning of this judgement. That question, it will be noticed, referred only to the penalty of Rs. 68,501 / imposed pursuant to the second notice under section 28(3) for concealing the particulars of the income of 1950. It has to be observed that in the return that was filed in the proceedings started under 565 section 34, the assessee furnished correct particulars and it also produced the books. So it had not committed any default in connection therewith. The notice must therefore be taken to have been in respect of the original concealment of the income. The assessee knew and this is what was found by the Tribunal% and that is a finding of fact which is binding on a Court in a reference that its profits were Rs. 1,25,520/and it had not disclosed that profit originally nor produced the relevant books but permitted the Incometax Officer to proceed on an estimate of that profit at Rs. 37,500/ . It was contended in the High Court that in respect of the same concealment there were thus two penalties involved, namely, one of Rs. 20,000 and the other of Rs. 68,501/ . The High Court agreed with the contention of the assessee that two penalties could not be levied in respect of identical facts but it held that the penalties in this case had not been levied on the same facts. It observed that the original assessment was solely on the basis of an estimate and the second assessment was after knowledge of the full facts of the concealed income. In this Court Mr. Kolah has urged that the second order for penalty was illegal because there was one concealment and in respect of that an order for penalty of Rs. 20,000/ had earlier been made. He contended that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity. He further stated that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood. We are unable to accept this argument. It may be that in respect of the same concealment two orders of penalty would not stand but it is not a question of jurisdiction. The penalty under the section has to be correlated to the amount of the tax which would have been evaded if the assessee had got away with the concealment. In this case having assessed 566 the income by an estimate, the Income tax Officer levied a penalty on the basis of that estimate. Later when he ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty. If he had omitted to recall the earlier order that would not make the second order invalid. He had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders could not be enforced simultaneously or stand together. However, in the present case the earlier order having been cancelled and no objection to the cancellation having been taken, we have only one order and that for the reasons earlier stated is, in our view, a legal order. It was also said that when the first order of penalty was passed the Income tax Officer was in possession of the full facts which would have justified the imposition of the higher penalty. It was pointed out that the first order of penalty was passed on January 22 1954 while the books disclosing the real state of affairs had been produced before the Income tax Officer on August 17, 1963. It was contended that in inspite of this he passed the order imposing a lower penalty, he had no right later to change that order In support of this contention reference was made to C. V. Govinderajulu Iyer vs Commissioner of Income tax, Madras" '. There it was argued that the original proceeding under section 23(3) and a proceeding under section 34 in respect of the same period were different and in the latter proceeding a penalty could not be imposed for a concealment in respect of the original proceeding. Rajamannar C.J. rejected this contention and held, "that so long as the proceedings under Section 34 relate to the assessment for the same period as the original assessment, the Income tax Officer will be competent to levy a penalty on any ground open to him under Section 28(1), even though it relates (1) [16] I.T.R. 391 567 to the prior proceeding". He however proceeded to observe, "There may be one possible qualification of his power, and that is when the default or the act which is the basis of the imposition of the penalty was within the knowledge of the officer who passed the final order in the prior proceeding and if that, officer had failed to exercise his power under Section 28 during the course of the proceeding before him. Possibly in that case he would have no power. " Learned counsel for the appellant relied on this latter ob servation in support of his contention. We do not think that Rajamannar C.J. wished to state this qualification on the power of the Income tax Officer as a proposition of law. It was not certainly necessary for the purposes of the case before him. We do not wish to be understood as subscribing to it as at present advised. But assume that this statement of the law is correct. It has no application to the present case. What is said is that if the default which entails the penalty was within the knowledge of the authority when it passed the final order in the prior proceeding no penalty could be later imposed. Now Rajamannar C.J. was not dealing with a case in which two penalties had been imposed. The case before him was one in which no return had been filed pursuant to a general notice but subsequently section 34 proceedings had been stated and resulted in an assessment and an order imposing a penalty was thereupon passed. The final order in the prior proceedings referred to by the learned Chief Justice must, therefore, be final assessment order in the prior proceedings. Now in the present case the final order in the prior assessment proceedings was made on January 31, 1952 and on that date the Income tax Officer had no knowledge of the concealment of income of Rs. 1,25,520. Therefore it seems to us that the observation of Rajamannar C.J. does not assist Mr. Kolah. We may also observe that the first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1952 in respect of which the assessee had offered 568 his explanation on March 11, 1952. That notice 'was not concerned with any concealment that came to light from the production of the books on August 17, 1953 and, therefore, on this concealment the assessee had never been heard. In assessing a penalty If on this notice subsequently acquired knowledge would be irrelevant. The result is that the appeal fails and it is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant, a firm of Surat, had a branch at Bangkok, to which it exported cloth, and the branch also made purchases locally and sold them. During the war the business of the branch had been in abeyance, but was re started after the termination of the hostilities. in its return for the assessment year 1949 50 the appellant did not include any profit of the branch, but stated that the books of account of branch were not available, and therefore its profits might now be assessed on an estimate basis subject to 561 action under s.34 or 35.The assessment was made on the basis of profit at 5 % on the export to the branch appearing in the Surat books. A similar estimate was made for year 1950 51. For the year 1951 52 also the business profits of the branch were not shown but the Income tax officerissued a notice to the assessee to produce the relevant accountsand books. The appellant excused itself by promising that in thefollowing year these accounts for the year 1950 would be produced. Thereupon the Income tax Officer made an estimate of the sales of the branch and of the net profits at 5 % thereon, amounting to Rs. 37,500/ , and the same day he issued a notice to show cause why a penalty for concealment of the particulars of the income of 1951 52 should not be levied. Subsequently, the Income tax Officer imposed a penalty of Rs. 20,000/ on it as its explanation was not acceptable. In the meantime assessment proceedings for the year 1952 53 had commenced and the appellant adopted a similar attitude. The Income tax Officer was insistent and, therefore, appellants had to produce the accounts and books of the branch, from which it appeared that for the year 1951 52 the appellant had made a profit of Rs. 1,25,520/ . The Income tax Officer issued a further notice to the appellant to show cause why penalty should not be levied for deliberately concealing income for the year 1951 52. Pursuant to this notice the Income tax Officer passed another order imposing a penalty of Rs. 68,501/ . The appellant 's appeal to the Appellate Assistant Commissioner against both the orders of penalty was rejected. On appeal, the Tribunal cancelled the first order of penalty but confirmed the second one. This hereafter, the appellant obtained a reference to the High Court on the question: "Whether the levy of Rs. 68,501/ as penalty for concealment in the original return for the assessment year 1951 52 is legal?" The High Court answered the question in the affirmative. On the appeal by special leave it was urged that the second order for penalty was illegal because there was one concealment and in respect of that a penalty of Rs. 20,000/ had earlier been imposed, that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity; and that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood. Held: (i) The contentions must be rejected. The Income tax Officer had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders in respect of the same concealment could not be enforced simultaneously or stand together. When the Income tax Officer ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty. If he had omitted to recall the earlier order that would not make the second order invalid, 1 SCI/64 36 562 (ii)In the present case the earlier order having been cancelled and no objection to the cancellation having been taken, there is only one order, which is a legal order. C.V. Govindarajulu Iyer vs Commissioner of Income tax, Madras, , distinguished.

Appeal No. 560 of 1960. Appeal from the judgment and decree dated July 18, 1955, of the Patna High Court in Appeal from original decree No. 500 of 1947. S.C. Agarwal and D.P. Singh, for the appellant. P.K. Ghosh, for respondent No. 1. December 3, 1963. The Judgment of the Court was delivered by SHAH J. Rajkumar Ran Bahadur Singh hereinafter called 'the mortgagor ' was the proprietor of a five annas share in Tauzi No. 16 of Mauza Bansjora, eight annas share in Mauza Simitanr and certain interest in Mauza Bahaldih all in District Manbhum. The mortgagor had leased 200 bighas of coal bearing land out of his holding in Mauza Bahaldih to certain lessees for an annual royalty of Rs. 2,000 payable in two equal instalments, the first in the month of Aswin of the Vikram year and the second in the month of Chaitra. On June 14, 1922, the mortgagor borrowed Rs. 5,500 from one Rabindra Nath Chakravarty and executed a deed of mortgage whereby he agreed personally to repay the amount, and encum bered his share in Mauzas Bansjora and Simitanr for repayment of the amount borrowed with interest at the rate of Rs. 1/8/ per mensem, and further agreed that in default of payment, the mortgagee do recover the amount due by sale of his interest in Mauza Bansjora, Simitanr and Bahaldih. By the mortgagedeed the mortgagor also agreed that the mortgagee do receive the amount due as royalty from the tenants under mining leases in Mauza Bahaldih in the month 637 of Aswin. By another deed dated August 27, 192 the mortgagor created a mortgage in favour of Sasindranath Chakravarty and Indra Nath Chakravartyto secure payment of Rs. 5,500 advanced to him and interest thereon. The covenants of this mortgage deed were substantially the same as the covenants of the earlier mortgage deed dated June 14, 1922 and it was agreed that the mortgagees were to receive the instalment of royalty payable in Chaitra in respect of Mauza Bahaldih. Under these mortgage deeds the due date for payment was April 14, 1925. On May 17, 1927, the mortgagor assigned his interest in Mauza Bansjora to one Mahendra Nath Rai and on October 2, 1927 he assigned his interest in Mauza Simitanr to one Pushpa Moyee Devi. Thereafter in execution of a money decree obtained against the mortgagor, his right, title and interest in mauz Bahaldih was sold on January 16, 1937, and after th sale was confirmed, possession of Mauza Bahaldih was taken by the auction purchaser on April 7, 1937 By two deeds dated June 18, 1946, Manimala Devi the plaintiff in the suit out of which this appeal arises obtained assignments of the rights of the mortgagees under the two deeds dated June 14, 1922, and August 27, 1922, and filed a suit on July 12, 1946, in the Court of the Subordinate Judge at Dhanbad for a decree for enforcement of the two mortgages by sale of the mortgaged properties. To the suit were impleaded as defendants the representatives of the original mortgagees, the heirs of the mortgagor and certain alienees of the mortgaged property. The suit was filed more than twelve years after the date on which the mortgage amount because payable, and prima facie, it was barred by the law of limitation. But the plaintiff sought to bring the claim within limitation, relying upon certain part payments towards the mortgage dues made by the mortgagor. On the deed dated June 14, 1922, was recorded an endorsement dated April 1, 1937, relating to payment of Rs. 600 as interest which was signed by the mortgagor. On the mortgage deed dated 638 August 27, 1922, there was recorded an endorsement dated August 16, 1934, of payment of Rs. 100 which also was signed by the mortgagor. The plaintiff relied upon part payments evidenced by these endorsements to extend the period of limitation in respect of the two mortgage claims. The trial Judge rejected the defence raised by the contesting defendants and held that the suit in respect of the first mortgage was not barred by the law of limitation because the mortgage "was partly simple and partly usufructuary" and even though the plaintiff could not rely upon part payment of principal or interest to extend the period of limitation for the suit, she could still maintain the suit relying upon the dispossession of the mortgagee on April 7, 1937, by the auction purchaser who purchased the mortgagor 's rights in Bahaldih lands at the Court auction and that the suit to enforce that mortgage was accordingly within limitation. In respect of the mortgage dated August 27, 1922, the Judge held that the claim was within limitation both on account of part payment of principal and interest and upon the cause of action furnished by the dispossession of the mortgagees in respect of the Bahaldih property. In appeal by the fourth defendant widow of Mehandra Nath Rai the High Court of Patna reversed the decree passed by the trial Court and dismissed the plaintiff 's suit. The High Court held that as the plaintiff had in her plaint not relied upon dispossession as a ground for extension of the period of limitation, that claim should not have been permitted to be made out by the trial Court. The High Court also held that Mauza Bahaldih was not given in mortgage to the mortgagees under either of the two mortgagedeeds and dispossession of the mortgagees from Mauza Bahaldih or part payments of principal or interest after the mortgagor had parted with his interest in the mortgaged properties Mauzas Bansjora and Simitanr could not operate to extend the period of limitation for the suit. The High Court further held that in any event even if Mauza Bahaldih was 639 one of the mortgaged properties, the mortgagor having lost his interest in Mauzas Bansjora, Simitanr and Bahaldih prior to the payment of Rs. 600 by the mortgagor on April 1, 1937, as evidenced by the endorsement on the first mortgage deed, the plaintiff 's suit to enforce the mortgage dated August 27, 1922, was barred by limitation. The plaintiff has appealed to this Court with certificate granted by the High Court. The first question which falls to be considered is whether Mauza Bahaldih was mortgaged under the two mortgage deeds. The mortgagor had shortly after the two mortgage deeds transfered his interest in Mauzas Bansjora and Simitanr, and for reasons which we will presently set out, the mortgagor cannot, by making part payments, seek to extend the period of limitation against his assignee after he has lost his interest in the property mortgaged. The two part payments dated August 16, 1934, and April 1, 1937, could operate to extend the period of limitation if the mortgagor continued to remain on those dates owner of the mortgaged property or part thereof. The plaintiff could therefore avail of the extension of the period of limitation by part payments only if th mortgagor 's interest in Mauza Bahaldih stood mortgaged at the dates of those part payments, for the mortgagor 's interest in Mauzas Bansjora and Simitanr was assigned to strangers many years before those par payments were made. The terms of the two mortgage deeds are substantially the same and such differences as there are in the covenants have no bearing on the questions to be decided in this appeal. We will therefore set out the material recitals and clauses in the mortgage deed dated June 14, 1922. In the preamble clause it was recited that Tauzi No. 16 of collectorate and district Mandhum constitutes the zamindari interest and that on the death of his late father, the mortgagor acquired the said zamindari and that he was entitled to transfer encumber or sell the whole property included within the said Tauzi No. 16 at his free will. By paragraph 4 640 the mortgagor undertook to pay interest at the rate of Rs. 1/8/ (one rupee eight annas) per cent per mensem on the amount of Rs. 5,500 borrowed by him. In paragraph 5 it was stated that it was not possible for the mortgagor to pay interest every year on the amount borrowed by him and accordingly he had agreed that the tenants of the coal fields in Mauza Bahaldih with whom he had settled the coal mines in the zamindari shall continue to pay to the mortgagee Rs. 1,000 on account of one of the instalments for rent, minimum royalty and commission, due to the mortgagor according to the terms of the contracts. It was further stipulated by paragraph 7 that the mortgagor had assigned the amount due from certain tenants mentioned in the schedule under the instalments specified therein by way of interest for peaceful realisation of the annual interest of Rs. 1,000 every year, and the mortgagee was, in default of payment by the tenants, competent to realise the same. The mortgagor also undertook to issue notices to the tenants calling upon them to pay the amounts according to the assignment. By paragraph 9 it was agreed that in the event of the tenants failing to pay the amount, the mortgagor would compensate the mortgagee in respect of the amount remaining to be realised. Paragraph 12 provided that so long as all the amounts were not repaid in full, the mortgagor was not competent to gift, sell transfer or encumber, make banami or permanent settlement of the mortgaged property specified and described in Sch. (kha) i.e. Mauzas Bansjora and Simitanr with any one and that the alienations made by him would be null and void. He further declared that the said properties had not been encumbered to any person and that he was in peaceful possession of the mortgaged property described in Sch. (ka) viz., Mauza Bahaldih and that he was peacefully realising the rents. By paragraph 14 the mortgagor agreed that the properties specified and described in Sch. (kha) shall always be treated as mortgaged and security for realising the interest and principal due to the mortgagee, the amount and interest due to the mortgagee having first charge on the same, that 641 "should any cause of action arise", the mortgagee "shall be competent to realise the full amount due to" him "together with interest and costs by selling the said properties in Sch. (ka) and (kha) by action", and that should the full amount be not realised the mortgagee will be competent to realise the amount from other moveable and immoveable properties belonging to the mortgagor. By paragraph 13 the mortgagor agreed to pay the principal and the interest due on or after April 14, 1925. The mortgagor admitted receipt under each o the two deeds the amount of Rs. 5,500 advance to him by the mortgagees and agreed to pay interest at the rate of Rs. 1/8/ per cent per mensem. had also made an arrangement by which the mortgage was to recover the interest on the mortgage debt out of the instalments of Rs. 1,000 as royalty in respect of Mauza Bahaldih. There was a covenant that the event of the mortgagee being unable to recover royalty from the tenants the mortgagor would make good the same. Again by paragraph 13 in each of the two deeds there was a covenant for payment of the amount of the principal and interest personal on or after April 14, 192 5. A distinction was made paragraphs 12 and 14 between Mauzas Bansjor and Simitanr on the one hand and Mauza Bahaldih on the other. By paragraph 12 the mortgagor had undertaken not to transfer or assign Mauzas Bansjora and Simitanr to any person, and had merely assured the mortgagee that he had not assigned the rights in Mauza Bahaldih till the date of mortgage by way of any encumberance to any other person. But that distinction would, for the purpose of ascertaining the true nature of the document, be immaterial, for even in the absence of a covenant not to assign the mortgagor 's interest, so long as the mortgage remained outstanding, the transfer made by the mortgagor of Mauzas Bansjora and Simitanr would be subject to the mortgage. In paragraph 14 it way stated that as security for the realisation of the principal and interest, Mauzas Bansjora and Simitanr were to 1/SCI/64 41 642 stand mortgaged. That may prima facie suggest that those two Mauzas alone were mortgaged, but the mortgagor had in the same paragraph agreed that should "any cause of action arise " the mortgagee shall be competent to realise the full amount due to him together with interest and costs by selling Mauzas Bansjora simitanr and Bahaldih. The mort gagee could not sell the mortgagor 's interest in Mauza Bahaldih in satisfaction on his mortgage claim, unless it was mortgaged to him. The intention appearing from this covenant is therefore clearly to encumber Mauzas Bansjora, Simitanr and Bahaldih. The High Court, in our view, was in error in holding that the mortgagor 's interest in Mauzas Bansjora and Simitanr only was mortgaged. The question of limitation may now be considered in the light of the finding that Mauza Bahaldih was mortgaged under the two mortagage deeds. The later mortgage was executed on August 27,1992 and the amount due thereunder was payable on April 14, 1925. On August 16, 1934, an amount of Rs. 100/was paid by the mortgagor and an endorsement in that behalf was made on the mortgage bond under his signature, and on that date the mortgagor 's interest in Mauza Bahaldih was not extinguished. Under article 132 of the Limitation Act, Sch. 1, a suit to enforce payment of money charged upon immoveable property may be filed within twelve years from the date when the money sued for becomes due. The suit filed by the plaintiff was for enforcement of payment of money charged upon immoveable property and money sued for on the later mortgage had become due on April 14, 1925. By section 20 of the Limitation Act where payment on account of a debt or of interest on a legacy is made before the expiration of the ,prescribed period, by the person liable to pay the debt, or by his duly 'authorised agent, a fresh period of limitation will be computed from the time when the payment was made. The mortgagor had parted with his interest in Mauza Bansjora on May 17, 1927, and in Mauza Simitanr on October 2, 1927, and a 643 mortgagor whose interest in the equity of redemption is transferred by assignment, sale or otherwise to another person is not a "person liable to pay the debt" within the meaning of section 20 of the limitation Act. Part payment made by him towards principal or interest therefore does not extend the period of limitation for enforcement of the mortgage against the transferee of the equity of redemption. If by transfer or assignment of his interest the mortgagor has lost all his interest in the mortgaged property, part payment will not extend the period of limitation, for at the date of payment he is not "the person liable to pay" the mortgage debt. The High Court of Madras was right in holding in Pavavi vs Palanivela Goudan (1) that a mortgagor who has lost all interest in the mortgaged property cannot by payment of interest or principal within the meaning of section 20 bind the person on whom the interest has devolved. But the mortgagor 's interest in Mauza Bahaldih subsisted on the date of payment by him of Rs. 100 towards the principal and interest, and such payment having been made within twelve years from April 14, 1925, the plaintiff 's claim to enforce the mortgage dated August 27, 1922, was at the date of the, suit not barred by limitation. The amount due under the mortgage dated June 14, 1922, was repayable on April 14, 1925, and on April 1, 1937, Rs. 600 were paid by the mortgagor to the mortgagee and the endorsement regarding payment was made on the mortgage deed recording such payment, and on that date the period of twelve years commencing from April 14, 1925, under article 132 of the limitation Act, had not expired. But before that date the mortgagor had lost interest in all the properties mortgaged by him in Mauza Bansjora on May 17, 1927, in Mauza Simitanr on October 21, 1927, and in Mauza Bahaldih by the auction sale which became affective from January 16, 1937. The period of limitation in respect of the first mortgage could not, for reasons already set out, be extended by part (1) I.L.R. 644 payment made after the mortgagor lost all his interest in the property mortgaged. The plaintiff has not relied upon any other part payment in respect of the first mortgage before the mortgagor 's interest in the mortgaged properties was transferred, to extend the period of limitation for a suit to enforce the mortgage. But the plaintiff relied upon the sale of the mortgagor 's interest at a Court auction and his dispossession as furnishing a fresh cause of action for enforcement of the mortgage. It was urged that by the covenants in the mortgage deed dated June 14, 1922, a usufructuary mortgage was created on the mortgagor 's interest in Mauza Bahaldih, and by the attornment made pursuant to paragraph 7 of the mortgage, the mortgagor must be deemed to be in possession till the mortgagor 's interest in that property was sold, and under section 68(1) (b) of the Transfer of Property Act dispossession of the mortgagee from Mauza Bahaldih by virtue of the sale under the money decree passed against the mortgagor, a cause of action accrued to the mortgagee to enforce the mortgage and the plaintiff 's suit filed within twelve years from the date of dispossession was within time. A suit to enforce a mortgage is governed by article 132 of the limitation Act and has to be filed within twelve years from the date on which the money sued for became due, unless the period of limitation so prescribed. is extended in the manner provided by Part III of the limitation Act. Dispossession of the mortgagee is not one of the grounds prescribed by the Act for extension of the time prescribed for filing a suit. Section 68 of the Transfer of Property Act confers a right upon the mortgagee to sue for the mortgage money in four different classes of cases and no others. These classes are (a) where the mortgagor binds himself to repay the mortgage money : (b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially 645 destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so ; (c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor ; (d) where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor. " The section does not deal with the period of limitation for filing a suit, or extension of the period prescribed by the Limitation Act for filing a suit. The right conferred by section 68 is again not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant to pay the mortgage money when the mortgagor has bound himself to repay the same is governed by article 116 of the Limitation Act. Similarly the right to sue where the mortgagee is deprived of the mortgage security or where he is not secured in his possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by article 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security or possession and not from the date when the mortgage money is repayable : Unichaman vs Ahmed. (1) Assuming therefore that (1) I.L.R. 646 by the two deeds the mortgagees were placed in possession of the right to recover royalty in respect of Mauza Bahaldih, and that the sale of that property in enforcement of the decree of a Civil Court constituted deprivation of the security or disturbance of their possession by the creditors of the mortgagor, dispossession having taken place in 1937 the suit filed on July 12, 1946, regarded as one to enforce the claim to recover the mortgage money under section 68 of the Transfer of Property Act was barred by the law of limitation. This appeal will therefore be partially allowed. The decree passed by the High Court will be set aside and there will be a decree in favour of the plaintiff only in respect of the mortgage dated August 27, 1922. The trial Court will draw up an appropriate decree in that behalf. The plaintiff 's appeal will fail in respect of the mortgage dated June 14, 1922. The plaintiff will pay the costs of the fourth defendant who alone has defended this appeal. The plaintiff will be entitled to her costs in respect of the mortgage dated August 27, 1922, from the original mortgagor 's heirs and the transferees in interest of the property which was the subject matter of the said mortgage. Appeal partly allowed.

IN-Abs

One Rajkumar Singh was the proprietor of three properties A,B and C. He borrowed a loan from Rabindra Nath and mort gaged properties A and B and by the deed of mortgage undertook personal liability to pay the dues and agreed that in default of payment by the due date the mortgagee do recover his dues by sale of properties A, B and C. He created a second mortgage t secure another sum borrowed from Sasindra Nath and Indra Nath stipulating that he would repay the loan on or before a fixed date, and further stipulating that the mortgagees may receive royalty from the terms of property C. Five years later he assigned his interest in property A and about three months thereafter he assigned his interest in property Subsequent to this assignment an endorsement of part payment was recorded on the first mortgage deed. The mortgagor 's right title and interest in property C were sold at a court auction and the purchaser took possession of that property. But before this date the mortgagor had made another part payment and an endorsement was made to this effect on the mortgage bond. Sometime later the appellant obtained assignments of the rights of the mortgagees under the mortgage deeds and filed a suit for a decree enforcement of the two mortgages by sale of the mortgage properties. This suit was filed more than twelve years after t date on which the mortgage amounts became payable. The trial court rejecting the pleas of limitation raised by t defendants decreed the suit. On appeal by the fourth defend the High Court reversed the decree and dismissed the suit. Held: (i) The High Court was in error in holding that t mortgagor 's interest in properties A & B only was mortgaged. (ii) A mortgagor whose interest in the equity of redemption transferred by assignment sale or otherwise to another person not a "person liable to pay the debt" within the meaning of section of the Limitation Act. Part payment in the mortgagor a transfer or assignment of his interest in the mortgaged property will not therefore extend the period of limitation under section 20 of the Limitation Act. Pavai vs Palanivela Goundan I.L.R. 636 (iii) The right conferred by section 68 of the Transfer of Property Act is not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant in such a case is governed by article 116 of the Limitation Act, 1908 and a suit for enforcement of a claim for compensation is governed by article 120 of the Act. Unichaman vs Ahmed, I.L.R.

Appeals Nos. 47 and 48 of 1961. Appeals by special leave from the judgment and decree dated August 5, 1957, of the Bombay High Court in Appeal No. 1085 of 1954 with second Appeal No. 1086 of 1954. G.S. Pathak and Naunit Lal, for the appellant. I. N. Shroff, for respondent No. 1 M.S.K. Sastri and R.H. Dhebar, for respondent No. 2. December 10, 1963. The Judgment of the Court was delivered by MUDHOLKAR J. This judgment will also govern C.A. No. 48 of 1961. Both the appeals are by special leave from the judgment of the Bombay High Court in second appeal disposing of two appeals which arise out of two separate suits instituted by the appelant, the Borough Municipality of Bhusawal, against 907 the Bhusawal Electricity Co. Ltd., respondent No. 1 before us, to which suits the State of Bombay was later added as a defendant. In each of the two suits the appellant had claimed refund of two sums of money paid by them to the respondent No. 1 under protest as electricity charges to which the respondent No. 1 claimed to be entitled by virtue of an order made by the Government of Bombay under the Bombay Electricity Supply (Licensed Undertakings War Costs) Order, 1944 (herein referred as Surcharge Order ). The appellant succeeded in both the suits in the trial court as well as the District Court. In second appeal, however, the High Court set aside the decrees passed by the trial court and dismissed the two suits. While doing so, the High Court admitted on record certain documents by way of additional evidence and the only contentions raised before us by Mr. G.S. Pathak for the appellant are firstly that the High Court is incompetent in second appeal to admit additional evidence on record in asmuch as O. XLI, r. 27, Code of Civil Procedure is inapplicable to a second appeal. Secondly, the provisions of O. XLI, r. 27 cannot be used to fill up the lacuna in the evidence left by a party. We may incidentally mention that when the High Court, by its order dated April 30, 1958, decided to admit additional evidence on record, no objection was raised on behalf of the appellant before us. It seems to us to be wholly unnecessary to decide in this case whether the High Court has the power to admit additional evidence in second appeal and also whether even if it has that power it was right in admitting the evidence in the circumstances of this case. Basing itself on a particular interpretation of the agreements regarding payment of electric charges with respondent No. 1, the appellant claimed refund on the ground that it was not liable to pay the surcharge payable under the Surcharge Order, 1944 in respect of electrical energy consumed by it. The substantial defence of the respondent No. 1 was that the dispute between it and the municipality was 908 decided by the Government of Bombay and that under the second proviso to cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and the respondent No. 1.The relevant provisions read thus: Clause 5: "Upon the rate of the War Costs Surcharge being fixed by the Provincial Government from time to time in accordance with this order, it shall not be lawful for the licensee or sanction holder concerned to supply energy at other than charges surcharged at the rate for the time being so fixed:" * * * * Second proviso: "Provided further that no War Costs Surcharge shall be effective upon the charges for the supply of energy under any contract entrered into after the 1st May, 1942, unless such contract provides for the same charges for energy as have been contained in similar previous contracts for similar supply by the licensee or sanction holder concerned (as to which in the event of dispute by any party interested, the decision of the Provincial Government shall be final) or unless and to such extent as such application may be expressly ordered by the Provincial Government. " It is not disputed before us by Mr. Pathak that the decision of the Government upon the dispute is final and binding on the parties. But, according to him, it was not established by the evidence led in the trial Court that the dispute between the parties had at all been referred to the Government and that a certain communication sent by the Government to the parties, exhibit 68 dated May 22, 1946 relied upon by the respondent No. 1, contains nothing but the opinion of the Government. Mr. Pathak further urged that the proviso referred to by us purports to constitute the Govern 909 ment into an arbitrator and, therefore, there had to be a reference to the arbitrator by both the parties to the dispute under the provisions of the . This latter point, however, had not been taken in the courts below nor is it found in the statement of the case. We have, therefore, not permitted Mr. Pathak to rely upon it before us. The communication of May 22, 1946 relied upon by the first respondent runs thus: "No. 6404/36 E1(1). Public Works Department, Bombay Castel, 22nd May, 1946. From The Secretary to the Government of Bombay Public Works Department (Irrigation). TO The President, The Borough Municipality, Bhusawal. Subject: War Costs Surcharge. Dear sir, With reference to the correspondence ending with Government letter No. 6404/36, dated the 10th May, 1946 on the subject mentioned above, I am to inform you that Government has fully considered your case under the second proviso to clause 5 of the Bombay Electricity Supply (Licensed Undertakings War Costs) Order, 1944, and has decided that you should pay the surcharge to the Bhusawal Electricity Co. Ltd., at the rate of 15 % fixed in Government Order No. 6331/36 (IV) dated the 15th August, 1944, unless the Company raised its rate of supply of energy for street lighting to more than 4 annas per unit. Yours faithfully, Sd/ D.N. Daruwala. for Secretary to the Govt. of Bombay. Copy forwarded for information to: Public works Department, the Electrical Engineer to the 910 Government with reference to his No. LRM.57/ 5260, dated the 8th March, 1946. The Account ant General, Bombay with reference to his No. O.A. 2888, dated the 2nd February 1946. Messrs The Bhusawat Electricity Co. Ltd., Bombay with reference to correspondence ending with Government letter No. 6404/36 El. (i) dated the 17th May 1946. CC to E.E. Bhusawal for information sent on 25th May 1946. " It is obvious from this communication that both the parties, that is, the appellant as well as the respondent No. 1 had stated their respective cases before the Government. There was no occasion for them to do so unless they were both purporting to act under the second proviso to cl. 5 of the Order of 1944. After consideration of the cases of both the parties the Government has stated in the aforesaid communi cation that it had decided that the municipality should pay to the Electricity Company surcharge at the rate of 15% fixed in a certain Government Order unless the Company raised its rate for the supply of energy for street lighting to more than four annas per unit. There is no reason to think that what is on the face of it a decision is nothing but an opinion because if there were anything in the correspondence to which a reference is made in that letter as well as in the endorsement at the bottom which went to show that the appellant did not purport to refer any dispute to the Government, it was for the appellant to produce that correspondence. Its omission to do so must be construed against it. Then Mr. Pathak said that under the Surcharge Order itself the dispute had to be referred by both the parties and not by only one of them. This contention is, however, untenable in view of the clear language of the proviso which says: "In the event of dispute by any party interested" the decision of the Provincial Government shall be final. There is, therefore, no substance in the contention. In our opinion the trial court and the District Court had wholly misconstrued this document which is not merely of evident 911 iary value but is one upon which the claim of the respondent No. 1 for the surcharge is based. Misconstruction of such a document would thus be an error of law and the High Court in second appeal would be entitled to correct it. This is what in fact has been done. There is no substance in the appeals which are dismissed with costs. Appeals dismissed.

IN-Abs

The Municipality filed two suits to claim refund of two sum of money paid by them to the respondent No. 1 under protest a, electricity charges. The defence of the respondent No. 1 was that the dispute between it and the municipality was decided by the Government of Bombay and that under the second proviso to cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and the respondent No. 1. The decision of the Government was communicates to the parties by the letter dated May 22, 1946. The appellant succeeded in both the suits in the trial court as well as the District 906 Court. In second appeal, the High Court dismissed the two units. Hence this appeal. Held: (i) The Municipality was not entitled to claim fund because the dispute between the parties had been decided by the Government under the second proviso to cl. 5 of the Surcharge order, 1944. The decision of the Government was final and binding on the parties. (ii) The communication dated May 22,1946 sent by the Govern ment to both the parties was a final decision under the second proviso to cl. 5 of the Surcharge Order, 1944. There is no reason to think that the communication contains nothing but the opinion of the Government. (iii) The second proviso to cl. 5 of the Surcharge Order does not require that the dispute has to be referred by both the parties. Such a dispute can be referred by one of the parties as clear from the language of the proviso which says "in the event of dispute by any party interested" the decision of the provincial Government shall be final. (iv) The Trial Court and the District Court had wholly mis construed the document dated May 22, 1946 which is not merely of evidentiary value but is one upon which the claim of the respondent No. 1 for the surcharge is based. Misconstruction of such document would thus be an error of law and the High Court in second appeal would be entitled to correct it.

minal Appeal No. 157 of 1962. Appeal by special leave from the judgment and order dated February 9, 1962, of the Punjab 584 High Court (Circuit Bench) at Delhi in Criminal Revision Application No. 281 D of 1961. J.P. Goyal, for the appellant. B.K. Khanna and R.N. Sachthey, for the respondent. November 29, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The appellant, Dr. Yash Pal Sahi, and his wife Dr. Susheela Sahi, are the proprietors, of a homoeopathic hospital at Jangpura in New Delhi. They also run a journal called the "Homoeopathic Doctor". It appears that on May 15, 1958 Misri Singh wrote to the appellant that the medicines manufactured by him were proving effective, and he therefore requested the appellant to send him his magazine "Homoeopathic Doctor" from January 15, 1958 up to the date of the letter. In this letter, Misri Singh also requested the doctor to send him a list of medicines that might have been printed by him and he promised to pay the requisite prices and suggested that the same should be sent by V.P.P. Thereupon, a packet containing Exhibits P 1 to P 6 which are copies of the "Homoeopathic Doctor" and exhibit P 7, which is a list of medicines was sent to Misri Singh on May, 24, 1958. Misri Singh had written to the appellant under the instructions of Mr ' Seth, who is an officer in the Delhi Administration. That is why when the packet was received by Misri Singh it was opened by him in the presence of Mr. Seth and other witnesses and the packet was found to contain Exs. P 1 to P 7. The prosecution alleged that by sending this packet to Misri Singh both the appellant and his wife had committed an offence under section 3 read with section 7 of the Drugs and Magic Remedies (Objectionable Advertisement) Act of 1954. Later, the complaint against Dr. Susheela Sahi was withdrawn and the case proceeded only against the appellant. At the trial, evidence was given by Mr. Seth, Misri Singh and Dr. Anant Parkash, with whom 585 Misri Singh works as a clerk. The appellant was questioned by the learned Magistrate, who tried the case, and he admitted that Exs. P 1 to P 7 had been sent to Misri Singh. On these facts, the learned Magistrate held that the appellant 'was guilty of the offence charged and sentenced him to pay a fine of Rs. 1,000. The appellant challenged the correctness of this order by an appeal before the Additional Sessions Judge at New Delhi. The learned additional ' Sessions Judge considered the evidence, and confirmed the findings recorded by the trial Magistrate. In the result, the order of conviction passed against the appellant was affirmed; but in regard to the sentence the learned Additional Sessions Judge took the view that a fine of Rs. 500 would meet the ends of justice. The findings made by the appellate Court show that the parcel containing Exs. P 1 to P 7 had been sent by the appellant to Misri Singh. Exhibits P 1 to P 6 which are the numbers of the publication "Homoeopathic Doctor" did not come within the mischief of the Act, but exhibit P 7, which is 'Fehrist i Mujarabat ' did come within the mischief of the Act. It is a list of medicines, and it purports to advertise the said medicines by describing their effect, and prices of the medicines are also printed. Inasmuch as it was found by the learned Additional Sessions Judge that the appellant had sent exhibit P 7 to Misri Singh, his conviction was held to be justified under section 3 read with section 7 of the Act. The appellant then took this matter before the High Court by a revisional application It was urged before the High Court on his behalf that in deciding the question as to whether the appellant was guilty under section 3 read with section 7 the effect of the provisions contained in section 14(1)(c) had not been properly appreciated. The High Court was not impressed by this argument. Accordingly, the revisional application filed by the appellant was dismissed. It is against this order that the appellant has come to this Court by special leave. On his behalf, Mr. Goyal has contended that the conviction of the appellant is not justified, because 586 the case of the appellant falls under section 14 (1)(c) of the Act. In deciding the merits of this argument it is necessary to refer to the relevant provisions of the Act. This Act has been passed to control the advertisment of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Section 2 contains the definitions. Section 2(d) defines 'taking any part in the publication of any advertisement ' as including (i) the printing of the advertisement, (ii) the publication of any advertisement outside the territories to which this Act extends by or at the instance of a person residing within the said territories. It would be noticed that the definition of the expression 'taking any part in the publication of any advertisement ' is an inclusive definition, and the two clauses bring out clearly the main postulate of the definition that if the prohibited article is sent, it would amount to publication within the meaning of the Act. The printing of the prohibited article or advertisement is included in publication. But publication does not mean printing alone; publication means sending out the said advertisement outside India under cl. (ii), and so, if sending out the advertisement outside India is brought within the purview of the inclusive definition, it is difficult to resist the conclusion that sending out the same advertisement within the territories of India to which the Act applies would amount to publication. Therefore it seems to us that the definition prescribed by section (2d) is wide enough to take in the printing of the advertisement and the sending of it to any part of India. That takes us to section 3 of the Act. Sections 3 (c) and (d) are the provisions with which we are concerned. They provide that: "3. Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for 587 (c)the correction of menstrual disorder in women; or (d)the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act. " It has been found and cannot be now disputed that the list of advertisements (exhibit P 7) contains medicines which fall within the scope of sections 3(c) and (d). Section 7 provides for the penalty, and it lays down that: "Whoever contravenes any of the provisions of this Act shall, on conviction, be punishable (a)in the case of a first conviction, with imprisonment which may extend to six months, or with fine, or both; (b)in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both. " This section shows that before a person is penalised it is not necessary to show that the contravention brought home to him is in the nature of a habitual contravention. A single contravention proved against a person would make him guilty under section 7. That is why the scheme adopted by the penal section is that it provides for a lesser punishment for the first offence and a relatively more serious penalty for sub sequent offences. Mr. Goyal contends that in considering the question as to whether the appellant is guilty under section 3 and section 7 read together it is necessary to consider whether this case falls under section 14 or not. He argues that section 3 begins with the clause "Subject to the provisions of this Act", and he urges that if the appellant 's case can fall under the provisions of section 14, section 3 cannot be invoked against him. This contention is no doubt right. Section 14 provides for exceptions, and it lays down that nothing in the Act shall apply to the cases falling under the clauses prescribed by it. Mr. Goyal relies upon section 14 (1)(c), which provides that: 588 "Nothing in this Act shall apply to any advertisement relating to any drug sent confidentially in the prescribed manner only to a registered medical practitioner or to a wholesale or retail chemist for distribution among registered medical practitioners or to a hospital or laboratory;" His argument is that if Misri Singh wrote to the appellant and invited him to send the list of medicines it was not expected that the appellant should make an enquiry as to whether Misri Singh was a registered medical practitioner or not. In this connection, he has invited our attention to the fact that Misri Singh is in fact working as a clerk with Dr. Anant ]Parkash, and this fact is pressed into service by Mr. Goyal to show that it may be that the appellant thought that Mr. Misri Singh was a registered medical practitioner. Such a plea has, however, not been made in any of the Courts below. In fact, the record does not show that the appellant knew any thing about Misri Singh or his employment. Therefore, the point sought to be made by Mr. Goyal for the first time before us that the appellant might have bona fide believed that Misri Singh was a registered medical practitioner cannot avail him. It has been proved as a fact that Mr. Misri Singh is not a registered medical practitioner, and so, the question arises whether the appellant can claim that his case falls under section 14(1)(c) at all. It is true that in order to bring home to the appellant the offence charged the prosecution may have to show that the person to whom the list was sent was not a registered medical practitioner. Once that fact is established, it is for the appellant to satisfy the Court that his case falls under section 14(1)(c). It is in that connection that Mr. Goyal relied upon r. 6 of the Rules framed under the Act. Rule 6 prescribes that: "All documents containing advertisements re lating to drugs, referred to in clause (c) of sub 589 section (1) of section 14, shall be sent by post to a registered medical practitioner or to a whole sale or retail chemist". The Rule further adds that "Such documents shall bear at the top. printed in indelible ink in a conspicuous manner, the words 'For the use only of registered medical practitioners or a hospital or a laboratory It is common ground that the list sent by the appellant to Misri Singh does bear printed in indelible ink the statement that it was meant for the use of registered medical practitioners alone. Mr. Goyal suggests that once it is shown that the list complied with this part of the requirement of R. 6 it should be held that the case of the appellant falls under section 14(1)(c). We are not prepared to accept this argument. Rule 6 prescribes some conditions which have to be complied with by a person who sends lists of medicines to Which the Act applies so as to bring his case within section 14 (1)(c). One requirement is that the list should have printed in indelible ink the statement to which we have just referred. The other requirement to which it refers is that the list should be sent to a registered medical practitioner or wholesale or retail chemist. In relation to this requirement, we have the statutory provision prescribed by section 14 (1)(c) itself that it must be sent confidentially to a registered medical practitioner. The fact that one of the conditions prescribed by R. 6 has been complied with does not lead to the inference that the other conditions prescribed either by section 14(1)(c) or by R. 6 have also been complied with. Therefore, we do not think that Mr. Goyal is justified in contending that his case falls under section 14(1)(c). Mr. Goyal has also invited our attention to the fact that this was a case in which the appellant was virtually tempted to send exhibit P 7 to Misri Singh, and he argues that as soon as Mr. Misra Singh found that that Est contained in indelible ink the statement that it was meant for registered medical practitioners he need not have bothered to look into it, and in fact should have sent it back to the appellant. This 590 argument, in our opinion, is not well conceived. The whole object of the Act is to save ignorant people from being duped to purchase medicines just because their effect is advertised in eloquent terms. That is why the Act provides that lists of medicines describing the qualities and attributes of different medicines should be sent only to registered medical practitioners or hospitals. That being so, it would not be a fair argument to urge that even though the appellant might have sent the list to a person who was not a registered medical practitioner, the recipient of the list should have been out on his guard and should not have looked into the list. We are, therefore, satisfied that the High Court was right in holding that the offence charged against the appellant has been duly proved. In regard to the sentence, the learned Additional Sessions Judge has reduced the sentence of Rs. 1,000 fine imposed on the appellant by the learned trial Magistrate to Rs. 500 and that we think is a fair order to make. In the result, the appeal fails, and is dismissed. Appeal dismissed.

IN-Abs

The appellant is the proprietor of a Homoeopathic hospital in New Delhi. He runs a journal called the "Homoeopathic Doctor". 583 On the request of one Misri Singh the appellant sent copies of the said journal and a list of medicines by V.P.P. Misri Singh was neither a registered medical practitioner nor a wholesale or retail Chemist even though he was working with a registered medical practitioner as his clerk. The list of medicines sent by the appellant to Misri Singh bore in printed indelible ink the statement that it was meant for the use of medical practitioners alone. The appellant was prosecuted under section 3 read with section 7 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. The trial Magistrate found him guilty of the offence charged and sentenced him to a fine of Rs. 1000. On appeal the Additional Sessions Judge confirmed the conviction but reduced the fine to Rs. 500. The appellant 's revision petition was dismissed by the High Court The present appeal is on special leave granted by this Court. On behalf of the appellant it was contended that section 3 is subject to the other provisions of the Act and therefore it is subject to section 14 which provides that any advertisement sent confidentially in the prescribed manner to a registered medical practitioner or wholesale or retail chemist is exempted from the other provisions of the Act. Relying on this section it was argued that since the appellant requested in writing to send the offending articles the appellant had no duty to enquire whether that person is a registered medical practitioner or chemist. Further the appellant relied on rule 6 of the Rules framed under the Act and contended that inasmuch as the list sent by him bore the words printed in indelible ink "For the use only of registered medical practitioners" he has complied with the provisions of law. Held. (i) The definition of "taking any part in the publication of any advertisement" contained in section 2(d) of the Act is wide enough to include the printing of the advertisement and the sending of it in any part of India. Before a person is penalised it is not necessary to show that the contravention brought home to him is in the nature of habitual contravention. A single contravention will make a person guilty under section 7. (ii)Section 3 is subject to the provisions of section 14 and if the appellant 's case falls under section 14, section 3 cannot be invoked against him. The prosecution has to show that the person to whom the list was sent is not a medical practitioner. Once this is established it is for the appellant to satisfy the court that his case falls under section 14(1)(c). The fact that the appellant has complied with one of the conditions prescribed under r. 6 will not bring the case of the appellant under section 14(1)(c).

Appeal No. 76 of 1950. Appeal from the Judgment and Decree of the High Court of Madras dated 18th April 1945, in 895 Appeals Nos. 56 and 192 of 1941 reversing in part the decree of the Court of the Subordinate Judge of Masulipatani in Original Suit No. 29 of 1937. B.Somayya (C. Mallikarjuna Row, with him) for the appellant. K.Rajah Aiyar (R. Ganapathy Aiyar , with him) for Respondent No. 1. Respondent No. 10 appeared in person. May 18. The Judgment of the Court was delivered by MUKHERJEA J. The appellant before us is the sixth defendant in a suit, commenced by the plaintiff respondent in the court of the Subordinate Judge at Masulipatam (being Original Suit No. 29 of 1937) for recovery of a sum of Rs. 99,653 annas odd by enforcement of a simple mortgage bond. The mortgage bond is dated 28th September, 1930, and it was executed by defendant No. 1 for himself and as guardian of his two minor sons defendants 2 and 3 all of whom consti tuted together a joint Hindu family at that time. The plaintiff mortgagee happens to be the son in law of defendant No. 1 and at the time of the execution of the mortgage the first defendant was indebted to a large number of persons including the mortgagee himself, and being hard pressed by his creditors requested the plaintiff to lend him a sum of Rs. 1,25,000 on the hypothecation of the properties in suit, to enable him to tide over his difficulties and discharge his debts. The total consideration of Rs. 1,25,000 as stated in the deed is made up of the following items : (1)Rs. 13,065, which was the amount due on a promissory note executed in favour of the plaintiff by the first defendant on the 17th January, 1928. (2)Rs. 13,285 due under another promissory note dated 18th August, 1930 executed by defendant No.1 in favour of the wife of the plaintiff and later on transferred by her to the plaintiff on 28th September, 30. (3)Rs. 25,000 paid by the plaintiff by endorsing in favour of defendant No. 1 a cheque for that amount 896 drawn in his name by the Co operative Central Bank, Ramchandrapuram on the Central Urban Bank, Madras. (4) Rs. 937 8 0, the amount paid in cash by plain tiff to defendant No.1 for purchasing stamps for the mortgage document. (5) Rs. 72,712 8 0, the amount of future advances which the plaintiff promised to make from time to time to defendant No.1 according to his convenience. The money lent was to carry interest at 7 1/2 % simple per annum and the due date of payment of the principal money was 30th September, 1933. The interest would, however, have to be paid annually on the 30th of September every year, in default of which the whole of the principal and interest in arrears would become repayable immediately with interest at 9% compound per annum with yearly rests. It was expressly stated in the mortgage deed that if the mortgagee was unable to advance the entire amount of Rs. 1,25,000, the terms set out above would apply to the amount actually advanced. It appears that after the execution of the mortgage bond a sum of Rs. 3,000 only was paid by the mortgagee to defendant No.1 on 5th of November, 1930. In the plaint, which was filed by the plaintiff on the 15th September, 1937, the total claim was laid at Rs. 99,653 annas odd, out of which Rs. 55,287 annas odd constituted the principal money as stated above and the rest was claimed as interest calculated at the rate of 9% per annum compound with yearly rests. Besides the original mortgagors, who were defendants Nos. 1 to 3 in the suit, there were three other persons impleaded as parties defendants. Defendant No. 4 was the Receiver in insolvency in whom the entire estate of the defendant No. 1 vested by reason of his being adjudged a bankrupt by an order of the District Judge of Kistna dated the 18th January, 1932 in Insolvency Proceeding No. 20 of 1931, started at the instance of another creditor of the first defendant. Defendant No. 5 was a lessee in respect of the mortgaged properties under defendant No. 4, while the sixth defendant was the purchaser of all the mortgaged 897 properties from the Receiver in insolvency. The Receiver, it seems, had put up all the suit properties to sale subject to the mortgage on 19th April, 1937, and they were knocked down to defendant No. 6 for the price of Rs. 1,340. A registered deed I of sale was executed by the Receiver in favour of the purchaser on 20th January, 1939. The defendants 1 to 3 did neither appear nor contest the suit. Defendant No. 4 appeared in person but disclaimed any interest in the suit properties. The defendant No. 5 contended that he was a lessee under defendant No. 4 for one year only and was not a necessary party to the suit at all. The suit was really contested by defendant No. 6, the purchaser at the Receiver 's sale. The defence taken by defendant No. 6 in his written statement was substantially of a two fold character. It was pleaded in the first place that the bond in suit was a collusive document not supported by any consideration and was executed by defendant No. 1 in favour of his own son in law, with a view to shield his properties from the reach of his creditors. The other contention put forward was that the interest claimed was penal and usurious. After the passing of the Madras Agriculturists ' Relief Act in March, 1938, this defendant filed an additional written statement, with the permission of the court, in which he raised the plea that as an agriculturist he was entitled to the reliefs provided in that Act and that the mortgage debt should be scaled down in accordance with the provisions of the same. The trial Judge by his judgment dated the 29th July, 1940, decreed the suit in part. It was held that the mortgage bond was not a collusive document executed with the intention of defrauding the creditors of the mortgagor; it was a genuine transaction and was supported by consideration. On the other point, the court held that defendant No. 6 was an agriculturist and was entitled to claim the reliefs under Madras Act IV of 1938. After deducting all outstanding interest which stood discharged under section 8(1) of the 898 Agriculturists Relief Act, the principal money due to the creditor on that date was found by the trial court to be Rs. 42,870 annas odd. This figure was arrived at by taking only the original amounts actually advanced on the two promissory notes mentioned above and further, deducting from them, the payments made by the debtor towards the satisfaction of the principals in each. Thus a preliminary decree was made in favour of the plaintiff entitling him to recover a sum of Rs. 42,870 4 0 together with interest at 6 1/4 per annum from 1st October, 1937, to 1st November, 1940, the date fixed for payment under the preliminary decree. In default, the whole amount was to carry interest at 6% per annum. It may be mentioned here that the Subordinate Judge in deciding issue No. 3 held expressly that the provision relating to payment of compound interest at an enhanced rate in default of payment of the stipulated interest on the due dates was in the nature of a penalty and should be relieved against; but as the court scaled down the interest under Madras Act IV of 1938, it became unnecessary to consider in what manner this relief should be granted under section 74 of the Indian Contract Act. Against this decision, two appeals were taken to the High Court of Madras, one by the plaintiff and the other by defendant No. 6. The plaintiff in his appeal (being Appeal No. 56 of 1941) assailed that part of the judgment of the Subordinate Judge which gave the defendant No. 6 relief under the Madras Agriculturists ' Relief Act; while the appeal of the sixth defendant (being Appeal No. 192 of 1941) attacked the very foundation of the mortgage decree on the ground that the mortgage being a collusive and fraudulent transaction, the plaintiffs suit should have been dismissed in toto. The defendants 2 and 3, although they remained ex parts during the trial in the first court, filed, in forma pauperig, a memorandum of cross objection challenging the decree of the Subordinate Judge on the ground that as their interest in the mortgaged properties did not pass to the defendant No, 6 by virtue of the Receiver 's sale, their right of 899 redemption remained intact and ought to have been declared by the trial Judge. Both these appeals as well as the cross objection were heard together by a Division Bench of the High Court and they were disposed of by one and the same judgment dated the 18th of April, 1945. The High Court affirmed the finding of the trial Judge that the bond in suit was supported by consideration to the extent of Rs. 55,287 8 0 as alleged in the plaint and that it was a valid and bona fide transaction. The learned Judges held, differing from the trial court, that the defendant No. 6 was not entitled to claim any relief under the provisions of the Madras Agriculturists ' Relief Act, and that in any event the court below was not right in reducing the amount of the principal money from Rs. 55,287 8 0 to Rs. 42,870, there being no renewal of a prior debt so far as defendant No. 6 was concerned. The court agreed in holding that the provision relating to payment of enhanced interest in case of default amounted to a penalty and reduced the rate of interest from 9% compound to 71 % compound with yearly rests. Lastly, the High Court allowed the cross objection of defendants 2 and 3, being of opinion that their interest in the mortgaged properties could not vest in the Receiver on the insolvency of their father and that the defendant No. 6 could not acquire the same by virtue of his purchase from the Receiver. The defendants Nos. 2 and 3 were, therefore, allowed the right to redeem the mortgaged properties along with defendant No. 6. The result was that the plaintiff was given a decree for a sum of Rs. 55,287 8 0 with interest at 7 1/2 compound with yearly rests up to the date of redemption and subsequent interest was allowed at the rate of 6% per annum. Interest was to be calculated from 28th September, 1930, on Rs. 52,287 8 0 and. from 5th November, 1930, on the amount of Rs. 3,000. Against this decree, the defendant No. 6 obtained leave to appeal to the Privy Council and because of the abolition of the jurisdiction of the Privy Council, the appeal has come before us. 900 Mr. Somayya, who appeared in support of the appeal, did not press before us the contention raised on behalf Of his client in the courts below that the mortgage was a fraudulent transaction or was void for want of consi deration. He assailed the propriety of the judgment of the High Court substantially on three points. His first contention is, that the decision of the High Court allowing a right of redemption to defendants 2 and 3 cannot stand in view of the amendment introduced by the Provincial Insolvency Amendment Act, 1948, which has been expressly made retrospective. The second point taken by the learned counsel is that the defendant No. 6 should have been given relief under the Madras Agriculturists ' Relief Act and the debt should have been scaled down in accordance with the provisions thereof. It is said that the defendant No. 6 was an agriculturist himself and even if he was not, the relief under Madras Act IV of 1938 was still available to him by reason of the original mortgagors being agriculturists. The third and the last point urged is that in any event having regard to the finding arrived at by the High Court that the stipulation to pay compound interest at an enhanced rate was a penalty, adequate relief should have been granted against it and no compound interest should have been allowed at all. The first point raised by the learned counsel, in our opinion, is well founded and must succeed. There was some difference of judicial opinion as to whether the powers of a father under the Mitakshara law to alienate the joint family property including the interest of his sons in the same for discharge of an antecedent debt not contracted for illegal or immoral purposes vests in the Receiver on the adjudication of the father as an insolvent. Under the Presidency Towns Insolvency Act, this power was held to vest in the Official Assignee under section 52(2) of the Act(1). As regards cases governed by , it was held by a Full Bench of the Madras High Court that the father 's power to dispose of his son 's interest in the joint family property for satisfaction of his untainted (1) Sat Narain vs Sri Kishen, (1936) 63 I.A. 384. 901 debts was not "property" within the meaning of section 28 (2) (d) of the Provincial Insolvency Act(1) ; while a contrary view was taken by a Full Bench of the Patna High Court (2) . The conflict has now been set at rest by the enactment of section 28A in the Provincial Insolvency Amendment Act of 1948 which came into force on the 12th April, 1948. The new Section reads as follows : " The property of the insolvent shall comprise and shall always be deemed to have comprised also the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge. " The language of the section indicates that its operation has been expressly made retrospective. The result, therefore, is that the power of the defendant No. 1 to alienate the interest of his sons, the defendants 2 and 3, in the mortgaged properties for satisfaction of his antecedent debts, did pass to the Receiver as "Property" within the meaning of the and consequently OD a sale by the Receiver the interest of defendants 2 and 3 did vest in the sixth defendant, and he alone must be held competent to exercise the right of redemption. The second point urged by Mr. Soinayya raises the question as to whether the appellant could claim relief under the Madras Agriculturists ' Relief Act. The High Court decided this point against the appellant firstly on the ground that the appellant was not a debtor at the date of the commencement of the Act, he having acquired no interest in the equity of redemption at that time. The other reason given is that the defendant No. 6 was not an agriculturist within the meaning of the Agriculturists ' Relief Act and although he was possessed of agricultural lands and hence prima facie came within the definition of an " agriculturist " as given in section 2 (ii) of (1) Ramasastralu vs Balakrishna Rao I.L.R. (2) Viswanath vs Official Receiver, I.L.R. (1936) 16 Pat, 60 (F.B.). 902 the Act, he was excluded from the definition by the operation of proviso (D) attached to the sub section. So far as the first ground is concerned, section 7 of the Agriculturists ' Relief Act expressly lays down that " all debts payable by an agriculturist at the commencement of this Act, shall be scaled down in accordance with the provisions of this chapter". The essential pre requisite to the application of the provisions of the chapter, therefore is the existence of a debt payable by an agriculturist on the date when the Act commenced, that is to say, on the 22nd March, 1938. The learned Judges of the High Court were certainly right in saying that the sixth defendant was not a debtor on that date, as he did not become the owner of the equity of redemptin till the 20th of January, 1939, when the deed of sale was executed in his favour by the Receiver in insolvency. But this by itself is not sufficient to disentitle the appellant to the privileges of the Agriculturists ' Relief Act. It is not necessary that the applicant for relief himself should be liable for the debt on the date that the Act came into force. The right to claim relief as is well settled by decisions(1) of the Madras High Court is not confined to the person who originally contracted the debt, but is available to his legal representatives and assigns as well; nor is it necessary that the applicant should be personally liable for the debt. The liability of a purchaser of the equity of redemption to pay the mortgage debt undoubtedly arises on the date of his purchase; but the debt itself which has its origin in the mortgage bond did exist from before his purchase, and if it was payable by an agriculturist at the relevant date, the purchaser could certainly claim the privileges of the Act if he himself was an agriculturist at the date of his application. The material question, therefore, is whether the mortgage debt was payable by an agriculturist on 22nd March, 1938 ? The appellant argues that it was payable by the mortgagors and they were certainly agriculturists. We do not think that there is warrant for any such assumption on (1) Vide Periannia vs Sellappa, I.L.R. 903 the materials as they exist on the record. The only issue before the trial Judge was, as to whether defendant No. 6 was an agriculturist. There was neither any question raised nor any evidence adduced as to whether defendants Nos. I to 3 were agriculturists as well. In fact, this aspect of the case was not adverted to by the trial Judge at all. Before the High Court it was argued on behalf of defendant No. 6 that even if he was not an agriculturist himself, yet if the defendants 2 and 3 were given relief as agriculturists, that would enure for his benefit as well and accordingly he invited the court to go into the question and hold that the original mortgagors were agriculturists. This the learned Judges refused to do and dismissed this part of the claim of defendant No. 6 with these remarks: "In the present case, the mortgagors have not claimed such a benefit, nor have they adduced any evidence to show that they are agriculturists. We therefore cannot accede to the request of the sixth defendant that the right of the mortgagors to relief should be investigated merely with the object of giving an accidental relief to the non agriculturist purchaser. " As the point was not investigated at all, it is not possible for us to hold that the debt was payable by an agriculturist on the relevant date. It may be that the mortgaged properties were agricultural lands but it is not known whether the mortgagors did possess other estates which might bring them within the purview of any of the provisos attached to the definition. In these circumstances, the appellant must be deemed to have failed to show that there was in existence a debt payable by an agriculturist on 22nd March, 1938. The High Court has held further that the defendant No. 6 was not an agriculturist because he was the purchaser of certain villages at a court sale in respect of which Peishkush exceeding Rs. 500 was payable. Consequently, he became " land holder of an estate " under the Madras Estates Land Act and could not claim to be an agriculturist as laid down in the proviso (D) to section 2 (ii) of the Act. Mr. Somayya 904 lays stress upon the fact that this purchase on the part of his client was merely as a benamidar for defendant No. 5 as has been held by both the courts below and consequently the proviso did not affect him at all. This is a debatable point upon which the judicial opinion of the Madras High Court itself does not seem to be quite uniform. A distinction can certainly be drawn between the rights of a person in his own individual or personal capacity and those which he exercises on behalf of another. On the other hand, if we look to the definition of " land holder " as given in section 3 (5) of the Madras Estates Land Act, it may be argued that a benamidar of an estate, who is entitled to collect rents and is at least the titular owner of the estate could come within the description. Having regard to the view taken by us that section 7 of the Agriculturists ' Relief Act is not applicable on the facts of the present case, this question does not really become material and it is not necessary for us to express any final opinion upon it. For the identical reason section 8 (1) of the Act cannot also be invoked in favour of the appellant. It may further be mentioned that Mr. Somayya in course of his arguments made it plain that he would not press for relief under the Agriculturists ' Relief Act if the high rate of in terest allowed by the High Court was substantially reduced. This takes us to the third point and we think that the stipulation as to payment of compound interest in case of default, being held to be a penalty by both the courts below, the High Court should not have allowed interest at the rate of 71 % compound with yearly rests, The High Court seems to have been misled by a statement occurring in the judgment of the trial Judge that the original rate of interest was 7 1/2% compound with yearly rests. This is not true and as a matter of fact, the original agreement was to pay interest at 7 1/2 % simple. We consider it proper that the mortgage money payable to the plaintiff should carry interest at the rate of 7 1/2% simple up to the expiry of the period of redemption which we fix at six months from this date, 905 The result, therefore, is that we allow the appeal in part and modify the judgment of the High Court. A preliminary decree should be drawn up in favour of the plaintiff against defendant No. 6 alone for a sum of Rs. 55,287 annas odd which will carry interest at 7 1/2 % simple per annum. Interest will be calculated on Rs. 52,287 on and from the date of the mortgage, while on the balance of Rs. 3,000 interest will run from 5th November, 1930. We make no order as to costs of this court or of the High Court. The plaintiff will have his costs of the trial court. Appeal allowed in part. Agent for respondent No. 1 : Ganpat Rai.

IN-Abs

Under the provisions of section 28A of the , as amended by the Provincial Insolvency (Amendment) Act of 1948, which has been expressly made retrospective, when a Hindu father governed by the Mitakshara law is adjudged a bankrupt, his power to alienate the interest of his sons in the joint family properties for the satisfaction of his antecedent debts not contracted for illegal or immoral purposes, passes to the Receiver as his "property" within the meaning of the Act. Consequently, where a Hindu father who has mortgaged the joint family property for an antecedent debt which is not illegal or immoral becomes insolvent and the receiver sells the property, the interest of his sons in the property also vests in the purchaser, even in the case of a sale held before the Amendment Act of 1948 came into force, and the sons cannot redeem the property. Sat Narain vs Sri Kishen (63 I.A. 384), Rama Sastrulu vs Balakrishna Rao (I. L. R. 1943 Mad. 83) and Viswanath vs Official Receiver (I.L.R. 16 Pat. 60) referred to. Though the liability of a person who has purchased an equity of redemption after 22nd March, 1938, to pay the mortgage debt arises only on the date of his purchase, if the debt itself existed on the 22nd March, 1938, and if it was payable by an agriculturist on that date, the purchaser can claim the benefits conferred by section 7 of the Madras Agricultural Relief Act, 1938, if he himself was an agriculturist on the date of his application. Periannia vs Sellappa (I.L.R. 1939 218) referred to.

Appeals Nos. 711 713 of 1962. Appeals by special leave from the judgments and order dated May 27, 25, 1960, of the Assam High Court in Civil Rule Nos. 3 and 25 of 1960 respectively and December 15, 1959 of the Allahabad High Court in Special Appeal No. 502 of 1958. CIVIL APPEAL No. 614 OF 1962. Appeal by special leave from the order dated April 6, 1961 of the Punjab High Court in Letters Patent Appeal No. 81/1961. CIVIL APPEALS Nos. 837 To 839 of 1963. Appeals from the judgment and order date January 18, 1963 of the Assam High Court in Civil Rule 386 to 388 of 1961. B.C. Ghose and P.K. Chatterjee, for the appellants (in C. A. Nos. 711 to 713/1962). I.M. Lall and V.D. Mahajan, for the appellant (in C.A. Nos. 714 of 1962). S.V. Gupte, Additional Solicitor General, Naunit Lal and R.H. Dhebar, for the respondents (in C.A. Nos. 711 714/1962). C.K. Daphtary, Attorney General, R. Ganapathy Iyar and R.H. Dhebar, for the appellants (in C.A. Nos. 837 839/1963). B.C. Ghosh and P.K. Chatterjee, for the respondents (in C.A. Nos. 837 839/1963). R.K. Garg, M.K. Ramamurthi, S.C. Agarwal and D.P. Singh, for the intervener (in C.A. No. 711/ 1962.) 689 R.K. Garg and P.K. Chatterjee, for the intervener ,(in C.A. Nos. 837 839./1963). December 5, 1963. The Judgment of P.B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah and N. Rajagopala lyyangar, JJ. was delivered by Gajendragadkar J. K. Subba Rao, and K.C. Das Gupta JJ. delivered separate Opinion section J.C. Shah J. delivered a dissenting Opinion. GAJENDRAGADKAR J. These two groups of appeals have been placed before us for hearing together, because they raise a common question of law in regard to the Constitutional validity of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code, Vol. (hereafter called the Code). The first group consists of four appeals. C.A. Nos. 711 & 712 of 1962 arise from two petitions filed by the appellants Moti Ram Deka and Sudhir Kumar Das respectively in the Assam High Court. Deka was a peon employed by the North East Frontier Railway, whereas Das was a confirmed clerk. They alleged that purporting to exercise its power under Rule 148 of the Code, the respondent, the General Manager North East Frontier ' Railway, terminated their ser vices and according to them, the said termination was illegal inasmuch as the Rule under which the impugned orders of termination had been passed, was invalid. This plea has been rejected by the Assam High Court and the writ petitions filed by the two appellants have been dismissed. It is against these orders of dismissal that they have come to this Court by special leave. Civil Appeal No. 713 of 1962 arises out of a petition filed by the appellant Priya Gupta who was an Assistant Electrical Foreman employed by the North Eastern Railway, Gorakhpur. His services having been terminated by the respondent General Manager of the said Railway, he moved the Allahabad High Court under article 226 of the Constitution and challenged the validity of the order terminating his services on the ground that Rule 148 of the Code was invalid. The appellant 's plea has been rejected 1/SCI/64 44 690 by the said High Court both by the learned single Judge who heard his petition in the first instance and by the Division Bench which heard his Letters Patent Appeal. That is how the appellant has come to this Court by special leave. Civil Appeal No. 714/1962 arises out of a writ petition filed by Tirath Ram Lakhanpal who was a Class A Guard employed by the Northern Railway, New Delhi. His services were terminated by the Respondent General Manager of the said Railway r under Rule 148 of the Code and his writ petition to quash the said order has been dismissed by the Punjab High Court. The learned single Judge who heard this writ petition rejected the pleas raised by the appellant, and the Division Bench which the appellant moved by way of Letters Patent Appeal summarily dismissed his Appeal. It is this dismissal of his Letters Patent Appeal which has brought the appellant to this Court by Special Leave. That is how this group of four appeals raises a common question about the validity of Rule 148. The next group consists of three appeals which challenge the decision of the Assam High Court holding that the orders of dismissal passed by appellant No. 2, the General Manager, North East Frontier Railway, against the three respective respondents S.B. Tewari, Parimal Gupta and Prem Chand Thakur, under Rule 149 of the Code, were invalid. These three respondents had moved the Assam High Court for quashing the impugned orders terminating their services, and the writ petitions having been heard by a special Bench of the said High Court consisting of three learned Judges, the majority opinion was that the impugned orders were orders of dismissal and as such, were outside the purview of Rule 149. According to this view, though Rule 149 may not be invalid, the impugned orders were bad because as orders of dismissal they were not justified by Rule: 149. The minority view was that Rule 149 itself is invalid, and so, the impugned orders were automatically invalid. In the result, the three writ petitions 691 filed by the three respondents respectively were allowed. That is why the Union of India and the General Manager, N.E.F. Railway, appellants 1 & 2 respectively, have come to this Court with a certificate granted by the Assam High Court,. and they challenge the correctness of both the majority and the minority views. Thus, in these three appeals, the question about the validity of Rule 149 falls to be considered. The first group of four appeals was first heard by a Constitution Bench of five Judges for some time. At the hearing before the said Bench, the learned Addl. Solicitor General conceded that the question about the validity of Rule 148 had not been directly considered by this Court on any occasion, and so, it could not be said that it was covered by any previous decision. After the hearing of the arguments before the said Bench had made some progress, the learned Addl. Solicitor General suggested that he was strongly relying on certain observations made in the previous decisions of this Court and his argument was going to be that the said observations are consistent with his contention that Rule 148 is valid and in fact, they would logically lead to that inference. That is why the Bench took the view that it would be appropriate if a larger Bench is constituted to hear the said group of appeals, and so, the matter was referred to the learned Chief Justice for his directions. Thereafter, the learned Chief Justice ordered that the said group should be heard by a larger Bench of seven Judges of this Court. At that time, direction was also issued that the second group of three appeals which raised the question about the validity of Rule 149 should be placed for hearing along with the first group. In fact, the learned counsel appearing for both the parties in the said group themselves thought that it would be appropriate if the two groups of appeals are heard together. That is how the two groups of appeals have come for disposal before a larger Bench; and so, the main question which we have to consider is whether Rule 148(3), and Rule 149(3) which has superseded it are valid. The contention of the 692 railway employees concerned is that these Rules contravene the Constitutional safeguard guaranteed to civil servants by article 311(2). It is common ground that if it is held that the Constitutional guarantee prescribed by article 311(12) is violated by the Rules, they would be invalid; on the other hand the Union of India and the Railway Administration contend that the said Rules do not contravene article 311(2), but are wholly consistent with it. At this stage, it would be. convenient to refer r to the two Rules. Rule 148 deals with the termination of service and periods of notice. Rule 148(1) deals with temporary railway servants; R. 148(2) deals with apprentices, and R. 148(3) deals with other (non pensionable) railway servants. It is with R. 148(3) that we are concerned in the present appeals. It reads thus: "(3) Other (non pensionable) railway servants:The service of other (non pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity." "Note: The appointing authorities are empower ed to reduce or waive, at their discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded. This power cannot be re delegated. " Then follow the respective periods for which notice has to be given. It is unnecessary to refer to these periods. We may incidentally cite Rule 148(4) as well which reads thus: 693 "In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice. " It is thus clear that R. 148(3) empowers the appropriate authority to terminate the services of other nonpensionable railway servants after giving them notice for the specified period, or paying them their salary for the said period in lieu of notice under R. 148(4). The non pensionable services were brought to an end in November, 1957 and an option was given to the non pensionable servants either to opt for pension. able service or to continue on their previous terms and conditions of service. Thereafter, Rule 149 was framed in place of R. 148. Rule 149(1) & (2) like Rule 148(1) & (2) deal with the temporary railway servants and apprentices respectively. Rule 149(3) deals with other railway servants; it reads thus: "Other railway servants: The services of other railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity" The Rule then specifies the different periods for which notice has to be given in regard to the different categories of servants, It is unnecessary to refer to these periods. Then follow sub rule (4). The same may be conveniently set out at this place: "(4) In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice. Note: The appointing authorites are empowered to reduce or waive, at their discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded. This power cannot be re delegated. " Just as under ' Rule 148(3) the services of the railway employees to which it applied could be terminated after giving them notice for the period specified, so under R. 149(3) termination of services of the employees concerned can be brought about by serving them with a notice for the requisite period, or paying them their salary for the said period in lieu of notice under R. 149(4). Rule 149(3) applies to all servants other than temporary servants and apprentices. The distinction between pensionable and non pensionable servants no longer prevails. The question which we have to consider in the present appeals is whether the termination,of services of a permanent railway servant under Rule 148(3) or Rule 149(3)amounts to his removal under article 311(2) of the Constitution. If it does,the impugned Rules are invalid; if it does not, the said Rules are valid. That takes us to the question as to the true scope and effect of the provisions contained in Art.311(2),and the decision of this question naturally involves the construction of article 311(2) read in the light of Articles 309 and 310. In considering this point, if may be useful to refer very briefly to the genesis of these provisions and their legislative background. In this connection, it would be enough for our purpose if we begin with the Government of India Act, 1833. Section 74 of the said Act made the tenure of all Services under the East India Company subject to His Majesty 's pleasure. These servants were also made subject to the pleasure of the Court of Directors with a proviso which excepted from the said rule those who had been appointed directly by His Majesty. In due course, when the Crown took over the government of this country by the Government of India Act, 1858, section 3 conferred on the Secretary of 695 State all powers which has till then vested in the Court of Directors, while the powers in relation to the servants of the Company which had till then vested in the Director were, by section 37, delegated to the Secretary of State. This position continued until we reach the Government of India Act, 1915. This Act repealed all the earlier Parliamentary legislation and was in the nature of a consolidating Act. There was, however a saving clause contained in section 130 of the said Act which preserved the earlier tenures of servants and continued the rules and regulations applicable to them. Section 96B of this Act which was enacted in 1919 brought about a change in the constitutional position of the civil servants. ' Section 96B(1) in substance, provided that "subject to the provisions of this Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty 's pleasures and it added that no person in that service may be dismissed by any authority subordinate to that by which he was appointed. It also empowered the Secretary of State in Council to reinstate any person in that service who had been dismissed, except so far as the Secretary of State in Council may, by rules, provide to the contrary. Section 96B(2) conferred power on the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the method of recruitment, the conditions of service, pay and allowances and discipline and conduct while sub section (4) declared that all service rules then in force had been duly made and confirmed the same. In 1935, the Government of India Act 1935 was passed and section 96B( 1) was reproduced in subsection (1) and (2) of section 240, and a new sub section was added as sections (3). By this new sub section, protection was given to the civil servant by providing that he shall not be dismissed or reduced in rank until he had be en given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The definition contained in section 277 of the said 596 act shows that the expression "dismissal" included removal from service. That continued to be the position until the Constitution was adopted in 1950. The Constitution has dealt with this topic in Articles 309, 310 and 311. Art.310 deals with the tenure of office of persons serving the Union or a State, and provides that such office is held during the pleasure of the President if the post is under the Union, or during the pleasure of the Governor if the post is under a State. The doctrine of pleasure is thus embodied by article 310(1). article 310(2) deals with cases of persons appointed under contract, and it provides that if the President or the Governor deems it necessary in order to secure the services of a person having special qualifications, he may appoint him under a special contract and the said contract may provide for the payment to him of compensation if before the expiration of an agreed period, that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate: that post. it is significant that article 310(1) begins with a clause "except as expressly provided by this Constitution" '. In other words,if there are any other provisions in the Constitution which impinge upon it, the provisions of article 310(1) must be read subject to them. The exceptions thus contemplated may be illustrated by ,reference to Articles 124, 148, 218 and 324. Another exception is also provided by article 31 1. In other words, article 311 has to be read as a proviso to article 310, and so, there can be no doubt that the pleasure contemplated by article 310(1) must be exercised subject to the limitations prescribed by article 31 1. article 309 provides that subject to the provisions of the constitution, Acts of the appropriate Legislative may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. This clearly means that the appropriate Legislature may pass Acts in respect of the terms and conditions of service of persons appointed to public 697 services and posts, but that must be subject to the provisions of the constitution which inevitably brings in article 310(1). The proviso to article 309 makes it clear that it would be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may. direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and prescribing the conditions of service of persons respectively appointed to services and posts under the Union or the State The pleasure of the President or the Governor mentioned in article 310(1) can thus be exercised by such person as the President or the Governor may respectively direct in that behalf, and the pleasure thus exercised has to be exercised in accordance with the rules made in that behalf. These rules, and indeed the exercise of the powers conferred on the delegate must be subject to article 310, and so article 309 cannot impair or affect the pleasure of the President or the Governor therein specified. There is thus no doubt that article 309 has to be read subject to Articles 310 and 31 1, and article 310 has to be read subject to Art 311. It is significant that the provisions contained in article 311 are not subject to any other provision of the Constitution. Within the field covered by them they are absolute and paramount. What then is the effect of the provisions contained in article 311(2)? article 311(2) reads thus: "No such person as aforesaid shall be dis missed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action propo sed to be taken in regard to him. " We are not concerned with the cases covered by the proviso to this article in the present appeals. It may be taken to be settled by the decisions of this Court that since article 311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all government servants holding 698 permanent or temporary posts or officiating in any of them. The protection afforded by article 311(2) is limited to the imposition of three major penalties contemplated by the service Rules, viz., dismissal, removal or reduction in rank. It is true that the consequences of dismissal are more serious than those of removal and in that sense, there is a technical distinction between the two; but in the context, dismissal, removal and reduction in rank which are specified by article 311 (2) represent actions taken by way of penalty. In regard to temporary servants, or servants on probation, every case of termination of service may not amount to removal. In cases falling under these categories, the terms of contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the employer, the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal. In every such case, courts examine the substance of the matter, and if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract or the relevant rules, article 311(2) may not be applicable to such a case. If, however, the termination of a temporary servant 's services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and article 311(2) would be attracted. Similar would be the position in regard to the reduction in rank of an officiating servant. This aspect of the matter has been considered by this Court in several recent decisions, vide Jagdish Mitter vs Union of India(1) State of Bihar vs Gopi Kishore ' Prasad(2) State of Orissa & Anr. vs Ram Narayan Das(3) section Sukhbans Singh vs The State of Punjab(4) and Madan Gopal vs The State of Punjab & Qrs. (5) (1) A. 1. R. (3) ; (2) ; (4) ; (5) [1963] 3 section C. R. 716. 699 This branch of the law must, therefore, be taken to be well settled. In regard to servants holding substantively a permanent post who may conveniently be describe hereafter as permanent servants, it is similarly wellsettled that if they are compulsorily retired under the relevant service rules, such compulsory retirement does not amount to removal under article 311 (2). Similarly, there can be no doubt that the retire ment of a permanent servant on his attaining the age of superannuation does not amount to his removal within the meaning of article 311(2). The question which arises for our decision in the present appeals is: if the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation, or the rule of compulsory retirement does such termination amount to removal under article 311(2) or not ? It is on the aspect of the question that the controversy between the parties arises before us. Before dealing with this problem, it is necessary to refer to the relevant. Railway Rules themselves Speaking historically, it appears that even while the affairs of the country were in charge of the East India Company, there used to be some regulations which were substantially in the nature of administrative instructions in regard to the conditions of service of the Company 's employees. These regulations were continued by section 130(c) of the Government of India Act, 1915 which provided, inter alia that the repeal shall not affect the tenure of office, conditions of service, terms of remuneration or right to pension of any officer appointed before the commencement of this Act. Section 96B(2) which was inserted in the said Act in 1919, however, provided that the said regulations could be modified or superseded by rules framed by the Secretary of State. In due course, the Secretary of State framed certain rules The first batch of rules was framed in December 1920. They applied to all officers in the All India Provincial as well as Subordinate Services and governed 700 even officers holding special posts. The Local Government had a limited power in respect of officers in the All India Services under their employment and this power was confined to imposing on them punishments of censure, reduction, withholding of promotion and suspension (vide Rule 10); in the case of Provincial Services, however, the powers of the Local Government were plenary They could not only impose the penalties to which we have just referred, but also remove or dismiss them (vide Rule 13). It appears that Rule 14 prescribed the procedure which had to be followed in imposing the penalty of dismissal, removal or reduction; and so, it may be said that for the first time these three major punishments were collated together and a special procedure prescribed in that behalf. No definition of removal was, however, prescribed. Incidentally, we may refer to Rule XX which is included in the group of rules relating to appeals. Under this rule, an appeal would not lie against; (1) the discharge of a person appointed on probation before the end of his probation, and (2) the dismissal and removal of a person appointed by an authority in India to hold a temporary appointment. It would be permissible to point out that this provision would show that the termination of the services of a person permanently employed would not have fallen within the ambit of this rule. The Rules thus framed in 1920 were amended from time to time and were re issued in June, 1924. It appears that subsequent to 1924, fresh rules were made under the Governors Provinces Civil Services (Control and Appeal) Rules and Governors Provinces Civil Services (Delegation) Rules of 1926 which were published in March, 1926. Then followed the Rules framed by the Secretary of State in 1930. These Rules were in force when the Government of India Act, 1935 was enacted, and they continue in force even now by reason of Article 313. We ought to add that these Rules superseded all the earlier rules and constitute an exhaustive code as regards disciplinary matters. Rule 3(b) of these rules excluded the 701 Railway Servants from the application of said rules, and that furnishes the historical background why separate Fundamental Rules for Railway corresponding to the Fundamental Rules in other public services, came to be framed. Before we proceed to the relevant Railway Rule we may incidentally mention Rule 49 of the Rules framed by the Secretary of State in 1930. This provides that penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the clauses (1) to (5) specified in Rule 14. These penalties. number seven in all. Amongst them are mentioned reduction to a lower post, dismissal and removal. Then follows an explanation which is useful for our purpose. Before quoting that explanation it may be. pointed out that the said explanation which was originally introduced under Rule 49, was subsequently amended once in 1948, then in 1950 lastly in 1955 when explanation No. 2 was added Thus amended, the two explanations read as follows: "Explanation 1 The termination of employment (a) of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service; or (b) of a temporary Government servant appointed otherwise than under contract, in accordance with rule 5 of the Central Civil Services (Temporary Service) Rules, 1949; or (c) of a person engaged under a contract, does not amount to removal or dismissal within the meaning of this rule or of rule 55. Explanation II: Stopping a Government Servant at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increments or promotions within the meaning of this rule. " 702 Looking at clauses (a), (b) and (c) of Explanation 1, it would be apparent that these clauses deal with persons appointed on probation, or appointed as temporary servants, or engaged on a contract, and the effect of the said explanation is that the termination of the services of such persons does not amount to removal or dismissal within the meaning of Rule 49 or Rule 55. In other words, R. 49 read along with explanation 1, would,prima facie, inferentially support the contention that in regard to a permanent civil servant, the termination of his services otherwise than under the rule of superannuation or compulsory retirement would amount to removal. Let us then consider the relevant Railway Fundamental Rules which have a bearing on the point with which we are concerned. Paragraph 2003 of the Code, Vol. 11 which corresponds to Fundamental Rule 9 contains definitions. Fundamental Rule 9(14) defines a lien as meaning the title of a Railway servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. An officiating servant is defined by F.R. 9(19) as one who performs the duties of a post on which another person holds a lien, or when a competent authority appoints him to officiate in a vacant post on which no other railway servant holds a lien. There is a proviso to this definition which is not relevant for our purpose. That takes us to the definition of a permanent post which under F.R. 9(22) means a post carrying a definite rate of pay sanctioned without limit of time. A, temporary post, on the other hand, means under F.R. 9 (29) a post carrying a definite rate of pay sanctioned for a limited time, and a tenure post means under F. R. 9 (30) a permanent post which an individual railway servant may not hold for more than a limited period. It is thus clear that as a result of the relevant definitions, a permanent post carries a definite ate of pay without a limit of time and a servant who substantively holds a permanent post has 703 a title to hold the post to which he is substantively appointed, and that, in terms, means that a permanent servant has a right to hold the post until, of course he reaches the age of superannuation, or until he is compulsorily retired under the relevant rule. It is in the light of this position that we must now proceed to examine the question as to whether the termination of the permanent servant 's services either under Rule 148(3) or R. 149(3) amounts to his removal or not. On this point, two extreme contentions have been raised before us by the parties The learned Addl. Solicitor General contends that in dealing with the present controversy, we must bear in mind the doctrine of pleasure which has been enshrined in article 310(1). He argues that every civil servant holds his office during the pleasure the President or the Governor. It is true that in the present cases, we are dealing with rules framed under the proviso to article 309 and in that sense, the question of pleasure on which so much stress is laid by the learned Addl. Solicitor General may not directly arise; but it must be conceded that the point raised for our decision may have some impact on the doctrine of pleasure, and so it needs to be examined. The argument is that all civil service is strictly speaking precarious in character. There is no guarantee of any security of tenure, because the pleasure of the President or the Governor can be exercised at any time against the civil servant. It is true that this pleasure would not be exercised capriciously, unjustly or unfairly, but the existence of the doctrine of pleasure inevitably imposes a stamp of precarious character on the tenure enjoyed by the civil servant, and so it is urged whether Rule 148 or R. 149 is made or not, it would be open to the President or the Governor to terminate the services of any civil servant to whose case article 110(1) applies. The learned Addl. Solicitor General has also impressed upon us the necessity to construe article 310(1) and article 311 in such a manner that the pleasure contemplated by article 310(1) does not become illusory or is not completely obliterated. He, therefore, suggests that article 311(2) which is in the nature of a proviso or an exception to article 310(1) must be strictly construed and in all cases falling outside the scope of the said provision, the pleasure of the President or the Governor must be allowed to rule supreme. On the other hand, it has been urged by the learned counsel appearing for the railway servants concerned before us that the pleasure of the President is controlled by article 311 and if the argument of the learned Addl. Solicitor General is accepted and full scope given to the exercise of the said pleasure, article 311 itself would become otiose. It is urged that the employment in civil service can be terminated only after complying with article 311 and any rule which violates the guarantee provided by the said Article would be invalid. In fact, the argument on the other side is that the word "removal" should receive a much wider denotation than has been accepted by this Court in its decisions bearing on the point, and that all terminations of services in respect of all categories of public servants should be held to constitute removal within article 311(2). We are inclined to hold that the two extreme contentions raised by both the parties must be rejected. There is no doubt that the pleasure of the President on which the learned Addl. Solicitor General so strongly relies has lost some of its majesty and power, because it is clearly controlled by the provisions of article 31 1, and so, the field that is covered by article 311 on a fair and reasonable construction of the re levant words used in that article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President would still be there, but it has to be exercised in accordance with the requirements of article 311. Besides, as this Court has held in the State of Bihar vs Abdul Majid(1), the rule of English Law pithily expressed in the latin phrase "duranto bene placito" ("during pleasure") has not been fully adopted either (1) ; , 799. 705 by section 240 of the Government of India Act, 1935, or by article 3 1 0(1). To the extent to which that rule has been modified by the relevant provisions of: section 240 of the Government of India Act, 1935, or article 311 the 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. It is mainly on the basis of this principle that this Court refused to apply the doctrine against abdul Majid that a civil servant cannot maintain suit against a State or against the Crown for the recovery of arrears of salary due to him. Thus, the extreme contention based on the doctrine of pleasure enshrined in article 310(1) cannot be sustained. Similarly, we do not think it would be possible to accept the argument that the word "removal" in article 311(2) should receive the widest interpretation. Apart from the fact that the said provision is in the nature of a proviso to article 3 1 0(1) and must, therefore, be strictly construed, the point raised by the contention is concluded by the decisions of this Court and we propose to deal with the present appeals on the basis that the word " removal" like the two other words "dismissal" and "reduction in rank" used in article 311(2) refer to cases of major penalties which were specified by the relevant service rules. Therefore, the true position is that Articles 310 and 311 must no doubt be read together, but once the true scope and effect of article 311 is determined, the scope and effect of article 310(1) must be limited in the sense that in regard to cases falling under article 311(2) the pleasure mentioned in article 310(1) must be exercised in accordance with the requirements of article 311. It is then urged by the learned Addl. Solicitor General that article 310 does not permit of the concept of tenure during good behaviour. According to him, in spite of the rule of superannuation, the services of a civil servant can be terminated by the President exercising his pleasure at any time. The rule of superannuation on this contention merely gives an indication to the civil servant as to the length of time 1/SCI/64 45 706 he may expect to serve, but it gives him no right to continue during the whole of the said period. In fact, the learned Addl. Solicitor General did not disguise the 'act that according to his argument Whether or not a rule of superannuation is framed and whether or not Rule 148 or R. 149 is issued, the President 's pleasure can, be exercised independently of these Rules and the action taken by the President in exercise of his pleasure cannot be "questioned under article 311(2). Alternatively,_ he contends that if article 311(2) is read in a very general and wide sense, even the rule as to the age of superannuation may be questioned as being invalid, because it does put an end to the service of a civil servant. We are not impressed by this argument. We will no doubt have to decide what cases of termination of services of permanent civil servants amount to removal; but once that question is determined, wherever it is shown that a permanent civil servant is removed from his service, article 311(2) will apply and article 310(1) cannot be invoked independently with the object of justifying the contravention of the provisions of article 311(2). In regard to the age of superannuation, it may be said prima facie that rules of superannuation which are prescribed in respect of public services in all modem States are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do. They are not fixed on any ad hoc basis and do not involve the exercise of any discretion. They apply uniformly to all public servants falling under the category in respect of which they are framed. Therefore, no analogy can be suggested between the rule of superannuation and .Rule 148(3) or Rule 149(3). Besides., nobody has questioned the validity of the rule of superannuation, and so, it would be fruitless and idle to consider whether such a rule can be challenged at all. Reverting then to the nature of the right which a permanent servant has under the relevant Railway Rules, what is the true position? A person Who 707 substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is, in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must per se amount to his removal, and so, if by R. 148(3) or IC. 149(3) such a termination is brought about, the Rule clearly contravenes article 311(2) and must be held to be invalid. It is common ground that neither of the two Rules contemplates an enquiry and in none of the cases before us has the procedure prescribed by article 311(2) been followed. We appreciate the argument urged by the learned Addl. Solicitor General about the pleasure of the President and its significance; but since the pleasure has to be exercised subject to the provisions of article 31 1, there would be no escape from the conclusion that in respect of cases falling under article 311(2), the procedure prescribed by the said Article must be complied with and the exercise of pleasure regulated accordingly. In this connection, it is necessary to emphasise that the rule making authority contemplated by article 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under article 311(1). article 311(1) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under article 309 so as to make the said right either ineffective or illusory. Once the scope of article 311(1) and (2) is duly determined, it must be held that no Rule 708 framed under article 309 can trespass on the rights guaranteed by article 311. This position is of basic importance and must be borne in mind in dealing with the controversy in the present appeals. At this stage, we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by article 311(2); but in regard to honest, straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient. In our opinion, the sword of Damocles hanging over the heads of permanent railway servants in the form of R. 148(3) or R. 149(3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may conceivably be abused. In this connection, no distinction can be made between pensionable and non pensionable service. Even if a person is holding a post which does not carry any pension, he has a right to continue in service until he reaches the age of superannuation and the said right is a very valuable right. That is why the invasion of this right must inevitably mean that the termination of his service is, in substance, and in law, removal from service. It appears that after Rule 149 was brought into force in 1957, another provision has been made by Rule 321 which seems to contemplate the award of some kind of pension to the employees whose services are terminated under Rule 149(3). But it is significant that the application of R. 149(3) does not require, as normal rules of compulsory retirement do "that the power conferred by the said Rule can be exercised in respect of servants who have 709 put in a prescribed minimum period of service. Therefore, the fact that some kind of proportionate pension is awardable to railway servants whose services are terminated under R. 149(3) would not assimilate the cases dealt with under the ' said Rule to cases of compulsory retirement. As we Will presently point out, cases of compulsory retirement which have been considered by this Court were all cases where the rule as to compulsory retirement came into operation before the age of superannuation was reached and after a Prescribed minimum period of service had been put in by the servant. It is true that the termination of service authorised by R. 148(3) or R. 149(3) contemplates the right to terminate on either side. For all practical purposes, the right conferred on the servant to terminate his services after giving due notice to the employer does not mean much in the present position of unemployment in this country; but apart from it, the fact that a servant has been given a corresponding right cannot detract from the position that the right which is conferred on the railway authorities by the impugned Rules is inconsistent with article 311(2), and so, it ha to be struck down in spite of the fact that a simila right is given to the servant concerned. It has, however, been urged that the railway servants who entered service with the full knowledge of these Rules cannot be allowed to complain that the Rules contravene article 311 and are, therefore invalid. It appears that under Rule 144 (which was originally Rule 143), it was obligatory on railway servants to execute a contract in terms of the re levant Railway Rules. That is how the argument based on the contract and its binding character arise If a person while entering service executes a contract containing the relevant Rule in that behalf with open eyes, how can he be heard to challenge the validity of the said Rule, or the said contract? In our opinion this approach may be relevant in dealing with purely commercial cases governed by rules of contract but it is wholly inappropriate in dealing with a case 710 where the contract or the Rule is alleged to violate a constitutional guarantee afforded by article 311(2); land even as to commercial transactions, it is wellknown that if the contract is void, as for instance, under section 23 of the Indian Contract Act, the plea that it was executed by the party would be of no avail. In any case, we do not think that the argument of contract and its binding character can have validity in dealing with the question about the constitutionality of the impugned Rules. Let us then test this argument by reference to the provisions of article 311(1). article 311(1) provides that no person to whom the said article applies shall be dismissed or removed by an authority subordinate to that by which he was appointed. Can it be suggested that the Railway Administration can enter into a contract with its employees by which authority to dismiss or remove the employees can be delegated to persons other than those contemplated by article 311 (1)? The answer to this question is obviously in the negative, and the same answer must be given to the conten tion that as a result of the contract which embodies the impugned Rules, the termination of the railway servant 's services would not attract the provisions of article 311(2), though, in law, it amounts to removal. If the said termination does not amount to removal, then, of course, article 311(2) would be inapplicable and the challenge to the validity of the impugned Rules would fail; but if the termination in question amounts to a removal, the challenge to the validity of the impugned Rules must succeed notwithstanding the fact that the Rule has been included in a contract signed by the railway servant. There is one more point which still remains to be considered and that is the point of construction. The learned Add1. Solicitor General argued that in construing the impugned Rule 148(3) as well as R. 149(3), we ought to take into account the fact that the Rule as amended has been so framed as to avoid conflict with, or non compliance of, the provisions of article 311(2), and so, he suggests that we should 711 adopt that interpretation of the Rule which would be consistent with article 311(2). The argument is that the termination of services permissible under the impugned Rules really proceeds on administrative grounds or considerations of exigencies of service. If, for instance, the post held by a permanent servant is abolished, or the whole of the cadre to which the post belonged is brought to an end and the railway servant 's services are terminated in consequence, that cannot amount to his removal because the termination of his services is not based on any consi deration personal to the servant. In support ' of this argument, the Addl. Solicitor General wants us to test the provision contained in the latter portion of the impugned Rules. We are not impressed by this argument. What the latter portion of the impugned Rules provides is that in case a railway servant is dealt with under that portion, no notice need be served on him. The first part of the Rules can reason ably and legitimately take in all cases and may be used even in respect of cases falling under the latter category, provided, of course, notice for the specified period or salary in lieu of such notice is give to the railway servant. There is no doubt that on a fair construction, the impugned Rules authorise the Railway Administration to terminate the services of all the permanent servants to, whom the Rules apply merely on giving notice for the specified period, or on payment of salary in lieu thereof, and that clearly amounts to the removal of the servant in question, we are satisfied that the impugned Rules are invalid in as much as they are inconsistent with the provision contained in article 311(2). The termination of the permanent servants" tenure Which is authorised the said Rules is no more and no less than, their removal from service, and so, article 311(2) must come into play in respect of such cases, 'That being so. the Rule which does not require compliance with the procedure prescribed by article 311(2) must be struck down as invalid. It is now necessary to examine some of the cases on which the learned Addl. Solicitor General has 712 relied. In fact, as we have already indicated, his main argument was that some of the observations made in some of the decisions to which we will presently refer support his contention and logically lead to the conclusion that the impugned Rules are valid. That naturally makes it necessary for us to examine the said cases very carefully. In Satish Chandra Anand vs The Union of India(1), this Court was dealing with the case of a person who had been employed by the Government of India on a five year contract in the Resettlement and Employment Directorate of the Ministry of Labour. When his contract was due to expire, a new offer was made to him to continue him in service in his post temporarily for the period of the Resettlement and Employment Organization on the condition that he would be governed by the Central Civil Services (Temporary Service) Rules, 1949. The relevant rule in that behalf authorised the termination of the contract on either side by one month 's notice. Subsequently, his services were terminated after giving him one month 's notice. He challenged the validity of the said order, but did not succeed for the reason that neither article 14 nor article 16 on which he relied really applied. This Court held that it is competent to the State to enter into contracts of temporary employment subject to the term that the contract would be terminated on one month 's notice on either side. Such a contract was not inconsistent with article 311(2). This case, therefore, is of no assistance in the present appeals. In Gopal Krishna Potnay vs Union of India & Anr. (2) a permanent railway employee who was discharged from service after one month notice brought a suit challenging the validity of the order terminating his services. The point about the validity of the Rule was not agitated before the Court. Questions which were raised for the decision of the Court were, inter alia, whether the agreement in question lad been executed by the servant and whether the (1) ; (2) A.I.R. 1954 S.C. 632. 713 termination of his services amounted to a discharge or not. In that connection, reference was made to Rules 1504 and 1505 and it was held that the conduct of the parties showed that the termination of the servant 's services was not more than a discharge in terms of the agreement. This case again is of no assistance. That takes us to the decision in the case of Shyam Lal vs The State of U.P. and the Union of India(1) Shyam Lal 's services were terminated under article 465 A of the Civil Service Regulations and Note I appended thereto. Shyam Lal alleged that his compulsory retirement offended the provisions of article 311(2) on the ground that compulsory retirement was in substance removal from service. This Court considered the scheme of the relevant Rule and held that compulsory retirement did not amount to removal within the meaning of article 311(2). In dealing with this question, this Court observed that removal was almost synonymous with dismissal and that in the case of removal as in the case of dismissal, some ground personal to the servant which was blameworthy was involved. There was a stigma attached to the servant who was removed and it involved a loss of benefit already earned by him. It is in the light of these tests that this Court held that compulsory retirement did not amount to removal. It is true that in dealing with the argument about the loss of benefit, this Court observed that a distinction must be made between the loss of benefit already earned and the loss of prospect of earning something more, and it proceeded to add that in the first case, it is a present and certain loss and is certainly a punishment, but the loss of future prospect is too uncertain, for the officer may die of be otherwise incapacitated from serving a day long and cannot, therefore, be regarded in the eye of law as a punishment. It appears that in dealing with the point, the attention of the Court was drawn to Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, and presumably the explanation (1) ; 713 termination of his services amounted to a discharge or not. In that connection, reference was made to Rules 1504 and 1505 and it was held that the conduct of the parties showed that the termination of the servant 's services was not more than a discharge in terms of the agreement. This case again is of no assistance. That takes us to the decision in the case of Shyam Lal vs The State of U.P. and the Union of India( ) Shyam Lal 's services were terminated under article 465 A of the Civil Service Regulations and Note I appended thereto. Shyam Lal alleged that his compulsory retirement offended the provisions of article 311(2) on the ground that compulsory retirement was in substance removal from service. This Court considered the scheme of the relevant Rule and held that compulsory retirement did not amount to removal within the meaning of article 311(2). In dealing with this question, this Court observed that removal was almost synonymous with dismissal and that in the case of removal as in the case of dismissal, some ground personal to the servant which was blameworthy was involved. There was a stigma attached to the servant who was removed and it involved a loss of benefit already earned by him. It is in the light of these tests that this Court held that compulsory retirement did no amount to removal. It is true that in dealing with th argument about the loss of benefit, this Court observe that a distinction must be made between the loss of benefit already earned and the loss of prospect of earning something more, and it preceded to add that in the first case, it is a present and certain loss and is certainly a punishment, but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore, be regarded in the eye of the law as a punishment. It appears that in dealing with the point, the attention of the Court was drawn to Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, and presumably the explanation (1) ; 714 to the said Rule to which we have already referred, was taken into account in rejecting the argument a that a loss of future service cannot be said to be a relevant factor in determining the question as to whether compulsory retirement is removal or not. The judgment does not show that the invasion of the right which a permanent servant has, to remain in service until he reaches the age of superannuation, was pressed before the Court, and naturally the same has not been examined. Confining itself to the special features of compulsory retirement which was effected under article 465 A and Note I appended thereto, the Court came to the conclusion that compulsory retirement was not removal, We may add that subsequent decisions show that the same view has been taken in respect of compulsory retirement throughout and so, that branch of the law must be held to be concluded by the series of decisions to which we shall presently refer. We would, however, like to make it clear that the observation made in the judgment that every termination of service does not amount to dismissal or removal should, in the context, be confined to the case of compulsory retirement and should not be read as a decision of the question with which we are directly concerned in the present appeals. That problem did not arise before the Court in that case, was not argued before it, and cannot,therefore, be deemed to have been decided by this decision. Then we have a batch of four decisions reported in 1958 which are relevant for our purpose. In Hartwell Prescott Singh vs The Uttar Pradesh Government & Ors.(1) a civil servant held a post in a temporary capacity in the Subordinate Agriculture Service, Uttar Pradesh, and was shown in the gradation list as on probation. He was later appointed with the approval of the Public Service Commission of the United Provinces to officiate in Class II of the said Service. After about 10 years, he was reverted to his original temporary appointment and his services were there after terminated under Rule 25(4) of the Subordinate 1) ; 715 Agriculture Service Rules. Dealing with the said civil servant 's objection that the termination of his services contravened article 311(2), this Court held that reversion from a temporary post held by a person does not per se amount to reduction in rank. To decide whether the reversion is a reduction in rank, the post held must be of a substantive rank and further it must be established that the order of reversion was by way of penalty. As we have already discussed, the cases of temporary servants, probationers and servants holding posts in officiating capacities stand on a different footing and the principles applicable to them are now firmly established and need not detain us. The next decision in the same volume is the State of Bombay vs Saubhagchand M. Doshi(1). This was a case of compulsory retirement under Rule 165 A of the Bombay Civil Services Rules as amended by the Saurashtra Government. In I so far as, this case dealt with the compulsory retirement of a civil servant,, it is unnecessary to consider the Rule in question or the facts relating to the compulsory retirement of the civil servant. It is of interest to note that in dealing with the question as to whether compulsory retirement amounted to removal or not the tests which were applied were in regard to the loss of benefit already accrued and stigma attached to the civil servant. It is, however, significant that in considering the objection based on the contravention of article 311(2), Venkatarama Aiyar J. took the precaution of adding that "questions of the said character could arise only when the rules fix both an age of superannuation and an age for compulsory 'retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within article 311 (2). " It would be noticed that the rule providing (1) 716 for compulsory retirement was upheld on the ground that such compulsory retirement does not amount to ,removal under article 311(2) because it was another mode of retirement and it could be enforced only between the period of age of superannuation prescribed and after the minimum period of service indicated in the rule had been put in. If, however, no such minimum period is prescribed by the rule of compulsory retirement, that according to the judgment, would violate article 311(2) and though the termination of a servant 's services may be described as compulsory retirement, it would amount to dismissal or removal within the meaning of article 311(2). With respect, we think that this statement correctly represents the true position in law. The third case in the said volume is the case of parshotam Lal Dhingra vs Union of India.(1) In this case, Das C.J. who spoke for the Bench considered comprehensively the scope and effect of the relevant constitutional provisions, service rules and their impact on the question as to whether reversion of Dhingra offended the provisions of article 311(2). Dhingra was appointed as a Signaller in 1924 and promoted to the post of Chief Controller in 1950. Both these posts were in Class III Service. In 1951, he was appointed to officiate in Class 11 Service as Asstt. Superintendent, Railway Telegraphs. On certain adverse remarks having been made against him, he was reverted as a subordinate till he made good the short comings. Then, Dhingra made a representation. This was followed by a notice issued by the General Manager reverting him to Class III appointment. It was this order of reversion which was challenged by Dhingra by a writ petition. It would thus be seen that the point with which the Court was directly concerned was whether the reversion of an officiating officer to his permanent post constituted reduction in rank or removal under article 311(2). The decision of this question was somewhat complicated by the fact that certain defects were noticed in the work of Dhingra (1) ; 717 and the argument was that his reversion was in the nature of a penalty, and so, it should be treated as reduction under article 311(2). This Court rejected Dhingra 's contention and held that the reversion of an officiating officer to his substantive post did not attract the provisions of article 311(2). Though the decision of the question which directly arose before this Court thus lay within a very narrow compass, it appears that the matter was elaborately argued before the Court and the learned Chief Justice has exhaustively considered all the points raised by the parties. For our present purpose, it is unnecessary to summaries the reasons given by the learned Chief Justice for holding that the reversion of Dhingra did not amount to reduction in rank. The only point which has to be considered by us is whether the observations made in the course of this judgment in regard to permanent servants assist the learned Addl. Solicitor General and if they do, what is their effect? Broadly stated, this decision widened the scope of article 311 by including within its purview not only permanent servants, but temporary servants and servants holding officiating posts also. The decision further held that dismissal, removal and reduction represent the three major penalties contemplated by the relevant service rules and it is only where the. impugned orders partake of the character of one or the other of the said penalties that article 311(2) can be invoked. In the course of his judgment the learned Chief Justice has referred to Rule 49 and the explanation attached thereto. The explanation to the Rule clearly shows that it refers to persons appointed on probation, or persons holding temporary appointments and contractual posts. It is in the light of this explanation that the learned Chief Justice proceeded to examine the contention raised by Dhingra that his reversion amounted to reduction in rank and so, it became necessary to examine whether any loss of benefit already accrued had been incurred or any stigma had been attached to the servant before he was reverted. It is in that connection that the Court also held that though a kind of enquiry may have 718 been held and the short comings in the work of Dhingra may have weighed in the mind of the authority who reverted him, the said motive could not alter the character of reversion which was not reduction within the meaning of article 311(2). All those points have been considered and decided and so far as the temporary servants probationers, or contractual servants are concerned, they are no longer in doubt. In regard to permanent servants, the learned Chief Justice has made some observations which it is now necessary to consider very carefully. "The appointment of a government servant to a permanent post," observed the learned C.J., "may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post. "(p. 841) On the same subject, the learned C.J has later added that "in the absence of any special contract, the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years ' service, or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him." (p. 843). Reading these two observations together, there can be no doubt that with the exception of appointments held under special contract, the Court took the view that wherever a civil servant was appointed to a permanent post substantively, he had a right to hold that post until he reached the age of superannuation or was compulsorily retired, or the post was abolished. In all other cases, if the services of the said servant were terminated, they would have to be in conformity with the provisions of article 311(2), because termination in such cases amounts to removal. The two statements of the law to which we have just 719 referred do not leave any room for doubt on this point. Later during the course of the judgment, learned C.J. proceeded to examine Rule 49 and the explanations added to it, and then reverting to the question of permanent servants once again, he observed that "it has already been said that where a person is appointed substantively to a permanent 'post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with article 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant 's rights and brings about a premature end of his employment." (pp. 857 58). With respect we ought to point out that though the learned C. J at this place purports to reproduce what had already been stated in the judgment, he has made two significant additions because in the present statement he refers to a contract or service rules which may permit the authority to terminate the services of a permanent servant without taking the case under article 311(2), though such termination may not amount to ordinary or compulsory retirement. The absence of contract, express or implied, or a service rule, which has been introduced in the present statement are not to be found in the earlier statements to which we have already referred, and addition of these two Clauses apparently is due to the fact that the learned C.J. considered Rule 49 and the explanations attached thereto and brought them into the discussion of a permanent servant, and that, we venture to think is not strictly correct. As we have already seen Explanation No. 1 to R. 49 is confined to the through categories of officers specified by it in its clauses (a) 720 (b) and (c), and it has no relevance or application to the cases of permanent servants. Similarly, the same statement is repeated with the observation "as already stated, if the servant has got a right to continue in the post, then, unless ,the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within article 31 1, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances." (p. 862). With respect, we wish to make the same comment about this statement which we have already made about the statement just cited. In this connection, it may be relevant to add that in the paragraph where this statement occurs, the learned C.J. was summing up the position and the cases there considered are cases of Satish Chandra Anand, (1) and Shyam Lal(2). These two cases were concerned with the termination of a temporary servant 's services and the compulsory retirement of a permanent servant respectively, and strictly speaking, they do not justify the broader proposition enunciated at the end of the paragraph. At the conclusion of his judgment, the learned C.J. has observed that "in every case, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to." (p. 863) It would be noticed that the two tests are not cumulative, but are alternative, so that if the first test is satisfied, termination of a permanent servant 's services would amount to removal because his right to the post has been prematurely invaded. The learned C.J. himself makes it clear by adding (1) ; (2) ; 721. that if the case satisfies either of the two tests, the it must be held that the servant had been punished and the termination of his services must be held to be wrongful and in violation of the constitutional rights of the servant. It would thus be noticed that the first test would be applicable to the cases of permanent servants, whereas the second test would be relevant in the cases of temporary servants, probationers and the like. Therefore, we do not think the learned Addl. Solicitor General is justified in contending that all the observations made in the course of this judgment in regard to permanent servant considered together support his contention. Besides if we may say so, with respect, these observations are in the nature of obiter dicta and the learned Add1 Solicitor General cannot rely solely upon them for the purpose of showing that R. 148(3) or R. 149(3) should be held to be valid as a result of the said observations. The last decision on this point rendered by this Court in 1958 (vide P. Balakotaiah vs The Union of India & Others(1) dealt with the case of Balakotaiah who was a permanent railway servant and whose services had been terminated for reasons of national security under section 3 of the Railway Services (Safe guarding of National Security) Rules, 1949.It appears that in this case, Balakotaiah who challenged the order terminating his services before the High Court of Nagpur, failed because the High Court held that the said order was justified under Rule 148(3) of the Railway Rules. In his appeal before this Court, it was urged on his behalf that the High Court was in error in sustaining the impugned order under the said Rule when the Union of India had not attempted to rely on the said Rule, and the impugned order did not purport to have been passed under it. The argument was that the impugned order had been passed under R. 3 of the Security Rules and the High Court should have considered the matter by reference to the said Rule and not to R. 148(3). This plea was (1) ; 1/SCI/64 46 722 upheld by this Court, and so, Balakotaiah 's challenge to the validity of the impugned order was examined by reference to security rule 3. The scheme of the relevant Security Rules was then considered by this Court and it was held that the said Rules did not contravene either article 14 or article 19(1)(c) of the Constitution as contended by the appellant. Having held that the impugned rule was not unconstitutional, this Court proceeded to examine the further contention that the procedure prescribed by the said rules for hearing of the charges does not satisfy the requirement of article 311 and as such, the said Rules are invalid. Rules, 3, 4 and 5 of the Security Rules which dealt with this point do contemplate some kind of an enquiry at which an opportunity is given to the railway servant concerned to show cause against the action proposed to be taken against him. Rule 7 also provides that a person who is compulsorily retired or whose service is terminated under Rule 3, shall be entitled to such compensation, pension, gratuity and/or Provident Fund benefits as would have been admissible to him under the Rules applicable to his service if he had been discharged from service due to the abolition of his post without any alternative suitable employment being provided. The contention was that the nature of the enquiry contem plated by the relevant Rules did not satisfy the re quirements of article 311(2), and so, the Rules should be struck down as being invalid and the order terminating the services of Balakotaiah should therefore, be held to be invalid. This argument was rejected by this Court, and relying upon the earlier decisions in the cases of Satish Chandra Anand(1), Shyam Lal(2) Saubhagchand M. Doshi(3) and Parshotam Lal Dhingra (4) it was held that the order terminating the services of the railway, employee which can be (1) ; (3) ; (2) ; (4) ; 723 passed under R. 3 is not an order of dismissal or removal, and so, article 311(2) is inapplicable. On that view, the validity of R. 3 was sustained. In recording its conclusion on this point, this Court observed that the order terminating the services under R. 3 stands on the same footing as an order of discharge under Rule 148 and it is neither one of dismissal nor of removal within the meaning of Art 311. Naturally, the learned Addl. Solicitor General relies on this statement of the law. In appreciating the effect of this observation, it is necessary to bear in mind that in the earlier portion of the Judgment, this Court has specifically referred to the argument that the Security Rules had an independent operation of their own quite apart from Rule 148, and has observed that the Court did not desire to express any final opinion on that question "as Mr. Ganapathy Iyer is willing that the validity of the orders in question might be determined on the footing that they were passed under R. 3 of the Security Rules without reference to R. 148. That renders it necessary to decide whether the Security Rules are unconstitutional as contended by the appellant. " It would thus be noticed that having upheld the contention of the appellant Balakotaiah that the High Court was in error in referring to and relying upon R. 148(3) for the purpose of sustaining the impugned order terminating his services, this Court had naturally no occasion to consider the validity, the effect or the applicability of the said Rule to the case before it, and so, the attention of the Court centered round the question as to whether the relevant security rule was valid and whether it justified the order passed against the appellant. In dealing with this aspect of the matter, this Court no doubt came to the conclusion that the termination of Balakotaiah 's services under R. 3 did not amount to his removal or dismissal; but since no argument was urged before the Court in respect of R. 148(3), the reference to the said Rule made by the judgment is purely in the nature of an obiter, and so, we are not prepared to 724 read that statement as a decision that R. 148(3) is valid. To read the said statement in that manner would be to ignore the fact that this Court had reversed the conclusion of the High Court that the impugned order was valid under R. 148(3) specifically on the ground that case had not been made out by the Union of India and should not have been adopted by the High Court. It is thus clear that as, the case was argued before this Court and considered, R. 148(3) was outside the controversy between the parties. That is why it would be unreasonable to rely on the reference to R. 148 in the statement made in the judgment on which the learned Addl. Solicitor General relies. There is another aspect of this question to which we may incidentally refer before we part with this case. We have already quoted the observation of Veinkatarama Aiyar J.; in the case of Subhagchand M. Doshi (1) to the ' effect that if compulsory retirement is permitted by any service rule without fixing the minimum period of service after which the Rule can be invoked, termination of the services of a permanent civil servant by the application of such a Rule would be dismissal or removal under article 311(2), and we have indicated that we regard that statement as correctly representing the true legal position in the matter. It appears that when this Court decided the case of Balakotaiah, this aspect of the matter 'was not argued before the Court and the observation to which we have just referred was not brought to its notice. One more case which still remains to be considered in this context is the decision in Dalip Singh vs The State of Punjab (2). In this case, Dalip Singh was compulsorily retired from service by the Rajpramukh of Pepsu exercising his power under Rule 278 of the Patiala State Regulations, 1931. In the quit from which the appeal before this Court arose he alleged that the order of retirement passed against him amoun (1) ; (2) 725 ted to his dismissal, and so, he claimed to recover Rs. 26,699 13 0 on that basis. The validity of R. 278 was not put in issue in the proceedings at any stage. The only point raised, 'was that the said Rule was not applicable to his case, and it was urged that in the circumstances, the order was an ' order of dismissal. This Court. held that R. 278 applied to the case, And so, the preliminary objection against the applicability of the Rule was rejected. Dealing with the main contention raised before this Court that the compulsory retirement of Dalip Singh was removal from service within the meaning of article 311(2), this Court applied the tests laid down in the case of Shyam Lal(1) and Saubhagchand Doshi(2) and held that the said retirement did not amount to removal. Dalip Singh had not lost the benefit which he earned and though considerations of alleged misconduct or inefficiency may have weighed with the Government in compulsorily retiring him that did not affect the character of the order;in fact full pension had been paid to the officer, and so, it was held that the order of retirement is clearly not by way of punishment. At the end of this judgment, this Court added that the observations made in the case of Doshi(2) which we have already cited, should not be read as laying down the law that retirement under R. 278 would be invalid for the reason that a minimum period of service had not been prescribed before the said Rule could be enforced against the civil servant. It would be recalled that in the case of Doshi(2) Venkatarama Aiyar J. had observed that if the two periods are not prescribed one for superannuation and the other for enforcing the rule of compulsory retirement, compulsory retirement of the officer would amount to dismissal or removal under article 311(2). In Dalip Singh 's case (2), it was stated that the said observation should not be taken to have laid down any rule of universal application in that behalf. The (1) (1955] 1 S.C.R. 26 (2) (1958] 1 S.C.R. (3) 726 learned Addl. Solicitor General has naturally relied on these observations. It is however, necessary to point out that the said observations were made on the assumption that the Patiala Rules did not lay down any minimum period of service which had to be put in by civil servant 'before he could be compulsorily retired under Rule 278. We have already seen that the validity of R. 278 was not challenged before the Court in Dalip Singh 's case; besides, we have now been referred to the relevant Patiala Rules, and it appears that the combined operation of Rules 53, 54, 125, 236, 239, 240, 243 and 278 would tend to show that no officer ,could have been compulsorily retired under R. 278 unless he had put in at least 12 years ' service. We are referring to this aspect of the matter for the purpose of showing that the assumption made by this Court in making the observations to which we have just referred may not be well founded in fact. Apart from that, we think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of article 311(2). At this stage, we ought to make it clear that in the present appeals, we are not called upon to consider whether a rule of compulsory retirement would be valid, if, having fixed a proper age of superannuation,, it permits a permanent servant to be retired at a very early stage of his career. We have referred to the decisions dealing with cases of compulsory retirement only for the purpose of ascertaining the effect of the obiter observations made in some of those decisions in relation to the question with which we are directly concerned. The question raised by the orders of compulsory retirement so far as it is covered by the said decisions must be deemed to be concluded. Our conclusion, therefore, is that rules 127 148(3) and 149(3) which permit the termination of a permanent railway servant 's services in the manner provided by them, are invalid because the termination of services which the said Rules authorise is removal of the said railway permanent servant and it contravenes the constitutional safeguard provided by article 311(2). After this Court pronounced its decision in the case of Shyam Lal(1) the question about the validity of Rule 148(3) has been considered by several High Courts and it must be conceded that with the exception of two decisions of the Calcutta High Court in Union of India vs Someswar Banerjee(2) and Fakir Chandra Chiki vs section Chakravarti & Ors(3) which have held that R. 1709 and R. 148(3) of the Railway Rules are respectively invalid, the consensus of judicial opinion is in favour of the contention raised by the learned Add1. Solicitor General. These decision have held that R. 148(3) is constitutionally valid (vide Biswanath Singh vs District Traffic Supdt. , N.E Railway, Sonepur(4), The Union of India vs Askaran (5) Hardwari Lal vs General Manager, North Eastern Railway, Gorakhpur(6) and Anr., Kishan Prasad vs The Union of India (7) and D.S. Srinath vs General Manager Southern Railway, Madras(8). In fairness, we ought to add that all these decisions proceeded on the basis that the observations made by this Court either in the case of Shyam Lal (1) or in the case of Dhingra(9) in respect of permanent servants amounted to a decision on that point and were, therefore, binding on the High Courts. Some decisions purport to adopt the said observations and extend them logically in dealing with the question about the validity of Rule 148(3). With respect, we must hold that these decisions do not correctly represent the true legal position in regard to the character of R. 148(3). (1) ; (3) A.I.R. 1954 Cal. (5) A.I.R. 1957 Rajastban 836. (7) A.I.R. 1960 Cal. (2) A.I.R. 1954 Cal. (4) A.I.R. 1956 Patna 221 (6) A.I.R. 1959 All. 439. (8) A.I.R. 1962 Mad 379. (9) ; 728 There is still one more point which must be considered and that is the challenge to the validity of Rules 148(3) and 149(3 on the ground that they contravene article 14 of the Constitution. The pleadings on this part of the case filed by both the parties are not very satisfactory; but as to the broad features '.of the Rules on which the challenge rests, there is no serious dispute. We have already seen the Rules; it is urged that they purport to give no guidance to the authority which would operate the said Rules. No principle is laid down which should guide the decision of the authority in exercising its power under the said Rules. Discretion is left in the authority completely unguided in the matter and the Rules are so worded that the power conferred by them can be capriciously exercised without offending the Rules. It is also not disputed by the learned Addl. Solicitor General that no other branch of public services either under the States or under the Union contains any rule which corresponds to the impugned Rules. Therefore, basing themselves on these two features of the impugned Rules it is argued by the Railway employees before us that the Rules offend article 14. In support of the first argument, it is suggested that though the impugned Rule may not in terms enact a discriminatory rule and in that sense may not patently infringe article 14, it may, nevertheless, contravene the said article if it is so framed as to enable an unequal or discriminatory treatment to be meted out to persons or things similarly situated; and in support of this point, reliance is placed on the decision of this Court in Jyoti Pershad vs The Administrator for the Union Territory of Delhi(1). Such a result, it is said, would inevitably follow where the rule vests a discretion in an authority as an executive officer and does not lay down any policy and fails to disclose any tangible, intelligible, or rational purpose which the power conferred by it is intended to serve. (1) ; at P. 137. 729 On the other hand, the Addl. Solicitor General has contended that the very purpose of the Rule gives guidance to the appropriate authority exercising its power under it; in exercising the said power the appropriate authority will have to take into account all the relevant circumstances in regard to the nature and quality of the work of the railway servant in question and will have to decide whether there are circumstances which require that the services of the said servant should be terminated. In dealing with such a question, it is plain that the appropriate authority would naturally have regard for consideration of public interest and the interest of the Railway Administration. Therefore, it is suggested that the Rule cannot be struck down on the ground that it confers absolute, unguided and uncanalised power on the appropriate authority. Since we have come to the conclusion that the second attack made against the validity of the Rule under article 14 ought to be sustained we do not propose to express any opinion on this part of the controversy between the parties. The other aspect of the matter arises from the fact that no other branch of public service contains such a rule for its civil servants. The true scope and effect of article 14 has been considered by this Court on several occasions. It may, however, be sufficient to refer to the decision of this Court in Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolker & Ors.(1) After examining the Article and the relevant decisions of this Court bearing on it, Das C.J. who spoke for the Court stated the position in the form of propositions, (a) to (f). Propositions (a) and are relevant for our purpose. "The decisions of this Court establish," said Das C.J., "(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; and (f) that while good faith and knowledge of the existing conditions on the part (1) ; at P. 297. 730 of a legislature are to be presumed, if there is nothing on the face of the 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. " Applying these two principles, it is difficult to understand on what ground employment by the Railways alone can be said to constitute a class by itself for the purpose of framing the impugned Rules. If considerations of administrative efficiency or exigencies of service justify the making of such a rule, why should such a Rule not have been framed in the Posts & Telegraph Department to take only one instance. The learned Additional Solicitor Generaf frankly conceded that the ' affidavits filed by the Railway Administration or the Union of India afforded no material on which the framing of the Rule only in respect of one sector of public service can be justified. We appreciate the argument that the nature of services rendered by employees in different sectors of public service may differ and the terms and conditions governing employment in all public sectors may not necessarily be the same or uniform; but in regard to the question of terminating the services of a civil servant after serving him with a notice for a specified period, we are unable to see how the Railways can be regarded as constituting a separate and distinct class by reference to which the impugned Rule can be justified in the light of article 14. If there is any rational connection between the making of such a Rule and the object intended to be achieved by it, that connection would clearly be in existence in several other sectors of public service. What has happened is that a provision like R. 148(3) pr R. 149(3) was first made by the Railway Companies when employment with the Railways was a purely commercial matter governed by the ordinary rules of contract. After the Railways were taken over by the State, that position has essen 731 tially altered, and so, the validity of the Rule is now exposed to the challenge under article 14. Therefore we are satisfied that the challenge to the validity of the impugned Rules on the ground that they contravene article 14 must also succeed. There is one more point which we ought to mention before we part with these appeals. In dealing with the validity of R. 149, Nayudu J. of the Assam High Court who has delivered the minority judgment in the case of Shyam Behari Tewari & Ors V. Union of India & Anr.(1), has observed that the Rule would be invalid for the additional reason that it purports to give power to the Railway Administration to terminate the services of any person in permanent employment in railway service on notice at the sweetwill and pleasure of the Railway Administration Such a power, said the learned Judge, can only be exercised by the President in the instant cases where the service is under the Union and not by any other whereas the Rule in question purports to give that power to the Railway Administration. In support of this conclusion, the learned Judge has relied on the observations made in the majority judgment delivered by this Court in The State of Uttar Pradesh and ors (2) vs Babu Ram Upadhya. We ought to point out that the learned Judge has misconstrued the effect of the observations on which he relies. What the said Judgment has held is that while article 310 provides for a tenure at pleasure of the President or the Governor, article 309 enables the legislature or the executive as the case may be, to make any law or rule in regard inter alia, to conditions of service without impinging upon the overriding power recognised under article 310. In other words, in exercising the power conferred by article 309, the extent of the pleasure recognised by article 310 cannot be affected, or impaired In fact, while stating the conclusions in the form of propositions, the said judgment has observed that the Parliament or the Legislature can make a law regulating the conditions of service without affecting (1) A.I.R. 1963 Assam 94 (2) 732 the powers of the President or the Governor under article 310 read with article 311. It has also been stated at the same place that the power to dismiss a public servant at pleasure is outside the scope of article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution. In the context, it would be clear that this latter observation is not intended to lay down that a law cannot be made under article 309 or a Rule cannot be framed under the proviso to the said Article prescribing the procedure by which, and the authority by whom, the said pleasure can be exercised. This observation which is mentioned as proposition number (2) must be read along with the subsequent propositions specified as (3), (4), (5) & (6). The only point made is that whatever is done under article 309 must be subject to the pleasure prescribed by article 310. Naidu J. was, therefore, in error in holding that the majority decision of this Court in the case of Babu Ram Upadhya(1) supported his broad and unqualified conclusion that R. 149(3) was invalid for the sole reason that the power to terminate the services had been delegated to the Railway Administration. In the result, the four appeals in the first group succeed and are allowed. The writ petitions filed by the four appellants in the three High Courts are granted and orders directed to be issued in terms of the prayers made by them. The appellants would be entitled to their costs from the respondents. The three appeals in the second group fail and are dismissed with costs. One set of hearing fees in each group. SUBBA RAO J I agree that the impugned rules infringe both article 14 and article 311(2) of the Constitution and are, therefore, void. On 1 article 14, 1 have nothing more to say. But on the impact of the said rules on article 311 of the Constitution, I would prefer to give my own reasons. The short but difficult question is whether 148 of the Indian Railway Establishment Code, (1) ; 733 Vol. 1 (1951) and r. 149 of the revised edition of the said Code of the year 1959 replacing r. 148 of the Code of 1951 edition impinge upon the constitutional safeguard given to a person holding a civil post under the Union Government under article 311(2) of the Constitution. While article 311(2) of the Constitution prohibits the State from dismissing or removing or reducing in rank a civil servant until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, rr. 148 and 149 of the said Code in effect enable the Government to terminate his services after issuing the prescribed notice thereunder ' Prima facie the said rules are in conflict with article 311(2) of the Constitution. Broadly stated, the contention of the State is that a Union civil servant holds his office during the pleasure, of the President, that article 311 is not really a limitation on the exercise,of that pleasure, that it only prescribes safeguards against the imposition on him of three unmerited specified penalties, viz., dismissal, removal and reduction in rank, and that the termination of his services for a reason other than misconduct personal to the civil servant is not comprehended by any of the said penalties. The further argument is that the "doctrine of pleasure" implies that a civil servant has no right to an office even in a case where he has a substantive lien on a post and that in any event he has none when there is a specific rule that his services can be terminated after the prescribed notice. This Bench of seven Judges has been constituted to steer clear of conflicting observations, if any, found in the judgments of this Court and to arrive at a conclusion of its own unhampered by such observations. I would, therefore, proceed to consider the relevant provisions in accordance with the natural tenor of the expressions used therein and then to scrutinize whether any of my conclusions would be in conflict with any of the decisions of this Court. At the outset I must make it clear that I propose to confine my discussion only to the question of termi 734 nation of services of a permanent civil servant. None of the observations I may make is intended to have any bearing on the question of termination of the services of other categories of servants. As the argument of the learned Additional Soli citor General is based upon the doctrine of pleasure, it would be convenient at the outset to ascertain the precise scope of the doctrine in the context of the Indian Constitution. Article 309 is subject to the provisions of the Constitution and, therefore, is subject to article 310 thereof Article 311 imposes two limitations on the doctrine of pleasure declared in article 310. The gist of the said provisions is this: Under article 309 of the Constitution the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State; and until provision in that behalf is made, the President or such person as he may direct may make rules regulating the recruitment and conditions of service of persons appointed to the said services and posts in connection with the affairs of the Union. In its ordinary meaning the expression "conditions of service" takes in also the tenure of a civil servant. Under article 310, such a civil servant holds office during the pleasure of the President; but article 311 imposes two conditions to be satisfied before a civil servant can be dismissed, or removed or reduced in rank, namely, (i) he shall not be dismissed, removed or reduced in rank by an authority subordinate to that by which he was appointed, and (ii) he shall be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. A combined reading of these provisions indicates that the rules made under article 309 are subject to the doctrine of pleasure; and that the doctrine of pleasure is itself subject to two limitations imposed thereon under article 31 1. This tenure at pleasure is a concept borrowed from English law, though it has been modified to suit the Indian conditions. 735 The English law on the doctrine of tenure at pleasure has now become fairly crystallized. Under the English law, all servants of the Crown. hold office during the pleasure of the Crown. The right to dismiss at pleasure is an implied term in every contract of employment under the Crown. This doctrine is not based upon any prerogative of the Crown but on public policy. If the terms of appointment definitely prescribe a tenure for good behavior or expressly provide for a power to determine for a cause, such an implication of a power to dismiss at pleasure is excluded, and an Act of Parliament can abrogate or amend the said doctrine of public policy in the same way as it can do in respect of any other part of common law. (see The State of U.P. vs Babu Ram Upadhya (1). Section 96 B of the Government of India Act, 1915, for the first time in 1919, by an amendment, statutorily recognized this doctrine, but it was made subject to a condition that no person in the service might be dismissed by an authority subordinate to that by which he was appointed. Section 240 of the Government of India Act, 1935, imposed another limitation, namely, that a reasonable opportunity of showing cause against the action proposed to be taken in regard to a person must be given to him. But neither of the two Acts empowered the appropriate Legislature to make a law abolishing or amending the said doctrine. The Constitution of India practically incorporated the provisions of section 240 and section 241 of the Government of India Act, 1935, in articles 309 and 310. The English doctrine has been enlarged in one direction and restricted in another: while Parliament has no power to deprive the President of his pleasure, the said pleasure is made subject to two limitations embodied in article 311. The English concept is considerably modified to suit the conditions of our country. It is, therefore, not correct to say that article 311 is not a limitation on the power of the President to terminate the services of a Union civil servant at his pleasure. To accept the argument that the (1) ; , 696. 736 relevant expression in article 311 shall be so construed as to give full sway to the doctrine is to ignore the limitations on that doctrine. Both article 310 and article 311 shall be read together and, if so read, it is manifest that the said doctrine is subject to the said two conditions. What is the scope of the relevant words, "dismissed" and "removed ' in article 311 of the Constitution? The general rule of interpretation which is common to statutory provisions as well as to constitutional provisions is to find out the expressed intention of the makers of the said provisions from the words of the provisions themselves. It is also equally well settled that, without doing violence to the language used, a constitutional provision shall receive a fair, liberal and progressive construction, so that its true objects might be promoted. Article 311 uses two well known expressions, "dismissed" and "removed". The Article does not, expressly or by necessary implication, indicate that the dismissal or removal of a Government servant must be of a particular category. As the said Article gives protection and safeguard to a Government servant who will otherwise be at the mercy of the Government, the said words shall ordi narily be given a liberal or at any rate their natural meaning, unless the said Article or other Articles of the Constitution, expressly or by necessary implication, restrict their meaning. I do not see any indication anywhere in the Constitution which compels the Court to reduce the scope of the protection. The dictionary meaning, of the word "dismiss" is "to let go; to relieve from duty". The word " remove ' " means "to discharge, to get rid off, to dismiss". In their ordinary parlance, therefore, the said words mean nothing more or less than the termination of a person 's office. The effect of dismissal or removal of one from his office is to discharge him from that office. In that sense, the said words comprehend every termination of the services of a Government servant. Article 311(2) in effect lays down that before the services of a Government servant are so terminated, 737 he must be given a reasonable opportunity of showing cause against such a termination. There is no justification for placing any limitation on the said expressions, such as that the dismissal or removal should have been the result of an enquiry in regard to the Government servant 's misconduct. The attempt to imply the said limitation is neither warranted by the expressions used in the Article or by the reason given, namely, that otherwise there would be no point in giving him an opportunity to defend himself If this argument the correct, it would lead to an extraordinary result, namely, that a Government servant who has been guilty of misconduct would be entitled to a "reasonable opportunity" whereas an honest Government servant could be dismissed without any such protection. In one sense the conduct of a party may be relevant to punishment; ordinarily punishment is meted out for misconduct, and if there is no misconduct there could not be punishment. Punishment is, therefore, correlated to misconduct, both in its positive and negative aspects. That is to say punishment could be sustained if there was misconduct and could not be meted out if there was no misconduct. Reasonable opportunity given to a Government servant enables him to establish that he does not deserve the punishment, because he has not been guilty of misconduct. That apart, a Government servant may be removed or dismissed for many other reasons, such as retrenchment, abolition of post, compulsory retirement and others. If an opportunity is given to a Government servant to show cause against the proposed action, he may plead and establish that either there was no genuine retrenchment or abolition of posts or that others should go before him. Now let me see whether the history of this constitutional provision countenances any such limitation on the meaning of the said expressions. As we have already noticed, the concept of tenure at pleasure was first introduced in the Government of India Act, 1919. Under section 96 B of that Act, 1/SCI/64 47 738 "(1) Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in Ind ia holds office during His Majesty 's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed. " It will be seen that under this section the said concept was introduced subject to a condition; it may also be noticed that the section used only one word "dismissed". In England, under that doctrine, services of a Government servant, whether he is a permanent or a temporary servant, can be terminated without any cause whether he is guilty of misconduct or not. Therefore, when the word "dismissed" is used in section 96 B of the Act in the context of the exercise of His Majesty 's pleasure, that word must have been used in the natural meaning it bears, i.e. terminated. But that section was subject to the provisions of the rules 'made under that Act. In exercise of the power conferred under the Act on the Secretary of State for India in Council, he framed certain rules in December 1920 and with subsequent modifications they were published on May 27, 1930. The said rules were designated as the Civil Services (Classification, Control and Appeal) Rules. Rule 49 of those Rules provided for certain penalties and cl. (6) thereof dealt with "Removal from the civil service of the Crown, which does not disqualify from future employment", and cl. (7) provided for dismissal from the civil service of the Crown, "which ordinarily disqualified from future employment". The explanation to that rule read thus: The termination of employment: (a) of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service; or 739 (b) of a temporary Government servant appointed otherwise than under contract, in accordance with rule 5 of the Central Civil Services (Temporary Service) Rules, 1949; or (c) of a person engaged under a contract, in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of this rule or of rule 55. " The explanation makes it clear that the three specified categories of termination covered by the explanation would amount to dismissal or removal but for the explanation. That is to say, the expression "termination" is synonymous with the term "dismissal" or "removal". Rule 55 of the Rules provided a machinery for dismissing or removing or reducing in rank a Government servant; he should be given thereunder an adequate opportunity to defend himself. Then came the Government of India Act, 1935. In section 240 thereof, the expression used was "dismissed" and that term, in the context of the exercise of His Majesty 's pleasure, could have meant only "termination" of services, though in view of the explanation to r. 49 of the Rules quoted above, the three specified categories of termination mentioned in the explanation might, by construction, be excluded from the natural meaning of the word "dismissal". Then we come to article 311 of the Constitution, which with certain modifications incorporated the provisions of section 240 of the Government of India Act, 1935. It introduced the expression "removed" in addition to the word "dismissed" presumably inspired by rr. 49 and 55 of the Rules. The natural meaning of the said terms takes in every act of termination of service; but, if construed with the help of r. 49 of the Rules, their meaning may be cut down by excluding the three categories of termination covered by the explanation in the manner prescribed therein. If the termination was otherwise than that prescribed therein, it would still be dismissal or removal. If so, the history of the constitutional provisions may 740 lead to the conclusion that though the words "dismissed" and "removed" are words of widest connotation, namely "termination" of service of any category held under the Union, they were used in the limited sense they bear in r. 49 of the Rules, that is to say termination of employment excluding the three categories mentioned in the explanation. So far the words "removed" and "dismissed" are concerned, r. 49 shows that there is no appreciable difference between the two except in the matter of future employment; and article 31 1, presumably, copied the two words from r. 49. Therefore, whether the natural and dictionary meanings of the words "dismissal" and "removal" were adopted or the limited meanings given to those words by r. 49 were accepted, the result, so far as a permanent employee was concerned, would be the same, namely that in the case of termination of services of a Government servant outside the three categories mentioned in the explanation, it would be dismissal or removal within the meaning of article 311 of the Constitution with the difference that in the former the dismissed servant would not be disqualified from future employment and in the latter ordinarily he would be disqualified from such employment. If so, it follows that if the services of a permanent Government servant, which fall outside the three categories mentioned in the explanation, were terminated, he would be entitled to protection under article 311(2) of the Constitution. With this background let me now scrutinise the leading judgment of this Court on the subject, namely, Parshotam Lai Dhingra vs Union of India (1). That was a case of reversion of a Government servant who was officiating in Class 11 Service as Assistant Superintendent, Railway Telegraphs, to his substantive post in Class III Service. This Court, speaking through Das C.J., gave an exhaustive treatment to the scope of article 311(2) of the Constitution, parti (1)[1958] S.C.R. 828. 741 cularly with reference to the meaning of the expressions "dismissed", "removed" or "reduced in rank" found therein. A careful reading of the judgment shows that this Court has heavily relied upon r. 49 of the Civil Services (Classification, Control and Appeal) Rules, and its explanation, and attempted to give a legal basis for the said provisions. On that basis, having considered the different aspects of the problem, the Court has laid down the following two tests at p. 863, to ascertain whether a person is dismissed or removed within the meaning of article 311 of the Constitution; (1) Whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore reference to i.e., loss of pay and allowances, loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion If an officer had a right to a post or rank and if the termination of his services deprived him of that right the said termination would be dismissal or removal as punishment. So too, if the termination had the effect of the officer being visited with evil consequences then whatever may be the phraseology used for putting an end to his services, it would be dismissal as punishment. The motive operating on the mind of the authority concerned or the machinery evolved or the method adopted to put an end to his services are not relevant in considering the question whether he was dismissed, if he had a right to the office or if he had been visted with evil consequences, though the said circumstances may have some relevance as other decisions of this Court disclose, in ascertaining whether he was discharged with a stigma attached to him. While conceding that this decision does not in terms specifically lay down that even in the case of a person holding a permanent post, if there was an appropriate term in the conditions of service that his services could be terminated by notice, article 311 of the Constitution would not be attracted, it is contended that raison d 'etre of the decision and some passages therein lead to that conclusion. Some of the passages relied upon may be extracted: 742 At pp. 857 858: "It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation o r is com pulsorily retired and in the absence of a contract express or implied, or a service rule he cannot be turned out of his post unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with article 311(2). " At p. 862: "As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. " These passages certainly lend support to the argument of the learned counsel, but the qualifying clauses on which reliance is placed are only incidental observations. The main principles relevant to the present enquiry were laid down by the Court clearly and precisely at p. 860, thus: "Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment; express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto." The following observation further pinpoints the principle; "One test for determining whether the termi nation of the service of a government servant 743 is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post." This decision, therefore, clearly lays down, without any ambiguity, that if a person has a right to hold office under the service rules or under a contract the termination of his services would attract Art 311 of the Constitution. It also lays down that a person holding a substantive lien on a permanent post has a right to such office. It does not say, expressly or by necessary implication, that even if a person is deprived of such a right, it will not be punishment unless it is inflicted for misconduct in the manner prescribed by the service rules. Learned Additional Solicitor General further relied upon the decisions of this Court holding that a rule empowering the Government to compulsorily retire a permanent Government servant before that age of superannuation did not violate article 311 of the Constitution and contended that, on parity of reasoning, the impugned rules should likewise be valid. It was asked, with considerable force, what relevant distinction there could be between the said two categories of rules in the context of the question whether the termination of services was dismissal or not within the meaning of article 311 of the Constitution? In the case of a Government servant, the argument proceeded, in either case he was deprived of his title to office and, therefore, both cases were equally covered by the principle laid down in Dhingra 's case(1). This argument certainly deserves serious consideration. The relevant rules pertaining to compulsory retirement of a permanent Government servant considered by this Court in the various decisions relied upon by learned counsel may now be noticed. In Shyam Lal 's case (2) which is the sheet anchor of the appellants ' argument, the rule under consideration was Note 1 to article 465 A of the Civil Services Regulations. The said Note read: (1) ; (2) ; 744 "Government retains an absolute right to retire any officer after he has completed twenty five years qualifying service without giving any reasons, and no claim to special compensation on this account will be ' entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer. " The rule considered in The State of Bombay vs Saubhagchand M. Doshi (1) was r. 165 A of the Bombay Civil Services Rules, applicable to the State of Saurashtra, and it read: "Government retains an absolute right to re tire any Government servant after he has com pleted 25 years qualifying service or 50 years of age, whatever the service, without giving any reason, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency or dishonesty. " Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949, was under consideration in Balakotaiah vs The Union of India(2) and it read: "A member of the Railway Service who, in the opinion of the competent authority is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability, may be compulsorily retired from service, or have his service terminated by the competent authority after he has been given due notice or pay in lieu of such notice in accordance with the terms of his service agreement: Provided that a member of the Railway Service shall not be retired or have his service so terminated unless the competent authority is satisfied that his retention in public service is prejudicial to national security, and unless, (1) ; (2) ; 745 where the competent authority is the Head of a Department, the prior approval of the Governor General has been obtained." In Union of India vs Jeewan Ram(1) this Court had to consider sub rr. (3) and (4) of r. 148 of the Indian Railway Establishment Code, Vol. 1. The rule which was under scrutiny in Dalip Singh vs The State Punjab(2) was r. 278 of the Patiala State Regulations, which read: "For all classes of pensions the person who desires to obtain the pension is required to submit his application before any pension is granted to him. The State reserves to itself the right to retire any of its employees on pension on political or on other reasons. " The cases of Shyam Lal and Doshi were decided before Dhingra 's case and the cases of Dalip Singh and Balakotaiah, after Dhingra 'section In all the cases, under the relevant rules the age of superannuation was fixed but the order of compulsory retirement was made before the Government servant reached the age of superannuation. The rule in Shyam Lal 's case ex facie declares that the right will not be exercised except when it is in the public interest to dispensed with the further services of an officer indicating thereby that the compulsory retirement is imposed as punishment for some sort of dereliction of duty on his part and, therefore, the termination of service under that rule necessarily carries a stigma with it. The rule in Doshi 's case(3) iS more emphatic than that in Shyam Lal 's case: the rule in Doshi 's case elaborate what is implicit in the rule considered in Shyam Lal 's case and declares that the right there under shall be exercised by the Government only in the case of inefficiency or dishonesty of the Government servant Rule 3 of the Railway Services (Safeguarding of National Security) Rules considered in Balakotaiah case (4) expressly says that the order of compulsory retirement will be made for misconduct defined therein. (1) A.I.R. 1958 section C. 905. (2) (3) ; (4) 746 The rule in Dalip Singh 's case(1) gives a very wide power to the State to retire any of its employees on pension on political or other reasons before the age of superannuation. In short the rules dealt with in the first three decisions expressly conferred an absolute power on the appropriate authority to terminate the services of a Government servant for misconduct, and the rule in the fourth decision went further and enabled the appropriate authority to dismiss the servant for any reason. It may also be noticed that in Doshi 's cases(2) this Court expressed the view that "when there is no rule fixing the age of compulsory retirement or if there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within article 311(2) of the Constitution". The emphasis appears to be more on the existence of a rule of compulsory retirement than on the character of the termination itself. But this reservation was not accepted by the Court in Dalip Singh 's case(1), that is to say, the emphasis is shifted to the existence of a rule of termination detracting from the permanency of the post. Pausing here a moment, I ask myself the question whether these decisions can be reconciled with the aforesaid principles laid down in Dhingra 's case(3). In Dhingra 's case this Court held that a termination of the services of a Government servant, who has substantive lien on a permanent post, that is to say a title to his office, is dismissal or removal within the meaning of article 311(2) of the Constitution. In the aforesaid three decisions the Government servant concerned had substantive lien on a permanent post, but he was compulsorily retired before the age of superannuation depriving him of his title to the post. it is neither the phraseology used in respect of nor the nomenclature given to the act of termination of service that is material but the legal effect of the action taken that is decisive in considering the question whether a Government servant is dismissed or not. Whether the services of a permanent Government servant are (1) (3) ; (2) ; 747 terminated by giving him 15 days ' notice or whether his services are dispensed with before the age of superannuation by way of compulsory retirement under or outside a rule of compulsory retirement, the termination deprives him of his title to the permanent post. If in the former case it amounts to dismissal, in the latter case it must be equally so. I would, prefer the principle laid down in Dhingra 's case (1) in the matter of termination of the services of a permanent Government servant to that laid down in the said other decisions. Rule 148 of the Railway Establishment Code, Vol. 1, was considered both in Balakotaiah 's case (2) and in Jeewan Ram 's case(3): in the former, though there were some observations in support of the appellants ' contention, the question of construction of the rule was expressly left open, and in the latter though the Government servant concerned was discharged under that rule, the decision proceeded on the basis that he was expressly removed for misconduct. A number of decisions of the High Courts are cited. I have gone through them carefully. I am not referring to them in detail, as, though some of the judgments contain instructive discussion on though subject, they practically extended the principle of Shyam Lal 's case(4) and held that the termination of service, such as under r. 148(3), was not dismissal within the meaning of article 311 of the constitution As, in my view, Shyam Lal 's case must yield to Dhingra 's case, a further discussion of the said decisions is not called for. The effect of the two rules is the same; the difference is only superficial, which lies more in clever drafting than in their content. Take for instance the following two rules: (i) the Government may terminate the services of a permanent Government servant at any time, or after a specified period but before the normal superannuation age, by way of compulsory retirement; and (ii) the Government may terminate (1) ; (3) A. 1. R. (2) ; (4) ; 748 the services of a permanent civil servant by giving him 15 days ' notice. Arbitrariness is writ large on both the rules: both the rules enable the Government to deprive a permanent civil servant of his office without enquiry. Both violate article 311(2) of the Constitution. Both must be bad or none at all. The following principles emerge from the aforesaid discussion. A title to an office must be distinguished from the mode of its termination. It a person has title to an office, 'he will continue to have it till he is dismissed or removed therefrom. Terms of statutory rules may provide for conferment of a title to an office and also for the mode of terminating it. If under such rules a person acquires title to an office, whatever mode of termination is prescribed, whatever phraseology is used to describe it, the termination is neither more nor less than a dismissal or removal from service; and that situation inevitably attracts the provisions of article 311 of the Constitution. The argument that the mode of termination prescribed derogates from the title that otherwise would have been conferred on the employee mixes up two clear concepts of conferment of title and the mode of its deprivation. Article 311 is a constitu tional protection given to Government servants, who have title to office, against arbitrary and summary dismissal. It follows that Government cannot by rule evade the provisions of the said Article. The parties cannot also contract themselves out of the constitutional provision. Once that principle is accepted the cases dealing with compulsory retirement before the age of superannuation cannot also fall outside the scope of article 311 of the Constitution. Age of superannuation is common to all permanent civil servants: it depends upon an event that inevitably happens by passage of time, unless the employee dies earlier or resigns from the post. It does not depend on the discretion of the employer or the employee; it is for the benefit of the employee who earns a well earned rest with or without pensionary benefits for the rest of his life; it has, by custom and by convention, become 749 an inextricable incident of Government service; and it is an incident of a permanent post. Notwithstanding the rule fixing an age of superannuation, a person appointed to such a post acquires title to it. The same cannot be said of a compulsory retirement before the age of superannuation. It is not an incident of the tenure; it does not work automatically it is not conceived in the interest of the employee it is a mode of terminating his employment at the discretion of the appointing authority. In effect whatever may be the phraseology used in terminating the services of a Government employee, it is punishment imposed on him, for it not only destroys his title but also inevitably carries with it a stigma such a. termination is only dismissal or removal within the meaning of article 311 of the Constitution. I would, therefore, with greatest respect, follow the principle laid down in Dhingra 's case(1) in respect of permanent servants in preference to that accepted by Shyam Lal 's case(2) and the subsequent decisions following it. Now let me turn to the relevant rules of the Indian Railway Establishment Code, hereinafter called that Code. The Code is in two volumes. The first volume embodies all rules governing the service conditions of railway servants with the exception of those rules which correspond to the Fundamental Rules, Supplementary Rules, Pension Rules and the Civil Service Regulations applicable generally to all civil servants under the Government of India. The excepted rules are included in Vol. 11 of the Code. Fundamental Rules embodied in Vol. 11 of the Code describe, inter alia the cadre strength, the different posts in the cadre and the nature of the appointments made in respect of such posts. Broadly the posts are divided as permanent, officiating, temporary and for definite periods. Rule 2003 (14) defines lien to mean th title of a railway servant to hold substantively either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substan (1) ; (2) 750 tively. Under r. 2006, "Unless in any case it be otherwise provided in these Rules, a railway servant. on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post". Under r. 2009, "A railway servant 's lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. " Rule 2042 provides that the pay and allowances of a railway servant who is removed or dismissed from service ceases from the date of the order of removal or dismissal. Rule 2046, under the heading "Compulsory Retirement", fixes the age of superannuation for different categories of service. These rules clearly lay down that a. railway servant on a substantive appointment to a permanent post acquires a lien on that post and he does not lose it till he attains the age of superannuation or is dismissed or removed in the manner prescribed; that is, he acquires a title to hold substantively a permanent post. It is not of much relevance to give any particular nomenclature to that post. It may not be a life tenure. It may not also be a permanent post in the literal sense of the term, but it confers a title to that post with all the advantages appertaining to that post and ordinarily it comes to an end only on the incumbent attaining the age of superannuation, with or without pensionary benefits. Briefly stated, the aforesaid Fundamental Rules embodied in Vol. 11 of the Code create offices of stability and security which for all practical purposes are permanent posts. If so, the termination of services of such a servant can only be dismissal or removal, for he will be deprived of his title to the said office. If that was the legal position, for the reasons already given, the said r. 148(3) And r. 149, conferring a power on the appointing authority to remove such a permanent servant on notice would infringe the constitutional protection given to a Government servant under article 311 of the Constitution. A permanent post and such rules cannot stand together: the latter must inevitably yield to the former. 751 I therefore, hold that r. 148(3) and r. 149 of the Railway Establishment Code, being violative of the provisions of articles 14 and 311 of the Constitution are void and unenforceable. In the result, I agree that Civil Appeals Nos 711 to 713 of 1962 and Civil Appeal No. 714 of 196 should be allowed with costs and that Civil Appeal Nos. 837 to 839 of 1963 should be dismissed wit costs. DAS GUPTA J. The principal question raised in the four appeals which have been numbered 711 to 714 of 1962 is as regards the validity of Rule 148 (3) of the Indian Railway Establishment Code in respect of certain non pensionable railway servants that their services shall be liable to termination on notice for the period as prescribed therein. The appellants all railway employees whose services had been terminated on notice in accordance with the above provision and who have failed to obtain relief against the orders of termination challenge the validity of this provision on two grounds. Their first contention is that this Rule in providing for termination of service on mere notice contravenes the provisions of Art 311(2) of the Constitution; secondly, it is contended that the Rule violates article 14 of the Constitution It will be necessary to examine these two grounds separately. Is the termination as provided for in the above provision, in Rule 148 (3) 'removal ' or 'dismissal within the meaning of article 311(2) of the Constitution? That is the question that falls to be answered for deciding the first grounds. To answer this against we have to determine first the connotation of the two words 'removal ' and 'dismissal ' as used in article 311(2). In my opinion, this matter is completely covered by numerous decisions of this Court. Before turning to the decisions however it will be convenient to examine the matter in the context in which article 311 (2) appears in the Constitution and also the historical background of the protection afforded thereby. For this purpose it is necessary first to consider the three Articles of the Constitu 752 tion, viz., articles 309, 310 and 311. They are in these words: "309. Subject to the provisions of this Con stitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State : Provided that it shall be a competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor or Rajpramukh of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provisions in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect, subject to the provisions of any such Act. (1) Except as expressly provided by this Constitution every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds and post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Raj pramukh of the State. (2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor or Rajpramukh of the State, any contract under which a person, not being a member of a defence service or of an all India service or of civil service of, the 753 Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor or the Rajpramukh as the case may be, deems it necessary in order to secure the services of a perso n having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post. (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil. post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Provided that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or (c) where the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity. (3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered 1/SCI/64 49 754 to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final. " It has to be noticed that both Articles 309 and 310 are subject to article 31 1. In other words, if any rule is made under article 309 as regards the conditions of service of a government servant in the matter of his dismissal or removal or reduction in rank it has to comply with the requirements of article 31 1. Again, before any order dismissing or removing or reducing a government servant in rank is made by the President or the Governor in exercise of his pleasure, the President or the Governor has to comply with the require ments of article 311(2) of the Constitution. Under article 310 all servants of the State hold office at pleasure of the President or the Governor as the case may be. That by itself means that the officer has no right to be heard before his services are terminated. To this article 311 provides an exception in the case of removal or dismissal. It is easy to see that if every termination of service amounted to dismissal or removal the resultant position will be that every officer would have the right to be heard before any action could be taken under article 310. That would leave no field in which article 310 could operate. This by itself is sufficient to show that not all kinds of termination of service were intended to come within article 311. Reading Articles 310 and 311 together it will be reasonable to understand them to say that the officer will have the right to be heard before his services were terminated by dismissal or removal but in all other cases of termination of his service he will not have any such right. I have therefore no hesitation in rejecting the extreme proposition urged on behalf of the appellants that the words dismissal or removal in article 311 include every kind of termination of service. This brings us to the question : what kinds of termination of service come within the words dismissal or removal and what kinds are not. Taking the second Dart of the question first, it is not difficult to mention at least two kinds of termination which 755 cannot reasonably be included within the words dismissal or removal. Take for instance the case where a government servant resigns his post but the resignation is not under the rules effective before it has been accepted by his superiors. Here termination results only when the superior officer accepts the resignation. It may be correct to say that thereby he terminates the service. But it could not reasonably be said that the superior officer has removed the servant from service or dismissed him from service. Such removal or dismissal was not necessary at all because of the resignation. Take again the case of a servant who has been appointed to an office for a period of three years. When the three year period ends he is asked to go. There is termination of service. But nobody would said that the superior officer by asking him to go at the end of the period had dismissed him or removed him from service. The real question however is not so much as what in common parlance would be understood to be the dismissal or removal but what the Constitution intended by these words. In this connection it will be helpful to examine the use of the words dismissal and removal in the earlier Constitution Acts. The Charter Act of 1793 mentions in section 36 that nothing in this Act contained shall extend, or be construed to extend to preclude or take away the power of the Court of Directors of the said Company from removing or recalling any of the officers or servants of the said Company, but that the said Court shall and may at all times have full liberty , to remove, recall, or dismiss any of such officers or servants, at their will and pleasure in the like manner as if this Act had not been passed Section 35 made it lawful to and for the King 's Majesty his heirs and successors, by any writing or instrument under him or their sign manual, countersigned by the President of the Board of Commissioners for the affairs of India, to remove or recall any person or person holding any office, employment, or commission, civil or military, under the said United Company 756 in India for the time being. In the Charter Act of 1833, similar provisions were enacted in sections 74 and 75. Section 74 make it lawful "for His Majesty by any Writing under His Sign Manual,countersigned by the President of the said Board of Commissioners, to remove or dismiss any person holding any office, employment or commission, civil or military, under the said Company in India, and to vacate any Appointment or Commission of any person to any such office or employment. " Section 75 ran thus: "Provided always, and be it enacted, that nothing in this Act contained shall take away the Power of the said Court of Directors to remove or dismiss any of the officers or servants of the said Company but that the said Court shall and may at all Times have full Liberty to remove or dismiss any of such officers or servants at their will and pleasure. . When the Act of 1,858 transferred the government of India to Her Majesty the Queen of England section 38 of the Act provided that. "Any writing under the Royal Sign Manual removing or dismissing any person holding any office employment or commission, civil or military in India, of which, if this Act had not been passed, a copy would have been required to be transmitted or delivered within eight days after being signed by Her Majesty to the Chairman or Deputy Chairman of the Court of Directors, shall, in lieu thereof, be communicated within the time aforesaid to the Secretary of State in Council. " It seems to me that in making these statutory provisions as regards dismissal or removal of public servants the British Parliament had in mind those servants only who had acquired such a right to the post under their conditions of service that but for such statutory provisions their dismissal or removal would have been unlawful. If their service was terminable by the ordinary law of the land there 757 would have been no need in section 36 of the 1793 Act or section 75 of the 1833 Act to speak of the right of the Court of Directors of the Company to remove or dismiss the Company 's officers or servants at their will and pleasure. It is clear that by these provisions the British Parliament was emphasizing the right of the Court of Directors of the Company to remove, or dismiss such servants whose services would not have been terminable under the ordinary law of master and servant. It is also legitimate to read the provisions making it lawful for the King of England to remove or dismiss the Company 's servants (s). 35 in the Charter Act of 1793 and section 75 of the Charter Act of 1833) as intended to terminate the service of the same class of servants, viz., those whose services were not terminable under the ordinary law of the land. In the light of this legislative history, the words removal and dismissal in section 38 :of the Act of 1858 and thereafter in the Government of India Act, 1915 (Section 95 and section 96B ) cannot but be read also to mean termination of service of such servants only who would not have been liable to termination under the ordinary law of master and servant. In other words, only those servants who by their terms and conditions of their appointment to the service bad acquired a right to continue for a particular period which could not under the ordinary law be put an end to were intended to get the benefit of these provisions as regards dismissal or removal. By the time the Government of India Act. , 1935, came to be enacted by Parliament rules had been framed by the Secretary of State in Council under section 96B of the Government of India Act, in which these words, removal and dismissal, were used. Among the rules framed under this section in 1924 was Rule XIII, which was in these words: "Without prejudice to the provisions of any law for the time being in force, the Local Government may for good and sufficient reasons: (1) Censure (2) Withhold promotion from 758 (3) Reduce to a lower post (4) Suspend (5) Remove, or (6) Dismiss any officer holding a post in a provincial or subordinate service or a special appointment. " In the fresh set of rules framed in 1930 Rule 49 took the place of Rule XIII of the earlier Rules and was in these words: "R. 49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in Rule XIV namely: (i) Censure, (ii) withholding of increments or promotion (iii) reduction to a lower post or time scale, or to a lower stage in a time scale, (iv) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders (v) suspension, (vi) removal from the civil service of the crown, which does not disqualify from future employment, (vii) dismissal from the civil service of the crown, which ordinarily disqualifies from future employment. Explanation The discharge (a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, 759 (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this Rule. " These Rules show that the Secretary of State in Council considered removal and dismissal from the service of the Crown only as penalties. Explanation to Rule 49 of the 1930 Rules also shows that discharge from service of a person who had not acquired a right to the post was not considered to be removal or dismissal. When the British Parliament made special provision in the Government of India Act, 1935 as regards removal or dismissal of persons in the civil service of the Crown it had before it not only the history of these words removal and dismissal in the Charter Act 1793, Charter Act of 1833, Government of India Act, 1858, the Government of India Act, 1915 but also these Rules framed by the Secretary of State in Council. It is reasonable to think therefore that in making these special provisions in the 1935 Act the British Parliament proceeded on the basis that only terminations of service by way of punishment which could not have been inflicted under the ordinary law of master and servant would come within these words removal and dismissal. Primarily such terminations by way of punishment could be made only in respect of those servants who had not acquired a right to continue in service. It might however be said that even where there was no such right and termination could have been effected therefore under the ordinary law of contract between master and servant any termination which carried with it loss of benefits already acquired, say, forfeiture of pension or of provident fund was also contemplated to come within these words. Termination in no other case could be said to be by way of punishment and in the light of the previous history of the use of the words removal and dismissal in connection with the civil servants of the crown it appears to be abundantly clear that 760 in the Government of India Act, 1935 the words removal and dismissal were not intended to include such other terminations. When the Constitution was framed the provisions as regards removal and dismissal as contained in section 240 of the Government of India Act were embodied 'in articles 310 and 311 with practically little change. Nothing has been shown to us to indicate that the Constitution makers could have meant by these words removal and dismissal in article 31 1, anything different from what the British Parliament had intended to include under those words in the Government of India Act, 1935. The above consideration of the context an previous legislative history leads to the conclusion that the words 'removal ' or 'dismissal ' in article 311 meant only such terminations of service where the servant had acquired a right to continue in the post which right was cut short by the termination and such other terminations even where there was no such right, as resulted in loss of acquired benefits. Turning now to the decided cases we find that the question now under consideration was fully discussed in this Court 's decision in Parshotam Lal Dhingra vs Union of India(1). After an exhaustive discussion of appointments of Government servants to a permanent or temporary post, substantively or on probation or on an officiating basis, and numerous rules of service in connection with such appointments, Das C.J. speaking for the majority of the Court recorded the conclusion thus: "It follows therefore that if the termination of service is sought to be brought about otherwise than by way of punishment, then the government servant whose service is so terminated cannot claim the protection of article 311(2). " The learned Chief Justice went on to say: "The foregoing conclusion however does not solve the entire problem, for it has yet to (1) 761 be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired, and in the absence of a contract express or implied or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with article 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant 's rights and brings abo ut a pre mature end of his employment. Again, where a person is appointed to a temporary post for a fixed term of say five years his service can not, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with article 311(2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of article 311(2). At page 862, the learned Chief Justice again observed: In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted But even if the Government has, by contract or under the rules, the right to terminate the 762 employment without going through the procedure prescribed for inflicting the punishment of dismissal, or removal or reducing in rank, the Government may nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of article 311 must be complied with. " At page 863, the learned Chief Justice observed thus: "Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of Promotion, then that circumstance may indicate that although in form the government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and, reality the Government has terminated the employment as and by way of penalty. " Several years before this the question : what is meant by the words 'removal ' or 'dismissal. ' had been considered by this Court in Shyam Lal vs The State of Uttar Pradesh(1). Shyam Lai, the appellant, had been ordered to retire compulsorily under the provisions of article 465A of the Civil Service Regulations. On behalf of the appellant it was urged inter alia that this order was invalid as the provisions of article 311(2) of the Constitution had not been complied with. In deciding that the compulsory retirement did not amount to dismissal or removal within the meaning of article 311(2) of the Constitution the Court laid down that (1) every termination of service does not amount to removal or dismissal and (2) that dismissal or removal is a punishment imposed on an officer as a penalty which involves loss of benefit already earned (1) ; It was pointed out that on compulsory retirement an officer would not suffer any diminution of the accrued benefit and though in a wide sense the officer might consider himself punished by the deprivation of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension, there is clearly a distinction between the loss of benefit already earned and the loss of prospect of earning something more; where the officer did not lose the benefit already earned the same was not dismissal or removal. At page 42 of the Report the Court said: "Finally, Rule 49 of the Civil Service (Classification, Control and Appeal) Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a penalty It involves loss of benefit already earned. " In Doshi 's Case( ) the Court had to consider an order of compulsory retirement made under Ruled 165A of the Bombay Civil Service Rules as amended by the Saurashtra Government which gave the Government an absolute right to retire any government servant after he had completed 25 years of qualifying service or 50 years of age whatever his service without giving any reason. It was held that such an order was not 'removal ' or 'dismissal ' under article 311 of the Constitution. Speaking for the Court Venkatarama Aiyar J. said: "Now the policy underlying article 311(2) is that when it is proposed to take action against a servant by way of punishment and that will entail forfeiture of benefits already earned by him, he should be heard and given an opportunity to show cause against the order. But that consideration can have no application where the order is not one of punishment and results in no loss of benefits already accrued, and in such a case there is no reason why the terms of employment and the rules of service should not (1) ; 764 be given effect to. Thus, the real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss or benefits previously earned. Applying this test, an order under R. 165A cannot be held to be one of dismissal or removal, as it does not entail forfeiture of the proportionate pension due for past services. " Hartwell 's Case I was one of termination of a temporary servant under the U.P. Subordinate Agricultural Service, who for some time served in a temporary capacity in the U.P. Agricultural Service. He was first reverted to his original appointment in the Subordinate Agricultural Service by an order dated May 3, 1954 and later a notice dated September 13, 1954 was served on him terminating his services in the Subordinate Agricultural Service. The notice purported to be under Rule 25 Cl. 4 of the Subordinate Agricultural Service Rules. The Court held that the termination of the appellant 's services under this rule did not amount to dismissal or removal within the meaning. of article 311 as it was in accordance with the terms of the conditions of service applicable to the appellant. Imam J. speaking for the Court observed: "In principle, we cannot see any clear distinction between the termination of the services of a person under the terms of a contract governing him and the termination of his services in accordance with the terms of his conditions of service. The order complained against did not contravene the provisions of article 311 and was therefore a valid order." The proposition that it is not every termination of service of an employee that falls within the operation of article 31 1 and that it is only when the order is by way of punishment that it is one of dismissal or removal was reaffirmed by this Court in Balakotich vs The Union of India (3 ). Reaffirming also the criteria indicated in Dhingar 's Case(3) as to what amounted (1) ; (2) ; (3) 765 to punishment for the purpose of article 311, Venkatarama Aiyar J. speaking for the Court observed: "The question as to what would amount to punishment for the purposes of article 311 was also fully considered in Parshotam Lal Dhingra 'section Case(1) It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement, a premature termination of his service would result in loss of benefits already earned and accrued, that would also be punishment. " Proceeding to apply this proposition to the facts of the case before it the Court said: "In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of pre mature termination arises. Rule 7 of the Security Rules preserves the rights of the employee to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. It was stated for the appellants that a person who was discharged under the rules was not eligible for reemployment, and that was punishment. But the appellants are unable to point to any rule imposing that disability. The order terminating services under R. 3 of the Security Rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of article 311. " The law as thus settled by this Court was again applied in Dalip Singh vs State of Punjab. (2) Dalip Singh who had been Inspector General of Police, PEPSU, was compulsorily retired from service by the Rajpramukh by an order dated August 18, 1950 which ran as follows "His Highness the Rajpramukh is pleased to retire from service Sardar Dalip Singh, Inspector (1) (2) 766 General of Police, PEPSU, (on leave) for ad ministrative reasons with effect from the 18th August, 1950. " The appellant brought his suit asking for a declaration that the order by which he was removed from the post of Inspector General of Police was unconstitutional, illegal, void, ultra vires and inoperative. Among the grounds on which this declaration was sought was that the compulsory retirement of the appellant which had been made under Regulation 278 of the Patiala State Regulations, was removal from service within the meaning of article 31 1 of the Constitution. Admittedly the requirements of article 311(2) had not been complied with in this case and so the question had to be decided whether such a retirement was removal or dismissal within the meaning of article 31 1. The question was answered by this Court in the negative for the reasons that the order did not amount to punishment because though an enquiry had been held against him the charges or imputations against him had not been made the condition of the exercise of the power of retirement and further because the officer was not losing the benefits he had already earned, as full pension was ordered to be paid. To emphasis the point that where compulsory retirement was in accordance with the rules of service it could not ordinarily be said to be by way of punishment, the Court pointed out that where a rule of service provided for compulsory retirement at any age whatsoever irrespective of the length of service put in, a retirement understand a rule would not be regarded as dismissal or removal. An observation in Doshi 's Case(1) which might appear to indicate otherwise was not followed it being pointed out that in Doshi 's Case this matter did not fall to be considered. Under Rule 278 he State reserved to itself the right to retire any of its employees on pension on political or on other reasons. It did not mention any particular age for retirement under this Rule. Care was taken in this case to mention that if the rule would result in loss (1) ; 767 of pension already earned, the termination would amount to removal or dismissal. It is thus clear both on principle and on authority that the words removal and dismissal in article 311 of the Constitution mean and include only those terminations of service, where a servant had acquired a right to continue in the post on the basis of terms and conditions of service, and such other terminations, where though there were no such right, the order has resulted in loss of accrued benefits; and that terminations of service which did not satisfy either of these two tests do not come within any of these words. Applying these tests to the termination of service under the provision of Rule 148 (3) of the Railway Code that "the service of other (non pensionable) railway servants shall be liable to termination on notice on either side. " I am of opinion that neither of these is satisfied. There is no doubt that this Rule applies not only to temporary railway servants but also to those railway servants who have been substantively appointed to permanent posts in the railways. A "permanent post", under the Fundamental Rules applicable to the railways means a post carrying a definite rate of pay sanctioned without limit of time. On substantive appointment the government servant has a lien on such post, i.e., the right to hold it substantively The right however is limited by all the terms and conditions of service. One of such conditions is in the provision in the Rule for compulsory retirement Rule 2046 of the Railway Code which corresponds to Fundamental Rule 56 provides that generally the date of compulsory retirement of a railway servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the competent authority on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. Clause 2 of Rule 2046 provides the rule of compulsory retirement for ministerial servants. Those government servants 768 who have entered government service on or after the 1st April, 1938, and those who being in government service on the 31st March, 1938 did not hold a lien or a suspended lien on a permanent post on that date, shall ordinarily be required to retire at the age of 55 years, but if he continues to be efficient, should ordinarily be retained in service upto the age of 60 years but that 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. These rules have been modified from time to time but generally speaking a rule has always existed fixing the age beyond which a railway servant will not be allowed to be retained in service. If such a rule of compulsory retirement had not existed, the servant would have had the right to continue in the service till his death. The rule however limits that right, by providing in effect that the service would be terminated at a certain age. Rule 148(3) is just another rule, limiting the servant 's right to continue in ' service. It is as much a condition of service as Rule 2046 and in deciding the nature and extent of the right of a railway servant to whom Rule 148(3) applies to continue in service, Rule 148(3) is of as much importance as Rule 2046. A railway servant to whom Rule 148(3) applies has two limitations put on his right to continue (1) termination on attaining a certain age and (2) termination on service of a notice under Rule 148(3). Where the service is terminated by the order of retirement under Rule 2046, the termination is of a service where the servant has not the right to continue. So, it is not 'removal ' or 'dismissal '. Equally clearly and for the same reason, when the service is terminated by notice under Rule 148(3), the termination is not &removal ' or 'dismissal '. It has not been suggested that the second test of loss of accrued benefits is satisfied in terminations under Rule 148(3). If in any particular instance the order of termination entails loss of accrued benefits that will happen not because of anything in R. 148(3) 169 but for some extraneous action. Where that happens it will be right to consider such terminations as removal or dismissal. But that consideration is foreign to the provisions of Rule 148(3). 1 have therefore come to the conclusion that the first ground raised by the appellants in challenging the validity of Rule 148(3). , viz., that it contravenes the provisions of article 311 of the Constitution must be rejected. It is necessary now to consider the second ground urged by the appellants, viz., that Rule 148(3) contravenes article 14 of the Constitution. Two contentions are urged in support of this ground. First, it is urged that the Rule gives no guidance to the authority who would take action on it as regards the principle to be followed in exercising the power. Secondly, it is urged that the Rule discriminates between railway servants and other public servants. In my opinion, there is considerable force in the first contention. Classifying the statutes which may come up for consideration on a question of its validity under article 14 of the Constitution in Ram Krishna Dalmia vs Justice S.R. Tendolkar & Ors. "I this Court observed under the third class of such statutes thus: "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." (1) ; 1/SCI/64 49 770 Applying the principle laid down in the above case to the present rule 1 find on scrutiny of the Rule that it does not lay down any principle or policy for guiding the exercise of discretion by the authority who will terminate the service in the matter of selection or classification. Arbitrary and uncontrolled power is left in the authority to select at its will any person against whom action will be taken. The Rule thus enables the authority concerned to discriminate between two railway servants to both of whom Rule 148(3) equally applied by taking action in one case and not taking it in the other. In the absence of any guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening the requirements of article 14 of the Constitution. It is unnecessary for me to consider the other contention as mentioned above, which has been urged in support of this ground. My conclusion therefore is that though the provisions of Rule 148(3) in respect of certain non pensionable railway servants that their services shall be liable to termination on notice for the period prescribed therein does not contravene article 311(2) of the Constitution, it contravenes article 14 of the Constitution and consequently is void. I would accordingly allow with costs the four appeals (C.A. Nos. 711 713/62 and C.A. No. 714/62) set aside the order of the High Court and order that appropriate writs be issued in favour of the appellant as prayed for. The other three appeals (C.A. Nos. 837 839 of 1963) challenge the decision of the Assam High Court in favour of three railway servants whose services had been terminated under Rule 149 of the Railway Code, that these terminations were invalid. Rule 149(3) is in practically the same terms as Rule 148(3) and provides for the termination of certain railway servants on notice on either side for the period prescribed. As, however, before November 1957 non 771 pensionable service had been brought to an end, and option was given to non pensionable servants either to opt for pensionable service or to continue under their previous terms and conditions of service, Rule 149(3) mentions permanent railway servants generally without any reference to their being nonpensionable. The validity of his Rule was attacked on behalf of railway servants on the same ground as have been considered with regard to Rule 148(3). For the reasons already given when discussing Rule 148(3) I am of opinion that Rule 149(3) does not contravene article 311(2) of the Constitution but contravenes article 14 of the Constitution. The terminations of service under Rule 149(3) of the Railway Code were therefore rightly held by the High Court to be invalid. I would accordingly dismiss these appeals with costs. SHAH J. Except as expressly provided by the Constitution, every member of the defence services or of a civil service of the Union or an all India service holds office during the pleasure of the President and every member of a civil service of a State holds office during the pleasure of the Governor of the State: article 310(1). This is the normal tenure of office of persons serving the Union or the State. The doctrine of holding office at pleasure applies even to a person with special qualifications employed under a contract, with the reservation that compensation may be paid to such person if before the expiry of the agreed period the office is abolished, or for reasons not connected with misconduct on his part, he is required to vacate that post: article 310(2). The power to terminate at pleasure vested by the Constitution in the President or the Governor, as the case may be, is not liable to be restricted by any enactment of the Parliament or the State Legislature: it may be exercised only in the manner prescribed by the Constitution and being outside the scope of articles 53 and 154 of the Constitution cannot be delegated : State of Uttar Pradesh vs Babu Ram Upadhya(1) It is open to the (1) ; 772 Parliament and the State Legislatures to enact Acts subject to the provisions of the Constitution to regulate recruitment and conditions of services and posts in connection with the affairs of the Union or a State (article 309), and until such legislation is enacted, it may be observed that the Union Parliament has not enacted any general legislation governing public servants employed by the Union the President or the Governor or such person as may be directed in that behalf may make rules regulating the recruitment and conditions of service of persons appointed to such services and posts, and the rules so made by the President or the Governor shall have effect, subject to the provisions of any such Acts. The power of the President or the Governor under article 310 (which is wholly independent of the power conferred by the rules or legislation under article 309), and the power conferred by legislation enacted or rules made or continued by virtue of article 309 are subject to certain restrictions contained in articles 311 & 314. Article 314 grants certain special protections to members appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India and who continue on and after the commencement of the Constitution to serve under the Government of India or a State. Article 311 provides, subject to the proviso to cl. (2), two safeguards to all public servants who are members of the civil service of the Union or an all India service or a civil service of a State who hold civil posts under the Union or the States. These safeguards are "(1) that such members of the service shall not be dismissed or removed by an authority subordinate to that by which he was appointed; and (2) that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." 773 The proviso to cl. (2) of article 311 excludes three specific classes of cases from the protection of the second guarantee. Guarantees under article 311 are, except to the extent specifically provided, absolute and are not subject to the exercise of power, legislative or executive. Accordingly the pleasure of the President or of the Governor cannot be exercised in a manner inconsistent with cl. (2) of article 311. Article 310 must therefore be read subject to article 311(2), and the rules made or legislation enacted under article 309 must also be read subject to article 31 1. It must be emphasized that the guarantees protect all servants, whether appointed to substantive posts, or employed temporarily or on probation, or for limited duration under contracts, but they do not encompass all penalties or terminations of employment. The guarantee under cl. (1) is against dismissal or removal by an authority subordinate to that by which the public servant was appointed, and under cl. (2) against dismissal, removal or reduction in rank without being afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The guarantee under cl. (2) does not affect the investment of power to dismiss, remove or reduce in rank a member of the civil service; it merely places restrictions upon the exercise of the power. Temporary servants on probation, officiating servants and even those holding posts under contracts all have the protection of article 31 1. But the consequences of mere determination of employment in the very nature of things must vary according to the conditions or terms of employment. Mere determination of employment of temporary servants, or probationers, and of servants whose tenure is governed by contracts, will not ordinarily amount to dismissal or removal, for, dismissal or removal according to the rules implies determination as a disciplinary measure. The appellants in appeals Nos. 711 to 714 of 1962 are public servants employed in the Railways under the management of the Government of India 774 and were governed by the rules made under article 309, and their services were terminated in purported exercise of powers under Rule 148(3). Rule 148, the validity of which is challenged by the appellants in these appeals, was originally framed in 1951 in exercise of the authority conferred by article 309, and was later modified so as. to exclude from its operation determination of employment operating as dismissal or removal as a disciplinary measure. The first clause deals with a temporary railway servant who holds no lien on a permanent post under the Union. Such a person need be given no notice of termination of employment, if the termination is due to the expiry of sanction to the post, or of the officiating vacancy or is due to mental or physical incapacity, or where it amounts to removal or dismissal as a disciplinary measure. Clause (2) deals with apprentices. Clause (3) deals with (non pensionable) railway servants, who are substantively appointed to permanent posts. Clauses (3) & (4) provide: "(3) Other (non pensionable) railway servants The service of other (non pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity: (a) Probationary officers and officers on probation other than those in the Medical Department 3 months ' notice (b) Officers on probation in the Medical Department `month 's notice (c) Permanent Gazetted Officers 6 months ' notice (d) Permanent Non gazetted employees `month 's notice. 775 "(4) In lieu ' of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice. " In this group of appeals (Nos. 711 714 of 1962) the principal question raised by the appellants is that the third clause of Rule 148 is invalid. The clause declares that the service of any railway servant who holds non pensionable employment is liable to be terminated on notice on either side of the periods set out in the Rule, but notice terminating employment by the Railway Administration is not a condition of dismissal or removal or of retirement on attaining the age of superannuation and of termination of service due to mental or physical incapacity. The clause prescribes the mode of determination of employment of non pensionable railway servants by notice and proceeds to state that in the specified cases no notice for termination of employment by the Railway Administration shall be necessary. It, ' however, does not follow that in the excepted classes of cases of the right of the Railway Administration to terminate employment is absolute or unrestricted: it is merely intended to be enacted by cl. (3) that notice will be necessary where on compliance with other appropriate conditions, there is retirement on attaining the age of superannuation, or determination of employment in compliance with the provisions of the Constitution, or for mental or physical incapacity. Clause (3) of Rule 148 is impugned by the appellants on two principal grounds: (1) that it is inconsistent with the protection which is guaranteed to all public servants by article 311(2); and (2) that it contravenes the fundamental freedom under article 14 of the Constitution in that certain classes of railway servants are selected for special prejudicial treatment when no such conditions of service are applicable in any other public employment and that in 776 any event an arbitrary power is conferred upon the authority competent in that behalf under the rules to terminate employment without any principle to guide him. Under the first head it is urged that termination by ,.notice of employment of non pensionable servants under Rule 148(3) being removal from service, in the absence of rules prescribing machinery for affording a reasonable opportunity of showing cause against the action proposed to be taken in regard to such employees, the Rule infringes the constitutional guarantee under article 311 and is void. This plea assumes that every termination of employment by notice under Rule 148(3) amounts to removal. But on the plain text of cl. (3) it is evident that the right to determine employ ment by notice cannot be exercised in the excepted cases and since dismissal or removal as a disciplinary measure falls within those excepted cases, the President has, by framing cl. (3) of Rule 148, clearly 1 expressed the intention that determination of employment which amounts to dismissal or removal cannot be effected by notice. In terms the clause makes a distinction between determination of employment by notice and determination of employment as a disciplinary measure, retirement on superannuation, and termination for reasons of physical or mental incapacity: it does not confer authority upon the Railway Administration to terminate employment of a public servant holding a substantive post, as a disciplinary measure. The Rule is framed under article 309, and undoubtedly makes the tenure of a public servant appointed even substantively to hold a permanent post precarious. Ordinarily a railway servant appointed substantively to a permanent post would, under the rules governing employment, continue in service till he attains the age of superannuation but that tenure is made subject to compulsory retirement after he attains the prescribed age if the railway servant belongs to certain specified classes: vide Rule 2046(2) & (3) of the Railway Code, 1958, and to discharge from employment under Rule 148(3) if his service is non pensionable. Inci 777 dents relating to termination of employment on superannuation, on orders of compulsory retirement and on discharge from service under Rule 148(3) are parts. of an organic scheme of rules governing the tenure of office of railway servants which also includes provisions relating to dismissal, removal or reduction in rank as a disciplinary measure. By being appointed to a post a railway servant becomes entitled to the pay and allowances, increments subject to efficiencybar, leave, gratuity, pension etc. These are also incidents of employment of the same character as the incident of determination of employment by compulsory retirement, discharge by notice and dismissal or removal. In considering what the expression "dismissed or removed" used in article 311 means, a brief review of the relevant legislative history dealing with the tenure of office of civil servants in the employment of the Government of India may be useful. It is sufficient to note that since the earliest time all persons holding office civil or military under the East India Company were liable to be removed at the pleasure of the King of England: see section 35 Charter Act 1793 (33 Geo. III Ch. 2): and 74 Charter Act 1833 (3 & 4 will IV Ch. 85). These provisions however did not take away the power of the Court of Directors to remove or dismiss any of its officers or servants not appointed by the Crown in England. The same tenure of service prevailed after the British Crown took over the governance of India, the power to make regulations in relation to appointments and admission to services and matters connected therewith being vested in the Secretary of State in Council: section 37 Govern ment of India Act 1858 (21 & 22 Vict. Ch. 106). For the first time under the Government of India Act, 1919 (9 & 10 Geo. V. Ch. 101) some protection was conferred upon the civil servants. By the first clause of section 96 B the tenure of office of every employee under the civil service of the Crown was during pleasure of His Majesty, but dismissal from service by an authority subordinate to that by which the officer 678 was appointed was prohibited. The power of the Secretary of State for India in Council to make rules regulating classification of civil services, method of recruitment, conditions of service, pay, allowances, discipline and conduct was reaffirmed. This was followed by sections 240 to 243 of the Government of India Act, 1935 (26 Geo. V. & 1 Ed. 8 Ch. 2) which made detailed provisions relating to the tenure of office of persons employed in civil capacities, recruitment and conditions of service and rules to be made in that behalf including rules applicable to railway, custom, postal and telegraph services, and special provisions relating to the police. By section 240, a guarantee against dismissal without being afforded an opportunity of showing cause to persons employed in civil capacities was provided. By cl. (1) except as provided by the Act, every member of a civil service held office during His Majesty 's pleasure: by cl. (2) it was enacted that "no such person shall be dismissed from service, by any authority subordinate to that by which he was appointed" and by cl. (3) it was enacted that "No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". This was the guarantee of protection conferred by the Government of India Act 1935 upon members of the civil services and has since been affirmed by the Constitution in article 311 in almost the same terms the slight verbal alteration substituting "dismissed or removed" for "dismissed" having made no variation in the content of the guarantee. In 1930 Rules were promulgated by the Secretary of State for India in Council under. 96 B(2) of the Government of India Act, 1919,called the Classification, Control and Appeal Rules. These Rules did not in terms apply to railway servants, who were governed by a set of rules published as the Railway Establishment Code, but these were for all practical purposes in terms similar to the Civil Services (Classification, Control and Appeal) Rules, which may be called 'the General Rules '. Under cl. 49 of the General Rules penalties which could be imposed 679 upon civil servants were enumerated and cl. 55 provided that no order of dismissal, removal or reduction shall be passed upon a civil servant unless he has been informed in writing of the grounds on which it is proposed to take action and he has been afforded adequate opportunity of showing cause against the action proposed to be taken. These Rules remained in force after the Government of India Act, 1935, was brought into operation. Even after the Constitution was brought into force, the rules continued to remain in operation till 1955, when a new set of rules were promulgated, but thereby in Rules 49 & 55 no substantial variation was made It is clear that, under the scheme of rules governing the employment of civil servants which obtained prior to the Constitution dismissal. or removal had acquired a definite connotation, and when the Constitution makers adopted the scheme of protection of public servants in the same form in which it prevailed earlier, an intention to attribute to the expression "dismissed and removed" the same content may be assumed in the absence of any expressed intention to the contrary. Since the constitutional guarantee of protection to public servants is couched in the same terms, the expression "removal" in the Service Rules having the same meaning as "dismissal" i.e., determination of employment as a disciplinary measure for misconduct, subject to the slight variation that an employee removed from service is not disqualified from future employment in public service, whereas a dismissed employee is so disqualified, it may reasonably be held that in the context of this development under the Constitution the expression "dismissed or removed" has not acquired a wider signification to include all terminations of public employment, whatever be the cause. Apart from the historical evolution of the guarantee, there is inherent indication in the constitutional provisions that it was not the intention of the Constitution makers to include in the expression "dismissed or removed" all terminations of employ 780 ment. Guarantee of reasonable opportunity of showing cause against the action proposed to be taken in regard to a public servant, would, be wholly inappropriate in cases of superannuation, expiry of the contractual priod of employment, expiry of the priod of probation or temporary employment, and resignations. It would be futile in such cases to provide for "showing cause". The use of the expression "action proposed to be taken in regard to him" also suggests that termination of employment is of the nature of penal action. There is yet another ground which must be taken into account. For nearly two centuries prior to the Constitution tenure of public servants has been expressly declared to be during the pleasure of the British Crown and that tenure has been repeated in the Constitution in article 310(1) with appropriate variations entrusting the power to the President or the Governor, as the case may be. Vitality of this declaration is emphasized in cl. (2) of article 310 so as to enable the President or the Governor to terminate even contractual employments at their respective pleasure. If the Constitution makers intended that every termination of employment amounted to dismissal or removal within article 311, the provision of article 310, solemnly declaring that members of the services civil and defence hold office during the pleasure of the President is reduced to a meaningless formula having no practical content. The argument that it continues to apply to probationers and temporary employees ignores the plain words of the Constitution, beside unduly minimising the content of the guarantee in article 311 which protects all public servants temporary, probationers, contractual as well as those holding substantive posts. There is also a consistent body of authority which has taken the view that the expression "dismissed or removed" within the meaning of article 311 of the Constitution involves determination of employment as a disciplinary measure that is termination of employment on some ground personal to the officer concerned, such as incapacity or imputation 781 of charge against him which renders it inexpedient undesirable that he should continue in public employment: Satish Chandra Anand vs Union of India(1) Shyam Lal vs State of Uttar Pradesh & The Union of India(2); and Parshotam Lal Dhingra vs Union of India (3). In considering whether termination of employment of a. public servant amounts to dismissal or removal, the primary test settled by a uniform course of authority is: does the termination amount to punishment of the public servant, i.e., has it the effect of depriving the public servant concerned of the right which he has already acquired as a public servant, or does it involve evil consequences such as forfeiture of pay or allowances or other benefits which by the rules governing the tenure he has earned, or impute a stigma? A public servant appointed substantively to a post normally acquires a right to hold the post until he attains the age of superannuation, and in the absence of a contract or service rules governing the tenure, discharge from service would deprive him of the right he has to the post. Such deprivation of rights already accrued, or involving evil consequences, must in all cases amount to dismissal or removal, for, it amounts to imposing. punishment. But mere termination of the right to hold a post not as a discip linary measure, but according to the contract or rules governing his appointment and tenure, cannot be so regarded, because the rules which govern his right to the post make determination in the manner provided inherent in the right. By appointment to an office a public servant does not acquire a right to hold it for his natural life time or even during good behaviour His right to hold it is during the pleasure of the President or the Governor, according as his employment is under the Union or the State: the right is also subject to the contract or rules governing the employ ment. Rules framed under article 309 relating to super annuation, to compulsory retirement on attaining (1) ; (2) (1955] 1 S.C.R. (3) ; 782 a certain age, or completing a specified period of service, or to determination of employment of temporary or quasi permanent servants, or those on probation, form conditions of service, and govern the tenure, and it is difficult to perceive any distinction between those conditions of service, and the condition which expressly provides for determination of employment otherwise than as a matter of disciplinary measure. The title of a railway servant holding a non pensionable office is subject to the condition of determination by notice under Rule 148(3) which as the clause expressly provides is not according to its terms exercisable as a disciplinary measure. It cannot be assumed that on acquisition of the office, a railway servant becomes entitled to a right to the post free from the conditions attaching thereto by the rules governing his employment. He is liable to ' vacate the office on superannuation, on compulsory retirement, on notice of determination, and on dismissal or removal alike, i.e., on the supervention of the prescribed conditions determination of employment of the prescribed class results, and not otherwise. Terminations resulting from causes other than dismissal or removal are solely governed by the rules, but in the matter of dismissal or removal, beside the conditions prescribed by the appropriate rules, the overriding provisions of the Constitution must be complied with. Under the Indian Railway Establishment Code, Vol. 11, "lien" is defined in Rule 2003(14) as meaning the title of a railway servant to hold substantively, either immediately or on the termination of a priod or periods of absence, a permanent post, including a tenure post to which he has been appointed substantively. Evidently lien is the title which the railway servant has to a post, and a public servant appointed substantively must always till he is superannuated have lien on a specific post. On substantive promotion his lien would attach to another post, his earlier lien being superseded. While a railway servant appoin 783 ted to another post substantively must have a lien to that post, it cannot be assumed that his lien continues to attach to any particular post. The lien is however subject to the rules: it does not in any manner confer a right to hold a post indefinitely. Counsel for the appellants contended that all the appellants in this group of appeals were permanent employees, and even superannuation did not put an end to employment, since under the rules the superannuated employees had a right to pension. it is impossible to hold that a superannuated employee continues to remain employed. His employment is at an end: he is under no obligation to serve and earns no remuneration. The pension is but a payment made by the State for services already rendered and not in lieu of services being rendered, or which the public servant may be called upon to render There can therefore be no distinction in principle between termination of employment of the employee attaining the prescribed age of superannuation, and termination of services in the manner prescribed by the rules, by notice, or by an order of compulsory retirement. In all cases employment comes to an end Though the causes which result in termination are different, the effect is the same, viz., the public servant ceases to be employed. The argument that on being appointed to a public service, the employee acquires right to continue in employment, proceeds upon a misconception of the nature of appointment to a public post. Appointment to a public post is always subject to the pleasure of the President, the exercise of such pleasure being restricted in the manner provided by the Constitution A person appointed substantively to a post does not acquire a right to hold the post till he dies, he acquires thereby merely a right to hold the post subject to the rules i.e., so long as under the rules the employment is not terminated. If the employment is validly terminated, the right to hold the post is determined even apart from the exercise of the pleasure of the President or the Governor. There is in truth no permanent 784 appointment of a public servant under the Union or the State. Nor is the appointment to a public post during good behaviour, i.e., a public servant cannot claim to continue in office so long as he is of a good behaviour. Such a concept of the tenure of a public servant 's office is inconsistent with articles 309 and 310 of the Constitution. It may be recalled that the guarantee under article 311 protects a public servant against dismissal or removal or reduction in rank as a disciplinary measure. But if the determination of service does not amount to dismissal or removal as a disciplinary measure, there is nothing in the Constitution which prohibits such determination provided it is consistent with article 309 of the Constitution. The tenure of office is subject to article 310, prescribed by article 309 that is the governing code. The rules cannot undoubtedly provide for dismissal or removal otherwise than in a manner consistent with article 311. Nor can an authority acting under the rules validly terminate an appointment to a post in a manner contrary to the Constitution or the rules. Article 311 however covers only a part of the field governing the tenure of employment and in substance provides for a procedure for exercising the right to determine employment in certain specified classes of cases. To hold that this determination of employment must in all cases, whatever may be the source or the power in the exercise of which it is determined, is to attribute to it a more exalted effect than is warranted by the scheme of the Constitution disclosed by articles 309 and 310. The view which I have expressed is consistent with an overwhelming body of uniform authority dealing with different classes of cases in this Court, and we are asked to ignore the principle derived from that body of authority not on the ground of any demonstrable error but on the sole ground of a possible misuse of the powers entrusted to the Railway Administration and that was, as I understood, practically the only argument advanced at the Bar to justify a 785 departure from the settled course of authority. But in considering whether cl. (3) of Rule 148 infringes, the constitutional guarantee under article 311(2), the Court will not assume that in exercising the power to determine employment the authority competent in that. behalf may not act honestly. The presumption always is that the high officials in whom the power is vested Will perform the duties of their office honestly. A mere possibility that the power may in some cases be misused or abused, will not per se induce the Court to deny validity to the entrustment of the power. The impact of article 311 upon Rule 148(3), must be adjudged in the light of action which may be taken bona fide under the Rule. If in a given case the order is not bona fide, and is intended to camouflage an order of removal from service as a disciplinary measure, the protection of article 311(2) would undoubtedly be attracted, for such an order cannot be regarded as made in exercise of authority conferred by Rule 148(3). But the Court will not adjudge the rule invalid on the assumption that the rule may possibly be abused and may be made a cloak for imposing a punishment on a public servant or that the provision might be utilised for a collateral purpose. I will briefly refer to some of the illustrative decisions of this Court. In Satish Chandra Anand 's case(1) discharge from service by notice of a public servant employed under a contract for the duration of the Resettlement and Employment Organisation of the Union was held not to attract the protection of article 311 of the Constitution. The public servant in Satish Chandra Anand 's case(1) was continued in service after expiry of the period of his original employment, under a contract for the duration of the Organisation on condition that he was to be governed by the Central Civil Services (Temporary Service) Rules, 1949, which provided, inter alia, for termination of the contract by a month 's notice on either side. This Court held that to termination of his service (1) ; 1/SCI/64 50 786 by notice according to the 'rules governing his employment, article 311 had no application. In the view of the court the case was not of dismissal or removal from service, because the State has power to enter into contracts of temporary employment and impose special terms not inconsistent with the Constitution, and those who chose to accept the terms and entered into the contract were bound by them, even as the State was bound. This was a case of a premature termination of a contractual employment in exercise of a power reserved by Rules. The view expressed in Satish Chandra Anand 's case(1) was approved in Parshotam Lal Dhingra 's case(2) . Several cases dealing with termination of employment of temporary employees or employees on probation have since arisen, and it has consistently been held that mere termination of employment of these employees not on the ground of any misconduct did not amount to dismissal or removal within the meaning of article 311. In Hartwell Prescott Singh vs The Uttar Pradesh Government and others(3) an order discharging a temporary employee from service by giving him a month 's notice as prescribed by Rule 25(4) of the U.P. Subordinate Agriculture Service Rules, by which he was governed, was held not to amount to dismissal or removal within the meaning of article 31 1. It was observed in that case that in principle there was no distinction between the termination of service under the "terms of a contract" and that in accordance with the "terms of conditions of service". In Parshotam Lal Dhingra 's case (2), Das, C.J., who entered upon an exhaustive review of the Rules governing service conditions of public servants of different classes (and with him all other members of the Bench except Bose J., agreed) observed at p. 842: ". in the case of an appointment to permanent post in a Government service on (1) [19531 S.C.R. 6 5. (2) ; (3) [19581 section C. R. 509. 787 probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Govern ment service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminate d at any time except in one case, namely when the appointment to a temporary post is for a definite period. " In The State of Bihar vs Gopi Kishore Prasad(1) Sinha C.J., speaking for the Court summarised certain propositions governing the tenure of temporary public servants of which the following two are material: "(1) Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without any taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant or removing him from service. (2) The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment. " In The State of Orissa and another vs Ram Narayan das (2) this Court held that a probationer may be discharged in the manner provided by Rule 55 B of the Civil Services (Classification, Control and Appeal) Rules, and to such discharge from service article 311(2) did not apply, for mere termination of employment does not carry with it any evil consequences and an order discharging a public servant, even if he is a (1) ; (2) ; 788 probationer, on the result of an enquiry on charges of misconduct, negligence, inefficiency or other dis qualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer after an enquiry to ascertain whether he was fit to be confirmed, is not of that nature. In section Sukhbans Singh vs The State of Punjab(1) it was held that the protection of article 311 is available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment, and one of the tests for ascertaining whether the termination of service was by way of punishment is whether under the Service Rules, but for such termination, the servant has the right to hold the post. The same view. was expressed in Union Territory, Tripura vs Gopal Chandra Datta(2) and in Ranendra Chandra Bannerjee vs The Union of India(3). Two cases on the other side of the line, which emphasize the distinction between a mere order of discharge of a temporary servant, and an order dismissing a public servant as a disciplinary measure may be noticed. In Madan Gopal vs The State of Punjab and others(4), this Court pointed out that where the employment of a temporary government servant, even though liable to be terminated by notice of one month without assigning any reason, is not so terminated, and the appointing authority holds an enquiry into his alleged misconduct, the termination of service is by way of punishment, because it casts a stigma on his competence and thus affects his career. In such a case the public servant is entitled to the protection of article 311(2) of the Con stitution. In Jagdish Mitter vs The Union of India (5) it was held that an order discharging a temporary servant from employment b notice after recording that he was "found undesirable to be retained in Government service" was one casting a stigma, and (1) ; (2) [1963] Supp. 1 S.C.R. 266. (3) ; (4) [1963] 3 S.C.R. 716. (5) A. I. R. 789 was therefore an order of dismissal attracting the application of article 311 (2) of the Constitution. There is still another class of cases which illustrate the rule that termination of employment otherwise as a disciplinary measure does not amount to dismissal or removal. This Court has held that rules providing for compulsorily retiring public servants holding posts substantively are valid, and that termination of employment consequent upon such compulsory retirement does not amount to dismissal or removal from service so as to attract the protection of article 311(2). In Shyam Lal 's case(1) challenge to the validity of termination of employment of a member of the Indian Service of Engineers compulsorily retired after be completed service for 25 years was discountenanced by this Court on the ground that compulsory retirement under the Civil Services (Classification, Control and Appeal) Rules, after a public servant had served for 25 years, did not amount to dismissal or removal within the meaning of article 311 of the Constitution. It was observed that the word "removal" used synonymously with the term "dismissal" generally implied that the officer was regarded as in some manner blameworthy or deficient, the action of removal being founded on some ground personal to the officer involving leveling of some imputation or charge against him. But there was no such element of charge or imputation in the case of compulsory retirement which did not involve any stigma or implication of misbehavior or incapacity, for, by the compulsory retirement the person concerned did not lose any benefit he had earned and loss of future prospects of earning could not be taken into account in considering whether the order of compulsory retirement amounted to imposing punishment. In The State of Bombay vs Subhagchand M. Doshi(2) it was held that Rule 165 A of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules adopted by the State of Saurashtra, subject to amendment, authorising the State Government to compulsorily (1) ; (2) ; 790 retire any public servant who had completed 25 years of qualifying service or had attained the age of 50 'years, without giving any reason was not violative of article 311(2) of the Constitution, as the order made under Rule 165 A was not one of dismissal or removal. Venkatarama Aiyar, J., observed at p. 579 (obiter as was pointed out in a later case): "It should be added that questions of the above character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be reregistration only as dismissal or removal within article 311(2)." In P. Balakottaiah vs The Union of India and others(1) an order for compulsory retirement under Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949, was challenged as contravening article 311(2). The public servants concerned in those appeals were railway servants and their services were terminated on the ground that the General Manager of the Railways had reason to believe that they were guilty of "subversive activities". Notices were issued to them under section 3 of the Rules to show cause against certain charges. The Committee of Advisers enquired into the charges and the explanations furnished by the public servants found the charges true. The General Manager acting on the report of the Committee terminated the services of the railway servants concerned giving them a month 's salary in lieu of notice. It was held by this Court that it is not every termination of the services of an employee that falls within the operation of article 311, and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article. It was further observed at p. 1065: (1) ; 791 "In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of prema ture termination arises. Rule 7 of the Security Rules preserves the rights of the employees to all the benefits of ' pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. The order terminating the services under R. 3 of the Security Rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of article 311. " The Court in that case appeared to express the opinion, though it was not necessary for deciding the case, that an order of discharge under Rule 148(3) was neither one of dismissal nor removal within the meaning of article 311(2). In Parshotam Lal Dhingra 's case (1) the Court also considered the question whether an order of compulsory retirement of a public servant under the appropriate rules governing him amounts to dismissal or removal from service. At p. 861, Das C.J., speaking for the majority of the Court observed: " . every termination of service is not dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, Likewise the termination of service by compul sory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract article 311(2), as has also been held by this Court in Shyam Lal vs The State of Uttar Pradesh. In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules." (1) ; 792 .lm0 In a still more recent case Dalip Singh vs State of Punjab(1) it was held by this Court that an order of compulsory retirement of a public servant for administrative reasons under R. 278 of the Patiala State Regulations which Regulations did not fix the minimum age or length of service after which an order of compulsory retirement could be made,was not one of dismissal or removal from service within the meaning of article 311(2) of the Constitution, because retirement under a Service Rule which provided for compulsory retirement at any age irrespective of the length of service put in, cannot necessarily be regarded as dismissal or removal within the meaning of article 311, and the observations (hereinbefore quoted) made by Venkatarama Aiyar, J., in Saubhagchand Doshi 's case(2) were for the purposes of deciding that case obiter, and that it was not a general rule that an order of compulsory retirement not amounting to dismissal or removal can take place only under a rule fixing the age of compulsory retirement. These decisions which examine diverse facets of the tenure of employment of public servants, establish beyond doubt that mere determination of employment of a public servant whether he be a temporary employee, a probationer, a contractual appointee or sub stantively holding a permanent post will not attract the provisions of article 311 (2) of the Constitution, unless the determination is imposed as a matter of punishment. All these decisions weave a clear pattern of employment of public servants who are governed by Rules providing for premature determination of employment. Such determination of service, founded on a right flowing from contract or the service rules, is not punishment and carries with it no evil consequences. It does not deprive the public servant of his right to the post, it does not forfeit benefits already acquired., and casts no stigma upon him. A railway employee who has accepted employment on the conditions contained in the rules cannot after having obtained employment, claim that the (1) ; 88 (4) ; (2) [1958] S.C.R. 1052. 793 conditions which were offered to him and which he accepted, are not binding upon him. The sole exception to that rule is in cases where the condition prescribed by contract or statutory regulations is void as inconsistent with the constitutional safeguard, the exception being founded not on any right in the public servant to elect, but on the invalidity of the covenant or regulation. If the principle of the binding nature of the rules as condition of employment is valid, I am unable to see any distinction between cases of termination of employment resulting from attaining the age of superannuation or from orders of compulsory retirement, terminating contracts, terminating temporary employment, or employments on probation, and orders terminating employment after notice under Rule 148(3). If Rule 165 A of the Bombay Civil Services (Classification, Control and Appeal) Rules, as amended, which fell to be considered in Saubh Chand Doshi 's case (1) was not invalid, if Rule of the Railway Services (Safeguarding of National Security) Rules, 1949, which fell to be considered in P. Balakottaiah 's case(2) was not invalid, if Rule 278 of the Patiala State Regulations which fell to be considered in Dalip Singli 's case (3) was not invalid, if Rule 5(a) of the Central Government Services (Temporary Service) Rules, 1949, which fell to be considered in Satish Chandra Anand 's case (4) was also not invalid, it is difficult to appreciate any ground either of logic or of law on which the vice of invalidity as infringing article 311(2) may be attributed to Rule 148(3). The termination of employment under Rule 148(3) does not involve the public servant concerned in loss of any right which he has already acquired, it does not amount to loss of a post to which he is entitled under the terms of his employment, because the right to the post is necessarily circumscribed by the conditions of employment which include Rule 148(3) and does not cast any stigma upon him. In the result I am unable to agree that (1) ; (2) ; (3) (4) (1953] S.C.R. 655. 794 Rule 148(3) was invalid as infringing the guarantee of constitutional protection under article 311(2). In appeals Nos. 837 839 of 1963 the question as to the validity of the Rule 149(3) falls to be determined. That Rule was substituted for the original Rule 148(3) some time in year 1959. Rule 149 deals, by its first clause, with temporary railway servants and cl. (2) deals with apprentices. We are not concerned in these appeals either with temporary railway servants or with apprentices. In this Rule cl. (3) deals with the other railway servants. It provides: "The service of other railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation and termination of service due to mental or phvsical incapacity. The Rule then proceeds to set out the different periods for which notice may be given terminating employment. Clause (4) of the Rule provides for payment in lieu of notice. Rule 149(3) makes a departure from Rule 148(3). The latter Rule applied only to members of the non pensionable service, whereas Rule 149(3) applies to all members of the railway service holding substantive appointments, and brings within its fold all employees even those who have entered employ ment before the date on which the Rule was framed. But if by the terms of his appointment a railway servant who was not governed by Rule 148(3) is brought within Rule 149(3) so as to make his employment precarious by exposing him to liability to termination of employment, different considerations may apply. For reasons which I have already set out the conditions of service validly made under article 309 of the Constitution and in existence on the date when a public servant enters service would be binding upon him. There is nothing in Rule 149(3) which renders determination of employment in the 795 manner provided therein per se inconsistent with article 311. But exercise of the power by the Railway Administration to determine employment of persons who were otherwise not subject to the new condition of service would, in my judgment, amount to imposing a penalty of dismissal or removal. Therefore termination of services of a person who held appointment to a substantive post and was entitled under the previous rules to continue until he attained the age of superannuation, or till compulsory retirement, Rule 149(3) made applicable to him after he entered service would per se amount to dismissal or removal and it would be inconsistent with article 311. This is not because the Rule is invalid, but because it would expose the public servant concerned to forfeiture, by amendment of the rules which were in existence at the time when he entered service, o rights which he had already acquired. The alternative ground of invalidity that the rule infringes the fundamental right of equal protection of the laws under article 14 of the Constitution may now be considered. This ground was set up under two broad heads. (1) There is no other public employment under the Government of India in which conditions similar to these contained in Rule 148(3) or Rule 149(3) exist, and therefore discrimination between public servants employed in Railways and public servants employed in other branches of public undertakings or Administrative Services without any rational basis to support it, infringing the equal protection of laws guaranteed by article 14 of the Constitution, results. The argument posed in this form does not appear to have been raised before the High Court and no investigation has been made whether similar conditions of service do or do not exist in other public employments. In any event, employment in the Railways is in a vitally important establishment of the Union in which the employees are entrusted with 796 valuable equipment and a large measure of confidence has to be reposed in them and on the due discharge of the duties the safety of the public and the efficient functioning of the governmental duties depend. Not only the travelling public, but the Union and the States have in a considerable measure to depend upon rail transport for the functioning of the governmental machinery and its welfare activities. It would be possible even for one or a few employees of the Railway to paralyse communications and movement of essential supplies leading to disorder and confusion. The Railway service has therefore a special responsibility in the smooth functioning of our body politic and a doctrinaire approach to equality of conditions of service in different branches of public employment, irrespective of the nature of the duties performed, irrespective of the possibility of harm to the community which misguided members or units may be capable of doing, and irrespective of the necessity to entrust special powers to terminate employment in deserving cases may not be permitted. If for the purpose of ensuring the interests and safety of the public and the State, the President has reserved to the Railway Administration power to terminate employment under the Railways, it cannot be assumed that such vesting of authority singles out the railway servants for a special or discriminatory treatment so as to expose the Rule which authorises termination of employment to the liability to be struck off as infringing article 14. Article 14 undeniably forbids class legislation, but it does not forbid reasonable classification for the purpose of legislation. Legislation satisfying the test of classification founded on an intelligible differential distinguishing persons, objects or things grouped together from others left out of the. group, such differentia having a rational relation to the object sought to be achieved by the statute, has consistently been regarded as not open to challenge on the ground of infringing the equality clause of the constitution. The special conditions in which the Railways have to operate and the interests 797 of the nation which they serve justify the classification, assuming the argument of classification to be factually correct. It need hardly be pointed out that the basis of classification need not be expressly mentioned by the impugned statute: it may be gathered from the surrounding circumstances known to or brought to the notice of the Court. (2) Rules 148(3) and Rule 149(3) are so framed as to lead to discriminatory treatment of Railway servants, because by the exercise of the arbitrary and uncontrolled power thereby conferred, exercise of which is not to be tested by any objective standard, service of any public servant falling within the classes to which they apply may be terminated Conferment of such a power leads to denial of the equal protection of the laws. Rule 148(3 ) as it stood applied only to non pensionable services and not to pensionable services, and Rule 149(3) applies to all railway servants holding posts pensionable and non pensionable. In dealing with a similar argument in Satish Chandra Anand 's case(1) in the context of termination of employment of a servant employed on a contract for the duration of an Organisation but whose tenure was governed by the Central Civil Services (Temporary Service) Rules, 1949, Bose, J., observed at p. 659: "There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other p erson to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the right and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection (1) ; 798 of any laws which others similarly situated could claim. " These observations in my judgment would, with appropriate variations, be applicable in considering the validity of Rules 148(3) & 149(3). In adjudging 'whether there is by the impugned rules a denial of the equal protection of the laws, no rational ground of distinction can be found between an employee who is but for the rule for termination of em ployment by notice, by the contract entitled to continue in employment for a specified duration, and one who is appointed to a substantive post till superannuation. In one case the employment is. for a period defined or definable, in the other there is employment till superannuation, and in both cases liable to be terminated by notice. If with his eyes open, a candidate for employment accepts a post permanent or temporary, tenure of which is governed by Rules, he cannot after accepting the post seek to avoid the onerous terms of employment. This is not to say that acceptance of covenants or rules which are inconsistent with the Constitution is binding upon the public servant by virtue of his employment. Such covenants or rules which in law be regarded as void, would not affect the tenure of his office. The law which applies to railway servants falling within the class to which Rules 148(3) and 149(3) apply is the same. There are no different laws applicable to members of the same class. The applicability of the law is also not governed by different considerations. It is open to the appointing authority to terminate appointment of any person who falls within the class. There is therefore neither denial of equality before the law, nor denial of equal protection of the laws. All persons in non pensionable services were subject to Rule 148(3). There was no discrimination between them: the same law which protected other servants in the same group non pensionable servants protected the appellants in appeals Nos. 711 714 of 1962, and also provided for determination of their employment. 799 The Rule, it is true, does not expressly provide for guidance to the authority exercising the power conferred by Rule 148, but on that account the Rule, cannot be said to confer an arbitrary power and be unreasonable, or be in its operation unequal. The power is exercisable by the appointing authority who normally is, if not the General Manager, a senior officer of the Railways. In considering the validity of an order of determination of employment under Rule 148, an assumption that the power may be exer cised mala fide and on that ground discrimination may be practised is wholly out of place. Because of the absence of specific directions in Rule 148 governing the exercise of authority conferred thereby, the power to terminate employment cannot be regarded as an arbitrary power exercisable at the sweet will of the authority, when having regard to the nature of the employment and the service to be rendered, the importance of the efficient functioning of the rail transport in the scheme of our public economy, and the status of the authority invested with the exercise of the power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest on grounds of administrative convenience. Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully, and possibility of abuse of power will not invalidate the conferment of power. Conferment of power has necessarily to be coupled with the duty to exercise it bona fide and for effectuating the purpose and policy underlying the rules which provide for the exercise of the power. If in the scheme of the rules, a clear policy relating to the circumstances in which the power is to be exercised is discernible, the conferment of power must be regarded as made in furtherance of the scheme, and is not open to attack as infringing the equality clause. It may be remembered that the rules relating to termination of employment of temporary servants and those on probation, and even those relating to compulsory retirement generally do not lay down any specific directions governing the exercise of the powers 800 conferred thereby. The reason is obvious: the appointing authority must in all these cases be left with discretion to determine employment having regard to the exigencies of the service, suitability of the employee for absorption or continuance in the cadre, and the larger interests of the public being served by retaining the public servant concerned in service. In my view Rule 148(3) cannot, therefore, be regarded as invalid either as infringing article 311(2) of the Constitution or as infringing article 14 of the Constitution. For the same reasons Rule 149(3) cannot also be regarded as invalid. But the orders imposing upon the public servants determination of employment in exercise of the powers under Rule 149(3) made applicable to them when prior to the date on which the Rule was framed they were not applicable to them would be void as infringing article 311(2) of the constitution As, however, on this part of the case there has been no investigation by the High Court, I would remand appeals Nos. 837 839 of 1963 to the High Court and dismiss appeals Nos. 711 714 of 1962. ORDER BY COURT In accordance with the opinion of the majority Civil Appeals Nos. 711 713 of 1962 and Civil Appeal No. 714 of 1962 are allowed with costs. The writ petitions filed by the four appellants in the three High Courts are granted and Orders directed to be issued in terms of the prayers made by them. Civil Appeals Nos. 837 839 of 1963 are dismissed with costs. One set of hearing fees in each group.

IN-Abs

Moti Ram Deka was a peon employed by the North East Frontier Railway and Sudhir Kumar Das was a confirmed clerk. General Manager, North East Frontier Railway, terminated th services under R. 148(3) of Indian Railway Establishment Co Vol. They challenged the termination of their services but th writ petitions were rejected by the Assam High Court and t came to this court by special leave. Priya Gupta was an Assistant Electrical Foreman in North Eastern Railway. His services were terminated under R. 148. His writ petition and Letters Patent Appeal challenging termination of his services having been rejected by Allahabad High Court, he came to this Court by special leave. Tirath Ram Lakhanpal was a Guard employed by the Northen Railway. His services were terminated under R. 148. His writ petition and Letters Patent Appeal were dismissed by Punjab High Court and he came to this court by special leave. S.B. Tewari, Parimal Gupta and Prem Chand Thakur employed in the. North Eastern Frontier Railway. Their service were terminated under R. 149. Their writ petitions challenging termination of their services were accepted by the Assam High Court and Union of India came to this Court after getting a certificate of fitness from the Assam High Court. The only question involved was the constitutional validity or otherwise of Rules 148(3) and 149(3) of the Indian Railway Establishment Code on the ground that they violated articles 14 and 311(2) of Constitution of India. Held: By majority by Gajendragadkar, Wanchoo, Hidaya tullah, Ayyangar, Subba Rao and Das Gupta JJ.(Shah J. dissenting) 684 that Rules 148(3) and 149(3) of Indian Railway Establishment Code were invalid. Per Gajendragadkar, Wanchoo, Hidayatullah and Ayyangar, jj. Rules 148(3) and 149(3) are invalid inasmuch as they are inconsistent with the provisions of articles 311(2). The termination of the services of a permanent servant which is authorised by those rules, is no more and no less than his removal from service and hence article 311(2) must come into play in respect of such cases. The rule which does not require compliance with the procedure prescribed under article 311(2) must be struck down as invalid. A person who substantively holds a permanent post has a right to continue in service, subject to the rules of superannuation and compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on ground of superannuation or compulsory retirement, must per se amount to his removal and if by R. 148(3) or R. 149(3), such a termination is brought about, the rule clearly contravenes article 311(2) and must be held to be invalid. Rules 148(3) and 149(3) contravene article 14 of the Constitu tion. It is difficult to understand on what ground employment by the Railways alone can be said to constitute a class by itself for the purposes of framing the impugned rules. If considerations of administrative efficiency or exigencies of service justify the making of such a rule, such rules should have been framed in other departments also. The pleasure of the President has lost some of its majesty and power as it is controlled by the provisions of article 311. Rules of superannuation are based on considerations of life expectation, mental capacity of civil servants having regard to climatic conditions under which they work and the nature of the work they do. They are not fixed on any ad hoc basis and do not involve the exercise of any discretion. They apply uniformly to all public servants falling under the category in respect of which they are framed. There can be no analogy between the rule of superannuation and rules 148(3) and 149(3) of the Code. If any rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that rule would be invalid and the so called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of article 311(2). 685 Where a rule is alleged to violate the constitutional guarantee afforded by article 311(2), the argument of contract between the parties and its binding character is wholly inappropriate. Per Subba Rao, J. Rules 148(3) and 149(3) which confer a power on the appointing authority to remove a permanent servant on notice, infringe the constitutional protection guaranteed a Government servant under articles 14 and 311 of the Constitution A permanent post and rules such as 148(3) and 149(3) cannot stand together and the latter must inevitably yield to the former. It is neither the phraseology nor the nomenclature given to the act of termination of service that is material but the legal effect of the action taken that is decisive in considering the question whether a Government servant is dismissed or not. Whether the services of a permanent Government servant are terminated by giving him 15 day 's notice or whether his services are dispensed with before the age of superannuation by way of compulsory retirement under or outside a rule of compulsory retirement, the termination deprives him of his title to the permanent post. If in the former case it amounts to dismissal,in the latter case,it must be equally so. In both cases, article 311(2) is attracted. Compulsory retirement before age of superannuation is not an incident of tenure. It does not work automatically. It is not conceived in the interest of the employee. It is a mode of terminating his employment at the discretion of the appointing authority. As a matter of fact, whatever the language used in that connection, it is a punishment imposed on him. It not only destroys his title but also inevitably carries with it a stigma and hence such a termination is dismissal or removal within the meaning of article 311. A title to an office must be distinguished from the mode of its termination. If a person has title to an office, he will continued to have it till he is dismissed or removed from there. Terms of statutory rules may provide for conferment of a title to an office and also for the mode of protecting it. If under such rules, a person acquires title to an office, whatever mode of termination is prescribed and whatever phraseology is used to describe it, the termination is neither more nor less than a dismissal or removal from service and that inevitably attracts the provisions of article 311 of the Constitution. The argument that the mode of termination prescribed derogates from the title that otherwise would have been conferred on the employee mixes up two clear concepts of conferment of title and the mode of its deprivation. Article 311 is a constitutional protection given to Government servants, who have title to office against their arbitrary and summary dismissal. Government cannot by rule evade the provisions of article 311. Parties also cannot contract themselves out of the constitutional provision Per Das Gupta, J. Rule 148(3) does not contravene Art 311(2). A railway servant to whom R. 148(3) applied has two 686 limitations put on his right to continue in service, viz., termination on attaining a certain age and termination of service on a notice under R. 148(3). Where service is terminated by order of retirement under R. 2046, the termination is of a service where the servant has no right to continue and it is not removal or dismissal. Likewise when service is terminated by notice under R. 148(3) that termination is not removal or dismissal. The words 'removal ' and 'dismissal ' in article 311 mean and include only those terminations of service where a servant has acquired a right to continue in the post on the basis of terms and conditions of service and such other terminations where though there is no such right, the order has resulted in loss of accrued benefits. Terminations of service which do not satisfy either of these two tests do not come within any of these words. Both articles 309 and 310 are subject to article 311. If any rule is made under article 309 as regards conditions of service of a Government servant in the matter of his dismissal or removal or reduction in rank, it has to comply with the requirements of article 31 1. Before an order dismissing or removing or reducing a Government servant in rank is made by President or Governor in exercise of his pleasure, President or Governor has to comply with the requirements of 311(2). Under Art 310, all servants of the State hold office during the pleasure of the President or Governor as the case may be. That means that the officer has no right to be heard before his services are terminated. Article 311 provides an exception in the case of removal or dismissal. However, R. 148(3) contravenes article 14 as it does not give any guidance for exercise of discretion by the authority concerned and hence is invalid. Per Shah, J.Rules 148(3) and 149(3) do not infringe Art.311(2) or article 14of the Constitution. There is neither logic nor law in support of the contention that r. 148(3) contravenes article 311(2). The termination of employment under r. 148(3)does not involve the public servant concerned in loss of any right which he has already acquired. It does not amount to loss of a post to which he is entitled under the terms of his employment because the right to a post is necessarily circumscribed by the conditions of employment which include r. 148(3). It also does not cast any stigma upon him. Mere determination of employment, of a public servant, whether he is a temporary employee, a probationer, a contractual appointee or appointed substantively to hold a permanent post, will not attract the provisions of article 311(2) unless the determination is imposed as a matter of punishment. A railway servant who has accepted employment on the conditions contained in the rules, cannot after having obtained employment, claim that the conditions which were offered to him and which he accepted, are not binding upon him. The sole exception to that rule is in cases where the 687 condition prescribed by contract or statutory regulations is void as inconsistent with the constitutional safeguard. This exception is founded not on any right in the public servant to elect, but on t invalidity of the covenant or regulation. There is no distinction between cases of termination of employment resulting from attaining the age of superannuation or from orders of compulsory retirement terminating temporary employment or employment on probation and orders terminating employment after notice under R. 148(3) An appointment to a public post is always subject to th pleasure of the President, the exercise of such pleasure being restricted in the manner provided by the Constitution. A person appointed substantively to a post does not acquire a right t hold the post till he dies. He acquires merely a right t hold the post subject to the rules. If employment is validly terminated, the right to hold the post is determined even apart from th exercise of the pleasure of the President or the Governor. public servant cannot claim to remain in office so long as he is of good behavior. Such a concept of the tenure of a public servant 's post is inconsistent with articles 309 and 310 of the Constitution. Rules 148(3) and 149(3) do not infringe article 14 of the Constitution. article 14 forbids class legislation but it does not forbid reasonable classification for the purpose of legislation. special conditions in which the railways have to operate and t interests of the nation which they serve, justify the classification If for the purpose of ensuring the interests and safety of the public and the State, the President has reserved to the Railway Administration power to terminate employment under the Railways, it cannot be assumed that such vesting of authority singles out the railway servants for a special or discriminatory treatment so as to expose the rule which authorises termination of employment to the liability to be struck off as infringing article 14. It is true that R. 148(3) does not expressly provide for guidance to the authority exercising the power conferred by it, but on that account, the rule cannot be said to confer an arbitrary power and be unreasonable or be in its operation unequal. The power exercisable by the appointing authority who normally is if not the General Manager, a Senior Officer of the Railways. In considering the validity of an order of determination of employment under r. 148, an assumption that the power may be exercised mala fide and on that ground discrimination may be practiced, is wholly out of place. Because of the absence of specific directions in R. 148, governing the exercise of authority conferred the by the power to terminate employment cannot be regarded as an arbitrary power exercisable at the sweet will of the authority when having regard to the nature of the employment and the service to be rendered, importance of the efficient functioning of the rail transport in the interest of national economy and the 688 status of the authority invested with the exercise of power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest or on grounds of administrative convenience. Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully and possibility of abuse of power will not invalidate the conferment of power. Case law referred to.

Appeal No. 316 of 1959. Appeal by special leave from the judgment and decree dated August 22, 1959 of the Madras High Court in Appeal No. 282 of 1952. G.S. Pathak, B. Dutta, T.R. Ramchandra, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants. H.N. Sanyal, Solicitor General of India, K. Jayaram and R. Ganapathy Iyer, for respondent No. 1 N. Panchapagesa Iyer, M.P. Swami and R. Thiagarajan, for respondent No. 2. December 11, 1963. The Judgment of the Court was delivered by DAS GUPTA J. Thirteen month old Bhakthavathsalam brought this suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father V.R. Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendents 2 to 10. His case is that Padmavathi and Sadagopa were validly married on June 24, 1948 and of that marriage he was born. The main contention of the contesting defendants is that there was never any marriage of Padmavathi and Sadagopa and that Bhakthavathsalam is not Sadagopa 's son. On both these points the Trial Court found the plaintiffs ' case proved and rejected the defence pleas. At the trial a further point was raised that even if any marriage between Padmavathi and Sadagopa 913 did take place that was not a valid marriage as Padmavathi was a Brahmin girl and Sadagopa a Shudra. The Trial Court was of opinion that Padmavathi was a Brahmin, and as admittedly Sadagopa was a Shudra, the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act, 1949. It held however that the position had been entirely changed by section 3 of this Act and that even if Padmavathi belonged to the Brahmin caste and not to the caste to which Sadagopa belonged the marriage is valid under the existing law. The validity of the Act itself appears to have been challenged before the Trial Court, but, this was rejected. In the result, the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint. Some other directions were also given in the decree, with which however we are not concerned. On appeal by the defendants, the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathasalam was the issue of that marriage, being born of Padmavathi to Sadagopa. The High Court was however of opinion that Padmavathi was a Shudra, the same as Sadagopa. Assuming however for argument 's sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act, 1949, and so, the plaintiff would have all the rights of legitimate son vis a vis the coparcenary to which his father belonged. The validity of the Act was unsuccessfully challenged. Accordingly, the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal. Against this decision of the High Court the present appeal has been filed by the defendants with special leave. In support of the appeal, Mr. Pathak tried first to attack the concurrent findings of facts of the courts below as regards the marriage between Sadagopa 914 and Padmavathi and the fact of the plaintiff being born of Padmavathi to Sadagopa in that marriage. Learned counsel wanted to. say that the findings of the High Court on these points were vitiated by misreading of important items of evidence. He could not however point out any such misreading nor any other error to justify our re assessment of the evidence Having failed in this attempt Mr. Pathak contended that as a matter of law the plaintiff did not become a legitimate son of Sadagopa inspite of the provisions of the Hindu Marriages Validity Act, 1949. According to the learned counsel the only effect of this Act is that the marriage becomes valid and it has no effect as regards the legitimacy of the child born before the date of the Act. The relevant provisions of the Act is in section 3 and is in these words: "Notwithstanding anything contained in any other law for the time being in force or in any text, or interpretation of Hindu law, or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions, castes, sub castes or sects. " For his proposition the learned counsel could not cite any authority; and that is natural because the contention raised is entirely misconceived and can be characterised as extravagant. He tried to persuade us however that a proper construction of the words used in the section,justifies the conclusion that it was the status of the parties to the marriage that was only sought to be affected. He conceded that in the case of every marriage celebrated after the date of the Act, the result of the marriage being valid would be, that the children born of the marriage would be legitimate, 'but argued that the same result would not follow in the case of a marriage which having been celebrated before the date of the Act was invalid at the time and the children were illegiti 915 mate then. The illegitimate children , he argues, were not made legitimate by this Act. For that purpose an express provision was necessary, according to the learned counsel. In support of his arguments he has drawn our attention to the wordings of section 1 of the Hindu Widows ' Re Marriage Act, 1856, which is in these words: "No marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the women having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any inter pretation of Hindu law to the contrary notwithstanding. " The absence of any phrase similar to "the issue of no such marriage shall be illegitimate" in the Hindu Marriages Validity Act, 1949, is claimed by the learned counsel to support his contention. We cannot agree. In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in section 1 of the Hindu Widows ' Re Marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the, issue of the marriage was legitimate. These words were put in the section. , by the legislature in 1856 as a matter of abundant, caution. The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence. If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate. The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different,, castes, sub castes and sects. It is idle to contend that the object of the legislature was only to regu larise the status of the husband and the wife. That ' certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate. 916 We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra, the position in law was, as found by the courts below, viz., it was a valid Hindu marriage and Bhakthavathasalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters. No other point was urged in appeal. The appeal is accordingly dismissed with costs. Appeal dismissed.

IN-Abs

The minor respondent No. I brought a suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendants 2 to 10. His case was that Padmavathi and Sada Gopa were validly married on June 24, 1948 and of that marriage he was born. The case of the defendant was that the impugned marriage was not a valid marriage as Padmavathi was a Brahmin girl and Sada Gopa a Shudra. On these facts the Trial Court passed a preliminary decree for partition in favour of the respondent No. 1. The Trial Court was of opinion that the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act, 1949. It held however that the position had been entirely changed by section 3 of the Hindu Marriages Validity Act, 1949 and that the marriage was validated by the Act of 1949. On appeal by the defendants, the High Court affirmed the judgment and decree passed by the trial court. Hence this appeal. Held: (i) The Hindu Marriages Validity Act, 1949 was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different 912 castes, sub castes and sects. It is idle to say that the object of the legislature was only to regularise the status of the Husband and the Wife. That certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate. On the facts of this case it was held that the impugned marriage was a valid Hindu marriage and the respondent No. 1 a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters.

Appeal No. 528 of 1961. Appeal by special leave from the judgment and decree dated October 10, 1956 of the Mysore High Court in Regular Appeal No. 171 of 1951 52. K. P. Bhatt and R. Thiagarajan, for the appellant. section T. Desai, K. Jayaram and R. Ganapathy Iyer for the respondents. 3 December, 18, 1963 The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and N. Rajagopala Ayyangar JJ. was delivered by Gajendragadkar, J. J. R. Mudholkar J. delivered a dissenting opinion. GAJENDRAGADKAR J. This appeal arises from a suit filed by the appellant Kanakarathanammal in the Court of the IInd Additional District Judge, Bangalore (O.S. No. 39 of 1947 48) in which she claimed to recover possession of the properties described in the Schedules attached to the plaint. Schedules 1 and 2 consist of movable and immovable properties, while Schedule 3 refers to jewels and silver ware. The appellant laid a claim to these properties as the sole heir of her mother Rajambal who died on the 13th September, 1946. Her case was that she was entitled to these properties exclusively under sub clause (i) of Clause (1) of section 12 of the Mysore Hindu Law Women 's Rights Act, 1933 (No. X of 1933) (hereinafter called the Act). A gold belt which is an item of jewellery was described by her in Schedule 4 and the same was claimed by her on the ground that it had been presented to her by her father before he died on the 20th March, 1947. The case set out in the plaint showed that according to the appellant, the properties in Schedules 1, 2 and 3 belonged exclusively to her mother and when she made a claim against the respondents in that behalf, they challenged her title. In that connection, the appellant relied on the fact that a sale deed had been executed in favour of her mother on the 1st April, 1942 for a consideration of Rs. 28,000 by Mr. Gibs under which several pieces of land together with all buildings and erections standing thereon and movable property consisting of articles of furniture and other things set out in the Schedules attached to the sale deed (Exhbt. F), were covered. Respondent No. 1 Loganatha Mudaliar alleged that on the 17th February, 1947, the father of the appellant had executed a will under which he had been appointed an executor and that as such executor, he obtained a probate under the said will, got possession of the properties and handed them 4 over to Respondent No. 2 Mudaliar Sangham, by its President, as directed under the will. Respondents 1 and 2 thus set up a title in respect of the suit properties in the appellant 's father. Alternatively, they urged that even if the property belonged to the appellant 's mother, she would not be entitled to claim exclusive title to it, because by succession the said property would devolve upon the appellant and her brothers; and the appellant 's failure to join her brothers made the suit incompetent for non joinder of necessary parties. The third respondent, Vasudeva Setty & Sons, admitted that he was in possession of the gold belt described in Schedule 4, but urged that the appellant 's father had given it to him for purpose of sale and that a sum of Rs. 109 7 9 was due to him. He pleaded that he had no objection to hand it over to the rightful claimant, provided the amount due to him was repaid to him. On these pleadings, the trial Court framed six substantive issues, three of which were important. These three issues were: ( 1) whether the appellant 's father or mother was the real owner of the property described in Schedules 1 and 2; (2) whether the will set up by respondents 1 & 2 was genuine and valid in law; and (3) whether the suit was not maintainable on the ground that necessary parties had not been joined by the appellant. The learned trial Judge held that the appellant 's mother was the owner of the property described in Sch. Regarding the movable property, the trial Judge held with some variation that the items admitted by the respondents also belonged to the appellant. As regards the jewels, he found that they had never gone into the possession of respondents 1 and 2, and so, the appel lant 's claim in respect of the said jewels was rejected. As to the gold belt mentioned in Sch. 4, the decision of the trial Court was that the appellant should recover the same from respondent No. 3 on her paying to him Rs. 109 7 9 claimed by him. Having found the title of the appellant 's mother proved, the trial Judge came to the conclusion that the will executed by the appellant 's father was invalid. These findings, however, did not materially assist the appellant, because the learned Judge upheld the respondent 's plea that the suit was bad for non joinder of necessary parties. In 5 the result, the appellant 's suit was dismissed in regard to the main relief claimed by her. Against this decision, the appellant preferred an appeal before the High Court of Mysore (R.A. No. 171 of 195152). The High Court has held that the main property described in Sch. I did not belong to the appellant 's mother, but to her father. It found that the sale deed in respect of the property was taken by the appellant 's father in the name of the appellant 's mother benami. Having held that the appel lant had not established her title to the said property, the High Court did not think it necessary to consider the validity of the finding of the trial Judge that the suit was bad for non joinder of necessary parties. It also did not think it necessary to consider whether the will had been proved or not. The appellant, however, succeeded before the High Court in respect of one minor point and that was in relation to her claim for the gold belt. The High Court has ordered that Respondent No. 3 should return the said gold belt to the appellant and that the appellant was not bound to pay to Respondent No. 3 the amount claimed by him. The result was that with a very slight modification, the decree passed by the trial Court was confirmed, though on a different ground. It is against this decree that the appellant has come to this Court by special leave. It appears that respondents 1 & 2 had also preferred an appeal in the High Court against a part of the decree passed by the trial Judge, and the said appeal was dismissed. With that part of the case, we are not concerned in the present appeal. The first point which has been urged before us by the appellant is that the High Court was in error in holding that the immovable property described in Sch. I had been purchased by the appellant 's father benami in the name of his wife. Some facts material to this issue are not in dispute. It has been found by both the Courts below that the consideration which was paid for the sale transaction proceeded entirely from the appellant 's father; so that in dealing with the question as to whether the title to the property vested in the appellant 's mother or not, we have to proceed on the basis that the whole of the consideration was paid by the appellant 's father and not by her mother. The case of the 6 appellant, however, is that the subsequent conduct of the parties and particularly the correspondence produced by the appellant clearly showed that the appellant 's father admitted the title of the appellant 's mother, and it is urged that the High Court was in error in reversing the finding of the trial Court that the property really belonged to the appellant 's mother. In order to deal with the merits of this argument, it is necessary to refer to the material correspondence on which the appellant relies. Exhibit B is a letter written by the appellant 's father to her (appellant 's) husband on the 1st August, 1944. In this letter, the appellant 's father has used words which clearly show that he, treated the property as belonging to his wife. He says "she (the appellant 's mother) tells me that you almost agreed to come and stay in the estate and for that purpose she has asked me not to let out both the houses occupied by Iyer", and then he adds, "she says that she will give Rs. 50 a month with the above free quarters". Then on the 21st June, 1945, a letter was addressed to the Sub Division Officer, Bangalore Sub Division, Bangalore, by the appellant 's mother (Exbt. This letter is in relation to the properties with which we are concerned, and it has been addressed clearly and unambiguously on the basis that the title to the property vests in the appellant 's mother. In the course of this letter, she says that about the 10th May, 1945, the authorities of the Hindustan Aircraft approached her through her husband for permission to put up and install a few electric lights against the runway to the length of about 700 or thereabouts, and that she gave them the permission on the strict understanding that the rest of her plantation should not be disturbed. Similarly, on the 28th May, 1946, the appellant 's father wrote to the Officer in charge Claims, Bangalore, acknow ledging receipt of a cheque which had been issued by the said Officer in favour of the appellant 's mother for Rs. 2511 3 0. On the 23rd May, 1946, the appellant 's father wrote a letter to his wife, and some of the statements made in it clearly suggest that the appellant 's father admitted his wife 's title to the properties in question. "Mr. Loganatha Mudaliar," says the letter, "told me that you had said to write some Estate Will. We have talked about this already. You ought not 7 to have told him without telling me again . Money also should be given along with estate. I will see to all as per ,,convenience. If you be without sorrow, you may come out happily early. " At this time, the appellant 's mother was ill and was presumably thinking of making a will of her own properties. In that context, the letter sent by the appellant 's father to his wife is very significant. It is true that the actual management of the property was done by the appellant 's father; but that would inevitably be so having regard to the fact that in ordinary Hindu fami lies, the property belonging exclusively to a female member would also be normally managed by the Manager of the family; so that the fact that the appellant 's mother did not take actual part in the management of the property would not materially affect the appellant 's case that the property belonged to her mother. The rent was paid by the tenants ,and accepted by the appellant 's father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly ;appreciate the effect of the several admissions made by the appellant 's father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellant 's mother in her own name though the consideration which was paid by her for the said transaction had been received by her from her husband. As soon as we reach this conclusion, it becomes necessary to consider whether the appellant 's suit must fail for nonjoinder of necessary parties. It is common ground that the appellant has brothers alive, and even in the trial Court respondents 1 and 2 took the alternative plea that if the property was found to belong to the appellant 's mother, under 8 the relevant Mysore law the appellant and her brothers would be entitled to succeed to that property and the non joinder of the brothers was, therefore, fatal to the suit. In fact, as we have already indicated, the trial Court had dismissed the appellant 's suit on this ground. The decision about the question as to the appellant 's title to this property would thus depend upon the construction of the relevant provisions of the Act. Section 10 is relevant for the purpose. Section 10(1) defines 'Stridhan ' as meaning property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate. Section 10(2) prescribes an inclusive definition of the word 'Stridhan ' by clauses (a) to (g). The appellant contends that the property in question falls under section 10(2) (b), whereas according to the respondents it falls under section 10(2) (d). There is no doubt that if section 10(2) (b) takes in the property, the appellant would be exclusively entitled to it and the plea of non joinder of her brothers would fail. On the other hand, if section 10 (2) (d) applies to the property, the appellant will not be exclusively entitled to the property and her brothers would be necessary parties to the suit. In that case the plea of non joinder would succeed and the appellant 's suit would be dismissed on that account. The position with regard to the heirs who succeed to stridhan property belonging to a Hindu female dying intestate has been provided for by section 12 of the Act and there is no dispute on that account. Let us, therefore, consider under which clause of section 10 (2) the property in question falls. Section 10 (2) (b) refers to all gifts received by a female at any time (whether before, at or after her marriage) and from any person (whether her husband or other relative or a stranger). It is thus clear that all gifts received from the husband at any time would fall under section 10(2) (b). The appellant 's argument is that as soon as it is found that the consideration for the sale proceeded solely from the appellant 's father it must follow that the property purchased with the said consideration is a gift by the husband to his wife. The fact that the property has been purchased in the name of the wife does not make any difference in substance. Two transactions have taken place, 9 one a gift of the money by the husband to his wife, and the other purchase of the property with the said money in the name of the wife. Treating the two transactions as inte grally connected, it should be held that the purchase itself was made by the husband in the name of his wife and that can hardly be distinguished from the gift of the said property to the wife. On the other hand, the respondents contend that section 10 (2) (b) can take in only gifts and not properties purchased with the assistance of the gifts. If the appellant 's father gave to his wife the amount with which the property was purchased, all that can be said is that the amount given by the husband to his wife was a gift under section 10 (2) (b). What the wife purported or chose to do with the amount gifted to her by her husband is entirely a different matter. She might have purchased the property, or she might have kept the amount in bank. If the amount had continued in the bank and its identity was not in dispute, it may have been impressed with the character of Stridhan as described in section 10 (2) (b). But if the amount was utilised by the wife for purchasing the property in her own name, the purchase is hers and the purchased property cannot be said to be gift from the husband to his wife. Section 10(2 ) (d) refers to property acquired by a female by purchase, agreement, com promise, finding or adverse possession. The respondents urged that one has merely to read clause 10(2)(d) to be satisfied that the purchase of the property in this case falls squarely under it. We have carefully considered the arguments thus presented to us by the respective parties and we are satisfied that it would be straining the language of section 10(2)(b) to hold that the property purchased in the name of the wife with the money gifted to her by her husband should be taken to amount to a property gifted under section 10(2) (b). The argument about the substance of the transaction is of no assistance in the present case, because the requirement of section 10(2) (b) is that the property which is the subject matter of devolution must itself be a gift from the husband to the wife. Can we say that the property purchased under the sale deed was such a gift from the husband to his wife? The 10 answer to this question must clearly be in the negative. With what funds the property is purchased by the female is irrelevant for the purpose of section 10(2)(d); so too the source of the title to the fund with which the said property was purchased. All that is relevant to enquire is: has the property been purchased by the female, or has it been gifted to her by her husband? Now, it seems clear that in deciding under which class of properties specified by clauses (b) and (d) of section 10(2) the present property falls, it would not be possible to entertain the argument that we must treat the gift of the money and the purchase of the property as one transaction and hold on that basis that the property itself has been gifted by the husband to his wife. The obvious question to ask in this connection is, has the property been gifted by the husband to his wife, and quite clearly a gift of immovable property worth more +.ban Rs. 100 can be made only by registered deed. The enquiry as to whether the property was purchased with the money given by the husband to the wife would in that sense be foreign to section 10 (2) (d) ; gift of money which would fall under section IO (2) (b) if converted into another kind of property would not help to take the property under the same clause, because the con verted property assumes a different character and falls under section 10(2) (d). Take a case where the husband gifts a house to his wife, and later, the wife sells the house and purchases land with the proceeds realised from the said sale. It is, we think, difficult to accede to the argument that the land purchased with the sale proceeds of the house should, like the house itself, be treated as a gift from the husband to the wife; but that is exactly what the appellant 's argument will inevitably mean. The gift that is contemplated by section 10 (2) (b) must be a gift of the very property in specie made by the husband or other relations therein mentioned. Therefore, we are satisfied that the trial Court was right in coming to the conclusion that even if the property belonged to the appellant 's mother, her failure to implied her brothers who would inherit the property along with her makes the suit incompetent. It is true that this question had not been considered by the High Court, but since it is a pure point of law depending upon the construction of section 10 of the Act, we do not think it necessary to remand the case for that purpose to the High Court. Facts which are necessary to 11 decide the question under section 10 (2) have been found and there is no dispute about them. The only point to decide is, on a fair construction of section 10(2) (b) and (d) which of the said two clauses takes in the property in question. This appeal was argued before us on the, 22nd August, 1963. At the said hearing, we had suggested to the parties to consider whether they could amicably settle the dispute between themselves. Accordingly, we allowed the matter to stand over to enable the parties to negotiate the settle ment, if possible. Ultimately, on the 13th September, 1963, the Appellant 's counsel reported to the office that no settlement was possible. However, in the meanwhile, on the 6th September, 1963, the appellant 's counsel filed an application for leave to add the appellant 's two brothers T. Narayanaswamy and T. Vasudevan as co plaintiffs to the plaint, or if they are not willing to join as co plaintiffs, then as defendants 4 and 5. This application is opposed by respondents 1 and 2. That is how this appeal was placed before the same Bench once again on the 13th December, 1963. We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage. We have already noticed that the plea of non joinder had been expressly taken by respondents 1 and 2 in the trial Court and a clear and specific issue had been framed in respect of this contention. While the suit was being tried, the appellant might have applied to the trial ,Court to add her brothers, but no such application was made. Even after the suit was dismissed by the trial Court on this ground, it does not appear that the appellant moved the High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to consider the said point. The fact that the High Court came to the contrary conclusion ,on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not 12 think it would be possible for us to entertain the said application. In the result, the application for amendment is rejected. It is unfortunate that the appellant 's claim has to be rejected on the ground that she failed to implead her two, brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under section 12 of the Act. That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under 0. 1 r. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under 0. 1 r. 10, sub rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties ' plea of limitation. Once it is held that the appellant 's two brothers are co heirs with her in respect of the properties left intestate by their mother,, the present suit filed by the appellant partakes of the character of a suit for partition, and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant per sisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra & Anr. vs Radheshyam Mahish & Ors.(1) the Privy Council had to deal with a similar situation, In the suit from which that appeal arose, the plaintiff had failed to implead co mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co mortgagors were necessary parties and in the end. it was urged on his behalf that the said co mortgagors should be allowed to be impleaded before the Privy Council. In (1) A.I.R 19 13 support of this plea, reliance was placed on the provisions of O. 1 r. 9 of the Code. In rejecting the said prayer, Sir George Lowndes, who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India. " In the result, the appeal fails and is dismissed. The appellant has been granted special leave to file this appeal as a pauper. In the circumstances of this case, however, we direct that she need not pay the Court fees which she would have hadto pay if she had not been allowed to appeal as a pauper. There would be no order as to costs throughout. MUDHOLKARJ. I regret my inability lo agree with the conclusion of my learned brother Gajendragadkar J. on the second point and consequently with the ultimate decision of the appeal as proposed by him. My reasons for taking a different view are these: The sale deed on which the appellant relies admittedly 'stands in the name of her mother. It is no longer in dispute that the consideration for the transaction proceeded not from her mother but from her father. It was because of this latter circumstance that the respondents contended that the transaction was benami. After examining the entire evi dence adduced by the parties,, the trial court negatived the respondent 's contention. Though the High Court took a different view, my learned brother has held and in ,my opinion rightly, that the conclusion of the High Court was wrong and that of the trial court was correct on this point. The position, therefore, is that the property in question was that of the appellant 's mother at her death. The respondents, however, contended that even so the suit must fail because the appellant had failed to join her brothers as parties to the suit because they were co heirs of their mother along with her. That would be the correct position under section 12 of the Mysore Hindu Women 's Rights Act provided the property is deemed to have been purchased by the mother herself. The short question, therefore, is whether 14 upon the findings that the property was not purchased by the appellant 's father benami in the name of her mother and that the consideration for the transaction entirely flowed from the father, the inference must be that the property was purchased by the mother. No doubt, the sale deed stands in her name. But the fact remains that the consideration did not flow from her but from the appellant 's father. It is interesting to mention that on February 9, 1948 the respon dent 's counsel made an application under 0. VI, rr. 5 and 11, Code of Civil Procedure calling upon the appellant to furnish further particulars with regard to her claim to the property in question in view of section 12 of the Mysore Hindu Women 's Rights Act. She furnished the following particulars on February 17, 1948: "The property detailed in Schedules 1 and 11 was all conveyed to Rajambal under one sale deed as stated in paragraph 5 of the plaint. She stood by her husband in his adversity sacrificing her possessions for him which she got as presents from her own parents. He was deeply attached to her, and indeed they were a loving couple. Out of love, affection and gratitude and with a view to make her self sufficient, he provided the money to acquire the property for her own, absolute use, which she while alive had even decided and announced to give away to the plaintiff ultimately." The appellant 's case, therefore, clearly is that the purchase money was provided by her father for acquiring property for the absolute use of her mother. By negativing the finding of benami made by the High Court we are in effect holding that the property was acquired by the appellant 's father with his own money for her mother. In this state of affairs; it is difficult to see how the transaction could be split up into two parts, i.e.,, a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money. In my judgment, upon the pleadings there is no scope for splitting up the transaction into two parts like this. It is not even an alternative contention of the respondents that the trans 15 action was in two parts and that what the father gifted was the money and not the property. It would be *indeed an artificial way of looking at the transaction as was done by the trial court as being constituted of two parts. The transaction in my judgment is one indivisible whole, and that is, the father provided the money for acquiring the property in the mother 's name. Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother. Such a transaction must therefore amount to a gift. In that view the property would not fall under cl. (d) of section 10 of the Act but under cl. (b) of that section. Therefore, the appellant would be the sole heir of her mother and the non joinder of her brothers would not defeat the suit so far as she is conceded. In the result I would set aside the decree of the courts below in so far as the property in question, Beverly Estates, is concerned and decree the appellant 's suit with respect to it in addition to the property with respect to which she has already obtained a decree in the courts below. I would further direct that the respondents will pay to the appellant proportionate costs in all the courts. ORDER BY COURT In accordance with the opinion of the majority the appeal is dismissed. No order as to costs. Appellant need not pay court fees.

IN-Abs

The appellant in a suit against respondents claimed recovery of possession of the properties in Schedules 1, 2 and 3 as the sole heir of her mother. She claimed these properties exclusively, under section 12(1) (i) of the Mysore Hindu Law Women 's Rights Act, 1933. On challenge to her title by respondents she relied on a sale deed created in favour of her mother for a consideration of Rs. 28,000. Respondents ,set up title in respect of the suit properties in the appellant 's father alleging that her father had executed a will under which respondent I had been appointed an executor and as such, he got possession of the properties and handed them over to Respondent 2, as directed under the will. Alternatively, they urged that even if the property belonged to the appellant 's mother, she would not be entitled to claim exclusive title to it, because by succession it would devolve upon the appellant and her brothers; and her failure. to join her brothers made the suit incompetent for non joinder of necessary parties. The trial court dismissed the suit. On appeal, the High Court confirmed the decree of the trial court, but held that the main property in Schedule 1 did not belong to the appellant 's mother, but to her father and the sale deed in respect of the property was taken by her father in the name of her mother benami. On appeal by special leave, the appellant mainly contended that the property in question would fall under section 10(2)(b) :of the Act, and not under section 10(2)(d) as respondents had contended and therefore, she would be exclusively entitled to it and the plea of ,non joinder of her brothers would fail. Held: (Per, P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and N. Rajagopala Ayyangar JJ.). It would be straining the language of section 10(2)(b) of the Act to hold that the property purchased in the name of the wife with the money gifted to her by her husband should 'be taken to amount to a property gifted under section 10(2)(b). The re quirement of section 10(2)(b) is that the property which is the subject matter of devolution must itself be a gift from the husband to the wife. In deciding under which class of properties specified by cls. (b) and (d) of section 10(2) the present property falls, it would not be possible to entertain the argument that the gift of the money and the purchase of the property must be treated as one transaction and held on that basis that the property itself has been gifted by the husband to his wife. 134 159 S.C. 1. 2 The gift that is contemplated by section 10(2)(b) must be a gift of the very property in specie made by the husband or other relations therein mentioned. The trial court therefore, was right in holding that even if the property belonged to the appellant 's mother, her failure to implied her brothers who would inherit the property alongwith her made the suit incompetent. In the present case, the estate could be represented only when all the three heirs were before the court. When the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property she took the risk and it was now too late to allow her to amend the plaint by adding her brothers at this late stage. Naba Kumar Hazra vs Radheshyam Mahish, A.I.R. 1931 P.C., 225 followed. Per Mudholkar J. (dissenting) Upon the pleadings there is no, scope for spliting up the transaction into two parts, ie., a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money. It was not even an alternative contention of the respondents that the transaction was in two parts and that what the father gifted was the money and not the property. It would be indeed an artificial way of looking at the transaction, as was done by the trial court, as being constituted of two parts. Thus the transaction was one indivisible whole and that is, the father provided the money for acquiring the property in the mother 's name. Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother. Such a transaction must therefore amount to a gift. In that view the property would not fall under cl. (d) of section 10 of the Act but under cl. (b) of that section. Therefore, the appellant would be the sole heir of her mother and the non joinder of her brothers would not defeat the suit so far as she is concerned.

Appeal No. 496,of 1963. Appeal by special leave front the Award dated August 26, 1961, of the Industrial Tribunal, Maharashtra in Reference (IT) No. 43 of 1961. S.V. Gupte, Additional Solicitor General of India and I. N. Shroff, for the appellant. K. R. Chaudhuri, for the respondents. December 19, 1963. The Judgment of the Court was ,delivered by: GAJENDRAGADKAR J. This appeal arises from an, Industrial dispute between the appellant Podar Plastics (P) Ltd. and the respondents, its workmen, and it has reference ,to the claim made by the respondents for bonus for the year 1959. The respondents claim that for the relevant year they should get bonus equivalent to three months ' salary includ ing dearness allowance. On hearing the parties and on con sidering the evidence adduced by them, the Tribunal has ,directed that the appellant shall pay to the respondents bonus at the rate of half month 's basic wages excluding ,allowances and overtime for the said year. It is against this ,award that the appellant has come to this Court by special leave. The appellant is a private company and its registered ,office is situated at Podar Chambers, Parsee Bazar Street, Fort, Bombay. It owns a factory at Supari Baug Road where it manufactures plastic products. The appellants case before the Tribunal was that if proper accounts are made in accordance with the Full Bench Formula, it would be found that there is no available surplus from which any bonus can be paid to the respondents. On the other hand, the respondents urged that the working of the Formula would show a substantial available surplus from which three months ' wages as bonus can be easily paid. As usual, the controversy between the parties centered round prior charges which the appellant claimed ought to be deducted from the gross profits. One of the points of dispute between the 134 159 S.C. 2. 18 parties was whether depreciation which has to be deducted 'as a prior charge should be statutory depreciation or notional normal depreciation. The figure of the profit was. admitted at Rs. 2.70 lacs. The Tribunal made alternative calculations, one on the basis that statutory depreciation alone should be deducted, while the other was prepared on the basis that notional normal depreciation as claimed by the appellant should be deducted. On the first calculation the available. surplus was found to be Rs. 0. 44 lac. On the alternative calculation, it was found to be Rs. 0.33 lac. For the purpose of this appeal we will accept the latter calculation which is made on the basis that the notional normal depreciation has to be deducted. It has been conceded before us by the learned Addl. Solicitor General for the appellant that there are two mis takes in this calculation. The amount of notional normal depreciation which has been shown as Rs. 0. 78 lac ought to be Rs. 0. 7 3 lac. Similarly the amount of income tax which is shown as Rs. 0. 96 lac ought to be Rs. 0. 95 lac. Thus, the two mistakes accounting for nearly Rs. 6,000 have been made in favour of the appellant by the Tribunal in making this calculation, and that would make the available surplus as Rs. 0.39 lac; that is one aspect of the matter which has to be borne in mind in dealing with the appeal before us. The main point which has been urged before us by the learned Addl. Solicitor General relates to the claim made by the appellant for the deduction as a prior charge of Rs. 60,000 by way of notional remuneration for Mr. K. R. Podar, one of the Directors of the Company. We have already seen that the appellant is a Private Ltd. Co. and four of the major shareholders are members of the Podar family; they are: R.A. Podar, G.R. Podar, K.R. Podar and B.J. Podar; the 5th shareholder is M /s. Podar Trading Co. Private Ltd., 6th is Jay Agents Private Ltd., 7th is the National Traders Private Ltd. and the 8th is Ratilal B. Desai. According to the appellant, K.R. Podar devoted the whole of his time to the supervision and management of the appellant concern, and so, he was entitled to charge remuneration at the rate of Rs. 5,000 a month. In sup 19 port of this claim, Mr. Gupta, the Manager of the concern, made an affidavit and offered himself for cross examination. He stated that Mr. Podar attends the factory from 9 A.M. to 1 P.m. and 2 30 P.m. to 6 30 P.m. In his cross examination, it was brought out that when the previous Director was paid Rs. 1000 per month as remuneration, a resolution had been passed by the Board of Directors in that behalf; but no such resolution has been passed in regard to the remuneration of Mr. K. R. Podar. Besides, the appellant itself has urged that Mr. Podar did not actually charge any remuneration because it was thought that the financial position of the appellant was not very satisfactory, and so, Mr. Podar wanted to save expenditure on account of his remuneration. It may be conceded that in a concern like the appellant 's if one of the Directors spends his time in supervising and managing the affairs of the concern, he would be entitled to charge a reasonable remuneration. This position has not been and cannot be disputed in view of the decisions of this Court in Gujarat Engineering Company vs Ahmedabad Misc. Industrial Workers ' Union(1), and Kodaneri Estate vs Its Workmen and Another 2 Relying on these decisions, it is urged on behalf of the appellant that the Tribunal was in error in not allowing any deduction on account of remuneration to Mr. Podar. In our opinion, the appellant cannot seriously quarrel with the finding of the Tribunal, because it is conceded that Mr. Podar in fact has not charged any remuneration. The working of the Formula is no doubt notional in some respects, but we think it would not be permissible for the employer to make it still more notional by introducing claims for prior charges on purely hypothetical and almost fictional basis. If Mr. Podar had been paid remuneration regularly and it had been duly shown in the books of account, a claim in that behalf could have been made by the appellant, and subject to the scrutiny by the Industrial Tribunal as to reasonableness of the said payment, such a claim would have been allowed; but if for any reasons Mr. Podar did not charge any remuneration, it would be unfair to allow a deduction on that account to be made notionally (1) (2) 20 because the working of the Formula is sometimes described as notional. The inclusion of such an item solely for the purpose of depressing the available surplus cannot, in our opinion, be allowed. Besides, the Tribunal does not appear to have accepted the evidence for Mr. Gupta and it has made a significant comment that Mr. K. R. Podar has himself not stepped into the witness box to make a claim for his remuneration. Mr. Gupta was asked whether Mr. Podar was going to give evidence, and he answered the question in the negative. Therefore, if in the circumstances proved in this case, the Tribunal did not feel justified in allowing the claim for deduction made by the appellant in regard to the notional remuneration of Mr. Podar, the appellant cannot make a serious grievance. The other point in controversy is in regard to the direction of the Tribunal that the appellant was not entitled to make any claim for rehabilitation. It appears that the Tribunal was inclined to take the view that since the appellant had begun its business with second hand machinery, it was not entitled to make a claim for rehabilitation on the basis of replacement of the said machinery by brand new machinery. In other words, the Tribunal seems to be of the opinion that in cases where an employer is carrying on his business with second hand machinery, rehabilitation should be calculated on the basis that the said second hand machinery would be replaced by second hand machinery and not by new machinery. This view has been rejected by this Court in the case of South India Millowners ' Association and Ors. vs Coimbatore District Textile Workers ' Union and Ors(1). Therefore, the appellant is right in contending that the approach adopted by the Tribunal in dealing with the question of rehabilitation is erroneous. That, however, does not help the appellant because in the present case the Tribunal has considered the evidence given by Mr. Dinshaw on behalf of the appellant In support of its claim that the rehabilitation requirement of the appellant would be of the order of Rs. 8,84,629. It is true that one of the reasons given by the Tribunal is that the (1) [1962] 1.L.L.J. 223. 21 appellant is not justified in making a claim for rehabilita tion on the basis that new machinery would be purchased by him for rehabilitating his old one; but there are several other reasons which the Tribunal has discussed and these reasons indicate that the Tribunal was not satisfied with the accuracy of the statements made by Mr. Dinshaw and their reliability. Incidentally, it appears that the appellant made a novel claim for rehabilitating his dead stock as one of the items under rehabilitation, and the Tribunal has re jected that claim. In the result, the finding of the Tribunal is based on its appreciation of the evidence led by the appellant and that cannot be disturbed having regard to the material which is available on the record. The Tribunal has taken the precaution of adding that if the appellant leads better evidence in future, its claim for rehabilitation would have to be judged on the merits and the present decision will not create any bar against it. In our opinion, that is all that can be done in the present appeal. The learned Addl. Solicitor General, however, attempted to argue that the Tribunal should have made some allowance for rehabilitation on an ad hoc basis and in support of this contention, he has referred us to some of the observations made in the case of South India Millowners ' Association (1). It appears that in that case, the appellant Mills had not adduced relevant evidence about the original price and subsequent depreciation of the machinery prior to its purchase by the appellant, and so, acting on the evidence available on the record, the Tribunal adopted some (id hoc basis. No grievance was made about the ad hoc basis adopted by the Tribunal; the only grievance made was against certain observations made by the Tribunal that if the existing machinery is second hand. it should be rehabilitated only by second hand machinery, and this Court held that the said observations did not represent the true position in the matter. It would, we think, be erroneous to assume that this Court approved of or affirmed the ad hoc basis adopted by the Tribunal in that particular case. On what material the said ad hoc basis was adopted is not known, and it would, we think, be unreasonable to suggest that if the employer does not adduce sufficient evidence to (i) 22 justify his claim for rehabilitation and the Tribunal is in clined to reject the evidence which has been adduced, the Tribunal must nevertheless award some rehabilitation on a purely hypothetical and imaginary ad hoc basis. In such a case all that the Tribunal can do is to safeguard the posi tion of the employer by giving him opportunity to adduce better evidence in future, and that is what the Tribunal has done in the present case. An attempt was then made by the learned Addl. Solicitor General to make a claim for the deduction of the wealth tax. It has been consistently held by this Court that in bonus calculations the employer is entitled to claim a deduction of the income tax as well as wealth tax; but, in the present case, there is no material to determine what the amount of wealth tax charged or paid is, and so, no relief can be granted to the appellant on that account. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

An Industrial Dispute arose between the appellant and its workmen in respect of the claim made by the workmen (respondents) for bonus for the year 1959. The respondents claimed that they were entitled to get bonus equivalent to three months ' salary including dearness allowance, The appellant claimed deductions on the basis of the Full Bench 16 Formula. The appellant claimed deduction of Rs. 60,000 by way of notional remuneration for Mr. K. R. Podar, one of the Directors of the company. According to the appellant K. R. Podar devoted the whole of his time to the supervision and management of the appellant concern, and so, he was entitled to charge remuneration at the rate of Rs. 5,000 a month. The appellant also made a claim for rehabilitation. On these facts the Tribunal directed the appellant to pay to the respondents bonus at the rate of half month 's basic wages excluding allowances and overtime for the said year. It is against this award that the appellant has come to this Court. Held:(i) that in a concern like the appellant 's if one of the Directors spends his time in supervising and managing the affairs of the concern, he would be entitled to charge a reasonable remuneration. But in the present case Mr. Podar did not actually charge any remuneration. The working of the Full Bench Formula is no doubt notional in some respects, but it would not be permissible for the employer to make it still more notional by introducing claims for prior charges on purely hypothetical and almost fictional basis. The Tribunal did not feel justified in allowing the claim for deduction made by the appellant in regard to the notional remuneration of Mr. Podar on the ground that Mr. Podar had not been paid remuneration regularly and it had not been duly shown in the books of account. Gujarat Engineering Co. vs Ahmedabad Misc. Industrial Workers ' Union, and Kodaneri Estate vs Its Work men, , relied on. (ii)It is not the correct legal position that a second hand machinery should be rehabilitated only by second hand machinery. But in the present case the finding of the Tribunal in respect of the claim for rehabilitation is based on its appreciation of the evidence led by the appellant and that cannot be disturbed having regard to the material which is available on the record. SouthIndia Millowners"Association vs Coimbatore District Textile Workers 'Union, , relied on. (iii)It would be erroneous to assume that this Court approved of or affirmedthe ad hoc basis adopted by the Tribunal in the case of South India Millowners ' Association. (iv)It would be unreasonable to suggest that if the employer does not adduce sufficient evidence to justify his claim for rehabilitation and the Tribunal is inclined to reject the evidence which has been adduced, the Tribunal must nevertheless award some rehabilitation on a purely hypothetical and imaginary ad hoc basis. In the present case the employer adduced evidence for rehabilitation and that was rejected by the Tribunal. (v)It has been consistently held by this Court that in bonus calculations the employer is entitled to claim a deduction of the Income tax as well as wealth tax; but in the present case, there is, no material 17 to determine what the amount of wealth tax charged or paid is, and so, no relief can be granted to the appellant on that account.

Petition No. Re. C. A. No. 33 of 1963. Petition for Review of this Court 's judgment dated April 22, 19631, in Civil Appeal No. 707 of 1962. C. K. Daphtary, Attorney General for India, H.N. Sanyal Solicitor General of India, H.L. Anand, Das Gupta and V. Sagar, for the appellant. M K. Ramamurthy, R. K. Garg, section C. Agarwal and D. P. Singh, for the respondent. December 19. The Judgment of the Court was delivered by DAS GUPTA J. This application for review of a judgment given by us on April 22 this year is by the Bank, which was the respondent in the appeal. The appellant who had been appointed a clerk in the Bank on December 14, 1953, made an application under section 33 (b)(2) of the Industrial Disputes ,Act, before the Labour Court, Delhi. He complained that in applying to him the award of the Sastry 282 Tribunal in the dispute between certain banks and their workmen as modified by the Labour Appellate Tribunal, the Bank had proceeded on the basis that under it the appellant was entitled to get his annual increment in each year on April 1. According to the appellant, he was entitled under the award to have his annual increment in December each year, Accordingly, he prayed that the benefit of which he was being deprived by the Bank should be computed and directed to be paid to him. At the hearing of the appeal it was contended before us on behalf of the appellant that on a proper interpretation of para. 292 of the Sastry Award which deals with the question of adjustment of clerks already in service into the scale of pay fixed by the award, he should get his increments on December 14, every year. The Bank 's contention was that increments had been rightly given from April 1. We did not however examine para. 292 as it appeared to us that when the appellant was first appointed by the Bank on December 14, 1953 the appointment was on the scale of pay as fixed by the Sastry Award. There was, therefore, in our opinion, no question of adjustment. We held that on those terms of appointment he was entitled to the pay as claimed by him in his application. In this view we set aside the order of the Labour Court, Delhi, which had rejec ted the appellant 's application and computed the sum to which the appellant was entitled under the award at Rs. 146/ plus dearness allowance. In asking us to review this judgment it is submitted by the learned Attorney General who appeared for the Bank, that it was an error to think that Daniel 's first appointment was on the pay scale as fixed by the Sastry Award. He pointed out that the Labour Appellate Tribunal which decided the appeals from the award of the Sastry Tribunal gave a definite direction in para. 401 of its judgment that the Appellate Tribunal 's decision as to pa 283 scales, allowances and provident fund contributions will start from April 1, 1954. This, according to the learned Attorney General, supersedes the direction by the Sastry Tribunal that the award will come into force on April 1, 1953. When it was pointed out that the decision of the Appellate Tribunal was given long after the appellant 's appointment and so it might well be that the clerk was appointed on the scale under the Sastry Award which had already come into force on April 1, 1953, learned Counsel submitted that the operation of the award as to the pay scale had. been stayed soon after the, award was pronounced and long before December 14, 1953. We find it stated however in para. 42 of the Labour Appellate Tribunal 's decision that A and B Class Banks had not filed any appeals against the wage structure. The reason is not far to seek. This award had been preceded by the award of the Sen Tribunal that was published on August 12, 1950. The Sen Award was declared void by the Supreme Court on April 9, 1951. The Sen Tribunal gave the clerks for A and B Class Banks the following scales of pay Class A Banks Class I areas. Rs. 96 6 132 7 174 9 190 205 9 250 10 290 Class II areas. Rs. 82 5 112 6 148 7 162 172 8 212 9 248 Class III areas. Rs. 70 4 94 5 124 6 136 145 7 180 8 212 Class B Banks Class I areas Rs. 92 6 128 7 170 8 186 200 9 245 10 285 284 Class II areas Rs. 78 5 108 6 144 7 158 167 8 207 9 243 Class III areas Rs. 66 4 90 5 120 6 132 140 7 175 8 207 The award of the Sastry Tribunal in this matter was less favourable to the clerks. It gave the following scales: Class A Banks Area I Rs. 85 5 100 6 112 7 140 8164 9 245 10 265 15 280 Area II Rs. 73 4 .85 5 100 6 112 7 140 8 164 9 245 Area III Rs. 66 3 69 4 85 5 100 6112 7 140 8 164 9 227 Class B Banks Area I Rs. 73 4 85 100 6 112 7 140 8 164 9 245 Area II Rs. 66 3 69 4 85 100 6 1127 140 8 164 9 227 Area III Rs. 57 3 69 4 85 5 100 6112 7 140 8 164 9 200 It was in these circumstances that the A and B Class Banks were content to accept the award of the Sastry Tribunal as regards the wage structure and did not appeal; though the workmen being dissatisfied with the wage scale as awarded by the Sastry Tribunal appealed against it. It does not seem to us unreasonable to think that having accepted the Sastry Award on wage structure the Bank an A Class Bank would make its appointment after April 1, 1953 285 on those scales or pay. It has to be mentioned that the appointment letter is not on the record. We are therefore still inclined to think that the appellant Daniel was appointed by the Bank on December 14, 1953 on the pay scale as fixed by the Sastry Tribunal. In any case, the Bank has not been able to satisfy us that any error was made in disposing of the appeal on the basis that Daniel 's appointment was on the pay scale as fixed by the Sastry Award. This is sufficient to dispose of the review application. As, however, arguments were addressed to us in this application as to what the position would be if the appellant had not been appointed on the pay scale as fixed by the Sastry Award and his pay had to be adjusted in accordance with the provisions of para. 292, we propose to give our decision on that point as well. The question of adjustment to the new pay scales formed a distinct item Item No. 12 in the Government Order making the reference to the Sastry Tribunal. This was dealt with in Chapter XIII of the award in four sections. Section I sets out the different contentions raised by the employer and the workmen 's Counsel. Thus, after mentioning that the employees generally asked for point to point adjustment, i.e., placing of each employee at that stage in the new scale to which he would have risen by reason of the length of his service if he had entered service on the new scale, the Tribunal stated that for the reasons given in paras. 113 to 117 of the Sen Award it agreed with the conclusion of the Sen Tribunal that a compromise between the two methods advocated by the parties should be adopted. After a general discussion of the arguments in paras. 285 to 291, the Tribunal proceeded to give concrete directions in para. 292 dealing with the matter in six 286 sub paragraphs, as regards workmen who entered the service of the Bank before January 31, 1950; one sub para. was as regards workmen who joined service of the bank after January 31, 1950; seven more sub paras. 8 to 14 laid down general rules applicable to all workmen whether appointed before or after January 31, 1950. This scheme of adjustment was maintained by the Appellate Tribunal with the modification that 31st January 1953 in the Award was substituted by "31st January 1954 and 1st April, 1953 was substituted by title words 1st April, 1954. Clause (d) of sub para. 4 was deleted and in its place sub para 4 (A) was substituted which ran thus: "After adjustments are made in accordance with the directions given, three further annual increments in the new scale will be added thereto for service for the three years 1951 to 1953. In addition, the workmen will be entitled to draw his normal increment for 1954 on the 1st of April 1954. Thereafter, each succeeding year 's annual increment shall take effect as and from the 1st April of that year. " For workmen appointed before January 31, 1950 there was thus a definite direction that succeeding year 's annual increment shall take effect from April 1, of that year. Sub paragraph 7 dealing with the workmen who joined service after January 31, 1950 runs thus: "The workmen shall be fitted into the new scale of pay on a point to point basis as though it had been in force since he joined the service of the Bank, provided that his adjusted basic pay is not less than what it would be under a point to point adjustment on the corresponding "preSen" scale. " 287 It is important to notice that in this provision as regards the workmen who joined service of the Bank after January 31, 1950, no direction has been given as regards the date from which annual increments should take effect. Nor can we find anything in the remaining seven sub paras. laying down generally the rules ' any directions whatsoever to justify the plea that the future increments of workmen who joined service of the Bank after January 31, 1950, would start from April 1, of the year. The provision in para 12 that the adjusted pay shall have effect from April 1, 1954 has nothing to do with the commencement of future increments. The reason why such a direction was given as regards the workmen who entered the service of the Bank before January 31, 1950 and none was given as regards workmen who joined after that date appears to be clear. For workmen who entered the service of the Bank before January 31, 1950 detailed provisions for fitting them into the scales were made including the provisions for increments. It was in view ' of this apparently that it was thought necessary to indicate the time from which further increments would commence. As the Tribunal brought the new scales into force with effect from 1953 the direction that logically followed was that each succeeding year 's annual increment would take effect as and from April 1, of that year. The Appellate Tribunal decided to adjust the pay up to April 1, 1954 instead of ' April 1, 1953. But that did not change the logical position that each succeeding year 's increment would take effect as and from April 1 of that year. The above considerations had no application to the workmen who were directed to be fitted into the new scale of pay on a point to point basis as though it had been in force since they joined the service of the Bank. On the basis that the new scale was in force at the date when the workmen 288 joined the service of the Bank there can be no escape from the conclusion that the increments as provided in that scale would take effect from the anniversary of the date of appointment. It is unnecessary for us to consider here why the workmen who joined the service of the Bank after January 31, 1950, were not being given increments in the same way as those who had entered the service before that date. Some indication is given in the Tribunal 's observations that it would be proper to let bygones be bygones and there should be neither retrospective adjustment of pay or allowances actually paid nor further claims for more than what has been given already. Whatever the reason be the fact remains that special directions were given as regards the adjustment into the pay scale of the workmen ' who had joined the service of the Bank after January, 1950, and in their case nothing was said as to the date from which future increments would take effect. The necessary and inevitable consequence of the absence of any such direction in the matter is, as we have already indicated, that future increments would be on that date of the year when the workman was appointed. We have thus reached the conclusion that even on application of the rules of adjustment into the new scale on the assumption that such adjustment was necessary, the appellant workman would be entitled to the relief he had asked for. The application is accordingly dismissed with costs. Review application dismissed.

IN-Abs

The application for review arose out of a judgment passed by this Court it, Civil Appeal No. 707 of 1962. The appeal arose out of an application filed by a workman of the State Bank under s.33(c)(2) of the industrial Disputes Act before the Labour Court. He was appointed as a clerk in the Bank on December 14, 1953. He complained that 'the Bank had not paid him the increment on the basis of the Sastry Award. His case was that he was entitled under the award to have his annual increment in December each year. The case of the Bank was that on the basis of the award the workman was entitled to get his annual increment in each year on April 1. On these facts it was held that the workman would get the benefit of 281 the new scales of pay from the very day of his appointment i.e. from December 14, 1953. Thus the appeal of the workman was allowed. Hence the review. Held that (i) this application failed as this Court did not commit any error in disposing of the appeals. (ii) in para 292 of the Sastry Award special directions were given as regards the adjustment into the pay scale of the workmen who had joined the service of the Bank after January, 1950, but in their case nothing was said as to the date from which future increments would take effect. The necessary and inevitable consequence of the absence of any such direction in the matter is that future increments would be on that date of the year when the workman was appointed. On the facts of this case it was held that the appellant workman would get the increments under the new scale on December 14, each year.

Appeal No. 497 of 1963. Appeal by special leave from the judgment and order dated September 10, 1960, of the Bombay High Court in Appeal No. 10 of 1959. Bishan Narain and 1. N. Shroff, for the appellant. H. N. Sanyal, Solicitor General of India, V. section Sawhney and R. H. Dhebar, for respondent. No. 1. section V. Gupte, Additional Solicitor General of India, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent No. 2. December 19, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR J. The principal point of law which this appeal raises for our decision relates to the construction of section 25F(c) of the (No. 14 of 1947) (hereinafter called the Act). The Bombay Union of Journalists which is the Trade Union registered under the , Mrs. Aruna Mukherji, and Mr. M. T. Thomas are appellants 1 to 3; and the State of Bombay, and the Indian National Press, Bombay, which is a Private Ltd. Co. are respondents 1 and 2 respectively in the present appeal. Appellant No. 2 was appointed on the staff of the second respondent on a salary of Rs. 500 p.m. with effect from 1st January, 1955. On the 30th November, 1957, she was served with notice of termination of her services with effect from 1st December, 1957. The notice recited the fact that the management in Consultation with the Editor had decided to retrench her services. Appellant No. 3 Mr. Thomas who was employed as a Sub Editor in the 'Free Press Journal ' some time in 25 1953, was similarly served with a notice of retrenchment dated the 30th November, 1957 by which his services were terminated as from the 1st December, 1957. In both the notices the two appellants respectively were told that their services had been retrenched under section 3(2) of the Working Journalists (Conditions of Service) and Miscel laneous Provisions Act, 1955, and that in lieu of notice they would be paid their salaries for three months. Both the appellants collected their salaries for the month of November and ceased to work for respondent No. 2 as from the 1st December, 1957. It appears that appellant No. 1 took up their cause on the 3rd December, 1957 and wrote to the Director in charge of the second respondent complaining that the action taken by the 2nd respondent smacked of vindictiveness against appellants 2 and 3, and demanded that the notices issued should be withdrawn forthwith and they should be reinstated in their original posts. Respondent No. 2 did not concede the said demand; thereupon, appellant No. 1 moved the Labour Commissioner of respondent No. 1 for taking further action in the matter. At that stage, the Conciliation Officer intervened and called the parties before him. As a result of the discussion held before the Conciliation Officer, it was discovered that no settlement was possible, and so, the Conciliation Officer submitted a failure report under section 12(4) of the Act on the 15th April, 1958. In this report, the Conciliation Officer expressed his opinion that in view of the stand taken by the parties, there was no possibility of any settlement, and so, he was compelled to record a failure. After the matter was thus reported to respondent No. 1 by its Conciliation Officer, both the parties filed their res pective statements before respondent No. 1. Respondent No. 1 considered the said statements and the report submitted by the Conciliation Officer and came to the conclusion that it was not necessary to refer the dispute to a Tribunal under section 12(5) of the Act. This decision was communicated to the appellants by the Dy. Secretary, Labour and Social Welfare Department of respondent No. 1 by his letter dated 1st July, 1958. It is necessary to set out the reasons given 26 in this letter for not referring the dispute to the Tribunal. These reasons were set out in the letter in these terms "(1) The termination of services of Shrimati Aruna Mukherji and Shri M. T. Thomas a ppears to be an act of retrenchment on the part of the management for which the management is willing to pay all the legal dues to the retrenched persons; and (2) in effecting the said termination the management does not appear to have acted mala fide or vindictively nor practised victimisation for trade union activities. " The appellants then moved the Bombay High Court under article 226 of the Constitution for a writ of mandamus against respondent No. 1. It was urged on their behalf that the refusal of respondent No. 1 to refer the dispute to the Industrial Tribunal under section 12(5) of the Act was illegal, and so, they prayed that the High Court should issue a writ directing respondent No. 1 to consider the matter afresh and decide whether a reference should be made or not. This writ petition was heard by a single Judge of the said High Court and was ultimately dismissed. The appellants challenged the correctness of the said decision by a Letters Patent Appeal before a Division Bench of the High Court. The Division Bench agreed with the view taken by the learned single Judge, and so, the appeal was dismissed. It is against this decision that the appellants have come to this Court by special leave. The first contention which has been raised before us by Mr. Bishan Narain on behalf of the appellants is that the reasons given by respondent No. 1 in refusing to make a reference show that respondent No. 1 considered the merits of the dispute and came to the conclusion that the reference would not be justified; and Mr. Bishan Narain contends that in dealing with the merits of the dispute, while deciding the question as to whether a reference should be made or not under s.,12(5) of the Act respondent No. 1 has acted illegally and improperly. The relevant scheme of the Act as disclosed by section 12 is clear. When any industrial dispute exists or 27 is apprehended, the Conciliation Officer may hold conciliation proceedings in the manner prescribed by section 12. If the Conciliation Officer 's efforts to bring out a settlement of the dispute fail, then he makes a failure report under section 12(4); and section 12(5) provides, inter alia, that if on a consideration ,of the report referred to in sub section (4) the appropriate Government is satisfied that there is a case for reference to the Tribunal, it may make such reference. It, however, adds that where the appropriate Government does not make such a reference, it shall record and communicate to the parties ,concerned its reasons therefor. The argument is that section 12(5) imposes an obligation on respondent No. 1 to record reasons for refusing to make a reference; and the reasons given by respondent No. 1 in the present case indicate that respondent No. 1 acted beyond its jurisdiction in proceeding to consider the merits of the dispute while deciding whether the reference should be made or not. This argument must be rejected, because when the appropriate Government considers the question as to whether ,a reference should be made under section 12(5), it has to act under section 10(1) of the Act, and section 10(1) confers discretion on the appropriate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under section 12(4) the appropriate Government ultimately exercises its power under s 10(1), subject to this that section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under section 12(4). This question has been considered by this Court in the case of the State of Bombay vs K. P. Krishnan & Others (1). The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raise questions of law, (1) 28 the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the ap propriate Government cannot purport to reach final con clusions, for that again would be the province of the Indus trial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under section 10(1) read with s.12(5), or not. if the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the em ploys in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under section 10(1), and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be accepted. Mr. Bishan Narain has then urged that the main point of controversy between the parties was in regard to the failure of respondent No. 2 to comply with the provisions of section 25F(c) of the Act and that has not been considered by respondent No. 1 while refusing to make a reference in the present case. Section 25F(c) provides that no workman to which the said provision applies shall be retrenched by the employer until notice in the prescribed manner is served on the appropriate Government. It is common ground that notice had not been served by respondent No. 2 on respondent No. 1 as required by section 25F(c) prior to the termination of services of appellants 2 & 3; and the argument is that the reasons mentioned by respondent No. 1 in its communication to appellant No. 1 indicating its refusal to make a reference, show that this aspect of the matter has not been 29 considered by respondent No. 1 and that, it is urged, in troduces a serious infirmity in the said reasons and calls for ,a writ of mandamus requiring respondent No. 1 to rectify the said omission. There is no substance in this argument. It appears that the Rules framed by respondent No. 1 under the Act indicate that respondent No. 1 has construed the provision of section 25F(c) as being directory and not as constituting a condition precedent for the validity of retrenchment under section 25F. Rule 80 of the said Rules clearly Shows that where the employer has retrenched the employee by offering to pay him the requisite amount of remuneration in lieu of notice prescribed by section 25F(a), the employer is required to serve the notice of the ,aid retrenchment within seven days of the date of retrenchment, and that means that in such a case, the notice has not to be served on the Government before retrenchment is effected. In other words, R. 80, it is conceded, treats the notice prescribed by section s 25F(c) as condition subsequent and not a condition precedent. In view of the Rule framed by itself respondent No. 1 must not have thought it necessary to make any reference to the argument urged by the appellants that respondent No. 2 's failure to serve a notice on respondent No. 1 before retrenchment was effected introduced an infirmity in the order ;of retrenchment. Rule 80 framed by respondent No. 1 was itself an answer to the said plea, and so, respondent No. 1 may well have thought that it was unnecessary to give that reason in its communication to the appellants. Besides, in dealing with this contention, it is necessary to remember that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under section 10(1) read with section 12(5), the Court is not sitting in appeal over the order and is not entitled to ,consider the propriety or the satisfactory character of the reasons given by the said Government. It would be idle to suggest that in giving reasons to a party for refusing to make a reference under section 12(5), the appropriate Government has to write an elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference. It is no doubt desirable that the party concern ed should be told clearly and precisely the reasons why no reference is made, because the object of section 12(5) appears 30 to be to require the appropriate Government to state, its reasons for refusing to make a reference, so that the reasons. should stand public scrutiny; but that does not mean that a party challenging the validity of the Government 's decision not to make a reference can require the Court in writ proceedings to examine the propriety or correctness of the said reasons. If it appears that the reasons given show that the appropriate Government took into account a consideration which was irrelevant or foreign, that no doubt, may justify the claim for a writ of mandamus. But the argument that of the pleas raised by the appellants two have been considered and not the third, would not necessarily entitle the party to claim a writ under article 226. That takes us to the main point which has been strenuously argued before us by Mr. Bishan Narain with regard to the construction of section 25F(c). His contention is that just as section 25F(a) and (b) are both mandatory and constitute conditions precedent for valid retrenchment, so is section 25F(c) mandatory and a condition precedent. The prohibition contained in section 25F is put in the negative form and it is coupled with the condition that no retrenchment can be effected until the three conditions specified by clauses (a),. (b) and (c) are satisfied. The negative form adopted by the provision coupled with the use of the word "until" which introduces the three conditions, indicates that the conditions must be first satisfied before retrenchment can be validly effected. In this connection, Mr. Bishan Narain has referred to the decision of this Court in the State of Bombay & Others vs The Hospital Mazdoor Sabha & Ors. (1) where it has been held that the requirement prescribed by section 25F(b) is mandatory and has to be complied with before an industrial employee can be retrenched. Dealing with section 25F(b), it was observed in that judgment that clauses (a) and (c) of the said section prescribed similar conditions, though it was expressly added that the Court was then not concerned to construe them. Mr. Bishan Narain has also invited our attention to the fact that in Tea Districts Labour Association, Calcutta vs Ex Employees of Tea Districts (1) ; 31 Labour Association and Anr.(1), it was conceded that the requirement as to notice prescribed by section 25F(c) was mandatory and amounted to a condition precedent. Likewise, it appears that in the case of The Workmen of Subong Tea Estate vs The Outgoing Management of Subong Tea Estate & Anr. (2) recently decided by this Court, it has been incidentally stated that the three conditions prescribed by clauses (a), (b) and (c) of section 25F appear prima facie to constitute conditions precedent before an industrial workman can be validly retrenched. In that case, no question arose about the construction and effect of the provisions of section 25F and the observations are clearly in the nature of obiter observations and even then they indicate that the Court thought that prima facie the three conditions may be similar. No decision of this Court has been cited before us where this question has been directly considered and de cided. Mr. Bishan Narain, however, urges, and with some force, that the nomal rule of construction requires that if clauses (a) and (b) of section 25F constitute conditions precedent, clause (c) in the context must also receive the same construction. Prima facie, this argument is no doubt attractive; but a closer examination of the section shows that clause(c) of section 25F cannot receive the same construction as clauses (a) and (b) of section 25F. Section 25F(a) requires that the workman has to be given one month 's notice in writing. indicating the reasons for retrenchment, and the period of notice has to expire before the retrenchment takes place. It also provides that the workman can be paid in lieu of such notice wages for the said period. It is the latter provision of clause (a) which requires careful consideration in dealing with the character of the requirement prescribed by section 25F(c). This latter provision allows the employer to re trench the workman on paying him his wages in lieu of notice for one month prescribed by the earlier part of clause (a), and that means that if the employer decides to retrench a workman, he need not give one month 's notice in writing and wait for the expiration of the said period before he (1) ; (2) 32 retrenches him; he can proceed to retrench him straightaway on paying him his wages in lieu of the said notice. Take a case where retrenchment is effected under this latter provision of clause (a); how would the requirement of clause (c) operate in such a case? If it is held that the notice in the prescribed manner has to be served by the employer on the appropriate Government before retrenching the employee in such a case, it would mean that even in a case where retrenchment is effected on payment of wages in lieu of notice it cannot be valid unless the requisite notice is served on the appropriate Government; and that does not appear to be logical or reasonable. Reading the latter part of clause (a) and clause (c) together, it seems to follow that in cases falling under the latter part of cl. (a) the notice prescribed by cl. (c) has to be given not before retrenchment, but after retrenchment; otherwise the option given to the employer to bring about immediate retrenchment of the workman on paying him wages in lieu of notice would be rendered nugatory. Therefore, it seems that clause (c) cannot be held to be a condition precedent even though it has been included under section 25F along with clauses (a) and '(b) which prescribe conditions precedent. The argument based on the negative form in which the provision is enacted and the use, of the word "until" no doubt are in favour of the appellant 's contention, but the context seems to require a different treatment to the provision contained in clause (c). Besides, the requirement introduced by the use of the word "until" is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c), because after the retrenchment is effected, the employer has to comply with the condition of giving notice about the said retrenchment to the appropriate Government, and that is where the provision in clause (c) that the notice has to be served in +,he prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this notice and, stated broadly, it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of notice, the Rules seem to provide that the notice in 33 that behalf should be served within the specified period prescribed by them; that is to say, under the Rules, notice in such a case has to be served not before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain no doubt contends that if his construction of section 25F(c) is correct, the Rules would be invalid and that is true; but on the view we are inclined to take, the Rules framed by the Government appear to be consistent with the policy underlying the provision prescribed by section 25F(c). We are, therefore, satisfied that section 25F(c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected. In this connection, there is one more consideration which is relevant. We have already seen the requirement of section 25F(a). There is a proviso to s: 25F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause (a) of section 25F, therefore, affords a safeguard in the interests of the retrenched em ployee; it requires the employer either to give him one month 's notice or to pay him wages in lieu thereof before ,he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the time of retrenchment, com pensation which shall be equivalent to 15 days ' average pay for every completed year of service, or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one month 's notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by clause (b). The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and 134 159 S.C. 3. 34 that only helps the Government to keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provision prescribed by clause (c ) a condition precedent as in the case of clauses (a) & (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) & (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) & (b), is not a condition precedent. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that section 25F(c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narain 's contention that a writ of mandamus should be issued against respondent No. 1. A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No. 1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of section 25F(c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of section 25F(c), it does not follow that a dispute resulting from such retrenchment must neces sarily be referred for industrialist adjudication. The breach of section 25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provision contained in section 10(1) read with section 12(5) clearly shows that even where a breach of section 25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant fact the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would 'be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily 35 assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that, of course, would be another matter; in such a case a party would be entitled to move the High Court for a writ of mandamus. The result is, the appeal fails and is dismissed. There would be no order as to costs. Appeal dismissed.

IN-Abs

The appellants 2 and 3 were working journalists and they were retrenched on payment of three months salary in lieu of notice. The first appellant took up their case and alleged that the retrenchment was not bona fide and they were in fact victimised. On the failure of conciliation proceedings a report was submitted to the State Government (respondent No. 1). After hearing the parties concerned the Government passed an order refusing to refer the dispute. The reasons given 23 for the refusal were that the termination of service was retrenchment and the management did not appear to have acted mala fide. Thereupon the appellants filed a petition under article 226 of the Constitution praying for the issue of a writ of mandamus directing the Government to consider the matter afresh. The single Judge who heard the petition dismissed it and after appealing to a Division Bench without success the present appeal was filed by special leave granted by this Court. It was contended on behalf of the appellants that the Government while deciding whether a reference should be made has in fact decided the merits of the case and therefore the order of refusal to refer was illegal. The other contention was that the service of notice as required under section 25F(c) of the Act was mandatory and the management not having served such a notice the Government ought to have taken this failure into consideration which the Government has not done. Held: When the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to 'decide whether making a reference would be expedient or not. If the dispute in question raises a question of law, or disputed questions of fact the Government should not purport to reach final conclusions because these are matters which would normally be within the jurisdiction of the Industrial Tribunal. If the claim made is patently frivolous or is clearly belated or if the impact of the claim on the general relations between the employers and the employees in the region is likely to be adverse the Government may refuse to make a reference. The State of Bombay vs K. P. Krishnan, (ii) Clause (c) of section 25F of the Act cannot be said to cons titute a condition precedent which has to be fulfilled before retrenchment can be validly effected even though that clause has been included under section 25F along with cls. (a) and (b) which prescribe conditions precedent. The observations in the following cases to the effect that section 25F (c) is mandatory are clearly in the nature of orbiter dicta. State of Bombay vs The Hospital Mazdoor Sabha, ; , The District Labour Association, Calcutta vs Ex Employees of Tea Districts Labour Association, and Workmen of Subhong Tea Estate vs The outgoing Management of Subhong Tea Estate, [1964] Y L.L.J. 333 (iii) Even if section 25F(c) was constituted a condition precedent it would not necessarily follow that a writ of mandamus should be issued against the Government. The breach of section 25F(c) by the Management is a serious matter and the Government normally would refer such a dispute for adjudication. But the provision of section 10(1) read with section 12(5) clearly shows that even where there is a breach of section 25F(c) the Government may have to consider the expediency of making a reference. But 24 if the Government refuses to make a reference for irrelevant considerations, or on extraneous grounds or acts mala fide a party would be entitled to move the High Court for a writ of mandamus.

Appeals Nos. 379 to 383 of 1959. Appeals from the judgment and orders of the ex Judicial Commissioner 's court, Bhopal (Now Madhya Pradesh High Court) dated April 9, 30, 1956, in Misc. Civil Case Nos. 13 of 1954 and 21 and 35 of 1955, dated April 9, 27, 1956 in Misc. Civil Case No. 25 of 1955 and dated April 9, 17, 1956 in Misc. Civil Case No. 49 of 1955. B. Sen, and I. N. Shroff, for the appellants. M. C. Setalvad and M. section Gupta, for respondents (in C.A. No. 380/59). K. K. fain, for respondents in (C.A. Nos. 381 383/59.) December 19, 1963. The Judgment of the Court was delivered by 37 AYYANGAR J. These five appeals which have been consolidated for hearing, raise for consideration principally two points: (1) the constitutional validity of the Bhopal Reclamation and Development of Lands (Eradication of Kans) Act, 1954 (Act XIII of 1954) which will be hereafter referred to as the Apt, and (2) whether the provisions of the Act, even if constitutionally valid, were complied with in the case before us. The Act the provisions of which we shall set out and ,examine later, empowered the State Government to notify areas of the State as "Kans infested areas" and on such notification officers of the State were enabled to enter on the lands within the notified areas and conduct deep ploughing tractorisation operation with a view to eradicate the kans. We might mention even here that Kans are a species of weeds which infest large areas of land in and ,around the former State of Bhopal now forming part of Madhya Pradesh. The weeds are hardy, quick growing, rapidly expanding the area of their infestation and sap the fertility from the soil and thus lead to very poor yield of the land and if the growth is more extensive, practically prevent any crops. The Act provided for the cost incurred in these eradication operations being recovered from the farmers on whose lands the tractorisation was effected. Acting under the said law, considerable extents of land in the former State of Bhopal were tractorised and demands were made on the owners of the lands for the payment of the charges claimed as due. Five of these farmers on whom these demands were made thereupon filed petitions under article 226 before the Judicial Commissioner, Bhopal challenging the constitutionality of the Act as well as the legality of the levy, even assuming the law to be valid, and these petitions were allowed, and the learned Judicial Commissioner holding the Act to be unconstitutional and the levy illegal, granted the declaration and mandamus prayed for. The appellants thereafter applied for and obtained from the Judicial Commissioner certificates of 38 fitness under article 133(1) (c) and have preferred the appeals which are now before us. We shall narrate a few facts which serve as a background to the enactment of the legislation now impugned, and which would also throw some light on some of the points urged by the respondents. It was recognised as early as the first decade of this century that without the eradication of Kans there could be no improvement in the return from the land in the Bhopal and surrounding areas. The question was as to how this was to be accomplished. With this end in view research was conducted by the Imperial Council of Agricultural Research from about 1940 onwards, and as a result it was concluded that the only method of eradicating the pestilential weed was by deep ploughing of the land with tractors which would reach a sufficient depth wherefrom the roots of the weed could be pulled out and exposed and thus destroyed. This conclusion was accepted by the then Government of Bhopal who between the years 1944 48 carried out experiments by tractorisation or deep ploughing of lands in several areas of the State. The experiments demonstrated that tractorisation would increase the outturn of crops. This experimental ploughing was, however, confined to particular villages and areas in the State but the results achieved in them showed that if done systematically, deep ploughing by tractors would help to eradicate the pest and increase the yield from the land. In order to carry out this purpose an Ordinance XXXVIII of 1949 was promulgated on October 20, 1949 whose provisions were substantially identical with those contained in the Act which we shall presently read. The notifications now impugned defining the areas to undergo tractorisation (which included in them the places where the lands of the respondents are situated) were issued under this Ordinance. Similarly, the notices demanding payment of sums from the respondents whose validity is likewise challenged were also issued under it ' The Ordinance, however, it is now admitted, was constitutionally incompetently promulgated and had, therefore, no legal validity. All action, however, taken under the Ordinance was validated by the Act and by its 39 section 17 "all acts done, notifications issued, authorisations, inquiries made, duties assigned, notices served, or any action taken with respect to or on account of eradication of kans during the period commencing October 20, 1949 and ending with the date of the commencement of this Act etc. shall be as valid and operative as if they had been done, issued, made, assigned, served or taken in accordance with the law. " The validity of this provision which was upheld by the Judicial Commissioner is not challenged before us and therefore notwithstanding that the notifications which will be referred to later were issued anterior to the enactment of the Act, that circumstance is immaterial for considering their effectiveness. Before however, proceeding with the narration of the facts and particularly with those touching the issue of the impugned notifications and the notice of demand, we consider it would be convenient to set out the relevant provisions of the Act, and in particular those whose constitutional validity is challenged. It may be mentioned that the Act received the assent of the President on November 7, 1954 and was published in the State Gazette on November 25, 1954. Its preamble recites that it was enacted "to provide for the reclamation and development of lands by eradication of kans weed in certain areas of the State of Bhopal. " Section 2 contains the definitions and cl. (c) defines a 'kans area ' wherein eradication operations are to be conducted under the provisions of the Act as meaning "the area which the Government may, by notification, declare under sub section (1) of section 4 to be an area infested with kans." Section 3 empowers the Government to appoint a Reclamation Officer. Section 4 is one of the main provisions whose validity is challenged and has, therefore, to be set out in full "4. (1) If the Government is of opinion that any area is infested with kans, it may, by notification, declare such area, giving full particulars thereof, to be a kans area for the purpose of this Act. (2) Such notification shall be a sufficient notice of the fact stated therein to all persons holding 40 or having interest in the land comprised in such area. (3) The Reclamation Officer shall give publicity to the notification issued under sub section (1) in such manner as he deems fit. (4) The Reclamation Officer may enter upon any land in such area and take possession thereof for such period as may be necessary for the purpose of eradication of k ans from such area and carry on other ancillary subsidiary operations therein. " Section 5 provides for the constitution of a Reclamation Board a provision to which we shall have occasion to refer at a later stage. Section 6 deals with the consequences of a notification under section 4(1) and with the matters which take place thereon and is thus intimately connected with section 4 and we shall therefore set it out in full : "6. (1) On issue of a notification under sub section (1) of section 4, the Reclamation Officer and his subordinates and workmen, authorised by him in this behalf, may, notwithstanding the provisions of the Bhopal Land Revenue Act, 1932, (TV of 1932), (a) enter upon any land in the kans area for the purpose of survey and any other ancillary purpose, and (b) taken possession of the whole or any part of the kans area and carry on eradicating and other ancillary and subsidiary operations therein. (2) No person shall use the land so notified for any purpose till such date as the Reclamation Officer, after the completion of the reclamation and demarcation operations, may, by notification in the official Gazette, specify for the restoration of the same to the person who was, on the date of taking over, in lawful 41 possession of the same or was entitled to such possession: Provided that no revenue shall be charged from a person whose land has been taken over by the Reclamation Officer under this section in res pect of the period during which the land has so remained in the possession of the said Officer. (3) For the purposes of this section, any reference to the person entitled to take possession of land notified above, shall, if he is dead, be deemed to include a reference to his successors in interest. (4) The notification mentioned in sub section (2), shall be final, and full discharge of the Government from all liability in respect of such delivery of possession, and the possession of the land shall, on the date specified in this behalf, be deemed to have been delivered by the Government to the person entitled to it. " Section 7 provides the machinery for ascertaining the share of the cost which has to be paid by persons having interest in the land who have benefited by the tractorisation ,and it is the procedure contained in this section that is stated to have been departed from in making the demands on the respondents by reason of which the respondents successfully resisted the demands made on them. Section 7 runs: "7. (1) The total expenditure incurred, or to be incurred, by the Government on eradicating or other ancillary or subsidiary operations in the kans area, shall be equitably apportioned by the Reclamation Board between the several holders of, or persons having interest in the lands comprised in the Kans area. (2) Every person holding, or having interest in the land in which eradicating or other ancillary, or subsidiary operations have been carried out or intended to be carried on, shall be liable to pay the costs of such operations on his land. 42 (3) The Reclamation officer shall fix the amount of costs payable by each holder or other person having interest in the land comprised in the kansa area. The amount so fixed shall be charged on the land to which it relates, and shall not be called in question in any suit or other legal proceedings. (4) The Reclamation Officer shall also determine whether the amount so apportioned shall be paid by the person holding, or having interest in the land in one lump sum or by such annual instalments as he may fix for the amount. (5) The payment mentioned in sub section (4), may be made in cash or agricultural produce of such land or both. (6) If the actual cost of the eradicating or other subsidiary or ancillary operations exceeds or falls short of the amount to be payable by a holder of, or other person having interest in, the land, the difference shall be returned to, or recovered from, the person concerned, as the case may be." The machinery for collection is contained in section 8 and it is enough to point out that it makes provision for the Reclama tion Officer serving on the person holding or having interest in the land in which eradication operations have been carried out a notice of demand which in the context would mean such sum as has been determined under section 7 and for the recovery of the said sum as an arrear of land revenue, Section 9 makes provision for the payment of compensation and it is one of the sections of the Act which have been struck down for unreasonableness. It enacts: "9. (1) Any person may, within thirty days from the date of the taking over of the land under section 6, apply to the Reclamation Board for payment of compensation for destruction of or damage to any plant, tree, building, hut or other structure in his land as a result of the eradicating operation. 43 (2) On receipt of such application, the Reclamation Board may make such inquiry as it deems fit, and, if in its opinion, the payment of compensation is justified, it may grant such compensation as it deems fit. (3) The decision of the Reclamation Board shall be final in all respects, and shall not be called in question in any court of law." Though some of the other sections of the Act have been dealt with and examined by the learned Judicial Commissioner, they do not bear materially on the points which have been urged before us in the appeals and we do not therefore, consider it necessary to refer to them. To resume the narration of the facts leading to the filing of these petitions, it would suffice to mention those relating to any one of these petitions, as those of the others are substantially similar. We shall refer to the facts in Case 18 of 1954 from which C.A. 379 of 1959 has arisen as illustrative of the rest. On January 18, 1951 a notification was issued by the Chief Commissioner under section 4(1) of the Ordinance declaring all the villages in seven tehsils which were set out in it as "Kans areas" and this was published in the Gazette on January 27, 1951. This notification was amended by a further notification dated May 30, 1951 by which all the villages in two more tehsils were added to the original seven. Among these newly added was Tehsil Huzur in which the lands of the petitioners who number thirty, were situate. Needless to add that this amendment was also published in the Gazette. Subsequently on November 21, 1952, there was a notification stating inter alia that 10 named villages in Tehsil Huzur were being taken over for tractorisation operations "during the ensuing season" and after this these operations were conducted on the lands of the petitioners. Thereafter on February 4, 1953, a communication was addressed by the Land Reclamation Officer, Bhopal to the Tahsildar, Huzur among other Tahsils which read, to quote the material passage: "I forward herewith demand lists of villages of your Tehsil in respect of the tractorisation charges for the season 1951 52. Pending final decision 44 regarding exact rates of bush clearance and ploughing, it has been found advisable that collection may be made at the rate of Rs. 10, per acre towards first instalment of the demand. As soon as the rates are finalised intimation as to the exact rate will b e sent to you to adjust the account likewise. " This was finalised at a later date on receipt of intimation from the Government of India on August 12, 1953, but the figure was modified slightly in March 1954 and again in October, 1954 by a revision to a lower figure but nothing 'turns on the modifications, because the challenge in the petitions to the demand does not turn on the quantum of the levy or its unreasonableness quoad the service rendered. When demands were made on the petitioners for the payment of the first instalment at Rs. 10 per acre they filed the petition 18 of 1954 and sought relief primarily by way of: (1) a declaration that the Ordinance and the Act which repealed and re enacted it with retrospective effect were unconstitutional and void, (2) a permanent injunction restraining the State and its authorities from enforcing the demands on them. The petition also prayed for certain other reliefs which were not granted and are no longer material. The Judicial Commissioner substantially allowed the petition and granted the principal reliefs sought and hence this appeal. As stated earlier, the contents of the other petitions are substantially the same, and all these five were dealt with by a common judgment and so it is unnecessary to set them out. Four points were urged by Mr. Sen learned counsel for the appellant: (1 ) That the learned Judicial Commissioner was wrong in holding that the principal and operative sections of the Act were unconstitutional and void,(2) that the procedure prescribed by sections 7 and 8 of the Act for enabling the demand to be made was substantially complied with,(3) that even if the Act be unconstitutional, still it must be taken to have been validated by the Madhya Pradesh Re clamation of Lands (Extension to Bhopal) Act, 1957 by which the Madhya Pradesh Act, whose constitutional validity was not open to challenge had been extended to the Bhopal 45 area, (4) that in any event, having regard to the benefit that had been conferred on the farmers by the tractorisation operations, the charges which were demanded, could be recovered under section 70 of the Indian Contract Act. We shall deal with these submissions in that order. The first of the sections of the Act which has been held unconstitutional is section 4(1). Under it would be seen, the Government is empowered, by notification, to declare areas as 'kans areas ' "if it is of opinion that any area is infested with kans". Two points were urged in support of the challenge to the validity of this provision and both of them have been accepted by the learned Judicial Commissioner. They were, first, that the provision constituted an excessive delegation of legislative power, and, secondly, that the power thus conferred was arbitrary and constituted an unreasonable restriction on the right to hold and enjoy property and therefore violative of articles 14 and 19 (1 ) (f) of the Constitution. We agree with Mr. Sen that section 4 (1) does not suffer from the vice of excessive delegation of legislative power. The preamble and long title of the Act make it clear that the enactment is one "for the reclamation and development of lands by the eradication of kans weed in certain areas in the State", the purpose being specified as the eradication of kans in areas infested with it. The legislative policy behind the provision is thus writ large, and what remains and is left to the executive is to carry out that mandate and give effect to the law so as to achieve the purposes 'of the Act. 'The areas infested ' is manifestly not capable of legis lative definition but must obviously be left to the executive to determine having regard to the intensity of the weed infestation and its distribution. There is thus legislative guidance offered of the criteria which must be borne in mind by the Government before any area is declared as a 'kans area ' and if the determination of the particular area is left to the executive it cannot be said to be any delegation of legislative power at all. The second point, however, about the power conferred being unreasonable in the context of the other provisions of the Act deserves more serious consideration. In this connection it is necessary to notice certain admitted facts. 46 The notification under section 4(1) dated January 18, 1951, read in conjunction with the addition made by a further noti fication dated May 30, 1951 already referred to, declared all the villages in 9 tehsils which were named to be 'kans areas '. It was the complaint of the respondents who were the petitioners in the writ petitions that their lands were not kans infested and that the notification was issued and the subsequent proceedings thereunder taken without giving them an opportunity of establishing that fact. No doubt, it was the case of the State that this complaint was not correct and that the lands were, in fact, kans infested. In this connection, however, it is necessary to refer to one fact which is a matter of admission. Among the affidavits filed in support of the written statement by the State was one by Syed Majid Ali who had conducted previous experiments under the Imperial Council of Agricultural Research and who was one of those on whose recommendation it was decided that tractorisation was the best method of eradicating kans. He stated in paragraph 9 of his affidavit: "Before I started my experiments in the State of Bhopal a statement showing kans infestation tehsil wise had already been prepared by the State authorities and it is filed in the case. A corresponding map was also prepared and that is also filed in the case. " The map that was prepared then and which was filed in the case showed the lands in the State divided into three groups of areas dependent on the intensity of the kans infestation and these three groups of areas were differently coloured, The highest intensity comprised areas in which the infesta tion was 60 per cent, those between 40 60 per cent formed the second class, while those below 40 per cent formed the last. A glance at the map which is part of the record before us shows an uniform colouring throughout these three groups of areas which is apt to indicate that in all the tehsils which are included in any of these three groups there was uniform infestation to the percentages indicated. Mr. Sen strongly relied on this map as establishing this. But that this is not a correct picture of the spread of infestation appears to be made out by the statement prepared in July 47 1941 which is the document first referred to by Syed Majid Ali. In this statement which is marked as exhibit N/4 the State is divided into two districts one western and the other eastern the former comprising 7 tehsils and the latter ll. It gives a break up of the occupied and the unoccupied land, the area of each tehsil wise, the area which has been cleared of kans in each tehsil and the area still remaining similarly infested. Taking the 1st of the tehsils which is included in the notification dated January 18, 1951 Nasrullaganjit is seen from exhibit N/4 that of the occupied land 8478 86 acres were kans infested while 2101603 acres were areas which had been cleared. It might not be clear from these figures whether the areas cleared were merely some isolated fields or larger contiguous patches, but one thing is clear that the entire tehsil, or rather the entire occupied land in the tehsil was not kans infested as the map would indicate, but there were considerable portions in which eradication operations had been carried out already. It is possible that between the years 1941 when this statement was prepared and January 1951 when the notification under section 4(1) of the Act was issued, lands which had once been cleared might again have become infested but anyway it would show that before there was any interference with the right of the farmers to their property they should have been given an opportunity to prove to the satisfaction of the authorities that their land was not kans infested and therefore did not need tractorisation. The provision contained in section 4 (4) under which the Reclamation Officer is empowered to enter upon any land in the area so declared under section 4( 1) and commence and complete eradication operations has also to be taken into account in this context. If at least at the stage when the Reclamation Officer selected the particular land in which the eradication operation was to be conducted there was notice required to be given to the owner or the occupier, in order to give him an opportunity to establish that notwithstanding his land being included in the notification under section 4(1) the particular land in which he was interested was not kans infested and therefore did not stand in need of any eradication operation, the provision in section 4(1) 'would not have been open to serious challenge. But even at the second stage when the officer was empowered to select 48 the land for the purpose of giving effect to the provisions of the Act and conduct tractorisation operations thereon, the Act contains no provision for the persons interested having such an opportunity. We consider, therefore, that section 4(1). read in conjunction with the power contained in section 4(4) coupled with the absence of any provision for entertaining objections would, in the circumstances of there being admittedly patches of land in the same tehsil which had bead cleared at least in 1941 must be characterised as arbitrary and imposing an unreasonable restriction on the right to hold and enjoy property within article 19(1) (f). The operation of the several sub sections of section 6 to which we shall immediately make reference reinforces our conclusion as regards the unconstitutionality of the provisions of section 4(1) read with, section 4(4). Under section 6(1)(b) immediately on the issue of a notification under section 4(1) the Reclamation Officer is empowered to take possession of the whole or any part of "the kans area" and "carry on eradicating and other ancillary and subsidiary operations therein. " Now, in regard to this it was submitted that this provision under which the land owner is deprived of the possession of his property is unconstitutional as violative of article 31 (2) as it originally stood before the 4th amendment. That Article then ran: "No property, movable or immovable. shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession. unless the law provides for compensation for the property taken possession of. 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." The argument urged on behalf of the respondents and which the learned Judicial Commissioner accepted was based on the circumstance that no compensation was provided for the taking possession by the State or an officer acting on its behalf, of the lands notified under section 4(1) and (4). Mr. Sen, however, submitted two answers to this objection. The first was that the duration during which the owner was 49 deprived of possession, if at all, was so short as not to amount to "taking possession" within article 31 (2). This was ,also presented in a slightly modified form by stating that there was in reality no taking of possession at all but that the Reclamation Officer merely entered on the land and carried out the tractorisation operation without disturbing the possession of the owner. The argument that the land owner is not disturbed in his possession by the tractorisation operations and that he is not deprived of the same by the operation of the Act, proceeds upon overlooking the provisions which directly point to possession of the land statutorily passing to the Reclamation authorities on the issue of the notifications. Section 6(2) enacts a ban on the owner using the land notified under section 4(1) until there is in effect a renotification of that land by the Reclamation Officer and the lawful possession of the land is restored to the owner. In the circumstances, it is clear that the possession of the Reclamation Officer is exclusive and amounts to taking possession within article 31(2). Nor is there any force in the point about the shortness of the duration during which the owner is deprived of possession or rather the period during which the State through the Reclamation Officer is in possession of the land. ' As regards this it might be pointed out that the Act itself specifies no period of time within which the reclamation should be completed. Nor are we satisfied that the mere fact that this duration is not considerable has any materiality or relevance for considering whether there has been a taking possession of the land by the State. If the period during which the owner is deprived of possession be short the compensation payable to him might be less but that does not, in any manner, affect the reality of the dis possession or rather the taking of possession by the State within the meaning of article 31(2). We thus reach the posi tion that there has been a taking possession by the State of the immovable property of the owner within the Article. The second submission related to the question which arises whether "the law provides for compensation for the property taken possession of", for it was not disputed that if it did not, the law providing for the "taking" would be un constitutional. In regard to this Mr. Sen relied on the proviso to section 6(2) as providing compensation. That proviso, 134 159 S.C. 4. 50 it would be recollected, enacted that during the period when the land was in the possession of Government for the conduct of the eradication operation, no land revenue would be charged to the land owner. Mr. Sen urged that there was in law an obligation cast upon the owner to pay land revenue and the foregoing of this payment during the period when the owner was out of possession would, in the eye of law, amount to compensation and therefore satisfied the requirements of article 31 (2) as it originally stood. We consider this, wholly without substance. In the first place, the framers of the Act knew what compensation was and they made provi sion for compensation in section 9 in respect of the injury suffered by the owner. In the context of this provision and its language they could certainly not be treated as considering the abstention from charging land revenue during the period when the land was not available to the owner as compensation. Secondly, even a cursory examination would demonstrate the fallacy underlying this submission. If the exemption from payment of land revenue should suffice as compensation for deprivation of possession for a time, it would follow that for possession of property being taken for ever or say for 99 years exemption from land revenue for that period would suffice as compensation. This would illustrate the utter untenability of this argument. Normally speaking, land revenue is charged on the basis that the owner is free under the law to utilise the land for profitable use. When, therefore, he is deprived of the opportunity of so utilising it, the State exempts him from payment of the same. This can in no sense be treated as compensation for the deprivation of possession. Besides, the theory of land revenue is that it represents a proportion of the income which the owner derives from the land, and is in theory fixed on the basis of allowing him some surplus over the State 's share. When by deprivation of possession he is prevented from making any income from the land, the exemption from payment of land revenue, offers him no compensation, only it alleviates his loss. In this view it is unnecessary for us to consider the question whether under article 31(2) as it stood at the relevant date, the compensation even if provided need be adequate and how far the adequacy could be justiciable. We have, therefore, no hesitation in saying that section 4(1) read 51 with section 6(1)(b) is unconstitutional as violative of article 31 (2). The learned Judicial Commissioner has also struck down section 6(2) as unconstitutional and Mr. Sen did not question the correctness of this conclusion. There are other minor points about section 6 which also have been held to render that section unconstitutional but to these it is not necessary to refer in the view that we have expressed about the provisions we have discussed. If the appellant State is unable to sustain the validity of sections 4 and 6, which are the key provisions of the Act, Mr. Sen conceded that it would not be necessary to consider the validity of the other provision and we accordingly refrain from doing so. This takes us to the second principal ground on which the respondents have succeeded, viz., that even if the Act be valid, the provisions of section 7 were not complied with and as a result the demand made on the respondents for payment of an installment of the tractorisation charges was unautho rised and illegal. It was Mr. Sen 's contention that the learned Judicial Commissioner was in error in upholding this contention. The point arises this way. Section 5 makes provision for the constitution of a Reclamation Board. The Board consisted at the relevant date of the Development Commissioner as the Chairman, six non official members who were members of the Legislative Assembly of the State besides five other officials with the Director, Land Reclamation as the Secretary of that Board. Section 7 entrusts this Board with the duty first of ascertaining the total expenditure incurred, or to be incurred, and then to equitably apportion it among those land owners on whose lands eradication operations have been or would be conducted. Now, in the present case the facts were that the Central Government incurred the expenditure in the first instance by utilising the Central Tractor Organisation a body set up by the Central Government and then intimated to the State Government both the total amount which they had expended and which was repayable to them by the State, as well as the manner in which the amount thus recoverable from the State was to be allocated among the several land holders. It is common ground that the Reclamation Board never met and consequently neither computed the total expenditure incurred or 52 to be incurred for the eradication operations, nor did it make the allocation among the holders of the lands on which eradication operations were conducted. After referring to these features the respondents pointed out in their petitions that, without the requirements of section 7 being satisfied, they were informed of the contents of a letter dated October 29, 1954 from an Under Secretary :to the Government of India to the Secretary to the Government of Bhopal Development Department, in which the amount to be recovered from the land owners for the deep ploughing of their lands was mentioned, which amount, the revenue officials of the State were directed to recover. It is now admitted that this is the basis on which the impugned demands were made on the respondents. The learned Judicial Commissioner held that the terms of section 7 were mandatory and that unless the mind of the Reclamation Board was brought to bear on the question, and the Board computed the total expenditure as well as the proper allocation of this sum among the several land owners no lawful demand could be made under section 8, nor could the same be recovered from the respondents. We find ourselves in entire agreement with the learned Judicial Commissioner in holding (1) that the procedure prescribed by section 7 is mandatory and (2) that as admittedly there was no compliance with it no lawful demand could be made for the contribution payable by any landholder by the Central Government or by the State Government at the instance of the Central Government without recourse to the machinery provided by section 7. The notices of demand were, therefore, properly quashed as illegal. It is only necessary to add that the validity of these noti ces of demand would arise only in the event of the crucial provisions of the Act section 4 and section 6 being valid and in view of our conclusion as regards the constitutional validity of those provisions, even in the event of the terms of section 7 being complied with there could be no lawful demand made on the respondents. There remain two minor points which were urged by Mr. Sen but neither of these need detain us long. The first of these was the effect on the present demand of the Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act, 53 1937. By this enactment the Madhya Pradesh Act which is somewhat analogous to but not identical with the Act now under consideration was extended to the Bhopal area. The argument of Mr. Sen was that by virtue of this extension of the Madhya Pradesh Act, even if the Bhopal Act were invalid, the demand made could be iustifiel as made under the Madhya Pradesh Act. But the extension of the Act, in the present case, is of no avail to the appellant because that Act was brought into force only prospectively and not retro spectively. If, therefore, the demand when made was illegal or invalid it cannot be sustained on the basis of the Madhava Pradesh Act. In the circumstances, it is unnecessary for us to consider the provisions of the Madhya Pradesh Act to find out how far, if retrospective, they would affect the validity of the demand. The last of the points urged was that even if the Act was invalid and the demand could not be justified as a legal demand having regard to the terms of section 7, still as eradica tion operations which are beneficial in their nature had been conducted on the lands of the respondents which had derived benefit therefrom, lands which the respondents still retained, the provisions of section 70 of the Indian Contract Act were attracted and that on the basis of a quasi contract which that section postulates, the claim for compensation might be sustained. This raises larger questions for which there might be sufficient answers, but in view of the circumstances that it was not pleaded as a defence to the writ petitions before the Judicial Commissioner nor put forward in arguments before him, nor in the grounds of appeal or even in the statement of the case filed in this Court, we have not thought it proper to permit learned counsel to urge the ground at this stage. The facts of the other appeals being substantially similar, and the points arising in them being identical. they do not require to be dealt with separately. What we have stated regarding Civil Appeal 379 of 1959 would equally apply to them. The appeals fail and are dismissed with costs one hearing fee, Appeals dismissed.

IN-Abs

The respondents are owners of agricultural land in Bhopal. Their lands were taken possession of by the appellant under a notification under section 4 of the Bhopal Reclamation and Development of Land (Eradication of Kans) Act. The object of this Act was to eradicate by 'deep tractorisation Kans weeds which are harmful to the productivity of land. The Act provides for the taking possession of the land infested with kans, after issuing notifications under section 4 of the Act, and for the deep ploughing of the land by tractors. The expenses incurred by the Government were to be apportioned among the owners in the area whose lands had been occupied and ploughed. Demands were made on the respondents whose lands were occupied and tractorised to pay the costs so apportioned. Thereupon they filed writ petitions before the Judicial Commissioner challenging the legality of the Act as well as the legality of the levy. even assuming that the Act was valid. The Judicial Commissioner allowed the petitions. Thereupon the State appealed to this Court with certificate of fitness under article 133(1)(c) of the Constitution. In the appeals before this Court the same contentions as those which were raised before the Judicial Commisisoner were canvassed. 36 Held. (i) The Act contains no provision for the person interested having an opportunity to establish that the particular land in which he was interested was not kans infested and therefore did not stand in need of any eradication operation. Section 4(1) read in conjunction with the power contained in section 4(4) coupled with the absence of any provision for entertaining objections would, in the circumstances of there being admittedly patches of land in the same tehsil which had been cleared at least in 1941 must be characterised as arbitrary and imposing an unreasonable restriction on the right to hold and enjoy property within article 19(1)(f) of the Constitution. (ii) The possession of the Reclamation Officer is exclusive and amounts to taking possession within article 31(2). The shortness of the duration during which the owner is deprived of his possession has no relevancy to the question whether there has been a taking of possession of land by the State. If the duration is short the compensation payable might be small. The exemption from payment of land revenue 'during the period of occupation by the State as provided in the proviso to section 6(2) of the Act cannot in any sense be treated as compensation for the deprivation of possession, it only alleviates his loss. Section 4(1) read with s.6(1)(h) is unconstitutional as violative of article 31(2). (iii) Section 7 of the Act is mandatory and that as admittedly there was no compliance with it no lawful demand could be made for the contribution payable by any landhorder by the Central Government or by the State Government at the instance of the Central Government without recourse to the machinery provided by section 7. The notices of demand were therefore illegal. (iv) The extension of the Madhya Pradesh Act to the Bhopal area would be of no avail to the State because the Act was brought into force prospectively and not retrospectively. If therefore the demand when made was illegal or invalid it cannot be sustained on the basis of the Madhya Pradesh Act.

Appeal No. 1042 of 1963. Appeal by special leave from the judgment and order dated May 3, 1963, of the Madhya Pradesh High Court in First Appeal No. 46 of 1962. section K. Kapur, B. L. Khanna and B. N. Kirpal, for the appellant. Homi Daji, R. K. Garg, section C. Agarwal, M. K. Ramamurthi and D. P. Singh, for the respondent. December 20, 1963. The Judgment of P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo and K. C. Das Gupta, JJ. was delivered by Gajendragadkar J. N. Rajagopala Ayyangar J. delivered a separate opinion. GAJENDRAGADKAR J. The question of law which this appeal has raised for our decision is in relation to the nature and scope of the enquiry contemplated by sections 97, 100 and 101 of the Representation of People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). The appellant Jabar Singh and the respondent Genda Lal, besides five others, had contested the election to the Madhya Pradesh Assembly on behalf of the Morena Constituency No. 5. This election took place on the 21st February, 1962. In due course, the scrutiny of recorded votes took place and counting followed on the 27th February, 1962. As a result of the counting, the appellant was shown to have secured 5,671 votes, whereas the respondent 5,703 votes. It is not necessary to refer to the votes secured by the other candidates. After the result of the counting was thus ascertained, the appellant applied for recounting of the votes and thereupon, 58 recounting followed as a result of which the appellant was declared elected having defeated the respondent by 2 votes. The recounting showed that the appellant secured 5,656 votes and the respondent 5,654. Thereafter, the respondent filed an election petition from which the present appeal arises. By his petition the respondent challenged the validity of the appellant 's election on the ground ' of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself. The respondent urged before the Tribunal either for the restoration of the results in accordance with the calculations initially made before recounting, or a re scrutiny of the votes by the Tribunal and declaration of the result according to the calculations which the Tribunal may make. His prayer was that the appellant 's election should be declared to be void and a declaration should be made that the respondent was duly elected. The Election Tribunal found that 10 ballot papers in favour of the respondent had been improperly rejected and 4 had been improperly accepted in favour of the appellant. That led to a difference of 12 votes and the position of the votes was found to be the respondent 5,664 and the appellant 5,652 votes. At this stage, the appellant urged before the Tribunal that there had been improper rejection of his votes and improper acceptance of the votes of the respondent, and his case was that if recounting and re scrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this course; his case was that since the appellant had not recriminated under section 97 of the Act, it was not open to him to make the plea that a recounting and re scrutiny should be made on the ground that improper votes had been accepted in favour of the respondent and valid votes had been improperly rejected when they were cast in favour of the appellant. The respondent 's contention was that in order to justify the claim made by the appellant it was necessary that he should have complied with the provisions of the proviso to section 97(1) of the Act and should have furnished security as required by it. The failure of the appellant in that behalf precluded him from raising such a contention. 59 The Tribunal rejected the respondent 's contention and held that in order to consider the relief which the respondent had cliamed in his election petition, it was necessary for it to decide whether the respondent had in fact received a majority of votes under section 101 of the Act, and so,. he re examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had, in fact, not secured a majority of votes. As a consequence of these findings, the Tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected. This decision led to two cross appeals before the High Court of Madhya Pradesh, No. 46 of 1952 and No. 1 of 1963 respectively. The appellant challenged the conclusion of the Tribunal that his election was void, whereas the respon dent disputed the correctness of the decision of the Tribunal that no declaration could be granted in his favour that be had been duly elected. In these appeals. the main question which was agitated before the High Court was about the nature and scope of the enquiry permissible under sections 100 and 101 of the Act. In dealing with this question, the High Court based itself upon its own earlier decision in Inayatullah Khan vs Diwanchand Mahajan and Ors.(1). , as well as the decision of this Court in Bhim Sen vs Gopali and Ors. (2) and held that the grievance made by both the parties in their respective appeals was not well founded and that the decision of the Tribunal was right. In the result, both the appeals were dismissed and the decision of the Tribunal was confirmed. Against this decision, the appellant has come to this Court by special leave. Later on, the respondent filed an application for leave to appeal to this Court, but the said application was filed beyond time. When the said application came on for hearing before this Court, the delay made by the respondent in preferring his application for special leave was not condoned, and so, the decision of the High Court against the respondent has become final and is not (1) (2) 60 longer open to challenge in this Court. When the applica tion for leave filed by the appellant was argued and admitted by this Court, it was urged by Mr. Kapoor on his behalf that the observations made by this Court in the case of Bhim Sen(1) on which the High Court substantially relied required reconsideration. That is why the appeal has been placed before a Bench of five Judges for final hearing. In dealing with the question raised by Mr. Kapoor before us, it is necessary to refer to the provisions of the Act in re gard to the presentation of election petitions and the prayers that the petitioners can make therein. Section 81 provides that an election petition calling in question any election on one or more of the grounds specified in sub section (1) of section 100 and section 101 may be presented to the Election Commission by any candidate or any elector within the time specified by the said section. It is thus clear that when a person presents an election petition, it is open to him to challenge the election of the returned candidate under section 100 (1) and claim a declaration that the returned candidate 's election is void. He can also claim a further declaration that he himself or any other candidate has been duly elected. In other words, if the election petition contents itself with claiming a simple declaration that the election of the returned candidate should be declared to be void, the petition falls under section 100 and the Election Tribunal can either grant the said declaration in which case the petition is allowed, or refuse to grant it in which case the petition is dismissed. It is also possible that the election petition may claim two reliefs, one under section 100 (1), and the other under section 101. In this category of cases, the Tribunal first decides the question as to whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected. The scope of the enquiry which the Tribunal has to hold in such cases would obviously depend upon the nature of the reliefs claimed by the petition. There is another fact which it is necessary to bear in mind in dealing with the controversy before us in the present ap (1) 61 peal. When elections are held, the declarations of the results are governed by the statutory rules framed under the Act. The counting of votes is dealt with in the relevant rules under Part V. Rule 55 deals with the scrutiny and opening of ballot boxes. Rule 56(1) requires that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. R. 5 6 (2) provides when the returning officer has to reject a ballot paper; the grounds for rejection are specified in clauses (a) to (h). Rules 56(3), (4) and (5) prescribe the procedure for rejecting ballot papers. When the ballot papers have been taken out of the ballot boxes and have been scrutinised, counting follows and that is dealt with by r. 57 and the following Rules. R. 63 provides for recounting of votes; R. 63(1) lays down that after the counting has been completed, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. R. 63(2) permits an application to be made for a recounting and if that application is allowed, a recounting follows. If a recounting is made, then the result is declared once again on the sheet in Form 20. In pursuance of the result of counting thus announced, the re sult of the election is declared under r. 64 and a certificate of election is granted to the returned candidate. It is significant that r. 57(1) provides that every ballot paper which is not rejected under r. 56 shall be counted as one valid vote, which means that after the ballot papers have been scrutinised and invalid papers are rejected under r. 56(2), all voting papers which have been taken into the counting by the returning officer shall be deemed to be valid under r. 57(1). Similarly, when the scrutiny of the nomination papers is made by the returning officer under section 36 of the Act and as a result, certain nomination papers are accepted, section 36(8) provides that the said acceptance shall be presumed to be valid. In other words, when an election petition is filed before an Election Tribunal challenging the validity of the election of the returned candidate, prima facie the acceptance of nomination papers is presumed to be valid and the voting papers which have been counted are also presumed to be valid. The election petition may challenge the validity of the votes counted, or the validity of the acceptance or rejection of a nomination 62 paper; that is a matter of proof. But the enquiry would commence in every case with prima facie presumption in favour of the validity of the acceptance or rejection of nomination paper and of the validity of the voting papers which have been counted. It is necessary to bear in mind this aspect of the matter in dealing with the question about the scope and nature of the enquiry under sections 100 and 101 of the Act. Let us now read the three relevant sections with which we are concerned in the present appeal. Section 97 provides : "(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. (2) Every notice referred to in sub section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner". Section 100, sub section (1) reads as under: . (1) Subject to the provisions of subsection (2) if the Tribunal is of opinion (a) that on the date of his election a returned candidate, was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act; or 63 (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any noncompliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void". Section 101 provides that: "If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion (a) that in fact the petitioner. or such other candidate received a majority of the valid votes, or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected". 64 Mr. Kapoor contends that in dealing with the cases falling under section 100 (1) (d) (iii), section 97 can have no application and so, the enquiry contemplated in regard to cases falling under that class is not restricted by the prohibition prescribed by section 97(1). He suggests that when the Tribunal decides whether or not the election of the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote, or the reception of any vote which is void, it has to examine the validity of all votes which have been counted in declaring the returned candidate to be elected, and so, no limitation can be imposed upon the right of the appellant to require the Tribunal to consider his contention that some votes which were rejected though cast in his favour had been improperly rejected and some votes which were accepted in favour of the respondent had been improperly accepted. Basing himself on this position, Mr. Kapoor further contends that when section 101 requires that the Tribunal has to come to the conclusion that in fact the petitioner or such other candidate received a majority of the valid votes, that can be done only when a recount is made after eliminating invalid votes, and so, no limitations can be placed upon the scope of the enquiry contemplated by section 101 (a). Since section 100(1)(d)(iii) is outside the purview of section 97, it would make no difference to the scope of the enquiry even if the appellant has not recriminated as required by section 97(1). On the other hand, Mr. Garg who has addressed to us a very able argument on behalf of the respondent, urged that the approach adopted by the appellant in dealing with the problem posed for our decision in the present appeal is in appropriate. He contends that in construing sections 97. 100 and 101, we must bear in mind one important fact that the returned candidate whose election is challenged can face the challenge under section 100 only by making pleas which can be described as pleas affording him a shield of defence, whereas if the election petition besides challenging the validity of the returned candidate claims that some other person has been duly elected, the returned candidate is given an opportunity to recriminate and by way of recrimination he can adopt pleas which can be described as weapons of attack against the validity of the election of the other person. 65 His argument is that though section 100(1)(d)(iii) is outside section 97. it does not mean that in dealing with a claim made by an election petition challenging the validity of his election, a returned candidate can both defend the validity of his election and assail the validity of the votes cast in favour of the petitioner or some other person. It is in the light of these two rival contentions that we must now proceed to decide 'what the true legal position in the matter is. It would be convenient if we take a simple case of an election petition where the petitioner makes only one claim and that is that the election of the returned candidate is void. This claim can be made under section 100. Section 100(1) (a), (b) and (c) refer to three distinct grounds on which the election of the returned candidate can be challenged. We are not concerned with any of these grounds. In dealing with the challenge to the validity of the election of the returned candidate under section 100(1)(d), it would be noticed that what the election petition has to prove is not only the existence ,of one or the other of the rounds specified in clauses (i) to (iv) of section 100(1)(d), but it has also to establish that as a result of the existence of the said ground, the result of the election in so far as it concerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or not the election in so far as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is: has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case. This requirement of section 100 (1) (d) necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause (iii) of section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case failing under section 100(1)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or re 134 159 S.C. 5. 66 sected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in section 100(1)(d) (iii), the result of the returned candidate 's election has been materially affected, and that, incidentally, helps to determined the scope of the enquiry. Therefore, it seems to us that it, the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of section 100(1)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under section 97(1); in fact, section 97(1) has no application to the case falling under section 100(1)(d)(iii); the, scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition. There are, however, cases in which the election petition makes a double claim; it claims that the election of the re turned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that section 100 ' as well as section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter petitioner challenging the validity of the election of the alternative candidate. The result of section 97(1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter claim made by the returned 67 candidate. That being the nature of the proceedings con templated by section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by section 97 (1) proviso and section 97 (2). If the returned candidate does not recriminate as required by section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case, an enquiry would be held under section 100 so far as the validity of the returned candidate 's election is concerned, and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with alternative claim, but in doing so, the returned candidate will not be allowed to, lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. It is true that section 101(a) requires the Tribunal to find that the petitioner or such other candidate for the declaration of whose election a prayer is made in the election petition has in fact received a majority of the valid votes. It is urged by Mr. Kapoor that the Tribunal cannot make a finding that the alternative candidate has in fact received a majority of the valid votes unless all the votes cast at the election are scrutinised and counted. In our opinion, this contention is not well founded. We have already noticed that as a result of rule 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under r. 56 constituted one valid vote and it is on that basis that the finding will have to be made under section 101(a). Section 97(1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by section 97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under section 101(a) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected. 68 were invalid. What we have said about the presumed validity of the votes in dealing with a petition under section 101 (a) is equally true in dealing with the matter under section 100(1)(d)(iii) We are, therefore, satisfied that even in cases to which section 97 applies, the enquiry necessary while dealing with the dispute under section 101(a) will not be wider if the returned candidate has failed to recriminate. If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under s, 100 and the matter proceeds to be tried under section 101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by section 100(1)(d)(iii) and the latter part of the enquiry which is governed by section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under section 97 (1). If Mr. Kapoor 's construction of section 100 (1) (d) (iii) is accepted, it would either make section 97 otiose and ineffective or make the operation of section 101 read with section 97 inconsistent with the operation of section 100 (1) (d) (iii). We are therefore satisfied that the High Court was right in coming to the conclusion that the Tribunal was in error in holding that "it was an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for a matter of that any other contesting candidate. " It, however, appears that following its own earlier decision in Inayatullah Khan 's(1) case the High Court was disposed to take the view that the enquiry under section 101(a) was wider and that in making its finding under the said provision, it was open to the Tribunal to scrutinise the votes and determine whether in fact, the petitioner or some other person had received a majority of the valid votes. As we have already indicated, this would be the position only if the returned candidate had recriminated; in the absence of recrimination, it would not be open to the Election Tribunal (1) 69 to allow the returned candidate to challenge the validity of votes cast in favour of the petitioner or any other candidate in whose favour a declaration is claimed by the election petition or to contend that any of his votes were improperly rejected. We ought to add that the view taken by the Madhya Pradesh High Court in the case of Inayatullah Khan(1) in regard to the scope of the enquiry under section 101 (a) does not correctly represent the true legal Position in that behalf. Similarly, the view taken by the Allahabad Court in Lakshmi Shankar Yadav vs Kunwar Sripal Singh and Ors. (2), cannot be said to interpret correctly the scope of the enquiry either under section 100 or section 101. The conclusion which we have reached in the present appeal is substantially in accord with the observations made by this Court in the case of Bhim Sen(3) though it appears that the points in question were not elaborately argued before the Court in that case. There is another point to which reference must be made. Mr. Garg contended that even if the view taken by the Tribunal about the scope of the enquiry under section 100 (1) (d) (iii) and section 101 was right, the relief granted by it was not justified by the pleadings of the appellant in the present proceeding In support of this argument, he referred us to paragraph 4 of the Special Pleas filed by the appellant, and relied on the fact that at the initial stage of the hearing, the Tribunal had framed 18 issues including issue No. 16 which consisted of three parts, viz. , (a) Whether any votes cast in favour of respondent No. 1 were wrongly rejected specially pertaining to polling station mentioned in para 4 of the written statement under heading special pleas? (b) Whether many votes were wrongly accepted in favour of the petitioner appertaining to the polling stations mentioned in para 4 of the special pleas in written statement? (c) What is the effect of the above in the case? (1)15 E.L.R.219. (3) E.L.R. 288. (2) 70 Later on, when the respondent contended that in the absence of any recrimination by the appellant these issues did not arise on the pleadings, they were struck out, and yet in its judgment the Tribunal has virtually tried these issues and given relief on grounds which were not included even in his written statement. Since this appeal was admitted mainly on the ground that the appellant wanted this Court to reconsider the observations made by it in the case of Bhin Sen(1), we do not propose to rest our decision on this subsidiary point raised by Mr. Garg. It now remains to refer to two decisions which were cited before us during the course of the arguments. In Vashist Narain Sharma vs Dev Chandra and Ors. (2), this Court has held that section 100(1)(c), as it then stood, places a burden on the objector to substantiate the objection that the result of the election has been materially affected by the improper acceptance or rejection of the nomination paper. In that connection, this Court observed that where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all; but where it is not possible to anticipate the result, the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand. In Hari Vishnu Kamath vs Syed Ahmed Ishaque and others(1), adverting to the expression "the result of the election" in section 100(1)(c), this Court stated that unless there is something in the context compelling a different interpretation, the said expression must be construed in the same sense as in section 66, and there it clearly means the result on the basis of the valid votes. Basing himself on this observation, Mr. Kapoor has urged that while the Tribunal decides the question as to whether the election of the returned candidate has been materially affected or not, the validity of the votes falls to be considered, and that inevitably enlarges the scope of the enquiry. We do not think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to section 66 denotes is that (1) (3) ; at P 1131. (2) ; 71 after considering the pleas raised, the Tribunal has to decide whether the election of the returned candidate has been materially affected or not, and that only means that if any votes are shown to have been improperly accepted, or any votes are shown to have been improperly refused or rejected, the Tribunal has to make calculations on the basis of its decisions on those points and nothing more. It is necessary to recall that the votes which have not been rejected by the returning officer under r. 56 have to be treated as valid, unless the contrary is specifically pleaded and proved. Therefore, we do not think that Mr. Kapoor is justified in contending that the observations in Hari Vishnu Kamath 's case support his plea that the enquiry under section 100(1)(d)(iii) is wide enough to take in the scrutiny of the validity of all voting papers. In Keshav Laxman Borkar vs Dr. Devrao Laxman Anande(1) this Court has pointed out that the expression " valid votes" has nowhere been defined in the Act, but in ,the light of the provision of section 3 6 (8 ) of the Act read with rule 58, two things are clear, first that the candidates are validly nominated candidates whose nomination papers are accepted by the returning officer after scrutiny, and second that the provision of section 58 provides that the ballot papers which are not rejected under r. 57 are deemed to be "valid ballot papers" and are to be counted as such. It appears that the position under the English Law in regard to the recounting of votes in proceedings under election petitions is substantially similar. As Halsbury points out: "where a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, either party must, six days before that appointed for the trial, deliver to the master, and also at the address, if any, given by the other side, a list of the votes intended to be objected to and of the heads of the objection to each of those votes(1)". It further appears that no evidence may be given against the validity of any vote or under any head not specified in the list, unless by leave of the Court upon such terms (1) (2) Halsbury 's Laws of England, p. 306 paras. 553 & 554. 72 as to amendment of the list, postponement of the enquiry, and payment of costs as may be ordered. Where no list of the votes, to which it is intended to take objection, has been delivered within the time specified, the Court has no power to extend the time or to allow evidence of the votes objected to or of the objections thereto to be given at the trial. Therefore, it seems clear that in holding an enquiry either under section 100(1)(d)(iii) or under section 101, where section 97 has not been complied with, it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity. In the result, the appeal fails and is dismissed. We would like to add that though we have accepted the construction of section 100(1)(d)(iii) and section 101 for which Mr. Garg contended, no relief can be granted to the respondent, because his application for special leave to appeal against the decision of the High Court has been dismissed since he was unable to make out a sufficient cause for condoning the delay made by him in preferring the said application. In the circumstances of this. case, we direct that the parties should bear their own costs. We ought to mention that when this appeal was argued before us on the 4th December, 1963, we were told that them fresh election which had been ordered to be held in accordance with the decision of the High Court was fixed for the 6th December, 1963; and so, after the case was argued, we announced our decision and intimated to the learned Advo cates that our reasons will follow. The present judgment gives the reasons for our decision. AYYANGAR J. While I agree that the appeal deserves, to be dismissed for reasons which I shall indicate later, I regret my inability to agree with the construction which my learned brethren have placed on section 100 (1) (d) (iii) of the Representation of the People Act which for shortness I shall call the Act. on which in ultimate analysis the question of law arising in the appeal turns. The facts of the case which have given rise to the proceeding as well as the points involved in the appeal have all been set out in detail in the judgment of Gajendragadkar J. and I consider it unnecessary to repeat 73 them. I shall accordingly state only those facts which are relevant for the purpose of: (1) the construction of section 100(1) (d) of the Act, and (2) the conclusion I have reached that the appeal should be dismissed. The appeal arises out of a contested election to the Morena Constituency of the Madhya Pradesh Legislative Assembly. The polling for the election took place on February 21, 1962 and there were as many as seven candidates who participated in that poll. The appeal is, however, concerned only with two of them Genda Lal and Jabar Singh the latter being the returned candidate and is the appellant before us. The voting procedure adopted was that set out in rule 39, Conduct of Election Rules, 1961, which I shall hereafter refer to as the Rules, under which the voter makes a mark on the ballot paper on or near the symbol of the contesting candidate to indicate his choice. On the first count of the ballot papers the Returning Officer computed the valid votes obtained by Genda Lal as 5,703 as against 5,671 which had been counted in favour of Jabar Singh. Jabar Singh, however, immediately applied for a recount under rule 63 of the 'Rules on the ground that the original scrutiny and counting were defective and this, though opposed, was acceded to by the Returning Office r who carried out a recount. I might mention in passing that the Election Tribunal has found discrepancies. even in the total of the number of ballot papers in some of the polling stations, the figures of the total number of valid votes in 6 polling stations being different from those found in the result sheet prepared under rule 57(2) in Form 20. The scrutiny and recount disclosed that Genda Lal was found to have polled 5,654 votes as against 5,656 votes counted as having been obtained by Jabar Singh. As a result of this recount Jabar Singh was declared elected, he having obtained 2 votes more than his rival Genda Lal. Genda Lal thereupon filed the election petition which has given rise to this appeal in which he sought to have the election of Jabar Singh declared void and also made a claim to the seat. The election was sought to be set aside on various grounds but we are concerned in this appeal 74 solely with one of the them viz., the correctness of the scrutiny and counting of votes at the recount vis a vis the petitioner and the returned candidate. Shortly stated, the allegation in this respect in the election petition was that 49 valid votes cast in favour of the petitioner (who is the respondent before us) were improperly rejected and that 32 votes were improperly accepted in favour of the returned candidate who is the appellant before us. Needless to add these allegations were denied by the returned candidate. Besides the denial, he also pleaded in his written statement that many votes cast in favour of himself had been wrongly rejected in regard to which details were given and that similarly several votes were wrongly accepted in favour of the election petitioner and in regard to which also details were given and it ended with the prayer that if a proper scrutiny and recount were made of the valid votes received by each, it would be found that he 'the returned candidate had. in fact, obtained a larger number of votes than the election petitioner and for this reason he submitted that the election petition ought to be dismissed. Though Genda Lal had by his election petition, besides seeking the relief of having the appellant 's election declared void, claimed the seat for himself under section 84 of the Act, none of the respondents to the petition including the appellant had filed any recrimination in conformity with the provisions of section 97 of the Act against the grant of such further relief and it is the effect of this failure on the rights of the parties that forms the principal point for consideration in the appeal. The Election Tribunal who inquired into the petition framed the necessary issues arising out of these pleadings. Issue 6(a) dealt with the allegation in the petition that 49 valid votes cast in favour of Genda Lal had been improperly rejected. After examining the evidence adduced and considering the validity of those votes in regard to which a dispute was raised, the Election Tribunal recorded the finding that not 49 but only 10 votes of Genda Lal had been improperly rejected. In regard to the question of the improper acceptance of 32 votes cast in favour of Jabar 'Singh which was covered by issue 6(b), the Tribunal found, again after going through the evidence in respect of the 'particular votes in dispute, that not 32 but only 4 had been 75 improperly accepted. The result of these findings on issues 6(a) and 6(b) was that the total number of valid votes polled by Genda Lal became 5,664 as against 5,652 polled by Jabar Singh. The Tribunal consequently held that the ,election of Jabar Singh who had obtained a minority of votes compared to Genda Lal must be declared void under section 100(1)(d)(iii). So far we are on non controversial ground except this that on this state of the voting Genda Lal claimed that he was entitled to the further relief that he be declared elected having obtained the majority of lawful votes satisfying the requirement of section 101(a). The Election Tribunal refused him that relief for reasons which it is unnecessary to set out ,or discuss and that decision having been affirmed by the High Court in appeal and the special leave prayed for to appeal from that decision of the High Court having been dismissed by us, the possibility of the disallowance of this additional relief does not require to be further noticed. The question about the scope of section 100(1)(d)(iii) and its relative place in the scheme of sections 97, 100 and 101 of the Act arises out of the plea made by Jabar Singh that without reference to the irregularities in the counting of the 49 and the 32 votes alleged by Genda Lal and which he had denied, and which were the subject matter of issues 6 (a) and 6 (b) to which I have already adverted, there were other irregularities in the scrutiny and counting which, if examined, would establish that after every error was eliminated, he himself had obtained a majority of 'lawful votes. The question of law that was debated before us was whether on the scheme of the Representation of the People Act, 1951, Jabar Singh was entitled to make such a plea and claim to adduce proof in support thereof in order to sustain his election without filing a recrimination under section 97 of the Act. My learned brethren have held that he could not and it is on that point that I do not find it possible to agree with them. The correct answer to this question would depend. it is common ground, on a proper construction of s.100(1)(d)(iii) read in conjunction with section 101(a). and 76 this I shall first consider. I shall next deal with the place and function of section 97 in this context and its bearing on the interpretation of the provisions on which the decision of this appeal turns. Though there have been a few decisions bearing upon the question of law I have indicated, and they have all been referred to by Gajendragadkar J. it is common ground that there is no binding decision of this Court touching the matter, though some observations in Bhim Sen vs Gopali and Ors.(1) would appear to favour the construction which my learned brethren have adopted. As, however, the appeal was placed before this Bench for the consideration of this question and we have proceeded on the basis that the matter is res integra I do not propose to refer to any of these decisions but shall proceed merely to interpret the provisions without advertence to the authorities to which our attention was invited during the course of the arguments. Section 100(1) (d) reads: "100. Grounds for declaring election to be void (1) Subject to the provisions of sub section (2) if the Tribunal is of o pinion. . . . . . . (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal (1) 77 shall declare the election of the returned candidate to be void. " The short question arising for consideration in this appeal may be stated thus: In the context of the provisions contained in section 100(1)(d) which permits an election of a returned candidate to be set, aside only on proof of the "result" viz., the election of the returned candidate having been "materially affected" by the improprieties or illegalities referred to in the four clauses numbered (i) to (iv) what is the import of the words "by the improper reception, refusal or rejection of any vote or the reception of any vote which is void". For our present purposes I might omit the reference to the latter part of this provision relating to "the reception of a vote which is void" and concentrate on the earlier part. It is manifest that the jurisdiction of the Tribunal to declare an election void arises only when it is of opinion that "the result of the election has been materially affected" by the defects or improprieties set out in cls. (i) to (iv), so that if notwithstanding that impropriety or illegality of the types set out in the four clauses, the result of the election is not materially affected, the returned candidate is entitled to retain his seat. With this preliminary observation I shall proceed to consider the import of the relevant words. "materially affected by the improper reception, refusal or rejection of any vote" first in a case where there is no complication arising from the petition claiming the seat in 'addition to the relief of having the election of the returned ,candidate declared void. The argument strenuously pressed before us by Mr. Garg learned counsel for the respondent was, that the Tribunal in considering whether the result of an election had been materially affected, was confined to the consideration of any impropriety alleged as regards the reception of the votes of the returned candidate as well as improprieties alleged by the petitioner in. the refusal or rejection of votes stated to have been cast in favour of the petitioner and the denials of these charges or allegations by the returned candidate. His further submission was that the returned candidate could not sustain his seat by showing a similar improper reception of votes in favour of the 78 petitioner or an improper refusal or rejection of his own votes. In other words, the argument was that the Tribunal dealing with a petition under section 100(1)(d) bad jurisdiction to proceed only on the allegations made in the petition and that even where a case had been established for a scrutiny, and a recount is ordered, it would be so confined and that its jurisdiction would not extend to cases of complaints by the returned candidate. It is this argument that I feel unable to accept. When an election petition is filed complaining of the improper reception or rejection of votes and praying for a scrutiny of the ballot papers for the purpose of determining whether the votes have been properly counted by the Returning Officer, the Tribunal would doubtless have to be satisfied that a case is made out for scrutiny and a re count, for it is settled law that the petitioner is not as a matter of right entitled to have such a scrutiny and recount merely because he prays for such a relief, but has to allege, make out and prove the specific grounds to establish that the scrutiny or counting was improper and that the return, was in consequence erroneous. If one reaches that stage and the Tribunal is satisfied that a case for scrutiny and recount is made out it would mean that the Returning Officer had not discharged his duties properly in the matter of the scrutiny of the ballot papers and their counting. If in such circumstances the respondent (the returned candidate ) also makes allegations of the same type regarding the scrutiny and the counting I consider it would be unjust to deprive him of the opportunity of proving his allegations and thus maintain his seat, unless of course, the statutory provision clearly precludes him from doing so. In saying this I am not suggesting that the respondent need make no averment in his pleadings making definite allegations regarding the particular votes regarding which he desires scrutiny and which he says have been wrongly counted either for or against him. Let us take a case where the allegation of the petitioner is that there has been a miscount i.e., a wrong counting of the votes of the returned candidate and nothing more. Let us suppose that A has been declared elected as having secured, say 200 votes as against B who has secured 190. If B in his election petition says that 79 A 's votes have been wrongly counted as 200, whereas, in fact, if they were recounted they would only be 180 and the Tribunal on a recount finds the allegation in the petition made out and that the returned candidate had obtained only 180 votes the acceptance of Mr. Garg 's argument would mean that the election of A would have to be set aside not withstanding that there has been a similar mistake in the counting of B 's votes and if these were properly counted they might not amount to more than 170. Mr. Garg submitted that though if B claimed the seat there would have to be a recount of the votes of both the candidates and this also, only in the event of a recrimination being filed under section 97, still if no seat was claimed the election 'of the returned candidate would be set aside and that the latter had no means whereby he could maintain his election notwith standing that as a fact he had obtained a majority of lawful votes. It is urged that this result flowed from the opening words of section 100(1)(d) which speaks of "the result of the election" being materially affected "so far as it concerns a returned candidate". I do not find it possible to agree with the construction or reasoning on which the submission is based. There is, no doubt, that an election petition is primarily concerned with the validity of the election of the returned candidate. It cannot also be disputed that the election of the returned candidate cannot be declared void, unless, confining oneself to the impropriety or illegality involved in the reception or refusal of votes, the returned candidate is proved to have obtained a minority of votes, for otherwise whatever be the impropriety or its degree or extensiveness, the result of the election would not be materially affected. It is common ground and beyond con troversy that the election petitioner is not restricted as regards the manner or details of the improper reception or refusal of votes which he could allege and prove which would achieve that result. If so much is conceded and is common ground, I do not see any force in the contention that the returned candidate is confined merely to disproving what is alleged to dislodge him from his seat and is for bidden from proving that votes which under the law had to 80 be counted in his favour, have been wrongly omitted to be so counted. The words in cl. (iii) do not impose any such restriction, for they speak of the "improper reception or refusal of any vote", and as the inquiry under section 100(1)(d) is for ascertaining whether the result of the election has been materially affected which in the context of cl. (iii) obviously means "the returned candidate has been proved not to have obtained, in fact, a majority of valid votes", there appears to me no scope for the argument pressed before us by Mr. Garg. On an analysis of the situation the position would appear to be this. Let us for instance assume that the voting procedure adopted in an election was that prescribed in rule 59 i.e., by placing the ballot papers in the ballot boxes set apart for the different contesting candidates. The returning officer counts the valid votes cast in the several boxes and declares A elected as having secured 200 votes as against B whose votes are counted as 198. If B files a petition and alleges that the counting was irregular, that the totals of the ballot papers in the result sheet are not properly computed, and that as a matter of fact A 's papers, if counted, would be 196, Mr. Garg 's submission is that though the discrepancy disclosed in the totals is consider able, A cannot prove that there has been a miscounting of B 's votes also, and that though if properly counted his total is only 190,, still A 's election should be set aside. It is said that the position would be different and the anomaly would be overcome in cases where the election petitioner, besides claiming a declaration that the election of the returned candidate is void, also seeks a further declaration that he should be declared duly elected and the returned candidate files a recrimination against such a prayer and challenges the right to have the further declaration. This, however, obviously furnishes no answer for more than one reason. It is the submission of Mr. Garg, and that is the whole basis upon which the construction which he desires us to adopt of section 100 (1) (d) (iii) turns, that the question raised by the recrimination arises only after the election of the returned candidate is declared void. Therefore we would have the anomalous situation wherein the election of the returned candiate is declared void by reason of his 81 not obtaining the majority of valid votes so far as the decision under section 100(1)(d) is concerned and then after the matter ,set out in the claim to the seat and the recrimination is inquired into and decided the election tribunal holds that the returned candidate had a majority of lawful votes but that this affected only the right of the defeated candidate to claim the seat. In my judgment the provisions of section 100 read with section 101 do not contemplate this position of a candidate 's election being set aside because he did not get a majority of lawful votes but in the same proceedings and as part of the same inquiry he being held to have obtained a majority of lawful votes. A construction of section 100 (1) (d) which would lead to this result must, in my opinion, be rejected as unsound. The apart, there is the further circumstance arising from 'the fact that according to Mr. Garg the enquiry in respect of a recrimination and its defence is identical with what he says is the scope of a petition and its defence. This, of course, is logical, but it suffers from the same anomaly which I have pointed out as resulting from the acceptance ,of the primary argument regarding the construction of section 100(1)(d)(iii). Applying what I have shown already regarding a case where there was no claim to a seat in an election petition in which the election of a returned candi date has to be declared void, notwithstanding that he had, in fact, obtained a majority of valid votes, because he is precluded from proving this fact, similarly in cases where a seat is claimed, the petitioner so claiming would have to be declared elected, notwithstanding that as a fact he has not obtained the majority of lawful votes, but that the returned candidate has obtained such a majority, because the latter is precluded from proving it. If one took a case where there were more candidates than two, the anomaly I have indicated would be seen clearly. If B files a petition against A the returned candidate claiming the seat and impleads as he must C & D who are the other contestants, 'no proof could be led by A to show that some of his own votes have been counted for C or D, though B would be entitled to prove that some of C 's or D 's votes have been wrongly counted as cast in favour of A. In such a case 134 159 S.C. 6. 82 it is obvious that B gains no advantage by recriminating, because recrimination under section 97 could only be against A and not against the other contesting candidates impleaded as respondents. The result, therefore, would be that though, in fact, A has obtained the majority of lawful votes, B, the petitioner, will be declared elected recrimination or no recrimination. I cannot accept the position that either section 100(1)(d)(iii) or section 101(a) contemplate this result which is at once so unjust and anomalous and appears to me. to contradict the basic principles underlying election law viz., (1) that apart from disqualification, corrupt practices etc. , the election of a candidate who obtains the majority of valid votes shall not be set aside, and (2) no candidates shall be declared duly elected who has not obtained the majority of valid votes. I would add that the entire argument proceeds on a mis conception of the procedure involved in a scrutiny. I will take the case where the voting takes place, as in the case of the election before us, in accordance with the provisions of rule 39. Then conformably to Rule 57(3) all the ballot papers which have been held to be valid in each polling station are bundled up and sealed by the Returning Officer, and similarly all the rejected ones of each station are made into another bundle. At the scrutiny by the Tribunal these two sets of bundles are examined to find out whether the votes cast in favour of each of the contesting candidates have been properly counted or not. How this can be done compartmentally, as those cast for A or B or C separately as is suggested by Mr. Garg, I am unable to follow. If the votes cast in favour of each candidate were made into separate bundles, then at least, there might be scope for an argument that the bundle of A or B shall not be opened up, but when all the voting papers have to be scrutinised in order to find out (a) whether the returned candidate has really been proved to have received a minority of valid votes and (b) whether the candidate claiming the seat has obtained a majority of valid votes, this cannot obviously be done without an examination of the ballot papers to which objection is taken and which are contained in the two types of bundles into which these are made up under rule 57(3). 83 Support was sought by Mr. Garg for the construction that he sought to press upon us by reference to the provisions in the other sub clauses of section 100 (1) (d). His point was that if the returned candidate could not put forward the objections contained in those clauses the returned candidate could not likewise allege improprieties in the reception of the votes of any other candidate including the petitioner. I am wholly unimpressed by this argument which does not take into account both the nature of the objections in these other clauses as well as their bearing on the question whether the election of the returned candidate has been materially affected, which is the prime question for consideration in the provision and which furnishes the key to the interpretation of the sub clause now under consideration. Let me take each of the cases provided by the other sub clauses. Sub cl. (i) deals with the improper acceptance of a nomination. It is obvious that allegations and proof by the returned candidate regarding the improper acceptance of a nomination cannot serve to sustain his election. A fortiori so, clause (ii) which reads "(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or" could have no meaning in the present context nor cl. (iv) unless the non compliance has a bearing on the reception of votes in which case it would be wholly covered by cl. (iii). In the case of cls. (i), (ii) and (iv) it is obvious, having regard to the very nature of the provisions, that the returned candidate can do no more than prove (a) that there was no such impropriety or illegality as is alleged, and (b) that even if there was, the same had not affected the result of his election; in other words, that the impropriety or illegality, if any, was inconsequential so far as his election was concerned. But this would not be the position in regard to the improper reception or rejection of votes. There we have two factors: (1) the impropriety of the reception or rejection, and (2) whether as a result of such improper reception or rejection the result was materially affected. In the case contemplated by cl. (iii) the question whether the result was materially affected or not could not, when 84 the facts are ascertained, be a matter of doubt or dispute but would be one merely of arithmetical calculation and comparison. No doubt, section 100 of the Act casts on the election petitioner the onus of establishing to the satisfaction of the Tribunal that "the result of the election was materially affected" by the impropriety etc., and taking the case of cl. (iii) in hand, of improper reception or rejection of particular votes, but from this it does not follow that the returned candidate is powerless to establish to the satisfaction of the Tribunal that notwithstanding the improper reception or rejection of the particular votes alleged by the petitioner his election has not been materially affected. The argument of Mr. Garg, if accepted, would mean that the returned candidate can merely combat the case alleged against him and is disabled from establishing positively that the result of the election has not been materially affected. If the key words of the provision on the fulfilment of which alone the Tribunal is invested with jurisdiction to set aside an election are taken to be the words "The result of the election has been materially affected. " I do not consider that it is possible to contend that it is beyond the power of the returned candidate to establish this fact which he might do in any manner he likes. He might do this by establishing that though a few votes were wrongly counted as in his favour, still a larger number of his own votes were counted in favour of the petitioner or that votes which ought to have been counted as cast for him, have been improperly counted as cast in favour of defeated candidates other than the petitioner. Without such a scrutiny it would manifestly not be possible to determine whether the election of the returned candidate has been materially affected or not. Nor do I see anything in the language of cl. (iii) which precludes the returned candidate from establishing this. This clause employs the words "improper reception, refusal or rejection of any vote" to confine oneself to its first part. No doubt, when a petitioner complains of a rejection, he obviously means an improper rejection of votes in his own favour and when he speaks of an improper reception he means also obviously an improper reception of votes in favour of the returned candidate. But from this it does not follow that there might not be an improper reception of votes in favour 85 of the election petitioner or of another candidate or of an improper rejection of votes of the returned candidate the clause does not speak of the person in whose favour or as against whom the improper reception or rejection has taken place, its content and significance have to be ascertained from the purpose for which the provision is intended viz., to determine from a counting of the voting papers after a scrutiny whether the election of the returned candidate has been materially affected. For instance, let me take a case within section 100(1)(d)(i) where there has been an improper acceptance of any nomination. The question arises as to whether the election of the returned candidate has been materially affected by that improper acceptance. Obviously, a nomination which is alleged to have been improperly accepted and which is the subject of the charge under s.100 (1) (d) (i) is not the acceptance of the nomination either of the election petitioner where he has been one of the candidates or of the returned candidate but only of one of the other defeated candidates. If after inquiry the nomination is found to have been improperly accepted and the Tribunal proceeds to inquire as to its effect on the election, I take it, it would necessarily have to consider the votes received by that candidate. If this is not to be done it would either mean that in every case of an improper acceptance of a nomination the election is to be declared void or that in no case can such a declaration be made. Now, if the votes cast in favour of that candidate whose nomination was improperly accepted have to be counted, necessarily there has to be a scrutiny and the Tribunal would have to inquire and ascertain the number of valid votes cast for that candidate in order to determine whether the improper reception of votes in favour of that candidate has materially affected the result of the election i.e., has resulted in the election of the returned candidate. In that context the scrutiny of the improper reception of the votes in favour of such candidate would obviously have to take place and that could be done only by virtue of the provision in section 100 (1) (d) (iii). This would at least show that the expression of "any vote" in the clause has to be read as meaning 'any vote cast in the election with which the petition is concerned ' and not 'any vote cast in favour of the returned 86 candidate ', to take the illustration merely of the improper reception of a vote. The construction which I have placed on section 100(1)(d) (iii) would harmonise the provision contained in the opening words of section 100 (1) (d) and section 101 (a). I cannot reasonably conceive of the law providing (unless of course the language employed leaves me no alternative) for the setting aside of an election of the returned candidate because the Tribunal finds that he did not receive the highest number of valid votes cast at the election; but that after this stage is over and the Tribunal proceeds to consider whether the claim to the seat is made out or not its reaching the finding that such a petitioner is not entitled to that relief because on further scrutiny, the returned candidate had, in fact, secured the highest number of votes. Mr. Garg, no doubt, contemplated this anomaly with equanimity suggesting that it was due not to any anomaly at all but a situation arising merely from the application of different tests or being the result of inquiries directed to different ends at different stages of the petition. It is this that I am unable to reconcile myself to. The language used in section 101 (a) is, no doubt, "in fact received the majority of the valid votes". I do not, however, consider that the use of the words 'in fact ' involves scrutiny of a type different from that which the Tribunal conducts for ascertaining whether by reason of the improper reception or rejection of votes the election of a returned candidate has been materially affected so as to justify its being set aside. The inquiries are identical. If every vote which has been improperly received is eliminated and every vote which has been improperly refused or rejected is added you get the totality of the valid votes cast in favour of a candidate. That is precisely the inquiry which is prescribed to be conducted under section 100(1)(d) read with cl. (iii). The words 'in fact ' used in section 101 (a) to my mind do not add any new element as regards either the scrutiny or the counting. If so, on the construction which I have endeavored to explain, when once it is ascertained that the returned candidate has obtained a majority of valid votes there is no question of his election having to be set aside. But it might be shown that he had not obtained the 87 majority of valid votes. in other words, by the scrutiny that has taken place in order to test the validity of his election the Tribunal might have arrived at a conclusion that he had not received the majority of valid votes. Immediately that stage is reached and that conclusion is arrived at the Tribunal proceeds to declare the election void. If there, is no claim to a seat there is nothing more to be done, with the result that it stops with declaring the election void in which event there would be a re election. If, however, the seat is claimed by a defeated candidate or on his behalf there has to be a further inquiry which the Tribunal is called upon to conduct. For the purpose of declaring the election void the Tribunal would have arrived at the figures, ,of the valid votes cast in favour of the several candidates. It might be that the petitioner who made the claim to the. seat or the person on whose behalf that is made might not have obtained the highest number of valid votes in which ,case, of course, a claim to the seat would be rejected. It is this situation which is indicated by section 101(a). It provides that there cannot be a declaration in favour of the claimant to a seat merely because the election of the returned candidate has been declared void but he must in addition have secured the majority of the lawful votes cast. A question might arise as to how this total is to be ascertained. It is obvious that for this purpose the Tribunal ought to scrutinise not merely the ballot papers of the claimant and the returned candidate but also of the other candidates. Thus, for instance, taking the case only of the petitioner who is a claimant, among the votes counted in his favour might be some which were really votes east in favour of a defeated candidate and similarly votes properly cast for him might have been improperly counted as the votes of the other defeated candidates. Undoubtedly the irregularities would have to be pleaded, but I am now concerned with whether even if pleaded, the Tribunal would on a proper interpretation of sections 100 and 101 have jurisdiction to entertain the pleas and embark on such a scrutiny. Proceeding then on the footing that the necessary averments have been made in the pleadings filed there would have to be a scrutiny of the ballot papers before it can be ascertained whether or not the, person who or on whose behalf the seat is claimed has obtain 88 ed a majority of valid votes in order to sustain the claim to. the seat. After this stage is passed and the Tribunal has reached the conclusion that the claimant has, in fact, received the majority of valid votes that the Tribunal embarks on the further inquiry as to whether there are any reasons why he should not be declared elected. And it is at this stage that the provisions of section 97 in regard to recrimination come into play. If no recrimination is filed then on the terms, of section 101(a) the claimant would be immediately declared elected but if there is a recrimination then section 101(b) is attracted and the Tribunal would have to inquire whether if the claimant were a returned candidate there are circumstances in which his election could be declared void. This, would indicate that the recrimination is concerned with a stage which emerges after the scrutiny is completed and assumes that the scrutiny has resulted in the claimant being found to have obtained the majority of valid votes. This construction would harmonise the provisions of sections 97, 100 (1(d) and 101 and would lead to a rational result. This brings me to a submission based upon rule 5 7 (1) to which reference was made by Mr. Garg. He referred us to the words of that rule reading: "Every ballot paper which is not rejected under Rule 56 shall be counted as one valid vote" as throwing some light on the construction of section 100(1)(d) (iii) and as favouring the intrepretation which he invited us to put upon the provision. I consider that the rule has no bearing at all upon the point now in controversy. Rule 57 occurs in Part V of the Rules beginning with rule 50 which is headed 'Counting of votes in Parliamentary and Assembly Constituencies. ' Rule 55 prescribes the scrutiny at the time of the opening of the ballot boxes and rule 56 with the scrutiny and rejection of ballot papers. This last rule lays down which shall be deemed to be a valid vote on a ballot paper and which is not and directs the Returning Officer to follow these directions and make the counting. And it is in that context that we have rule 57 and the provision in sub r. It obviously means only that so far as the Returning Officer is concerned and for the purpose of enabling him to declare the result the ballot papers which are not rejected are to be 89 deemed as valid. It is manifest that if that validity held good even at the stage of the election petition and for the conduct of the inquiry before the Tribunal, that could really be no scrutiny of the ballot papers and section 100 (1) (d) (iii) would become meaningless. The meaning of rule 57(1) is only this that ballot papers not rejected shall be deemed to be valid so far as the Returning Officer is concerned and even as regards himself it is subject to the provision in rule 63 under which a recount may be demanded and granted. His decision has, of course, prima facie validity at the stage of the inquiry by the Election Tribunal because the impropriety of his acceptance or refusal has to be pleaded and proved by the party objecting to this scrutiny and it is only if the Tribunal finds the impropriety established, that the vote would be differently treated or counted. It appears to me to be clear therefore that rule 57 does not bear upon the construction of section 100(1)(d)(iii) or of section 101 (a) for which purpose reliance was placed upon it. The next question that arises is the result of the construc tion which I have endeavoured to explain of the relevant provisions of the Act and now I shall set out a few further findings of the Election Tribunal which bear upon the point next to be considered. The Election Tribunal found after a scrutiny of the voting papers to which objection had been made by the petitioner Genda Lal and on a recount that it resulted in Genda Lal having obtained 5,664 votes as against 5,652 obtained by the returned candidate Jabar Singh which meant that the election of Jabar Singh should be declared void. The Tribunal then proceeded to investigate the allegations made by Jabar Singh as regards the improper reception of votes in favour of Genda Lal and the improper rejection of votes in his own favour and after considering the ballot papers of the several polling stations, it arrived at the result that Genda Lal had been improperly credited with 10 votes and that Jabar Singh had been im properly denied the benefit of 12 votes cast in his favour. If this position could be sustained the result would be that Genda Lal had obtained 5,654 votes as against 5,664 votes polled by Jabar Singh which would mean that the election of Jabar Singh could not be declared void, for "the result of the election had not been materially affected. " It was this 90 that was strenuously urged before us by Mr. Kapoor learned counsel for the appellant Jabar Singh. Both the Tribunal as well as the High Court on appeal therefrom have held that because Jabar Singh had not recriminated this deduction of 10 votes in favour of Genda Lal and the addition of 12 votes in favour of Jabar Singh could not be made and consequently denied to the appellant the benefit of this finding. In view of what I have stated earlier as to the proper construction of sections (100)(1)(d)(iii) and 101(a) the absence of recrimination could not lead to this result and if this finding could be sustained I would have allowed the appeal. But this finding of the Tribunal has proceeded partly without any pleading to support it. When an objection is taken to the improper reception or refusal of a vote the facts upon which such impropriety has occurred have to be set out and the other party has to be given an opportunity to meet the case. Though there might be no express requirement of the Act or any rule made thereunder, I consider that it is implicit in the pleadings required to be filed under sections 81 to 83 of the Act read with the frame of section 100 that a party who alleges an impropriety or error in the scrutiny by the Returning Officer, and needless to add this would apply to every allegation of impropriety or illegality by whosoever committed, must specify with particularity the grounds of attack on the action of the Returning Officer in regard to the scrutiny of the ballot paper or the counting. In the present case it is admitted that though in his written statement, the appellant Jabar Singh challenged the propriety of the reception of certain votes in favour of Genda Lal and the improper rejection of some of his own votes, he did not specify all of these in regard to which impropriety has been found by the Tribunal. The Tribunal has, as I have already stated, found that 10 ballot papers whose numbers have been specified ought not to have been counted in favour of Genda Lal. But of these, it is now admitted, that in regard to 6 of them no plea had been made in the written statement, with the result that only 4 votes could be taken into account as having been wrongly counted, bearing in mind the pleading in the case. Similarly, as regards the rejection of Jabar Singh 's votes the Tirbunal, as stated eariler, has found that 12 votes ought to have been counted in his favour. Of these, however, the written statement con 91 tained allegations only as regards 6 and not as regards the rest. This would mean that the Tribunal had no jurisdiction to find that more than 6 votes had been improperly rejected in his case. If the votes regarding which no plea of impro priety had been raised by Jabar Singh were eliminated, it would follow that as a result of the final scrutiny Genda Lal had obtained properly 5,660 valid votes as against 5,658 polled by Jabar Singh. The result of the election, therefore, was materially affected by the improper reception or refusal of votes and therefore I consider that the election of Jabar Singh was properly set aside and that is why I concur in the order that the appeal should be dismissed. Appeal dismissed.

IN-Abs

The appellant was 'declared elected having defeated the respondent by 2 votes. Thereafter, the respondent filed an election petition. The respondent challenged the validity of the appellant 's election on the ground of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself. His prayer was that the appellant 's election should be declared void and a declaration should be made that the respondent was 'duly elected. The appellant urged before the Tribunal that there had been improper rejection of his votes and improper acceptance of the votes of the respondent, and his case was that if recounting and re scrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this course; his case was that since the appellant had not recriminated nor furnished security under section 97 of the Act, it was not open to him to make this plea. The Tribunal rejected the objection of the respondent and accepted the plea of the appellant. The Tribunal re examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had not secured a majority of votes. The Tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected. Both the appellant and the respondent preferred appeals before the High Court against the decision of the Tribunal. The High Court dismissed both the appeals and the decision of Tribunal was confirmed. Hence the appeal. Held: (i) The scope of the enquiry in a case falling under section 100 (1) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in 'deciding whether the election of the returned candidate has been materially affected or not. At this enquiry the onus is on the petitioner to prove his allegation. Therefore, in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of section 100 (1)(d) itself. In fact, section 97(1) has no application to the case falling under section 100(1)(d) (iii); the scope of the enquiry is limited for the simple reason that what 55 the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. (ii) There are cases in which the erection petition makes a double claim; it claims that the election of a returned candidate is void and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that section 100 as well as section 100(1) would apply, and it is in respect of the ,additional claim for a declaration that some other candidate has been duly elected that section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case. The result of section 97(1) therefore, is that in dealing with a com posite election petition the Tribunal inquires into not only the case made out by the petitioner, but also the counter claim made by the returned candidate. In this connection the returned candidate is required to comply with the provisions of section 97(1) and section 97(2) of the Act. If the returned candidate does not recriminate as required by section 97, then he cannot make any attack against the alternative claim made by the petitioner. In other words the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. (iii) The pleas of the returned candidate under section 97 of the Act,have to be tried after a declaration has been made under section 100 of the Act. The first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by section 100(1)(d) (iii) and the latter part of the enquiry which is governed by section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under section 97(1). But ,even in cases to which section 97 applies, the enquiry necessary while dealing with the dispute under section 101(a) will not be wider if the returned candidate has failed to recriminate, and in a case of this type the duty of the Election Tribunal will not be to count and scrutinise all the votes cast at the election. As a result of r. 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under r. 56 constituted one valid vote and it is on that basis the finding will have to be made under section 101(a). Therefore, it is clear that in holding an enquiry either under section 100(1)(d) (iii) or under section 101 where section 97 has not been complied with it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity. Inayatullah Khan vs Diwanchand Mahajan, and Lakshmi Shankar Yadav vs Kunwar Sripal Singh, overruled. Bhim Sen vs Gopali and Ors. , relied on. Vashist Narain Sharma vs Dev Chandra, ; , Hari Vishnu Kamath vs Syed Ahmed Ishaque, [1955] 1 S.C.R. 1104 and 56 Keshav Laxman Borkar vs Dr. Devrao Laxman Anande, , 'discussed. Per Ayyangar J. (i) Section 100 of the Act casts on the election petitioner the onus of establishing to the satisfaction of the Tribunal that "the result of the election was materially affected by the improper reception or rejection of particular votes", but from this it does not follow that the returned candidate is powerless to establish to the satisfaction of the Tribunal that notwithstanding the improper reception or rejection of the particular votes alleged by the petitioner his election has not been materially affected. If the key words of the provision on the fulfillment of which alone the Tribunal is invested with jurisdiction to set aside an election are taken to be the words "the result of the election has been materially affected"; it is not beyond the power of the returned candidate to establish this fact which he might do in any manner he likes. The returned candidate might do this by establishing that though a few votes were wrongly counted as in his favour, still a large number of his own votes were counted in favour of the petitioner or that votes which ought to have been counted as cast for him, have been improperly counted as cast in favour of defeated candidates other than the petitioner. Without such a scrutiny it would manifestly not be possible to determine whether the election of the returned candidate has been materially affected or not. There is nothing in cl. (iii) which precludes the returned candidates from establishing this. As this clause does not speak of the person in whose favour or as against whom the improper reception or rejection has taken place, its content and significance have to be ascertained from the purpose of which the provision is intended viz., to determine from a counting of the voting papers after a scrutiny whether the election of the returned candidate has been materially affected. The expression "any vote" in this clause has to be read as meaning "any vote cast in the election with which this petition is concerned" and not "any vote cast in the favour of the returned candidate". (ii) Section 101(a) provides that there cannot be a declaration in favour of the claimant to a seat merely because the election of the returned candidate has been declared void but he must in addition have secured the majority of the lawful votes cast. It is obvious that for this purpose the Tribunal ought to scrutinise not merely the ballot papers of the claimant and the returned candidate but also of the other candidates. When the Tribunal has reached the conclusion after scrutiny of votes that the claimant has, in fact, received the majority of valid votes, the Tribunal embarks on the further enquiry as to whether there are any reasons why he should not be declared elected And it is at this stage that the provisions of section 97 in regard to recrimination came into play. If no recrimination is filed then on the terms of section 101(a) the claimant would be immediately declared elected but if there is recrimination the provision of section 101(b) is attracted. This construction would harmonise the provision of sections 97, 100(1)(d) and 101. and would lead to a rational result. 57 (iii) Rule 57(1) means that so far as the returning officer is concerned and for the purpose of enabling him to declare the result the ballot papers which are not rejected are to be deemed as valid. It is manifest that if that validity held good even at the stage of the election petition and for the conduct of the enquiry before the Tribunal that could really be no scrutiny of the ballot papers and section 100(1)(d) (iii) would become meaningless. The validity of the Ballot Paper can be challenged in Election Petition by making proper pleadings and the Tribunal can declare any ballot paper as improperly received. Rule 57 does not bear upon the construction of section 100(1)(d) (iii) or of section 101(a).

Appeal No. 1041 of 1963. Appeal by special leave from the judgment and order, dated September 2, 1963, of the Punjab High Court (Circuit Bench) at Delhi in L.P.A. No. 119 D of 1963. S.T. Desai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. H.N. Sanyal, Solicitor General of India and B. P. Maheshwari, for the respondent. 183 January 9, 1964. The Judgment of the Court was delivered by HIDAYATULLAH J. This is an appeal by special leave against the order of the High Court, Punjab, dated August 14, 1963, by which an order of the Rent Controller under section 15(1) of the Delhi Rent Control Act, 1958, directing the appellant to deposit back rents at Rs. 300 per month from 1st July, 1957, was confirmed. The High Court granted the appellant one month 's time from the date of its own order, as the original time had already run out. The appellant is an advocate, who is practising at Delhi. He is occupying No. 43, Prithvi Raj Road, New Delhi as a tenant, and his landlord Seth Kirori Mal Luhariwala is the respondent in this appeal. The tenancy commenced on July 28, 1957, and the memorandum of tenancy, dated July 1, 1957, produced in the case, shows that the premises were taken on a monthly tent of Rs. 300. The memorandum also contains other terms which need not be mentioned here, because they are not relevant to the present appeal. It appears that Seth Kirori Mal was in arrears in payment of his income tax, and a sum of Rs. 39,00,000 was outstanding from him. On October 31, 1957, the Income tax Officer Central Circle, New Delhi, to whom all cases of Seth Kirori Mal were transferred, issued a notice to the appellant under section 46(5A) of the Indian Income fax Act directing him to deposit with the Income tax Officer all sums due by way of rent as also future rents. The appellant sent no reply to this notice. He had, however,on September 29, 1957, addressed a letter to the respondent Seth Kirori Mal. The reply of Kirori Mal, dated October 15, 1957, figured in the arguments a great deal, and as it is brief, it may be quoted here: "From TO Dated Faigarh, the 15th October, 1957, 184 Dear Sir, With reference to letter No. M 17 58, dated 29th September, 1957, 1 am to write that you may please adjust six months rent of 43, Prithviraj Road, New Delhi, i.e., Rs. 1800 (rent from 1 10 57 to 31 3 1958) towards your professional fee in part payment thereof. The balance of your fee will be paid later at the time of final settlement. Yours faithfully, (Sd.) Paluram Dhanania, For Kirorimal Luhariwala. Kirori Mal also sent a receipt, dated October 16, 1957, or the amount, and is item 23 in the record. Kirori Mal had litigation in Calcutta. He had brought a suit against four defendants, claiming the present property as his "absolute" and "exclusive self acquired property". The case was pending in the High Court and on May 1, 1.958, an order was made appointing one Chakravarti as a Receiver of the properties including No. 43, Prithvi Raj Road. Chakravarti also sent a notice on July 8, 1958, to the appellant demanding rent already due and also as and when due. To this notice, the appellant sent a reply on July 19, 1958. He referred to the payment of rent by adjustment towards fees for the period 1st October, 1957 to 31st March, 1958, which was the subject of the letter above. He stated that as regards rent after 1st April, 1958, he had no objection to pay the amount to the Receiver or any other claimant but regretted that it was not possible for him to make the payment because of the notice served upon him by the Income tax Officer. He asked the Receiver to get the notice withdrawn, and stated that he would be glad to remit the amount of rent to him when that was done. He also raised the question of certain other expenses which he had incurred in connection with the house which he claimed he was entitled to deduct from the rent and informed that a few repairs were, required in the house. A second letter was sent by the Official Receiver on September 5. 1959, making another demand. In his reply, dated September 14, 1959, to this letter, the appellant raised the 185 question that a sum of Rs. 23,500 was payable to him for _professional services rendered by him to Seth Kirori Mal. He stated: "You will therefore appreciate that I am entitled to adjust the rent payable against the fees due to me and the amount due to me will absorb the rent for a little over six years. Even before this Seth Kirori Mal had paid me a sum of Rs. 1800 by way of adjustment of rent towards my professional fees due. You will, therefore, kindly agree that the rent payable is adjustable against the professional fee due to me. " With this letter, he enclosed a copy of a statement of fees amounting to Rs. 23,500 which he had submitted to his ,client on February 4, 1959. The Official Receiver then in formed the appellant that the party concerned had denied the claim for fees as absolutely false, and observed in his letter that the professional fees should be the subject of some other proceeding but the rent should be paid with,out delay. He enquired if the amount of rent had been paid 'to the Income tax department in response to the notice. In his reply to this letter, on July 5, 1960, the appellant for the first time stated that there was an agreement between him and Seth Kirori Mal to adjust the rent towards his professional fees until the fees were fully paid. He offered to reduce the fees if Seth Kirori Mal had any objection, but stated that till the professional fees were recouped, no rent could be considered to be due from him. On November 25, 1960, Seth Kirori Mal applied to the High Court at Calcutta for directions to the Official Receiver to take appropriate proceedings to realise the arrears of rent from the appellant, and on December 19, 1960, the High Court appointed Seth Kirori Mal receiver in the case. Seth Kirori Mal then served a notice on December 23, 1960, on the appellant to pay the arrears of rent. To this notice, the appellant sent a detailed reply which, in substance, has been his defence in the proceedings before the Rent Controller, from which the present appeal has arisen. 186 On January 4, 1961, Seth Kirori Mal made an application under section 14 of the Delhi Rent Control Act before the Rent Controller, Delhi. In his written statement in reply to that application, the appellant pleaded that Seth Kirori Mal had no right to recover rent from him, inasmuch as a. notice under section 46(5A) of the Indian Income tax Act had. been issued by the Income tax Officer, Central Circle V, New Delhi. He pleaded that the property was in the custody of the Court, and that inasmuch as a receiver had been appointed, Kirori Mal had no locus stands to maintain the petition denying at the same time that Kirori Mal had informed him that he had been appointed a receiver of the property. The appellant also contended that under the Rent Control Act, a receiver had no right to act on behalf of the landlord. He referred to the alleged agreement by which fees were, to be recouped from rent as and when it fell due, pointing out that on an earlier occasion a sum of Rs. 1800 was allowed to be adjusted towards fees. Some other please were raised, but it is not necessary to refer to them because they were not raised before us. The notice to quit which the appellant alleged was not issued to him was filed in the Court of the Controller on May 17, 1961. The appellant was ordered to inspect it and to be ready for his statement as to the correctness of the notice. On the next date, a statement of the appellant was recorded and he denied the notice and also its receipt. The case was then set down for arguments and after hearing the arguments, the Rent Controller passed his order on July 22, 1961. The Rent Controller held that there was no proof on the file to show that the respondent had any right to make an adjustment of the rent against his professional dues. He held that the rent was not paid after March 31. With regard to the plea that a notice under section 46(5A) of the Income tax Act, 1922, had been issued. the Rent Controller observed that the amount, if deposited in his court, would not be paid to Kirori Mal unless he produced a clearance certificate from the Income tax Department. The Rent Controller also said that if in the enquiry to be subsequently made, the tenant proved that the amount of fees had to be recouped from rent. the amount would not be paid to Kirori Mal. 187 Against the decision of the Rent Controller, the appellant filed an appeal before the Rent Control Tribunal. The Rent Control Tribunal affirmed the decision of the Controller, observing that the plea taken by him that his professional fees were to come out of rent was an after thought and there was no evidence to prove that there was such an agreement between the parties. On other matters, the Tribunal expressed its agreement with the Rent Controller. The appellant then appealed to the High Court of Punjab. The High Court upheld the orders so far made and pointed out that in the letter dated July 19, 1958, to the Receiver, the appellant had not mentioned the agreement. The High Court hi ,Id that the order made under section 15(1) of the Act was proper, because it was an admitted fact that rent had not been paid to anybody from April 1, 1958. The High Court endorsed the view of the Tribunals below that the notice of the Income tax Officer did not come in the way of making the deposit of the rent in the office of the Rent Controller, because the amount was not to be paid to anyone till the Rent Controller had decided who was entitled to receive it. The appeal was therefore dismissed. In this court, emphasis is laid upon the letter of October 15, 1957, by Kirori Mal in which there was an adjustment of Rs. 1800 towards fees. It was contended that there was an oral agreement to use the rent to pay the professional fees. The letter itself does not show that there was any such agreement. In fact it shows the contrary where it says: "The balance of your fees will be paid later at the time of final settlement. " This shows that the appellant was not entitled to retain the rent in his hands, and the Tribunals below were justified in saying that the plea about the so called agreement was an after thought, because till September 14, 1959, the appel lant had not mentioned such an agreement. We are also satisfied that the plea was a mere device to retain the money and to avoid paying the rent. It must be remembered that there were as many as four claimants, viz., the Income tax Officer, the Receiver and Kirori Mal in person and Kirori 188 Mal as Receiver, but the appellant avoided each of these in turn by pointing to the others, and in this way continued to occupy the premises without payment of any rent. It was contended however as a matter of law that a proper opportunity ought to have been given to the appellant to prove his plea by leading evidence before ordering that the rent be deposited. Mr. section T. Desai contended that under section 15(1) of the Delhi Rent Control Act, an order for deposit of arrears of rent can only be made after the tenant has been given an opportunity of being heard, because if the tenant makes a payment or deposit as required of him, the landlord is entitled to take the amount of the deposit and the Controller can award such costs as he may deem fit to the landlord and the case comes to an end. By way of contrast, he pointed out that the case proceeds if the tenant fails to make the payment or deposit as required of him. In other words, it was contended that an order under section 15(1) for deposit of rent should only be made at the end of the case and not at an interlocutory stage. Mr. Desai contended that the present order was made at an interlocutory stage and it was wrong, because if the tenant deposited the money, there would be no further hearing and his plea that there was an agreement between the parties that the rent as and when it fell due should be set off against the professional fees, would remain untried. In our opinion, this reading is not permissible. Section 15 (omitting such parts as are unnecessary for the present purpose) reads as follows: Section 15. (1) In every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to subsection (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, the an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the ten 189 ant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to conti nue to pay or deposit month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. (3) If, in any proceeding referred to in subsection (1) or sub section 2), there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub section (1) or subsection (2), as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within next month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf. (6) If a tenant makes payment or deposit as required by sub section (1) or sub section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant but the Controller may allow such costs as he may deem fit to the. landlord. (7) If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. " It will be noticed that sub section (3) also contemplates 190 payment of interim rent determined by the Controller before the entire dispute is settled. Sub section (6) puts the case under sub section (1) and sub section (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under an agreement was an afterthought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunity hereafter. At the moment, he is being asked to deposit the arrears in court, which admittedly are outstanding. Mr. Desai next contended that the notice under section 46(5A) amounted to a garnishee order and the appellant could not, while the notice stood, make any payment without incurring personal liability. There was no question of a personal liability because the Rent Controller had stated in his order that the amount would not be paid to anyone till the clearance certificate was obtained from the Income tax Department. The Rent Controller had informed the income tax authorities and the appellant ran no risk in depositing the arrears of rent in the circumstances. 191 It was contended that the notice under section 46(5A) amounted to an attachment of the rent in the hands of the appellant and reference was made to the provisions of section 46 sub section 5A para 5. The argument overlooks the next para which provides: "Where a person to whom a notice under this subsection is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income tax Officer. " If there was an agreement between the parties and Kirori Mal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income tax ,Officer. The appellant did nothing in the matter except to deny the payment to everyone. He paid nothing to the Income tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord. In other words, be was trying to take full advantage of the law, when lie could have informed the Income tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income tax Department. Reference was made in this connection to a decision of the Calcutta High Court reported in Nalinakhya Bysack and another vs Shyam Sunder Halder and others(1) in which Harries C. J. observed that before making an ,order for the deposit of the rent, a full enquiry should be made. That was a case in which the tenant had pleaded that there was an agreement between him and the landlord that any amount spent on repairs would be set off against the rent. Harries C.J. held that without ascertaining the (1) A.I.R, (1952) Cal. 192 truth of the plea that a large sum had been, spent on repairs, an order to deposit the entire arrears of rent ought not to have been made. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancycould not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and the allegation about the special agreement has been held to bean after thought and false. It is therefore difficult to apply the ruling to the present circumstances. The appeal is wholly devoid of merit and it is dismissed with costs. By the consent of parties, a period of two months from the date of hearing (20 12 1963) was granted to the appellant to deposit the arrears of rent from 1st. April, 1958, in the Court of the Rent Controller.

IN-Abs

The respondent made an application against the appellant under section 14 of the Delhi Rent Control Act. In reply the appellant pleaded 182 that the respondent had no right to recover rent from him as a notice under section 46(5A) of the Indian Income tax Act had been issued by the Income tax Officer, that the respondent had no locus standi as the property was in the custody of the Court and a receiver had been appointed and that his professional fees were agreed and be adjusted towards the rent dues. The Rent Controller recorded the statement of the appellant and after hearing arguments directed the appellant under section 15(1) of the Delhi Rent Control Act, 1958 to deposit back rents at Rs. 300/ per month. On appeal the decision of the Rent Controller was affirmed, and a further appeal to the High Court also failed. The appellant contended that the order under section 15(1) for deposit of rent could only be made at the end of the case and not at an interlocutory stage. Held:(i) that the order under sub section (1) of section 15 is not a final order but is preliminary to the trial of the case and is made only wherer the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a fun trial and, that this was clear from the latter part of sub section (1) of section 15 because under it not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. Nalinakhya Bysack and Anr. vs Shyam Sunder Halder, A.I.R. , distinguished. (ii)The notice under section 46(5A) of the Income tax Act did not amount to a garnishee order and the appellant could make payment to the rent controller without incurring personal liability because the rent controller had stated in his order that the amount would not be paid to any one till a clearance certificate was obtained from the Income tax Department.

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.

IN-Abs

The plaintiffs who were commission agents purchased piecegoods according to defendant 's instructions and stored a portion of the goods in a godown in Bombay pending receipt of a permit from the Government authorities for consigning the same to the defendants. Before the goods could be despatched, a big explosion occurred in the Bombay Harbour and the goods stored were destroyed either by the fire or the explosion. A few months later the Governor General promulgated the Bombay Explosion (Compensat,ion) Ordinance, 1944, which provided, inter alia, (i) that the Government shall pay a compensation of 50 per cent. of the damage caused in respect of uninsured goods, and the entire damage in respect of insured goods; and (ii) that no person shall have or be deemed ever to have had, otherwise than under the Ordinannce any rights whether in contract or in tort or otherwise to any compensation for damage to or loss of property arising out of the explosion and no suit or other legal proceeding for any such compensation or damage shall be maintainable in any civil courts. The plaintiffs re ceived 50 per cent of the value of the destroyed goods as they 980 were not insured, and, alleging that as agents they had the right to be indemnified by the defendants, sued the latter for recovery of the remaining 50 per cent of the value of the goods. The defendants pleaded, and it was found as a fact, that they had instructed the plaintiffs, and the latter had agreed, to insure the goods but had omitted to do so, and they claimed that inasmuch as they would have been entitled to receive the full value of the goods as compensa tion under the Ordinance if the plaintiffs had insured, they were entitled to set off or counter claim the value of the goods as damages caused to them by the neglect or breach of duty of the plaintiffs. Held per KANIA C.J. and DAS J. (PATANJALI SASRI J. dissenting). (i) As full compensation under the Ordinance was payable on proof of the existence of a fire insurance policy irrespective of the terms of the policy, and the non recovery of half the value of the goods from the Govern ment under the Ordinance was due to the obsence of a fire insurance policy, the loss to the defendants arose directly from the neglect or breach of duty of the plaintiffs to insure the goods as they had been instructed and agreed to do; intervention of the Ordinance did not break the chain of causation or make the loss remote or indirect; the Ordinance did not create any new liability but only quantified the damages; and the fact that it did not exist at the time of the explosion and could not have been in the contemplation of the parties was irrelevant for deciding the question of liability; (ii) the plea of the defendants was not barred by the Ordinnance inasmuch as their cause of action against the plaintiffs was misconduct of the latter in the business of their agency, and this cause of action was completed by the averment that there was a dnty or agreement to insure, that there was failure to per. form that duty and that the fail ure had caused damage to the defendants, and the quantum of the damages was not a part of the cause of action. Per PATANJALI SASRI J. (i) The defendants ' inability to recover the full value of the goods from the Government under the Ordinance did not arise directly and naturally in the usual course of things from the plaintiffs ' failure to insure, but from independent and disconnected events, name ly, the Government 's scheme for compensation, embodied in the Ordinance, the agreement with the insurance companies regarding contribution and the consequent discrimination made by the Government between insured and uninsured goods. The Ordinance did not, displace the ordinary rules of law as to remoteness of damage or amend or abrogate any terms in the fire insurance policies and it was further difficult to see how by virtue of an Ordinance passed some months after the explosion, the right to damages could become enlarged. The broad principle of restitutio in integrum upon which the assessment of the quantum of damages is based cannot be carried to its utmost logical results but must be qalified by the rule of remoteness 981 (ii) The bar under the Ordinance was not based upon the nature of the cause of action but upon the damage or loss being "due to or in any way arising out of" the explosion and the claim of the defendands was clearly barred. In any event the defendants cannot be allowed to claim that the loss of the goods was explosion damage so as to bring the case under section 14 and at the same time contend that the loss was not due to or did not in any way arise out of the explo sion in order to avoid the bar under section 18.In re an Arbitration between Polemis and Another and Furness Withy & Co. Ltd. , Weld Blundell vs Stephens , Monarch Steamship Co. Ltd. vs Karlshamns Oljefabriker , Hadley vs Baxendale (9 exhibit Livingstone vs Rawyards Coal Co. , British Westinghouse Electric and Manufactur ing Co. Ltd. vs Underwood Electric Railways Co., London , Liesbosch (owners) vs Edison (owners) ; , Smith Hogg & Co. Ltd. vs Black Sea and Baltic General Insftrance Co. Ltd. , Standard Oil Co. of New York vs Clan Line Steamers Ltd. [1924] A.G. 100 referred to.

on No. 29 of 1953. Petition under article 32 of the Constitution of India praying that the Court of Wards, Ajmer, be ordered to forbear from carrying on the superintendence of the istimrari estate and other properties of the petitioner and for restoration of possession and management of the said estate and properties. J.B. Dadachanji and H. C. Sogain for the appellant. M.C. Setalvad, A ttorney General for India, (Bhava Datta Sharma, with him) for the respondents. May 15. The Judgment of the Court was delivered by MAHAJAN J. This is a petition under article 32 of the Constitution seeking relief against alleged infringement of certain fundamental rights of the petitioner and arises in these circumstances. The petitioner owns an " istimrari estate" in the State of Ajmer under an istimrari sanad granted to his ancestor in the year 1875. He enjoys therein a life interest with an obligation to perform certain duties as prescribed by the Ajmer Land and Revenue Regulation (11 of 1877). The Deputy Commissioner of Ajmer, who is the Court of Wards constituted under the Ajmer Government Wards Regulation (I of 1888), took over possession and assumed superintendence of the said estate on the 18th September, 1952, purporting to act under sections 6 and 7 of the Regulation read with section 112 of the Ajmer Tenancy and Land Records Act, 1950 (XLII of 1950), and hence this petition for a writ of mandamus or one in the nature thereof, or for the issue 1051 of a direction to the Court of Wards for restoration of possession of the estate and for an order directing it to forbear from carrying on the superintendence of the estate. The order made by the Court of Wards on the 18th September, 1952, is impugned as being void and of no effect whatever, because it is alleged that the statutory provisions under which it is purported to have been made contravene the provisions of Part III of the Constitution and take away and abridge the petitioner 's rights guaranteed by article 19 (1) (f) of the Constitution. Section 112 of Act XLII of 1950 is one of a group of 7 sections in Chapter X of the Act which deals with the subject of " Compensation and Penalties ". The section prescribes penalties for habitual infringement of rights of tenants and reads thus: " If a landlord habitually infringes the rights of a tenant under this Act, he shall, notwithstanding anything in section 7 of the Ajmer Government Wards Regulation, 1888 (I of 1888), be deemed to be a "landlord who is disqualified to manage his own property " within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards ". The preceding section 110 is in these terms: "If a landholder or his agent collects from a tenant any lag or neg, he shall be deemed to have committed an offence of extortion within the meaning of the Indian Penal Code (Act XLV of 186O) Just as section II 0 declares an illegal exaction by a landlord to be an offence under the Indian Penal Code, in like manner, section 112 declares a landlord who habitually infringes the rights of a tenant " a person disqualified to manage his own property " within the meaning of section 6 of Regulation I of 1888, the consequence being that his property becomes liable to be taken over by the Court of Wards. The section is an ingenious and novel device to punish landlords who habitually infringe the rights of tenants. It authorizes 1052 the use for punitive purposes of the machinery of Regulation I of 1888 enacted to make better provision for the superintendence of Government Wards in AjmerMerwara. By force of the declaration in section 112 of the Act, landlords who habitually infringe the rights of the tenants fall within the category of persons incapable of managing their own property and come within the ambit of section 6 of the Regulation, which is in these terms: ,, The Court of Wards may, with the previous sanction of the Chief Commissioner, assume the superintendence of the property of any landholder who is disqualified to manage his own property ". The result therefore of the combined operation of sec tion 112 of Act XLII of 1950 and of the provisions of Regulation I of 1888, is that the Court of Wards can in its own discretion and on its subjective determination, assume the superintendence of the property of a landlord who habitually infringes the rights of his tenants. The condition precedent to such assumption of superintendence is the previous sanction of the Chief Commissioner, the giving of which is also a matter entirely resting on his discretion. Section 27 of Regulation I of 1888 provides that " the exercise of any discretion conferred on the Court of Wards or the Chief Commissioner by this Regulation shall not be called in question in any civil court ". It was conceded by the learned Attorney General appearing for the State of Ajmere that there was nothing in the contents of either Act XLII of 1950 or Regulation I of 1888 which provided a machinery for determining the question whether a certain landlord was a person who was habitually infringing the rights of his tenants. Under Regulation I of 1888, the assumption by the Court of Wards of the superintendence of the property of a disqualified proprietor depends merely on the subjective determination of the Deputy Commissioner or the Commissioner or of the Chief Commissioner, and the exercise of this discretion cannot be questioned in any manner in a civil court. Act XLII of 1950 says nothing whatsoever on this subject. 1053 The contention that the provisions of section 112 of Act XLII of 1950 read with the provisions of Regulation I of 1888 infringe the fundamental right of the petitioner guaranteed by article 19 (1) (f) of the Constitution, is, in our opinion, well founded and does not require any elaborate discussion. The petitioner 's right to hold the istimrari estate and his power of disposal over it stand abridged by the act of the Court of Wards authorized by these provisions. His right to manage the estate and enjoy possession thereof stands suspended indefinitely and until the time that the Court of Wards chooses to withdraw its superintendence of the property of the petitioner. During this period, he can only receive such sums of money for his expenses as the Court of Wards decides in its discretion to allow. Thus, the provisions of section 112 of Act XLII of 1950 clearly abridge the fundamental right of the petitioner under article 19 (1) (f) and are to that extent void. The learned Attorney General canvassed for the validity of the provisions of section 112 on three grounds. He contended that the determination of the question whether a certain landholder was a person who habitually infringed the rights of his tenants did not depend on the opinion of the Court of Wards, but was a matter that could be agitated and canvassed in a civil court. It was said that there were no words in the section from which it could be inferred that the determination of this fact depended on the subjective determination of the Court of Wards. It was emphasized that the section had not used the familiar language "in its opinion" or words like that, which are usually employed to indicate whether a matter depends on the subjective determination of an authority or whether it can be agitated in a civil court. This contention, in our opinion, is not well founded. As already pointed out, Act XLII of 1950 has prescribed no machinery for the determination of the question whether a landlord is guilty of habitually infringing the rights of his tenants, and rightly so, because section II 2 of the Act is merely of a declaratory character and 1054 declares such a landlord as being under a disability and suffering from an infirmity. This declaration becomes operative and effective only when the Court of Wards in its discretion decides to assume superintendence of the property of such a proprietor. In other words, when the Deputy Commissioner or the Commissioner or the Chief Commissioner is of the opinion that such a proprietor should be deprived of possession of his property, this determination then operates to the prejudice of the landlord, but he cannot challenge the exercise of the discretion by these officers in view of the provisions of section 27 of Regulation I of 1888. The result then is that by the subjective determination of the Court of Wards, both the questions whether a particular person habitually infringes the rights of his tenants and whether his property should be taken over by the Court of Wards, stand settled and the landlord cannot have recourse to a civil court on these questions. The learned Attorney General was not able to draw our attention to any provision in the Court of Wards Act or in Act XLII of 1950 which enabled the landlord, held to be a habitual infringer of the rights of his tenants, to have recourse to a civil court to test the correctness of the determination made by the Court of Wards. The provisions of Regulation of 1888 clearly indicate the contrary. Next, it was argued that the provisions of section 112 amount to reasonable restrictions on the exercise of the right conferred by article 19 (1) (f) of the Constitution on a citizen, and these restrictions are in the interests of the general public. In our judgment, this. argument also is not sound. As indicated above, the provisions of section 112 of Act XLII of 1950 are penal in nature and are intended by way of punishment of a landlord who habitually infringes the rights of his tenants. He is punished by being placed at the mercy of the Court of Wards and by being made subject to the stringent provisions of Regulation I of 1888. An enactment which prescribes a punishment or penalty for bad behaviour or for misconduct of a landlord cannot possibly be regarded as restriction on a fundamental 1055 right. Indeed, a punishment is not a restriction. This was frankly conceded by the learned Attorney General. It is still more difficult to regard such a provision as a reasonable restriction on the fundamental right. When a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can, on no construction of the word "reasonable" be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a civil court. Section 112 of Act XLII of 1950 cannot therefore be held valid as coming within the scope of article 19 (5) of the Constitution. Lastly, it was contended by the learned AttorneyGeneral that section 112 was valid by reason of the curative provisions of article 31 A of the Constitution. That article validates laws which would otherwise contravene the fundamental right in article 31(2) of the Constitution, but its operation is restricted to laws providing for acquisition of estates etc. It runs as follows: " Notwithstanding anything in the foregoing provi sions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for 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 any provisions of this Part. . Section II 2 of Act XLII of 1950, intended to regulate the rights of landlords and tenants, is obviously not a law providing for " the acquisition by the State " of the estates of the landlords, or of any rights in those estates. It is also not a law providing for the extinguishment or modification of any such rights. The learned Attorney General laid emphasis on the word modification " used in article 31 A, That word in 1056 the context of the article only means a modification of the proprietary right of a citizen like an extinguishment of that right and can not include within its ambit a mere suspension of the right of management of estate for a time, definite or indefinite. Historically speaking, article 31 A which has relation to article 31(2) of the Constitution, has no relevancy whatsoever to the law enacted in section 112 of the Act XLII of 1950. For the reasons given above, we are of the opinion that the law enacted in section 112 of Act XLII of 1950 is not saved either by clause (5) of article 19 or by article 31 A of the Constitution. It manifestly infringes the fundamental right of the petitioner guaranteed by article 19 (1) (f) of the Constitution. That being so, the petitioner is entitled to a direction that possession of his estate be restored to him. We accordingly direct the Court of Wards, Ajmer Merwara, constituted under the Ajmer Government Wards Regulation, I of 1888, to forbear from carrying on superin tendence of the petitioner 's istimrari estate and the other properties taken possession of, and to restore their possession to the petitioner. The petitioner will have the costs of this petition. Petition allowed. Agent for the petitioner : I. N. Shroff.

IN-Abs

Section 112 of the Ajmer Tenancy and Land Records Act (XLII of 1.950) provided that "if a landlord habitually infringes the rights of a tenant under this Act, he shall, notwithstanding any thing in section 7 of the Ajmer Government Wards Regulation, 1888 (I of 1888) be deemed to be a 'landlord who is disqualified to manage his own property ' within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards. " Section 6 of Regulation I of 1888 provided that the Court of Wards may, with the previous sanction of the Chief Commissioner, assume the superintendence of the property of any landholder who is disqualified to manage his property. The petitioner, whose estate was taken over by the Court of Wards under the above mentioned provisions of law, applied for relief under article 32 of the Constitution for restoration of his estate and other appropriate reliefs: Held, (1) that the result of the combined operation of section 112 of Act XLII of 1950 and the provisions of sections 6 and 7 of Regulation I of 1888 was that the Court of Wards could in its own discretion and on its subjective determination assume the superintendence of the property of a landlord who habitually infringed the rights of his tenants, and the exercise of the discretion of the Court of Wards cannot be questioned in a civil court; section 112 of Act XLII of 1950 read with the provisions of Regulation I of 1888 therefore infringed the fundamental rights of the petitioner guaranteed by article 19 (1) of the Constitution and was to that extent void; (ii) the provisions of section 112 cannot be regarded as a " reasonable" restriction imposed in the interests of the general public on the exercise of the right conferred by article 19 (1) (f), because they completely negatived the right by making its enjoyment depend on the mere discretion of the executive; 136 1050 (iii)that section 112 was not validated by article 31 A of the Constitution as it was not "a law providing for the acquisition by the State of any estate or of any rights therein or for the extinction or modification of any such rights" within the meaning of article 31 A. The word "modification" in the context of article 31 A only means a modfication of the proprietary right of a citizen like an extinguishment of that right and cannot include within its ambit a mere suspension of the right of management of the estate for a time, definite or indefinite.

minal Appeal No. 134 of 1963. Appeal by special leave from the judgment and order dated March 5, 1963, of the Calcutta High Court in Criminal Appeal No. 156 of 1963. D. N. Mukherjee, for the appellants. P. K. Chakravarti and P. K. Bose, for the respondent. 173 January 7, 1964. The Judgment of the Court was delivered by HIDAYATULLAH J. The six appellants who have appealed to this Court by special leave were convicted by the Assistant Sessions Judge, Birbhum under section 304 Part II read with section 34 of the Indian Penal Code and sentenced to six years ' rigorous imprisonment each. Their appeal to the High Court was summarily dismissed. When the appellants applied for a certificate in the High Court they made it plain that the only point which was required to be considered by this Court was whether section 34 could be read in conjunction with Part 11 of section 304, Indian Penal Code. In this Court the argument was confined to this point of law. The High Court rejected the application for the certificate pointing out that the controversy had been settled by a Full Bench decision of the High Court reported in Ibra Akanda vs Emperor(1). The learned Judges were of the opinion that the point was not of sufficient importance for permitting the appellants to take an appeal to this Court. For the consideration of the point of law which has been debated before us, we may state only such facts as will bring out the controversy. One Abdul Sheikh in the company of his son, Adut, aged 13, went to his field in village Noapara to uproot linseed plants. This was on the morning of March 13, 1962. While he was, so employed, two of the appellants, Afrahim and Jesed, appeared on the scene, and Afrahim asked Jesed to catch hold of Abdul Sheikh. Abdul Sheikh took to his heels and was chased by these two appel lants, who overtook him and threw him down on the ground Immediately thereafter, there appeared on the scene the re maining appellants. Jarahim was armed with a ballam and he started to hit Abdul Sheikh on his legs with the ballam. The appellant, Manu, arrived with a sabal (crowbar), and began to strike Abdul Sheikh and the appellant, Mesher. began to strike Abdul Sheikh with a lathi. All this, while, the sixth appellant, Makid, held Abdul Sheikh by the legs and Afrahim and Jesed held him down by his head and shoulders. The incident was witnessed by Adut and two, others, and it is on the testimony of Adut and these two (1) I.L.R.(1944) 174 other witnesses, to whom reference is unnecessary, that the learned Assistant Sessions Judge, Birbhum, came to the con clusion that the offence was committed in the manner described above. Abdul Sheikh was seriously injured; both his legs below the knee were fractured and one arm above the wrist was also fractured. He had also some incised wounds and some bruises. He was examined by one Dr. Bashiruddin, who gave him first aid. Dr. Bashiruddin stated on oath that Abdul Sheikh narrated to him the incident and named all the six appellants. Later, Abdul Sheikh was removed to Nalhati Health Centre, and while arrangements were being made for recording his dying declaration, he succumbed to his injuries. He had, however, made dying declarations to some of the prosecution witnesses and they have deposed to the fact that he had named the six appellants as his assailants. In this appeal, we did not allow Dr. D. N. Mukherjee, counsel for the appellants, to argue on facts. We assumed that the incident took place as narrated by the witnesses. Mr. Mukherjee contends that the conviction of the appellants under section 304, Part 11 is illegal, because according to him, section 34 cannot be called in aid, as the second part of section 304 concerns itself with knowledge and absolutely excludes intention as the ingredient of the offence. He relies upon the minority decision of Das J. (as he then was) in Ibra A kanda vs Emperor(1). In that case, the learned Judge had expressed the opinion that section 34 was incapable of being read with the second Part of section 304. With the view of the learn ed Judge, Lodge J. differed and the case was then placed before Khundkar J. who agreed with Lodge J., and the deci sion was that section 34 could be so read. At the hearing Mr. Mukherjee drew our attention to three other cases in which a view supporting his contention appears to have been taken. The first is a single Judge decision of the Allahabad High Court reported in Ramnath vs Emperor(2), and the other is a Division Bench case from Peshawar reported in Sahibzada vs The Crown(3). He also referred to an earlier Calcutta case reported in Debi Charan Haldar vs Emperor(1), in which a division Bench had expressed some (1) 1. L. R. (3) A.I.R. 1950 Peshawar 24. (2) A.I.R. 1943 All. 271. (4) 175 doubts about the applicability of section 34 to section 304, Part 1. As against this, Mr. Chakravarti, counsel for the State relied upon a Full Bench decision of the Allahabad High Court reported in Saidu Khan vs State(1) where it has been clearly held that section 34 can be so read. Before dealing with the point of law, we shall refer to the essential facts once again. Apart from the fact that there is proof that there were two parties and there was enmity between the appellants and Abdul Sheikh, the facts proved in the case clearly establish that Abdul Sheikh had gone for a peaceful purpose in the company of his young son, and immediately after his arrival, he was chased by two of the appellants and caught and felled to the ground. After this the remaining four appellants appeared and beat Abdul Sheikh with diverse weapons, while those who were not armed, held him pinned to the ground. Mr. Chakravarti is right in contending on these facts that the act took place in furtherance of a common intention. No doubt, as has been laid down by the Privy Council and by this Court in cases which are now very familiar, common intention must exist before the criminal act is perpetrated, and that is the essence of section 34. Here, in our opinion, that requirement was completely satisfied, because the six accused could not but by a prior concert have appeared simultaneously at the scene, and chased and overthrown the victim, held him down and beaten him. The facts disclosed in the evidence clearly establish a prior concert amongst the six appellants. It has been so inhered by the Assistant Sessions Judge, and we see no reason to differ from him. Now that the criminal act has been held by us to have been the result of a previous concert and in furtherance of the common intention, we shall proceed to examine whether section 34 I.P.C. can be made applicable for the purpose of holding that culpable homicide not amounting to murder was committed, and that each of the appellant was responsible for the offence. Section 34 of the Indian Penal Code reads as follows: "When a criminal act is done by several persons, in furtherance of the common intention of all, each (1) I.L.R. [1952] 1 AlL. 639. 176 of such persons is liable for that act in the same , manner as if it were done by him alone." In section 33 which precedes, it is laid down that the word "act" ' denotes not only a single act but also a series of acts. In other words, as was stated by the Judicial Committee, in Barendra Kumar Ghosh 's case(1) "a criminal act means. that unity of criminal behaviour, which results in something, for which an individual would be punishable, if it were all done by himself alone, i.e., a criminal offence. " Here, the beating was perpetrated not by a single individual but by three persons with whom others were acting in concert. The criminal act resulted in the criminal offence of culpable homicide not amounting to murder. There is no dispute as to that. Whether all the appellants individually would be responsible for the death of Abdul Sheikh is the question to be determined, and that conclusion can only be reached if it can be said that the act which was committed was done in furtherance of a common intention. It is argued that section 304 makes a difference in its two parts between the commission of the offence of culpable homicide with a particular intention and the commission of the same offence without that intention but with a particular knowledge. It is urged ' that this distinction makes it impossible that section 34 which deals only with common intention can be read with it. Section 304 reads as follows: "Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and ' shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause` death, but: (1) Cal. 177 without any intention to cause death or to cause such bodily injury as is likely to cause death. " Sec. 304 does not define culpable homicide not amounting to murder. That definition is to be found in section 299, which provides: "Whoever causes death by doing an act with the intention of causing death, or with *,he intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. " Culpable homicide is the causing of the death of a person in three ways: (1) with the intention of causing death, (2) with the intention of causing such bodily injury as is likely to cause death, and (3) with the knowledge that the offender is likely by such act to cause death. The offence of culpable homicide becomes murder when four circumstances exist. They are mentioned in section 300. A number of excep tions are however included, and those exceptions show extenuating circumstances on strict proof of which the offence is again brought down to culpable homicide not amounting to murder. The causing of the death of a person by doing an act accompanied by intention in the two ways described in section 299 or with the knowledge that the act is likely to cause death also described there is thus distinguished from cases of deaths resulting from accident or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous. Once it was established, as was established in this case, that the act was a deliberate act and was not the result of accident or rashness or negligence, it is obvious that the offence which was committed was one under section 304. In the present case however death was not the result of the act of a single individual but was the result of the act of several persons, and they shared the common intention, namely, the commission of the act or acts by which death was occasioned. Section 34 is a part of a group of sections, of which some other sections may also be seen. Section 35 is as follows: 134 159 S.C. 12. 178 "Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention." In this section also the responsibility is shared by each offender individually if the act which is criminal only by reason of certain criminal knowledge or intention is done by each person sharing that knowledge or intention. Indeed, this section also was applicable here. Under section 37, "when an offence is committed by means of several acts, whoever intentionally co operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence." By co operating in the doing of several acts which together constitute a single criminal act, each person who co operates in the commission of that offence by doing any one of the acts is either singly or jointly liable for that offence. Section 38 then provides: "Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. " That is to say, even though several persons may do a single criminal act, the responsibility may vary according to the degree of their participation. The illustration which is given clearly brings out that point. Viewing these sections in this manner it is obvious that two sections in this group deal with individual responsibility for a single criminal act perpetrated by a large number of persons who either share a common intention or possess the criminal knowledge (sections 34 and 35) and the third with co operation between several accused in the completion of the criminal act (section 37). Lastly section 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge. 179 Section 34, when it speaks of a criminal act done by several persons in furtherance of the common, intention of all, has regard not to the offence as a whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of action of several persons. No doubt, a person is only responsible ordinarily for what he does and section 38 ensures that; but the law in section 34 (and also section 35) says that if the criminal act is the result of a common intention, then ,every person who did the criminal act with the common intention would be responsible for the total offence irrespective of the share which he had in its perpetration. Barendra Kumar Ghosh 's case(1), the Judicial Committee ,observed: "Sec. 34 I.P.C. deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself. 'That act ' and then again 'it ' in the latter part of the section must in clude the whole of the action covered by the criminal act in the first part of the section. " Provided there is common intention, the whole of the result perpetrated by several offenders, is attributable to each ,offender, notwithstanding that individually they may have done separate acts, diverse or similar. Applying this test to the present case, if all the appellants shared the common intention of severely beating Abdul Sheikh and some held him down and others beat him with their weapons, provided the common intention is accepted, they would all of them be responsible for the whole of the criminal act, that is to Say, the criminal offence of culpable homicide not amounting ,to murder which was committed, irrespective of the part played by them. The common intention which is required by the section is not the intention which section 299 mentions in its first part. That intention is individual to the offender unless it is shared with others by a prior concert in which ,case sections 34 or 35 again come into play. Here, the common (1) Cal. 197 180 intention was to beat Abdul Sheikh, and that common intention was, as we have held above, shared by all of them. That they did diverse acts would ordinarily make their responsibility individual for their own acts, but because of the common intention, they would be responsible for the total effect that they produced if any of the three conditions in section 299, I.P.C. applied to their case. If it were a case of the first two conditions, the matter is simple. They speak of intention and section 34 also speaks of intention. The question is whether the second part of section 304 can be made applicable. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathes, each. hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating, the requirements of section 304, Part II are not satisfied in the case of each of them? 'If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why section 304, Part II cannot be read with section 34. The common intention is with regard to the criminal act, i.e., the act of beating. If the result of the beating is the death of the victim, and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e.,. beating, there is no reason why section 34 or section 35 should not be read with the second part of section 304 to make each liable individually. This matter has been elaborately considered in the judgment of Lodge J. and again in the Full Bench decision of the Allahabad High Court. We do not think that we need say more on this, because we are in agreement with the decision given by the majority in the Calcutta High Court case and the Full Bench decision of the Allahabad High, Court. It appears to us that in other cases doubt was felt because section 304 is in two parts, and first part is concerned with culpable homicide committed with two types of intention and the second part with culpable homicide committed with a particular knowledge. It appears that it was felt that section 34, which deals with common intention, could not be read with 181 the second part of section 304. In our opinion, the learned Judges who held that view and we say it respectfully fell into the error of viewing the second part of section 3,04 divorced from common intention whatever. A person does not do an act except with a certain intention, and the common intention which is requisite for the application of section 34 is the common intention of perpetrating a particular act. Previous concert which is insisted upon is the meeting of the minds regarding the achievement of a criminal act. That circumstance is completely fulfilled in a case like the present where a large number of persons attack an individual, chase him, throw him on the ground and beat him till he dies. Even if the ,offence does not come to the grade of murder, and is only culpable homicide not amounting to murder, there is no doubt whatever that the offence is shared by all of them, and section 34 then makes the responsibility several if there was a knowledge possessed by each of them that death was likely to be caused as a result of that beating. This circumstance is completely fulfilled in the present case, and we are, therefore, satisfied that the conviction of the appellants was proper, and see no reason to interfere. In the result, the appeal fails and is dismissed. Appeal dismissed.

IN-Abs

The six appellants were convicted under section 304 Part II with section 34 of the Indian Penal Code by the Sessions Judge add their appeal was summarily dismissed by the High Court. On appeal by special leave, it was contended that section 304, Part 11 could not be read with section 34 Indian Penal Code because the second part of section 304 excluded intention and was concerned with knowledge and the conviction was illegal. Held:(i) Section 34 when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of the action of several persons. (ii)Knowledge in section 304 Part 11 is the knowledge of likelihood of death and the common intention is with regard to the criminal act. If the result of the criminal act is the death of the victim and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, there is no reason why section 34 should not be read with the second part of section 304 to make each liable individually. lbra Akanda vs Emperor, I.L.R. and Saidu Khan vs State, I.L.R. [1952] 1 All, 639, approved. Ramnath vs Emperor, A.I.R. 1943 All. 271, Shahibzada V. The Crown A.I.R. 1950 Peshawar 24, Debi Chand Haldar vs Emperor, and Barendra Kumar Ghosh vs Emperor, Cal. referred to.

Appeal No. 971 of 1963. Appeal by special leave from the judgment and order dated April 15, 1963 of the Andhra Pradesh High Court in Writ Petition No. 1096 of 1962. P.A. Chaudhury and T. V. R. Tatachari, for the appellant. 215 H.N. Sanyal, Solicitor General and P. Ram Reddy, for respondent No. 3. January 13, 1964. The Judgment of the Court was delivered by AYYANGAR J. This is an appeal by special leave against a judgment of the High Court of Andhra Pradesh by which a Writ Petition filed by the 3rd Respondent K. Brahmananda Reddy was allowed and an Election Petition filed by the appellant was directed to be dismissed. The facts giving rise to the proceedings with which the appeal is concerned are briefly as follows: At the General Elections held in the month of February 1962 for the Legis lative Assembly Constituency of Phirangipuram in Guntur District in Andhra Pradesh the third respondent Brahamananda Reddy and one Chandramouli, the 2nd respondent before us, were the contesting candidates. The polling at the Election took place on the 26th February 1962 and the Returning Officer declared Brahmananda Reddy, elected as having obtained, the majority of valid votes. Thereafter, the appellant who is a voter on the rolls of the said Consti tuency filed an Election Petition before the Election Com mission on April. 11, 1962 under section 81 of the Representation of the Peoples Act, 1951, which we shall refer to as the Act. There was no formal defect in the petition, it was accompanied by the requisite number of copies provided for by the Act and also by the treasury receipt evidencing the deposit of the requisite sum for security as provided by section 117 of the Act. The grounds on. which the election was sought to be set aside were various and included inter alia allegations of corrupt practices against the returned candi date as well as his election agent, as also several irregularities in the polling by having the votes of dead voters recorded as well as by double voting. 'Me petition was received by the Commission, who after satisfying itself that it was in conformity with the Act had a copy of the petition published in the Official Cazette on May 17, 1962 as provided by section 86 of the Act. In due course, an Election Tribunal was constituted and the petition was referred to the Tribunal for trial. The returned candidate Brahmananda Reddy filed 216 his Written Statement on September 15, 1962 in which the allegations of fact made in the petition were denied. Be sides what might be termed the merits of the allegations in the election petition, Brahmanda Reddy raised by his Written Statement several technical objections pointing out certain defects in the petition. This appeal is not concerned either with these technical defects in the election petition or with the defence raised on the merits to the charges that were formulated in it. The merits have yet to be tried, and as regards the technical objections to the petition raised in the Written Statement dated September 15, 1962, they have been disposed of by the High Court and the same are not before us. A few days later on September 24, 1962, Brahmananda Reddy filed a further Statement of objections to the petition raising mostly objections of a technical nature and of these the only objections which is the subject matter of the present appeal is that contained in paragraph 2 which reads, and we quote the material words: "It is further submitted on behalf of the 1st respondent that the above petition filed u/s 81 of the Act is not an Election Petition. . As the requirements of section 81(3) of the Act are not complied with, the petition is, therefore, liable to be dismissed u/s 90(3) of the Act as it does not comply with the provisions of sec. 81 of the Act. . . This second statement contained a prayer that in view of the technical objections, the maintainability of the petition might be decided as a preliminary issue as the objections went into the root of the matter. Paragraph (2) extracted earlier is somewhat vague but in the arguments before the Tribunal it was explained as indicating an objection alleging non compliance with section 81 (3) of the Act which runs: "Every election petition shall be accompained by as many copies thereof as there are respondents. mentioned in the petition and one more copy for the use of the Election Commission, 217 and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. " We shall refer later to the precise defect which was relied on in support of the case that there was a non compliance with this provision. The Tribunal acceded to this request and by its order dated November 7, 1962, it decided the preliminary objections including the one just now mentioned in favour of the election petitioner and fixed a date for the trial of the petition on the merits. Brahmananda Reddy thereupon moved the High Court under Article 226 of the Constitution and prayed for the issue of the Writ quashing this decision of the Tribunal and sought the dismissal of the election petition for non compliance with the provisions of the Act. The learned Judges of the High Court disallowed the other technical objections raised, but held that the petition did not comply with the requirements of section 81(3) of the Act and for this reason they, directed the dismissal of the Election Petition. Ile appellant thereafter has filed this appeal after obtaining special leave from this Court. The subject of controversy in this appeal lies in a very narrow compass. But before we deal with it, it will be convenient to specify the precise defect which the learned Judges have held to be fatal to the maintainability of the Election Petition. As stated earlier, the Election Petition filed was accompanied by the number of copies required to accompany the petition under section 81(3). The Election Petition was type written and the copies which accompanied the petition were carbon copies of the type script, so there was no question of the copies being other than 'true ' copies. The copies bore two signature in original of the Election Petitioner authenticating both the contents of the petition as well as the verification thereof. The Petitioner did not however insert the words 'true copy ' before or above his signatures. The learned Judges of the High Court considered that this rendered the petition one not in accordance with section 81(3) of the Act and it is on this ground that the Election, Petition filed by the appellant has been dismissed and it is the correctness of this decision that is convassed in the appeal before us. In view of the arguments addressed to us it would be necessary to set out a few of the relevant provisions of the, Act which bear upon the points urged, but before doing so we shall refer to article 329 of the Constitution which pro vides: ". . . 329(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. " In accordance with this. we have the provisions of the Act and, particularly those contained in Part VI commencing with section 79. Section 80 repeats the provision in the Constitution already extracted and enacts : "No election shall be called in question except by an election petition presented in accordance with the provisions of this Part. " Section 81 deals with the presentation of petitions. It runs: "81. Presentation of petitions. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub section (i) of section 100 and section 101 to the Election Commission by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. 219 Explanation. In this sub section, 'elector ' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (2) An election petition shall be deemed to have been presented to the Election. Commission: (a) when it is delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission in this behalf (i) by the person making the petition, or (ii)by a person authorised in writing in this behalf by the person making the petition; or (b) when it is sent by registered post and is deli vered to the Secretary to the Commission or the officer so appointed. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and, every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." Before, proceeding further it is necessary to advert to the history of the provision in sub section (3) for learned counsel for the respondents laid some store by the object with which the provision was introduced. As enacted in 1951, section 81 contained only two sub sections, the first deal ing with the time within which a petition had to be filed and the second with the person or authority and the manner in which the petition had to be presented in order to cons titute the presentation one to the Election Commission. At that date the Election Commission, after scrutinizing the petitions to ascertain whether there were any formal defects, had itself to make copies for being served on the respondents. To avoid this trouble and inconvenience to the Commission and the delay which the making of such copies 220 necessarily involved, sub section (3) which we have set out earlier was introduced into section 81 by an amendment affected by Act XL of 1961. The point made, based on this feature, we shall reserve for later discussion. Section 82 deals with the parties who are to be impleaded in the petition and section 83 with the contents of the petition. section 83(1)(c) enacts: "An election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings." subsection (2) requires a similar signature and verification of schedules or annexures to the petition. Section 85 empowers the Election Commission to dismiss a petition in certain contingencies. It reads: "85. If the provisions of section 81 or section 82 or section 117 have not been complied with, the Election Commissi on shall dismiss the petition: Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard. " The succeeding sections deal with the trial of Election Petitions, after making provision for the appointment of an Election Tribunal by section 86 but what is relevant in the pre sent context is section 90 and it is enough to quote the material words: (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: Sub section (3) reads: The Tribunal shall dismiss an election petition which does not comply with the provisions of 221 section 81, notwithstanding that it has not been dismissed by the Election Commission under section 85." The reasoning on which the learned Judges have based their decision shortly stated is this. It is the requirement of section 81(3) of the Act that an election petition should be accompanied by the number of copies specified there, and equally so that the copies so accompanying "shall be attest ed by the petitioner under his own signature to be a true copy of the petition". There was, of course, the signature of the petitioner on the copies, but there was no attestation by him that "it was a true copy". This constituted a noncompliance with the requirements of section 81 which brought into play the terms of section 90(3) of the Act which required the Tribunal to dismiss a petition which did not comply with the provisions of section 81. Though the learned counsel for the appellant made several submissions, we propose to deal with only one, as the same is sufficient for the disposal of this appeal. This was that in the circumstances of the case there had been a sub stantial compliance with the requirements of section 81(3). Before, however, dealing with it, it will be convenient to refer to some of the submissions made to us by the learned Solicitor General appearing for the contesting respondents. 'He submitted to us certain propositions which however we consider really unexceptionable. He said that an election petition was not to be equated to an action at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the courts possessed and could exercise no dis pensing power to waive non compliance. We consider these propositions are sound and it is in the light of these basic positions that we shall proceed to consider whether the ,omission to add the words "true copy" in the copies which were admittedly exact copies of the petition, constituted a non compliance with section 81 (3) as to render the petition liable to be rejected under section 90(3) of the Act. Learned counsel for the appellant urged that the juris diction of the Tribunal under section 90(3) to dismiss 'an ele 222 tion petition which does not comply with the provisions of section 81 ' was attracted only if there was a defect in the peti tion itself and that a defect merely in the copy accompanying the petition would not be a case of a "petition not complying with the provisions of section 81" so as to require or even permit the Tribunal to dismiss the petition. In support of this submission, the difference in the language employed in section 85 and section 90(3) of the Act in the matter of making reference to the requirements of section 81 was adverted to. Besides, it was pointed out that both section 90(3) and before it section 90(4) were in their present form making refer ence to section 81 when the latter section did not contain the third sub section relating to copies accompanying the petition, and that the content of section 90(3) should not be held enlarged because in 1961 sub section (3) was added to section 81 particularly because the language of section 90(3) was not altered to reflect the change. We are not impressed by this argument. When section 81 (3) requires an election petition to be accompanied by the requisite number of copies, it became a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition. If that is a requirement of section 81, no distinction can be drawn between the requirements of sub sections (1) and (2) and of sub section (3). We might add that if there is a total and complete non compliance with the provisions of section 81(3), the election petition might not be "an election petition presented in accordance with the provisions of this Part" within section 80 of the Act. We are therefore inclined to consider that if there had been such a non compliance with the requirement of sub section (3) not merely the Election Commission under section 85 but the Election Tribunal under section 90(3) would prima facie not merely be justified but would be required 'to 'dismiss the election petition. This takes us to the point as to whether the requirement of section 81(3) has been complied with or not. The principal submission of the learned Solicitor General was based the language employed in section 81(3) of the Act read in 223 the light of the direction contained in section 90(3) which cast on the Tribunal the duty to dismiss an election petition which did not conform to the requirements of the former. In particular, he laid stress on the use of the imperative 'shall in section 81(3) when denoting the requirement of "attes tation" "under the petitioner 's signature" of the copy bearing the signature being a "true copy". It was in this connection that he pointed out that the provision for properly attested copies of the petition accompanying the petition was introduced by the amendment effected in 1961, and the object of Parliament was two fold; first to save the time and inconvenience which the previous procedure cast on the Election Commission, of itself having to make copies for service on the respondents, and secondly by this means to expedite the conclusion of the trial of an election petition. He submitted that the attainment of these objects would be entirely frustrated if the respondents on whom these copies were served had still to make enquiries to satisfy themselves whether the copies were true copies, without the same being asserted to be so on their face. In support he referred us to the decisions in Noseworthy vs Overseers of Buckland etc. (1) and in Spice vs Bacon (2 ) as illustrating the degree of strictness and literal compliance which was insisted on by courts in regard to provisions of like character. The first of these cases was a registration appeal and the Act provided that a person who objected to a voter 's quali fication might be heard in support of his objection if he had given notice to the voter and the manner of giving notice was by sending it by post addressed to his place of abode "as described". It was held that a notice by post addressed correctly but not to the address "as described" was not a compliance with 'the requirement and that in consequence the objector could not be heard. We do not consider that this decision lays down any hard and fast rule or principle of construction which is attracted 'to every case where a statute calls for interpretation. In ultimate analysis the question is one of the construction of the relevant provision of the particular statutes which proceeds on the basis. of the words used understood in the context of the statute. (1) L.R. 9 C. P. 233. (2) L.R. a exhibit D. 463. 224 The second case raised a question as to the meaning of the word "true copy" in the Inn keepers ' Liability Act 1863, which required that in order to obtain the benefit of the limitation of liability conferred by the Act, a "copy" of the Act had to be exhibited at the Inn. The copy which was exhibited omitted some material words of the section which was required to be exhibited. The Court held that when a claim was made on the inn keeper for loss sustained by a guest, he could not claim the benefit of the statute. We are unable to appreciate the relevance of this decision. It turned on what was meant by the word 'copy ' in the Act and the portion which was omitted in the copy exhibited was a material portion. There is no doubt that such a 'copy ' which differs in material particular from the original is not a `copy ' within the Act. In this connection we might make a reference to the decision of this Court in Murarka vs Roop Singh(1) where the question as to what is a "copy" is elaborately discussed and some of the English decisions touching this matter have been set out. We shall have occasion to refer to Murarka 's case later, but for the present we need only add that the decision relied on by the Solicitor General is not at variance with what this Court has laid down in Murarka 's case. The next matter to be considered stems from the submission as regards the object of Parliament in enacting sub section (3) of section 81 and that expeditious disposal of election petitions which was the object would be frustrated if sub stantial compliance with the provision was held sufficient. We are not impressed with this argument. While we are conscious of the need for expeditious disposal of election petitions, and for the strict enforcement of provisions designed to achieve this purpose, we cannot be oblivious to the circumstance that to read every requirement literally might equally defeat the purpose for which Part VI is inten ded, viz., that elections are conducted in accordance with the relevant statutory provisions framed to ensure purity and orderliness and that the candidate who has not obtained a majority of valid votes or has obtained it in flagrant (1) ; 225 breach of the statutory provisions in not held entitled to represent the constituency. The Court had to deal with a similar question of inter pretation of words which appeared mandatory in Kamaraj Nadar vs Kunju Thevar(1). One of the points which arose for consideration was whether the requirement of section 117 of the Act which then required the petitioner to enclose with the petition a Government treasury receipt of Rs. 100 in favour of the Secretary to the Election Commission had been complied with by the election petitioner and section 90(4) of the Act which corresponded substantially to the present section 90(3) required the Election Tribunal to dismiss a petition which did not comply with the provision, inter alia, of section 117. The petitioner in that case had made the deposit of the requisite amount in the institutions named in the section but the deposit was made in favour of the Election Commission and not in favour of the Secretary to the Com mission as required by statute. It was contended that the petition did not conform to the provisions of section 117 and had therefore to be dismissed by the Tribunal. This Court rejected this submission and after adverting to the purpose of the provisions, held that this was fulfilled by the deposit made and that though the requirement as to deposit was mandatory, the same was complied with by the deposit made. We consider that this reasoning is not irrelevant to the construction of section 81(3) of the Act either. In this connection we might refer to the decision of this Court in Murarka vs Roop Singh (2) in which this Court had to consider a question closely related to that now under debate. That case was also concerned with certain defects similar to what we have in the appeal before us. The defects which were there relied on by the returned candidate as justifying or requiring the dismissal of the Election Petition fell into several categories which included non compliance with the requirements of section 81(3). There, as here, the petition was accompanied with the re (1)[1959] S.C.R. 583. (2) ; 134 159 S.C 15 226 quisite number of copies as specified in section 81(3) but what was urged was as regards certain defects in the copies filed. These defects fell into two types. First there were two matters which it was stated rendered the copies filed not 'true copies '. If the expressions 'copy ' or 'true copy ' were read as exact copies of the original, the copies filed did not satisfy that test. The two defects were: (1) The original petition contained the signature of the petitioner at the foot of the petition as required by section 83 (1) (c) of the Act. In the copy filed there was no copy of this signature. To that extent therefore the copy was not an exact copy. The second matter under this head was that the verification in the copy served on the appellant did not exactly correspond to that in the original in that in the latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group. The other type of defect which was claimed to constitute noncompliance with section 81(3) was that the words 'true copy ' with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed. The order of the Returning Officer rejecting the nomination paper of the petitioner was filed with the original petition as an annexure to it, and certified copies of that order were annexed to the copies of the petition. But this certified copy did not contain an endorsement stating that it was a 'true copy ' with the signature of the petitioner. The High Court had held that so far as the defect in not reproducing the signature in the petition was concerned, it was cured by the fact that every page of the copy of the petition was attested to be a true copy and therefore it would not matter if the last page did not contain the signature. As regards the second, the High Court held that the failure to include the paragraph in the verification was only a clerical defect which had crept in through oversight and as regards the other that it was no defect at all. This decision was upheld by this Court holding that the word copy in section 81(3) meant a copy which was substantially so and which did not 227 contain any material or substantial variation. By 'copy ' in section 81(3) was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original. Applying this test, this .Court came to the conclusion that there was no failure to comply with the last part of section 81(3), with the result that section 90(3) of the Act was not attracted. This Court besides left open the question as to whether any part of section 81(3) was directory or whether any portion of it was mandatory. In the present case also, we do not propose to deal with the larger question as to whether section 81(3) or any portion of it is merely directory. In view of the decision of this Court it would be clear that if there is a substantial compliance with the requirement of section 81(3), the election petition cannot be dismissed by the Tribunal under section 90(3). The question then is whether on the facts above stated, there is or is not a sufficient and substantial compliance with section 81(3). We have already pointed out that the appellant has complied with the following requirements: (1) The petition has been accompanied by the requisite number of copies. (2) The copies that accompanied the petition were true copies. (3) Each of those copies bore the signatures of the petitioner. If the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document. Now in regard to this the learned Judges of the High Court themselves ob served after referring to the terms of section 81(3): "No doubt, what is necessary is a substantial compliance with the requirement of attestation. For instance, if it is proved that the election petitioner has signed animo attestendi, and omitted the words 'true copy ' by mistake or inadvertently, there is a substantial requirement of the compliance of section 81(3). The 228 same may be said if the relative positions of the words 'true copy ' and of the signature one below the other are not correct. " They however held that as there was no evidence of the sig nature having been appended animo attestendi, there was non compliance with section 81(3). The learned Solicitor General while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that the signature at the end of the copy was meant only as a copy of that in the original petition and could not satisfy the requirement as to attestation of the copy. He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy, even if the words 'true copy ' were omitted to be put down. In that case, he said, one signature could be treated as representing the copy of the signature on the original and the other might be taken to have been made animo attestendi. We do not however consider that there is really need for so much refinement when one has to look at whether there is a substantial compliance with section 81(3), seeing that a signature in origisignatures now found on the copies were intended to authenticate the document to which it is appended, viz., the copy, it would only mean that the copy did not reproduce the signature in the original. There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a noncompliance with the requirement of this provision. If the nal was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court in Murarka 's case(1) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances, we consider that there has been substantial compliance with the requirement of section 81(3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal of the petition. The appeal is accordingly allowed and the order of the High Court dismissing the petition is set aside. As owing (1)[1964] 3 section R. 573 229 to the filing of the Writ Petition there has been a considerable delay in the trial of the Election Petition, we express the hope that the petition would be heard and disposed of at an early a date as is conveniently possible. The appellant will be entitled to his costs here and in the High Court which will be paid by the contesting third respondent. Appeal Allowed.

IN-Abs

The third respondent was declared elected to the Legislative Assembly of Andhra Pradesh in the general election held in 1962. The appellant, a voter of the constituency filed an election petition challenging 214 the election of the third respondent on several grounds including corrupt practices. The petition was accompanied by the requisite number of copies which were true copies and each of them bore the signature of the petitioner. But there was no attestation at the foot of the copies that they were true copies. The third respondent raised various preliminary objections and the Election Tribunal rejected all of them. Thereupon he filed writ petition in the High Court praying for the issue of a writ quashing the Tribunal 's order. His main contention was that since the copies of the petition did not contain an attestation stating that the copies were true copies there has been a violation of the mandatory provision of section 80(3) of the Representation of the People Act, 1951. The High Court accepted the contention and issued a writ as prayed for. The present appeal was filed with special leave granted by this Court. HELD:(i) If there is a total or complete non compliance with the provisions of section 81(3) the election petition might not be "an election petition presented in accordance with the provisions of the part" withins. 80 of the Act. (ii)By the expression "copy" in section 81(3) it was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original. Murarka vs Roop Singh ; , referred to. Noseworthy vs Overseers Buckland etc., L.R. 9 C. P. 233 and Spice vs Bacon, , distinguished. (iii)In the present case the signatures on the copies cannot be held to have been merely intended to be a copy of those on the original, since a signature in original was not needed on the copy and writing or copying out the name of the signatory would suffice. The absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. The facts and circumstance of the case show that there has been a substantial compliance. with the requirement of section 81(3). The wider question whether section 81(3) or as part thereof is mandatory or directory is left open. The appeal is allowed. Murarka vs Roop Singh ; and Kamaraj Nadar vs Kunjer Thevar, followed.

Appeal No. 330 of 1960. Appeal from the judgment and decree dated March 18, 1954, of the Calcutta High Court in Appeal from Original, Decree No. 80 of 1947. section T. Desai and B. P. Maheshwari, for the appellants. B. Sen, N. R. Ghosh, Salil K. Datt and P. K. Ghosh, for the respondents Nos. 1 and 2. January 13, 1964. The Judgment of the Court was delivered by AYYANGAR J. This is an appeal preferred, by virtue of a certificate of fitness granted by the Calcutta High Court, against its judgment, by which the decree passed by the Subordinate Judge of Darjeeling was substantially affirmed. The plaintiffs are the appellants before this Court. The suit out of which the appeal arises was brought by the appellants claiming title to and the recovery of possession of a property known as the Azambad Tea Estate which comprised about 378 acres of land in Touzi No. 911 of the Darjeeling Collectors. This property was set out in Schedule A to the plaint and besides a claim was also made to certain other items of the movable and certain other tenures, but this appeal is not concerned with these others which were set out. in Schs. B and C to the plaint. 195 One Kazi Azam Ali was admittedly a full owner of this entire property and the proceedings giving rise to the appeal are concerned with the rights of his heirs to it. The plain tiffs claim their title on the basis of various purchases from the heirs of this Azam Ali. The contesting defendants were the Azamabad Tea Co. who also claim the entire property as transferees from the National Agency Co. Ltd., who too have been impleaded as defendants. The National Agency Co. Ltd. claim to have purchased the entire 16 as. interest in the property at a Court sale in pursuance of a decree obtained by them against Kazi Mohammed Ismail, the eldest son of Azam Ali. Various contentions were raised by the plaintiffs in challenge of the validity of the transactions by which the defendants claimed their title. But the learned Subordinate Judge repelled the plaintiffs ' claim and held that the purchase by the National Agency Co. Ltd. was valid and extended to the entire interest in the property and that in consequence the plaintiffs ' vendors had no title to convey to them any interest in the property. The plaintiffs ' claim of the property in respect of Sch. A was therefore dismissed. The plaintiffs preferred an appeal to the High Court and the learned Judges upheld the title of the plaintiffs to an 8 pies share in the property mentioned in Sch. A to the plaint but confirmed the decree of the Subordinate Judge as regards the rest. The learned Judges however granted a certificate of fitness to the plaintiffs on the strength of which the present appeal has been filed. The history of the transactions before the suit occupies a period of over 20 years and the facts in relation thereto are at once long, voluminous and complicated. But, for the disposal of the appeal and the points urged before us it is wholly unnecessary to set these out and we shall therefore confine ourselves to a narration of the bare outlines of the case along with those facts which are necessary to appreciate the contentions raised in support of the appeal. The property covered by the Tea Estate was granted by Government by way of lease to one Mudir and another for 30 years, the term to start on the 1st of April 1898. The grantees effected transfers of their lease hold and after several successive transfers the property was purchased in 196 1913 by one Kazi Azam Ali who got his name registered as a proprietor. It was Azam Ali who started the tea garden. constructed the requisite factories as accessories thereto and named it the Azamabad Tea Estate. Azam Ali had several children and among them 8 daughters and in consideration of gifts made to them, these daughters by a registered deed executed in 1909 relinquished their rights of succession to Azam Ali. They thus faded away from the picture and no more notice need be taken of them. Besides these 8 daughters, Azam Ali had 8 sons who survived him and were among his heirs, when he died on June 8, 1917. Mohammed Ismail was the eldest of these sons. Azam Ali also left behind him a daughter who was born after ' the relinquishment of 1909 and three widows. Admittedly the sons of Azam Ali, his widows and his last daughters were all his heirs entitled to his estate in the shares as prescribed by Muslim Law. On Azam Ali 's death his eldest son Ismail had his name entered in the Government records as the next in succession and at the time the thirty years term of the lease expired, the lease continued to remain in the name of Ismail alone. We now proceed to the transactions as a result of which the contesting defendants claim to have obtained the full title to the Tea Estate. Ismail made large borrowings and among them were some from the National Agency Co. Ltd. and for securing the loan he deposited with them the title deeds of the Tea Estate. It may be mentioned that the deposit was on the footing that he was the full owner of the 16 as. share of the property mortgaged. The amount due under the mortgage was not paid in time and the mortgagee filed a suit for the enforcement of its mortgage and prayed for the sale of the property for the realisation of the mortgage money. The suit was decreed as prayed for and the property was sold in execution of the final decree and was purchased by the mortgage decree holder on September 24, 1931. The sale was confirmed on November 13, 1931. This decree holder purchaser sold the property to the Azamabad Tea Estate the principal respondent before is. There was some little controversy as regards the reality and effectiveness of the transfer of the property from the National Agency Co. Ltd. to the Azamabad Tea Estate, 197 but nothing turns on this, for even if that transfer was not effective that would not help the plaintiffs so long as they could not displace the title of the National Agency Co. Ltd. under the latter 's court auction purchase. The case of the plaintiffs rested on the fact that Ismail who got himself registered as if he were a full proprietor of the lease hold interest in Touzi 911 was merely one of several co sharers of Azam Ali 's estate to whom it passed on his death. The lease hold which was his property was according to them inherited by all his heirs including Ismail, the seven other sons, the three widows and the daughter born after 1909. The term of the lease granted by the Government expired in 1928 and a renewed lease was granted in the name of Ismail alone. Rival contentions were urged as regards the effect of this circumstance on the right of Ismail. It was the case of the contesting respondents that the lease granted in 1928 in favour of Ismail was his sole and individual pro perty and even if for any reason the other heirs of Azam Ali had an interest in the previous lease hold, they did not have any such interest in the property covered by the fresh lease. On the other hand, the case of the plaintiffs was that by the renewal of the lease, Ismail obtained qua his co heirs the same interest as he formerly had in the lease of 1898. The renewal, they stated, was for the benefit not merely of Ismail but for everyone of his co heirs who still retained his or her interest in Azam Ali 's estate. On this basis the plaintiffs raised the contentions that when by the sale in execution of the mortgage decree obtained by the National Agency Co. they purchased the property mortgaged, it was only the interest of Ismail that passed to them and not those of his co sharers who were no parties to the mortgage, There is one further transaction to which we must advert before passing on to the next stage of the proceedings. After the mortgage by deposit of title deeds in favour of the National Agency Co., Ismail transferred his entire interest in the mortgaged property, that is, in the equity of redemption, to his wife Mst. Nazifannessa, by a deed dated May 6, 1930. Notwithstanding this deed and this transfer of the equity of redemption Mst. Nazifannessa was not made a party to the 198 mortgage suit by the National Agency Co. The plaintiffs who claim to have acquired Mst. Nazifannessa 's interest contended that by reason of the failure to implead Nazifannessa in the mortgage action, her right to redeem the mortgage was still in tact in spite of the mortgage decree and the sale in pursuance thereof, and on this footing made a claim in the alternative to redeem the mortgage in favour of the National Agency Co. and obtain possession after re demption. To complete the narrative of the relevant facts, very soon after the purchase in Court auction in execution of the mortgage decree, the heirs of Azam Ali brought a suit (58 of 1931) to set aside the decree and the sale in favour of the National Agency Co. Ltd. on various grounds collusion, fraud, the circumstance that Ismail was merely a co sharer entitled to about 2 1/2 as. share in the property and so could not mortgage more than that share, and that the decree could not bind a larger interest nor the sale convey anything more than that share, even if it conveyed any title to the property. This suit however did not proceed to trial, but was dismissed for default, in that the plaintiffs did not appear in Court on the date fixed for trial. The only other matter to be mentioned is that the plaintiffs have, by their purchases, acquired from the several co heirs, directly or mediately, the entire 16 as. share in the property assuming that their vendors had any such right. Armed with these purchases the plaintiffs filed this suit for the reliefs already indicated. The defences raised to the suit were three fold: (1) That Ismail was the sole proprietor of the Tea Estate at the date of the mortgage and consequently the entire interest was the subject of mortgage and so passed at the court sale. This was based on the provisions of the Crown Grants Act, now the Government Grants Act. It would be recollected that the thirty years lease of Touza 911 was renewed in 1928 and this renewal was made in the name of Ismail alone. Based on this feature a contention was raised that the grant of the lease created a new title in the grantee since the original lease in 199 which alone the heirs of Azam Ali might have had a share was extinguished by the termination of that lease by efflux of time. (2) The second line of defence was that Ismail, even if in fact or law was not the full owner, was an ostensible owner of the entire interest in the property and that the co heirs were estopped from questioning the validity of the mortgage of the entire interest effected by him under section 41 of the Transfer of Property Act and that in conse quence the sale in execution passed the entire 16 as. share to the purchaser. (3) Lastly, it was urged that the plaintiffs ' suit was liable to be dismissed by reason of the provisions of 0. IX, r. 9 of the Civil Procedure Code as the earlier Original Suit 58 of 1931 brought by the co heirs to set aside the sale under the mortgage decree had been allowed to be dismissed for default. The learned Judges of the High Court rejected the first two of the defences but held that except to the extent of an eight pies share which represented the interest of a co heir which was not affected by the proceeding in Suit 58 of 1931, the plaintiffs were precluded by 0. r. 9, Civil Procedure Code from disputing the sale in execution of mortgage decree by reason of the dismissal for default of Suit 5 8 of 1931. Before proceeding to set out the arguments addressed to us by Mr. Desai, learned counsel for the appellants, it might be convenient to dispose of the submissions made to us by Mr. Sen, learned counsel for the respondents, seeking to ,sustain the first two defences which were repelled by the High Court. The first of them was that by reason of the renewal of the lease in 1928 in the name of Ismail and the entry of his name as sole lessee in the revenue records, the leasehold became his sole property. Apart from the arguments about Ismail being the ostensible owner of the entire 16 as. share in the lease hold under the lease of 1898 which we shall consider a little later Mr. Sen did not dispute that 200 Ismail 's co heirs were entitled to their fractional shares in the property under the original lease. The acceptability of this argument regarding the renewed lease has to be determined on the basis of two factors first the intention of the parties, and here primarily of the grantor, as to the nature and quantum of the title intended to be conferred on or obtained by Ismail and, second, the provisions of the Crown, Grants Act which governed the grant on which reliance was placed as leading to that result. First, as to the intention of the parties. The original lease of 1898 was due to expireon March 31, 1928. On July 20, 1928 Mohd. Ismail made a petition to the Deputy Commissioner, Darjeeling by which after drawing the latter 's attention to the date on which the lease was to expire, he "respectfully solicited the favour of ' kindly granting a further lease of the said Estate for a further period of 30 years. " The Deputy Commissioner replied by letter dated August 10, 1928 sending Ismail the draft of the renewed lease for his approval and return adding "in the record of rights the following names have been recorded: 1. Kazi Mohammed Ismail 2 as.; 2. Kazi Isahaque 2 as.; 3. Kazi Yakub 2 as.; 4. Kazi Samoddoha 2 as.; 5. Kazi Nurul Huda 2 as.; 6. Kazi Badarudduza 2 as.; 7. Kazi Insaf Ali 2 as.; 8. Kazi Asfaque 2 as. ; Please mention the name in whose favour the lease will have to be issued." Ismail returned the draft lease with his approval but desired that the lease should be issued according to the name in the land register. We are unable to read this request as meaning that Ismail, contradicting what the Government said, wanted that the leasehold interest should be his sole property in which his co heirs who had interest in the earlier lease were to be denied all beneficial interest. It was thereafter that the lease was executed on February 1, 1929 in the name of Ismail to be operative from April 1, 1928 and was in terms in renewal of the previous 201 lease. In the circumstance, we are satisfied that the Gov ernment intended to grant a lease in favour of his co sharers as well, though the lease deed was in the name of Ismail alone. If Ismail intended to benefit himself at the expense of his co sharers and as we have said, we do not read his reply to the Deputy Commissioner as disclosing such an intention, the same was not made known to the Government. We are therefore unable to accept Mr. Sen 's submission based on the intention of the parties. He, however, submitted that whatever be the intention of the parties, by reason of section 3 of the Crown Grants Act Ismail 's title to the full 16 as. share in the leasehold could not be disputed. This section reads: "3. All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to (their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding. " If, as we have held. it was the intention of the Government in granting the renewal that the co heirs too should have the benefit of the lease we do not see how these provisions affect their beneficial interest in the lease. Nor are thereany clauses in the lease which preclude the existence of abeneficial interest in persons other than the lessee named. This point is therefore without substance and is rejected. The next point urged was based on section 41 of the Transfer of Property Act. It was said that Ismail was by reason of the entry in the revenue registers, which the co heirs did nothing to correct, ostensibly the full owner of the property and hence the mortgage by him as full owner and the sale in court auction in execution of the decree by the National Agency Co. Ltd. passed the full title to the Tea Estate and that the co heirs were consequently estopped from disputing the defendant 's right to the full 16 as. share in the property. In order that section 41 of the Transfer of Property Act could be attracted, the respondents should prove that Ismail was the ostensible owner of the property with the consent of his co sharers and besides that they took reason able care 202 to ascertain whether Ismail had the power to make a transfer of the full 16 as. interest. Now, the facts however were that except the property being entered in the revenue records in Ismail 's name, and that the management of the property was left by the co sharers with Ismail, there is not an iota of evidence to establish that Ismail was put forward by them as the ostensible owner of the property. It is manifest that the conduct of co sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights. The learned Judges have also pointed out that even the least enquiry by the mortgagee would have disclosed that Ismail was not the full owner and this finding was not seriously challenged before us. In this view it is unnecessary for us to consider the submissions made to us by Mr. Desai that section 41 was inapplicable to cases of sales in court auctions for the reason that what the court is capable of selling and what is sold in execution of a decree is only the right, title and interest of the judgment debtor and nothing more. We, therefore, hold that the learned Judges of the High Court rightly held that section 41 of the Transfer of Property Act afforded no defence to the respondents. The next and the only point remaining for consideration is whether the appellants ' suit is barred under the provisions of 0. r. 9, Civil Procedure Code. The part of this provision material for our purpose runs: "Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. " The learned Judges of the High Court have held that this provision barred the plaintiffs ' claim in the present suit except to the extent of an 8 pies share in the estate which belonged to Azifunnessa and Najifennessa, two of the daughters of Azam Ali, who on the death of their mother became entitled to that share. These two were not the parties to suit No. 58 of 1931 and hence the learned fudges held that their share (which was purchased 'by the plaintiffs) was unaffected by the dismissal of that suit. 203 The decision of the High Court in regard to this 8 pies share has become final and thus is outside controversy. The ,only question is whether the plaintiffs appellants are entitled to anything beyond this share. The suit, 58 of 1931, was instituted by 7 plaintiffs Ashfaq, Shamsuzzoha, Nurul Huda, Mohd. Yakub, these four being the sons of Azam Ali, two of his daughters Mahbuba Khatun and Habiba Khatun and one of his widows Bibi Marium. There were two defendants the National Agency Co. Ltd. the purchaser in court sale of the property under the mortgage decree, whose title was challenged and against whom reliefs were claimed and Mohd. Ismail who was a pro forma defendant. Ashfaq, The first plaintiff, died after the institution of the suit and certain of the parties already on record were recorded as his legal representatives. The allegations in the plaint briefly were that the 2nd defendant Mohd. Ismail was not tile sole proprietor or owner of the Azamabad Tea Estate and that for that reason, the mortgage in favour of the 1st defendant, the mortgage decree obtained by it and the sale thereunder passed to it no title except to the extent of 2 1/2 as. share belonging to Mohd. Ismail. The plaintiffs therefore prayed for a decree declaring (1) that Mohd. Ismail had only 2 1/2 as. share in the property and the remaining 132 1/2 as. share belonged to the plaintiffs; (2) that only 2 1/2 as. share was sold under the mortgage decree and purchased by the National Agency Co. Ltd. at the court sale. The suit was instituted on 28th November, 1931 and after the issues were settled, the suit was posted for trial on 22nd August, 1932, on which date the plaintiffs were absent, no witnesses on their behalf were present, and their pleader reported no instructions. The suit was therefore directed to be dismissed with costs in favour of the National Agency Co. Ltd. who was the only party present in Court. It may be mentioned that Mohd. Ismail never appeared during the hearing of the suit. 204 Before taking up for consideration certain points urged before us by Mr. Desai regarding the construction of 0. IX r. 9 C.P.C. we might dispose of a contention raised by him that Suit No. 58 of 1931 was filed fraudulently and collusively and the dismissal was the result of a settlement brought about collusively in order to defeat the plaintiffs ' rights. We consider that there is no factual basis to sustain, this plea for he could point to no definite proof in support, and the most he could do was to refer us to certain suspicious circumstances. We cannot obviously base any decision or rest any finding, on mere suspicion and we have no hesitation in saying that the submission does not deserve serious consideration. The next submission was that even the 212 as. share of Ismail did not pass under the sale in execution of the mortgage decree, because it was said Ismail had been, adjudicated an insolvent in Insolvency Case 38 of 1931 by the Dist. Judge Purnia, as a result of which the properties which were the subject of the court sale had vested in the official receiver before the relevant date. Though, no doubt, an allegation regarding this matter was made in the plaint and this was denied by the plaintiffs there is nothing in the judgments of the courts below or in the, evidence to indicate that the necessary facts were proved or that this point was urged with any seriousness at any stage of the proceedings until in this Court. We have therefore nothing beyond the bare allegations and denials and as the full facts in relation to this matter were not placed before the Court we hold that this plea is devoid of merits and does not merit consideration. It was next said that two of the plaintiffs in suit No. 58 of 1931, Nurul Huda and Habiba Khatun, a son and a daughter of Azam Ali were really adults but were shown in the cause title as minors represented by their respective natural guardians as their next friends and that as these adults could not in law be represented by persons purporting to act as their guardians they could not be held to be parties to the suit and hence their interests could not be affected by the dismissal of the suit. This also is one of the matters in respect of which the plaintiffs beyond a mere pleading which was denied, made no grievance in the courts 205 below and the facts in relation to this issue, namely, the age ,,of the two plaintiffs at the date of the plaint not having been clearly proved, we do not find it possible to entertain the plea at this stage. Mr. Desai, then submitted that Ashfaq who had figured as the first plaintiff in suit No. 58 of 1931 had already on April 18, 1931 transferred his 2 as. 13 gandas and odd share in Touzi No. 911 to one Pir Baksh from whom the plaintiff obtained a conveyance by a deed dated September 2, 1943 of what he had purchased from Ashfaq. For this reason he urged that on the findings on the merits of the title in favour of the plaintiffs on the first two defenses we have dealt with earlier the plaintiffs should have been granted .a decree to this share of Ashfaq in addition to the 8 pies share decreed to them by the High Court. No doubt, if this transaction were made out and was real, it would stand on the same footing as the 8 pies share in regard to which a decree was granted in favour of the plaintiffs by the judgment now under appeal. We shall however consider this matter after dealing with the point urged as regards the construction of 0. r. 9, Civil Procedure Code, which was his main submission and which, if upheld, would entirely eliminate the bar under this provision of law. On this the first submission was that the rule which spoke of the "plaintiff" being precluded from bringing a fresh suit created merely a personal bar against the plaintiff in the first suit and that in the absence of words referring to the representatives of the plaintiff or those claiming under the plaintiff as in section 11 or section 47 of the Civil Procedure Code, the bar was not attracted to cases where the subsequent suit was by the heirs and assigns of that plaintiff. In support of this submission Mr. Desai invited our attention to the observations of Das J. in Gopi Ram vs Jagannath Singh(1) where this argument was characterised as a weighty one and examined elaborately. Though the learned Judge decided this matter on quite a different line of reasoning, he referred to various earlier decisions which appeared to him to favour the view submitted to us by Mr. Desai and expressed his hesitation in (1) L.L.R. 9 Pat. 447 at P. 454. 206 rejecting that construction. We are not however impressed by the argument that the ban imposed by 0. r. 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. Beyond the absence in 0. r. 9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant this argument. It has neither principle, nor logic to commend it. It is not easy to comprehend how A who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property could effect a transfer of his rights to that property and confer on the transferee a right which he was precluded by law from asserting. There are, no doubt, situations where a person could confer more rights on a transferee than what he possessed but those are clearly defined exceptions which would not include the case now on hand. This argument was addressed to the High Court and the learned Judges characterised it as startling, a view which we share. The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward. Aga in to say that an heir of the plaintiff is in a better position than himself and that the bar lapses on a plaintiff 's death, does not appeal to us as capable of being justified by any principle or line of reasoning. In our opinion, the word "plaintiff ' in the rule should obviously, in order that the bar may be effective, include his assigns and legal representatives. It was next urged that 0. r. 9 precluded a second suit in respect of "the same cause of action" and that the cause of action on which Suit 58 of 1931 was laid and the present suit Title suit 18 of 1943 was not the same and so, the bar was not attracted. In view of this argument it is necessary to examine them cause of action on which the present suit has been filed and compare and contrast with that in Suit 58 of 1931. Closely analysed the material allegations to found the cause of action on which reliefs were claimed in the present suit 207 were (i) That the Tea Estate was originally the property of Azam Ali. When he died his estate was inherited by his 8 sons, his widows and a daughter. That the registration of the estate in the name of Md. Ismail was as a co sharer, the property belonging beneficially to all the heirs. This position was not altered by the termination of the first lease and its renewal in 1928 for a further period of 30 years. All the co heirs lived as a joint family with a common mess and hence there was no question of any adverse possession by Md. Ismail whose possession was not as sole proprietor or exclusive. The suit on the mortgage was fraudulent and collusive, by Ismail colluding with the mortgagee to defraud his co heirs. Details were mentioned as evidence of the fraud and collusion. The sale in pur suance of the decree which was passed ex parte was also fraudulent. On the date of the auction Ismail had no title even to the 2 1/2 as. share because of his adjudication as an insolvent earlier. The manner in which the 8 pies share of the daughters was obtained by the plaintiff was set out, and similarly the purchase by them through Pir Baksh of the share of Ashfaq. The other purchases by the plaintiffs whereby they claimed to have obtained the 16 as. share in the Tea Estate were set out. The plaint then went on to refer to suit 58 of 1931 and set out their case as regards the nature of that litigation and its effect. Lastly, they pleaded that they had obtained possession of the Tea gardens on October 10, 1934 and that on the next day the defendants moved the Magistrate for an order under section 144, Criminal Procedure Code and that the Magistrate had made an order against the plaintiffs restraining them from interfering with the possession of the defendants which necessitated their bringing the suit for the reliefs we have set out earlier. We have already summarised the material allegations which were made in Suit 58 of 1931. The material difference between the cause of action alleged in the present suit consists only in the addition of the allegations about the possession and dispossession in October, 1934. This suit is based on the title of the plaintiffs by reason of their purchases and admittedly their vendors would have nothing to convey if the court sale conveyed, as it purported to 208 convey, the full 16 as. interest in the Tea garden to the National Agency Co. Ltd. It was because of this that allegations were made to sustain their title and this could be done only if they established want of title to the extent of 16 as share in Ismail, the consequent ineffectiveness of the mortgage effected by Ismail and of the decree obtained in pursuance thereof and of the court sale in execution of that decree, being confined at the most to 2 1/2 as. share belonging to Ismail. These allegations which were fund amental to the plaintiffs ' case were identical with those which had been made in suit No. 58 of 1931. Bearing these features in mind, the proposition that Mr. Desai submitted for our acceptance was briefly this. A cause of action is a bundle of facts on the basis of which relief is claimed. If in addition to the facts alleged in the first suit, further facts are alleged and relief sought ,on their basis also, and he explained the additional facts to be the allegations about possession and dispossession in October, 1934, then the position in law was that the entire complexion of the suit is changed with the result that the words of 0. r. 9 "in respect of the same cause of action" are not satisfied and the plaintiff is entitled to reagitate the entire cause of action in the second suit. In support of this submission, learned counsel invited our attention to certain observation in a few decisions to which we do not consider it necessary to refer as we do not see any substance in the argument. We consider that the test adopted by the Judicial Committee for determining the identity of the cause of action in the two suits in Mohammed Khalil Khan and Ors. Mahbub Ali Mian and Ors. (1) is sound and expressescorrectly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O. 11 r. 2 of the Civil Procedure Code, observed: "In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test (1)75 1. A. 121. 209 to be applied is: are the causes of action in the two suits in substance not technically identical?" The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorijamonee Dasee vs Suddanund(1) and extracted the following passage as laying down the approach to the question : "Their Lordships are of opinion that the term 'cause of action ' is to be construed with re ference rather to the substance than to the form of action. . .". Applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits. The property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same facts viz., the position of Md. Ismail quoad his co heirs and the beneficial interests of the latter not being affected or involved in the mortgages, the mortgage decree and the sale in execution thereof. No doubt, the plaintiff set up his purchases as the source of his title to sue, but if as we have held the bar under 0. r. 9 applies equally to the plaintiff in the first suit and those claiming under him, the allegations regarding the transmission of title to the plaintiffs in the present suit ceases to be material. The only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession. Their addition, however, does not wipe out the identity otherwise of the cause of action. It would, of course, have made a difference if, without reference to the antecedent want of fun title in Ismail which was common to the case set up in the two plaints in Suit 58 of 1931 and Suit 18 of 1943, the plaintiffs could, on the strength of the possession and dispossession or the possessory title that they alleged, have obtained any relief. It is, however, admitted that without alleging and proving want of full title in Md. Ismail the plaintiffs could be granted no relief in their present suit. (1) ,315. 134 59S.C 14 210 The question is whether the further allegations about possession in October, 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits. This can be answered only in the negative. The learned Judges of the High Court therefore correctly held that the suit was substantially barred by O. IX. It now remains to consider the claim of the plaintiffs to the 2 annas 13 odd gundas share of Ashfaq. In paragraph 52 of their plaint the plaintiffs stated that by a registered sale deed executed on April 18, 1931 Ashfaq, the son of Azam Ali sold the entire interest which he possessed in the Azamabad Tea Estate to Pir Baksh in pursuance of a Bainama dated April 7, 1930 and put him in possession, and in the succeeding paragraph they set out their purchases of this share by a Kabala dated September 2, 1943. In the joint written statement filed on behalf of the defendants 1 and 2 these allegations were controverted. The execution of the sale deed in favour of Pir Baksh was denied and it was further stated that even if the sale deed were proved to have been executed it was a sham and nominal transaction and therefore inoperative to pass title. Though no specific issue in relation to this sale to Pir Baksh was raised, there was a general issue (Issue No. 8) which related to the plaintiff 's acquiring title to the Tea Estate. Ile sale deed by Ashfaq was filed and marked as exhibit 12(i) and the sale in favour of the plaintiffs by Pir Baksh as exhibit 12(c). The effect however of this sale to Pir Baksh on the rights of the plaintiffs to relief does not appear to have been raised before the learned trial Judge. It may be pointed out that the learned trial Judge held that Ismail was the full owner of the property under the lease granted in 1928, by reason of the provisions of the Crown Grants Act and even if this were not so, he held that his co heirs had consented to put him forward as the ostensible owner of the property with the result that they were ' estopped from impeaching the mortgage and the sale of the property in execution of the mortgage decree. It is therefore possible that because of the view which the learned trial Judge was inclined to take of the title of Md. Ismail, the plaintiffs did not seriously put forward their rights under their purchase from Pir Baksh, because if the learned trial Judge was right, the sale by Ashfaq to Pir Baksh even if real 211 would not have helped the plaintiffs to obtain any relief. In this connection it may be pointed that the plaintiffs claim to the 8 pies share which was allowed in their favour by the High Court, was not pressed in the trial court. Even in the High Court, however, the point arising from the sale by Ashfaq to Pir Baksh does not seem to have been pressed. We shall presently advert to and examine the submissions made to us by Mr. Sen as regards the merits of this claim to the share of Ashfaq, but before doing so we must refer to a point raised by Mr. Sen which necessitated a prolonged adjournment of the appeal after the main arguments were heard. After pointing out that the plaintiffs did not agitate or press before the courts below any special right based on the purchase of Ashfaq 's share through Pir Baksh, he submitted that this might possibly have been because the property covered by the sale deed exhibit 12 (i) did not comprise Touza No. 911 the Azamabad Tea Estate. There was scope for this submission because in the record as printed for the use of this Court, the Schedule annexed to the sale deed exhibit 12(i) was not printed but only the portion containing the description of the parties and the words of conveyance, with the result that Mr. Desai was unable to make out whether as a fact Ashfaq 's interest in the suit property was sold under exhibit 12(i). To make matters worse the Schedule to the sale deed of 1943 executed by Pir Baksh was also not translated and printed in the record prepared for the appeal. In view, however, of the categorical statement in the plaint as regards the indentity of the property conveyed under exhibit 12(i) with Ashfaq 's share in the Azamabad Tea Estate, we considered that the appellant 's submission could not be rejected as frivolous. We therefore acceded to the request of Mr. Desai and called foe the original of exhibit 12(i) from the High Court so that counsel might make submissions to us as regards the identity of the property conveyed. The document was accordingly obtained 'and translated for the use of the Court and when the appeal was again placed before us Mr. Sen admitted that the property conveyed by exhibit 12(i) was Ashfaq 's 2 as. 13 gundas odd interest in Touza No. 911. 212 Coming now to the merits of the plaintiff 's claim, it is common ground that if the sale by Ashfaq were real and intended to pass title to Pir Baksh, the plaintiffs would be entitled to a decree for a declaration that in addition to the 8 pies share granted to them by the High Court, they would be entitled to a further 2 as. 13 gundas share of Ashfaq in the plaint A Schedule property. Mr. Sen 's submission, however, was that we should not entertain or give effect to this claim, because several circumstances throw grave suspicion on the reality of the transaction, and that in any event the claim could not be accepted without careful scrutiny of the facts. Having regard to the definite case raised in the pleadings, we are not disposed to reject the claim merely because the same was not pressed in the courts below. Besides we cannot ignore the circumstance that the sale deeds exhibit 12(i) and 12(c) on which the claim was based were filed in the trial court, and Pir Baksh was examined to formally prove these deeds as the 31st witness for the plaintiff. Moreover, even though as regards certain other transfers, the trial Judge recorded findings that they were nominal, there was no such finding as regards the sale by Ashfaq. In view of these features, we have decided not to reject the claim of the plaintiffs based on this ground. There are, however, certain features which throw some suspicion on the reality of the transaction which Mr. Sen pressed before us which have led us to desist from ourselves passing a decree for this additional share in their favour. The circumstances to which Mr. Sen drew our attention were these; (i) though Ashfaq executed the sale deed exhibit 12(i) on April 18, 1931, he figured as the first plaintiff in Suit 58 of 1931 which was filed on 28th November, 1931, without adverting to the sale, a piece of conduct certainly not consistent with the sale being real and intended to pass title; (2) though in the plaint the necessary averments were made regarding their obtaining the share of Ashfaq through Pir Baksh, the claim under this head was not pressed before the trial court; (3) when the plaintiffs preferred an appeal to the High Court from the total dismissal of the suit, they did not raise any specific ground touching their right to this share, nor were any argument 213 addressed to the High Court on this point; and (4) there had been no mutation in the revenue records when this sale was effected and Pir Baksh who was examined as a witness admitted this fact. These circumstances are certainly capable of explanation, but they show that the claim of the plaintiffs cannot be accepted by us straightaway and a decree passed in their favour. In these circumstances, we consider that the proper order to pass would be to remit the matter to the trial Court for recording a finding as regards the reality of the sale on the evidence already on the record and to pass an appropriate decree in the suit, that is, if the sale under exhibit 12(i) were held to be real, the plaintiffs would be entitled in addition to the 8 pies share decreed to them by the High Court, to a further 2 as 13 gondas odd share belonging to Ashfaq which they obtained under exhibit 12(c) through Pir Baksh, and in the event of the sale not being held to be real to no more than what the High Court has decreed. With this modification, the appeal is dismissed with costs. Appeal dismissed.

IN-Abs

The property covered by the Tea Estate was granted by the Government by way of lease in 1898 for 30 years. In 1913 it was purchased ' by Azam Ali. When he died in 1917, he left behind 8 sons, 9 daughters and 3 widows. The name of Ismail, his eldest son, was entered in the official records as next in succession. Ismail borrowed considerable sums from National Agency Co. Ltd., and for securing the same, deposited the title deeds of the Tea Estate on the footing that he was its full owner. As the amount under the mortgage was not paid, a suite was filed for realisation of the amount by sale of mortgage property. 193 The suit was decreed and in execution the property was auctioned and sale was confirmed in 1931 in favour of the decree holder who sold the same to Azamabad Tea Estate, the principal respondent in this case. The heirs of Azam Ali brought suit No. 58 of 1931 to set aside the decree and sale in favour of the National Agency Co. Ltd., on ,various grounds but that suit was dismissed for default. The suit out of which the present appeal has arisen was filed subsequently. The plaintiffs appellants who claimed title under purchasers 'for the heirs of Azam Ali challenged the validity of the transactions by which the National Agency Co. Ltd. claimed to have purchased the entire 16 annas interest in the property at the court sale in pursuance ,of a decree obtained by them against Ismail. The trial Court held that the purchase made by the National Agency Co. Ltd. was valid and extended to the entire interest in the property and hence the venders of the plaintiffs had no title to convey to them any interests in the property. The High Court in appeal disagreed with this finding but dismissed the appeal on other grounds except to the extent of an 8 pies share in the property. The appellants came to this Court on a certificate of fitness granted by the High Court. The points raised before this Court were whether the High Court was right in holding that the present suit was barred by O. IX, r. 9 on the ,ground that when suit No. 58 of 1931 was dismissed in default, no action was taken to get it restored, this was raised by the respondent and whether in any event their claims to the 2 as 13 odd gundas share of Ashfaq, son of Ismail, should not have been decreed. HELD (i) that the suit was substantially barred by 0. TX, r. 9. The essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits the property sought to be recovered in the two suits was the same. The title of the ,persons from whom the plaintiffs claimed title by purchase was based ,on the same facts. The additional allegation about possession in October 1934 did not really destroy the basic and substantial identity of the ,causes of action in the two suits. The ban imposed by 0. IX, r. 9 does not create merely a personal bar or estoppel against the particular plaintiff suing on the same cause ,of action and does not leave the matter at large for those claiming under him. The word "plaintiff" in the rule includes his assigns and legal representatives. (ii)that when the Government granted the lease in 1928, the lease was granted not only in favour of Ismail but also in favour of the ,other co sharers although the name of Ismail alone was mentioned in the lease deed. The provisions of section 3 of the Crown Grants Act did not affect the beneficial interest in the lease. Section 41 of the Transfer of Property Act did not help the respondent as there was no evidence to show that Ismail was put forward by 134 159 S.C. 13 194 the other co sharers as the ostensible owner of the property. The conduct of the co sharers in permitting Ismail to manage the common property did not by itself raise any estoppel precluding them from asserting their rights. Even a cursory enquiry by the mortgagee would have disclosed that Ismail was not the full owner. As regards the contention of the appellants that they should have been granted a decree to the extent of 2 As. 13 odd gundas share of Ashfaq in addition to the 8 pies share decreed to them by the High Court, the case was ordered to be remitted to the trial Court for giving its finding regarding the reality of the sale by Ashfaq. Gopi Ram vs Jagannath Singh, I.L.R. 9 Pat. 447, Mohammad Khalil Khan vs Muhbub Ali Mian, 75 I.A. 121 and Soorijomonee Dasee vs Suddanund, (1873) 12 Ben. L.R. 304, referred to.

Appeal No. 815 of 1963. Appeal by special leave from judgment and order dated April 23, 1963, of the Madhya Pradesh High Court in 1st Appeal No. 23 of 1963. G.S. Pathak, B. A. Musodkar, section N. Andley and Rameshwar Nath, for the appellant. M. section Gupta, for respondent No. 1. December 20, 1963. The following Judgments were delivered: AYYANGAR J. On behalf of the Chief Justice and himself) We have had the advantage of perusing the judgment of our brother Subba Rao J. and we agree with him that the appeal should be dismissed. The justification for this separate judgment, however, is because of our inability to agree with him in his construc tion of the relative scope of the two limbs of section 29(2) of the Indian Limitation Act. The facts of the case have been set out in detail in the judgment of Subba Rao J. and it is therefore unnecessary to repeat them. There were three principal points that were urged before us on either side which require to be considered and all of them turn on the proper construction of section 29(2) of the Indian Limitation Act which we shall for convenience set out here: "29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and 133 (b) the remaining provisions of this Act shall not apply." The learned Judges of the High Court have proceeded on the basis that section 29(2)(a) applies to the case of appeals preferred under section 116 A of the Representation of the People Act, 1951 and on that footing have held that the appeal presented to them by the respondent was within time if computed after making the deductions permitted by section 12 of the Limitation Act. It is the correctness of this view that is challenged before. .us. Proceeding now to deal with the question whether the terms of section 29(2) are apt to take in appeals under the Re presentation of the People Act, the first matter to be con sidered necessarily is whether that Act is a "special or local law" within the opening words of the sub section. As to this, however, Mr. Pathak raised no dispute and he con ceded that section 116A was such a "special or local law. " That this "special or local law" prescribes "for an appeal a period of limitation" is also evident. The first point of controversy, however, has arisen as to whether "the period of limitation prescribed by the special or local Law is different from the period prescribed therefor by the first schedule. " The contention urged strenuously before us by Mr. Pathak, the learned counsel for the appellant, was that there would be "a different period" only where for the identical appeal (to refer only to that proceeding with which we are immediately concerned) for which a period of limitation has been prescribed by the special or local Law, a period is prescribed by first column of the first schedule. and there is a difference between the two periods. It was his further contention that where the Indian Limitation Act made no provision for such an appeal, section 29(2) and the provision contained in its (a) and (b) were inapplicable. There have been several decisions on this point but it is sufficient to refer to the decision of the Bombay High Court in Canara Bank Ltd., Bombay vs The Warden Insurance Co. Ltd., Bombay (1) where Chagla C.J. repelled this construction and held that even where there was no provision in the first schedule for an (1) I. L. R. 134 appeal in a situation identical with that for which the spe cial law provides, the test of "a prescription of a period of limitation different from the period prescribed by the First Schedule is satisfied. This Court in State of U.P. vs Smt. Kaushaliya etc.(1) upheld this construction and approved ,the judgment of Chagla C.J. in the Canara Bank case. Apart from the decision of this Court, we consider the reasoning of Chagla C.J. to be unexceptionable and we agree with Subba Rao J. in holding that the requirement of a prescription by the special law "of a period different" from that prescribed by the First Schedule is satisfied in the present case. The next point was one that arose on the submission of counsel for the respondent and it was this. Assume that the construction of the words "different from" urged by the appellant were accepted, and this requirement would be satisfied only if the First Schedule made provision for an identical appeal as that under the special law, still it was submitted by the respondent that even this was satisfied in this case. For this purpose he relied on article 156 of the first schedule which runs: Time from which "Description of Period of period begins to appeal limitation run 156. Under the Code of Civil Ninety days The date of Procedure, 1908, to a High decree or order Court, except in the cases appealed from." provided for by article 51 and article 153. The argument was that though the right of appeal in the case before us was conferred by section 116A of the Representation of the People Act and it was by virtue thereof that the appeal was filed by the respondent to the High Court, it was still an appeal "under the Code of Civil Procedure, 1908, to a High Court. " For this submission learned Counsel relied principally on two decisions one of the Calcutta and the (1) A. 1. R. 135 other of the Madras High Court, and they undoubtedly support him. In Aga Mohd. Hamdani vs Cohen and Ors.(1) as well as in Ramasami Pillai vs Deputy Collector of, Madura(1) which followed it the Court held that to attract this article it was not necessary in order to be an "appeal under the Code of Civil Procedure" within the meaning of those words in article 156, that the right to prefer the appeal should be conferred by the Code of Civil Procedure but that it was sufficient if the procedure for the filing of the appeal and the powers of the court for dealing with the appeal were governed by that Code. For adopting this construction the Court relied on the reference in article 156 to article 151. Article 151 dealt with appeals to the High Court from judgment rendered on the original side of that Court. The right to prefer these appeals was conferred by the Letters Patent constituting the respective High Courts and not by the Code of Civil Procedure, though the Code of Civil Procedure governed the procedure, jurisdiction and powers of the Court in dealing with the appeals so filed. There would have been need therefore to except cases covered by article 151 only if the words "under the Code of Civil Procedure" were understood as meaning appeals for the disposal of which the provisions of the Code of Civil Procedure was made applicable. We might mention that besides the Calcutta and the Madras High Courts a Full Bench of the Allahabad High Court also has in Daropadi vs Hira Lal (3 ) adopted a similar construction of the Article, the learned Judges pointing out that several Indian enactments, among them the Indian Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, proceeded on the basis of a legislative practice of con ferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application, of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that article 156 would furnish the period of limitation for such appeals. We consider that these deci (1) 1. L. R. (3) 1. L. R. 34 Allahabad 496. (2) 1. L. R. 136 sions correctly interpret article 156 and, in any event, we are not prepared to disturb the decisions which have stood for so long and on the basis of the correctness of which Indian legislation has proceeded. Mr. Pathak drew our attention to some decisions in which a different construction was adopted of the word "under" a particular enactment occurring in other Articles of the Limitation Act and in particular some dealing with appeals in certain criminal matters. In them the word 'under ' was understood as meaning "by virtue of". He was, however, unable to bring to our notice any decision in which the construction adopted of article 156 which we have set out has been departed from. In the cases dealing with the words "under the Criminal Procedure Code" which he placed before us, the situation would obviously be different, since the indication afforded by the mention of article 151 in article 156 does not figure in the Articles dealt with. Therefore that would be a circumstance pointing to a different result. If the construction adopted of article 156 in the Calcutta and Madras decisions to which we have referred were upheld, there could be no controversy that an appeal under section 116A of the Representation of the People Act would be "under the Code of Civil Procedure", for section 116A(2) enacts, to read the material portion: "116A. (2) The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate juris diction. . . . . In this view even on the narrowest construction of the words "different from those prescribed therefor in first schedule" occurring the opening part of section 29(2), the exclusion of time provided for by article 12 of the Limitation Act would be permissible in computing the period of limitation for filing the appeal to the High Court in the case before us. 137 The last point which remains for consideration is one which would be material only in the event of the two points we have already dealt with being decided differently. This relates to the relationship or inter connection between the first and the second limbs of section 29(2) of the Limitation Act. The reason why we are dealing with it is because of our inability to agree with the construction which our learned brothers Subba Rao & Mudholkar JJ. have placed on this feature of the sub section. Sub section (2), it would be seen, consists of two parts. The first sets out the conditions to which the special law should conform in order to attract section 3 and that part ends with the words 'as if such period were prescribed therefor in that schedule". This is followed by the conjunction 'and ' that word by the second part reading "for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. " The question that has been debated before us is whether the condition postulated by the first limb, namely the special or local law prescribing a period of limitation for a suit appeal etc. different from the period prescribed therefor by the first schedule has to be satisfied in order to render the provisions of cl. (a) applicable. If the conjunction 'and ' was used for the purpose of indicating that the two parts were cumulative, that is, if the two parts operated in respect of the same set of circumstances, then unless the opening words of sub section (2) were satisfied, there would be no basis for the application of cl. (a) to the period prescribed for a suit, appeal or application applicable by the special or local law. If on the other hand, the two parts of the sub section could be read independently as if they made provision for two separate situations, the result would be that the words starting from "for the purpose 138 of determining any period of limitation prescribed for any suit, appeal or application by any special or local law" followed by clauses (a) & (b) would be an independent provi sion unrelated to the first part and therefore could operate unhampered by the condition set out in the first part. In other words, if the latter construction were adopted for every suit, appeal or application for which a period of limitation was prescribed by a special or local law, the provisions in sections 4, 9 to 18 & 22 would apply unless excluded. Mr, Pathak urged that the conjunction 'and ' could in the context be construed only as rendering the second limb a part and parcel of the first, so that unless the conditions laid down by the opening words of the sub section were satisfied, the provisions of the Limitation Act set out in cl. (a) would not be attracted to "determine the period of limitation ' prescribed by the special or local law. The question of the import and function of the conjunction 'and ' was the subject of elaborate consideration by a Full Bench of the Allahabad High Court in a decision in Sehat Ali Khan vs Abdul Qavi Khan(1). The majority of the learned Judges held that the two parts of the sub section were independent and that "for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law". (a) would apply unless excluded. Raghubar Dayal J. then a judge of that Court, however, dissented from this view and held that the entire sub section (2) had to be read as an integrated provision and that the conjunction 'and ' connected the two parts and made it necessary for attracting cl. (a) that the conditions laid down by the opening words of sub section (2) should be satisfied. Mr. Pathak recommended for our acceptance the dissenting judgment of Dayal J. We consider that the view expressed by Raghubar Dayal J. as to the inter relation of the two parts of the sub section reflects correctly our own construction of the provision. Raghubar Dayal J. has approached this question of construction from several angles including the grammar of the passage. Without going into any of them, we would rest our decision on a shorter ground. In order that the second part might be held to be independent ,of the first, the first part should itself be complete and be 1. L. R. [1956]2 Allahabad 252. 139 capable of operating independently. Unless this test were satisfied, the conjunction 'and ' would have to be read as importing into what follows it, the conditions or consideration set out earlier as otherwise even the first part would be incomplete. Let us now see whether the first part could function without the second. The first part reads "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the first schedule the provision of section 3 shall apply as if that period was prescribed therefor in that schedule. " The question is what this, standing by itself, would signify. If the conditions prescribed by the opening words were satisfied, section 3 of the Limitation Act would be attracted Section 3 reads: "Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence. . . . In other words, if the special or local law prescribed a period of limitation different from that prescribed by the first schedule by the application of the first part of sub section (2), the court is enabled to dismiss suits, appeals and applications filed beyond time. If this is the only effect it would be seen that the provision is inane and redundant, because even without it, by the very prescription of a period of limitation the jurisdiction of the court to entertain the suit, appeal etc. would be dependent on the same being filed in time. It is possible, however, to construe the reference to section 3 in section 29(2) to mean that the power to dismiss the suit, appeal etc. if filed beyond the time prescribed, is subject to the modes of computation etc. of the time prescribed by applying the provisions of sections 4 to 25 which are referred to in the opening words of section 3. On this construction where a case satisfies the opening words of section 29(2) the entire group of sections 3 to 25 would be attracted to determine the period of limitation prescribed by the special or local law. Now let us test this with reference to the second limb of section 29(2) treating the latter as 140 a separate and independent provision. That part starts with the words "for determining any period of limitation pres cribed for any suit, appeal or application by any special or local law" (italics ours). The words italicised being perfectly general, would manifestly be comprehensive to include every special or local law, and among these must necessarily be included such special or local laws which satisfy the conditions specified by the first limb of section 29(2). We then have this strange result that by the operation of the first part sections 3 to 25 of the Limitation Act are made applicable to that class of special and local laws which satisfy the conditions specified by the first limb, whereas by the operation of the second limb the provisions of section 3, 5, 6 to 8 & 19 to 21 & 23 to 25 would not apply to the same class of cases. A construction which would lead to this anomalous result cannot be accepted and we, therefore, hold that subject to the construction we have put upon sub section (2) of section 29 both the parts are to be read as one whole and that the words following the conjunction 'and ' "for the purpose of determining any period of limitation" etc. attract the conditions laid down by the opening words of the sub section. As we have pointed out earlier this does not affect the result. We agree that the appeal fails and we direct that it be dismissed with costs. SUBBA RAo J. This appeal by special leave raises the question of true construction of the provisions of section 29(2) of the Indian Limitation Act, 1908 (9 of 1908), in the context of its application to section 116 A of the Representation of the People Act, 1951 (43 of 1951), hereinafter called the Act. The facts relevant to the question raised lie in a small compass and they are not disputed. The appellant was elected to the House of the People from the Mahasamund parliamentary constituency in the State of Madhya Pradesh in the third general elections. The respondents were the other contesting candidates. Respondent 1 filed an election petition before the Election Commissioner of India under sections 80 and 81 of the Act for setting aside the election of the appellant and it was duly referred to the Election Tribunal. The 141 Election Tribunal, by its order dated January 5, 1963, dis missed the election petition. On February 11, 1963, the first respondent preferred an appeal against the said order of the Election Tribunal to the High Court of Madhya Pradesh at Jabalpur. Under sub section (3) of section 116 A of the Act every appeal under Ch. IVA of the Act shall be preferred within a period of thirty days from the date of the order of the Tri bunal under section 98 or section 99 thereof. Admittedly, the appeal was filed more than 30 days from the said order. If the time requisite for obtaining a copy of the order of the Tribunal was excluded, the appeal was filed within 30 days; but if in law it could not be excluded, the appeal would certainly be out of time. The appellant contended before the High Court that respondent I was not entitled in law to exclude the time so taken by him in obtaining a copy of the order of the Tribunal, but that plea was rejected by the High Court. On merits, the High Court held that the appellant had committed two acts of corrupt practice as defined by section 123(4) of the Act and on that finding it declared the election of the appellant void. It is not necessary to go into the details of the judgment ofthe High Court given on the merits of the case,as nothingturns upon them in this appeal, for the learned,counsel confined his argument only to the question of limitation. The present appeal has been preferred by the appellant against the said order of the High Court setting aside his ,election. The only question, therefore, is whether for the purpose of computing the period of 30 days prescribed under section 116A (3) of the Act the provisions of section 12 of the Limitation Act can be invoked. Mr. Pathak, learned counsel for the appellant, in an ela borate argument placed before us the different aspects of the question raised, and I shall deal with his argument in the appropriate context in the course of my judgment. It would be ,convenient at the outset to read the relevant provisions of the Act and those of the Limitation Act. 142 The Representation of the People Act, 1951. Decision of the Tribunal Section 98. At the conclusion of the trial of an election petition the Tribunal shall make an order: (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or Section 116 A. (1) An appeal shall lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. (2)The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. (3)Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satis fied that the appellant had sufficient cause for not preferring the appeal within such period. The Indian Limitation Act, 1908 Section 29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the 143 purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in section 4, section 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. Section 12. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3)Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. Section 116 A of the Act confers a right of appeal against an order of the Tribunal under section 98 or section 99 thereof; sub s.(3) thereof prescribes a period of limitation of 30 days for preferring such an appeal. Section 29 of (the Limitation Act attracts, by fiction, the provisions of section 3 thereof to an appeal described in section 29 of the said Act; with the result, the provisions of sub sections (2) and (3) of section 12 of the Limitation Act are attracted thereto; and if those sub sections were attracted in computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree or order or judgment on which it is founded shall be excluded. Learned counsel for the appellant, therefore, contends that section 29 of the Limitation Act does not apply to an appeal under section 116 A of the Act. The first argument of learned counsel is that for invoking sub s.(2) of section 29 of the Limitation Act the necessary condition is that the First Schedule thereto shall prescribe a period of limitation for an appeal and that a special law shall prescribe for the same type of appeal a different period of limitation and that, as in the 144 present case the First Schedule has not prescribed any period of limitation to an appeal under section 116 A of the Act against an order of the Tribunal, sub section (2) of section 29 of the Act is not attracted. This argument is met by learned counsel for the respondents in two ways, namely, (i) that the First Schedule to the Limitation Act has prescribed a period of limitation for such an appeal, and (ii) that sub section (2) will apply even to a case where the First Schedule to the Limitation Act has not prescribed any period of limitation for an appeal, but a special law prescribed a period of limitation for such an appeal. I shall proceed to consider the two limbs of the argument separately. Has the First Schedule to the Limitation Act prescribed a period of limitation for an appeal against an order of an Election Tribunal under section 98 or section 99 of the Act? Article 156 of the First Schedule to the Limitation Act says that to an appeal under the Code of Civil Procedure, 1908, to a High Court, except in the cases provided for by article 151 and article 153, the period of limitation is 90 days from the date of the decree or order appealed from; and article 151 referred to in article 156 provides for an appeal against a decree or order of any of the High Courts of Judicature at Fort William, Madras, and Bombay, or of the High Court of Punjab in the exercise of its original jurisdiction. What does the expression "under the Code of Civil Procedure" in article 156 of the First Schedule to the Limitation Act connote? Does it mean that a right of appeal shall be conferred under the Code of Civil Procedure, or does it mean that the procedure prescribed by the said Code shall apply to such an appeal? A comparison of the terms of article 156 and article 151 indicates that the emphasis is more upon the procedure applicable to an appeal than on 'the right of appeal conferred under an Act. The heading of the first column in the First Schedule to the Limitation Act is "Description of appeal". The phraseology used in article 156 describes the nature of the appeal in respect of which a particular period of limitation is prescribed. It does not refer to a right conferred under the Code of Civil Procedure, but only describes the appeal with reference to the procedure applicable thereto. Though the word "under" may support the contrary view, the reference to 145 article 151 therein detracts from it. Article 151 is an exception to article 156, indicating thereby that, but for the exception article 156 will apply to an appeal covered by article 151: that is to say, an appeal under article 151 is deemed to be an appeal under the Code of Civil Procedure. Though a right of appeal is conferred under the Letters Patent, it is deemed to be an appeal under the Code of Civil Procedure, because the Code of Civil Procedure governs the said appeal. As Rajamannar, C.J., observed in Kandaswami Pillai vs Kannappa Chetty(1), "It is well established that the Limitation Act and the Code are to be read together, because both are statutes relating to procedure and they are in pari materia and, therefore, to be taken and construed together as one system as explanatory of each other." So construed it may reasonably be held that article 156 provides for an appeal governed by the procedure prescribed by the Code of Civil Procedure. This view was accepted by the Calcutta High Court as early as 1886 in Aga Mahomed Hamadani vs Cohen(1). There, under section 49 of the Burma Courts Act (XVII of 1875), where the amount or value of a suit or proceeding in the Recorder 's Court exceeded Rs. 3,000, and was less than Rs. 10,000, an appeal lay to the High Court. Under section 97 of the said Act, "save as otherwise provided by this Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April 1872, be deemed to have been in force throughout British Burma". Section 540 of the Civil Procedure Code of 1882, which was in force at that time, read: "Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts." (1) A. T. R. 134 159 S.C. 10. (2) Cal. 146 The effect of this provision of the Code on the Burma Courts Act was that where an appeal was not expressly excluded by any special Act, an appeal lay to whatever court which under the enactment in force was the appropriate court. But this section was overborne by the Burma Courts Act to the extent it conferred a right of appeal from the Recorder 's Court to the High Court subject to certain conditions, for section 49 of the Burma Courts Act had taken away the right of appeal of value under a prescribed amount and conferred such a right, when the subject matter of the appeal was between two prescribed amounts, from the decree of the Recorder 's Court to the High Court. It is, therefore, not correct to say, as contended by the learned counsel, that a right of appeal was conferred under section 540 of the Code of Civil Procedure, 1882. After the passing of the Burma Courts Act, a right of appeal was, conferred under section 49 of that Act and not under section 540 of the Code. It was contended before the Calcutta High Court, as it is now contended before us, that article 156 of Schedule 11 of the Limitation Act did not apply to an appeal under the Burma Courts Act, on the ground that the said appeal was not an appeal under the Code of Civil Procedure. The learned Judges observed thus, at p. 224: "Now, what is meant by an appeal under the Civil Procedure Code? A particular appeal was given by the Burma Courts Act and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had not been given by the Burma Courts Act then section 540 of the Civil Procedure Code would have been sufficient to give it, provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure, The Limitation Act, Schedule 11. article 156, when it speaks of the Civil Pro cedure Code is, on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights: and the 147 natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure is concerned. " It is manifest from this passage that the learned Judges did not repel the contention on the ground that the right of appeal was conferred by section 540 of the Code of Civil Proce dure, but expressly for the reason that the natural meaning of the relevant expression in article 156 of Sch. 11 of the Limitation Act was that the appeal mentioned therein was one governed by the Code of Civil Procedure. This decision was followed by a Division Bench of the Madras High Court in Ramaswami Pilai vs The Deputy Collector of Madura(1). The learned Judges, Abdur Rahim and Oldfield, JJ., held that article 156 of the Limitation Act (IX of 1908) applied to appeals filed under section 54 of the Land Acquisition Act (1 of 1894). The right of appeal was conferred under the Land Acquisition Act, but the procedure prescribed by the Code of Civil Procedure governed that appeal. The same argument now raised before us was raised, but was repelled. After citing the relevant part of the passage from the judgment of the Calcutta High Court extracted above, the learned Judges stated at p. 55 thus: "It seems to us that this is the correct interpretation of article 156. There seems to be no good reason for saying that an appeal under the Civil Procedure Code means only an appeal the right to prefer which is conferred by the Code itself. On the other hand it would not be straining the language of the article too much to hold that an appeal, the procedure with respect to which, from its inception to its disposal, is governed by the Civil Procedure Code, may rightly be spoken of as an appeal under the Code. " Then the learned Judges referred to article 151 of the Limita tion Act and concluded thus: (1) (1919) 1 L. R. 148 "That also tends to show that what is meant by the legislature is appeals, the hearing and disposal of which is governed by the rules of procedure laid down in the Civil Procedure Code." Though about 77 years have passed by since the decision of the Calcutta High Court and though the Limitation Act was amended a number of times, the Legislature did not think fit to express its dissent from this view by amendment or otherwise. No direct decision has been brought to our notice which has differed from, or even questioned the correctness of, this decision. In this context we may also refer to the decision of the Allahabad High Court in Dropadi vs Hira Lal(1) where it is pointed out) that several Indian enactments, for instance, the Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, confer rights of appeal and direct the application of the provisions of the Code of Civil Procedure to such appeals, but prescribed no period within which such appeals might be filed, the idea being that article 156 of the Limitation Act would furnish the period of limitation for the filing of such appeals. Mr, Pathak, learned counsel for the appellant, brought to our notice a number of decisions which considered the forum to which an appeal shall lie against an order under section 476 of the Code of Criminal Procedure and the procedure to be followed therein. In Nasaruddin Khan vs Emperor(1), where an appeal under section 476 B of the Code of Criminal Procedure from the Court of the Munsif was heard in part by the District Judge, and on the next date of hearing the appellant 's pleader was not present in Court, it was held that the District Judge was entitled to consider that the appeal had been abandoned and to dismiss it under the provisions of Order XLI of the Code of Civil Procedure. In Mt. Abida Khatoon vs Chote Khan(1), the Allahabad High Court held, under similar circumstances, that an appellate court could set aside an order dismissing an appeal for default. The Nagpur High Court in (1) All. (2) Cal. (3)A. I. R. 1956 All. 149 Bholanath Balbhadra Sahai vs Achheram Puran Kurmi(1), held that in such an appeal the appellate Court could exercise its power under 0. XLI, r. 27 of the Code of Civil Pro cedure. In Chandra Kumar Sen vs Mathuria Debya (2 ) , the Calcutta High Court applied to such an appeal the period of limitation prescribed under article 154 of the Limitation Act. It is said that the combined effect of these decisions is that the procedure applicable in an appeal against an order made by a civil court under section 476 of the Code of Criminal Procedure is that prescribed by the Code of Civil Procedure whereas the period of limitation is that prescribed for an appeal under the Code of Criminal Procedure. But the lear ned counsel himself conceded that there is a conflict of decisions on the question whether to an appeal against the order of a civil court under section 476 B of the Code of Criminal Procedure, the civil procedure applies or the criminal procedure applies and, therefore, the only decision which may have some bearing on the question now raised is that in Chandra Kumar Sen vs Mathuria Debya(2). There, an application was filed before the Subordinate Judge for filing of a complaint against the petitioner under section 476 of the Code of Criminal Procedure. That was rejected. The complainant preferred an appeal to the District Judge more than 30 days prescribed under article 154 of the Limitation Act. The learned District Judge held that no question of limitation arose, for the District Judge suo motu could lodge a complaint in the criminal court when an offence in connection with the administration of civil justice came to his notice. On that reasoning he instituted a complaint. The High Court held that the appeal was filed before he District Judge under section 476 B of the Code of Criminal Procedure and that under article 154 of the Limitation Act it should have been filed within 30 days from the date of the order of the Subordinate court. It will be noticed that no argument was raised in that case that the appeal was governed by the Code of Civil Procedure and, therefore, the appropriate article of the Limitation Act was not article 154, (1) A. 1. R. (2) Cal. 150 but article 156 thereof, for the simple reason that whichever article applied the apPeal was clearly barred by limitation. It is not, therefore, permissible to read into the decision the entire argument now advanced before us. The present question was neither raised nor argued in that case. It may, therefore, be safely held that for over 75 years the decision of the Calcutta High Court on the construction of article 156 of the Limitation Act stood the ground. Though it must be conceded that the point is not free from difficulty, we are not prepared to depart from the construction put upon the article as early as 1886 and which was not dissented from all these years. 1, therefore, hold that the expression "appeal under the Code of Civil Procedure" in article 156 of the Limitation Act means an appeal governed by the Code of Civil Procedure. Even so, it is contended that under section 116 A(2) of the Act the High Court, though it has the same powers, jurisdiction and authority of an appellate court governed by the Code of Civil Procedure, is not empowered to follow the procedure prescribed under the Code in respect of receiving the appeals. This argument is contrary to the express terms of sub section (2) of section 116 A of the Act. Under that sub section, "The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction". Under the second part of sub section (2) of section 11 6 A of the Act, a fiction is created, namely, that though a right of appeal is conferred by section 116 A(1) of the Act, the appeal thereunder for the purpose of sub section (2) will be deemed to be an appeal from an original decree passed by a civil court situated within the local limits of its civil apPellate jurisdiction. The first part of the sub section describes the purposes for which the fiction is invoked, namely, the exercise of the powers, jurisdiction and authority and the following of the procedure with respect to such an appeal. The powers, jurisdiction and authority take in the powers, jurisdiction and authority exercisable by an appellate tribunal in regard to various matters prescribed in the Code of Civil 151 Procedure. What does the word "procedure" mean? The procedure must necessarily be the procedure governing such an appeal. It means, inter alia, the manner of receiving an appeal in the court, the preparation of records of the appeal, the posting of the appeal and the manner of its disposal. We find it impossible to exclude from the word "procedure" the filing and receiving of an appeal in the court. If that part was excluded, how could the appeal be received in the High Court? The answer given is that the Government might make rules under section 169(1) of the Act. When section 168(2) confers a statutory power on the High Court to follow the procedure prescribed by the Code of Civil Procedure, we ,cannot invoke the general power of the Central Government to make rules under section 169(1) of the Act. If so, the procedure prescribed by 0. XLI of the Code of Civil Procedure, along with the other relevant provisions of the said Code, equally applies to an appeal filed under section 116 A (2) of the Act. The result is that under section 116 A(2) of the Act, the appeal, by fiction, is equated with an appeal filed under the ,Code of Civil Procedure in the matter of not only the exercise ,of the powers, jurisdiction and authority but also in the matter ,of procedure to be followed from the date of receipt of the :appeal to its final disposal. For the aforesaid reasons, I hold that the special law, namely, the Act, prescribes a period of limitation different from the period prescribed therefor by the First Schedule to the Limitation Act within the meaning of article 29 (2) of the Limitation Act. If so, section 12 of the Limitation Act is attracted, and the 1st respondent was entitled to exclude the time taken by him for obtaining the copy of the order. Even assuming that article 156 of Schedule 1 to the Limitation Act did not prescribe a period of limitation for the kind of appeal under consideration, the question arises whether sub section (2) of section 29 of the Limitation Act would not be appli cable if no period was prescribed by the First Schedule for an appeal created by a special law but the special law pres cribed a period of limitation for the same. The history of this provision throws some light on this question. The first Limitation Act was passed in the year 1859 (Act XIV of 1859). Section 3 of that act provided: 152 "When, by any law now or hereafter to be in force, a shorter period of limitation than that prescribed by this Act is specially prescribed for the institution of a particular suit, such shorter period of limitation shall be applied notwithstanding this Act. " The provisions of the Act of 1859 were repealed by the Limi tation Act IX of 1871. Section 6 of that Act, which is relevant to the present inquiry, read: "When, by any law not mentioned in the schedule hereto annexed, and now or hereafter to be in force in any part of British India, a period of limitation differing from that prescribed by this Act is especially prescribed for any suits, appeals or applications, nothing herein contained shall affect such law." The Limitation Act of 1871 was replaced by Act XV of 1877. Section 6 of this Act read: "When, by any special or local law now or hereafter in force in British India, a period of limitation is especially prescribed for any suit, appeal or application, nothing herein contained shall affect or alter the period so prescribed." The same provision was retained in the Limitation Act IX of 1908, but it was amended in the year 1922 in the present form. Before the amendment of 1922, there was a difference of view on the following questions, namely, (1) whether the general provisions of the Limitation Act, where the word "prescribed" alone without reference to any Act, was used or even where that word was not used, would be applicable to special or local laws, and (2) whether the general provisions of the Limitation Act did not apply at all to the periods of limitation prescribed by special or local laws. Decisions holding that the general provisions of the Limitation Act did not apply to periods of limitations prescribed by other laws relied upon the expression "affect or alter" used in the section as it then stood. Section 29 of the Limitation Act was amended to remove the conflict with a view to make the 153 general provisions applicable to the period of limitation prescribed by special or local laws. A comparison of the phraseology of the earlier sections shows that while section 3 of the Limitation Act of 1859 used the words "shorter period", section 6 of the Act of 1871 used the expression "differing", and section 6 of the Acts of 1877 and 1908 removed both the expressions. The result was that section 6 of the Act of 1871 saved all the special or local laws which prescribed a special period of limitation from the operation of the provisions of the Limitation Act. As the section then stood, it applied to all special or local laws prescribing a ,period of limitation whether the Limitation Act prescribed any period of limitation or not for suits or appeals similar to those governed by special or local laws, or where the period of limitation so prescribed by special or local laws was shorter or longer than that prescribed in the Limitation Act. Can it be said that by the Amending Act of 1922, a conscious departure was made by the Legislature to impose a condition for the application of sub section (2) of section 29, namely, that a period of limitation should have been expressly prescribed by the First Schedule to the Limitation Act in respect of a suit or appeal governed by the special or local law? There was no occasion for such a departure. To put it in other words, apart from resolving the conflict, did the Legislature intend to exclude a particular category of proceedings governed by special or local laws from the operation of the benefit conferred by sub section (2) of section 29? No justification was suggested for such a departure and we find none. The problem may be approached from a different perspective. The scheme of the Limitation Act may be briefly stated thus: The preamble to the Act shows that it was passed to consolidate and amend the laws relating to the law of limitation in respect of the proceedings mentioned in the Act. It applies to the whole of India. Part 11 comprising sections 3 to 11 deals with limitation of suits, appeals and applications; Part III comprising sections 12 to 25 provides for computation of periods of limitation; and Part V deals with savings and repeals. We are not concerned with Schedules II and III for they have been repealed. The First Schedule consists of three divisions: the first division provides for the period 154 of limitation for suits; the second division, for appeals; and the third division, for applications. Article 120 found in the first division prescribes for a suit for which no period of limitation is prescribed elsewhere in the Schedule; article 181 in the third division prescribes for application for which no period of limitation is prescribed elsewhere in the Schedule or by section 48 of the Code of Civil Procedure. But no such residuary article is found in the second division dealing with appeals. The Limitation Act was conceived to be an exhaustive code prescribing for every conceivable proceeding, whether suit, appeal or application, subject to the saving in Part V thereof. It follows that there is no period of limitation for an appeal not provided for in the second division unless the special or local law prescribes for it. If so, it may reasonably be said that, as the First Schedule of the Limitation Act prescribes no limitation for an appeal not covered by articles 150 to 157 thereof, under the Limitation Act such a suit or appeal can be filed irrespective of any time limit. With this background let us revert to the construction of section 29(2) of the Limitation Act. When the First Schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time limit to it, can it not be said that under the First Schedule of the Limitation Act an appeal can be filed at any time, but the special law by limiting it provides for a different period? While the former permits the filing of an appeal at any time, the latter limits it to the prescribed period. It is, therefore, different from that prescribed in the former. 'This problem was considered by a Division Bench of the Bom bay High Court, consisting of Chagla C.J., and Gajendra gadkar J., in Canara Bank Limited, Bombay vs The Warden Insurance Company, Ltd., Bombay(1). Therein, Chagla C.J., speaking for the Court, observed at p. 1086 thus: "The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the first Schedule to the Limitation Act. It may also be different in the (1) I. L. R. 155 sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the first Schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act. We are conscious of the fact that the language used by the Legislature is perhaps not very happy, but we must put upon it a construction which will reconcile the various difficulties caused by the other sections of the Limitation Act and which will give effect to the object which obviously the Legislature had in mind, because if we were to give to section 29 (2) the meaning which Mr. Adarkar contends for, 'then the result would be that even section 3 of the Limitation Act would not apply to this special law. The result would be that although an appeal may be barred by limitation, it would not be liable to be dismissed under section 3". A Full Bench of the Allahabad High Court, in Sehat Ali Khan vs Abdul Qavi Khan(1) also dealt with this question. The learned Judges expressed conflicting views. Mootham C.J., assumed that the first limb of the sub section ,did not apply to a case where the schedule omitted to provide for a period of limitation. On that assumption he proceeded to consider the second limb of the sub section. DayalJ. took the view that for the application of the first part of s.29(2) the period of limitation should have been prescribed by the First Schedule. Agarwala J., agreed with the view of the Bombay High Court. Bhargava J., agreed with the view expressed by Mootham C.J., and Upadhya J., did not agree with the view of the Bombay High Court. A Division Bench of the Madhya Pradesh High Court in Beharilal Chaurasiya vs Regional Transport Authority (2) (1) I. L.R. (1956) 2 All. 252. (2) A. 1. R. 1961 M. P. 75,77. 156 agreed with the view expressed by the Division Bench of the Bombay High Court. Dixit C.P., speaking for (the Court, stated thus: "A special law may provide a period of limitation and schedule I may omit to do so. None the less the special law would be different from the Limitation Act. Section 29 (2) of the Limitation Act is not very happily worded. It must be construed so as to avoid absurdity. The, expression 'a period of limitation different. from the period prescribed therefor by the first schedule ' occurring in section 29 (2) cannot be construed as meaning that schedule 1 must also positively prescribe the period of limitation. Such a construction would not be in accordance with the intention of the Legislature and would lead to an absurdity. " The learned Chief Justice proceeded to consider the ano malous position that would arise if a literal construction was given to the provisions of the first part of the section. This Court, in Kaushalya Rani vs Gopal Singh (1), had to. consider this question incidentally in the context of the application of section 29(2) of the Limitation Act to an application for special leave to appeal against an order of acquittal under sub section (3) of section 417 of the Code of Criminal Procedure. This Court held that section 5 of the Limitation Act would not apply to an application for special leave to appeal under sub section (3) of section 417 of the Code of Criminal Procedure. The Limitation Act does not provide any period of limitation for an application for special leave to appeal from an order of acquittal under the said section. If that be so, on the argument of learned counsel for the appellant, section 29 of the Limitation Act could not be invoked. But this Court held that section 29(2) of the Limitation Act applied, but that section excluded the application of section 5 to the said application. Sinha C.J., speaking for the Court, observed: "Hence it may be said that there is no limitation prescribed by the Limitation Act for an (1) A. I. R. 157 appeal against an order of acquittal at the instance of a private prosecutor. Thus, there is a difference between the Limitation Act and the rule laid down in section 417 (4) of the Code in respect of limitation affecting such an application. Section 29(2) is supplemental in its character in so far as it provides for the application of section 3 to such cases as would not come within its purview but for this provision." 'This observation clearly supports the position that section 29(2) would apply even to a case where a difference between the special law and the Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act. 1, therefore, hold that in the instant case the Act provides a period of limitation different from that prescribed therefor by the First Schedule to the Limitation Act and, therefore, it is governed by section 29(2) of the said Act. Even if my view on the construction of the first limb of section 29 of the Limitation Act were wrong, it would not help the appellant, for his case squarely falls within the scope of the second limb of the section. , For convenience I restate the relevant part of the section: ". . . and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or focal law. " Learned counsel for the appellant relied upon the conjunc tion "and" in support of his contention that the use of that conjunction makes the following sentence a limitation on the first part of the section. He further argues that if it is not a limitation but an independent clause, it will lead to the anomaly of sections 4 to 25 of the Limitation Act applicable to proceedings failing under the first part and only some of the provisions thereof, namely, sections 4, 9 to 18 and 22 apply ing to the second part of the section. Apart from the grammatical construction, which I will consider presently, I do not see any anomaly in sections 4 to 25 of the Limitation Act applying to the first part of the section and only some of 158 them applying to the second part thereof. Those proceedings to which the first part applies, by fiction the period prescribed in the special or local law is treated as prescribed in the First Schedule itself. There cannot possibly be any reason why section 3 of the Limitation Act in toto shall not apply to them. But the same cannot be said in the case of the proceedings of a different type not provided for in the First:Schedule. So, the Legislature specified the sections applicable tothem and excluded the general sections which relate tolegal disabilities, acknowledgements, part payments and others specified therein. The Legislature may_ have thought that such articles are not generally appropriate to proceedings under special or local laws for reliefs not provided for in the First Schedule. Now, coming to the construction of the section, the relevant rule of construction is well settled. "A construction which will leave without effect any part of the language of a statute will normally be rejected"; or to put it in a positive form, the Court shall ordinarily give meaning to every word used in the section. Does the conjunction "and" make the following clause a limitation on the preceding one? No rule of grammatical construction has been brought to our notice which requires an interpretation that if sentences complete by themselves are connected by a conjunction, the second sentence must be held to limit the scope of the first sentence. The conjunction "and" is used in different contexts. It may combine two sentences dealing with the same subject without one depending upon the other. But, if the interpretation suggested by the learned counsel be accepted, we would not be giving any meaning at all to the word "any" used thrice in the second part of the section, namely "any period", "any suit" and "any special or local law". If the second part is a limitation on the first part, the sentence should read, "for the purpose of determining the period of limitation prescribed for such suit, appeal or application by such special or local law." Instead of that, the use of the word "any" clearly demonstrates that the second. part does not depend upon the first part or vice versa. There is no reason why we should attribute such a grammatical deficiency to the legislature when every word in the second part of 159 the section can be given full and satisfactory meaning. I would, therefore, hold that the second part is an independent provision providing for the aforesaid category of proceedings to which the first part does not apply. This is the view expressed by the majority of the judges of the Full Bench of the Allahabad High Court in Sehat Ali Khan vs Abdul Qavi Khan(1). I agree with the same. It was then said that section 116 A of the Act provided an exhaustive and exclusive code of limitation for the purpose of appeals against orders of tribunals and reliance is placed on the proviso to sub section (3) of that section, which reads: "Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99. Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. " The contention is that sub section (3) of section 116 A of the Act not only provides a period of limitation for such an appeal. but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument. Firstly, section 29(2)(a) of the Limitation Act speaks of express exclusion but there is no express exclusion in sub section (3) of section 116 A of the Act; secondly, the proviso from which an implied exclusion is sought to be drawn does not lead to any such necessary implication. The proviso has become necessary, because, if the proviso was not enacted. section 29(2)(b) of the Limitation Act 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. 1, therefore, hold that the proviso to sub section (3) of section 116 A of the Act only restores the power denied to the court under section 29(2)(b) of the Limitation Act. 1) I. L. R. [1956] 2 All. 160 Lastly, it is contended that section 12(2) of the Limitation Act, on its express terms, would not apply to an appeal to the High Court against an order of the Election Tribunal under section 98 of the Act. Elaborating the argument it is said that in order to exclude the time for obtaining a copy of the order appealed against, the original shall be a decree or order within the meaning of section 12(2) or judgment within the meaning of section 12(3) of the Limitation Act and the order under section 98 of the Act is neither a decree nor an order or a judgment within the meaning of the said sub sections of section 12 of the Limitation Act. Reference is made to the defini tions of decree, judgment and order in sub sections (2), (9) and (14) of section 2 of the Code of Civil Procedure, respectively, and it is contended that the order under section 98 of the Act does not fall under any of the said three expressions as defined therein. Under sub section (9) of section 2 of the Code of Civil Procedure, "judgment" is defined to mean the statement given by the judge of the grounds of a decree or order. Sub section (14) of section 2 of the said Code defines "order" to mean the formal expression of any decision of a civil court which is not a decree. It follows from the said definitions that judgment is a statement of the reasons given by the judge and order is the formal expression of his decision. Section 104 of the said Code says, "An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders. " Order XX of the Code deals with the manner of pronouncing a judgment and decree. Under 0. XX, r. 20, of the Code, "Certified copies of the judgment and decree shall be furnished to the parties on application to the Court, and at their expense." Under section 141 of the Code, "The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any court of civil jurisdiction". The effect of these provisions is that a decree is a formal expression of adjudication conclusively determining the rights of parties with regard to all or any of the controversies in a suit, whereas order is a formal expression of any ,decision of a civil court which is not a decree. Judgment is a statement given by the judge of his grounds in respect of ,a decree or order. Ordinarily judgment and order are en 161 grossed in two separate documents. But the fact that both are engrossed in the same document does not deprive the statement of reasons and the formal expression of a decision of their character as judgment or order, as the case may be. With this background let me look at the provisions of s.116 A of the Act. Under sub section (1) thereof, an appeal shall lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. Under section 98 of the Act, "At the conclusion of the trial of an election petition the Tribunal shall make an order (a) dismissing the election petition;or (b) declaring the election of all or any of the returned candidates to be void; or (c)declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to h ave been duly elected. " Part VI of the Act provides for disputes regarding elections , Ch. III thereof prescribes the procedure for the trial of election petitions, and section 90 therein says: "(1)Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. " There is noprovision in the Act defining how the decision should be given. It could not have been the intention of the Legislature that the Tribunal need not give the statement of reasons for its decision. As under section 90 of the Act the Election Tribunal is directed to try election petitions as nearly as may be in accordance with the pro cedure applicable under the Code of Civil Procedure, it is the duty of the Election Tribunal to give a statement of reasons for its decision. It is open to it to issue two documents one embodying the reasons for the decision and the 134 159 S.C. 11. 162 other, the formal expression of its decision: the former will be its judgment and the latter, its order. It may issue both in the same document in which case the judgment as well as the order is embodied in the same document. If so it is manifest that an order made under section 98 of the Act, 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. That apart, a different approach to the question raised leads to the same conclusion. Section 12(2) of the Limitation Act does not say that the order mentioned therein shall be only such order as defined in the Civil Procedure Code. If a statute provides for the making of can order and confers a right of appeal to an aggrieved party against that order within a prescribed time, sub section (2) of section 12 of the Limitation Act says that the time requisite for obtaining a copy of such order shall be excluded. The Act em powers the Tribunal to make an order and gives a right of appeal against that order to the High Court. Section 12(2) of the Limitation Act is, therefore, directly attracted without any recourse to the definition of an order in the Code of Civil Procedure. In either view, section 12 of the Limitation Act applies and, therefore, the time taken for obtaining a copy ,of the said order shall be excluded in computing the period ,of limitation. In the result, the appeal fails and is dismissed with costs. RAGHUBAR DAYAL J. I agree that the appeal be dismissed, but for different reasons. I am of opinion that the first part of section 29(2) of the Limi tation Act applies only when a special or local law prescribes a period of limitation for an appeal and when for that particular appeal a period of limitation is prescribed in the First Schedule to the Limitation Act, as omission to prescribe a period of limitation cannot be equated with the prescribing ,of any positive period of limitation within which the appeal should be filed, and that the second part of section 29(2) of the Act is independent of the first part and can apply to cases to which the first part does not apply. I am also of ,opinion that article 156 of the First Schedule applies to appeals 163 which are instituted in view of the right of appeal conferred by any special or local law and not in pursuance of the provisions of section 96 C.P.C. I do not elaborate my views as I agree with what my learned brother Mudholkar J., has said in construing the first part of section 29 (2) of the Limitation Act and article 156 of the First Schedule and agree with my learned brother Ayyangar J., with respect to his construction of the second part of section 29(2). The proviso to section 116(a) of the Representation of the People Act gives discretion to the High Court to entertain an appeal presented after the expiry of 30 days from the date of the order of the Tribunal in case it is satisfied that there is sufficient cause for the late presentation of the memorandum of appeal. The respondent has applied in this Court for the condonation of the delay in filing the appeal in the High Court. In the circumstances of the case, I consider it a fit case for condoning the delay. There was a difference of opinion in the High Courts regarding the applicability of section 12 of the Limitation Act to such appeals. The delay was of a few days. The Election Tribunal passed the order on January 5, 1963 and the appeal was filed on February 11, 1963. A party can reasonably desire to obtain a copy of the judgment for deciding, after studying it, whether it is worthwhile appealing against it, and if so. on what grounds. I am satisfied that there was sufficient cause for the respondent 's not presenting the appeal within the period of limitation. I therefore condone the delay and confirm the order of the High Court. MUDHOLKAR J. While I agree with my brother Subba Rao J. that the appeal should be dismissed, I regret my inability to agree with all the reasons which he has given. I need not recapitulate the facts which have been set out fully in the judgment prepared by my learned brother but I would only state the point which we have to consider in this appeal. The point is whether for the purpose of computing the period of 30 days prescribed by section 116A(3) of 164 the Representation of the People Act, 1951 under which an appeal can be preferred from the decision of the Election Tribunal, the provisions of section 12, sub section (2) of the Limita tion Act, whereunder the time requisite for obtaining a copy of the decree and the day on which the judgment complained of was pronounced can be excluded can be pressed in aid. It was contended before us that the appeal should be deemed to be one under the Code of Civil Procedure, in which case it would fall under article 156 of the First Schedule to the Limi tation Act, and that though a shorter period of limitation is prescribed for it by the Representation of the People Act the provisions of section 12(2) of the Limitation Act would be attracted by reason of the provisions of cl. (a) of section 29(2). Reliance was ;)laced in this connection on the first limb of section 29(2). Alternatively it was argued that the first limb of section 29, sub section (2) of the Limitation Act would also apply to an appeal under the Representation of the People Act even though it does not fall under article 156 of the Limitation Act since a different period of limitation was prescribed for it from that prescribed for an appeal in the First Schedule of the Limitation Act and that, therefore, cl. (a) thereof would attract section 12(2) of the Limitation Act. Finally it was argued that even if the appeal cannot be regarded as one falling within the first limb of section 29(2) sub section (2) of section 12 would still apply because the second limb of sub section (2) of section 29 is wide enough in its ambit to include a suit, appeal or application for which no period of limitation is prescribed in the first schedule but a period of limitation has been prescribed by a special or local law. My learned brother has held in his: judgment that an appeal provided for by section 116A of the Representation of the People Act would be an appeal underthe Code of Civil Procedure and thus fall under the first column of article 156 of the First Schedule of the Limitation Act. He has also held that the words "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule" occurring in the first limb of sub section (2) of section 29 would include a suit or an appeal ' even though it is not of a type for which a period of limitation is prescribed in the First Schedule because it is enough if the special law prescribes for such an appeal a period 165 which is different from any period prescribed in the First Schedule. I regret I am unable to agree with either of these views. Finally, however, my learned brother has construed the second limb of sub section 2 of section 29 "and for the purpose of ,determining any period of limitation prescribed for any suit, appeal or application by any special or local law" as being 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. With this last conclusion I agree. In my judgment what he has said on the last point is enough for the purpose of disposing of the appeal in the way proposed by him. As, however, I do not agree with what he has said on the first two points I must briefly indicate my reasons for coming to different conclusions. In support of the conclusion that article 156 applies, my learned brother has relied upon the decision in Aga Mahomed Hamadani vs Cohen (1) which was followed by the Madras High Court in Ramasami Pillai vs the Deputy Collector of Madura(1). The first of these two cases was one from what was then British Burma. Under section 49 of the Burma Courts Act, 1875 (XVII of 1875) an appeal Jay to the High Court from the decision in a suit or proceeding before the Recorder 's Court in which the amount or value was not less than Rs. 3,000 and was not more than Rs. 10,000. Section 97 of that Act said: "save as otherwise provided by this Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April, 1872, be deemed to have been in force throughout British Burma. " Section 540 of the Code of Civil Procedure, 1882 which was in force at that time read thus: "Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees of the Courts exercising original jurisdiction to the Courts authorised to hear appeals from the decisions of those courts." (1) (1886) 1. L. R. (2) (1919) 1. L. R. 166 The question which the High Court had to consider in that case was whether the appeal could be said to be in time as it fell to be governed by article 156 of the First Schedule to the Limitation Act. For deciding this matter the High Court proceeded to consider what was meant by an appeal under the Code of Civil Procedure. While dealing with the matter the High Court observed: "A particular appeal was given by the Burma Courts. Act and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had not been given by the Burma Courts Act then section 540 of the Civil Procedure Code would have been sufficient to give it. provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure. The Limitation Act, Sch. 1, article 156 when it speaks of the Civil Procedure Code is, on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights: and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure, is concerned. " Referring to this, my learned brother has observed: "It is manifest from this passage that the learned judges did not repel the contention on the ground that the right of appeal was conferred by section 540 of the Code of Civil Procedure, but expressely for the reason that the natural meaning of the relevant expression in article 156 of Sch. 1 of the Limitation Act was that the appeal mentioned therein was one governed by the Code of Civil Procedur e." That is true. It is, however, not material for my purpose to consider whether or not the High Court was right in hold ing that the appeal before it was under the Burma Courts 167 Act. I would assume that the High Court was right but it is necessary to point out that the provisions of section 29 of the Limitation Act as then in force did not come for considera tion in that case. The question would then be whether its view that an appeal, though not provided by the Code of Civil Procedure, would yet be deemed to be an appeal under the Code for the purpose of article 156 of the Limitation Act,,, was right. With respect I do not think that there was any warrant for holding that an appeal which was not given by, the Code would still be one under the Code merely because the procedural provisions thereof would govern its course . Where the right of appeal is given by some other law, the appeal must be regarded as one under that law and not under the Code. I see no valid 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 '. For, that is, in effect, what the High Court has done in this case. By reading the article in the way it has done the High Court has virtually construed the only provision in the Limitation Act dealing with normal civil appeals; to the High Court as a residuary article which would take in all appeals by whatever law they may be provided, merely because the procedure relating to appeals contained in the Code of Civil Procedure was applicable to them. This would in my judgment go against the plain intended of the Legislature. Indeed, while a right to institute a suit or make an application is a wider kind of right. there can be no right of appeal unless some statute confers it. That is why the Legislature has expressly enacted residuary provisions, articles 120 and 180, for suits and applications respectively in the Limitation Act. The First Schedule is divided into three divisions. Article 156 is one of the eight article& contained in the second division which deals with appeals. The first division of that schedule deals with suits. There, provision is made for a variety of suits including some under special laws. but it was realised that it could not be exhaustive. Therefore, article 120 was provided therein, which deals with "Suits for which no period of limitation is provided elsewhere in this schedule. " The third division of the First Schedule deals with applications of different kinds. Article 181 makes provision for applications for which no 168 period of limitation is prescribed elsewhere in the Schedule. In the second division, however, which deals with appeals, there is no provision analogous to article 120 and article 181. Four of the eight articles deal with appeals under the Code of Criminal Procedure and four with appeals other than those under the Code of Criminal Procedure. As already stated, only one of these articles deals with normal civil appeals to the High Court, namely, article 156. It is not couched in language similar to that used in article 120 and article 181. Would we then be justified in reading the first column of article 156 to mean the same thing as is said in the first column of articles 120 or 181? The Legislature knew that appeals have been provided by various special laws; but it made no provision for such appeals in this Schedule appa rently for the reason that a law which confers a right of appeal is expected to provide for the period of limitation for such an appeal. That seems to be the explanation for the absence of a residuary provision for appeals. The first difficulty, therefore, in interpreting article 156 in the way contended for by the respondents is that where a different period of limitation for appeal is expressly pro vided by a special law article 156 will not in terms be attracted. To bring such an appeal under it would clearly go against the express intention of 'the Legislature which was to confine that article to appeals under the Code of Civil Procedure. The next difficulty is that the entry deals with appeals "under" the Code of Civil Procedure and not appeals arising out of proceedings to which the Code of Civil Procedure applies. Nor again, does it include an appeal which is only deemed to be under the Code of Civil Procedure. Be it noted that so far as proceedings under the Representation of the People Act are concerned, the whole of the Code of Civil Procedure does not apply but only so much of it as is expressly made applicable by the provisions of the Representation of the People Act. It was said that if the provisions of 0. XLI, of the Code of Civil Procedure were not applicable to an appeal under the Representation of the People Act there would be no provision whereunder the party could at all file an appeal. It seems to me, however, that there can be no difficulty at all in this matter as every 169 High Court has made rules partly under the Constitution and partly in exercise of its inherent power to make suitable provisions in regard to this and allied matters. The Calcutta High Court, however, does not appear to have given ,the full consideration in Cohen 's case(1) to the ambit of article 156 and that is another reason why I find myself unable to accept the correctness of the view it has taken in that case. It was then said that the view should be accepted on the ground of stare decisis. In this connection it was pointed out thatso far no court has dissented from that view and indeed theview was fully accepted in Ramasami Pillai 's .case(1) bythe Madras High Court. In so far as the principle of stare decisis is concerned it is nothing more 'than,. as observed by Dowrick in Justice According to the English ,Common Lawyers (1961 ed. p. 195), a precipitate of the notion of legal justice. In other words it is the principle that judicial decisions have a binding character. But in India the position is not quite the same. Here the decision of a High Court is not even always binding upon it in the sense that it can be reconsidered by a Full Bench. No doubt its decision may bind all courts subordinate to it as also all Judges sitting singly or in division benches of the High Court. It is also true that a decision of a Division Bench of a High Court is binding on every other Division Bench of that High Court but there again there have been cases where one Full Bench has reconsidered the decision of an earlier Full Bench. In any case the decision of a High Court has no more than persuasive character in so far as this 'Court is concerned. In that view the decision of the Calcutta High Court, even though it may not have been dissented from since the time it was rendered, cannot, in the proper sense of the term be regarded as stare decisis. What could be stare decisis in this Court would be its own previous ,decisions. But even here instances are not wanting where, unlike perhaps the House of Lords, we have considered ourselves free to go back on previous decisions. (See The Bengal Immunity Company Limited vs The State of Bihar ors. 3 Finally, even where a decision has not been (1) Cal. 221 (2) Mad. 51 (3) 170 dissented from for a long time, but has on the other hand been followed, it is not entitled to be treated as immutable, particularly where it deals only with a question appertaining to the adjective law, such as the law of limitation. There may be a great deal to be said in favour of not disturbing even erroneous decisions affecting substantive rights to property which have stood undisturbed for a long time on the ground that such a course may unsettle existing titles to property. But this or similar considerations which would justify leaving such decisions undisturbed would not stand in the way of overruling an erroneous decision on a matter appertaining to the adjective law however ancient the decision may be(1). Therefore, I do not feel myself persuaded to hold that the present appeal can be regarded as of a type falling within the first column of article 156 of the First Schedule to the Limitation Act. In order to deal with the second ground given by my learned brother it is necessary to reproduce the provisions of section 29, sub section (2) of the Limitation Act. They run thus: "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law . (a) the Provisions contained in section 4., sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply." (1) See Allen, Law in the, making (5th edn.) p. 209 fn. 3 171 While expressing the view that the legislature has not ex pressed itself happily while enacting this provision he has agreed with the view taken in Canara Bank Ltd. vs The Warden Insurance Co., Ltd., Bombay(1), which was followed by the High Court of Madhya Pradesh in Beharilal Chaurasiya vs Regional Transport Authority(1). In that case the Bombay High Court has held that article 156 is attracted on the ground that the period provided by the special law is different from that contained in the First Schedule. With great respect to the learned Judges, I find it difficult to strain the language used in the first limb of section 29 (2) in this manner. The legislature has in clear terms spoken of cases in which a special or local law has prescribed for a suit, appeal or an application a period of limitation "different" from that prescribed by the First Schedule. Now, the governing words are "suit, appeal or application". Therefore, what has to be seen is whether a suit, appeal or application under a particular local or special law is of a kind similar to one for which a period of limitation is prescribed in the First Schedule. The first limb of sub section (2) of section 29 is concerned only with proceedings of this kind, that is, proceedings under special or local law for which a period of limitation is provided in the First Schedule. 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. I do not think that any inconvenience would be caused by giving 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. Since I agree with my learned brother about what he has said regarding the second limb of sub section (2) of section 29 the aapeal must be dismissed with costs as proposed by him. (1) I. L. R. Appeal dismissed. (2) A.I.R. 1961 M. P. 75.

IN-Abs

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

Appeal No. 690 of 1962. Appeal from the judgment and order dated March 5, 1959, of the Andhra Pradesh High Court in Appeal against order No. 151 of 1955. section Suryaprakasam and Sardar Bahadur, for the appellants. The respondent did not appear. January 20, 1964. The Judgment of the Court was delivered by SUBBA RAO J. This appeal by certificate raises the question of the applicability of section 48 of the Code of Civil Procedure, hereinafter called the Code, to the facts of the 253 The relevant facts are as follows: In the year 1928 one Pentapati Venkataramana filed Original Suit No. 3 of 1928 in the Court of the Subordinate Judge, Visakhapatnam, against 29 defendants for accounts of dissolved partnerships and for the recovery of amounts due to him. On March 30, 1932, the suit was dismissed by the learned Subordinate Judge. On appeal, the High Court of Madras set aside the decree of the Subordinate Judge and passed a joint and several decree in favour of the plaintiffs and defendants 24 to 27 for a sum of Rs. 54,350 with interest thereon. On February 15, 1939, the decree holders filed an application for execution of the decree, being E.P. No. 13 of 1939, and prayed for realization of the decretal amount by attachment and sale of 31 items of properties described by them in the schedule (exhibit B 4) annexed thereto. The judgmentdebtors filed an objection to the attachment of some of the said items, but that was dismissed. Against the order of dismissal of their objection, the judgment debtors filed an appeal to the High Court, being C.M.A. No. 26 of 1944. Pending the disposal of the C.M.A., the High Court granted an interim stay of E.P. 13 of 1939. Later, the appeal was dismissed on April 26, 1945. After the dismissal of the appeal, when the decree holders sought to proceed with the execution, the judgment debtors filed another application being E.A. No. 575 of 1945, alleging that the decree has been adjusted and for recording satisfaction of the decree. But the said application was dismissed on December 12, 1945. The judgment debtors went up on appeal to the High Court against the said order of dismissal and obtained an interim stay of E.P. 13 of 1939. On September 9, 1947, the High Court allowed the appeal and remanded the case to the trial court for ascertaining whether there was an adjustment of the decree as pleaded by the judgment debtors. On remand, the executing court again dismissed the application filed by the judgment debtors. Against the aid order, the judgment debtors again preferred an appeal, being C.M.A. No. 127 of 1948, in the High Court of Madras and obtained an interim stay of the execution. The interim order was made absolute on November 24, 1948. As the execution of the decree was stayed by the High Court, the executing court made an order on E.P. 13 of 1939 to the effect that the petition was "closed". On July 31, 1951, the 254 High Court dismissed C.M.A. 127 of 1948. On January 21, 1952, the decree holders made an application being E.A. No. 142 of 1952, in E.P. 13 of 1939 for reopening the said execution petition and for proceeding with the execution of the decree. The learned Subordinate Judge, holding that the previous execution petition was merely "closed", directed the decree holders to file a regular execution petition. On October 11, 1952, the decree holders filed E.P. No. 58 of 1953 to continue further proceedings in E.P. 13 of 1939 as per the order made in E.A. No. 142 of 1952 passed on October 4, 1952. In that petition the decree holders prayed that the properties mentioned in the draft proclamation filed in E.P. No. 13 of 1.939 and brought to sale may be sold for he realization of the money due to the decree holders and the proceeds applied for the discharge of the decree debt. The judgment debtors filed a counter affidavit pleading, inter alia, that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. 13 of 1939 was dismissed on December 28, 1948, the present application, having been filed more than 12 years from the date of the decree, was barred under section 48 of the Code. The learned Subordinate Judge held that though the decree holders were entitled to continue the previous execution petition, E.P. 58 of 1953 was a fresh application, as in form as well as in details it materially differed from the original execution petition. On appeal, a division Bench of the Andhra Pradesh High Court took a different view and held that E.P. 13 of 1939 was merely closed for statistical purposes and, there fore, the execution petition filed in 1939 was still pending and the decree holders were entitled to proceed with that petition. The High Court further observed that the said position was not contested by learned counsel for the res pondents. We understand this observation only to mean that learned counsel appearing for the respondents therein did not contest the position that if the execution petition was not dismissed but was only closed for statistical purposes, the decree holders were entitled to proceed with that petition. The High Court remanded the case to the learned Subordinate Judge for disposal according to law after considering the other contentions of the judgment debtors. Hence the appeal. 255 Mr. Suryaprakasam, learned counsel for the appellants, raised before us the following two points: (1) The previous execution petition was dismissed and, therefore, it was not pending at the time of filing of E.P. 58 of 1953, and, therefore, the later execution petition was a fresh application within the meaning of section 48 of the Code; and (2) even if the previous application was only closed for statistical purposes, and the decree holders could apply for reviving those proceedings, E.P. No. 58 of 1953 was a fresh execution petition because the parties and the properties proceeded against were different and the relief asked for was also different. Before we consider the question raised, it would be con venient at the outset to look at the material provisions of section 48 of the Code. It reads: "(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application Presented after the expiration of twelve years from (a) the date of the decree sought to be executed." This section corresponds to paras 3 and 4 of section 230 of the Code of 1882. The relevant part of the section read: "Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates: A comparison of the said two provisions shows that the phrase "fresh application" has been substituted for "subse quent application". This amendment became necessary in order to make it clear that the application mentioned in section 48 of the Code is a fresh substantive application and not an application to revive or continue a substantive application already pending on the file of the court. 256 The question, therefore, is whether E.P. 58 of 1953 is a fresh application within the meaning of section 48 of the Code. The answer to this question mainly turns upon the question whether the previous application i.e., E.P. 13 of 1939, was finally disposed of by the executing court. From the narra tion of facts given by us earlier it is clear that the said execution petition was "closed" for statistical purposes. As the High Court stayed the execution pending the appeal filed by the judgment debtors, the decree holders were not in a position to proceed with the execution petition, and, therefore, it was closed. Some argument was raised on the question whether the said execution petition was closed for statistical purposes or was dismissed that it was contended that under the Code of Civil Procedure there was no power conferred upon a court to close execution proceedings for statistical purposes, and that even if such an order was made, it must be deemed to be an order dismissing the execution petition. The actual order dated December 28, 1948 has not been placed before us. But in E.P. 58 of 1953 in co]. 6 thereof it is mentioned that E.P. No. 13 of 1939 was closed on December 28, 1948. In the counter affidavit filed by one of the judgment debtors it is stated that E.P. 13 of 1939 was dismissed on December 28, 1948 and not merely closed. After the disposal of the appeal by the High Court and before the filing of E.P. No. 58 of 1953, the decree holders filed E.A. No. 142 of 1952 for reopening E.P. No. 13 of 1939. On that petition the learned Subordinate Judge made the following order: "The previous E.P. was merely closed. Petitioner may file a regular E.P. on which proceedings will continue from the stage at which they were left in E.P. 13 of 1939. " This order discloses that the previous execution petition was only closed. The Subordinate Judge must have presumably looked into the previous record. The learned Subordinate Judge proceeded on the assumption that the previous exe cution petition was pending, though he dismissed the present execution petition on another ground. This factual position was not contested even in the High Court, for the High Court stated that the previous application was merely closed for 257 statistical purposes. In the circumstances we must proceed on the assumption that the Execution Petition 13 of 1939 was only closed for statistical purposes. Learned counsel for the appellants contends that the Code of Civil Procedure does not sanction the passing of an order closing an execution petition for statistical purposes and that practice has been condemned by courts. Under 0. XXI, r. 17(1) of the Code, the Court may reject an execution application if the requirements of rules 11 to 14 have not been complied with. Under r. 23 thereof, if the judgment debtor does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed, and where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such orders as it thinks fit. Under r. 57 thereof, "Where any property has been attached in execution of a decree but by reason of the decree holder 's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. . Relying upon these provisions it is argued that though the power of the court to make an order under 0. XXI, r. 23 (2) is wide and it can make any order it thinks fit, it can only make one or other of the two orders mentioned in r. 57 when it could not proceed with the execution because of the default of the decree holder. It is said that in this case the decree holders could not proceed with the execution in view of the stay order of the High Court and, therefore, the executing court could have either dismissed the application or adjourned the proceedings to a future date and it has no jurisdiction to pass an order closing the execution for statistical purposes. It is further said that an order closing proceedings for statistical purposes is not an order of adjournment, for an order of adjournment implies that the application is on the file, whereas the object of closing is to take it out of the file, though temporarily, and, therefore, the order, in effect and substance, is one of dismissal. Assuming that the order was made by reason of the decree holder 's default within the meaning of 0. XXI, r. 57 of the Code, we find it difficult to attribute something to the court which it never intended to 34 159 3 C. 17 258 do. It is true courts have condemned the practice of exe cuting courts using expressions like "closed", "closed for statistical purposes", "struck off", "recorded" etc., and they also pointed out that there was no provision in the Code of Civil Procedure for making such orders: see Biswa Sonan Chunder Gossyamy vs Binanda Chunder Dibingar Adhikar Gossyamy(1); Vadlamannati Damodara Rao vs The Official Receiver, Kistna(2); Moidin Kutty vs Doraiswami(3). It is not necessary to express our opinion on the question whether such procedure is sanctioned by the Code of Civil Procedure or not; but assuming that the court has no such power, the passing of such an order cannot tantamount to an order of dismissal, for the intention of the court in making an order is closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it stated. In either case the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the court to ascertain having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceeding were pending on the file of the court. We have no hesitation, therefore, in agreeing with the High Court that E.P. 13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue the same. Even so, it is contended that E.P. No. 58 of 1953 is a fresh application. Learned counsel compared the recitals in E.P. 13 of 1939 and E.P. 58 of 1953 and pointed out that all the respondents in the former execution petition are not respondents in the present execution petition; that legal representatives of some of the defendnts are added to the present execution petition; that the decree holders did not (1) Cal. (3) A.I.R. 1952 Mad. 51 . 259 seek to proceed against all the properties against which they sought to proceed in the former execution petition; and that one of the reliefs, namely, to attach the amount deposited in court, asked for in the present execution petition is a completely new one and that, therefore, the present execution petition is, both in form and in particulars, completely a different one. But a comparison of the two execution petitions shows that the parties are the same: the new parties added in the present execution petition are either the legal representatives of the deceased parties or the representative of a party who has become insolvent. In the present execution petition the decree holders are not proceeding against any property against which they did not seek to proceed in the earlier proceeding; they only omitted some of the properties. The decree holders cannot be compelled to proceed against all the properties against which at one time they sought to proceed. The relief by way of attachment of the amount deposited in court had been asked for by the decree holders by a separate petition, namely, E.A. No. 143 of 1962, and that was dismissed and, therefore, nothing turns upon it. The result is, therefore, in substance tinder both the execution petitions the decree holders seek to proceed against the same parties and against the same properties. The law on the subject is well settled. In Bandhu Singh vs Kayastha Trading Bank(1), where a decree holder included new items of property for attachment in an application for execution of his decree filed 12 years after the date of the decree, it was held that the application to attach fresh property was a fresh application within the meaning of section 48 of the Code and, therefore, having been made more than 12 years after the date of the decree, could not be entertained. In Sri Raja D. K. Venkata Lingama Nayanim vs Raja Inuganti Rajagopala Venkata Narasimha Rayanim(2). where an application was made for amending a pending execution petition with a view to attach another property not included in the pending application, the court held that the application for amendment could not be allowed, as it was made beyond the period of 12 years from the date of the decree. In Ippagunta Lakshminarasinga Rao vs Ippagunta (1) All. 419. (2) I.L.R. 260 Balasubrahmanyam (1), where the execution petition filed beyond 12 years of the decree asked for a new relief not asked for in the earlier execution petition, it was held that the subsequent application, having been filed beyond 12 years, was hit by section 48 of the Code. In Gajanand Sah vs Dayanand Thakur(2), the decree holder was not allowed to substitute a new property different from the one against which he wished to proceed in the earlier application on the ground that 12 years had expired from the date of the passing of the decree. The result of the decisions may be summarized thus. An application made after 12 years from the date of the decree would be a fresh application within the meaning of section 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition. In this case, as we have pointed out, the parties are sub stantially the same in both the proceedings, and the decree holders are only proceedings against properties included in the previous application. It cannot, therefore, be treated as a fresh application within the meaning of section 48 of, the Code. It is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court. That apart, the decree holders filed E.A. No. 142 of 1952 in E.P. No. 13 of 1939 expressly asking for the reopening of the said execution petition and for proceeding with it. As we have held that the earlier execution petition is still pending on the file of the court, the executing court will be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition. In the result, we hold that the order of the High Court is right. The appeal fails and is dismissed. There Will be no order as to costs. (1)A.1.R. Appeal dismissed. (2)(1942) 1.L.R. 21 Pat.

IN-Abs

The decree holders filed an application for execution of the decree being E.P. No. 13/1939. This execution proceeding had to be stayed .as a result of the stay order of the High Court. Ultimately the executing court made an order on E.P. 13/1939 to the effect that the Execution Petition was "closed". On January 21, 1952, the decree holders made an application for reopening the execution E.P. No. 13/1939 and for proceeding with the execution of the decree, The Subordinate Judge, (executing court) holding that the previous execution petition was merely closed" directed the decree holders to file a regular execution petition. On October 11, 1952 the decree holders filed E.P. No. 58/53 to continue further proceedings in E.P. No. 13/1939. The judgment debtors filed a counter affidavit pleading, inter alia that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. 13/1939 was dismissed on December 28, 1948, the present application, having been filed more than 12 years from the date of decree, was barred under section 48 of the Code of Civil Procedure. On these facts the Subordinate Judge held that though the decree holders were entitled to continue previous execution petition, E.P. No. 58/53 was a fresh application as it differed from the original execution petition. On appeal, the High Court held that E.P. No. 13/1939 was merely closed for statistical purposes, and, therefore, the execution petition filed in 1939 was still pending and the decree holders were entitled to proceed with that petition. Hence the appeal. The question for consideration is whether E.P. No. 58/53 is a fresh application within the meaning of section 48 of the Code. Held: (i) It is true courts have condemned the practice of executing courts using expressions like "closed", "closed for statistical purposes", struck off" "recorded" etc., and they have also pointed out that there is no provision in the Code of Civil Procedure for making such orders. But assuming that the court has no such power, the passing of such ,in order cannot be tantamount to an order of dismissal, for the intention of the court in making an order "closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same: in one case it would be ignored and in the other it would mean what it stated. In either case the execution petition would be pending on the file of the court. It is not the phraseology used by the Executing Court that really 252 matters, but is is really the substance of the order that is material. Whatever terminology may be used, it is for the Court to ascertain, having regard to the circumstances under which the said order was made, whether the Court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the Court. In the present case the subsequent application ie. E.P. No. 58/53 is only an application to continue the previous application i.e. E.P. 13/1939. Biswa Sonan Chunder Gossyamy vs Binanda Chander Dibingar Adhikar Gossyamy, Cal. 416, Vadlamannati Damodara Rao vs Official Receiver, Kistna, I.L.R. 1946 Mad. 527 and Moidin Kutty vs Doraiswami, A.I.R. 1952 Mad. 51, referred to. (ii) An application made after 12 years from the date of decree would be a fresh application within the meaning of section 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition. In the present case the parties are substantially the same in both proceedings, and the decree holders are only proceeding against properties included in the previous application ie. E.P. No. 13/1939. It cannot, therefore, be treated as a fresh application within the meaning of section 48 of the Code. Bandhu Singh vs Kayastha Trading Bank, All. 419, Sri Raja D. K. Venkata Lingama Nayanim vs Raja Inuganti Rajagopala Venkata Narasimha Rayanim, I.L.R. [1947] Mad. 525, Ippagunta Lakshminarasinga Rao vs Ippagunta Balasubrahamanyam, and Gajanand Sah vs Dayanand Thakur Pat. discussed.

iminal Appeal No. 90 of 1961. Appeal by special leave from the judgment and order dated January 10, 1961, of the Calcutta High Court in Criminal Revision No. 1545 of 1960. Sukumar Ghose, for the appellant. D. N. Mukherjee, for the respondent. 276 January 21, 1964. The Judgment of the Court was delivered by MUDHOLKAR J. This is an appeal against the judgment of the Calcutta High Court quashing the issue of process against the respondent. The respondent is an Assistant Commissioner of Police in the City of Calcutta and the appellant had made a complaint against him alleging that he had committed an offence under section 348, I.P.C. that is, wrongful confinement in order to extort a confession or compel restoration of property. The facts as alleged by the appellant are as follows: One Manoharlal Seth had lodged a complaint on July 28, 1960 against him and two other persons Fatehlal and Jaichand for offences under section 120B/420, I.P.C. and section 420 I.P.C. Manoharlal Seth had alleged in his complaint that these persons had induced him to purchase a bar of brass for Rs. 6,000 on the representation that it was of gold and thus duped him. Upon this complaint, investigation was taken up by the police. He came to know Manoharlal Seth in the course of his business. They were on quite friendly terms in the beginning and later on considerable differences arose between him and Manoharlal Seth. As a result of that Manoharlal Seth told him that unless he settled his differences with Manoharlal Seth according to the latter 's dictates he would put him into trouble through his friend, the respondent, and that it is because of this that Manoharlal lodged a complaint against him for cheating. This complaint was thus a false complaint and it is common ground that ultimately it was dismissed by the Presidency Magistrate, 8th Court, Calcutta on January 2, 1961. Then according to the appellant, on August 3, 1960 at about 6 00 A.M. P. C. Kundu, Sub Inspector of Police attached to Burrabazar Police Station along with another Sub Inspector section Bhattacharya, visited his residence, searched his house and arrested him. Neither of them had any warrant with them for the search of the house or for the 277 arrest of the appellant. Upon enquiry by him from these persons they told him that this was being done under the orders of the respondent. After his arrest the appellant said that he was taken to the Burrabazar police station at about 7 00 a.m. and then to Jorasanko Police Station and produced before T. K. Talukdar, Sub Inspector in charge of that police station. From there he was taken to various places in Calcutta with a rope tied round his waist by Kundu and Bhattacharya and was eventually produced at about 12 noon before the respondent in his office at Lalbazar. There the respondent started threatening the appellant and asked him to settle the dispute with Manoharlal Seth and pay him Rs. 5,000 or to acknowledge in writing that he would pay this sum of money to Manoharlal Seth. At about 3 30 p.m. on the same day his brother Iswarilal accompanied by a lawyer Chakravarthy visited the respondent 's office and sought the appellant 's release on bail as the offence was a bailable one. The respondent, however, refused to grant bail saying that no bail would be granted until a sum of Rs. 5,000 was paid to Manoharlal Seth. The appellant says that he was detained at Lalbazar Police Station till 8 00 p.m. From there he was taken to Jorasanko Police Station and kept in the lock up for the whole night. On the next day, that is, August 4, 1960 he was again produced before the respondent at Lalbazar where the latter repeated his threats and that after obtaining his finger prints and taking his photographs he was taken to the court of the Additional Chief Presidency Magistrate where he was released on bail at about 2 30 p.m. On August 19, 1960 the appellant preferred a complaint before the Chief Presidency Magistrate, Calcutta, under section 348 and section 220, I.P.C. and section 13C of the Calcutta Police Act, 1866. In so far as two of the persons named as accused therein, section I. Kundu and section I. Talukdar, he decided to issue process against them under section 220 I.P.C. and section 13C of the Calcutta Police Act. As regards the respondent, he decided to issue process against him under section 348, I.P.C. Upon a revision application preferred by the respondent the High Court quashed the process issued against him by 278 the learned Chief Presidency Magistrate. The ground urged before; the High Court on behalf of the respondent was that before he could be proceeded against sanction of the State Government under section 197, Cr. P.C. ought to have been obtained. This contention was upheld by the High Court. On.1 behalf of the appellant Mr. Sukumar Ghose contends that the High Court in quashing the process has proceeded to decide on the merits of the case even though there was no material before it to do so and that therefore its judgment cannot stand. It is true that for considering whether section 197, Cr. P.C. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. Here the substantial allegation is that the respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000 to Manoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail. No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount. Assuming that the allegation is true all that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth. It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. For this reason the sanction of the appropriate authority for the respondent 's prosecution was necessary under section 197, Cr P.C. 279 Mr. Ghose, however, contends that the appellant 's detention in the respondent 's office was illegal and that, therefore, the respondent could not be said to have been in a position to exercise any lawful authority with respect to him. It is difficult to appreciate how the appellant 's detention could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent. It was not disputed before us that investigation into Manoharlal 's complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police. Whether it was by one or the other makes little difference. We would like to make it clear that Mr. Ghose did not contend before us that the appellant 's detention in the office of the respondent was illegal because his initial arrest was without a warrant. But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under section 420, I.P.C. without a warrant. Such being the position the High Court was justified in quashing the process. Accordingly we dismiss this appeal. Appeal dismissed.

IN-Abs

The appellant made a complaint against the respondent, an Assistant Commissioner of Police for having committed an offence under section 348, Indian Penal Code, alleging that on the arrest of the appellant under section 1208/420 Indian Penal Code, the respondent had refused to grant him bail until a certain sum was paid or acknowledged in writing to be paid to the complainant. The Chief Presidency Magistrate issued process. On revision, the High Court quashed the process holding that sanction of the State Government under section 197 Code of Criminal Procedure ought to have been obtained. On appeal by special leave, it was contended that the High Court in quashing the process had proceeded to decide on the merits of the case even though there was no material before it and therefore its judgment could not stand. Held: (i) For considering whether section 197 Code of Criminal Procedure would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. (ii) The sanction of the appropriate authority for the respondent 's prosecution was necessary under section 197 Code of Criminal Procedure. Whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant.

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.

IN-Abs

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.

Appeal No. 1064 of 1963. Appeal by special leave from the judgment and order dated July 23, 1963, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 11 of 1963. N. C. Chatterjee and J. P. Goyal, for the appellant. section P. Sinha and section Shaukat Hussain, for respondent No. 1. January 17, 1964. The Judgment of the Court was delivered by SHAH J. At the general elections held in February 1962, five candidates contested the election to the House of the People from the Barabanki single member constituency. The appellant Ram Sewak Yadav who will be referred to as Yadav was at the counting of votes found to have secured the highest number of votes and he was declared elected. Hussain Kamil Kidwai hereinafter called Kidwai who was one of the candidates at the election submitted a petition on April 6, 1962, to the Election Commission for an order declaring the election of Yadav void and for an order that he (Kidwai) be declared duly elected. The Election Tribunal, Lucknow, to which the petition was referred for trial dismissed the petition. In appeal to the High Court of Allahabad the order passed by the Election 240 Tribunal was reversed and the proceedings were remanded for trial with a direction, among others, that the Tribunal do give reasonable opportunity to both the parties to inspect the ballot papers and other connected papers. With special leave, Yadav has appealed against the order of the High Court. The principal grounds set up by Kidwai in support of his petition were (1) that there had been improper reception, refusal and rejection of votes at the time of counting, and in consequence thereof the election was materially affected; (2) that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20; (3) that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected; (4) that at the polling station No. 29, Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit, the polling officers did not give ballot papers to the voters; (5) that the counting of votes of Bhitauli Assembly Unit continued till 8 30 p.m. in insufficient light notwithstanding the protest lodged by the petitioner; and (6) that on a true count he (Kidwai) would have received a majority of valid votes and that he was entitled to be declared duly elected. These allegations were denied by Yadav. At the trial before the Tribunal the parties led no oral evidence. In respect of the pleas (3), (4) and (5) the burden of proof lay upon Kidwai and as no evidence was led to . substantiate the same, those pleas failed. Again in the view of the Tribunal, Kidwai could discharge the burden of proof which lay upon him to establish that there were discrepancies ,between the original and the certified copies of Forms Nos 241 16 & 20, and as the original forms were not called for by Kidwai, his second ground must also fail. Kidwai claimed that he would be able to establish his case on pleas (1) & (6) from the ballot papers, and submitted that an order for inspection of the ballot papers be made and that he be per mitted to show from the ballot papers that the Returning Officer had improperly received, refused or rejected the votes, and that on a true count he would get the largest number of valid votes. The Tribunal rejected the applica tion for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interest of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in the reception, refusal or rejection of votes at the time of counting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court however held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, that there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing. The only question which falls to be determined in this appeal is whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to its order in that behalf, lodged before it in sealed boxes by the Returning Officer. In considering this question the material provisions of the Representation of the People Act, 1951, and the rules framed thereunder may first be noticed. Section 80 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 83(1) states what the election petition shall contain. It states: "Art election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; 159 S.C 16 242 (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as posssible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings: The rest of the section is not material. Section 90(1) prescribes the procedure to be followed by the Tribunal. It states: "Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: " Section 92 enumerates the powers which a Tribunal trying an election petition may exercise and the powers so enumerated are the powers which a Court under the Code of Civil Procedure, when trying a suit, may exercise in respect of discovery and inspection, enforcing attendance of witnesses, compelling production of documents, receiving evidence taken on affidavits and issuing commissions for the examination of witnesses. Rules have been framed under the Act relating to production and inspection of election papers. By rule 93 of the Conduct of Election Rules, 1961, it is provided that: "(1) While in the custody of the returning officer (a) the packets of unused ballot papers; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub section (1) or sub section (2) of section 152; and 243 (d) the packets of the declarations by electors and the attestation of their signatures; shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court or tribunal. (2) All other papers relating to the election shall be open to public inspection subject to such fee, if any, as the Election Commission may direct. (3) Copies of the returns by the returning officer forwarded under rule 64 or as the case may be. under sub rule (3) of rule 84 shall be furnished by the chief electoral officer of the State concerned on payment of a fee of two rupees for each such copy. " The rule makes a clear distinction between ballot papers and other election papers: ballot papers may be inspected only under the order of a competent court or tribunal, but other documents are, subject to certain conditions, open to public inspection. In this case, on an oral request made by Kidwai all the ballot papers in sealed boxes were lodged with the Election Tribunal. Kidwai claimed in the first instance that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record. The Tribunal rightly rejected this plea, to by the mere production of the sealed boxes pursuant to its order the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice. An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil court is invest 244 ed under the Code of Civil Procedure when trying a suit. But the power which the civil court may exercise in the trial of suits is confined to the narrow limits of 0. II, Code of Civil Procedure. Inspection of documents under 0. II, Code of Civil Procedure may be ordered under rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under rule 18(2) of other documents in the possession or power of the other party. The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under 0.11 Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it. the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers. That power is clearly implicit in sections 100(1)(d)(iii), 101, 102 and rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0.11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by sections 94 and 128(1). An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are ful filled: (i) that the petition for setting aside an election con tains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary, But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with pre 245 cision supported by averments of material facts. To estab lish a case so pleaded an order for inspection may undoubt edly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. It must be remembered that the rules framed under the Representation of the People Act, 1951, set up an elaborate machinery relating to the stage of counting of votes by the Returning Officer, and provide ample opportunity to the can didate who has contested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the Returning Officer. Rule 53 provides for the admission of only certain classes of persons to the place fixed for counting and amongst such persons are expressly included candidates, their election agents and counting agents, who may watch the counting subject to the directions which the returning officer may give. Rule 55 deals with the procedure for scrutiny and opening of ballot boxes. The Returning Officer has to satisfy himself that "none of the ballot boxes has in fact been tampered with" and before any ballot box is opened at the counting table, the counting agents present at that table are allowed to inspect the seal affixed thereon and to satisfy themselves that it is intact. If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he is prohibited from counting the ballot papers contained in that box and he has to follow the procedure prescribed in that behalf in section 58. Clause (1) of rule 56 provides for the scrutiny and rejection of ballot papers. Clause (2) sets out detailed provisions relating to, cases in which the Returning Officer shall reject a ballot paper By cl. (3) it is provided that before rejecting any ballot paper under sub rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect such ballot papers. The Returning Officer has then to record on every ballot paper which he rejects the grounds of rejection. All the rejected ballot papers are required to be put in one bundle. Rule 57 deals with the counting of votes. Each ballot paper which is not rejected is counted 246 as one valid vote. The Returning Officer has to make the entries in a result sheet in Form 20 after counting of the ballot papers contained in all the ballot boxes used at the polling stations. Clause (3) of rule 57 enacts an elaborate set of rules about the entries to be made in respect of the counting and scrutiny of the ballot papers. By rule 60 counting has to be continuous, and rule 63(1) provides that after the completion of the counting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the result. By cl. (2) of rule 63 it is provided that after such announcement is made, a candidate or his election agent may apply in writing to the Returning Officer for ' a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount. The Returning Officer must decide the application and record his reasons in support of his decision and he may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable. After the total number of votes polled by each candidate has been announced, the Returning Officer must complete and sign the result sheet in Form 20 and after such form is completed no application for recount may be entertained. Under rule 64 the declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes, and the Returning Officer is required to complete and certify the return of election. There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a are count. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re count. It is in the light of the provisions of section 83(1) which require a concise statement of material facts 247 on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered. In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception, refusal or rejection of votes were contained in paragraphs 6(H), 6(K) and 12. In paragraph 6(H) it was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the "bundles of the respondents. " In paragraph 6(K) it was averred that due to "a deficiency in the supply of sealing ink, marks on some ballot papers, though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer. " In paragraph 12 it was averred that "the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out, and if the ballot papers are correctly sorted, counted and bundled. the respondent No. 1 will be found to have polled less votes as compared to . petitioner. The petitioner further submits that the result of the Election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, counting and bundling of ballot papers. " These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did not comply with the statutory requirements of section 83(1)(a). Paragraph 12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner, and merely asserts that if the votes actually cast in favour of the petitioner are counted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav. Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim. The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice, but the discretion has manifestly to be exercised having regard to the nature of the allegations made. The Tribunal would be Justified ir 248 refusing an order where inspection is claimed with a view to fish out materials in support of a vague plea in the case set out in the petition. The Tribunal was conscious of the true principle: it stated in its order dated August 25, 1962, that nothing was brought to its notice which would justify granting an order for inspection prayed for by the petitioner at that stage. The Tribunal further observed: "If in future from facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection could always be passed". Relying upon these observations another application was submitted by Kidwai asking for inspection but no additional materials were placed before the Tribunal. As we have already observed Kidwai led no real evidence at the trial. In his second application for inspection he merely averred that "the petitioner was almost sure" that on inspection and scrutiny of ballot papers, the allegations contained in the various paragraphs would be proved. The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection. He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do. Reliance was placed before this Court and the High Court upon the decision of this Court in Bhim Sen vs Gopali and others(1) in support of the plea that mere absence of parti culars will not furnish a ground for declining to grant ins pection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers. In Bhim Sen 's case(1) a petition was filed for setting aside an election of a candidate in a reserved seat in a double member constituency. The principal ground in support of the petition (1) 249 was that it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in contravention of section 63(1) of the Representation of the People Act, and that the Returning Officer having failed to discharge his duty to reject ballot papers cast in contravention of section 63 the petitioner believed that the successful candidate "could receive many void votes. " The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and "did" be substituted respectively for the words "believes" and "could". Along with the petition for leave to amend he filed a list giving the particulars of the void votes. This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment. In appeal to this Court it was held that in a case like the one before the Court, definite particulars about the number and ' nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the pleadings. We do not think that Bhim Sen 's case(1) lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise, allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend ' upon the facts of each case. But if material facts are not 22 E.L.R.288. 250 stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sen 's case(1) the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged by the defeated candidate that there had been contravention of the provisions of section 63 (1 ) of the Act by the Returning Officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words " alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made: the propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of the claim made. In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles. The appeal therefore is allowed and the order of the High Court is set aside. The order of the Tribunal is restored with costs in this Court and the High Court. Appeal allowed.

IN-Abs

The respondent challenged the election of the appellant, inter alia, on the ground that there had been improper reception, refusal and rejection of votes at the time of counting and that on a true count he would have received a majority of valid votes and that he was entitled to be declared duly elected. He claimed that by inspection of the ballot papers he would be able to establish his case on the aforesaid allegations and that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record. The Tribunal in its order stated that nothing was brought to its notice which would justify granting an order for inspection. It further observed: "If in future from the facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection could always be passed". Thereupon, another application was submitted by the respondent asking for inspection but no additional materials were placed before the Tribunal and no oral evidence was led at the trial. The Tribunal rejected the application for inspection. On appeal, the High Court held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, and there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court. The Tribunal had therefore rejected the application for inspection without any adequate reasons. The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to an order in that behalf, lodged before the Tribunal in sealed boxes by the Returning Officer. Held: By the mere production of the sealed boxes, the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice. 239 The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under 0. XI of the Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. Where the interests of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in sections 100(1)(d)(iii), 101, 102 of the Representation of the People Act, 1951 and rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0. XI Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot papers prescribed by sections 94 and 128(1) of the Act. Bhim Sen vs Gopali, , distinguished.

Appeal No. 7 of 1962. Appeal from the judgment and decree dated October 14, 1957 of the Punjab High Court in R.F.A. No. 219 of 1950. N. C. Chatterjee, H. L. Mittal, section section Khanduja and Ganpat Rai, for the appellant. Ram Lubhaya and section D. Sekhri, for respondents Nos. 1 12. section K. Mehta and K. L. Mehta, for respondents Nos. 13 15. 323 January 27, 1964. The Judgment of the Court was delivered by MUDHOLKAR J. This is a plaintiff 's appeal from the dismissal of his suit for specific performance of a contract for the sale of 3/20th share of land in certain fields situate in Mauza Faizpur of Batala in the State of Punjab. He had instituted the suit in the court of Sub Judge, First Class, Batala, who dismissed it in its entirety. Upon appeal the High Court of Punjab, while upholding the dismissal of the plaintiff 's claim for specific performance, modified the decree of the trial court in regard to one matter. By that modification the High Court ordered the defendants to repay to the plaintiff the earnest money which he had paid when the contract of sale was entered into by him with Pindidas. It may be mentioned that Pindidas died during the pendency of the appeal before the High Court and his legal representatives were, therefore, substituted in his place. Aggrieved by the dismissal of his claim for specific perfor mance the plaintiff has come up to this Court by a certi ficate granted by the High Court, under article 133 of the Constitution. The relevant facts are these: The plaintiff owned 79/120th share in Kasra Nos. 494, 495, 496, 497, 1800/501, 1801/501 and 529 shown in the zamabandi of 1943 43, situate at Mauza Faizpur of Batala. On October 1, 1943 he purchased 23/120th share in this land belonging to one Devisahai. He thus became owner of 17/20th share in this land. The remaining 3/20th share belongs to the joint Hindu family of which Pindidas was the Manager and his brother Haveliram Khemchand and Satyapal were the members. According to the plaintiff he paid Rs. 175 per marla for the land which he purchased from Devisahai. In order to consolidate his holding, the plaintiff desired to acquire the 3/20th share held by the joint family of Pindidas and his brothers. He, therefore, approached Pindidas in the matter and the latter agreed to sell the 3/20th share be longing to the family at the rate of Rs. 250 per marla. The contract in this regard was entered into on October 1, 324 1945 with Pindidas and Rs. 100 were paid to him as earnest money. As the manager of the family failed to execute the sale deed in his favour, the plaintiff instituted the suit and made Pindidas and his brothers defendants thereto. The suit was resisted by all the defendants. Pindidas admitted having entered into a contract of sale of some land to the plaintiff on October 1, 1945 and of having received Rs. 100 as earnest money. According to him, however, that contract pertained not to the land in suit but to another piece of land. He further pleaded that he had no right to enter into a contract on behalf of his brothers who are defendants 2 to 4 to the suit and are now respondents 13 to 15 before us. The defendants 2 to 4 denied the existence of any contract and further pleaded that even if Pindidas was proved to be the karta of the joint family and had agreed to sell the land in suit the transaction was not binding upon them because the sale was not for the benefit of the family nor was there any necessity for that sale. The courts below have found in the plaintiff 's favour that Pindidas did enter into a contract with him for the sale of 3/20th share of the family land in suit and received Rs. 100 as earnest money. But they held that the contract was not binding on the family because there was no necessity for the sale and the contract was not for the benefit of the family. It is not disputed before us by Mr. N. C. Chatterjee for the plaintiff that the defendants are persons in affluent cir cumstances and that there was no necessity for the sale. But according to him, the intended sale was beneficial to the family inasmuch as it was not a practical proposition for the defendants to make any use of their fractional share in the land and, therefore, by converting it into money the family stood to gain. He further pointed out that whereas the value of the land at the date of the transaction was Rs. 175 per marla only the plaintiff had agreed under the contract to purchase it at Rs. 250 per marla the family stood to make an additional gain by the transaction. The substance of his argument was that the Manager of a joint 325 Hindu family has power to sell the family property not only for a defensive purpose but also where circumstances are such that a prudent owner of property would alienate it for a consideration which he regards to be adequate. In support of his contention he has placed reliance on three decisions. The first of these is Jagatnarain vs Mathura Das(1). That is a decision of the Full Bench of that High Court in which the meaning and implication of the term "benefit of the estate" is used with reference to transfers made by a Manager of a joint Hindu family was considered. The learned Judges examined a large number of decisions, including that in Hanooman Persaud Pandey vs Babooee Munraj Koonweree(2); Sahu Ram Chandra vs Bhup Singh(3) and Palaniappa Chetty vs Sreemath Daivasikamony Pandra Sannadhi(4) and held that transactions justifiable on the principle of benefit to the estate are not limited to those which are of a defensive nature. According to the High Court if the transaction is such as a prudent owner of property would, in the light of circumstances which were within his knowledge at that time, have entered into, though the degree of prudence required from the manager would be a little greater than that expected of a sole owner of property. The facts of that case as found by the High Court were: ". . the adult managers of the family found it very inconvenient and to the prejudice of the family 's interests to retain property, 18 or 19 miles away from Bijnor, to the management of which neither of them could possibly give proper attention, that they considered it to the advantage of the estate to sell that property and purchase other property more accessible with the proceeds, that they did in fact sell that property on very advantageous terms, that there is nothing to indicate that the transaction would not have reached a profitable conclusion . " (P. 979). (1) I.L.R. 50 All. (2)(1816) 6 Moo. I.A.393. (3) I.L.R. 39 All 437. (4)44 I.A.147. 326 We have no doubt that for a transaction to be regarded as one which is of benefit to the family it need not neces sarily be only of a defensive character. But what transac tion would be for the benefit of the family must necessarily depend upon the facts of each case. In the case before the Full Bench the two managers of the family found it difficult to man age the property at all with the result, apparently, that the family was incurring losses. To sell such pro perty, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be re garded as beneficial to the family. In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner. Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence. An that is said is that the fraction of the family 's share of the land owned by the family bore a very small proportion to the land which the plaintiff held at the date of the transaction. But that was indeed the case even before the purchase by the plaintiff of the 23/120th share from Devisahai. There is nothing to indicate that the position of the family vis a vis their share in the land had in any way been altered by reason of the circumstance that the remaining 17/20th interest in the land came to be owned by the plaintiff alone. Therefore, even upon the view taken in the Allahabad case the plaintiff cannot hope to succeed in this suit. The next case is Sital Prasad Singh vs Ajablal Mander(1) That was a case in which one of the questions which arose for consideration was the power of a manager to alienate part of the joint family property for the acquisition of new property. In that case also the test applied to the transaction entered into by a manager of a joint Hindu family was held to be the same, that is, whether the transaction was one into which a prudent owner would enter in the ordinary (1) I.L.R. 18 Pat. 327 course of management in order to benefit the estate. Following the view taken in the Allahabad case the learned Judges also held that the expression "benefit of the estate" has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature. In the course of his judgment Harries C.J. observed at p. 311: ". . the karta of a joint Hindu family being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu law givers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct." After observing that the transaction entered into by a manager should not be of a speculative nature the learned Chief Justice observed: "In exceptional circumstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate. " These observations make it clear that where adult members are in existence the judgment is to be not that of the manager of the family alone but that of all the adult mem bers of the family, including the manager. In the case be fore us all the brothers of Pindidas were adults when ' the 328 contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice. The other Judge who was a party to that decision, Manokarlal J., took more or less the same view. The third case relied on is In the matter of A.T. Vasudevan & Ors., minors(1). There a single Judge of the High Court held that the manager of joint Hindu family is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction. This view was expressed while, dealing with an application under cl. 17 of Letters Patent by one Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging to, inter alia, to his five minor sons and for sanction of the sale of that pro perty as being beneficial to the interests of the minor sons. The petitioner who was karta of the family had, besides the five minor sons, two adult sons, his wife and unmarried daughter who had rights of maintenance. It was thus in connection with his application that the learned Judge considered the matter and from that point of view the decision is distinguishable. However, it is a fact that the learned Judge has clearly expressed the opinion that the manager has power to sell joint family property if he is satisfied that the transaction would be for the benefit of the family. In coming to this conclusion he has based himself mainly upon the view taken by Venkata Subba Rao J., in Sellappa vs Suppan(2). That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family. While holding that a transaction to be for the benefit of the family need not be of a defensive character the learned Judges, upon the evidence before them, held that this particular transac (1) A.I.R. 1949 Mad. 260. (2) A.I.R. 1937 Mad. 329 tion was not established by evidence to be one for the bene fit of the family. Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material be fore it that it was in fact such as conferred or was reason ably expected to confer benefit on the family at the time it was entered into,. We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly re sisted the plaintiff 's claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiff 's claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation. In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion. right by refusing specific performance. No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of section 15 of the Specific Relief Act which runs thus: "Where a party to a contract is unable to perform the whole of his part of it, and the part which 330 must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. " However, in the case before us there is no claim on behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindidas alone in the property. In the result the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant entered into a contract with the karta for the purchase of property belonging to a joint Hindu family. This property consisted of a fractional share belonging to the family in a large plot of land. Earnest money was paid to the karta. As the karta did not execute the sale deed the appellant instituted a suit for specific performance. The other members who are the brothers of the karta and who were adults (1) A.I.R. 1962 Raj 3. (2) 1959 All. L.J. 340. 134 159 S.C. 21 322 at the time of the contract were also impleaded in the suit as defendants. The suit was resisted on the ground that there was no legal necessity and that the contract for sale was not for the benefit of the family. The trial court as well as the High Court upheld these contentions. Before this Court it was contended that even though there was no legal necessity the transaction was for the benefit of the family which the karta as a prudent owner was entitled to enter into for the benefit of the family. Held:(i) For a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character, but what transactions would be for the benefit of the family would depend on the facts and circumstances of each case. In each case the Court must be satisfied from the material before it that it was in fact such as conferred or was necessarily expected to confer benefit on the family at the time it was entered into. (ii) No part of the joint family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family when the transaction is opposed by the adult members of the family. (iii)In the present case the appropriate pleas were not raised by the plaintiff nor the necessary evidence led. The granting of specific performance is always in the discretion of the court. In the facts and circumstances of the case the courts below were justified in refusing to order specific performance and the appeal is dismissed. Jagatnarain vs Mathura Das, I.L.R. 50 All. 969, Honooman Prasad Pandey vs Babooee Munraj Koonwaree, (1856) 6 Moo. I.A. 393 Sahu Ram Chandra vs Bhup Singh, I.L.R. 39 All. 437, Palaniappa Chetty vs Sreemath Daiyasikamony Pandara Sannadhi, 44 I.A. 147, Sital Prasad Singh vs Ajablal Mander, I.L.R. 18 Pat. 306 and In the matter of A. V. Vasudevan & Ors. Minors. A.I.R. 1949 Mad. 260. referred to.

Appeal No. 770 of 1963. WITH Civil Appeals Nos. 771 778, 883 and 884 of 1963. Appeals from the judgment and order dated April 19, 1963, of the Andhra Pradesh High Court in Writ Petitions Nos. 267 275 and 289 and 295 of 1963. A. V. Viswanatha Sastri, P. Babula Reddy and K. R. Chaudhuri, for the appellants (in C.A. No. 77/1963). P. Babula Reddy and K. R. Chaudhuri, for the appellants (in C. A. Nos. 771 777/1963). K. R. Chaudhuri, for the appellants (in C.A. No. 778/1963). K. Srinivasa Murthy and K. R. Chaudhuri, for the appellants (in C. A. Nos. 883 and 884 of 1963). D. Narasaraju, Advocate General, Andhra Pradesh, P. R. Ramachandra Rao and B. R. G. K. Achar, for the respondents (in all the appeals). January 27, 1964. The Judgment of the Court was delivered by AYYANGAR J. This batch of 11 Appeals which have been consolidated for hearing are directed against the common judgment of the High Court of Andhra Pradesh and are before us on the grant of a certificate of fitness under article 133(1) of the Constitution by the said High Court. The proceedings concerned in the appeals arise out of Writ petitions filed before the High Court by the several appellants before us under article 226 of the Constitution challenging the validity of three Schemes framed under Chapter IV A of the , nationalising motor transport in certain areas in the Kumool District of the State of Andhra Pradesh which for convenience we shall refer to as the impugned Schemes. The appellants who impugn the validity of the schemes are the previously existing motor transport operators whose permits are liable to be modified or cancelled under the provisions of 334 the Schemes on their coming into force. The impugned schemes were published by Government as G.O.Ms. 292, 293 and 294 of the Home, Transport Department on the 5th February, 1963 in virtue of the powers conferred on Government by sub section 2 of the 68 D of the . The Andhra Pradesh State Road Transport Corporation which for shortness we shall refer to as the Corporation, besides the State of Andhra Pradesh and the Regional Transport Authority, Kurnool were impleaded as respondents to the petitions. They are also the respondents before us. By reason of the first Scheme, 34 routes were intended to be taken over, while under the 2nd and 3rd, 17 and 13 routes respectively were proposed to be nationalised. The routes covered by these three schemes are all in the western half of the Kurnool District. Before adverting to the points requiring consideration in the appeals, it would be convenient to set out the relevant statutory provisions relating to the nationalisation of Road Transport for it is primarily on their construction that the decision of the appeals would turn. Chapter IV A containing special provisions relating to "State Transport Uundertakings" was introduced into the (Act IV of 1939) by an amendment effected by Central Act 1 of 1956 which came into effect on 16 2 1957. The Chapter consists of sections numbered 68 A to 68 1. 68 A contains definitions and of these it is sufficient to refer to the definition of "State Transport Undertaking" which includes inter alia "any undertaking providing road transport service, where such undertaking is carried on by. any Road Transport Corporation established under sec. 3 of the Road Transport Corporation Act 1950. " (to refer to the portion which is material.) (It might be mentioned that the Corporation, the first respondent before us is a body established under this enact ment.) 68 B reads: "The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith 335 contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law. " The next section 68 C which is the one most involved in the appeals runs: "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 giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." The first two sub sections of section 68 D enable persons affected by a Scheme published under section 68 C to file objec tions thereto before the State Government within thirty days after the publication of the Scheme. It further provides for the State Government considering the objections raised by persons affected by the Scheme after giving an oppor tunity to the objectors and the "undertaking" to be heard in the matter before approving or modifying the Scheme. The Scheme so approved or modified is required to be published in the State Gazette and on such publication it becomes final and is to be called "the approved scheme". This is followed by sub sec. (3) which reads: "The scheme as approved or modified under sub section (2) shall then be published in the Official 336 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 under it has been published in the Official Gazette with the previous approval of the Central Government. " Section 68 E provides : "any scheme published under sub section (3) of section 68 D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68 C and section 68 D shall so far as it can be made applicable be followed in every case where the scheme is proposed to be modified as if the modification proposed were a separate scheme. " Section 68 F is really consequential on the approval of the scheme and sub section (1) thereof enacts: "Where, in pursuance of an approved scheme, any State Transport Undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier 's permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the state transport undertaking, notwithstanding anything to the contrary contained in Chapter IV. " Its second sub section enables the Regional Transport Authority to refuse renewal of any other permits to private operators and otherwise to deal with those permits so as to give effect to the Scheme. Sections 68 G and 68 H deal with the payment of compensation and the methods by which the same should be computed but as these. are not material, we shall not quote them. 337 Section 68 1 empowers the State Government to make rules for the purpose of carrying into, effect the provisions of Chapter IV A and among the specific purposes for which such rules may be framed is one under section 68 1(2) (a) which provides for the form in which any scheme or approved scheme may be published under section 68 C or sub section (3) of Section 68 D and as usual a residuary clause reading: " any other matter which has to be or may be con sidered. " These draft schemes prepared by the Corporation were published under section 68 D in the official Gazette on the 29th of November, 1962. The appellants among others filed objections to the schemes and thereafter there was a hearing of these objections by the Transport Minister of the State under section 68 D(2) on the 11th of January, 1963. The Minister passed an order according approval to the schemes on the 12th of February, 1963, and the schemes as finalised were published in the Gazette on the next day, February 13, 1963. In pursuance of the provisions of the schemes the Corporation made application to the Regional Transport Authority for permits. Soon thereafter the appellants and a few others filed writ petitions invoking the jurisdiction of the High Court under article 226 of the Constitution praying for the quashing of the schemes. These petitions were dismissed by the High Court by a common judgment on the 19th of April, 1963, holding that the objections made to the validity of the schemes would not be sustained. The learned Judges, however, on the application of the Appellants granted a certificate of fitness under article 133 in pursuance of which these appeals have been preferred. The points urged by the appellants before us in support of their submission regarding the invalidity of the impugned schemes, were substantially the same as were urged before High Court and which the learned Judges repelled. Briefly stated the principal ones were: (1) that the schemes did not in reality reflect the opinion of the Corporation that "it was necessary in the public interest that the Road Transport services in the area or over the route, specified in the 134 159 S.C. 22 338 schemes should be run and operated by the State Transport Undertaking" as is required by section 68 C but that the schemes owed their origin to the direction of the Chief Minister of Andhra Pradesh who acted mala fide in directing the Transport Undertaking to frame the impugned schemes for the areas for which they were purported to be framed; (2) that the decision by the Transport Minister overruling the objections raised by the several road transport operators to the schemes was also mala fide, in that he too acted in pursuance of the mala fide intentions of the Chief Minister of Andhra Pradesh; (3) that the provisions of the schemes (and this applied both to the draft schemes published by the Corporation as well as the approved schemes published under section 68 D(3) did not conform to the statutory requirements of section 68 C and rule 4 of the Rules regarding the particulars to be embodied in the schemes and that in consequence the core of the scheme was in violation of Rule 68(E) of the Act; (4) that the schemes comprised not merely intrastate routes but also included inter state transport routes and in the latter case the procedure prescribed by the proviso to section 68 D was not followed and hence all the impugned schemes which are integrated ones are bad and require to be set aside. There were also a few minor ones which we shall notice and examine later. We shall deal with these four points in the same order. Before taking up the first one viz., that the draft scheme in section 68 D really did not originate from the Corporation, the State Transport Undertaking, but that it was done under the direction of the Chief Minister who, it was alleged for reasons which were set out in the affidavits and to which we shall refer presently was stated to have compelled, directed or induced the Corporation to do so, it would be necessary to give a short resume of the history of nationalised transport in Andhra Pradesh as well as certain events in Andhra Pradesh politics which have been the subject of allegations in these proceedings. The present State of Andhra Pradesh is made up of two distinct areas (1) what is known as the "Telengana area" consisting of nine districts of the old Hyderabad State and (2) the "Andhra area" which separated from Madras i.e. from the composite 339 Madras State, in October 1953 and which comprised 11 districts. These two areas were integrated under the States Re organization Act, 1956, to form the present State of Andhra Pradesh. In the Telengana area the road transport services had been run by the Government of the Nizam since the year 1932 and by 1956 private motor road transport operators had been completely eliminated from this entire area. In the Andhra Area comprising the 11 districts how ever, nationalisation of motor transport had not been under taken. Soon after the formation of the State of Andhra Pradesh, the Andhra Pradesh State Road Transport Corporation was established with effect from 11th of January, 1958 with a view to take steps for extending nationalised transport to the Andhra areas of the State. Certain routes in three of the 11 Districts Krishna, West Godavari and Guntur were nationalised from 1959 onwards. The Vijayawada Masulipatam and Vijayawada Guntur routes were nationalised in the first instance and thereafter by about September, 1959, almost the entire routes in Krishna District were nationalised. The next district to be taken up was West Godavari which was done in March, 1960. The process was nearly completed in this district by the 1st of February, 1960, except for a few routes. The Government had sanctioned certain schemes for nationalisation in Guntur District which were expected to be completed by October, 1961. The question which was thereafter the subject of consideration was the manner in which and the stages whereby nationalisation of the motor transport throughout the State might be brought about. With this object the Corporation adopted a resolution in 1960 by which it decided to appoint an expert Committee to go into question as to the working of nationalised transport with a view to improve its efficiency as well as for drawing up plans for the future expansion of the road transport services in the State. The terms of reference to that Committee were comprehensive and it started functioning very soon after the members were appointed. Shri section Anantharama krishnan, Chairman of Messrs. Simpson & Co. Ltd., Madras, one of the principal motor transport operators of the Madras State, was the Chairman of the Committee and it comprised three other members who were officials of the 340 Andhra Pradesh State Government. The Committee made various recommendations in the Report which it submitted to the Corporation on the 9th February, 1961. Among the several recommendations which this Committee made, what is of relevance to the present appeals and on which reliance was placed in support of the plea that the impugned schemes were vitiated by mala fides are those contained in Chapter IX of the Report and in particular the priorities of areas for taking up nationalisation which the Committee recommended in paragraph 125. They set out in paragraph 124 the factors which should be taken into account in fixing the order in which new areas should be taken up for nationalisation as being (1) "the most profitable areas should be taken up first;" (2) "from the traffic point of view there should be contiguous expansion;" (3) "from the administrative point of view it is convenient to nationalise bus services district by district;" and (4) "the proposal to form large sized divisions should be borne in view. " Adopting these criteria the Committee stated in paragraph 125 "that the nationalisation of bus transport may be extended to the remaining districts in the Andhra area as indicated below: 1961 621 guntur District 1962 63 Nellore and Chittor Districts 1963 64 Cuddapah and Kurnool Districts 1964 65 Anantapur and East Godavari Districts 1965 66 Visakhapatnam and Srikakulam Dis tricts". The Committee also added in paragraph 126 "we recommend that a policy decision may be taken by Government on the proposal to extend nationalisation of bus services to the remaining Andhra Districts during the Third Five Year Plan. The order in which the new areas will be taken over may also be decided by Government. The Corporation will then be able to make its plans well in advance, and arrange to provide all the facilities that are needed for expanding its activities to other districts. " This report of the 34I Anantharamakrishnan Committee was the subject of con sideration by the Corporation and they accepted in March, 1962 the above recommendation regarding the phased pro.programme of nationalisation of districts in the order indicated s and embodied this recommendation in their Administration Report for the period January 11, 1958, (the day on which the Corporation was formed) to March 31, 1961 which was submitted to the Government as required by section 35(2) of the Road Transport Corporation Act, 1960, on the 7th of April, 1962. In this last document they said speaking of future trends, "the programme for nationalisation of transport services in the remaining of the Andhra Pradesh is as indicated below: 1961 62 Guntur District 1962 63 Nellore and Chittor Districts 1963 64 Cuddapah and Kurnool Districts 1964 65 Ananthapur and East Godavari Districts 1965 66 Vishakhapatnam and Srikakulam Dis tricts. " In the impugned schemes, however, the Corporation made an alteration in the order of the Districts successively to be taken up for nationalisation. It would be seen that after Guntur District which was neatly completed by the end ,of 1961 the next districts to be taken up during the 1962 63 would have been Nellore and Chittor Districts in that order and it was only thereafter that the District of Cuddapah and after it Kurnool would be taken up. That was the recommendation of the Anantharamakrishnan Committee and which had been accepted by the Road Transport Corporation as late as April, 1962 and it may be mentioned in this connection that the Vice Chairman of the Road Transport Corporation was himself a member of the Anantharamakrishnan Committee. By its resolution dated, 4th May, 1962, the Road Transport Corporation decided that instead of the above order Kurnool, Nellore and Cuddapah Districts in that order would be chosen for nationalisation and in the three schemes which were formulated in pursuance of this Resolution the western half of Kurnool was selected as the area to be nationalised in the first instance. 342 As we have indicated earlier the appellants before us are transport operators whose routes are all in the western half of the, Kurnool District. It is this change in the orders of the Districts in which the routes are to be nationalised and the choice of the Western part of Kurnool for being taken up in the first instance that are alleged to be due to the mala fide intentions of the Chief Minister and this forms the main ground upon which the validity of the schemes is impugned. The allegations in this respect may now be stated. In the affidavit in support of the Writ Petition No. 267 of 1963 from which Civil Appeal No. 770 of 1963 arises, this is what is stated: "The General Elections for the various Constituencies of Assembly and Parliament were held in February, 1962. It is well known that there are two groups in the Congress and they were actively ranged against each other. The previous Chief Minister (Shri Sanjivayya) and the present Chief Minister (Shri Sanjiva Reddy) were both returned from Kurnool District in general elections. T he then Chairman of the Zila Parishad Shri Vijaya Bhaskara Reddy contested unsuccessfully from Yemniganpur Constituency in Kurnool District. (Yemniganpur is in the western part of the Kurnool District). He is the active supporter of the present Chief Minister. Shri C. Ram Bhopal son in law of the present Chief Minister also unsuccessfully contested from the Nandikothur Constituency in Kurnool District. (Nandikothur is also in the western part of Kurnool). The person who successfully opposed him Sri P. Venkatakrishna Reddy now M.L.A. is a partner in 'Venkata Krishna Bus Service Nandikothur. This firm owns 2 permits and they stand in the name of Jayaramayya who was the Election Agent of Sri Venkata Krishna Reddy. Two persons Sri Ganikhan and Sri Antony Reddy who are staunch supporters of 343 the present Chief Minister Sri Sanjiva Reddy were selected as Congress candidates by the Parliamentary Board at Delhi when Sanjiva Reddy was the President of the Indian National Congress, were also defeated in their respective Constituencies. It was considered by one and all that leading transport operators among them, (the petitioners) were responsible for the defeat of these persons and this enraged the feelings of Shri Sanjiva Reddy against the operators in Kurnool District and particularly the operators whose routes lay in the western areas of the District and with a view to cause them loss and to ruin their business this nationalisation of transport in the western part of Kurnool was directed to be undertaken in spite of the Emergency and in spite of the incapacity of the Road Transport Corporation to fulfil their earlier commitments for want of buses. The undivided brothers of Sri T. Narayan, a transport operator, namely Sri Venkataswamy contested the Assembly seat against Sri Sanjiva Reddy in the Dhone Constituency from which he was returned and he refused to withdraw even though lots of pressure were brought on him. Sri Rajasekhara Reddy and Sri Vijayakumara Reddy sons of Sri P. Ranga Reddy, Minister in the previous Cabinet are also transport operators in the Kurnool District. It is known to every one that Sri P. Ranga Reddy is in the group opposed to Sri Sanjiva Reddy. Sri Y. Mahananda Reddy another transport operator is a staunch supporter of Sri P. Ranga Reddy. When Sanjiva Reddy was President, of the Indian National Congress his selection, for the Congress ticket was set aside by him and one Vengal Reddy was selected by the Pradesh Congress Committee. It is significant that the three schemes framed for the part of the Kurnool District relat e to the areas in 344 which the routes on which the above stated persons are running their buses. It is also significant that the areas in Kurnool District where the supporters of the present Chief Min ister are having permits are not sought to be included in any of the three nationalisation schemes. In the Nandyal area most of the transport operators are the supporters of the present Chief Minister and their routes are excluded from the schemes. It is with a view to achieve the object of hitting against those operators who have fallen into disfavour and to protect those who are in his good books that the schemes have been evolved over routes and parts of the District. " Two further matters were also urged as supporting this plea of mala fides. The first was that with a view to carry out the original programme which was approved and confirmed by the Corporation in their Administration Report published on April 7, 1962, the routes in the Nellore District which according to the Anantharamakrishnan Commitee Report had to be taken up next were surveyed and though the elements of contiguity and profitable nature were both present in regard to the extension of the services to Nellore, contiguity by reason of the fact that some buses belonging to the Corporation and running from Guntur were already plying in Nellore District and the profitable nature since these were evaluated by the Anantharamakrishnan Committee whose recommendations were examined and approved by the Corporation, the nationalisation of the routes in Nellore was, however, abandoned and that of the western part of Kurnool was decided upon. The other fact was that the National Defence Council passed a reso lution as late as the first week of November, 1962, urging the deferring of further nationalisation of transport services for the present and it was in the teeth of. this resolution which was passed at the meeting at which the Chief Minister himself was present that the schemes of nationalisation of transport services in Kurnool district was published by the Corporation on the 29th November, 1962. 345 Before examining whether these allegations have been made out it would be necessary to explain the legal position in relation to which they have to be considered. To begin with the schemes now impugned have been formulated by the Corporation which is an independent semi autonomous body brought into existence by the State Government by acting under the Road Transport Corporation Act, 1950. Under section 68 C of the it is the Corporation which is the State Transport Undertaking which has to form the opinion whether "for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service it is necessary in the public interest whether the service should be run and operated by the State Transport Undertaking. " Secondly, it is the Corporation that has to be satisfied that such services should in public interests be provided "for any area or route". In the present case, it is undoubtedly the Corporation that has published the schemes under section 68 C in which these two matters are stated to have been considered and decided upon by the Corporation itself. It was not disputed by the appellants that whatever be the inclinations, desires or motives of the Chief Minister, if the Corporation had by an independent consideration of the situation decided on the formulation of the impugned schemes, their validity could not be successfully impugned mearly because the schemes satisfied the alleged grudge which the Chief Minister bore to the affected operators. The argument urged by the appellants on this part of the case was however tow fold: (1) That it was not in fact the Corporation that formed the opinion indicated in section 68 C but really the Chief Minister; (2) That the Chief Minister was motivated by extraneous considerations, namely, to strike at his political opponents who worked either against himself or his friends, supporters and relations in the elections in February, 1962 and had devised the schemes in order to cause them loss and compass their ruin. A subsidiary point was also urged that the Transport Minister who heard the objections under section 68 D(2) was also influenced by the Chief Minister. It was thus said that the Chief Minister dominated at every stage through 346 which the schemes passed and that the schemes were really the result of his improper motive to ruin his political opponents. It was again not disputed by the respondent that if these steps were made out the schemes would be invalid and ought to be quashed. The learned Judges of the High Court have on this part of the case held: (1) That the allegations made against the Chief Minister had not been proved; (2) Assuming, however, that the Chief Minister was actuated by political motives to hit at his opponents, still, the schemes which were published by the Corporation, had been framed by the Corporation not at the dictation of the Chief Minister, but as a result of their own independent judgment; and (3) Lastly the learned Judgesheld that there was no proof that the Transport Minister who heard the objections raised by the appellants to the schemes was influenced by the Chief Minister or acted at his behest, and therefore that the schemes framed and approved were fully in conformity with the requirements of section 68 C. The correctness of these conclusions have been challenged before us and the first matter that requires to be con sidered is as to whether the allegations against the Chief Minister have been made out. The question raised has manifestly to be considered from two aspects. The first is whether the facts alleged which were stated to have been the cause of the Chief Minister 's animus against the transport operators in the western part of Kurnool have been estab lished. In regard to this the first point to be noticed is that the contents of the affidavit were not vague, but details were given and these were: (1) The existence of two groups in the Congress Party at the time of the General Elections in 1962, the Chief Minister being the head of one of them and of the other Mr. Sanjivayya; (2) That at the last General Elections certain candidates who were named and who are stated to have belonged to the group of the Chief Minister were defeated; (3) The Constituencies where they stood were in the western portion of the Kurnool District; (4) That this defeat was occasioned by persons belonging to the other group in the Congress Party whose names are 347 also given (5) That several of these members supporting the dissident group were motor transport operators and who are stated to have taken a prominent part in the elections and in the defeat of the candidates belonging to the Chief Minister 's group; (6) The matters in relation to Ranga Reddy and his sons etc. These are what might be termed objective facts. If these allegations were held not proved, then the entire plea of the appellants on this part of the case fails, because there would be no foundation for the submission regarding the mala fides of the Chief Minister. If, how ever, these facts were held to be made out, the second aspect requires to be examined and that is whether the Court has material to hold that these facts led the Chief Minister to entertain feelings of personal hostility to these transport operators because of the aid and support the latter gave to the candidates belonging to the group opposed to him which led to the defeat of his partymen. On this aspect the allegations were that the Chief Minister felt chagrined at the defeat of his partymen and supporters and desiring to wreak his vengeance against the motor transport operators of the western parts of Kurnool, his political opponents, instructed the Corporation to change the order in which the districts should be taken up for nationalisation and had Kurnool taken up first, departing from what had been decided upon, just a little while previously by the Cor poration, and that the Corporation gave effect to these in structions and directions by not only taking Kurnool first, but even in that district eliminating the private operators from the western portions of the district who were the poli tical opponents of the Chief Minister. This, it is obvious, would be a matter of probabilities and of the inference to be drawn by the Court from all the circumstances on which no direct evidence can be adduced. It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are fre quently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation, in fact, are made in 348 several of the cases which have come up before this and other Courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of it at least might stick. Consequently it has become the duty of the Court to scrutinise these allegations with care so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus cast on the courts it would conduce to a more satisfactory disposal and consideration of them, if those against whom allegations are made came forward to place before the court either their denials or their version of the matter, so that the court may be in a position to judge as to whether the onus that lies upon those who make allegations of mala fides on the part of authorities of the status of those with which this appealis concerned, have discharged their burden of proving it. In the absence of such affidavits or of materials, placed before the Court by these authorities, the Court is left to judge of the veracity of the allegations merely on tests of probability with nothing more substantial by way of answer. This is precisely the situation in which we find ourselves in the present case. The learned Judges of the High Court have repelled the allegations contained in the affidavits which we have set out earlier on grounds and for reasons which do not appeal to us. As the learned Advocate General did not seek to support those grounds and that reasoning we do not consider it necessary to set them out or deal with them. If the reasons given by the learned Judges of the High Court be put aside, the position resolves itself into this that allegations with particularity and detail have been made in the petition. We are here having in mind the allegations we have enumerated and categorised earlier as objective facts. As to these there is no denial at all of them, not even by the Transport Minister who though he filed an affidavit, confined himself to the allegations regarding his having been dictated to by the Chief Minister when he approved the schemes, though it is obvious they are capable of denial and if need be with the same particularity with which they have been made in the petition. The learn 349 ed judges of the High Court have not rejected the allega tions regarding the objective facts on the ground of their patent improbability or absurdity, nor did the learned Advo cate General make any submission on these lines. The next question is as regards the inference to be drawn from these facts which in the absence of their denial have to be taken as true. It is here that we have felt the greatest uneasiness, because if the facts which serve as the foundation for the plea of mala fides are made out, the only question would be whether the inference of mala fides on the part of the Chief Minister would be a reasonable one to draw. It is at this point that we are faced with the neces sity of having to proceed without there being any effective answer to the propriety of drawing the inference which the appellants desire. There has been no denial by the Chief Minister, nor an affidavit by any person who claims or can claim to know personally about the truth about these alle gations. The Secretary to the Home Department one Mr. section A. lyengar has filed a counter affidavit in which the alle gations we have set out earlier have been formally denied. He says, "I have been expressly instructed and authorised by the Hon 'ble the Chief Minister to state that the allegations suggesting personal animus and giving mandate are false and mischievous and have been deliberately made to create an atmosphere of sympathy". The learned Advocate General did not suggest that the Court could act upon this second hand denial by the Chief Minister, as the statement by Sri section A. lyengar is merely hearsay. We are, therefore, constrained to hold that the allegations that the Chief Minister was motivated by bias and personal ill will against the appellants, stands unrebutted. The learned Advocate General realising this position, desired us to proceed on that basis and his submission was that assuming that the allegations made against the Chief Minister were made out and that he had bias and ill will against the appellants, still there was no proof that the Corporation which was an autonomous body was similarly moti vated and that unless the appellants were able to establish it, bias or ill will on the part of the Chief Minister would be irrelevant 350 We agree as already indicated that he is right in this submission. This takes us to the consideration of the ques tion as to whether the Corporation carried out the mandate of the Chief Minister as was alleged by the appellants or whether the impugned schemes were formulated by them as a result of the opinion which they themselves formed that they were necessary in public interest for the purposes set out in section 68 C of the Act. On this matter there is an affidavit by the Corporation denying the allegation made by the appellants that the Corporation acted merely as the tool of the Chief Minister in order to carry out his behest, and it is there asserted that the decision to frame the schemes was taken as a result of the independent opinion formed by them after an examination of the entire question. The acceptability of these rival assertions were debated before us most strenuously during the hearing of these appeals. Certain facts already set out have a bearing on this ques tion, and these we shall recall. The Anantharamakrishnan Committee had laid down the criteria for determining the order in which areas and routes had to be selected for nationalisation, and applying these principles had drawn up a list of the remaining districts in which nationalisation should be successively taken up. If that order was follow ed, Nellore would have been the next district to be taken up and the turn of the Kurnool District would have come up after nationalisation of the routes in the Nellore, Chittor and Cuddapah districts were completed. This report had been submitted to the, Corporation in February, 1961 and after further detailed examination of these recommendations the Corporation had accepted the recommendation regarding the order of the Districts to be taken up for nationalisation and had embodied this approval in its Administration Report dated March 24, 1962 which was published in April, 1962. It is only necessary to add that the Corporation had also had the routes in Nellore surveyed a little while before. In February, 1962, however, the general elections to the Assembly and the Parliamentary Constituencies had taken place and the allegations of the appellants related to the feelings that arose during the course of elections. The present Chief Minister assumed office as Chief 351 Minister on March 12, 1962. On April 19, 1962, it is ad mitted that he summoned a conference of the Corporation and its officials at which, and this also is admitted, he sug gested that the nationalisation of bus routes in the Kurnool District should be taken up first. Now the Chief Minister himself made a statement as to what he did at this meeting. It is the case of the appellants that it was the mandate given to the Corporation by the Chief Minister at this Conference that brought about this change in the order of the districts to be taken up for nationalisation and not the independent opinion of the Corporation as to what was needed in the public interest as required by section 68 C. As regards his part at the conference, the Chief Minister himself stated in the Assembly on July 26, 1962: "To say that the Corporation will do everything for the simple reason that it is an autonomous body, and also to say that we will not at all interfere, is not fair. It will not be fair. Now and then we shall have conferences. For example, the Corporation wanted to nationalise Chittoor district. We had discussions. Kurnool is surrounded by three nationalised districts; one side Mahaboobnagar, one side Guntur and the other side the district of Nellore which is going to be nationalised. I questioned as to why the district of Kurnool which is surrounded by three nationalised districts is left out, and instead the district of Chittoor which is abutting the borders of Madras and Bangalore is sought to be taken up. They could not explain. I said Kurnool district is a very compact one and three districts around it are nationalised. They thought that was more practicable and reasonable. Therefore they changed their minds. As a result of such dis cussions, once in a way we (Government) do interfere but will not interfere in day to day administration. " The conference, as stated earlier, addressed by the Chief Minister was on the 19th of April, 1962. This was follow 352 ed by the resolution of the Corporation of May 4, 1962. This ran: .lm15 "The Corporation noted the discussion which took place in the office of the Chief Minister on 19th April, 1962, in regard to programme of nationalisation of Road Transport Services during the Third Five Year Plan period and resolved that during the Third Five Year Plan three more districts in the order mentioned could be nationalised, viz., Kurnool, Nellore and Cuddapah in view of difficult financial position. . Chief Executive Officer explained that as there is a depot at Kurnool and as Kurnool is contiguous to the nationalised districts, it would be easier to nationalise Kurnool rather Nellore district. The nationalisation could be extended to the Nellore district after Kurnool district is nationalised. The Corporation therefore resolved that Kurnool district could be taken up for nationalisation in preference to Nellore. " In the counter affidavit which the Corporation filed to, the writ petition the Chief Executive Officer after denying that the Corporation was actuated by mala fides in framing the three impugned schemes, stated that the acceptance by the Corporation of the recommendation of the Anantharamakrishnan Committee was tentative and that it could not fetter them from discharging its powers and duties under the statute. It gave the following reasons for the decision to nationalise Road Transport Services in a part of the Kurnool district in preference to other areas: (1) because there is a Government depot at Kurnool, (2) Kurnool is contiguous to the entire Telangana area which is rationalised and also contiguous to the nationalised area of Guntur. It also stated that the choice was made in the interest of the maintenance of service contiguity and coordination and it added that "the impending completion of the Rangapur Bridge over the river Krishna, which when completed would facilitate the operation of direct services from Hyderabad through Kurnoof to the areas beyond. " Besides it 353 asserted that the Corporation which was an autonomous statutory authority was vested with powers under the Road Transport Act and it was ', therefore, malicious to allege that the decision by the Corporation to prepare the impugned schemes was either influenced by the, Chief Minister or was under a mandate from him and it asserted that in formulating the schemes the necessary opinion under section 68 C was formed by itself. The learned Judges of the High Court have accepted this statement, made on behalf of the Corporation and have repelled the attack made on it based on the schemes not having been formulated as a result of the opinion formed by the Corporation itself. The learned Advocate General commended this approach and this conclusion for our acceptance. He also pointed out that the Anantharama krishnan Committee had themselves indicated in paragraph 126 of their report that the order in which the new areas will be taken over for nationalisation might be decided by the Government, so that the order in which motor transport in the several districts should be nationalised, was not prescribed by the Committee as a rigid or hard and fast rule, but the order of the districts was treated even by them as a flexible one which was capable of and was intended to be, modified by the Government by making policy decisions on these matters taking into account not merely the finances available for nationalisation but also other relevant matters. We have given the matter our best consideration, but we are unable to agree with the learned Judges of the High Court in their conclusion. The first matter which stands out prominently in this connection is the element of time and the sequence of dates. We have already pointed out that the Corporation had as late as March, 1962 considered the entire subject and had accepted the recommendation of the Anantharamakrishnan Committee as to the order in which the transport in the several districts should be nationalised and had set these out in their Administration Report for the three year period 1958 to 1961. It must, therefore, be taken that every factor which the Anantha 134 159 S.C. 23 354 ramakrishnan Committee had considered relevant and material for determining the order of the districts had been independently investigated, examined and concurred in, before those recommendations were approved. It means that upto March April, 1962 a consideration of all the relevant factors had led the Corporation to a conclusion identical with that of the Anantharamakrishnan Committee. The next thing that happened was a conference of the Corporation and its officials with the Chief Minister on April 19, 1962. The proceedings of the Conference are not on the record nor is there any evidence as to whether any record was made of what happened at the conference. But we have the statement of the Chief Minister made on the floor of the State Assembly in which he gave an account of what transpired between him and the Corporation and its officials. We have already extracted the relevant portions of that speech from which the following points emerge: (1) that the Chief Minister claimed a right to lay down rules of policy for the guidance of the Corporation and, in fact, the learned Advocate General submitted to us that under the Road Transport Corporation Act, 1950, the Government had a right to give directions as to policy to the Corporation; (2) that the policy direction that he gave related to and included the order in which the districts should be taken up for nationalisation; and (3) that applying the criteria that the districts to be nationalised should be contiguous to those in which nationalised services already existed, Kurnool answered this test better than Chittoor and he, applying the tests he laid down, therefore suggested that instead of Chittoor, Kurnool should be taken up next. One matter that emerges from this is that it was as a result of policy decision taken by the Chief Minister and the direction given to the Corporation that Kurnool was taken up. for nationalisation next after Guntur. It is also to be noticed that if the direction by the Chief Minister, was a policy decision, the Corporation was under the law bound to give effect to it (vide, section 34 of the Road Transport Corporation Act, 1950). We are not here concerned with the question whether a policy decision contemplated by section 34 of the Road Transport Act could relate to a matter which under section 68 C of the Act is left to the unfettered discretion and judg 355 ment of the Corporation, where that is the State Undertak ing, or again whether or not the policy decision has to be by a formal Government order in writing, for what is rele vant is whether the materials placed before the Court estab lish that the Corporation gave effect to it as a direction which they were expected to and did obey. If the Chief Minister was impelled by motives of personal ill will against the Road Transport Operators in the western part of Kurnool and he gave the direction to the Corporation to change the order of the districts as originally planned by them and instead take up Kurnool first in order to prejudicially affect his political opponents, and the Corporation carried out his directions it does not need much argument to show that the resultant scheme framed by the Corporation would also be vitiated by mala fides notwithstanding the interposition of the semi autonomous Corporation. It is also to be noticed that the Chief Minister in his statement to the Assembly stated that when he made an enquiry of the Corporation as to why they did not choose Kurnool as the next district, the officials of the Corporation had no answer to give. It is somewhat remarkable that the Corporation and its officials should have remained silent and tongue tied notwithstanding that its Vice Chairman was a member of the Anantharamakrishnan Committee and had as a member thereof considered the entire question in all its aspects and laid down (1) the criteria for determining the order of priority; and (2) by applying these tests had laid down the priorities among the districts and more than this, the entire body of the Corporation had considered the several recommendations of the Committee in their report and while rejecting some had accepted this particular recommendation regarding the order in which the districts should be taken up and this last one had happened within a month or so before the conference addressed by the Chief Minister. If in these circumstances the appellants allege that whatever views the Corporation entertained they were compelled to or gave effect to the wishes of the Chief Minister, it could not be said that the same is an unreasonable inference from facts. It is also somewhat remarkable that within a little over two weeks from this Conference by its 356 resolution of May 4, 1962, the Corporation dropped Nellore altogether, a district which was contiguous to Guntur and proceeded to take up the nationalisation of the routes of the western part of the, Kurnool district and were able to find reasons for taking the step. It is also worthy of note that in the resolution of the 4th May, 1962, of the Cor poration only one reason was given for preferring Kurnool to Nellore, namely, the existence of a depot at Kurnool because the other reason given, namely, that Kurnool was contiguous to an area of nationalised transport equally applied to Nellore and, in fact, this was one of the criteria on the basis of which the Anantharamakrishnan Committee itself decided the order of priority among the districts. As regards the depot at Kurnool which was one of the two reasons set out in the resolution for the choice of that district in the first instance, learned Counsel for the appellants submitted that this reason was one invented to justify the Corporation 's action directed against them and to obviate the comment that the reason for the change was political and not for providing an adequate service for the area. He submitted that the so called depot was merely a garage with a few repairing tools and not any full fledged repairing workshop. None of the affidavits filed on behalf of the appellants, however, made any allegation regarding the nature of the facility afforded at this 'depot and so we are not in a position to act merely on the arguments adduced to us at the bar. It has however to be noticed that the existence of this 'depot ' at Kurnool escaped the notice of the Anantharamakrishnan Committee, who in their report have devoted some attention to the need for depots and the equipment these should possess and referred to certain deficiencies which they noticed in the depots which they inspected. The officials of the Corporation did not evi dently bring this depot at Kurnool to the notice of the Com mittee. Again, when in their Administration Report, the Corporation accepted the recommendations as regards the order in which the districts, should be nationalised, the existence of this depot at Kurnool seems also to have escap ed the attention of the Corporation itself, as a factor to be taken into account in making the choice of the district. But we are basing no; conclusion on this feature. 357 When the Transport Corporation, however, filed the counter affidavit it was not content to rest merely with the reasons given in the resolution as those which were taken into account in arriving at the decision but added one more, namely, the impending completion of the bridge at Rangapur across the Krishna as a further reason which had been taken into account for arriving at a decision. What the Court is concerned with and what is relevant to the enquiry in the appeal is not whether theoretically or on a consideration of the arguments for and against, now advanced the choice of Kurnool as the next district selected for nationalisation of transport was wise or improper, but a totally different question whether this choice of Kurnool was made by the Corporation as required by section 68 C or, whether this choice was in fact and in substance, made by the Chief Minister, and implemented by him by utilising the machinery of the Corporation as alleged by the appellants. On the evidence placed in the case we are satisfied that it was as a result of the conference of the 19th April, 1962, and in order to give effect to the wishes of the Chief Minister expressed there, that the schemes now impugned were formulated by the Corporation. The next submission of the learned Advocate General was that even assuming the Chief Minister directed the order in which districts were to be taken up for nationalisation, still the scheme framed by the Corporation could not be assailed as not in conformity with the requirements of section 68 C of the Act so long as the choice of the "area" in which and the routes in it to be run by the Corporation was made by them alone. This argument proceeds from the circumstance that even taking it that the Chief Minister directed the Corporation to take up the nationalisation of the routes in the Kurnool district in the first instance, there was no allegation that he gave any direction regarding the area in the district and the routes. We fail to see any force in this argument. If the choice of the district was that of the Chief Minister, the fact that within the area of the district pointed out to them, the Corporation selected some area within the district and the routes within that area, 358 cannot on any reasonable construction of section 68 C be a sufficient compliance with the statute. We are disposed to read the word 'area ' in the section as meaning such 'area ' in the entire State as the Corporation should consider proper and not as the learned Advocate General would read as area within a circumscribed part of the State determined by an outside authority. Besides . there is really little or no explanation forth coming from the Corporation for choosing the western part of the Kurnool district for the exclusion of the private ope rators in the first instance. The principal allegation regarding mala fides on the part of the Chief Minister made by the appellants was directed to demonstrate that the object of the present schemes was to eliminate operators whose routes lay on the western side of the district. It is also stated in the affidavits that the friends or supporters of the Chief Minister were operating motor transport in the eastern part of Kurnool. Therefore it might be expected that the counter affidavits filed offered a rational explanation as to why this portion of the Kurnool district was chosen in the first instance in preference to the other portion of the district. Needless to say the resolution of the Corporation of May 4, 1962, offers no assistance in this matter and a,,; we have said earlier though the counter affidavits contained a denial of the allegation that the Corporation was acting at the behest of the Chief Minister, there is no explanation for the choice of the western portion. Our conclusion therefore is that the impugned schemes are vitiated by the fact that they were not in conformity with the requirements of section 68 C. The next question is as regards the approval of the schemes by the Transport Minister under section 68 D(3). It was the case of the appellants that just like the Corporation, the Transport Minister also merely, carried out the wishes of the Chief Minister and that therefore the approval by the Transport Minister must be held to be vitiated by the mala fides of the Chief Minister. In regard to this, however, two matters have to be remembered. The first is that there is nothing on the record to show that the Chief 359 Minister influenced his colleague and beyond the fact that both the Chief Minister as well as the Transport Minister are members of the same Council of Ministers, there is nothing to indicate that the Chief Minister influenced the Transport Minister. The other matter is that the Transport Minister had stated on oath that in considering the objec tions under section 68D(3) and approving the schemes he was uninfluenced by the Chief Minister. We, therefore, consider that there is no basis for holding that the Transport Minister 's approval of the schemes does not satisfy the re quirements of the law. In view that we take the schemes have to be set aside as not in conformity with section 68 C of the Act, the other objections raised do not require consideration but in view, however, of the arguments addressed to us on them we shall briefly deal with them. The next point that was urged was that the schemes were not in conformity with section 68 C of the Act for another reason. A scheme to be published by the Transport Undertaking is required by section 68 C to give "particulars of the nature of the services proposed to be rendered and such other particulars respecting thereto as may be prescribed", prescribed, of course, meaning "prescribed by rules". These particulars, it is obvious, are required to be set out in the scheme, so that (a) transport operators running vehicles on the routes might know that they are affected by the scheme and might, if they see sufficient reason therefor, prefer objections under section 68 D(1); and (b) the operators and others formulate their objections properly, particularly in the matter of pointing out the deficiency or inadequacy of the schemes or the services proposed to be run under the schemes for the approving authority to consider. It was urged on behalf of the appellants that the impugned scheme did not furnish particulars required by this provision. The draft scheme, as published under section 68 C, and that as approved finally, contains six columns which are respec tively headed (1) Serial Number; (2) Name of the Route, indicating its course; (3) Length of the route in miles; (4) 360 Number of vehicles proposed to be operated on each route , (5) Total number of trips each way to be performed on each route; and (6) The nature of the services. columns 4 and 5 do not contain the precise number of vehicles proposed to be operated or the precise total of the trips each way to be performed daily. But on the other hand each of these columns is sub divided into two 4 and 4(a), 5 and 5 (a). Under column 4 is given the minimum number of vehicles proposed to be operated and under 4(a) the maximum number. Similarly column 5 sets out the minimum number, of total trips each way and 5 (a) the maximum number. Now in several of these the variation between the maximum and the minimum in columns 4 and 5 is 1 to 2 i.e. if one is the minimum two is the maximum, and similarly if two is the minimum, four is the maximum, but there are others in which the variation is even more pronounced. for instance, in scheme number one, in serial number 15 the minimum is one and the maximum three in both columns 4 and 5 and in serial number 16 the proportion between, the maximum and minimum is even more pronounced for in column 4 it is 1 to 4. The position is similar in regard to serial No. 20. The objection that is raised to this method of specifying the maximum and the minimum of the number of vehicles which will be put on the route and the number of trips which these vehicles will operate is, that one of the objects of the schemes is the provision, among others, of an adequate road transport service. It is common ground that the persons affected by the schemes may object to the scheme on the ground that it does not offer an ade quate service and that this would be a relevant matter for consideration by the authority approving the scheme. It is, therefore, urged on behalf of the appellants that the schemes as promulgated which disclose not the actual number of vehicles that would run or the number of trips which the vehicles would make, do not enable the affected objectors to raise their objections to the adequacy of the service pro posed and similarly do not afford requisite information to the approving authority under section 68D(3) to decide whether to approve the scheme or not. Besides this general objection, it is pointed out that the specification of a minimum 361 and a maximum in columns 4 and 5 is contrary to what has been prescribed by the Andhra Pradesh Motor Vehicles Rules, 1957, made in relation to "the particulars to be contained in schemes under Ch. IV A." Rule 4 of these Rules which have statutory force under section 68 C requires draft schemes and approved schemes to contain inter alia "the number of vehicles proposed to be operated on each route and the total number of trips to be performed daily on each route. " By a rule framed on the 26th of December, 1958, the State Government framed a rule numbered as Rule 5 of these Rules which reads: "5. The State Transport Undertaking may at its discretion, vary the frequency of services on any of the notified routes or within any notified area having regard to the needs of traffic during any period, either by increasing or decreasing the number of trips of the existing buses or by increasing or decreasing the number of buses. " The validity of Rule 5 was one of the matters that was raised for consideration by this Court in Dosa Satyanaraya namurty etc. vs The Andhra Pradesh State Road Transport Corporation(1) and this Court held that Rule 5 was repugnant to section 68 E which reads: "Any scheme published under sub section (3) of section 68 D may at any time be cancelled or modified by the State Transport Undertaking and the procedure laid down in section 68 C and section 68 D shall, so far as it can be made applicable be followed in every case where the scheme is proposed to be modified as if the modifications proposed were a separate scheme." and struck it down. Thereafter rule 5 was deleted, but rule 4 remains as we have set out. The question for con sideration is whether the prescription of maxima and minima in columns 4 & 5 is in conformity with the requirements of Rule 4. It was submitted on behalf of the appellants (1) that the reason why these maxima and minima were put 362 down in the schemes, contravening Rule 4, was in reality to avoid the operation of section 68 E and to get over the decision of this Court striking down Rule 5 and that for the same reason which underlay the decision of this Court in Dosa Satyanarayanamurty 's case(1) the prescription of maxima and minima contravened section 68 E as it operates in no way dissimilar to Rule 5 and that as this vice pervades the entirety of the scheme as published, all the three schemes should be set aside. In further support of their submission the appellants relied on the affidavit filed by the Assistant Secretary to the Transport Department who stated that the prescription of maxima and minima was adopted because "it enabled the Corporation to provide adequate services with reference to the public needs, without having to go through the elaborate gamut of modifying the approved scheme for the purpose." The learned Judges of the High Court have repelled this contention on the ground of the analogy furnished by sections 46 and 48 of the Act under which applications for State carriage permits by private operators and the permits grant ed to them are required to state the minimum and maximum number of daily services proposed to be provided in relation to each route or area, was an indication that a scheme specifying the maxima and minima of the number of buses and services was in conformity with and did not contravene Rule 4. The learned Advocate General adopted the same line of argument and submitted that the language of Rule 4 did not in terms prohibit the specification of a minimum and maximum and that Rule 5 which this Court struck down as being repugnant to section 68 E was attracted only when the maxima or minima set out in the scheme was departed from. He, however, conceded that the gap, between the minimum and the maximum specified in a scheme might be so wide as to render the same a contradiction of Rule 4 but he submitted that the variations in the 3 schemes before us between columns 4 and 4 (a) and columns 5 and 5 (a) respectively were so slight as not to amount to a failure to fix the number of vehicles to be operated or the trips they would do on the routes. (1) 363 In the case before us in view of the conclusion we have reached that some of the variations between the maxima and the minima in the number of vehicles proposed to be operated on each route are such as, adopting the test suggested by the learned Advocate General himself, to really contravene Rule 4 we have not thought it necessary to finally decide the larger question, whether the mere prescription of the maxima and minima, particularly for the reasons set out in the affidavit of the Assistant Secretary to the Transport Department, constitutes a violation of section 68 E as also of Rule 4 of the Motor Vehicles Rules, 1957 as to require the same to be struck down. We might, however, mention in passing that we are not much impressed by the argument based on sections 46 and 48. It must be remembered that we are concerned with a requirement of Ch. IV A and under section 68 B of the Act, not only the provisions of that Chapter but the rules made thereunder are to have effect notwithstanding anything in Ch. IV in which section 46 and section 48 occur. This apart, the rule making authority had the analogy of the provisions of sections 46 and 48 before it, but yet chose not to adopt the same phraseology as was employed in these sections. Besides, as the provisions of Ch. IV A invade the rights of private operators to carry on business and is justified as a reasonable restriction on their rights in public interest, it might very well have been considered that a more precise indication should be afforded by the scheme to enable its adequacy to be tested by the quasi judicial procedure which has to be followed before the scheme becomes effective. However, as stated already, there is no need to decide this matter finally in view of our conclusion that the scheme contravenes Rule 4 even on the test submitted by the Advocate General. In saying this we have in mind routes 15, 16, 18 and 20 of scheme No. 1 in which the variation in the number of vehicles is 1 to 3, 1 to 4 and 3 to 8 and similarly in scheme No. 2 route No.1 where the variation is 6 to 12 and in scheme No. 3 route No. 1 the variation is 5 to 9. We might mention that we have taken into account not merely the proportion but the variation in the number. We have set these out as merely illustrative and we have not thought it necessary to make an exhaustive list of all the routes. 364 The next objection was that some of the routes included in the scheme were inter State routes and that under the proviso to section 68D(3) it could not be deemed to be an ap proved scheme unless the previous approval of the Central Government had been obtained. We consider this objection as without force. The route which is proposed to be nationalised under the scheme admittedly lies wholly within the State. The right of the private operators to ply their vehicles beyond the State border is not affected by any of the schemes. It would, therefore, follow that the proviso to section 68 D(3) is not attracted and consequently the scheme does not suffer from the defect alleged. The next point made was that the language employed to indicate the nature of the service in column 6 of the schemes was vague, with the result that operators who had, in fact, been affected by the scheme understood the words employed as not affecting them and consequently did not make objections as they were entitled to under section 68 D(2). We have examined the language employed and we consider that the submission does not deserve serious consideration nor we are satisfied that any party was really misled by ambiguous phrasing of column 6 of the scheme. In fact, learned Counsel did not press this objection after the matter was discussed during arguments. The next series of objections to the schemes are those which arise in Civil Appeals Nos. 771 to 778. The point most strenuously contended related to an illegality which was alleged to have occurred in the implementation of the scheme. Under section 68 (1) the State Transport Undertaking has to make the application in the manner specified in Chapter IV A for "a Stage Carriage permit. . . "to the Regional Transport Authority" and that Authority is directed to grant the permit to the Undertaking notwithstanding anything to the contrary in Ch. In accordance with the provisions of this section the State Road Transport Corporation made an application for the grant of permits to the Regional Transport Authority. The objection raised is that the application had to be made not to the Regional Transport Authority but only to the State Transport Autho rity which authority alone, it is urged, is competent to en 365 tertain applications for the grant of permits where the length of the route is 100 miles or over and such route is over a Trunk Road. Three of the routes in scheme 2 with which Civil Appeal Nos. 773, 776 and 777 are concerned are of a length beyond 100 miles and the roadway on which the route lies are admittedly Trunk Roads. Under Rule 141 of the Madras Rules permits on routes covering a distance of over 100 miles on Trunk Roads could be granted only by the State Transport Authority. It was this Authority that had granted the permits to operate on these three routes to the respective appellants in these appeals. The argument is that even when a Transport Undertaking applies for a stage carriage permit under section 68 F(1) it must comply with the provisions of Rule 141. On the basis of this reasoning the appellants in these three Civil Appeals have applied for a writ of prohibition against the Regional Transport Authority before whom the applications have been filed. Section 68 F(1) reads: "68 F(1). Where, in pursuance of an approved scheme any State transport undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier 's permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter IV. " The learned Judges of the High Court have held that the Regional Transport Authority which is specifically mentioned in section 68 F(1) is empowered to issue the permit to the transport undertaking "notwithstanding anything to the contrary contained in Chapter IV" and that the section rendered the provisions of Rule 141 of the Motor Vehicles Rules inapplicable to cases covered by section 68 F(1). We find ourselves in agreement with this view. Besides, section 68 B of the Act enacts: "68 B. The provisions of this Chapter and the rules and orders made thereunder shall have effect 366 notwithstanding anything inconsistent there with contained in Chapter IV of this Act or in any law for the time being in force or in any instrument having effect by virtue of any such law. " Therefore any provisions in Chapter IV which are in consistent with those contained in Chapter IV A would to that extent be superseded. No doubt, section 68 F(1) speaks of an application in the manner specified in Ch. IV which if the words stood alone are capable of being understood as meaning the authority to whom the application has to be made, but as the authority to issue the permit in pursuance of the application is specified as the Regional Transport Authority and as that authority is directed to issue the permit notwithstanding anything in Ch. IV so much of Ch. IV or the Rules made thereunder, which specify the authority to grant the permit as being someone other than the Regional Transport Authority, is to that extent superseded. It was pointed out that under Rule 141 the State Transport Autho rity was itself vested with the powers of the Regional Transport Authority where the route was of the description mentioned earlier, but this, in our opinion, makes no difference. No doubt, in a State where there is no Regional Transport Authority at all [vide e.g. proviso to section 44(1)], but there is some other authority which functions as the Regional Transport Authority for the purposes of the Art, such an Authority might be that which would be comprehended by section 68 F(1) but where as in Andhra Pradesh there is admit tedly a Regional Transport Authority, we cannot accede to the submission that such authority is deprived of the power to issue a permit by reason of section 68F(1) merely because the Regional Transport Authority of that area cannot grant permits under Ch. IV There were certain other points urged in Civil Appeal No. 771 which arose only if the Regional Transport Authority to whom applications under section 68 F(1) were made, was not competent to entertain application and issue a permit. In view of our conclusion as regards the point urged in Civil Appeal No. 771 of 1963 do not arise. 367 There remains for being dealt with one minor point which was urged in Civil Appeals Nos. 883 and 884 which we consider entirely without substance. The point was that the description of the route in the scheme was too vague and misleading, so much so that the appellants did not file their objections before the Government. Taking the case of Civil Appeal No. 883, it is by an operator who runs a service from Uravakonda to Adoni. Serial No. 16 of scheme No.1 describes the route as Adoni to Uravakonda. It was urged that as the scheme notified the route Adoni to Ura vakonda but not Uravakonda to Adoni, the appellant thought that his route was not affected. The objection is on its very face frivolous because throughout the scheme, it is only the terminal points that are specified and that speci fication carries with it and obviously implies that the ope ration of transport between the two terminii is intended to be nationalised. The complaint in Civil Appeal No. 884 is the same, only the route is different. This completes all the points that are urged before us. In view of our conclusion that the schemes are vitiated by non compliance with the requirements of section 68 C and the Rules made thereunder, we hold that they have to be quashed as not warranted by law. The appeals are accordingly allowed and the appellants are granted a declaration that the schemes are invalid and cannot be enforced. The appellants would be entitled to their costs here and in the High Court one hearing fee '. Appeals allowed. AYYANGAR J. When the judgment in the above appeals was pronounced on January 27, 1964 the learned Advocate for the appellants brought to our notice the following order passed by this Court on June 10, 1963 when the interim stay of the operation of the schemes which are impugned in the above appeals, was vacated on the opposition by the State Government: "Stay vacated on the learned Advocate General for Andhra Pradesh giving an undertaking that 368 in case the appeals succeed, the State will compensate the appellants for the loss incurred by them during the period that the appeals were pending in this Court by reason of the fact that they were not allowed to ply their buses on the routes under the respective permits granted to them. The learned AdvocateGeneral further undertakes that this amount of compensation will be determined in the present proceedings themselves. No order as to costs. " The learned Counsel requested us that we should give some directions in terms of this undertaking.

IN-Abs

The respondent corporation appointed an expert committee to go into the question as to the working of nationalised transport in the State. The Committee laid down the criteria for determining the order in which 331 areas and routes had to be selected for nationalisation and had drawn up a list of the remaining districts in which nationalisation should be successively taken up. Accordingly, Nellore would have been the next district to be taken up and the turn of Kurnool district would have come up after nationalisation of the routes in Nellore, Chittore and Cuddapah districts were completed. This report was submitted to the Corporation in February, 1961 and the Corporation accepted it and embodied the approval in its Administration Report dated March 24, 1962 which was published in April, 1962. After the General Election in 1962 the Chief Minister assumed office as Chief Minister on March 12, 1962. On April 19, 1962, he summoned a conference of the Corporation at which, he suggested that the nationalisation of bus routes in the Kurnool district should be taken up first. By its resolution dated 4 5 1962, the Corporation made an alteration in the order of the districts, successively to be taken up for nationalisation and selected the western half of the Kurnool as the area to be nationalised in the first instance. The appellants, motor transport operators whose routes were all in western half of the Kurnool districts filed objections to the Schemes before the Transport Minister. The Transport Minister approved the schemes. Thereafter, the Corporation applied to the Regional Transport Authority for permits. The appellants then challenged the validity of the schemes in the High Court and in support of that allegations were made in the affidavit that the Chief Minister was motivated by bias and personal ill will against the appellants, that he felt chagrined at the defeat of his partymen and supporters and desiring to wreak his vengeance against the motor transport operators of the western parts of Kurnool, his political opponents, instructed the Corporation to change the order in which the districts should be taken up for nationalisalion and that the corporation gave effect to these instructions and directions. These allegations were not denied by the Chief Minister, nor was an affidavit filed by any person who could claim to know personally about the truth about these allegations. The High Court repelled these allegations and dismissed the petition. On appeal by certificate the appellants mainly contended: (1) that the schemes did not in reality reflect the opinion of the Corporation as required by section 68 C of the Act, but that the schemes owed their origin to the direction of the Chief Minister who acted malafide in directing the Transport Undertaking to frame the impugned schemes; (2) that the approval of the schemes by the Transport Minister under section 68 D(3) must be held to be vitiated by the malafides of the Chief Minister; (3) that the impugned schemes did not conform to the statutory requirements of section 68 C and rule 4 of the Rules regarding the particulars to be embodied in the schemes; (4) that some of the routes included in the schemes were inter state routes and that under the proviso to section 68 D(3) it could not be deemed to be an approved scheme unless the previous approval of the Central Government had been ob tained and (5) that even when a transport undertaking applies for a stage carriage permit under section 68 F(1) it must comply with the provisions of r. 141 of the Rules. Held: (1) On the evidence placed in the present case it must be held that it was a result of the conference of the 19th April, 1962 and in 332 order to give effect to the wishes of the Chief Minister expressed there, that the impugned schemes were formulated by the Corporation and therefore, it would be vitiated by malafides notwithstanding the interposition of the semi autonomous corporation. Though the counter affidavits contained a denial of the allegation that the Corporation was acting at the behest of the Chief Minister, there was no explanation for the choice of the western portion of Kurnool district Therefore, the impugned schemes were vitiated by the fact that they were not in conformity with the requirements of section 68 C of the Act. (ii) There was nothing on the record to indicate that the Chief Minister influenced the Transport Minister. Besides, the Transport Minister stated on oath that in considering the objections under section 68 D(3) and approving the schemes he was uninfluenced by the Chief Minister. Therefore, it cannot be held that his approval of the schemes did not satisfy the requirements of the law. (iii) In the present case some of the variations between the maxima and minima in the number of the vehicles proposed to be operated on each route were such as to really contravene r. 4 of the Andhra Pradesh Motor Vehicles Rules. Dosa Satyanarayanamurthy vs The Andhra Pradesh State Transport Corporation, , referred to. (iv) The route which was proposed to be nationalised under the scheme admittedly lay wholly within the State. The right of the private operators to ply their vehicles beyond the State border was not affected by any of the schemes. Therefore, the proviso to section 68 D(3) was not attracted and consequently the schemes did not suffer from the defects alleged. (v) The High Court was right in holking that the Regional Transport Authority which is specifically mentioned in section 68 F(1) is empowered to issue the permit to the transport undertaking "notwithstanding anything to the contrary contained in Chapter IV" and that the section rendered the provisions of r. 141 of the Motor Vehicles Rules inapplicable to cases covered by section 68 F(1). No doubt, in a State where there is no Regional Transport Authority at all, but there is some other authority which functions as the Regional Transport Authority for the purposes of the Act, such an authority might be that which would be comprehended by section 68 F(1) but where as in Andhra Pradesh there is admittedly a Regional Transport Authority, it cannot be held that such authority is deprived of the power to issue a permit by reason of section 68 F(1) merely because the Regional Transport Authority of that area cannot grant permits under Chapter IV. 333

Appeal No. 75 of 1952. Appeal from the Judgment and Order dated the 16th January, 1951, of the High Court of Judicature at Calcutta (Harries C.J. and Banerjee J.) in Income tax Reference No. 46 of 1950. C. K. Daphtary, Solicitor General for India (G. N. Joshi with hum) for the appellant Joshi with him N. C. Chatterjee (P. K. Sen Gupta, with him) for the respondent. April 17. The Judgment of the Court was delivered by PATANJALI SASTRI C.J. This is an appeal from a judgment of the High Court of Judicature at Calcutta answering a reference under section 66 A of the Indian Income tax Act, 1922 (hereinafter referred to as the Act) in favour of the respondent herein. The respondent carries on business as selling agents of the Bengal Potteries Ltd., and he was prosecuted under section 13 of the Hoarding, and Profiteering Ordinance, 1943, (Ordinance No. XXXV of 1943) on a charge of selling goods at prices higher than were reasonable in contravention of the provisions of section 6 thereof. It appears that, before the prosecution was launched in August, 1944, respondent 's business premises were searched and a part of his stock was seized and taken away. The respondent defended the case, spending a sum of Rs. 10,895, and the prosecution ended in an acquittal on February 16, 1945. In his assessment to income tax for the year 1945 46, the respondent claimed the deduction of the Said sum of Rs. 10,895 from the profits of his business under section 10(2) (xv) of the Act. The Income tax Officer 93 716 disallowed the claim but the Appellate Assistant Com missioner allowed it, and his decision was confirmed by the Income tax Appellate Tribunal, Calcutta Bench. Thereupon, the Commissioner of Income tax, West Bengal, applied to the Tribunal to state a case for decision by the High Court under section 66 A of the Act, and the Tribunal accordingly referred the following question to that Court for its decision Whether in the circumstances of this case the Tribunal was right in holding that the sum of Rs. 10,895 spent in defending the criminal,proceeding was an expenditure laid out or expended wholly and exclusively for the 'purpose of business as contemplated by section 10(2) (xv) of the Indian Income tax Act ? In dismissing the appeal preferred by the Income tax Officer, the Tribunal observed: "It may be stated straight off that it has not been established by any material that the conviction in cases like this may end in imprisonment. The question that personal liberty was likely to be jeopardised therefore will not be considered by us. . . In any case, in the absence of any material in this particular case that personal liberty was likely to be jeopardised, all that we can say is that there was a chance of conviction in which the respondent might have been fined. No doubt, the element of saving himself from the fine, if any, might be there, but it is so inextricably mixed up with the main purpose for the defence that we are prepared to ignore that little element. In our opinion, the defence was solely for the purpose of maintaining his name as a good businessman and also to save his stock from being undersold if the Court held that the prices charged by the respondent were unreasonable. " In the order made on the reference Harries C. J. (with whom Banerjee J. concurred) remarked: "In every criminal prosecution where the matter is defended to protect the good name of a business or a professional man, the fear of possible fine or 717 imprisonment must always be there. But the Tribunal have pointed out that this was so inextricably mixed up with the protection of the good name of the business that it can well be found that the money ' spent in defence in the criminal prosecution wag spent solely and exclusively for the purpose of the business. The finding is a finding of fact and is binding upon us." The learned Judges proceeded to refer to a ruling of the Bombay High Court J. B. Advani vs Commissioner of Income tax(1) and held that the respondent satisfied both the tests laid down there as applicable in such cases : He was charged with regard to a transaction which took place in the ordinary course of business and he was charged in his capacity as a trader. "If these two tests were satisfied and the Court came to the conclusion that the primary object of incurring the expenditure was to protect the good name of business, then it could be said that the expenditure was wholly and exclusively for the purposes of the business". The learned Judges accordingly answered the question referred to them in the affirmative. They, however, granted a certificate under section 66 A (2) of the Act that the case is a fit one for appeal to this Court. We are unable to agree that the finding of the Tribunal, to which reference has been made, is binding on the Court as a finding of fact and is decisive of the reference. The finding of the Tribunal is vitiated by its refusal to consider the possibility of the criminal proceeding terminating in the conviction and imprisonment of the respondent. As has been stated, the respondent was prosecuted under section 13 which provides: "Whoever contravenes the provisions of this Ordinance shall be punishable with imprisonment for a term which may extend to five years or with fine or with both. " The respondent was charged with contravention of section 6, which by sub sec tion (1) prohibits the sale by a dealer or producer of an article for a consideration which is unreasonable (1) [1950] is I.T.R. 557. 718 and sub Section (2) defines "unreasonable consideration". The framers of the Ordinance thus appear to have regarded the offence as one calling for a deterrent punishment in view of its antisocial character, and it is idle to suggest that it is for the Income tax authorities to prove in such cases that the conviction might result in a sentence of imprisonment and that$ in the absence of such proof, there was, at the most, only a chance of conviction and fine. We cannot appreciate the remark that "even this chance of con viction and fine was so inextricably mixed up with the main purpose of the defence that it could, be ignored. " A finding arrived at on this line of reasoning is obviously vitiated by a serious misapprehension regarding the risk involved in a prosecution under the Ordinance and it cannot be regarded as binding on the Court in dealing with the reference. If, as the High Court realised, in every criminal prosecution where the matter is defended to protect the good name of a business or a professional man, the fear of possible fine or imprisonment must always be there, it must ordinarily be difficult for any Court to say, that the expenses incurred for the defence, even if they are not to be regarded as the "personal expenses" of the person accused, constituted "expenditure laid out or expended wholly and exclusively for the purposes of the business". Learned counsel for the respondent frankly admitted that he was not able to find a single case in the books where the expenses incurred by, a person exercising a trade or profession in defending a criminal prosecution, which arises out of his business or professional activities, were allowed to be deducted in the assessment of his profits or gains for income tax purposes. Reference was made in the course of argument to numerous cases where legal expenses incurred in civil litigation, arising out, of matters incidental to the carrying on of a business, were allowed as, a deduction in the computation of its profits, e.g.Commissioner of Income tax vs Maharajadhiraj of Darbhanga(1), where (1) (1942) L.R. 69 I.A. 15. 719 the Privy Council held that law charges incurred in defending an action brought against a money lender for damages for conspiracy, misrepresentation and breach of contract to advance sufficient funds to finance e a company were allowable as business expenditure. In that class of case, no question could arise as to the primary or secondary purpose for which the legal expenses could be said to have been incurred as in the case of a criminal prosecution where the defence cannot easily be dissociated from the purpose of saving the accused person from a possible conviction and imposition of the prescribed penalty. Nor are we satisfied, as at present advised, that a distinction drawn in the Bombay case(1) between the legal expenses of a successful and unsuccessful defence is sound. The deductibility of such expenses under, section 10(2) (xv) must depend on the nature and purpose of the legal proceeding in relation to the business whose profits are under computation, and cannot be affected by the final outcome of that proceeding. Income tax assessments have to be made for every year and cannot be held up until the final result of a legal proceeding, which may pass through several courts, is announced. For the reasons indicated we allow the appeal and answer the question referred in the negative. The appellant will be entitled to his costs both here and in the Court below. Appeal allowed.

IN-Abs

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.

Appeal No. 688 of 1962. Appeal by special leave from the judgment and order dated April 1, 1958 of the Bombay High Court in Misc. Application No. 202 of 1957. N. D. Karkhanis and R. N. Sachthey, for the appellant. I. N. Shroff for the respondents. January 29, 1964. The Judgment of the Court was delivered by MUDHOLKAR J. This is an appeal by special leave against the judgment of the Bombay High Court in a writ petition challenging the notice issued under section 34(1) of the Indian Income tax Act, 1922 by the First Income tax Officer, 439 Bombay, who is the appellant before us. In the writ petition various grounds were urged by the respondent in support of the convention that the notice was bad in law. The High Court, however, dealt with only one of those contentions, accepted it, and did not permit the respon dents ' counsel Mr. Mehta to put forward the other conten tions urged in the writ petition by the respondents. The appellant had issued notice to the respondents under section 34(1)(a) of the Income tax Act in respect of an escaped income of Rs. 47,595 for the assessment year 1944 45. This notice was issued by him on March 27, 1957. On behalf of the respondents, it is contended that the notice was bad because, though it was in respect of an amount of less than Rs. 1 lakh it was issued after the expiry of the assessment year and that the sanction of the Central Board of Revenue for issuing that notice had not been obtained by the Income tax Officer as required by cl. (iii) of the proviso to section 34(1) of the Act. It is not disputed before us that the case falls under section 34(1)(a). That provision reads thus: "(1) If (a) the Income tax Officer has reason to believe that by reason of the omission of failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depre ciation allowance has been computed, or. he may in cases falling under clause (a) at any time . serve on the assessee a notice containing all or any of the require ments which may be included in a notice under sub section (2) of section 22 and may proceed 440 to assess or re assess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection:" We have quoted only the relevant portion. Then follows the first proviso which runs thus: " provided that the Income tax Officer shall not issue, a notice under clause (a) of sub section (1) (i) for any year prior to the year ending on the 31st day of March 1941; (ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income tax which have escaped assessment or have been underassessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to, or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending be fore the 31st day of March 1941; (iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii), unless the Central Board of Revenue, and, in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice:" It will thus be seen that where the Income tax Officer has reason to believe that due to any act of the assessee a full and accurate declaration was not made by the assessee for any year, with the result that part of his income has escap ed assessment for that year, the Income tax Officer may issue a notice under cl.(a) at any time. 441 The respondents ' contention before the High Court was that the notice was bad because it had not complied with the two conditions laid down in the proviso to section 34(1). Adverting to this contention the High Court has observed thus: "Before the amendment of this section which was in force on the 27th March, 1957 the period of limitation of eight years was provided with regard to the issue of notices under Section 34(1) (a) and a period of four years for cases falling under Section 34(1)(b) By the amendment the period of limitation was removed and the Legislature provided that if the case fell under Section 34(1) (a) a notice can be served at any time. But while removing any bar of limitation, the Legislature provided some safeguards for the assessee and these safeguards were three in number and they were set out in the proviso. The first safeguard was that a notice shall not be issued for any year prior to the year ending on the 31st day of March 1941; the second safeguard was that if eight years had elapsed then the notice should not be issued for an escaped income which aggregated to less than one lakh of rupees; and the third safeguard was that the Central Board of Revenue had to be satisfied on reasons to be recorded that this was a fit case for the issue of a notice, which was for a period beyond eight years. Now, admittedly, this notice is for an amount which is less than a lakh of rupees and admittedly the Central Board of Revenue has not considered this matter at all. Therefore, there does not seem to be any answer to the contention put forward by the petitioner. " The High Court is right in saying that a notice cannot be issued where the income which has escaped assessment is less than a lakh of rupees and where more than eight years have elapsed from the assessment year. To this, however, 442 there is one exception and that is where the matter would fall to be governed by the second proviso to section 34(3). To this aspect we will, however, come little later. But before that what we must consider is the view of the High Court that the sanction of the Central Board of Revenue was also necessary. Under cl. (iii) of the proviso to section 34(1) a notice can issue only if the Central Board of Revenue is satisfied with the reasons recorded by the Income tax Officer for issuing a notice. For convenience we are describing this process as sanction of the Central Board of Revenue. The sanction under this clause is, however, necessary only where the notice in question is issued under cl. (ii) of the proviso. That is evidently what the Legislature meant when it says "in any case falling under clause (ii)". For, cl. (ii) has to be read with the opening words of the proviso: "Provided that the Income tax Officer shall not issue a notice under clause (a) of sub section (1)". So read it will be clear that the words "in any case" used in cl. (iii) only mean a case in which notice can be issued under cl. Such a notice can be issued only when the escaped income is of one lakh of rupees and over. It was, however, contended by Mr. Shroff that cl. (ii) of the proviso dealt not only with the escaped assessment of one lakh of rupees and over but also with assessments which were less than one lakh of rupees and that, therefore, even in the present case the sanction of the Central Board of Revenue was required. By excluding action with respect to escaped assessment of less than one lakh of rupees, cl. (ii) can, in, one sense, be regarded as dealing with escaped assessments of this kind. But it would be wrong to say that because of this, cl. (iii) requires the obtaining of the sanction of the Central Board of Revenue for a notice to be issued with respect to it. As already pointed out, cl. (iii) requires such sanction where the notice is issued under cl. (ii) and when on a construction of cl. (ii), no notice can be issued with respect to a class of escaped assessments, there can possibly be no requirement of the sanction of the Central Board of Revenue. If a notice is issued by virtue of some other provision such as the second proviso to sub section (3) of section 34, it would be a notice "in any other case" referred to in cl. (iii) of the proviso to sub section (1) of section 34 and in such a case the sanction which is 443 required is only that of the Commissioner. Such a sanction was obtained in this case and, therefore, the notice cannot be said to be bad because the sanction of the Central Board of Revenue has not been obtained. Now, we will come to the other aspect of the matter. Limitation is no doubt placed upon the power of the Income tax Officer by cl. (ii) of the first proviso which says that if eight years have elapsed after the expiry of that year no such notice can issue unless the income which has escaped assessment is likely to amount to one lakh of rupees or more. Here admittedly the income which has escaped assessment is below one lakh of rupees and more than eight years have elapsed since the assessment year in respect of which the income is alleged to have escaped assessment. Clearly, therefore no notice could issue under cl. The answer given by the Income tax Officer, however, is that limitation is taken away by the second proviso to sub section (3) of section 34. We would quote section 34(3) and the second proviso to it. They run thus: "No order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub section (1) or sub section (]A) of this section shall be made after the expiry of four years from the end of the year in which the income profits or gains were first assessable: Provided further that nothing contained in this seetion limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 27 or to an assessment or re assessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B. section 66 or section 66A." 444 The second proviso to section 34(3) could be pressed in aid by the Income tax Officer because in issuing the notice he was giving effect to a direction contained in the order of a nigher Income tax authority. Dealing with this matter the High Court has observed as follows in its judgment: "Now, when there was a limitation of eight years under section 34(1)(a) the second proviso to Section 34(3) has to be resorted. Section 34(3) had to be resorted to by the Income tax Department if it wanted to issue a notice after the period of limitation, and a notice after eight years in a case falling under section 34(1) (a) could only be issued provided it was a result of a direction contained in an order passed by an Income tax Authority. But by reason of the recent amendment the question of limitation does not arise, but the Legislature has provided certain safeguards as already pointed out. Therefore, whether a notice is issued as a result of a direction contained in any order of an Income tax Authority or not, if it is a notice which is issued beyond eight years the notice must satisfy the conditions laid down in the proviso to Section 34(1). Therefore, the result is that in some respects the law has been made more rigorous against the assessee; and in other respects it has been made more lenient. Before the amendment a notice could be issued after eight years in respect of any escaped income, whatever the amount, provided the notice was issued to give effect to a direction contained in an order of an Income tax Authority. Now a direction is not necessary for the issue of a notice. But as against that an assessee whose escaped income is not a lakh of rupees is completely protected and even though there may be a direction contained in an order of an Income tax Authority no notice can be issued 445 against the assessee if the escaped income is less than a lakh of rupees. Therefore, on the one hand, the assessee whose escaped income is less than a lakh of rupees is now put in a better position than he was before the amend ment. The assessee whose escaped income is more than a lakh of rupees is put in a worse position because he can be proceeded against even without a direction contained in an order of an Income tax Authority provided the Cen tral Board of Revenue has applied its mind to It would appear that the view of the High Court was that the provisions of the second proviso to section 34(3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub section (3) of section 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956. As it stood prior to these amendments it read thus: "Provided further that nothing contained in this subsection shall apply to a re assessment made under section 27 or in pursuance of an order under section 31, section 33. section 33A, section 33B, section 66 or section 66A." By the amendment of 1953, for the words "sub section", the words "section limiting the time within which any action may be taken or any order, assessment or re assessment may be made" were substituted. By the amendment of 1956 it now stands as already quoted by us. If the proviso in its present form applies here it would govern the whole of section 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to section 34(1). The result, in our opinion. would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956, 446 We may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956. Apart from the view expressed by the learned Judges as regards the effect of the changes made in section 34(1) with the provisos we have set out earlier a view which we have held is not correct they aid not further consider the proper construction to be placed on the second proviso to section 34(3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided. As we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention prac tically only to the construction of proviso (iii) to section 34(1) which was decided in favolur of the respondents and did not permit them to argue the other points raised by them. We do not propose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument. For the reasons stated above, the decision of the High Court is clearly wrong. We, therefore, allow the appeal, set aside the order of the High Court and remit the matter to it for the consideration of the other points which were raised before it by the respondents but upon which they were not heard. As regards costs we think that they should abide the result of the appeal before the High Court. Appeal allowed and cave remanded.

IN-Abs

The appellant had issued notice to the respondents under section 34(1)( of the Income Tax Act, 1922 in respect of an escaped income of Rs. 47,595 for the assessment year 1944 45. The case of the respondents was that the impugned notice was bad because the Income Tax Officer proceeded against the respondents without obtaining the necessary sanction of the Central Board of Revenue as required by cl. (iii) of the proviso to section 34(1) of the Act. The respondents filed a writ petition in the High Court challenging the notice issued under section 34(1) of the article The respondents succeeded before the High Court. 438 Held: (i) The sanction under cl. (iii) of the proviso to section 34(1) is, however, necessary only where the notice in question is issued under cl. (ii) of the proviso. That is evidently what the legislature meant when it said "in any case failing under cl. (ii)". The words "in any case" used in cl. (iii) only mean a case in which notice can be issued under cl. Such a notice can be issued only when the escaped income is of one lakh of rupees and over. Clause (iii) requires such sanction where the notice is issued under cl. (ii) and when on a construction of cl. (ii), no notice can be issued with respect to a class of escaped assessments, there can possibly be no requirement of the sanction of the Central Board of Revenue. If a notice is issued by virtue of some other provision sub as the second proviso to sub section (3) of section 34, it would be a notice "in any other case" referred to in cl. (iii) of the proviso to sub section (1) of section 34 and in such a case the sanction which is required is only that of the Commissioner. Such a sanction was obtained in this case and therefore, the notice cannot be said to be bad because the sanction of the Central Board of Revenue had not been obtained. In the present case the income which has escaped assessment is below one lakh of rupees and more than eight years have elapsed since the assessment year in respect of which the income is alleged to have escaped assessment. Clearly, therefore, no notice could issue under cl. (ii) The High Court erred in holding that the provisions of the second proviso to section 34(3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub section (3) of section 34 was amended first by Act 25 of 1953 and then by Act. 18 of 1956. The amendment of 1956 would govern the whole of section 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to section 34(1). The result would be the same even if the case fell to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956.

minal Appeal No. 210 of 1963. Appeal by special leave from the judgment and order dated July 27, 1963, of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Appeal No. 83 of 1963 and Criminal Reference No. 4 of 1963. K. K. Luthra, for the appellant. I. N. Shroff, for the respondent. January 24, 1964. RAGHUBAR DAYAL J. Faddi appeals, by special leave, against the order of the High Court of Madhya Pradesh confirming his conviction and sentence of death under section 302 I.P.C. by the Additional Sessions Judge, Morena. Jaibai, widow of Buddhu, began to live with Faddi a few years after the death of her husband Buddhu. Faddi and Jaibai at first lived at Agra, but later on shifted to 314 Morena. Jaibai had a son named Gulab, by Buddhu. Gulab was aged 11 years and lived in village Torkheda at the house of his phupa Ramle. He was living there from Sawan, 1961. Gulab 's corpse was recovered from a well of village Jarah on January 21, 1963. It reached the mortuary at Morena at 5 15 p.m. that day. It is noted on the postmortem report that it had been despatched from the place of occurrence at 1 p.m. Dr. Nigam, on examination, found an injury on the skull 'and has expressed the opinion that the boy died on account of that injury within two or three days of the postmortem examination. He stated in Court that no water was found inside either the lungs or the abdomen or the larynx or in the middle ear. This rules out the possibility of Gulab 's dying due to drowning. As a result of the investigation, the appellant and one Banwari were sent up for trial for the murder of Gulab. It is interesting to observe the course of the investigation. The police knew nothing of the offence till 9 p.m. on January 20, 1963, when the appellant himself went to the police station, Saroichhola, and lodged a first information report stating therein that on peeping into the well near the peepul tree of Hadpai on the morning of January 20, 1962, he found his son lying dead in the well. Earlier, he had narrated the events leading to his observing the corpse and that narration of facts accused Ramle, Bhanta and one cyclist of the offence of murdering the boy Gulab. It was this information which took the police to the well and to the recovery of the corpse. The police arrested the persons indicated to be the cul prits, viz., Ramle, Bhanta and the cyclist, who was found to be Shyama, by January 26. These persons remained in the lock up for 8 to 11 days. In the meantime, on January 26, the investigation was taken over, under the orders of the Superintendent of Police, by the Circle Inspector, Nazat Mohd. Khan from Rajender Singh, who was the Station Officer of Police Station, Saraichhola. The Circle Inspector arrested Faddi on January 27. He other arrested persons were got released in due course. Faddi took the Circle 3I5 Inspector to the house and, after taking out a pair of shorts of Gulab, delivered them to the Circle Inspector. Ramle, Bhanta alias Dhanta and Shyamlal have been examined as prosecution witnesses Nos. 15, 4 and 5 respectively. The conviction of the appellant is based on circumstantial evidence, 'there being no direct evidence about his actually murdering Gulab by throwing him into the well or by murdering him first and then throwing the dead body into the well. The circumstances which were accepted by the trial Court were these: 1. Faddi went to the house of Ramle at about noon on 19th January, 1962 and asked Ramle to send the boy with him. Gulab was at the time in the fields. After meals, Faddi left suddenly when Shyama arrived and gave a message to Ramle from Gulab 's mother that the boy be not sent with any one. Faddi caught hold of Gulab from the fields forcibly and took him away. It may be mentioned here that one Banwari who has been acquitted is also said to have been with Faddi at this time. Gulab had not been seen alive subsequent to Faddi 's taking him away on the afternoon of January, 19. His corpse was recovered on the forenoon of January, 21. Faddi had not been able to give any satisfactory explanation as to how he and Gulab parted company. Faddi knew the place where Gulab 's corpse lay. It was his information to the Police which led them to recover the corpse. His statement that he had noted the corpse floating on the morning of January 20 was untrue, as according to the opinion of Dr. Nigam, the corpse could come up and float in the water approximately after two days. The witnesses of the recovery deposed that they could not see the corpse floating and that it had to be recovered by the use of angles. 316 4. The accused 's confession to Jaibai and two other witnesses for the prosecution viz., Jimipal and Sampatti about his killing Gulab. The pair of shorts recovered was the one which Gulab was wearing at the time he was taken away by Faddi. The High Court did not rely on the confession and on the recovery of the pair of shorts from the appellant 's posses sion, and we think, rightly. The evidence about the confes sion is discrepant and unconvincing. Bhagwan0 Singh and Ramle deposed that the deceased was wearing the pair of shorts recovered, at the time the appellant took him away. Bhagwan Singh did not go to the test identification. The accused was not questioned about the deceased wearing these pair of shorts at the time he was taken away from the village. The High Court considered the other circumstances sufficient to establish that the appellant had committed the murder of Gulab. It therefore confirmed the conviction and sentence. Learned counsel for the appellant has taken us through the entire evidence and commented on it. He has contended that the evidence is unreliable and should not have been accepted by the Courts below. We have considered hi,,, criticism and are of opinion that the Courts below have correctly appreciated the evidence. It is not necessary for us to discuss it over again. It may be mentioned now that the. appellant denies having gone to Ramle 's house in village Torkheda and to have taken away Gulab from that village forcibly on the afternoon of January 19, but admits his lodging the report, and the recovery of the dead body from the well with the help of the angle. He however states that he had lodged the report on the tutoring of one Lalla Ram of Utampur. Ile hag neither stated why he was so tutored nor led any evidence in support of his allegation. In his report the appellant admitted the prosecution allegations up to the stage of 317 his forcibly taking away Gulab from village Torkheda. He then stated that Ramle, Bhatta and the third person, viz., Shyamlal threatened him with life, took out the pyjama and half pant from the body of Gulab and taking the boy with them remained sitting on the well near the peepul tree of Hadpai. The appellant kept himself concealed from their view, nearby. He heard the sound of something being thrown into the well. Those three persons then ran away, but he himself remained sitting there throughout the night and then, on peeping into the well next morning, observed the corpse of his son in the well,, He then went to Morena, consulted one Jabar Singh Vakil, and one Chhotey Singh and was advised to lodge the report. He definitely accused Ramle, Bhatta and the cycle rider with killing his son Gulab by throwing him into the well. This report is not a confessional statement of the appel lant. He states nothing which would go to show that he was the murderer of the boy. It is the usual first information report an aggrieved person or someone on his behalf lodges against the alleged murderers. The learned Sessions Judge and the High Court considered the appellant 's statements in this report which went to explain his separation from Gulab on account of the conduct of Ramle and others and came to the conclusion that those statements were false. This was in a way justified as the burden lay on the appellant to account for the disappearance of Gulab when the prosecution evidence showed that the appellant had taken Gulab with him. Besides, what the appellant had stated in the report, he had given no explanation for the disappearance. Of course, he had denied that he took Gulab with him. The evidence about that aspect of the case consists of the statement of Ramle, Shyamlal and Bhagwan Singh which have been accepted by the Courts below. The High Court also took into consideration the fact that the appellant knew where the deceased 's body was as it was on what he had stated in the report that the police went to the well of village Jarah and recovered the dead body. The accused gave no explanation in Court as to how he came to know about it. What he had stated in the report had been considered and found to be untrue and 318 specially in view of the appellant 's own conduct. It has been rightly stressed that if Gulab had been forcibly taken away from him by Ramle and others, the appellant ordinarily would have gone and taken some action about it, without wasting his time in just following those people. Even if he felt interested in following them and had heard the sound of something being thrown inside the well and had also seen those persons running away, he had no reason to remain hidden at that spot the whole night. He should have informed people of what he had observed as he must have suspected that these persons had played mischief with Gulab. The High Court also took into consideration the in correctness of the appellant 's statement that he observed the dead body floating in the well on the morning of January 20. It is contended for the appellant that the first information report was inadmissible in evidence and should not have been therefore taken on the record. In support, reliance is placed on the case reported as Nisar Ali vs State of U.P. (1). We have considered this contention and do not see any force in it. The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder of Gulab was committed, or whether the appellant 's statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not. Admissions are admissible in evidence under section 21 of the Act. Section 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act. Section 21 provides that admissions are relevant and may be proved as against a person who makes them. Illustrations (1)[1957] S.C.R. 657. 319 (c), (d) and (e) to section 21 are of the circumstances in which an accused could prove his own admissions which go in his favour in view of the exceptions mentioned in section 21 to the provision that admissions could not be proved by the person who makes them. It is therefore clear that admissions of an accused can be proved against him. The Privy Council in very similar circumstances, held long ago in Dal Singh vs King Emperor(1) such first information reports to be admissible in evidence. It was said in that case at p. 142: "It is important to compare the story told by Dal Singh when making his statement at the trial with what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated. The report is clearly admissible. It was in no sense a confession. As appears from its terms, it was rather in the nature of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbulpore. As such the statement is proper evidence against him. . It will be observed that this statement is at several points at complete variance with what Dal Singh afterwards stated in Court. The Sessions Judge regarded the document as discrediting his defence. He had to decide between the story for the prosecution and that told for Dal Singh. " Learned counsel for the appellant submits that the facts of that case were distinguishable in some respects from the facts of this case. Such a distinction, if any, has no bearing on the question of the admissibility of the report. The report was held admissible because it was not a confession and it was helpful in determining the matter before the Court. (1) L. R. 44 1. A. 137. 320 In Nisar Ali 's case(1) Kapur J. who spoke for the Court said, after narrating the facts: "An objection has been taken to the admissibility of this report as it was made by a person who was a co accused. A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under section 157, Evidence Act, or to contradict it under section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses. In this case, therefore, it is not evidence. " It is on these observations that it has been contended for the appellant that his report was inadmissible in evidence. Ostensibly, the expression 'it cannot be used as evidence the maker at the trial if he himself becomes accused supports the appellant 's contention. But it appears to us that in the context in which the observation is made and in the circumstances, which we have verified from the record of that case, that the Sessions Judge had definitely held the first information report lodged by the co accused who was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its. judgment, this observation really refers to a first information report which is in the nature of a confession by the maker thereof. of course, a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co accused. Further, the last sentence of the above quoted observation is significant and indicates what the Court meant was that the first in formation report lodged by Qudratullah, the co accused, was not evidence against Nisar Ali. This Court did not meanas it had not to determine in that case that a first informa tion report which is not a confession cannot be used as an admission under section 21 of the Evidence Act or as a relevant statement under any other provision of that Act. We find also that this observation has been understood in this way by the Rajasthan High Court in State vs Balchand(2) and (1) [1957]S.C.R.657. (2) A.I.R. 1960 Raj 101 321 in State of Rajasthan vs Shiv Singh(1) and by the Allahabad High Court in Allahdia vs State(2). We therefore hold that the objection to the admissibility of the first information report lodged by the appellant is not sound and that the Courts below have rightly admitted it in evidence and have made proper use of it. The circumstances held established by the High Court are sufficient, in our opinion, to reach the conclusion that Gulab was murdered by the appellant who was the last person in whose company the deceased was seen alive and who knew where the dead body lay and who gave untrue explanation about his knowing it in the report lodged by him and gave no explanation in Court as to how he separated from the deceased. We therefore dismiss the appeal. Appeal dismissed.

IN-Abs

On the first information report lodged by the appellant, the corpse of his step son was recovered. The police arrested three other persons indicated to be the culprits, but as a result of the investigation, the appellant (1) A.I.R. 1961 Orissa, 131. 313 was sent up for trial for the murder and sentenced to death. The High Court confirmed the conviction and sentence. On appeal by special leave it was contended that the first information report was inadmissible in evidence and should not have been, therefore, taken on the record. Held:There was no force in the contention. The report was neither confession of the accused nor a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure do not bar its admissibility. The report was an admission by the accused of certain facts which had a bearing on the question to be determined by the Court viz., how and by whom the murder was committed or whether the accused 's statement in court denying the correctness of certain statements of the prosecution witnesses was correct or not. Admissions ire admissible in evidence under section 21 of the Evidence admission of an accused can be proved against him. Dal singh vs King Emperor, L. R. 44 I.A. 137, applied. Nisar Ali vs State of U.P. , considered and distinguished. State vs Balachand A.I.R. 1960 Raj. 101, State of Rajasthan V. shiv Singh A.I.R. 1962 Raj. 3 and Allohdia vs State, 1959 All. L.J. 340, referred to.

s Nos. 79 and 80 of 1963 and 140 of 1962. Petitions under article 32 of the Constitution of India for the enforcement of Fundamental Rights. section N. Andley, Rameshawar Nath and P. L. Vohra, for the petitioner (in Petition Nos. 79 and 80 of 1963). Sarjoo Prasad, Ajoy Kumar Gajdhar Mahapatra and A. D. Mathur for the petitioner (in Petition No. 140/1962). section V. Gupte Additional Solicitor General, section B. Misra, R.Ganapathi lyer and R. N. Sachthey, for the respondents (in all the petitions). M. C. Setalvad, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the interveners (in Petition No. 140/ 1962). January 23, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR J. The petitioners in these three petitions have moved this Court under article 32 of the Constitution and claimed a declaration that the operative provisions of the Orissa Private Lands of Rulers (Assessment of Rent) Act,, 1958 (hereinafter called `the Act ') and the Rules framed thereunder are unconstitutional and ultra vires. The private lands in the possession and enjoyment of the three respective petitioners have been assessed by the Revenue Officers in conformity with the Rules framed under the Act. The petitioners claim a writ or direction, or order 304 in the nature of certiorari quashing the said orders of assessment. The petitioner in Writ Petition No. 140/1962 is the Patrani Saheba of Keonjhar and is in possession and enjoyment of eight villages, viz., Mangalpur; Barigan; Nua Rampas; Nilung; Ghutru; Mohadijore; Patang and Anara in the district of Keonjhar. These villages were granted to her for maintenance a long time ago and as such, they have been recorded in the village papers as Khoraki Posaki (Maintenance Grant) Lands since the last settlement of 1918. She has held these lands without paying assessment; and her case is that the relevant provisions of the Act which authorise the levy of assessment in respect of her lands are unconstitutional and invalid. In her petition, she has referred to the fact that from time to time, the Government of the day had refrained from levying any assessment in respect of her lands and thereby recognised her right to hold the said villages on assessment free basis. The Revenue Officer of Keonjhar levied an assessment in respect of the said villages purporting to act under the Rules framed under the provisions of the Act. The petitioner then preferred appeals to the Board of Revenue against the said assessment orders but these appeals were dismissed. The assessment levied against the petitioner in respect of these lands is of the order of Rs. 9,000 and odd and it has to be paid by her from 1958 retrospectively. The petitioner in W.P. No. 79/1963 is Smt. Rani Ratna Prova Devi who is the wife of Raja Sankar Pratap Singh Deo Mahindra Bahadur, ex Ruler of Dhenkanal State in Orissa. At the time when the State of Dhenkanal. merged with India, the petitioner was in possession and enjoyment of lands in five villages as a Proprietor. In respect of these lands, assessment had never been levied; but purporting to give effect to the relevant provisions of the Act, the Revenue Officer Dhenkanal assessed rent in respect of all the lands which are in possession and enjoyment of the petitioner. The appeals preferred by the petitioner against the said order of assessment failed; and so, the petitioner filed the present writ petition challenging the validity of the Act as well as the validity of the assessment order. 305 The petitioner in W.P. No. 80 of 1963 is the ex Ruler of Dhenkanal. On the date of merger he held and was in possession of 89 acres 18 dec. and 5 kadis of land in Niz garh Town as his private lands. These lands were never subjected to the payment of rent and yet the Revenue Offi cers assessed rents in respect of these lands under the provisions of the Act. The petitioner failed in persuading the Appellate Authority to set aside the order of assess ment, and so, has filed the present writ petition challenging the validity of the Act and the order of assessment. Thus, the facts on which the three petitions claim relief are substantially similar and they have raised common points of law for our decision. That is why the three petitions have been heard together and would be disposed of by a common judgment. The Act which is challenged in the present proceedings was passed by the Orissa Legislature because "it was thought expedient to provide for assessment of rent with respect to the private lands of Rulers in the State of Orissa". It received the assent of the Governor on the 21st May. 1958 and was published in the State Gazette on the 6th June, 1958. It consists of 15 sections and the main object of the Act is to authorise the levy of rent in respect of the private lands of persons included in the definition of the word "Ruler" prescribed by section 2(h) of the Act. Section 2(e) defines 'Private land ' as meaning any land held on the date of merger by a Ruler free from payment of rent, while section 2 (h) defines a "Ruler" as meaning the Ruler of a merged territory in the State of Orissa and includes his relatives and defendants. Thus, the definition of the word "Ruler" is an inclusive definition and takes within its sweep the re latives of the Ruler and his dependents, with the result that private lands held by such relatives or dependents by virtue of the grants made by the ruling Prince or otherwise come within the mischief of the operative provisions of the Act. Section 2(i) provides that all other expressions used and not defined in the Act shall have the same meaning as are respectively assigned to them under the tenancy laws in force in the concerned areas. Section 3 contains the main operative provision and it lays down that notwith 134 159 S.C. 20 306 standing anything contained in any other law, custom, con tract or agreement to the contrary, the private lands field by a Ruler shall, with effect from the date of commencement of this Act, be liable to assessment and levy of rent as provided in the Act. Thus, the effect of this provision is that private lands held by Rulers which till then were not liable to pay rent or assessment, were made liable to pay the same. In other words the exemption from the payment of assessment or rent which the private lands of Rulers enjoyed till then ceased to be operative, and the said lands were treated like other lands in the State liable to pay assessment and rent. Section 4 provides for the appointment of Revenue Officers, and sections 5 and 6 deal with the classification of lands and prescribe the maximum rates of rent, and the procedure in determining the rent respectively. Under section 5, the lands have to be classified as irrigated wet land, rainfed wet land, and dry land; this section provides that subject to the provisions of section 6, the rates at which the fair and equitable rent shall be assessed with respect to the said three categories of land shall not exceed the amount as may be prescribed from time to time by the State Government. The proviso to section 5 deals with the special category of cases where the tenants of the Ruler have already acquired rights of occupancy, and lays down that the rent payable by the Ruler in respect of such lands shall be such proportion of the rent received by him from the tenants as may be prescribed. Under section 6, the considerations which have to be borne in mind in determining the rates of fair and equitable rent are specified by clauses (a) to (e), viz., the nature of the soil and general productivity of such land; the class under which the land is assessable; market value of the land; the prevailing rates of rent obtaining for similar lands in the neighbourhood; and such other matters relating thereto as may be prescribed. It is thus clear that whereas section 5 requires the classification of the Ruler 's private lands to be made and provides for the prescription of the maximum of the rent which may be levied in respect of them, section 6 indicates the factors which have to be borne in mind in determining the rates of fair and equitable rent. Clause (e) 307 shows that in addition to the factors mentioned in clauses (a) to (d), other matters may also be specified by the Rules. The rest of the sections deal with matters relating to the levy and recovery of assessment with which we are not concerned in the present petitions. The first contention which has been raised before us by the petitioners is that the provisions contained in sections 5 and 6 are invalid inasmuch as they contravene article 14 of the Constitution. It is convenient to refer to some facts set out in W.P. No. 79/1963 in support of this argument. We have already noticed that under section 6 certain considerations which the Act considers to be relevant have been prescribed, and so, the Revenue Officer has to bear those considerations in mind in determining the fair and equitable rent in respect of a given land. W.P. No. 79/1963 points out that as a result of the consideration of the relevant factors mentioned in section 6, the rates fixed by the preliminary pattas in respect of the petitioner 's lands are in every case higher than the rates of rent which are in operation in res pect of the Revisional Settlement Khatian. Basing them selves on the fact that in the calculation of the rent made by the Revenue Officers in respect of the private lands of Rulers they have arrived at a figure of rent which is gene rally higher than the rent which would be determined in case the rates current under the Settlement prevailing in respect of the other lands were applied, the petitioners contend that in their operation the relevant provisions of the Act have introduced an illegal discrimination as between their lands and the other lands liable to assessment of rent in the State of Orissa. It is also urged in support of this argument that it would not be a valid consideration for levying higher assessment in respect of the private lands of Ruler that they were not required to pay assessment until the Act was passed. The legislature may in its authority make the private lands of Rulers liable to assessment of rent, but when these lands are brought within the class of assessable lands, they should be treated in the same way as the other assessable lands are treated in Orissa. That, briefly stated, is the contention on which the validity of the Act is challenged under article 14. Prima facie, there is 308 some force in this contention. But, on the whole we are not satisfied that the plea thus raised by the petitioners can be said to displace and rebut the initial presumption of constitutionality in favour of the impugned statute. In dealing with the question raised before us, it is neces sary to bear in mind the fact that in regard to other assessable lands, a survey settlement which had already been made was in operation and was expected to continue in opera tion for a certain specified period; usually, when a settle ment has been made and assessment levied in pursuance of it, it cannot be revised merely by an executive order during the stipulated period, though, of course, the legislature can, if it so desires, make a law prescribing for a fresh assess ment even during the said specified period. But, in the present case, the legislature appears to have taken the view that it was not necessary or expedient to introduce a fresh settlement in regard to all the other assessable lands, and so, it has passed the present statute only in regard to the private lands of Rulers. That is one relevant and historical fact which cannot be ignored. Proceeding to deal with the private lands of Rulers on this basis, the legislature had to prescribe the method of determining the rent payable by the said lands; and the re levant factors specified by section 6 appear to be just and substantially similar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands. There has been some argument at the Bar before us as to whether the market value of the land which has been prescribed as a relevant consideration by section 6 was also treated as relevant on the occasion of the earlier settlement. No material has, however, been placed before us in that behalf, and so, it is not possible to decide whether this consideration was taken into account on the earlier occasion or not, and if it was not, what the effect of the said circumstance would be on the validity of the impugned statute. Having regard to the relevant factors prescribed by section 6, it would, however, not be unreasonable to take the view that fair and equitable tests have been laid down for determin 309 ing the rent which should be assessed in respect of the pri vate lands of the Rulers, and in the absence of any proof that there has been a material departure in that behalf, we find it difficult to uphold the plea that section 6 can be attacked on the ground that it has contravened article 14 of the Constitution. The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad hoc basis. The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, strictly speaking, these lands cannot be treated as comparable in every respect with the lands which were governed by the rates prescribed under the previous settlement and that may help to meet the argument that the impugned Act contravenes article 14. If the two categories of lands do not constitute similar lands in all particulars, no valid complaint can. be made on the ground that there has been discrimination as between them. That is another aspect which may be relevant. There is yet another factor which may be mentioned in this connection. It appears that in 1959, the Orissa Legislature has passed an Act, No. 3 of 1959 with a view to consolidate and amend the laws relating to survey, record of rights and settlement operations in the State of Orissa, and so, it appears that after the settlement operations are duly conducted and completed under the relevant provisions of this latter Act, assessment in regard to all the assessable lands, including the private lands with which we are con cerned in the present proceedings would be made on the basis prescribed by it. The operation of sections 3, 5 and 6 of the impugned Act is, therefore, limited to the period between June, 1958 when the Act came into force and the date when the assessment determined under the provisions of the subsequent Act actually come into operation in respect of all the lands. That is another factor which has to be considered in dealing with the question about the validity of the impugned Act. The allegations made by the petitioners, in challenging the validity of the Act are somewhat vague and the mate 31O rials placed by them in support of their challenge are in sufficient, inadequate and unsatisfactory. The reply made by the State is also not very helpful or satisfactory. It is precisely where a challenge to the validity of a statute is made by a party under Article 14 and he fails to adduce satisfactory evidence in support of his challenge that the task of the Court to decide the issue becomes very difficult. In considering the validity of a statute under article 14, we cannot ignore the well established principle that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it, and so, on the failure of the party to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the Court in matters relating to article 14 is unsatisfactory, the Court may have to allow the State to lean on the doctrine of initial presumption of constitutionality and that is precisely what has happened in these cases. On the whole therefore we must hold that the petitioners have failed to show that the impugned Act contravenes article 14 of the Constitution. it is then argued that the Act is invalid because the definition of the expression "Ruler" is inconsistent with the definition of the said word prescribed by article 366(22) of the Constitution. article 366(22) defines a "Ruler" in relation to an Indian State as meaning the Prince, Chief, or other person by whom any such covenant or agreement as is referred to in clause (1) of article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler. There is no doubt that the definition of the word " Ruler" prescribed by section 2(h) of the Act is wider than that prescribed by article 366(22). The dependents of the Ruler and his relatives are not included in the latter defini 311 tion, though they are expressly included in the former. But it must be remembered that the definitions prescribed by article 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires, and so, the argument that the definition of the word "Ruler" prescribed by the Act is inconsistent with the definition prescribed by article 366(22), has really no substance or meaning. Besides, it is fallacious to assume that the Act has made any provision in respect of Rulers as such; what the Act has purported to do is to authorise the levy of assessment and rent in respect of lands situated in Orissa; these lands are the private lands of the Rulers as defined by section 2 (h), and so, there is no doubt that the whole object of defining the word "Ruler" is to specify and describe the lands in respect of which the operative provisions of the Act would come into play. The subject matter of the levy consists of the private lands and the compendious way adopted by the legislature in describing the said lands is that they are the private lands of the Rulers. It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner. If the legislature had said that the private lands of the Rulers as well as the private lands of the dependents and relatives of Rulers were liable to the levy permitted under section 3, the petitioners would not have been able to raise any objection because, then, it would have been unnecessary to define the word "Ruler" in a comprehensive. Once it is conceded, as it must be, that the Orissa Legislature was competent to pass the Act under Entry 18 of List II of the Seventh Schedule, it is idle to suggest that the method adopted by the Act in describing the lands which are made liable to pay assessment, introduces any infirmity in the Art itself. Therefore, we are satisfied that the contention that the definition of the word "Ruler" is inconsistent with article 366(22) and that makes the whole Act void, is without any substance. The third argument which was faintly urged before us is that the Act contravenes the provisions of article 31 of the Constitution. This argument is wholly misconceived. article 31(1) deals with the deprivation of property save by autho rity of law, and cannot obviously be invoked against any 312 of the provisions of the Act; and article 31(2) deals with compulsory acquisition or requisition which also is entirely inapplicable to the present Act. What the Act has purported to do is to authorise the levy of assessment in respect of lands which till then had been exempted from the said levy, and as article 31(5)(b)(i) provides nothing contained in clause (2) shall affect the provisions of any law which the State may make for the purpose of imposing or levying any tax or penalty. If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as such, it is entirely outside the purview of article 31. It appears that in Pratap Kessari Deo vs The State of Orissa & Ors.(1) the validity of the Act was challenged before the Orissa High Court and the said High Court has repelled the challenge and upheld the validity of the Act. In our opinion, the view taken by the Orissa High Court is right. The result is. the petitions fail and are dismissed with costs. One set of hearing fees. Petition dismissed.

IN-Abs

The petitioners in these three writ petitions challenged the operative provisions of the Orissa Private Lands of Rulers (Assessment of Rent) Act, 1958 and the, Rules framed thereunder. These petitioners possess 302 private lands in the State of Orissa, which before the impugned Act were not subjected to the payment of rent, but which were assessed by the Revenue Officers in conformity with the Rules framed under the Act. The petitioners claims a writ in the nature of certiorari quashing the said orders of assessment. The Act was passed by the Orissa Legislature because it was thought expedient to provide for assessment of rent with respert to the private lands of Rulers in the State of Orissa. The main object of the Act is to authorise the levy of rent in respect of the private lands of persons included in the definition of the word "Ruler" prescribed by section 2(h) of the Act. Section 2(h) defines a "Ruler" as meaning the Ruler of a merged territory in the State of Orissa and includes his relatives and dependants. The petitioners attacked the pro visions of the Act mainly on the ground that they contravened article 14 of the Constitution. Held:(i) that section 6 of the Act does not contravene article 14 of the Constitution for the reason that fair and equitable tests have been laid down under section 6 of the Act for determining the rent which should be assessed in respect of the private lands of the Rulers. In the present case the legislature had prescribed the method of determining the rent payable on the private lands; and the relevant factors specified by section 6 appear to be just and substantially similar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands. The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad hoc basis. The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, these lands could not be treated as comparable in every respect with the lands which were governed by the rates prescribed under the previous settlement. (ii)In considering the validity of a statute under article 14 the wellestablished principle is that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it. If the party fails to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the court in matters relating to article 14 is unsatisfactory, the court may have to allow the State to lean on the initial presumption of constitutionality. (iii)There is no substance in the contention that the impugned Act is void because the definition of the word "Ruler" is inconsistent with Art, 366(22) of the Constitution. There is no doubt that the definition of the word "Ruler" prescribed by section 2(h) of the Act is wider than that prescribed by article 366(22) of the Constitution. 303 The definitions prescribed by article 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires. The whole object of defining the word "Ruler" in the Act is to specify and describe the lands in respect of which the operative provisions of the Act would come into play. It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner. (iv) The impugned Act is entirely outside the purview of article 31 of the Constitution as it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property. It is a simple measure authorising the levy of a tax in respect of agricultural lands. Pratap Kesari Deo vs The State of Orissa, A.I.R. 1961 Orissa 131, relied on.

Criminal Appeals Nos. 48 and 80 of 1960. Appeals by special leave from the judgment and orders dated December 11, 1959 and March 2, 1960 of the Bombay High Court Rajkot (Now Gujarat High Court) In criminal Revision Application No. 100 of 1959. 855 N.N. Keswani, for the appellants (in both the appeals). D.R. Prom and R.N. Sachthey, for the respondent (in both the appeals). The Judgment of the Court was delivered by Wanchoo, J. The two appeals by special leave arise out of the same criminal trial before a magistrate at Porbunder and will be dealt with together. The three appellants along with one more person, namely, Keshavlal Nagjibhai were prosecuted under section 167 (81) of the , No. 8 of 1878, (hereinafter referred to as the Act). The prosecution case briefly was that Vallabhdas Liladhar, who is now dead, came in contact with an Arab from whom he purchased smuggled gold weighing a little more than 84 tolas on December 1, 1956. Before this, Vallabhdas Liladhar had borrowed Rs. 3,600/ from the other two appellants and Keshavlal about November 28, 1956, in order to make the purchase. After making the purchase, Vallabhdas Liladhar came to Porbunder to the house of the other two appellants and Keshavlal and informed them of the purchase and wanted their help in the disposal of the gold. The other two appellants namely, Narandas Nagjibhai and Vallabhdas Nagjibhai are brothers. Keshavlal was also the brother of these two appellants. The prosecution case further was that Narandas Nagjibhai asked Vallabhdas Nagjibhai to take the gold to Bantwa and sell it at the rate of Rs. 103/ or so per tola. Vallabhdas Nagjibhai was also instructed that in case he could not sell the gold at that rate he should contact Vallabhdas Liladhar and Narandas Nagjibhai at Bantwa bus stand from where they were to go to Junagadh to dispose of the gold if no suitable buyer could be found in Bantwa. Consequently Vallabhdas Nagjibhai proceeded to Bantwa by bus on December 2, 1956 in the afternoon. In the meantime information was received by Mehta who was Inspector of Customs about the smuggling of this gold. He consequently followed the bus in which Vallabhdas Nagjibhai was travelling and intercepted him at Kutiyana bus stand at about 3 p.m. The Deputy Superintendent of Customs was also with Inspector Mehta and Vallabhdas Nagjibhai was taken down from the bus at Kutiyana. On search in the presence of witnesses, five bars of gold weighing about 84 tolas were recovered from his possession. All these five bars bore marks of foreign origin and were taken in possession by the customs authorities after preparing a recovery list. Further investigation was made in the matter and eventually on October 7, 1957, the Collector of Central Excise Baroda confiscated the gold bars under section 167 (8) of the Act read with section 23 of the Foreign Exchange Regulation Act, 1947 and also imposed a penalty of Rs. 1,000/ each on the three appellants and a penalty of Rs. 500/ on Keshavlal. Thereafter a complaint was filed by the Assistant Collector of Customs under section 167(81) of the Act before the magistrate at Porbunder on June 27. 856 The case of Vallabhdas Liladhar was that he had not purchased the gold from any Arab but had brought it with him from Karachi in the year 1946. Vallabhdas Nagjibhai admitted the recovery of gold from him but said that it belonged to Vallabhdas Liladhar and he was carrying it at the request of the latter and that he did not know that it was smuggled gold. Narandas Nagjibhai also, admitted that Vallabhdas Liladhar had come to their house with the gold but added that it was not smuggled gold and that Vallabhdas Liladhar had told him that it belonged to him and was for sale. Keshavlal, the fourth person, who has been acquitted, said that he did not know anything about the matter and had no connection with it. It may be added that the three appellants had made statements before the customs authorities and those statements were also put in evidence in support of the prosecution case. In those statements, they practically admitted the prosecution case that the gold was smuggled gold and they were trying to dispose it of. The magistrate convicted all the four persons under section 167 (81) of the Act and sentenced them to rigorous imprisonment for six months and a fine of Rs. 500/ He relied on the statements made by the appellants and Keshavlal before the customs authorities and also on the evidence produced before him, which was mainly about the recovery of gold. All the four convicted persons appealed to the Sessions Judge. The appeal was heard by the Additional Sessions Judge, Porbunder who acquitted Keshavlal. The appeal of the other three (namely, the three appellants now before us) was dismissed and their convictions and sentences Were upheld. The three appellants then went in revision to the High Court. The High Court rejected the revisions of Vallabhdas Liladhar and Vallabhdas Nagjibhai summarily. The revision application of Narandas Nagjibhai was admitted but was eventually dismissed. The three appellants then applied for leave to appeal to this Court which was refused. They then prayed for special leave from this Court, which was granted, and that is how the matter has come up before us. Vallabhdas Liladhar, one of the appellants in Cr. A 48 of 1960, is dead. So far therefore as he is concerned, his appeal abates. It only remains to consider the appeal of Vallabhdas Nagjibhai (Cr.A.48) and Narandas Nagjibhai (Cr.A.80). Before however we consider the points raised before us on behalf of the appellants we may refer to the circumstances which have been found established by all the courts and on the basis of which the conviction of the appellants has been upheld. These circumstances are (1) Though the price of gold at the relevant time was over Rs. 105/ per tola, the appellant were intending to sell these gold bars at a lower price of about Rs. 103/ per tola. 857 (2) The two appellants were working as goldsmiths at Porbunder and there was no reason why the gold had to be sent elsewhere for disposal. As Porbunder is a fairly large town, there was no reason why the gold could not be sold in the market at Porbunder. (3) The two appellants displayed undue haste in the disposal of gold. (4) The surreptitious manner in which the gold bars were kept by Vallabhdas Nagjibhai as shown at the time of recovery shows that the appellants knew that they were dealing with smuggled gold. (5) The amount of Rs. 3,600/ was advanced to Vallabhdas Liladhar but the entries in the account book of the appellants were made in the name of the brother of Vallabhdas Liladhar who is the brother in law of the two appellants. (6) The markings on the gold made it quite clear that it was of foreign origin and the two appellants could not be unaware of this, particularly as they work as goldsmiths. In addition to the above circumstances, all the courts relied on the statements made by the two appellants before the customs authorities and the presumption under section 178 A of the Act was raised and on that basis convicted the appellants, though the High Court held that even without the presumption under section 178 A the evidence was sufficient to convict the appellants. Learned counsel for the appellants has very properly not challenged the concurrent findings of fact by all the courts. He has raised four points for our consideration, which are these (1) The statements made to the customs authorities were inadmissible in evidence as they were not properly proved. (2) The statement made before the Collector of Customs were inadmissible in evidence under sections 24 and 25 of the Indian Evidence Act. (3) As the gold had already been confiscated and penalty had been imposed under section 167(8) of the Act, there could be no further trial in a criminal court in view of section 186 of the Act. (4) The ingredients of section 167(81) are not satisfied in this case. 858 Re. So far as the first point is concerned, the only argument is that the lawyer who signed the statements made before the customs authorities was not produced to prove them, and therefore the statements cannot be held to have been properly proved. It is however clear that the statements were not only signed by the lawyer of the appellants but also by the appellants. In their statements in court, the appellants admitted that they had signed the statements, though they said. that they did not know what the statements contained and they signed it on being asked by their lawyer. This part of the statements of the appellants has not been believed by the courts below and in our opinion rightly. As the statements bore the signature of the appellants which are admitted, they must be held to be proved by this admission and it was not further necessary to examine the lawyer who signed the statements along with the appellants. The contention on this head must there fore fail. As to the second point, we are of opinion that section 25 of the Indian Evidence Act has no application on the facts of the present case which are on all fours with the facts in The State of Punjab vs Barkat Ram(1). In similar circumstances it was held by this Court in that case that customs officers are not police officers and statements made to them were not inadmissible under section 25. Section 24 would however apply, for customs authorities must be taken to be persons in authority and statements would be inadmissible in a criminal trial if it is proved that they were caused by inducement, threat or promise. But the finding of all the courts is that the statements were not made on account of any inducement threat or promise as required by section 24 of the Indian Evidence Act. In the face of this finding, therefore, it cannot be said that the statements are inadmissible under section 24 of the Indian Evidence Act. Next the appellants rely on section 186 of the Act. which reads as follows: "The award of any confiscation, penalty or increased rate of duty under this Act by an officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. " It is urged that when section 186 lays down that the award of any confiscation, penalty or increased rate of duty under the shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law, it necessarily forbids by implication infliction of any punishment to which (1) ; 859 the person affected thereby is liable under the itself. In this connection our attention is drawn to certain observations in Leo Roy Frey vs The Superintendent District Jail(1). It is true that in that case this Court referred to section 186 of the Act; but that case was not directly concerned with the question whether a prosecution under section 167(81) of the Act is permissible after the award of confiscation, penalty or increased rate of duty under section 167(8) of the Act in view of section 186. Clause (81) in section 167 was introduced by the Amending Act No. 21 of 1955. Before that there were 80 clauses in the section, and the scheme of those clauses was that a person could either be dealt with by the award of confiscation, penalty or increased rate of duty, or by a prosecution before a magistrate. It was in those circumstances that section 186 provided that the award of confiscation, penalty or increased rate of duty would not bar infliction of any other punishment under any other law. The intention of the legislature by this provision in section 186 was clearly to allow a prosecution under any other law even though there might be award of confiscation, penalty or increased rate of duty under the Act. Section 186 was thus meant for permitting prosecutions in addition to action under the Act in the shape of confiscation, penalty or increased rate of duty; it was never intended to act as a bar to any prosecution that might be permissible after the award of confiscation, penalty or increased rate of duty. It was merely an enabling section and not a barring section and seems to have been put in the Act ex abundanti cautela. When however, cl. (81) was introduced in section 167, it became possible in some cases where goods had been confiscated; and penalty inflicted under the Act by the customs authorities to prosecute persons also under cl. (81) of the Act. That however would not change the nature of the provision contained in section 186 which was an enabling provision and not a barring provision. If the intention was to bar prosecutions in consequence of the award confiscation, penalty or increased rate of duty, the words of section 186 would have been very different. We cannot therefore read in section 186 a bar by implication to a prosecution under the Act simply because section 186 enables prosecution under any other law. In this view of the matter, section 186 is no bar to the prosecution for an offence under the Act in connection with a matter in which the award of confiscation, penalty or increased rate of duty has been made. Next it is contended that the ingredients of cl. (81) of section 167 are not satisfied inasmuch as it is not proved that the intention of the appellants was to defraud the government of any duty payable on the gold which was the subject matter of the charge in this case or to evade any prohibition or restriction for the time (1) ; , 827. 860 being in force. It is true that before cl. (81) can apply it has to be proved inter alia that the person charged thereunder with possession of any dutiable or prohibited or restricted goods or concerned in carrying, removing, depositing, keeping or concealing such goods, has the intention of defrauding the government of any duty payable thereon or of evading any prohibition or restriction thereon for the time being in force. So it is said that the prosecution has failed to prove by positive evidence that the intention was to defraud the government of the duty payable on the gold in this case or to evade the prohibition or restriction on the import thereon for the time being in force. We have not been able to understand this argument at all. Once it is proved that the gold is smuggled gold, it follows that it was brought into the country without payment of duty or in violation of the prohibition or restriction in force. and whosoever brought it and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the section must be held to have the intention of evading the payment of duty or violating the prohibition or restriction. There is no force in this contention also. Lastly it is urged that the substantive sentence of imprisonment in the case of the two appellants before us may be reduced to the period already undergone, particularly, as the appellants, have been on bail since March 1960 and it would not be in the interest of justice to send them back to jail for a short period after four years when about half the sentence has already been served out. We however see no reason to interfere with the sentence in cases of this nature. The appeals therefore fail and are hereby dismissed. Appeal dismissed.

IN-Abs

Smuggled gold recovered from the appellants was confiscated and a penalty imposed on them. Thereafter the appellants were tried and convicted under section 167(81) of the Sea ' Customs Act. In their statements made to the customs authorities, the appellants had practically admitted the prosecution case and these statements were put in evidence. An appeal to the Sessions Judge and a revision to the High Court were dismissed. In appeal to this Court: HELD: (i).Since the statements made to the customs authorities bore the signature of the appellants which were admitted, they must be taken to be proved by such admission and no further evidence was necessary. [858C] (ii) Customs officers are not in the circumstances arising in this case police officers and statements mad.e to them were not inadmissible under section 25 of the Evidence Act. Section 24 would apply, as customs authorities are persons in authority; and such statements would be inadmissible if vitiated by inducement, threat or promise. [858E F] State of Punjab vs Barkat Ram, ; , followed. (iii) Section 186 of the , which is merely an enabling section, is no bar to a prosecution for an offence under the Act in connection with a matter in which the award of confiscation, penalty or increased rate of duty has been made. [859F, G] Leo Ray Frey vs Superintendent of District Jail ; , referred to. (iv) Once the gold recovered is proved to be smuggled whosoever is found to have brought it and dealt with it, thereafter, knowing it to be smuggled must be held to have had the intention of evading duty or violating the prohibition or restriction. [860C D]

Appeals Nos. 182 186 of 1963. Appeals by special leave from the judgment and order dated January 1961 of the Gujarat High Court in Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960. C. K. Daphtary, Attorney General, R. Ganapathy Iyer, R. K. P. Shankardass and R. H. Dhebar, for the appellant (in all the appeals). Purshottam Trikamdas, B. Parthasarathy, J. B. Dadachanji O. C. Mathur and Ravinder Narain, for the resdondents (in all the appeals). January 30, 1964. Hidayatullah J., Shah J., and Mudholkar J. delivered separate Judgments allowing the appeal. Raghubar Dayal J. agreed with the order proposed by Hidayatullah J. The dissenting opinion of Sinha C.J. and Rajagopala Ayyangar J. was delivered by Ayyangar J. Subba Rao J. delivered a separate dissenting opinion. AYYANGAR J. In this batch of five analogous appeals, by special leave, the main question for determination is whether the rights which were in controversy between the 472 parties in the courts below could be enforced by the Munici pal courts; or in other words, whether or not "Act of State" pleaded by the State of Gujarat is an effective answer to the claims made by the respective respondents to the rights over forests claimed by them in the suits giving rise to these appeals. Vora Fiddali Badruddin Mithibarwala is the respondent in Civil Appeals Nos. 182 and 184 of 1963. Vora Hakimuddin Tayabali Amthaniwala is the respondent in Civil Appeal No. 183 of 1963. Mehta Kantilal Chandulal is the respondent in Civil Appeal No. 185 of 1963, and Pathan Abbaskhan Ahmedkhan is the respondent in Civil Appeal No. 186 of 1963. In all these Appeals the State of Gujarat is the appellant. The course these litigations have taken in the courts below may briefly be stated as follows: The respondent in Civil Appeal No. 182 of 1963, is the assignee of the rights of one Vora Hatimbhai Badruddin and was brought on a record as plaintiff during the pendency of the suit in the trial court, namely, the court of the Civil Judge (Senior Division) at Godhra, being Civil Suit No. 115 of 1950, for an injunction and ancillary reliefs to restrain the appellant and its officers from interfering with the plaintiff 's alleged rights to cut and carry away timber etc., from the Gotimada jungle, rasing his rights under a contract dated August 21, 1948, for a period of three years on payment of a consideration of Rs. 9,501 to the Jagirdar of the village, Thakore Sardar Singh Gajesingh. Civil Suit No. 134 of 1950, giving rise to Civil Appeal No. 184 of 1963, was also instituted by the same plaintiff who claimed by virtue of an assignment of the rights under a similar contract in respect of another forest in village Nanirath for a period of four years, the consideration being the cash payment of Rs. 9,501. Civil Suit No. 106 of 1951, giving rise to Civil Appeal No. 183 of 1963. was instituted by Vora Hakimuddin Tayyabali Amthaniwalla. His claim was based on an agreement with the Jagirdar. dated December 7, 1948, for a period of four years for a consideration of Rs. 6,501 in respect of the forest in village Rathda. All these three suits, in which the reliefs claimed 473 were similar, were tried together and disposed of by a com mon judgment, delivered by the trial court on January 3, 1956. All the suits were dismissed. The Court took the view that the rights of the plaintiffs, such as they were, could not be enforced by the courts. Civil Appeal No. 185 of 1963 arises out of Suit No. 80 of 1953, filed by Mehta Kantilal Chandulal. He owned the Inami villages Lalekapur and Narsingpur and alleged that he had given a contract for cutting the trees in his villages for a consideration of Rs. 11,000 on May 29, 1948, for a period of four years, and that his transferee had been prevented by the State from exercising those rights. He also prayed for a similar injunction, as in the other suits. This suit was also dismissed by the trial court by its judgment, dated March 23, 1956. The last of the suits is Suit No. 90 of 1955, giving rise to Civil Appeal 186 of 1963. The plaintiff had claimed to have obtained similar right of felling trees in the forest belonging to the Jagirdar of Mayalapad on August 16, 1948 for Rs. 1,191 for a period of three years. This suit was decreed by a judgment dated August 6, 1956. The unsuccessful plaintiffs filed four appeals to the District Judge, Panch Mahals, at Godra, being appeals Nos. 17, 18, 19 and 48 of 1956. All the appeals were heard together and, by a common judgment, were dismissed on February 28, 1957, the judgment of the trial court being confirmed. The 5th appeal, being appeal No. 74 of 1956, was filed by the State. Ile appeal was allowed by a separate judgement, dated September 30, 1957, dismissing the suit. The plaintiffs respondents filed five second appeals, being Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960 in the High Court of Gujarat. The appeals were heard together and were allowed on January 24, 1961 with the result that the suits were decreed and the appellant was restrained by an injunction from interfering with the plaintiffs ' enjoyment of the rights in the forests, as claimed by them. As the State failed to obtain the necessary certificate of fitness from the High Court, it moved this Court and obtained special leave to appeal. And that is how these appeals have come up to this Court. These appeals were first heard by a Bench of five Judges, and it was directed that the matter be placed for hearing by a larger Bench, as the Bench was of the opinion that the decision of this Court in Virendra Singh vs The 474 State of Uttar Pradesh(1) required reconsideration. That is how these appeals have been placed before this special Bench. Before dealing with the questions that arise for deter mination in these appeals, it is necessary and convenient at this stage to set out the course of events leading up to the institution of the suits aforesaid, giving rise to these appeals. The several villages, the forest rights in which are in dispute in these cases, formed part of the State of Sant. The steps in the transition of this State under its ruler who was designated the Maharana into an integral part of the territory of the Union of India conformed to the usual pattern. With the lapse of the paramountcy of the British Government on the enactment of the Indian Independence Act, the ruler achieved complete sovereignty. Soon thereafter by an instrument of accession executed by the ruler, the State acceded to the Dominion of India so as to vest in the latter power in relation to 3 subjects Defence, External Affairs and Communications. On March 19, 1948 the ruler entered into a merger agreement with the Governor General of India by which "with a view to integrate the territory with the Province of Bombay at as early a date as possible", the full and exclusive authority and powers in relation to the administration of the State were ceded to the, Dominion Government. The agreement was to take effect from June 10, 1948. It is necessary to set out two of the Articles of this Agreement. Article 1 ran thus: "1. The Maharana of Sant hereby cedes to the Dominion Government full exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the 10th day of June, 1948 (hereinafter referred to as "the said day"). And from the said day the Dominion Government will be competent to exercise the said powers, (1) ; 475 authority and jurisdiction in such manner and through such agency as it may think fit. " Under Article 3 of the agreement, the ruler agreed to furnish to the Dominion Government before October 1, 1948 a list of all his private properties over which he was, under the terms of the agreement, to retain full ownership and enjoyment. After this agreement came in force on June 10, 1948, the Central Government delegated its functions to the Bombay Government by virtue of the powers vested in it by the Extra Provincial Jurisdiction Act, 1947. Subsequently, Shri V. P. Menon, Secretary in the Ministry of State, wrote a letter to the Maharana of Sant on October 1, 1948 (exhibit 194). This letter was entitled a "Letter of Guarantee" and was to be treated as supplementary to the Agreement of Merger dated March 19, 1948. Amongst other matters. it provided by cl. 7: "No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned un less the order was passed or action taken after the 1st day of April, 1948, and it is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in their respect will be final. " In view of the forthcoming integration of (,lie territory of Indian States into the Dominion of India, the Government of India Act, 1935, was amended and section 290 A was inserted. In exercise of the powers conferred by that section, the Governor General of India promulgated the States Merger (Governor Provinces) Order, 1949, on July 27 1949 which came into force on August 1, 1949. As a result of that order the integration of Indian States, including the Sant State with that of the province of Bombay, was completed with effect from that date, namely August 1, 1949. In the meantime, the ruler of the Sant State passed or issued "a resolution" or Tharao on March 12, 1948, which has given rise to the present series of litigations. Under this " 'instrument" marked as exhibit 192, to use a neutral expres 476 sion in view of the controversy as to its nature, called Tharao, an order was passed by the Maharana of Sant State whose terms will be referred to later and discussed in greater detail, granting forest rights to holders of certain specified tenures. The holders of such tenures in the Sant State entered into a number of agreements with the, parties, parting with their rights in the forest timber, e.tc., for a specified period, in consideration of cash payments made by those third parties to the holders of the tenures. It is not necessary to set out in detail all those agreements it is enough to mention, by way of a sample the agreement dated August 21, 1948 (exhibit 175) whereby the tenure holder granted as briefly adverted to earlier to Vohra Hatimbhai Badruddin Mithiborwala the right to cut and remove timber and firewood from the forest of Mouja Gothimada for a consideration of Rs. 9,501 for a period of three years. The written agreement contains quite a number of clauses which it is not necessary to set out for the purposes of this case. After the aforesaid grants, correspondence started between the grantors and the grantees on the one hand, and the State Forest Department on the other. When the District Forest Officer was informed about the transactions aforesaid. and the grantees applied for authorisation to remove timber etc. the Forest Authorities ordered that no export outside would be permitted, pending receipt of orders from Government. They also required an undertaking from the purchaser that he would abide by the decision and orders passed by the Government. Thereupon the grantor, Thakur Sardar Singh Gaje Singh gave an undertaking to abide by the decision and orders of the Government of Bombay in respect of the Gothimada forests "rights over which were conferred on me. by Santrampur State Government on March 12, 1948 in their resolution No. G. 371, dated March 12, 1948. " The Divisional Forest Officer, by his order dated January 10, 1949, passed an order under the provisions of r. 4 of the Rules under section 41 of the Indian Forest Act authorising the grantee to remove forest produce like timber firewood and charcoal from Gothimada forest. This was followed by a memorandum by the Conservator of Forests North Western Circle of the Bombay State by which the Divisional Forest Officers were directed to conti 477 nue to issue authorisations to contractors of Jagirdars who had obtained rights over the forests in the Sant State under the Tharao of the ruler, dated March 12, 1948. He, however, pointed out that until the question of the rights of the grantees over private forests was finally settled by the Government an undertaking should be taken from the, persons concerned that they would abide by the orders passed by the Government in respect of their rights. This, as stated al ready had been obtained by the District Officers even earlier. On July 8, 1949, the Government of Bombay passed an order in which they stated "Government considers that the order passed by the ruler of the Sant State under his No. 371, dated March 12, 1948, transferring forest rights to all the Jagirdars of the Jagir villages, are mala fide and that they should be cancelled. . This decision or order was, however, not communicated to the jagirdars or their contractors though effect was given to it by the Forest Authorities by stopping all further fellings. Some time thereafter the respondents issued notices under section 80 of the Civil Procedure Code to the Government of Bombay seeking respect for their rights under the Tharao of March, 1948 and after waiting for two months filed the suits out of which these appeals arise. By the written statements which they filed, the Government of Bombay raised principally the def ence that the act of the ruler in passing the Tharao was not binding on them as the successor State and that they in exercise of their sovereign authority, had cancelled the concession as unreasonable and mala fide by their order, dated July 8, 1949, already referred. It might be mentioned that after the suit was instituted and while it was pending before the trial judge a formal resolution of the Government of Bombay was passed and published on the 6th of February, 1953, in which they set out the legal position that the rights acquired under the Tharao were not enforceable as against the Bombay Government as the successor State unless those rights were recognised and that as on the other hand the same had been specifically repudiated, the Jagirdars and their contractors had no title which they could enforce against the Government. We have already narrated the course of the litigations and this would be the convenient stage at which to indicate 478 the grounds on which the learned Judges of the High Court have upheld the claims of the plaintiffs who are the respondents in the several appeals before us. There were two, principle points that were urged on their behalf before the learned Judges. The first was that the Tharao of March 12, 1948, was in truth and substance a 'law ', a legislative act of the ruler of Sant, which was continued under article 372 of the Constitution and that in consequence the rights obtained by the grantees thereunder could not be abrogated or set at naught by a mere executive order which the Government resolution of February, 1953, undoubtedly was. This submission was rejected by the Court holding that the Tharao was merely a grant originating in an administrative or executive order of the ruler. The other contention was that through the agreement of merger by which the integra tion of the Sant State with the Dominion of India brought about an "act of state" and that accordingly, no rights based on the agreement of merger, dated March 19, 1948, or in the supplementary letter, dated October 1, 1948, could be, asserted or enforced in the Municipal Courts of the successor State unless the same were recognised by Government still cl. 7 of the letter of Shri V. P. Menon, dated October 1, 1948, to the ruler could be referred to and relied on for the purpose of drawing an inference that the right of the Government to repudiate the grant by the ruler had been waived. This submission was accepted and it was on this reasoning that the learned Judges have decreed the suits of the several plaintiffs. It is the correctness of these two conclusions that are being challenged before us, the first by the respondente and the other by the appellant State. Arising from the submissions of the learned Attorney General the points that require examination are as to the legal effect of the acces sion, integration and merger of the Sant State in the Indian Union, on the rights that the plaintiffs acquired under the Tharao, dated March 12, 1948 and secondly whether the provisions in section 299 of the Government of India Act, 1935, or those contained in Part III of the Constitution affect the nature or enforceability of those rights. 'Me questions to be considered under the first head in particular are: (a) Whether the rights acquired under the previous 479 ruler are enforceable against the Governments of the Union and the States without those rights being recognised by the appropriate Government. (b) What is the effect of the letter of the Government of India, dated October 1, 1948, on the right of the Government to refuse to recognise a grant under the Tharao. (c) What is the effect of the Government 's communication to the Chief Conservator of Forests dated July 8, 1949 and of the resolution of Government of February, 1953. Under the second head, besides the constitutional guarantees protecting rights to property contained in the Government of India Act and the Constitution, the effect in the first instance of section 5 of the Government of India Act, 1935, of the acceding States becoming part of the Dominion of India and later of the manner in which the Constitution of India was framed. The other question that requires consideration is whether the Tharao dated March 12, 1948 is merely a grant originat ing in an executive order or is it a law which is continued in operation by article 372 of the Constitution. In Virendra Singh 's case(1) this Court held that even on the basis that the merger of the Indian States in the Indian Union and the treaties by which that was accomplished were acts of State, still by reason of the manner in which the Constitution of India was brought into being and because of the provisions which it contained, in particular those guaranteeing property rights of its citizens, the acquired rights of the inhabitants of the Indian States quoad their rulers could not, after the Constitution, be annulled or abrogated by arbitrary executive action on the part of the, Union or State Governments. The learned Judges thus assumed as correct the rule of Public International Law relevant to that context expounded by the Privy Council in a number of decisions rendered on appeals from the Indian (1) 480 High Courts. For this reason we consider that it would be convenient for a proper appreciation of the points now in controversy to premise the discussion by briefly setting out the principles underlying these decisions of the Privy Coun cil, reserving their detailed examination to a later stage. These principles have been tersely summarised and the ratio of the rule explained by Lord Dunedin in Vajesinghji vs Secretary of State for India etc.(1) in a passage which has been often quoted in later cases on the subject and we consider that it would be sufficient if we extract it. The learned Lord said: "When a territory is acquired by a sovereign state for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has through his officers, recognized. Such rights as he had under the rule of prede cessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants could enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts. The right to enforce remains only with the high contracting parties." (italics ours). This has been accepted as expressing the constitutional law of the United Kingdom and the same has been.applied tot merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire See Cook vs Spring(2). This was the law laid down and given effect to by the Privy Council until India attained independence. 151 IA 357. (2) 481 Virendra Singh vs State of Uttar Pradesh (1), however, struck a different note particularly as regards the matters covered by the sentences we have given in italics in Lord Dunedin 's exposition of the law, and to this decision we shall immediately turn. The facts of the case were briefly these: On January 5, 1948, the ruler of Sarila granted the village Rigwara to the petitioners who moved this Court while on the 28th of January, 1948, the ruler of Charkari granted certain other villages to the same petitioners. As the rights of the petitioners were sought to be nullified by an order of the Government of Uttar Pradesh they filed a petition under article 32 of the Constitution praying that the order of the Government of Uttar Pradesh revoking the grants in their favour be declared void and for consequential reliefs. A few more facts in regard to the constitutional history of these two States is necessary to be stated to appreciate some of the matters which figured in the decision in Virendra Singh 's case(2). After the date of the grant in favour of the petitioners 35 States in Bundelkhand and Bhagalkhand, including Charkari and Sarila agreed to unite themselves into a State to be called the United State of Vindhya Pradesh. While this Union was in existence, certain officials of this Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference. Subsequently the rulers of the 35 States dissolved their Union and ceded to the Gov ernment of Indian Dominion all their powers and jurisdiction and the Dominion constituted the area into a Chief Commissioner 's province for the purpose of administration, but the four villages granted to the petitioners were, how ever, detached from the centrally administered State and absorbed into Uttar Pradesh. On August 29, 1952, the Governor of Uttar Pradesh revoked the grants made in favour of the petitioners. The question before the Court was whether this order of revocation of the grants made by the former rulers was justiciable in courts and if justiciable, valid. (1) ; S.C. 31 482 The judgment of the Court was delivered by Bose J. The learned Judge after stating the question arising for decision as being "whether the Union Government had the right and the power to revoke these grants as an act of State?", pointed out that jurists had held divergent views on this matter. At one extreme, he said, was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited. At the other extreme was the view of Marshall C.J., in United States vs Percheman(1) from which he quoted the following: "It may not be, unworthy of remark that it is very unusual, even in case of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; by their relations to each other, and their rights of property, remain undisturbed. If this be the modem rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?. A cession of territory is never understood to be a cession of the property belonging to the inhabitants. The King cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be (1) ; at pp. 86 87. 483 necessarily understood to pass the sovereignty only, and not to interfere with private property After referring to a few other decisions of the English Courts the learned Judge proceeded: "We do not intend to discuss any of this because, in our opinion, none of these decisions has any bearing on the problem which confronts us, namely, the impact of the Constitution on the peoples and territories which joined the Indian Union and brought the Constitution into being. . Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of State into whose competency no municipal court could enquire; nor any Court in India, after the Constitution, accept jurisdiction to settle any dispute arising out of them because of Article 363 and the proviso to Article 131; all they can do is to register the fact of accession. . But what then; Whether the Privy Council view is correct or that put forward by Chief Justice Marshall in its broadest outlines is more proper, all authorities are agreed that it is within the competence of the new sovereign to accord recognition to existing rights in the conquered or ceded territories and, by legislation or otherwise, to apply its own laws to them and these laws can, and indeed when the occasion arises must, be examined and interpreted by the municipal courts of the absorbing State. " The learned Judge then went on to point out that the title of the petitioners to the disputed villages had not been repudiated upto January 26, 1950. Because of the non exercise of the right to repudiate till that date, the petitioners were admittedly in de facto possession of the villages and the learned Judge adverted to the circumstance that those possessory rights could have been asserted and enforced against all persons except the rulers who granted the lands, and 484 except possibly the succeeding State. Considering it unnecessary to pronounce whether these rights could be enforced against the rulers as well as the Dominion of India as the succeeding sovereign, he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union, there could be no question of the Union Government claiming to exercise an " act of State" operating to deprive the petitioners of their property following in this respect the well known decisions of Walker vs Baird(1) and Johnstone vs Pedlar(2). He further explained that "the Constitution by reason of the authority derived from and conferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold. " The passage extracted and indeed the entire judgment is replete with a description of the poetry of India 's constitutional evolution as an unified State during the most momentous period of her history from the Declaration of Independence on August 15, 1947, to the coming into force of the Constitution on January 26, 1950 and of the saga of the march of the subjects of the former Indian princes from being subjects of an autocratic ruler to a modern democatic set up in which they are full fledged citizens of India, in language at once picturesque and of authentic eloquence. We should not be understood to minimise in any manner the political significance of the events described or underrate their importance, content or meaning if we differ somewhat from certain of the conclusions drawn on matters which are relevant for the purposes of the points arising for decision in these appeals. Pausing here we ought to point out that several decisions of this Court subsequent to Virendra Singh 's case(4) of which it is sufficient to refer to Mls. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income Tax(4), Jagan (1) (2) ; (3) ; (4) [1959] S.C.R. 729. 485 nath Agrawala vs State of Orissa(1), Promod Chandra Deb vs The State of orissa(2) and State of Saurashtra vs Jamadar Mohamad Abdulla(3) have proceeded on the acceptance of the constitutional doctrine enunciated by the Privy Council. We shall be referring to them later, but before doing so it is necessary to set out certain matters which are not in controversy. The native Indian rulers were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in stages, firstly on accession, then on integration and finally by what has been felicitously termed in the White Paper on Indian States as 'unionization ' i.e., by State territory becoming part and parcel of the territory of the Union of India which meant the complete extinction of their separate existence and individual sovereignty and of their States as separate political units. Proceeding next to deal with Virendra Singh 's case(4) a close analysis of the reasoning underlying the decision discloses the following as its ratio: (1) There were two schools of thought as regards the effect of a change in sovereignty in respect of the enforceability of the rights of private individuals against the succeeding sovereign. At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle, that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a competent authority or organ of the succeeding sovereign recognised those rights. The passage in the judgment of Lord Dunedin in Vajesingjis case(5) was typical of this view. On the other hand, there was another and, if one might say so, an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by (1) ; (2) [1962] 1 Supp. S.C.R. 405. (3) (4) (1955] 1 S.C.R. 415. (5) 51 I. A. 357. 486 Chief Justice Marshall in Percheman 's case(1) was typical, that the proper and just rule of Public International Law which should be given effect to by municipal courts was that the changes in sovereignty over a territory did not or should not have any effect on the rights of the private individuals even as regards the enforceability of their claims as against the State and that it was the obligation certainly moral, if not also legal, of the succeeding sovereign to give effect to such rights previously acquired by gants from the previous sovereign. After pointing out these divergent views the learned Judges, in Virendra Singh 's case(2), considered it unnecessary to express their opinion as regards the correctness or acceptability of either view, but proceeded, however, on the assumption that the constitutional doctrine as enunciated by the Privy Council appealed to the facts of the case before them. (2) Starting from the position that the petitioners obtained a good title to the villages granted to them by the rulers of Sarila and Charkari, they proceeded to analyse the nature of the title which they had under the grants. As a result of this examination they arrived at the conclusion that even on the basis of the decisions of the Privy Council, their title was only voidable at the option of the succeeding sovereign. They recognised that the changes that took place in the constitutional position of the State of Charkari and Sarila undoubtedly brought in a change in the sovereignty of that territory and hold that the changes thus brought about including the treaties which marked the transition were "Acts of State" and that the interpretation or enforcement of rights under the treaties was outside the jurisdiction of municipal courts. The petitioners, they held, could not, therefore obtain any advantage by reliance on any provision in the (1) ; at pp. 86 87. (2) ; 487 treaty safeguarding their rights, for apart from the treaties being "Acts of State" they were engagements between two sovereign States and enforceable between them at the instance of the high contracting parties through diplomatic channels and not by recourse to municipal courts, and the petitioners not even being parties to the treaties could not obviously claim any right to enforce them. In this connection the terms of article 363 of the Constitution which contained an express embargo on the enforcement by the municipal courts of the, provisions of these treaties were adverted to as reinforcing this position. (3) If guarantees contained in the treaties be put aside, the next question to be considered was whether the Governments which emerged as a result of the Constitution, were competent to avoid or repudiate the titles obtained by the petitioners under the previous ruler by an "Act of State". They answered this question in the negative for four reasons: (i) The constitution emerged as a result of the conjoint action of the subjects of the former Indian rulers and the people of former British India. When as a result of this joint effort the Constitution was brought into existence there was no question of conquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by conquest, cession, treaty etc. (ii) The subjects of the former Indian rulers became, when the Constitution emerged, Indian citizens, and as against its own subjects or citizens there was no question of any "Act of State" by any Indian Government. (iii) Even if the previous rulers had vested in them autocratic powers to revoke grants 488 made by them in favour of their subjects, the Government of the Union and the States which were functioning under a Constitution which contained fundamental rights guaranteeing protection of property rights against arbitrary executive action could 'not claim to exercise those arbitrary powers which they might have inherited from the previous rulers, and (iv) The petitioners had at the commencement of the Constitution a possessory title to the property granted to them and had also a right at that date, to continue in possession unless and until their title which was voidable was extinguished by repudiation by the Governments which were established by the Constitution. These proprietary rights were, however, protected by articles 19 (1) (g) and 31 (1) of the Constitution and so the petitioners could not be deprived of their proprietary rights except by competent legislation enacted after the commencement of the Constitution. We shall now proceed to examine the above reasoning of the learned Judges. Reserving for later consideration the arguments addressed to us regarding the divergent views of judges, jurists and writers on Public International Law on the topic of the enforceability of the rights derived from previous sovereigns against a succeeding sovereign on a change of sovereignty, we shall proceed on the same lines as in Virendra Singh 's case(1) viz., on the acceptance of the rule as enunciated in the decisions of the Privy Council. It is necessary, first to understand the precise scope and implications of these decisions and of the law explained in them. The earliest of these usually referred to in this connection is Secretary of State for India vs Kamachee Boye Sahiba(2) which was concerned with the justiciability in municipal courts of a seizure by the East India Company of not merely the Raj but even of the private properties of the (1) ; (2) (1859) 7 MOO. I.A. 489 Raja of Tanjore. The Privy Council held in a judgment delivered by Lord Kingston that as the seizure had been made by the Company as a sovereign power the municipal courts "had no means of forming or the right of expressing if they had formed any opinion of the propriety or the justice of that act. " That is, however, a different aspect of what is termed 'Act of State ' from what is strictly relevant to the facts before us. That decision was referred to with approval by the Privy Council in a case from India Secretary of State for India in Council vs Bai Rajbai(1) where the point in controversy was somewhat akin to those in the present appeals. The question at issue before the Privy Council was whether the respondent was entitled to the continued ownership and possession of a village called Charodi in the province of Gujarat. The respondent 's title to the village was ultimately based on rights claimed to have been granted by the Gaekwar of Baroda. The territory in which the village was situated was ceded by the Gaekwar to the British Government in 1817. The claim of the respondent to full ownership of the property was not recognised by the Indian Government after the cession and Government held that the respondent had no more than a leasehold interest. The question before the Privy Council was whether the respondent was entitled to assert in municipal courts rights more extensive, than what had been recognised by the authorities. Dealing with this Lord Atkinson delivering the judgment of the Board stated: ". It is essential to consider what was the precise relation in which the kasbatis (respondents) stood to the Bombay Government the moment the cession of their territory took effect, and what were the legal rights enforceable in the tribunals of their new sovereign, of which they were thereafter possessed. The relation in which they stood to their native sovereigns before this cession, and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, (1) 42 I.A. 229. 490 if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new sovereign were those, and only those, which that new sovereign, by agreement expressed or implied, or by legislation, chose to confer upon them. Of course, this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extent the new sovereign has recognised these antecession rights of the kasbatis, and has elected or agreed to be bound by them, that the consideration of the existence, nature, or extent of these rights becomes a relevant subject for enquiry in this case. This principle is wellestablished, though it scarcely seems to have been kept steadily in view in the lower courts in the present case. It is only necessary to refer to two authorities on the point, namely, the case of Secretary of State for India vs Kamachee Boye Sahiba [(1859) 7Moo. I.A. (476) decided in the year 1859, and Cook vs Sprigg decided in the year 1899. " This passage would appear to indicate that the effect of the change of sovereignty is not to treat rights previously enforceable against the former ruler as only voidable at the instance of the succeeding sovereign, but to effect a com plete destruction of those rights until by recognition or by legislation of the succeeding sovereign the same is obtained by the previous grantee. A question very similar to Bai Rajbais case(1) arose in Vajesingji 's case(2) where the statement of the law as explained by Lord Atkinson was approved and Lord Dunedin, as already stated, conveyed the same idea when he said: "Any inhabitant of the territory can make good in the municipal Courts established by the new (1) 42 1.A. 229. (2) 51 I.A. 357. 491 sovereign only such rights as that sovereign has, through his officers recognised. Such rights as he had under the rule of predecessors avail him nothing. " It need hardly be stated that this passage, just like that extracted from Lord Atkinson, is wholly inconsistent with the theory that an inhabitant of a territory in which there has been a change of sovereignty carries with him a voidable title to property which inheres in him until by some positive act of the new sovereign he is divested of that right. Coming nearer to the present times we have the decision in Secretary of State vs Rustam Khan(1) which related to the enforceability of the right to certain land claimed to have been acquired under the Khan of Kalat against the British Government after the cession by the Khan of the territory which included the villages in which the lands of the respondent were situate. For the appellant the plea raised was 'Act of State ' and the decisions of the Board in Bai Rajbai 's case(2) and Vijayesingji 's case (3) were relied on. Among the submissions made to the Board on behalf of the respondent we would refer to two as of some relevance to the points under consideration in these appeals. The two contentions were: (1) that a mere change in sovereignty was not to be presumed to disturb the rights of private owners, and the terms of the cession by which full sovereignty was transferred were to be construed as passing only public property relying for this proposition on Amodu Tijani vs Secretary Southern Nigeria(4), (2) that the effect of a change in sovereignty in regard to title to land which had been perfected under a previous sovereign was different from that in regard to personal obligations. For the latter proposition support was sought on the observations of Lord Alverstone C.J. in West Rand Central Gold Mining Co. vs Rex(5) reading: "It must not be forgotten that the obligation of conquering States with regard to private pro (1) 68 I.A. 109. (2) 42 I.A. 229. (3) (4) (5). 492 perty and private individuals, particularly land to which title had already been perfected before the conqueror annexation are altogether different from the obligations which arise in respect of personal rights by contract. " We have referred to these arguments and particularly to the citation of these two decisions, because they are usually referred to in connection with a suggestion that even according to the British view rights of private individuals to land and interests in relation to land continue to be enforceable unaffected by changes in sovereignty. Lord Atkinson who delivered the judgment of the Board pointed out that the cession of the territory by the Khan constituted a complete transfer of all sovereignty to the British Government, stated: "On the legal position that arises in such circumstances there is a wealth of weighty authority." After referring in detail to the earlier decisions of the Board in Kamachee Boye(1), Cook vs Sprigg,(2) Bai Rai Bai(2) and Vijayesingji, (4) applied them to the facts and held that as the title which was asserted had not been recognised by the British Government; allowed the appeal and directed the dismissal of the suit of the respondents. If the Privy Council decisions lay down the law correctly and we are applying that law, the fact that it is land or immovable property which is claimed or as regards which the right is asserted makes no difference for the application of the principle. The last decision to be referred to in this context is that reported. as Asrar Ahmed vs Durgah Committee, Ajmer(5) where Lord Simonds said: "From this it follows that the rights, which the inhabitants of that State enjoyed against its former rulers, availed them nothing against the British Government and could not be asserted in the Courts established by that Government (1) (1859) 7 Moo. I. A. 476.13 Moo. P.C. 22. (2) (3) 42 I.A. 229. (4) 51 I.A. 357. (5) A.I.R. 1947 P. C. I. 493 except so far as they had been recognised by the new sovereign power. Recognition may be by legislation or by agreement express or im plied. This well established rule of law for which reference may be made to 42 I.A. 229 at p. 237 and 51 I.A. 357 at p. 360, appears to their Lordships to be peculiarly applicable to an office, to which material benefits apper tain and which, so far the records show, had consistently been regarded as within the dis position of the sovereign power. " As we have already pointed out, these decisions of the Privy Council have been referred to and followed by this Court in Dalmia Dadri Cement Co.(1) and the other decisions already referred. The statement of the law therefore in Virendra 's case(2) that if the doctrine of Public International Law enunciated by the Privy Council were applied, the petitioners in that case had a voidable title, which inhered in them even after the change of sovereignty, is not seen to be correct. If the view expressed by the Privy Council was to be adopted there is no escape from the conclusion, that the grantees under the previous rulers did not carry with them, on a change of sovereignty, as subjects of the succeeding sovereign any inchoate rights as against the new sovereign, but their rights in so far as enforceability against the new sovereign was concerned sprang into exist ence only on recognition express or implied by the duly constituted competent authorities of the succeeding sove reign, apart from legislation. Pausing here we might observe that this error on the part of the learned Judges in appreciating the ratio of the judgments of the Privy Council necessarily led them 'to assume that the petitioners before them had certain rights which they continued to enjoy even after the change of sovereignty and which were protected by the guarantees con tained in articles 19 and 31 of the Constitution. The next step in the reasoning of the learned Judgeswas based on the fact that the Constitution was framed not merely by the people inhabiting the Provin (1) [1959] S.C.R. 729. (2) ; 494 ces of India but as a result of their conjoint action along with the subjects of the former Indian rulers. From this the inference was drawn that those rules of Public Interna tional Law which recognised the rights of a successor State to refuse to be bound by obligations incurred by or enforce able against the predecessor State had no application to the change in sovereignty brought about when the Union of India was brought into existence. This was on the theory that for that doctrine to operate there must be a cession or transfer of territory by one ruler to another and that where the people of the entire subcontinent by their united action brought into existence a new sovereign State there was no question of transfer of territory from one sovereign to an other to afford scope for the application of the rule of Public International Law. With the greatest respect to the learned Judges, we feel constrained to differ. that a new sovereign emerged on the unification of India by the merger or absorption of the Indian States with the Provinces of British India cannot be questioned and that this was by the process of the sove reignty of the rulers of the former Indian States being extinguished cannot be disputed either. We are here not concerned with whether India as an International person has undergone any change, vis a vis in its relationship with other States or in the International Organisations but in a more limited and, so to speak, domes tic sphere. The territories under the rulers of the former Indian Princes undoubtedly passed from one sovereign to another when as a result of the 'unionisation ' by the Government of India, they became integral parts first of the Dominion of India and later of the Union of India. A transfer of territory from under one sovereign to another may be effected in a variety of ways conquest, annexation, by cession under a treaty after a war or without a war, by revolution by emancipation of subject peoples and by territorial resettlements. These changes possess one common feature viz., that one sovereign ceases to rule a territory and another takes its place. For the application of the rules which have been evolved in connection with the problems arising from such succession, little turns for the purpose of British Constitutional Law on either the manner in which the change of 495 sovereignty was brought about or whether the absorption was partial or complete in the sense of a total extinction of the previous sovereignty of the absorbed State, leaving no trace of survival after the merger. In passing we might mention that, in fact. it was in most cases the rulers of the Indian States who ejected the merger and who on behalf of their State and their subjects participated by themselves or through their representatives in the deliberations which brought into existence the Constitution, and the legal and political unity of India. If, then, as a result of the absorption there was a State succession, its consequences have to be judged by tests or principles similar to those by which State succession is brought about by other means. We cannot, therefore, agree that the manner in which the Indian States ceased to exist or in which the Constitution and with it the complete political unification of the territory of India was brought about negatives the applicability of rules which govern the enforceability of rights against a succeeding sovereign on State succession. The point next to be considered is whether the fact that the subjects of the former Indian rulers became, after the Constitution, citizens and subjects of the Indian Union pre cludes the Indian Government from refusing recognition to titles which such persons could have enforced against their previous rulers on the well accepted principle that "there can be no act of State against its own subjects. " The appli cation of this principle last mentioned of which Walker vs Baird(1) and Johnstone vs Pedlar(2) are classic examples, is intimately bound up with the question as to the precise nature of the action taken by a succeeding State, when it refuses to accord recognition to the right of a former in habitant of the territory of an earlier sovereign and enforce.able against the predecessor. If the true position in law were that a positive action is necessary to be taken by the succeeding sovereign before it interferes with the pre existing rights of the subjects of the former ruler and that the action thus taken is really a continuance of the act of the State by which the territory of the former ruler became transferred to the new sovereign, it is possible that the rule that there can be no act of State by (1) (2) ; 496 the Government against its own subjects might have some application. But if, on the other hand, the true theory were, that on the extinction of the sovereignty of the previous ruler over the territory ceded or surrendered, there is an extinction ipso jure of the rights enforceable against the State and that it is really a new right that springs into existence on recognition by the succeeding sovereign, it would be manifest that the refusal of the succeeding sovereign to recognise preexisting rights could in no sense be an act of State. No doubt, that refusal is in the exercise of sovereign power but by such exercise it neither annihilates nor affects any enforceable right which its subjects had against it. We consider, therefore, that if the doctrine of Public International Law expounded by the Privy Council were held applicable to the termination of the rights arising on the change of sovereignty in India, as the learned Judges in Virendra Singh 's case(1) did, the power of the Government of India as at present constituted to refuse to recognise titles originating in executive grants by former Indian rulers cannot be negatived by resort to the rule of law laid down in Walker vs Baird(2) and Johnstone vs Pedlar(3). The next proposition of law which underlies the decision in Virendra Singh 's case(1) is that the arbitrary and absolute powers which the former Indian rulers possessed to revoke grants made by them did not survive the change in sove reignty brought about by the Constitution, when as a result of the setting up of a democratic polity informed by justice and the rule of law, the right to exercise any arbitrary power was abandoned and was no longer available for revoking the grants made by the former rulers. If the theory of Pub lic International Law which was explained and given effect to by the decisions of the Privy Council rested on the doc trine that the powers of the succeeding sovereign to recog nise or not to recognise grants by the preceding sovereign or to repudiate them was based on the rights of the previous ruler so to revoke or repudiate, the argument would have considerable force. The juristic basis of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exercisable (1) ; (2) (1892] A.C. 491. (3) ; 497 by the subjects of that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign, no title enforceable in the municipal courts of the succeeding sovereign came into being. If this latter be the correct juristic approach, and that is what the decisions of the Privy Council lay down as we have shown by the extracts we have made of the relevant passages in Bai Rajbai 's(1) and in Vajeysinghji 's(2) case, then it matters not whether the earlier grant was by an absolute ruler who could revoke his grant or by a ruler of a different type who could not or even if he could, had re nounced his rights to revoke by unilateral executive action. In either case, where the question at issue is whether the right could be enforced against the succeeding sovereign in its courts, nothing turns on the power of the preceding ruler to derogate from his grant; for it is not by virtue of any power derived from the previous sovereign that the succeeding sovereign claims the right not to recognise the earlier rights or grants but as an incident of its own sovereignty and sovereign power. In the circumstances, the existence of the arbitrary powers of the native Indian rulers and its absence in the Governments under the Constitution is not relevant, nor the fact that these were not inherited by and did not devolve on the Governments of the Union and the States functioning under the Constitution. The last of the steps in the reasoning underlying Virendra Singh 's case(1) proceeds on the basis that the petitioners had brought with them from their previous rulers into the Indian Union certain rights in the property granted to them, enforceable against the Government in regard to which they were entitled to the protection of articles 19 and 31. This question has to be approached from two points of view arising from the two stages through which the territory of the former Indian rulers became part of the territory of India under the Constitution. The first stage is concerned with the effect of the changes which took place from the accession of the States to the Dominion of India followed by the merger agreement executed by the rulers all of which were governed by the provisions of the Government of India (1) 42 I.A. 229. (2) 51 I.A. 357 (3) ; 134 159 S.C 32 as it stood from time to time and the second stage with the complete 'unionization ' of these territories so as to form part of an unified polity, the Union of India. So far as the first stage is concerned, there was certainly a transfer of sovereignty over the territory of the former Indian rulers to the Government of India for the purposes of the exercise by the latter of sovereignty with plenary powers of administration. Sections 290A and 290.B were introduced into the Government of India Act for enabling the administration by the Dominion Government of the territories of the acceding States which under section 5 of that Act became part of the Dominion of India. At this stage the powers of the Government of India for the administration of the acceding territories were exercised under the Extra Provincial Jurisdiction Act (Act XLVII of 1947) which used the phraseology 'areas outside Provinces which were acquired by the Central Government by treaty, agreement, grant, usage, sufferance or other lawful means '. It may be mentioned that under orders made by virtue of powers conferred by the Extra Provincial Jurisdiction Act all laws theretofore in force prevailing in the territories which were being administered under that Act were continued in force. Later by an order issued under section 290A of the Government of India Act, known as the States Merger Order 1949, laws in operation in the merged States, were continued until repealed or modified. If in that situation the law as to acquired rights enforceable against the successor State as enunciated by the Privy Council applied, all grants which rested solely on executive action could acquire vitality for being enforced against the administration by the Government of India or its delegates only if those rights were recognised; for there was here a true case of State suc cession transfer of territory by one sovereign to another and without the complication arising from the fact that the rulers or the people of the various Indian States participating in the making of the Constitution which the people of India gave to themselves. We have already ex plained that if the view of the Privy Council as to the effect of a change in sovereignty were accepted, it un mistakably points to their being no survival of any vestige of rights on the extinction of the sovereignty of the previous 499 ruler and to the emergence of any right only by the action express or implied of the new sovereign. If this principle were applied, there would have been no rights of property vesting in the grantee which he could assert against the new ruler. No doubt, if the grantees were in possession they would have a right to retain their possession against private trespassers but that is not the question with which we are here concerned, for what is now under consideration is the capacity of these grantees to assert rights as against the Government which is totally different from their right to possession as to the rest of the world. Digressing a little it may be pointed out that section 299 of the Government of India Act, 1935 as well as articles 19 and 31 which are referred to in this connection deal exclusively with the inference with proprietary rights by the State and have nothing to do with rights inter se between the grantee and his fellow subjects or citizens. If, therefore, we are correct in our understanding of the decisions of the Privy Council that on a change of sover reignty no scintilla of right inhered in the grantee quoad his right to assert or enforce his rights under the grants against the rulers survived the change of sovereignty, the guarantee against deprivation of property contained in section 299 of the Government of India Act, 1935, availed him nothing, for when the succeeding sovereign refused to recognise the rights obtained by him under the previous sovereign its action deprived him of no right to property; because he brought with him no rights from the previous ruler which he could assert against the new sovereign. The position, therefore, reduces itself to this: Just previ ous to the Constitution the grantee had no right of property enforceable against the State and in regard to which, there fore, he could invoke the protection of articles 19 and 31 of the Constitution. The coming into force of the Constitution could not, therefore, make any difference; for the Con stitution does not create rights in property but only protected rights which otherwise existed. It is necessary to add that if the learned fudges in Virendra Singh 's case(1) were right in their understanding of the Privy Council decision to (1) ; 500 mean that a grantee under the previous ruler had a voidable title which he continued to possess and enjoy until by action of the succeeding ruler the same was revoked or repudiated, they might also be right in their conclusion that such title as the grantees had could not be extinguished by the executive action of the Union or of the State Governments because of the guarantee of the right to property contained in articles 19 and 31. But, if as we have shown, the decisions of the Privy Council do not lend support to such a view, the conclusion in Virendra Singh 's case(1) as regards this last proposition also cannot be correct. This takes us to the consideration of the question which was raised by Mr. Purshottam Tricumdass submitting to us that we should discard the theory of Public International Law which underlies the decisions of the Privy Council. but that we should accept and give effect to what might be termed the American view as formulated by Chief Justice Marshall in U.S. vs Percheman(2) which was approved and applied in the later decisions of the American Supreme Court to which also he drew our attention. Learned Counsel submitted that this Court was not bound by the decisions of the Privy Council and was free to adopt the more rational, just and human doctrine which found expression in these American decisions. In this connection his thesis was that the doctrines evolved by the Privy Council were conditioned by Britain being an Imperialist and expansionist power at the date when they originated and were applied and that while these might have been suited to the regime of a colonial power, they were wholly out of place in the set up of this country and with the type of Constitution under which it functions. Having considered this matter carefully we are clearly of the opinion that there is no justification or reason to dis card the British view as regards the jurisdiction of municipal courts to enforce rights against succeeding sovereigns on a change of sovereignty. In the first place, Percheman 's case(2) itself came before the courts for ascertaining the proper construction of the treaty under which Florida was surrendered to the United States by Spain under the Florida treaty dated February 22, 1819, on the terms of which the (1) ; (2) ; at pp. 86 87. 501 respondent contended that his title to the property claimed by him had been recognised and confirmed. The place of a treaty entered into by the United States and the provisions contained in it, in the Constitutional Law of the United States, we shall be referring to later, but that apart the Florida treaty was followed by an Act of Congress of 1828 ,entitled "an Act supplementary to the several Acts provid ing for the settlement of confirmation of private land claims in Florida. " Under the terms of this Act of the Congress, ,Commissioners were set up to investigate claims by private individuals to lands and in cases where the validity of a claim set up was not upheld by the Commissioner, provision was made for resort to courts for resolving the dispute. There was, therefore, no scope for invoking the British rule of the lack of jurisdiction of municipal courts to adjudicate on unrecognised titles to property, even if such a doctrine was applicable and the only point in controversy was as to the interpretation of the clauses of the treaty relative to the titles which were recognised because on any view of the law if the treaty and the Act of Congress confirmed the respondent 's title, the same was enforceable in the municipal courts of the United States. Before passing on from this decision it is necessary to bear in mind the difference in constitutional law prevailing in the United States and in India as regards the effect of treaties and the provisions contained therein. article 6 cl. (2) of the United States Constitution reads: "6. . . . . (2) All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Willoughby explains* the object. and effect of this provision thus: ". the primary purpose of this provision, (article VI cl. (2) was to make indubitable the supremacy of treaties over State Statutory or *Constitution of the United States Vol. 1, 548. 502 constitutional provisions. it has, from the beginning been held that treaties, so far as they are self executory, operate in the United States, by virtue of this constitutional provision, to create municipal law which the courts are called upon to recognise and apply. " In the United Kingdom and in India the position is entirely different. A treaty is, in British jurisprudence, treated merely as a contract between two States and does not become a part of the law of the land unless by an express Act of the Legislature. A treaty does not confer rights or obligations between the State and its subjects or as between Subjects, such rights can be conferred only by an enactment of the Legislature. As explained by Lord Atkin in Attorney General of Canada vs Attorney General of Ontraio(1): "Unlike some other countries the stipulations of treaty duly ratified do not within the Empire, by virtue of the treaty alone have the force of law" It was in recognition of this constitutional position that section 106 of the Government of India Act, 1935 was enacted. Its terms are in substance re enacted in article 253 of the Constitution which reads: "253. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty ' agreement or convention with any other country or countries or any decision made at any international conference, association or other body." and to reinforce this position we have article 363 by which municipal courts are deprived of jurisdiction to enforce any rights arising from certain treaties. It would be apparent that in the context of the different constitutional position regarding treaties in the two countries, the rule of law which was enunciated by the American Supreme Court, cannot automatically be applied here. For in ultimate analysis the court in Percheman 's case (2) was giving effect to provisions (1) at P. 347. (2) ; at pp. 86 87. 503 of the treaty with Spain which was the law of the land, and if the treaty provisions were different, these again would have been enforced by the courts. We are making this observation not to minimise the importance of the doctrine of Public International Law explained by Chief Justice Marshall, but to point out that the decision must be under stood in the setting of the provisions of the treaty with Spain and the articles of the American Constitution. As indicated earlier, we are not insensible to the position that apart from the place of treaties in American Con stitutional Law what Marshall C.J., expounded was a doctrine of Public International Law which lie considered it was necessary; just and proper for succeeding States to observe in their dealings with the rights acquired by private individuals under predecessor sovereigns. We shall now proceed to deal with the question whether we should discard the rule as enunciated in the decisions of the Privy Council and adopt that which was formulated in Percheman 's case(1). There are several reasons why we are unable to accept C. J. Marshall 's exposition in Percheman 's case(1) as laying down a law which has to be given effect to by municipal courts in this country. In the first place, it could not be said that the broad terms in which Marshall C.J., stated the doctrine that every private rights derived from a predecessor sovereign ought to continue to be enforceable against a successor sovereign and that a change in sovereignty makes no difference to the enforceability of private rights, be it against other individuals or the succeeding State, has been in that absolute form accepted as valid by jurists and writers on Public International Law. Even in treaties in Public International Law in which the most extended scope has been afforded to the enforceability of acquired rights against a successor State two limitations have always been recognised: (1) that the origin of the right should be bona fide and not one designed to injure the economic interests of the successor State, and (2) that the right should not be a political concessions Next, jurists and even the Permanent Court of International Justice have drawn a marked distinction between (1) ; at pp. 86 87. 504 that might be termed the theory of the law and the enforce bility of these rights and in municipal courts. C.C. Hyde in is treatise on Public International Law(*) after referring of the decision in Percheman 's case(1) and those which allowed it adds: "Acknowledgement of the principle that a change of sovereignty does not in itself serve to impair rights of private property validly acquired in areas subjected to a change, does not, of course, touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States, such as those of its predecessor. " Similarly George Schwarzenberger in his International Law(**) after referring to a passage in the decision of the Permanent Court of International Justice in the case of German Settlers in Poland reading: "Private rights acquired under existing law do not cease on a change of sovereignty. No one denies that the German Civil Law, both sub stantive and adjective, has continued without interruption to operate in the territory in question. It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice" adds that though the Permanent Court of International Jus tice negatively stated that private rights acquired under existing law do not cease on a change of sovereignty, the Court did not expressly pronounce on the question whether in the absence of legislation to the contrary on the part of Poland, she was bound by International Law to consider German Civil Law as valid in the ceded territories. The doctrine of act of State evolved by English Courts is one purely of municipal law. It denies to such a Court jurisdiction to enquire into the consequences of acts which are inseparable from an extension of its sovereignty. That doc (*) Vol. IP. 433. (**)Vol. 1 p. 83. (1) ; at Pp. 86 87. 505 trine was, however, not intended to deny any rule of inter national law. Next we might examine the juristic concept underlying the American view, putting aside for the moment what one might call authority. There has been at one time a school of thought among writers on Public International Law which has described the process of State succession as if it were a transmission of sovereignty bringing in for this purpose the analogy of an heir in private law clothing the successor with the totality of the rights and obligations qua all inhabitants without exception or modification. This theory has now been discarded because of the realisation that there could be no analogy between individuals and States, nor could the theory be sustained in the face of the circumstance that it does not accord with practice, which after all is one of the basic foundations of the rules of Public International Law. It is hardly necessary to add that 'there is here no inconsistency with the comity of nations. Nor could it be maintained that the theory is just, because it would force upon the successor State obligations which might have owed their birth to political considerations which would not survive the predecessor State. Besides, it must not be forgotten that when a successor State exercises its sovereignty even over territory which has passed to it from a preceding ruler, it does not do so as a representative of or by delegation from the latter as in the case of the heir in Private Law, but as a sovereign of the territory deriving authority from its own constitution and set up. It is true that Public International Law might lay on the successor State duties with respect to the acquired territory and to the rights of the inhabitants thereof but those must be compatible with its undoubted sovereignty. It is in recognition of such a position that successor States give effect to laws which regulate rights inter se between the subjects which theretofore applied, save in so far as either its constitution or its legislation has made other provision. We are, however, here concerned with rights possessed by individuals in the predecessor 's territory enforceable against the previous rulers and even as regards these we are concerned with a very limited range of rights rights arising out of grants of immovable property or concessions of rights in relation thereto and 506 enforceable against the predecessor State. We made this Reservation because in the Dalmia Dadri Cement case(1) which dealt with the continued enforceability of a concession regarding the levy of income tax, even Bose J. agreed that such rights did not survive and in a separate judgment confined the operation of the principle that he enunciated in Virendra Singh 's case(2) to rights of immovable property. If the theory that rights and duties or rather the bundle of them pass ipso jure from the predecessor to the successor State is discarded and at the same time it is recognised that International Law and justice which underlies that body of law might impose some obligations which the successor State should respect, two questions arise: First what are the obligations which International Law might impose? and secondly, whether these obligations which are not the crea tures of municipal law, might give rise to claims enforceable in municipal courts. It is impossible to lay down exact rules as to the inter ests which are protected by a consensus of opinion as acquired rights. So much, at least, is clear that to receive the protection of International Law the interest must have been properly vested in the sense that it must not have been voidable at the instance of the predecessor State and bona fide and legally acquired. Neither the comity of nations, nor any rule of International Law can be invoked to prevent a sovereign State from safeguarding its national economy and taking steps to protect it from abuse. On the one side the principles of acquired rights demands that the interest of the private individual be not abrogated and on the other side the public interest of the successor State has to be considered. It is this conflict between the public and private aspects that hinders the laying down of hard and fast rules. As has been pointed out by O 'Connell in his Treatise on the Law of State Succession, the problems posed by State succession in International Law are notably different in character from those of municipal law though they arise at a different plane, but there is no necessary reason why the one system should not draw on the doctrine or concepts formulated and found to be adequate within the other (1) [1959] 729. (2) ; 507 system. The principle of universal succession based on ana logy from the civil law was essentially juristic in character, but the analogy was wrong and the practice of States was not consonant with the theory. The rejection of this doctrine led to the assumption that solutions are to be found on experience alone. The choice of the appropriate theory by writers was ' coloured by their standpoint and their legal (Experience. In theory, therefore, we must have regard both to past experience and the necessities of the present and while on the one hand not being unduly restrictive, ought not on the other become so doctrinaire as to deprive the State of the option not to recognise even mala fide transactions. Looked at from this point of view the British practice that has prevailed in this country has not proved in actual practice to lead to injustice, but has proceeded on a just balance between the acquired rights of the private indivi dual and the economic interests of the community, and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection. It is undoubted that the British doctrine was part of the jurisprudence and the constitutional practice that prevailed in pre Constitution India. Most certainly it does not need to be stated that the British Parliament when it enacted the Government of India Act as the constitutional framework by which this country should be governed, could not have had in contemplation any other rule by which the rights of the inhabitants newly brought into the political set up by other territories becoming part of India. With this historical background it would not be a violent presumption if we assume that the framers of the Constitution should also be taken to have proceeded on the basis of the acceptance of this doctrine and this state of the law, unless one found some provision or indication in the Constitution repugnant to its continuance. As already pointed out, the position of treaties vis a vis municipal law was not changed. On the other hand, by article 363 an embargo was laid in express terms on municipal courts giving effect to the provisions of treaties with rulers of Indian States. This, in our opinion is a clear indication that the Constitution makers intended no 508 departure from the Constitutional doctrine that was thereto fore accepted as law. It would, of course, be different if the provisions of any treaty became embodied in subsequent legislation; then they would be enforced as part of the law of the land. It is also not to be assumed that the Constitution makers were oblivious of the need for continuity of the law when the Indian States were absorbed and a change in sovereignty took place. By article 372 of the Constitution all the laws which were in force in these States just as in British India without any distinction were continued until they were altered or repealed by competent legislation. It is only necessary to point out that in the interval between the merger of these States and the coming into force of the Constitution, there were other provisions to which we have already adverted which continued the laws which obtained in these territories till article 372 could be availed of. There was thus no legal vacuum or hiatus created so far as laws were concerned and it is only where the right sought to be enforced was created not by the laws of the previous sovereign but merely as a result of an administrative order that we have the problem to be solved in these appeals. If the definition of law in article 366(10) were as that in article 12 so as to include even executive orders every right, however, created would have been continued. But the Constitution makers decided otherwise and preferred to continue only laws as distinguished from administrative orders. Next we have the circumstance that the doctrine enunciated in the decisions of the Privy Council have been accepted as correct and thus applicable equally in postConstitution India in a series of decisions of this Court commencing from Dalmia Dadri Cement Co.(1) and unless compelling reasons are found for holding that all these were wrongly decided, it would be neither proper or even open for us to depart from these precedents, and as explained earlier, there are none. Lastly, as we have already noticed, even in the case of Virendra Singh(2), though the divergent views of the jurists on this question of Public International Law were set (1)(1959] S.C.R. 729. (2) ; 509 out the court did not express any decisive opinion in favour of accepting the observations in Percheman 's case(1) as proper to be applied by the municipal courts in India. In the face of these circumstances we would not be justified in departing from the decisions of the Privy Council which have been accepted and applied by this Court. These decisions both of the Privy Council as well as the earlier ones of this Court were reviewed and the propositions laid down in them were examined and summarised by this Court in Promod Chandra Deb and Ors. vs The State of Orissa and Ors.(2) as laying down the following propositions: "(1) 'Act of State ' is the taking over of sovereign power by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or cession, or otherwise, and may be said to have taken place on a particular date, if there is a proclamation or other public declaration of such taking over. (2) But the taking over full sovereign powers may be spread over a number of years, as a result of a historical process. (3) Sovereign power, including the right to legislate for that territory and to administer it, may be acquired without the territory itself merging in the new State, as illustrated in the case of Dattatraya Krishna Rao Kane vs Secretary of State for India in Council [(1930) L.R. 57 I.A. 318]. (4) Where the territory has not become a part of the State the necessary authority to legislate in respect of that territory may be obtained by a legislation of the nature of Foreign Jurisdiction Act. (5) As an act of State derives its authority not from a municipal law but from ultra legal or supra legal means, Municipal Courts have no power to examine the propriety or legality of an act which comes within the ambit of 'Act of State. ' (1) 32 U.S. at pp. 86 87. (2) [1962] 1 Supp. S.C.R. 405. 510 (6) Whether the Act of State has reference to public rights or to private rights, the result is the same, namely, that it is beyond the jurisdiction of Municipal Courts to investigate the rights and wrongs of the transaction and to pronounce upon them and, that therefore, such a Court cannot enforce its decisions, if any. It may be that the presumption is that the pre existing laws of the newly acquired territory continue, and that according to ordinary principles of International Law private property of the citizens is respected by the new sovereign, but Municipal Courts have no jurisdiction to enforce such international obligations. (7) Similarly, by virtue of the treaty by which the new territory has been acquired it may have been stipulated that the pre cession rights of old inhabitants shall be respected, but such stipulations cannot be enforced by individual citizens because they are no parties to those stipulations. The Municipal Courts recognised by the new sovereign have the power and the jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise. (9) Such an agreement or recognition may be either express or may be implied from circum stances and evidence appearing from the mode of dealing with those rights by the new sovereign. Hence, the Municipal Courts have the jurisdiction to find out whether the new sovereign has or has not recognised or acknow ledged the rights in question, either expressly or by implication, as aforesaid. (10) In any controversy as to the existence of the right claimed against the new sovereign, the burden of proof lies on the claimant to establish that the new sovereign had recognised or acknowledged the right in question. " 511 We consider this summary succinctly expressed the rule to be applied in this country as regards the, enforceability against the Governments in India of private rights originat ing in executive or administrative orders of the former Indian rulers. The next matter to be considered is the correctness of the view expressed by the High Court, that even though the treaty be an Act of State, and the merger agreement executed by the ruler a document on which no rights enforceable in municipal courts could be based, still cl. (7) of the letter of Shri V. P. Menon dated October 1, 1948 could be referred to and relied upon for founding an argument that the Government waived their right to repudiate the grant made by the previous ruler. We consider that the submission of the learned Attorney General that the learned Judges were in error in this respect is well founded. If the treaty or its provisions cannot be looked at to spell out any right. as the learned Judges themselves conceded. the use to which they have put the provisions of cl. (7) that the Government would not re examine grants made earlier than April 1, 1948, is virtually the same though called by another name. We can see no sensible distinction between reliance on the provisions of the treaty as pointing to a recognition by the Government of rights claimed and reliance on it for the pur pose of establishing that Government had waived their right not to recognise such rights. In substance, they are the same though the nomenclature employed is different. In support of the reasoning on which this distinction was accepted the learned Judges have placed reliance on the approach to this question in Virendra Singh 's case(1). We have discussed this matter fully in the earlier part of this judgment and there is no need to repeat it. The learned Judges have further referred to and relied on a decision of this Court in Bholanath vs The State of Saurashtra(2) and certain observations contained in it. We do not agree that the observations in the decision, though couched somewhat widely could properly be understood in the manner in which the learned Judges have done. The question that arose in the case was whether the condition of service of a person (1) ; (2) A. I. R. 512 originally employed as an officer of one State continued to govern his services after that State became merged in the Government of Saurashtra. The condition of service in controversy was as to the age at which an officer had to retire on superannuation. By an enactment of the ruler of Wadhwan State this was, in the case of officers like the appellant before this Court, fixed at 60. An order by the Government of Saurashtra retiring him after he reached the age of 55 against his will, gave rise to the suit from which the proceedings before this Court arose. There was contro versy in the Courts below as to whether the law embodying the service conditions was competently enacted by the Wadhwan State. But this contention was not persisted in this court, and the court recorded a finding that the terms of service of the appellant were regulated by a law which was competently enacted and that the law was continued by article 372 in the Saurashtra State. On that finding there could really be no defence to the appellant 's claim. The decision in favour of the appellant was rested on the ground that the law of the Wadhwan State was continued by express provisions contained, first, in statutes of the Saurashtra State and, again, by article 372 of the Constitution when the latter merged in the Dominion of India. On this it followed that without a valid change in the law the rights of the appellant could not be restricted. In stating this position, however, the following words were used: "The Covenant (between the ruler of the Wadhwan State and the State of Saurashtra) could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign. " We do not understand this passage to mean that the covenant which under article 363 could itself not be looked at for founding any right, could be used indirectly for inferring that rights were recognised, without anything more. The true position appears to us to be that where the new sove reign assumes jurisdiction and it does some Act and there is ambiguity as to whether the same amounts to a recognition of a pre existing right or not, the covenant and the treaty might be looked at in order to ascertain the intention and purpose of that equivocal act, but beyond this the cove 513 nant and the treaty cannot by themselves be used either as a recognition pure and simple or, as the learned Judges of the High Court have held, as waiver of a right to repudiate the pre existing rights. It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign, there is no question of a waiver of the right to repudiate. The expression 'right to repudiate ' in this con text is a misnomer and there could be no question of a waiver of such right. This, however, does not conclude the matter, for we have still to deal with the question whether the grant by the ruler of the Sant State which was embodied in a 'resolution ' of his was a "law" or was merely an executive or administra tive order. Learned Counsel for the respondent submitted to us that the grant under the Tharav No. 371 dated March 12, 1948 was not a grant by executive power but was in truth and substance a law which was continued by article 372 of the Constitution and which, therefore, could be undone only by legislation and not by any executive fiat as has been done in the present case and in this connection relied strongly on the decisions of this Court in Madhaorao Phalke vs The State of Madhya Bharat(1) and in Promod Chandra Deb and Ors. vs The State of Orissa and Ors. Both in the trial Court as well as before the High Court the cases had proceeded on the footing that the ruler of the Sant State was an absolute monarch with no constitutional limitations upon his authority, and it was not suggested that this was incorrect. He was the supreme legislature as well as the supreme head of the executive so that his orders however issued would be effective and would govern and regulate the affairs of the State including the rights of the citizens; (vide Ameer un nissa Begum vs Mahboob Begum(3) and Director of Endowments, Government of Hyderabad vs A kram Ali(4) We should, however, hasten to point out that though in the case of such absolute monarchs the distinction between the administrative action under their executive power and laws passed by them as the supreme legislature (1) ; (2) [1962] 1 Supp. S.C.R. 405. (3) A.I.R. 1955 S.C. 352. (4) A.I.R. 1956 S.C. 60. 134 159 section C. 33. 514 of the State, possess no deference as regards their effectiveness, still the distinction between the two is of vital importance for the purpose of determining their continued efficacy after the coming into force of the Constitution. Under article 372 of the Constitution "all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority". The expression "existing law" is defined in article 366(10): "Existing law means any law, Ordinance, Order bye law, rule or regulation passed or made before the commencement of this Constitution by any legislature, authority or person having power to make such a law, Ordinance, Order, bye law, rule or regulation. " This definition would include only laws passed by a competent authority as well as rules, bye laws and regulations made by virtue of statutory power. It would therefore not include administrative orders which are traceable not to any law made by the Legislature but derive their force from executive authority and made either for the convenience of the administration or for the benefit of individuals, though the power to make laws as well as these orders was vested in the same authority the absolute ruler. What survives the Constitution and is continued by article 372 are those laws which could trace their origin to the exercise of legislative power. The problem next is to discover that which is "law" from that which is merely an executive order and this is by no means an easy one to solve. In the case of some States where there are rules which prescribe particular forms which the laws have to or generally take or where laws as distinguished from executive orders are issued bearing a defined nomenclature, there is not much difficulty. But the cases which have come up before this Court have shown that this is by no means the universal rule. In the case of the Sant State with which we are concerned it was not suggested that there was any particular formality or process 515 which had to be observed in the promulgation of laws or any particular form which laws had to take or took or that they went by any particular nomenclature to distinguish them from executive or administrative orders. We have, therefore, to consider whether from the nature of 'the instrument its contents and its general effect whether the Tharav dated March 12, 1948 constitutes a law within article 366(10) and is therefore continued by article 372 or whether it is merely an executive grant or administrative order which might confer rights but which without recognition by the Union or State Government cannot be enforced in the municipal courts of this country. We shall therefore proceed to consider the terms of the Tharav and for this purpose it would be convenient to set it out in full. It is headed 'Tharav Order ' by Maharana, Santrampur State, dated March 12, 1948. It was explained to us that the expression of 'Tharav ' meant a resolution. The text of this resolution or order by the Maharana is as follows "The Jivak, Patavat Inami, Chakariyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests. Hence after considering the complaints of certain Jagirs, they are being given full rights and authority over the forests in the villages under their vahivat. So, they should manage the vahivat of the forest according to the policy and administration of the State. Orders in this regard to be issued. Sd/ in English Maharana, Santrampur State. " There are a few matters to which it is necessary to advert in this document : The first of them is that it is not a grant to any individual, that is, treating him as an individual or as one of a number of individuals or to a group 516 treating them merely as separate individuals, but to the holders of five specified tenures in the State Jivak, Patavat, Inami, Chakariyat and Dharmada villages. Next, it states that the rights in the forests of the villages of the several kinds of tenure holders are being given to them in response to the representations made in regard to the villages in the possession and enjoyment of the Jagirdars as regards this matter. Lastly, the tenure holders were directed to manage and administer the forest according to the policy and administration of the State. The learned Judges of the High Court have treated the 'Tharav ' as merely an administrative order treating it as if consisted of as many grants of forest rights to the tenure holders as there were such holders and this was the view that was stressed upon us strongly by the, learned Attorney General. We are, however, not impressed by this argument. We have no evidence as regards the creation of the several tenures referred (to in the Tharav to base any conclusion as flowing from the original grant. No doubt, there is on record the translation of the rant of the village of Gothimada dated 1867, but from this it does not follow that everyone of the grants comprised in the ' five tenures specified was of this pattern, We consider that the 'Tharav ' is more consistent with its being a law effecting an alteration in the tenures of the five classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been ranted to them. In this light, the 'Tharav ' would not be an administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and content of the tenures referred to. This aspect is reinforced by the reference to the complaints of the tenure holders whose grievance apparently was that though villages had been granted to them for their enjoyment under the several tenures, they were not permitted any rights in the forests within their villages. It was not thus a case of an individual grant but the yielding by the ruler to the claims of these large group of Jagirdars who requested that their rights should be extended. Lastly, the manner of the enjoyment was specified as having to be in accordance with the policy and administration in the 517 State. It is obvious that there must have been some rules which have the force of law as regards the administration of these forests and the enjoyment by the Jagirdars was made subject to the observance of these laws. We, therefore, consider that the 'Tharav ' dated March 12, 1948 satisfies the requirement of a "law" within article 366(10), and in consequence, the executive orders of the Government of Bombay by which the forest rights of the plaintiffs were sought to be denied were illegal and void. The result is that we agree with the learned Judges that the plaintiffs were entitled to succeed, though for different reasons, and we direct that the appeals should be dismissed. The appellant will pay the costs of the respondents one set of hearing fees. SUBBA RAO J. I have had the advantage of going through the judgment of my learned brother, Rajagopala Ayyangar J. I agree with him that exhibit 192 is law and that it continued in force after the making of the Constitution. This conclusion would be enough to dispose of the appeals. But, Rajagopala Ayyangar J., further expressed his disagreement with the unanimous view propounded by this Court in Virendra Singh vs The State of Uttar Pradesh(1). As I regret my inability to share his view, I shall state the reasons for my agreement with the decision in Virendra Singh 's case. As the question raised is common to all the appeals, it is enough if I take up Civil Appeal No. 182 of 1963 for consideration. The facts necessary to appreciate the alternative contention may now be briefly stated. In the year 1947, the then ruler of the Sant State made a grant of the village Gotimada to the predecessor in interest of Thakor Sardarsingh Gajesing. On August 15, 1947, India obtained independence. Under section 7 of the Indian Indepen dence Act, 1947, the suzerainty of the British Crown over the Indian States lapsed, with the result the Sant State became a full sovereign State. On March 12, 1948, the Maharana (1) ; 518 of Sant State issued an order conferring full rights over forests to the holders of villages in the State, which included the said Gotimada village. On March 19, 1948, there was an agreement, described as the Merger Agreement entered into between the Maharana of Sant State and the Dominion Government of India where under the Maharana ceded to the Dominion Government full exclusive authority, jurisdiction and power for and in relation to the governance of the Sant State and agreed to transfer the administration of the Sant State to the Dominion Government on June 10, 1948. It was also agreed that as from June 10, 1948, the Dominion Government would be competent to exercise full and exclusive authority, jurisdiction and powers for and in relation to the Governance of the Sant State in such manner and through such agency as it might think fit. Under the other articles of the said agreement certain personal rights and privileges of the Maharana were preserved. After the merger, under section 3 of the Extra Provincial Jurisdiction Act, 1947, the Government of India delegated the administration of the Sant State to the State of Bombay. From October 1, 1949, under the States ' Merger (Governor 's Provinces) Order 1949, the said State became part of the State of Bombay; that is to say, from June 10, 1948 to October 1, 1949 the Bombay State administered the Sant State as a delegates of the Dominion of India, and thereafter the State became merged with the State of Bombay. The Sant State, therefore, became part of the Dominion of India on June 10, 1948 and thereafter the citizens of that State became, the citizens of the Dominion of India. On August 21, 1948 the respondent entered into a contract with Thakor Sardarsing Gajesing for cutting of the trees in the forest of village Gotimada. On October 1, 1948 i.e., 4 months after the merger and more than a month after the said contract, Shri V. P. Menon, Secretary to the Government of India, Ministry of States, wrote a letter to the Maharana of Sant State expressly declaring that no order passed or action taken by the Maharana before the date of making over the administration to the Dominion Government would be questioned unless the order was passed or action taken after the 1st day of April 1948, and if considered by the Government of India to be palpably unjust or unreasonable. By that letter it was also guaranteed that, 519 among others, "the enjoyment of ownership" of jagirs, grants etc., existing on April 1, 1948 would be respected. A combined reading of the paragraphs of this letter makes it clear that the Dominion of India declared in clear and unambiguous terms that no grants made or orders issued by the Maharana before April 1, 1948 would be questioned by it. It may be mentioned that in the last paragraph of this letter it was stated that the contents of the letter would be regarded as part of the Merger Agreement entered into by the Maharana with the Governor General of India. It may be recalled that this letter was written months after the merger and after the citizens of the extinct State became the citizens of the absorbing State. The effect of the last paragraph of the said letter will be considered in due course. On July 8, 1949 the Government of Bombay sent a communication to the Commissioner, Northern Division, stating that the Government considered that the order passed by the ruler of Sant State on March 12, 1948 transferring forest rights to all the Jagirdars of the Jagir villages was mala fide and that it should be cancelled. It was suggested that the Commissioner should do some other preliminary acts before taking further action in the matter. It would be seen from this communication that the order was not actually cancelled, but there was some correspondence in respect of that matter and that it was not even communicated to the jagirdars. There was obstruction by the forest officers when the contractor was cutting the trees, but after some correspondence he was permitted to cut the trees, on an undertaking that he would abide by the decision of the Government. On February 6, 1963 the Government of Bombay passed a resolution after receiving a report from the Forest Settlement Officer specially appointed by it to investigate the rights of jagirdars. It was stated in the resolution )that the Tharav issued by the ruler of Sant State in 1948 was mala fide and, therefore, not binding on the Government. Thereafter, it scrutinized the claims of jagirdars to forests in 74 villages in the erstwhile Sant State and recognized their rights in some of the villages. So far as Gotimada village. is concerned, it was stated that the question of forest rights in the said village was still under the 520 consideration of the Government and necessary orders in that behalf would be issued in due course. It is clear that till 1953 the Government did not refuse to recognize the title of the Jagirdars to forests; indeed, in the case of Gotimada village no final order was made even on that date. On these facts, the question that arises is whether the respondent would be entitled to a permanent injunction issued by the High Court restraining the appellant from interfering with his right to cut trees in Gotimada village. The argument of the learned Attorney General, so far as it is relevant to the question which I propose to deal with, runs as follows : After the merger of the Sant State with the Dominion of India the jagirdar had nO title to the forests against the Dominion of India unless it recognized such a right, and that, as in the instant case the said Government did not recognize such a right, he or his assignees could not maintain any action against the State on the basis of his title to the said forests. He conceded that on the basis of the finding of the High Court that the Dominion of India did not repudiate the title of the jagirdar to the forests till after the Constitution came into force, the decision of this Court in Virendra Singh vs The State of Uttar Pradesh(1) is against him. But he, contended that it was not correctly decided and indeed its binding force was weakened by later decisions of this Court. As the correctness of the decision in Virendra Singh 's case(1) is questioned, it is necessary to consider the scope of that decision in some detail and also to ascertain whether later decisions of this Court had in any way weakened its authority. The facts in that case were as follows. The petitioners in that case were granted in January, 1948,Jagirs and Muafis by the Ruler of Sarila State in one village and by the Ruler of Charkhari State in three villages. In March, 1948, a Union of 35 States, including the States of Sarila and Charkhari. was formed into the United States of Vindhya Pradesh. The Vindhya Pradesh Government confirmed these grants in December, 1948, when its Revenue Officers interfered with them questioning their validity. The integration of the States however did not work well and the same 35 Rulers entered into an (1) ; 521 agreement in December 1949, and dissolve the newly created State as from January 1, 1950, each Ruler acceding to the Government of India all authority and jurisdiction in relation to the Government of that State. After the Constitution came into force, the Government of Uttar Pradesh in consultation with the Government of India revoked the grant of Jagirs and Muafis in four of the villages. On an application filed by the petitioners under article 32(2) of the Constitution, this Court issued a writ against the State. From the said facts it would be seen that the grants were made to the petitioners before the merger, and it was held that the Government had no right to revoke the said grants after the Constitution came into force. Bose J., speaking for the Court, elaborately considered the doctrine of "Act of State" in the light of English and American decisions and the opinions of jurists of International Law and came to the following conclusion : "We think it is clear on a review of these authorities that whichever view be taken, that of the Privy Council and the House of Lords, or that of Chief Justice Marshall, these petitioners, who were in de facto possession of the disputed lands, had rights in them which they could have enforced up to 26th January, 1950, in the Dominion Courts against Fill persons except possibly the Rulers who granted the land and except possibly the State. We do not by any means intend to suggest that they would not have enforced them against the Rulers and the Dominion of India as well, but for reasons which we shall presently disclose it is not necessary to enter into that particular controversy. It is enough for the purpose of this case to hold that the petitioners had. , at any rate, the rights defined above. " Pausing here it will be noticed that this Court did not express a final opinion on the question whether the petitioners could have enforced their title to the property against the Rulers before the Constitution came into force. but it had definitely held that the petitioners had title to the property against all 522 persons except the Rulers. On the basis of that finding, Bose J., proceeded to consider the impact of the Constitution on the said finding. The learned Judge observed: "But however that may be, there is no question of conquest or cession here. The new Republic was. born on 26th January, 1950, and all derived their rights of citizenship from the same source, and from the same moment of time; so also, at. the same instant and for the same reason, all territory within its boundaries became the territory of India. There is, as it were from the point of view of the new State, Unity of Possession, Unity of Interest, Unity of Title and Unity of Time." Then the learned Judge proceeded to state: "All the citizens of India, whether residing in States or Provinces, will enjoy the same fundamental rights and the same legal remedies to enforce them." This decision struck a new and refreshing note. It pleaded for a departure from imperialistic traditions and to adopt the American traditions, which are in consonance with the realities of the situation created by our Constitution. It gave new orientation to the doctrine of the act of State to reflect the modern liberal thought embodied in our Consti tution. It held that citizens of a ceding State have a title to their property against all except possibly the ruler. Though it inclined to go further and hold that the change of sovereignty does not affect the title of the citizens of the ceding State even against the new sovereign, it did not think fit to decide that question finally, as it found ample justification to sustain the title of the petitioners therein against the sovereign under our Constitution. It pointed out that the concept of ceding and absorbing States is foreign to our Constitution and that all the people of India, to whichever part of the country they might have belonged, through their representatives, framed the Constitution recognizing the fundamental rights of a citizen to hold property and not to be deprived of it save by authority of law. In that view it 523 held that the title of the petitioners in ,hat case to their Property was protected by the Constitution. This is a unanimous and considered decision of five learned Judges of this Court. I shall not obviously differ from this view unless there are compelling reasons to do so. I find none. I shall now proceed to consider whether the subsequent decisions of this Court threw any doubt on the correctness of the decision in regard to the following two aspects on which it had given a firm decision: (1) The citizen of a ceding State does not lose his title to immovable property but continues to have a right thereto against all except possibly the absorbing State; and (2) on the making of the Constitution, his title thereto became indefeasible even against the absorbing State. Where a company entered into an agreement, with the erstwhile State of Jind whereunder it had to pay income tax only at concessional rates, it was held in Mills. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(1) that, after the said State merged with the Union of India, the latter was not bound by the contractual obligations of the ceding State on the basis of the principle that the treaty between the two sovereigns was an act of State and the clauses of that treaty were not enforceable. In Jagannath Agarwala vs State of Orissa (2) it was held that after Mayurbhanj State had merged with the Province of Orissa the two money claims of the appellant against the Maharaja of Mayurbhanj State were not enforceable against the Orissa State on the ground that the Act of State did not come to an end till the claims made by the appellant were rejected and, therefore, municipal courts had no jurisdiction in the matter. Where the petitioners held Khor Posh grants from the Rulers of Talcher, Bamra and Kalahandi under the respective State laws it was held in Promod Chandra Deb vs The State of Orissa(3) that the laws continued to have legal force after the merger of the said States with the Union of India. Where the Nawab of Junagadh State made grants of property before he fled the State, it was held in (1) (2) ; (3) [1962] Supp. (1) S.C.R. 405. 524 State of Saurashtra vs Jamadar Mohamad Abdullah(1) that the cancellation of the said grants by the Regional Commissioner, who assumed charge of the administration of the State before the said State was integrated with the United States of Saurashtra, was an act of State. The question now raised did not arise for consideration in those cases. This Court accepted the English doctrine of Act of State and acted on the principle that till the right of an erstwhile citizen of a ceding State was recognized by the absorbing State, he has no enforceable right against the State. The scope and extent of the title to immovable property of a citizen of a ceding State was not examined in those decisions. Nor the impact of the Constitution on such rights was considered therein. In M/s. Dalimia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(1) the following observations are found at D. 741, which may have some bearing on the first aspect of the question: "It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign, and that as subjects of the new sovereign, they have only such rights as are granted or recognized by him." This observation is couched in wide terms. But this Court was not concerned in that case with the distinction between pre existing title of a citizen of a ceding State to his property against all and that against the State. Indeed, Bose J., in his dissenting judgment, made it clear that they were only concerned in that case with the contractual obligation of the erstwhile sovereign and that they were not dealing with the question of the title of the citizens to immovable property. That the judgment had also nothing to do with the second aspect was made clear by the following observations of Venkatarama Aiyar J., who expressed the majority view, at p. 749: "This argument assumes that there were in existence at the date when the Constitution came into (1) (2) 525 force, some rights in the petitioner which are capable of being protected by article 19(1)(f). But in the view which we have taken that the concessions under cl. (23) of exhibit A came to an end when Ordinance No. 1 of section 2005 was promulgated, the petitioner had no rights sub sisting on the date of the Constitution and therefore there was nothing on which the guarantees enacted in article 19(1) (f) could operate. " These observations indicate that this Court did not go back on the decision in Virendra Singh 's case(1) indeed, it re jected the argument based on that decision on the ground that the appellant lost his rights if any, under a pre Constitutional valid Ordinance. In State of Saurashtra vs Jamadar Mohamad Abdulla(2), Mudholkar J., speaking for himself and for Sarkar J., expressed the view on the question of impact of section 299(1) of the Constitution Act of 1935 on the title to immovable property of a citizen of a ceding State thus, at p. 1001: ". before the respondents could claim the benefit of section 299(1) of the Constitution Act, 1935, they had to establish that on November 9, 1947, or thereafter they possessed legally enforceable rights with respect to the properties in question as against the Dominion of India. They could establish this only by showing that their pre existing rights, such as they were recognized by the Dominion of India. If they could not establish this fact, then it must be held that they did not possess any legally enforceable rights against the Dominion of India, and, therefore, section 299(1) of the Constitution Act, 1935, avails them nothing. As already stated section 299(1) did not enlarge anyone 's right to property but only protected the one which a person already had. Any right to property which in its very nature is not legally enforceable was clearly incapable of being protected by that section." (1) ; , 433, 4. (2) (1962] 3 S.C.R. 970. 526 The same view was restated by the learned Judge in Promod Chandra Deb vs The State of Orissa(1). It may be stated that the said question did not arise for consideration in either of those two decisions, for in the former the cancel lation of the order issued by the Ruler of the ceding State was made before the merger and in the latter, the Court held that the laws whereunder the grants were made continued to have legal force after the merger of the concerned States with the Dominion of India. It may be pointed out that Das J., in the earlier decision and Sinha C.J., in the later decision, who delivered the leading judgments in those cases, had specifically left open that question. It may, therefore, be stated without contradiction that in none of the decisions of this Court that were given subsequent to Virendra Singh 's case(2) the correctness of that decision was doubted. Indeed, in the latest two decisions, the principle was sought to be extended to a situation arising under the Government of India Act. but the majority of the learned Judges left open the question, though two of the learned Judges constituting the Bench expressed their view against such an extension. On the findings, I have accept ed, the said question does not arise for consideration in this case and I do not propose to express my opinion thereon. If that be the position. is there any justification for this Court to refuse to follow the decision in Virendra Singh 's case(1). In my View, the said decision is not only correct, but is also in accord with the progressive trend of modern international law. After all, an act of State is an arbitrary act not based on law, but on the modern version of "might is right". It is an act outside the law. In the primitive society when a tribe conquered another tribe, the properties of the vanquished were at the mercy of the conqueror. The successful army used to pillage, plunder and commit acts of arson and rape. When society progressed, the doctrine of Act of State was evolved. which really was a civilized version of the primitive acts of pillage and plunder of the properties of the conquered tribe. But the further progress of civilization brought about by custom and agreement factual recognition of pre existing rights of the people of the conquered State. There were two different lines of (1) [1962] Supp. 1 S.C.R. 405. (2) ; 527 approach one adopted by imperialistic nations and the other by others who were not. That divergence was reflected in English and American Courts. All the jurists of internatio nal law recognise the continuity of title to immovable property of the erstwhile citizens of ceding State after the sovereignty changed over to the absorbing State. In A Manual of International Law by Georg Schwargenberger, 4th Edn., Vol. 1, at p. 81 the learned author says: "Private rights acquired under the law of the ceding State are not automatically affected by the cession. They must be respected by the cessionary State. " A more emphatic statement is found in The Law of State Succession by O 'Connell. Under the heading "The Doctrine of Acquired Rights" the learned author points out, at pp. 78 79: ". . only sovereignty and its incidents expired with the personality of a State. The relationships of the inhabitants one to another, and their rights of property were recognized to remain undisturbed. " He observes at p. 104: The doctrine of acquired rights is perhaps one of the few principles firmly established in the law of State succession, and the one which admits of least dispute." In Hyde 's International Law, second revised edition, Vol. 1, at p. 433, the following extract from the Sixth Advisory Opinion of September 10, 1923 of the Court of International Justice is quoted: "Private rights acquired under existing law do not cease on a change of sovereignty. No one denies that the German Civil Law, both subs tantive and adjective, has continued without interruption to operate in the territory in question. It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice. " 528 In Oppenheim 's International Law, 8th edition, Vol. 1 the same legal position is re stated at p. 571 thus: "It must be specially mentioned that, as far as the law of Nations is concerned, the subjugating State does not acquire the private property of the inhabitants of the annexed territory. Being now their sovereign, it may indeed impose any burdens it pleases on its new subjects it may even confiscate their private property, since a sovereign State can do what it likes with its subjects; but subjugation itself does not by International Law affect private property. " Starke in his book, An Introduction to International Law, 5th edn., observes, at p. 274: "Such of these rights as have crystallised into vested or acquired rights must be respected by the successor State, more especially where the former municipal law of the predecessor State has continued to operate, as though to guarantee the sanctity of the rights. " Much to the same effect the relevant statement of inter national law is found in Briggs ' The Law of Nations, 2nd edn. It may, therefore, be held that so far as title to im movable property is concerned the doctrine of international law has become crystallised and thereunder the change of sovereignty does not affect the title of the erstwhile citizens of the ceding State to their property. In America the said principle of International Law has been accepted without any qualification. Chief Justice John Marshall of the United States Supreme Court has succinctly stated the American legal position in United States vs Percheman (1) thus: "The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be (1) ; at 86, 87. 529 the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?. . A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The King cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could so understand the cession. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another. conveying the compound idea of surrendering, at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sove reignty only, and not to interfere with private property. " This principle has been accepted and followed by the American Courts in other decisions. But it is said that the view of the American Courts is really based upon the circumstance that international treaties are part of the supreme law of the land. Article VI of the Constitution of the United States declares that all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Chief Justice Marshall in Foster vs Neilson(1) said: "Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." A treaty in America may be deemed to be a law of the land; but the American view is not solely based on treaties. (1) ; 134 159 S.C. 34. 530 In The American Insurance Co. and the Ocean Insurance Co. vs Bales of Cotton(1), Chief Justice Marshall clearly recorded the view of the American Courts thus: "On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. " Again the learned Chief Justice in Charles Dehault vs The United States(2) expressly pointed out the existence of the said rights apart from any treaty. He observed: "Independent of treaty stipulations, this right would be held sacred. The sovereign who acquires an inhabited territory acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property." Therefore, the distinction sought to be made may perhaps have some relevance, if in a particular treaty there. is a specific term that the United States shall recognize the acquired rights of a citizen of a ceding State, but none if the treaty does not contain such a covenant. The American decisions, therefore, cannot be distinguished on this narrow ground; they have recognized the doctrine of International Law and inter woven it in the texture of the American municipal law. The Courts in England have developed the doctrine of act of State which, in the words of Stephen, means "An act injurious to the person or property of some person who is not at the time of that act a subject of Her Majesty; which act is done by a representative of Her Majesty 's authority, and is either sanctioned or subsequently ratified by Her Majesty. " A treaty whereunder a sovereign territory is ceded is held to be an act of State, for it is not done under colour of any title but in exercise of a sovereign power. Has the law of England denied the doctrine of acquired rights so well settled in International Law? (1) (2) , 131. 531 In Vajesingji Joravarsingji vs Secretary of State for India in Council(1), the Judicial Committee summarized the law on the subject thus: "When a territory is acquired by a sovereign State for the first time that is an act of State. Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties. . ". The sentence in the said passage, namely, "such rights as he had under the rule of predecessors avail him nothing", cannot be, in the context in which it appears, interpreted as a denial of the doctrine of acquired rights evolved by International ]Law, but it only refers to the question of enforceability of such an acquired right in a municipal court. The same view has been expressed in a number of English decision. Therefore, the law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding State against the absorbing State unless the said State has recognized or acknowledged their title. This Court accepted the English. doctrine of act of State in a series of decisions noticed by me earlier. What does the word "recognize" signify? It means "to admit, to acknowledge, something existing before." By recognition the absorbing State does not create or confer a new title, but only confirms a pre existing one. It follows that till the title Is recognized by the absorbing State, it is not binding on that State. An exhaustive exposition of this branch of law is found in Promad Chandra Dab 's case(2). I am bound by that decision. O 'Connell in The Law of State Succession (1) 51 I.A. 357. (2) [1962] Supp. (1) S.C.R. 405. 532 brings out the impact of the doctrine of act of State on that of acquired rights under International Law, at p. 88, thus: "The doctrine of act of State is one of English municipal law. It merely denies an English Court jurisdiction to inquire into the consequences of Acts of the British Government which are inseparable from the extension of its sovereignty. The court is not entitled to ask if such acts are 'just or unjust, politic or impolitic ' or what legal rights and duties have been carried over in the change of sovereignty. The doctrine is not intended, however, to deny a rule of International Law. " In the words of the same author, the fact that a right can not be enforced does not mean that it does not exist. Non recognition by the absorbing State does not divest title, but only makes it unenforceable against the State in municipal courts. The result of the discussion may be summarized thus: the doctrine of acquired rights, at any rate in regard to immovable property, has become crystallized in International Law. Under the said law the title of a citizen of a ceding State is preserved and not lost by cession. The change of sovereignty does not affect his title. The municipal law of different countries vary in the matter of its enforceability against the State. As the title exists. it must be held that even in those countries, which accepted the doctrine of act of State and the right of a sovereign to repudiate the title, the title is good against all except the State. Before the Constitution came into force the State did not repudiate the title. When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable property in the Sant State had a title to the said property and were in actual possession thereof. They had title to the property except against the State and they had, at any rate, possessory title therein. The Constitution in article 31(1) declares that no person shall be deprived of his property save by authority of law. That is, the Constitution recognized the title of the citizens of the erstwhile State of Sant, and issued an injunction against the 533 soveriegn created by it not to interfere with that right except in accordance with law. A recognition by the supreme law of the land must be in a higher position than that of an executive authority of a conquering State. I would, therefore, hold that the title to immovable property of the respondent was recognized by the Constitution itself and therefore, necessarily by the sovereign which is bound by it. 1, therefore, respectfully hold that Virendra Singh 's case(1) has been correctly decided. Apart from the recognition of the title of the respondent by the Constitution, in this case the letter written by the Government of India, dated October 1, 1948, clearly recognized the title of persons situated in the position of the respondent to their properties. But the learned AttorneyGeneral contends that the letter shall be regarded as part of the merger agreement and therefore its terms cannot be relied upon for the purpose of recognition of the respondent 's title or of evidence of the Govemment 's waiver of its right to repudiate the respondent 's title. It is true that in the concluding portion of the letter it is stated that the contents of the letter will be regarded as part of the merger agreement. But the merger had already taken place on June 10. 1948 and this letter was written on October 1, 1948. It does not appear from that letter that the Maharana of Sant State, who ceased to be the Ruler except in name for certain privileges, was a party to it. This letter, therefore, can at best be treated as one of the acts of the Government of India implementing the terms of the merger agreement. It cannot, therefore, be said to be a part of the merger agreement. If it was not, by calling it so it did not become one. At the time the letter was sent all the citizens of the erstwhile Sant State had become the citizens of India. The letter contains a clear statement in paragraphs 5 and 7 thereof that enjoyment of ownership of jagirs, grant etc. existing on April 1, 1948 were guaranteed and that any order passed or action taken by the Ruler before the said date would not be questioned. This is a clear recognition of the property rights of the respondent and similar others. It is necessary, therefore, to express my opinion on the ques (1) ; 534 tion whether, even if the said letter formed part of the merger agreement, any recital therein can be relied upon as evidence of recognition of pre existing titles by the absorbing State or waiver of its sovereign right to repudiate the said titles. For the aforesaid reasons I agree that the appeal should be dismissed with costs. For the same reasons Civil Appeals No. 183 to 186 of 1963 are also dismissed with costs. HIDAYATULLAH J. These appeals by the State of Gujarat impugn a common judgment of the High Court of Gujarat dated January 24, 1961. The respondents were plaintiffs in five suits for declaration of rights in forests and for permanent injunction against interference with those rights by the State. All suits except one were dismissed by the Court of first instance. The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits. The plaintiffs then appealed to the High Court and by the judgment under appeal, all appeals were allowed and the suits were decreed. The State Government has now appealed to this court by special leave. The forests in respect of which the declaration and injunction were sought are situated in the former State of Santrampur (also called Sant State). Santrampur Was an Indian State and the Ruler attained independence and sovereignty on August 15, 1947 on the ceasing of the para mountcy of the British Crown. The Ruler at first ceded his sovereignty on three subjects to the Government. of India but on March 19, 1948, ceded the territory of the State to the Government of India by an agreement which came into force from June 10, 1948. The Central Government, by virtue of powers vested in it by the Extra Provincial Jurisdiction Act, 1947, delegated its functions to the Provincial Government of Bombay and on June 2, 1948, the Administration of the Indian States Order was passed and it was applied to Sant State from June 10, 1948. On July 28, 1948, the Indian States (Application of Laws) Order, 1948 535 was passed. Certain enactments in force in the Province of Bombay were extended to Sant State and then under the States ' Merger (Governor 's Provinces) Order, 1949, Sant State became a part of the Province of Bombay from August 1, 1949. On October 1, 1948, a letter of guarantee was written to the Ruler by Mr. V. P. Menon in which it was stated. as follows: ". . 7. No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st day of April, 1948, and it is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in this respect will be final. " It was Added that the letter would be read as part of the original Merger agreement. A week before ceding the territories of his State, the Ruler of Sant made a Tharao or Thavan order as follows: "Order 3. Outward Register No. 371. The Jivak, Patayat, Inami, Chakariyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests. Hence after considering the complaints of certain Jagirs, they are being given full rights and authority over the forests in the villages under their vahivat. they should manage the vahivat of the forest according to the policy and ad ministration of the State. Orders in this regard to be issued. In English. Maharana, Sant State. " 536 The former grants which were made in favour of the jagirdars and holders of the villages have not been produced, but they were probably like the grant of village Gothimada dated December 1, 1857, which was to the following effect: ". . You have to do the vahivat (management) of the land situate within the permanent boundaries of the outskirts of the villages in four directions. This village has been granted for the appropriation and enjoyment of the income thereto except in respect of civil and criminal matters. So you must behave in the State in accordance with the custom and usage and practice of other Thakarati villages of the State. If any person of the village is ordered in regard to any work or matter then you should not in any way interfere therein but produce the said person as per order. You have to act and behave according to the said clauses and should remain with integrity and honesty and loyal to the State. Dated: 1 12.1867 A.D.S.Y. 1929 Magsar. Sudu 5. " After the Tharao was issued on March 12, 1948, some of the Thakores executed contracts in favour of the plaintiffs between May 1948 and 1950. The agreements which were made with the contractors are on the file of the appeals. The Thakores and the contractors then began to take forest produce but they were stopped in April 1949. The present five suits were then filed. Four of the suits were instituted by the contractors and the fifth by one of the Thakores in the capacity as inamdar. After merger, a question arose whether these contracts should be approved or not. On January 1949, on the application of one of the Thakores, an order was passed by the Divisional Forests Officer. It was as follows: 537 .lm15 "Gothimada village of santrampur State. Application of the owner requesting to grant authorization to the Contractor and states that he has no objection if the authorization is issued. Is the authorization up to Lunawada and Signally only, time limit up to 31 3 1949. No export outside to be permitted, pending receipt of orders from Government. Written undertaking to be taken from the purchaser that he will abide by the decision and orders passed by Government and then the authorization handed over. Send copy to F.O. Lunawada." Similar orders were passed in respect of other villages and undertakings were taken from the Thakores and the con tractors. A sample is quoted here "UNDERTAKING: I, Thakore Sardarsingh Gajesingh hereby give an undertaking to abide by the decision and or ers passed by the Government of Bombay in respect of Gothimada forests, rights over which were conferred on me by Santrampur State Government on 12 3 48 in their resolution No. G. 371 dated 12 3 48. Authorization Nos. 111, 112 of 1948 49, in respect of village in Santrampur State issued by the Divisional Forest Officer, Integrated States Division, Devgad Baria in favour of Mr. Hatimbhai Badruddin is subject to the above undertaking. Dated 1 2 49. in Gujarathi. " The Conservator of Forests, North Western Circle also issued a memorandum on January 18, 1949 stating: ". . However, to safeguard the Government interest written undertaking should be taken from the jahagirdars, Inamdars of person or persons. concerned that he or they would abide by the decision or orders passed by the Bombay Gov ernment in respect of such private forests, when the question of rights over such private forests is finally settled. " When the undertakings were furnished, passes were issued to the contractors. In April 1949, however, the work of all the contractors was stopped and on July 8, 1949, Government sent a communique to the Collector of Panch Mahals repudiating the Tharao of March 12, 1948. In this letter it was stated as follows: "Reference your memorandum No. ADM(P) 50 A11, dated 24th May, 1949, Government considers that the order passed by the Ruler of the Sant State under his No. 371, dated 12th March, 1948 transferring forest rights to all the jagirdars of the jagir village, are mala fide and that they should be cancelled. Before, however, taking further action in the matter, please ascertain whether the possession of the forests in question is with Government or has gone to the Jagirdars. If the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes, etc. to private contractors and purchasers. By order of the Governor of Bombay. Sd/ ". It appears that this was not communicated to the contractors of the Thakores. On June 29, 1951, the Government of Bombay passed a resolution that the Maharana 's order would not be given effect to. Another resolution was passed on February 6, 1953 as follows: "On the eve of the merger of the Sant State in the State of Bombay, the Ruler of that State issued Tharav No. 371 on 12th March, 1948, under which Jiwai, Patawat, Inami, Chakriat and Dhannada Jagirdars and inamdars were given full forest rights over the villages in their charge. The Government 539 of Bombay, after considering the implication of the Tharav, decided that the order was mala fide and cancelled it on 8th July, 1949 vide Government Letter, Revenue Department No. 2103 M 49 dated the 8th July, 1949. By the time these orders were issued, the tree growth in the Jagiri forests concerned was already sold by some of the Jagirdars and the trees cut. Further cutting of trees and export of trees cut was however stopped by the Forest Department after receipt of the orders of 8th July, 1949. On representation being made to Government, however, agreed to allow to release the material felled from the forest under dispute, pending decision on the settlement of forest rights, subject to the condition that the contractor furnished two sureties solvent for the material removed or deposited with the Divisional Forest Officer certain amount per wagon load of material. The owner of the material was also asked to give a written undertaking that he would abide by the ultimate decision of Government. . . . 5. Government is, however, pleased to examine individual cases of Jagirdars and inamdars irrespective of the Tharav of 1948, on the basis of the Forest Settlement Officer 's Report and other considerations. The question of forest rights in the following villages is still under consideration of Government and necessary orders in that behalf will be issued in due course: (1) Nanirath. (2) Gothimada. (3) Rathada. . . . " Before this the suits we are dealing with were filed. The contention of the plaintiffs was that the Merger agreement of March 1948 was not an Act of State, because it was preceded by surrender by the Ruler of sovereignty in respect of three subjects. This contention was not accepted in the High Court and has not been raised here. The next conten tion was that the Tharao or order of March 12, 1948 was a 540 legislative act and as all the old laws of the State were to continue to be in force except as modified by the Indian States (Application of Laws) Order, 1948, the Tharao could be revoked by the appellant by Legislative authority only and not by an executive act. The High Court did not accept this contention, because according to the High Court, the Tharao was not a piece of legislation, but was a rant by the Ruler. The third contention was that the Central Government through Mr. V. P. Menon has undertaken not to question any order or action taken before 1st April, 1948, and that this created a bar to the repudiation of the order of the Maharana dated March 12, 1948. This contention was not accepted by the High Court. The High Court held that the letter formed a part of an Agreement which could only be enforced by the High Contracting Parties, if at all, but not by any other person, and in any event, municipal courts had no authority to enforce the agreement. The High Court relied upon article 363 of the Constitution and the decisions of this Court. The High Court, however, accepted the contention of the plaintiffs, that it was open to the succeeding sovereign to waive or relinquish its right to repudiate the actions of the previous Ruler and to acknowledge either expressly or impliedly the rights conferred on the subjects of the previous Ruler and that this had been done in this case. They referred to the permission which had been given by the officers of the Forest Department to the plaintiffs in this suit to cut and carry away the timber and regarded the letter of Mr. V. P. Menon as evidence of waiver and relinquishment. They held on the authority of Virendra Singh and Others vs The State of Uttar Pradesh(1) and Bholanath J. Thakar vs State of Saurashtra (2) and the judgment of the Bombay High Court in Bhoirajji vs Saurashtra State(3) that the Government must, in these circumstances, be held to have waived or relinquished its rights to enforce the Act of State against the plaintiffs. On behalf of the appellant, it is urged (a) that the Act of State continued till the resolutions were passed and there (1) ; (2) A.I.R. (1954) S.C. 680 (3) 541 was no waiver or relinquishment in favour of the appellants, and (b) that the action of the subordinate officers of the Forest Department did not bind Government and the res pondents cannot take advantage of the letter of Mr. V. P. Menon. On behalf of the respondents, in addition to meeting the above arguments, it is contended that the Tharao was a law and could only be revoked by another law. It is further argued that after the Merger, section 299(1) of the Government of India Act, 1935 which read "No person shall be deprived of his property in British India save by authority of law" protected the respondents and this protection became absolute on January 26, 1950, by reason of article 31 of the Constitution. As the resolutions in question were passed after the commencement of the Constitution, it is urged that they cannot affect the rights of the respondents who came under the protection of article 31 of the Constitution. It is contended that in any case, the Act of State could not operate against the citizens of the State which the res pondents became on the Merger or on the inauguration of the Constitution. It is also argued on behalf of the res pondents on the authority of a case of the Permanent Court of International Justice and certain cases of the Supreme Court of the United States that the Act of State should not interfere with rights in property held from a former Ruler. The appellant contends in reply that the Act of State continued, because the contractors, and jagirdars were permitted to work the forests on their furnishing under takings, and it was only completed against them in April, 1949, when they were asked to stop their work even though the actual order of Government deciding whether to accept the Tharao or not was communicated to them in 1953. It is argued that what was of real consequence was not the decision of the Government but the stoppage of the work. It is also argued that section 299(1) did not protect the respon dents against the Act of State and that as there was no State succession on January 26, 1950, the original Act of State did not come to an end. It is also pointed out that this Court has not accepted the rule of International Law referred to in Virendra Singh 's case(1) and has instead acted on (1) ; 542 the doctrine of Act of State as interpreted by the Courts in England. I shall deal with these points in brief, because most of them have been decided against the respondents in the High Court on the basis of earlier rulings of this Court. To begin with, this Court has interpreted the integration of Indian States with the Dominion of India as an Act of State and has applied the law relating to an Act of State as laid down by the Privy Council in a long series of cases beginning with Secretary of State in Council for India vs Kamachee Boye Saheba(1) and ending with Secretary of State vs Sardar Rustam Khan and Other(2). The cases on this point need not be cited. Reference may be made to M/s. Dalmia Dadri Cement Co. Ltd. vs Commissioner of Income tax(3), The State of Saurashtra vs Menon Haji Ismali Haji(4), jaganath Agarwala vs State of Orissa(4) and State of Saurashtra vs Jamadar Mohamed Abdulla and Others(5). In these cases of this Court, it has been laid down that the essence of an Act of State is an arbitrary exercise of sovereign power on principles which are paramount to the Municipal Law, against an alien and the exercise of the power is neither intended nor purports to be legally founded. A defence that the injury is by an Act of State does not seek justification for the Act by reference to any law, but questions the jurisdiction of the court to decide upon the legality or justice of the action. The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens. It does not come to an end by any action of subordinate officers who have no authority to bind the new sovereign. Till recognition, either express or implied, is granted by the new sovereign, the Act of State continues. If we apply these tests (rightly applied in the High Court), we reach the result that the Government of Bombay and the Central Government could refuse to recognise the rights created on the eve of the Merger by the Tharao of the Maharana and to say that it was not acceptable to them and therefore not binding on them. Such action may be (1) ; (3) [1959] S.C.R. 729 (5) ; (2) (1941) 68 I.A. 109. (4) (1960] 1 S.C.R. 537. (6) 543 harsh or unfair; but the Municipal Courts cannot declare it to be so, because unless the rights are irrevocably recog nised earlier the Municipal Courts have no jurisdiction to pronounce upon the legality or the justness of the action. It is for this reason that the respondents pleaded in the High Court that there was a waiver or relinquishment of the Act of State in their favour. Relinquishment and waiver were again relied upon by the respondents before us and they refer to two circumstances from which an inference about waiver or relinquishment can be raised. The first is cl. 7 of the letter of Mr. V. P. Menon quoted above and the second is the conduct of the officers of the Forest Department in allowing the contractors and the jagirdars to work the forests in accordance with the Tharao of the Maharana. Cl. 7 of a similar letter of guarantee was considered by this Court in Maharaj Umeg Singh and Others vs The State of Bombay and Others(1). In that case also arguments were the same as here. It was then contended that the Ruler 's agreement with the Government ensured for the benefit of the subjects even if they were not parties to the agreement. It was then pointed out on behalf of the Government that the agreement, if any, could not be sought to be enforced by persons who were not parties to it. This Court observed: "We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple reason that the petitioners would be out of Court either way. If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under Article 363 of the Constitution which lays down that neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State and to which the Government of (1) ; 544 the Dominion of India. was a party. If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations. " It would, therefore, appear that the present respondents who were not parties to the Merger agreement or to the letter written by Mr. Menon which was made expressly a part of the Agreement cannot take advantage of cl. 7. If they were parties, article 363 would bar such a plea. It is next contended that the Act of State had come to an end after the Government of India Act, 1935 was applied to the State and the State became a part of the territories of the Government of India. This argument was raised to claim the benefit of section 299 (1) of the Government of India Act 1935. The interference with the rights in forests conferred by the Tharao and the agreements with the contractors based on the Tharao took, place in April, 1949. It was contended that on June 10, 1948, the subjects of Sant State became Indian citizens and they were protected by section 299(1). The Officers of the Forest Department did not unconditionally allow the forests to be worked. They made it clear to the contractors and the jagirdars that what they were doing was not final and that Government was going to decide about the Tharao and the contracts later. No doubt, the forests were allowed to be worked, but an undertaking was obtained from each contractor and jagirdar. This showed that the officers of the Forest Department did not attempt to bind the Government, even if they could. It is true that the order of Government to stop work was not communicated to the contractors and the jagirdars but the working of the forests was as a matter of fact stooped much earlier and the learned Attorney General is right in pointing out that it was all that mattered. This action of the officers was later approved by Government when it decided that it would not allow any rights to flow from the Tharao and the contracts. In other words, while Government was considering the matter, the officers of the Forest Department tentatively allowed the forests to be worked but in no manner to bring the Act of State to art end. The Act 545 of State could only come to an end if Government recognised the rights flowing from the Tharao. That, Government never did. There was thus no recognition of the Tharao or the rights flowing from it at any time. It was pointed out by this Court in Aggarwala 's case(1) that Government may take time to consider and delay does not militate against the Act of State. In that case also the decision of Government was taken after the coming into force of the Constitution. This Court pointed out, agreeing with Vaje Singhji jorawar Singh vs Secretary of State for India(2) that enquiries may continue for some time without any inference of waiver or relinquishment. No doubt, in Bholanath Thaker 's case(3) and in Virendra Singh 's case(4) waiver or relinquishment was inferred from the conduct of Government. Such an inference may legitimately be raised where Government, after having accepted the rights, attempts to go back upon such acceptance. There must, however, be a clear indication, either expressly or by implication, that Government has, in fact, accepted the rights. In the present case, the subordinate officers of the Forest Department allowed the forests to be worked, making it quite clear that Government was considering the matter and took undertakings from the respondents that they would abide by the decision of Government. Government passed an order declining to accept the Tharao. The order so passed was not communicated to the respondents but later it was reiterated as a resolution which was communicated. To avoid this result, there are two arguments upon which the respondents rely and they are the main contentions in these appeals. The respondents seek support for the judgment by challenging the decision on some of the points decided against them. The first is that the Tharao was a law which could only be rescinded by another law. In this connection, the respondents rely upon the observations made by this Court in Madhaorao Phalke vs The State of Madhya Bharat(5). These observations were based upon (1) ; (2) (1924) L. R. 51 I. A. 357. (3) A I.R. (4) ; (5) ; 964. 134 159 SC 35. 546 the earlier case in Ameer un nissa Begum and Others vs Mehboob Begum and Others(1). In these cases, it was pointed out that the distinction between legislative, executive and judicial acts of an absolute Ruler (such as the Indian Rulers were) was apt to disappear when the source of authority was the sovereign. These observations are sought to be applied here. In the past also these observations were invoked on occasion. In so far as the subjects of the Ruler were concerned, they were bound to obey not only laws but any orders of the Ruler, whether executive or judicial. For them they did not exist any difference because each emanation of the will of the sovereign required equal obedience from them. But it does not mean that the Ruler acted legislatively all the time and never judicially or executively. If this was the meaning of the observations of this Court, then in Phalke 's case(2) it would not have been necessary to insist that in determining whether there was a law which bound the succeeding sovereign, the character. content and purpose of the declared will must be independently considered. In Ameer un nissa 's case,(3) this Court was concerned. With a Firman of the Nizam and that was one of the accepted modes of making laws in Hyderabad State. In Phake 's case(2), this Court was concerned with Kalambandis which were held by this Court to be laws binding upon the subsequent Government unless repealed or replaced by other law. The Kalambandis were so regarded partly because the Maharana had himself laid down that Kalambandis issued by him were to be regarded as law, and partly because the Kalambandis created a tenure which carried with it pensions. The pensions were grants but the manner of enjoyment of the pensions was determined by the rules of tenure provided in the Kalambandis also bearing upon succession and devolution. These cases were distinguished in more recent cases when the observations were sought to be extended to others which were clearly not legislative and reference may be made to Maharaj shree Umaid Mills Ltd. vs Union of India and Others(3) and The Bengal Nagpur Cotton Ltd. vs The Board of Revenue, Madhya Pradesh and Others(4). It was pointed (1) A.T.R. (2) ; , 964. (3) A.T.R. (4) ; 547 out in these two cases that the observations in Ameer un nissa 's case(1) Phalke 's case(2) could not be read as indicating that everything that the Maharaja said or ordered was a law. In the latter case, this Court pointed out that a proper law would be one which was made in accordance with the traditional mode of making laws in the territory or in accordance with some procedure which was expressly devised for tile occasion. It was pointed out that law is the result of a legislative process and the result must be intended to bind as a rule of conduct; it must not for example be a contract or a grant or a gift etc. Viewed from this angle, it is quite obvious that the Tharao was not a law. It was a grant made to the jagirdars mentioned in the Tharao. It is contended that it is made applicable to persons belonging to five different tenures and that the 'management ' of the forests was to be done according to the policy and administration of the State. No doubt, the Tharao is applicable to a large number of persons enjoying different tenures but it is stated therein that orders were to be issued individually to all of them. The Tharao was issued only 8 days before the Merger. It is surprising that the Maharaja thought of the complaints of the grantees on the eve of the Merger. The fact that the Maharana 's Tharao was passed to benefit a large number of persons en bloc does not make it any the more a law if it did not possess any of the indicate of a law. The respondents would not admit that if it had been addressed to individuals, it would have changed its character from a law to a grant. This fact makes no difference to its character. content and purpose. Further, the original grant of which the Tharao became a part was also a grant. One such grant has been quoted above. The word "Vahivat" does show that the grant was for management but in this context, it means more than management. It was customary to use this word in conferring rights which were liable to be resumed. These grants did give rights to the grantees but did not lay down any rule of conduct. It may be pointed out that in Umeg Singh 's case(3) it was contended that cl. 5 of the letter of (1) A.I.R. 1955 S.C. 352. (2) ; , (3) [1955] 2 S.C.R.164. 548 Mr. Menon prevented legislation and it was then held that the grants were not legislative measures of the Maharaja and did not bar the making of laws to set the grant at naught. In that case also there was a Tharao in dispute. The Tharao cannot, therefore, be treated as a law at all. It is a grant and as a grant it was open to the new sovereign not to recognise it. It was contended that in any event, after the commencement of the Government of India Act, 1935, the respondents had the protection of section 299(1). This point was raised but was left open by the majority in Jamadar 's case(1) to which we have already referred. On that occasion, Sarkar and Mudholkar JJ. in a separate judgment held that section 299(1) did not afford any protection. The learned Judges pointed out that section 299(1) did not add to the rights of persons but protected such rights as existed. If on the Merger of the territories of the Indian Rulers with those of the Government of India. there was Act of State and if as held by this Court in the cases to which reference has alreadY been made it was open to the Government of India to decide whether or not to recognise certain rights, the Government of India could do so. In that event, section 299(1) did not come into play because it could only come into play after the rights were recognised. The Act of State continued because Government was taking time to consider whether to accept the Tharao or not and while the decision was being reached, there was a second change inasmuch as the present Constitution was passed. It is contended that there was a lapse of the original Act of State because of a State succession on January 26, 1950, and as this was before the Resolutions of 1951 and 1953, the respondents were protected. The first question to consider is whether there took place in 1950 a State succession. State succession takes place either in law or in fact. It takes place in law when there is a juridical substitution of one State for another. It take place in fact when there is (a) annexation (2) or (b) cession(2) (1) (2) e.g. Algiers by France (1831) or South African Republic by Great Britain (1901). (3) e.g. the Ionian Islands by Britain to Greece (1864) or territory to Poland by Germany. 549 or (c) fusion of one State with another into a federal Union (2) or (e) partition ration of secession(3). It will be seen that on the 26th January, 1950, there was no succession in fact because none of these events took place. As Oppenheim defined "succession" "A succession of International Persons occurs when one or more International Persons take the place of another International Person in consequence of certain changes in the latter 's position International Law, 5th edn. p. 151. " In this sense, though the people of India gave themselves a Constitution, there was no State succession in so far as the people of Sant State were concerned. For them the State succession was over sometime before. No doubt, when the Dominion of India became a sovereign Democratic Republic, there was a breaking away from the British Crown, but that was a State succession in a different field. We are not concerned with the secession of India from the British Crown, but with State succession between Sant State and India, and there was no second succession in 1950. Whatever had happened had already happened in 1948 when Sant State merged with the Dominion of India. The Act of State which began in 1948 could continue uninterrupted even beyond 1950 and it did not lapse or get replaced by another Act of State. The Constitution no doubt guaranteed the rights of citizens after 1950 but these rights granted by the Ruler were fort recognised even before 1950 and the Constitution gave its support to those rights which were extant on January 26, 1950. It only remains to consider the argument of Mr. Purushotham based on the view of Chief Justice John Marshall, of the Supreme Court of the United States expressed in U.S. vs Percheman(3) followed by Cardozo J. in 1937 (1) e.g. Fusion of Serbia with croat etc. to form Yugoslavia. (2) e.g. Hawaii in U.S.A. (3) e.g. India and Pakistan. (4) e.g. U.S.A. from Britain. (5) ; at 86, 87. 550 in Shapleigh vs Mier(1). It was there laid down that private ownership is not disturbed by changes in sovereignty and that according to the modern usage of nations a cession of territory is not understood to be cession of the property of the inhabitants. These two cases were referred to in the judgment of Bose J. in Virendra Singh 's case (2) who pointed out that these principles were also reflected in the Sixth Advisory Opinion of September 10, 1923 of the Permanent Court of International Justice. Mr. Purushotham cited other cases where the Supreme Court of the United States had considered obligations which old Spanish and Maxican treaties had created. It was argued that this represents the modern and progressive view and we were asked to revise the entire law of Act of State as understood in India during the past 100 years and particularly the last dozen years. The principle on which this Court has acted in the past few years has been amply indicated earlier in this judgment. It may be summarized in the words of Fletcher Moulton, L. J. in Salaman vs Secretary of State for India(3): "An Act of State is essentially an exercise of sovereign power, and hence cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that of law, but that of sovereign power, and, whatever it be, municipal courts must accept it, as it is without question. But it may, and often must, be part of their duty to take cognizance of it. For instance, if an act is relied on as being an act of State, and as thus affording an answer to claims made by a subject, the courts must decide whether it was in truth an act of State, and what was its nature and extent". The Courts in England have also acted on the further principle which may be shortly stated in the words of Lord McNair(4): (1) ; at 470. (2) ; (3) (1906] 1 K. B. 613. (4) International Law Opinions (1956) Vol ; See also O 'Connel Y. B. 551 "The term 'Act of State ' is used, not only narrowly to describe the defence explained above, but also, perhaps somewhat loosely, to denote a rule which is wider and more fundamental namely, that 'those acts of the Crown which are done under the prerogative in the sphere of foreign affairs ' (sometimes called 'Acts of State ' or 'Matters of State '); for instance, the making of peace and war, the annexation or abandonment of territory, the recognition of a new State or the new Government of an old State, etc., cannot form the basis of an action brought against the Crown, or its agents or servants, by any person British or alien, or by any foreign State, in British Municipal Tribunals. Such acts are not justiciable in British Courts, at the suit either of British subjects or of aliens; they may form the subject of political action in Parliament or, when the interests of foreign States or their nationals are involved, of diplomatic protest or of any international judicial process that may be available". We are not concerned with the obligations created by treaty which according to the opinions of some writers 'run with the land ' and bind the territory. Other writers, as pointed out by Lord McNair in his Law of Treaties by Keith in his Theory of State Succession and Crandall in Treaties, Their Making and Enforcement. hold that on cession, the treaties are abrogated automatically. Such a view was taken by the United Kingdom and United States when Algiers was annexed by France and by the former when South Africa was annexed by Great Britain and by the United States when Korea was annexed by Japan in 1910. (See Mervyn jones B. Y. B. ; Dr. C. W. Jenks B. Y. B. On the other hand, the treaties of the annexing or cessionary State are held to apply to the new territories. These are treaties with other States which is not the case here. Where is the treaty here? The rights conferred by the Ruler were not the result of a treaty. Nor 552 can the Merger agreement be exalted to the position of a treaty. There is no treaty involved here. Even if it were possible to hold that there was a treaty between the Ruler and the Central Government, there is no power in the Municipal Courts in India to pronounce upon the Agreement as the subject is outside their jurisdiction by reason of article 363. This distinguishes the jurisdiction and power of the Supreme Court of the United States in which consideration of treaties is included. The bar of our Constitution also precludes the consideration whether these agreements can be to be of the nature of treaties. As regards the principles of International Law, it may be pointed out that after the Report of the Transvaal Concessions Commission and Professor Keith 's theories in his book, the attention of the world communities has indeed been drawn to the preservation of economic concessions and acquired rights by the annexing or cessionary State. When the Indian Islands were ceded to Greece the Law Officers (Sir Robert Phillimore was one of them) advised: "Both according to the principles of International Law and the practice of all civilised States, ceded territories pass, cum onere to the new sovereign. ' (Opinion of 15th August, 83/2287.) McNair International Opinions, Vol. 1 p. 156. Similar advice was given on the occasion of annexation of Peruvian territory by Chile (1884), of Madagascar by France (1896), cession of Cuba and the Philipines by Spain (1898). McNair ibid pp. 157 et seq. Again at the annexation of the Boer Republics between 1900 and 1909 what should be the attitude of Britain led to domestic controversy. The legal advisor to the High Commissioner advised that responsibility arising from obligations incurred by the South African Republic and Orange Free State could be repudiated but the Law Officers in England reported that a Government annexing territory annexes it subject, speaking generally, to such legal obligations as have been incurred by the previously existing Government. The obligations included concessionary contracts but the Law Officers added a 553 rider that "the duty to observe such contracts cannot be enforced in a municipal court; it rests merely on the recognition of International Law of what is equitable upon the acquisition of property of the conquered State" (see opinion of 30th November, 1900, F.O. quoted by B. Y. B. 1950 at p. 105). The Transvaal Concessions Commission made its report in April 1901. The report said inter alia: "After annexation, it has been said, the people change their allegiance, but their relations to each other and their rights of property remain undisturbed; and property includes rights which lie in contract. Concessions of the nature of those which are the subject of enquiry present examples of mixed public and private rights : they probably continue to exist after annexation until abrogated by the annexing State, and as a matter of practice in modern times, where treaties have been made on cession of territory, have often been maintained by agreement. " The Commission, however said that no rule of International Law compelled this but added that the best modern opinion favoured that such rights should be respected. The distinction between what is a rule of law and what is a rule of ethics was criticised : see Westlake in (1901) 17 Law Quarterly Review p. 395. However, Prof. Keith gave support to the view. The report of the Commission was considerably influenced by the opinion in Cook vs Sprigg(1) International experts, however, in drafting the terms of settlement of the first Balkan War accepted a new formula in 1920 by which the cessionary State was treated: as subrogated in all rights and changes. These opinions were put to test in some cases before the Permanent Court of International Justice in connection with the Jaffa Concessions and the case of the German Settlers Case. In the former, the Court decided, for technical reasons, that it had no jurisdiction but added that "if Protocol XII left intact the general principles of subrogation," the administration of Palestine was bound to recognise the Jaffa, (1) 554 Concessions "in consequence of the general principles of International Law." In the case of Settlers of German origin in territory ceded by Germany to Poland and German interest in Upper Silesia case (P.C.I.J. series B No. 6 and series A No. 7) the doctrine of acquired rights was accepted, in respect of private rights. The term "acquired rights" has not received a consistent meaning in this connection. It is not the notion of ius quaesitum which was the result of juristic activity following upon the social contract theory. In International Law, it has different meanings. At one extreme is the view that it must be "a grant to an individual of rights under municipal law which touch public interest" and at the other end "every economic concession" is held included. Of course even International Law does not recognise,a universal succession. The term economic concessions" must involve a contract between the State or a public authority on the one hand and a concessionaire on the other and must also involve an investment of capital by the latter for erection of public works or exploitation in the public sector. Such cases are the Mavromma is case, Lighthouses case, Lighthouses in Crete and Samos case (P.C.I.J. Series A No. 5 and Series A B No. 62 and 71 ). Cases of mere private rights without any corresponding benefit to the public are not regarded as concessions but there are two cases in which it has been ruled that private rights must be respected. They are the case of Poland mentioned above. Most of the cases deal with Concessions in which there are reciprocal advantages. All this recognition is still in the diplomatic field. It has never gone beyond political consideration except in the United States. The cases of the United States are mostly to be found in 2 12 Peters and the leading case is U. section vs Percheman (1). Occasionally the question of concessionary rights has been considered in the Courts in England : but of that latter. In U. section vs Percheman(1), Chief Justice John Marshall observed: "It may not be unworthy of remark that it is very unusual, even in cases of conquest for the (1) 555 conqueror to do more than to displace the sovereign and assume dominion over the country. The modem usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to (their ancient sovereign is dissolved; but their relations to each other, and their rights of property remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?. . A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The King cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could so understand the cession. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass the sovereignty only, and not to interfere with private property. " These words of Chief Justice Marshall have been quoted in legal opinions and have influenced international opinion. The question has been raised that we must accent this as the exposition of the law to be applied by municipal courts here. The doctrine in the United States is not unlimited. Limitations were pointed out by Chief Justice John Marshall himself in the case of Foster vs Nielson(1). That case (1) ; 556 involved the effect upon private land titles of a phrase in an Article of a treaty with Spain. That phrase was "shall be ratified and confirmed to those in possession". It was, as the Chief Justice said, in the "language of contract" and. it required legislative implementation before titles could be claimed. This has led to a differentiation between self executing treaties and non self executing treaties. Says Chief Justice John Marshall: "A treaty is in its nature a contract between two nations, not a Legislative Act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra territorial; but is carried into execution by the sovereign powers of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares 'a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an Act of Legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contractwhen either of the parties engages to perform a particular act the treaty addresses itself to the political, not the Judicial Department; and the Legislature must execute the contract before it can become a rule for the Court. " In India, the position is different. Article 253 enables legislation to be made to implement international treaties. This means that the law would bring the treaty in the field of municipal law. The matter was considered in one cam Birma vs The State(1), where the High Court declared: "Treaties which are a part of international law do not form part of the law of the land unless expressly made so by the legislative authority". This accords with what has been said by me but the judgment seems to suggest that treaties which do not affect private (1) A.I.R. [1951] Rai. 557 rights also require legislative implementation. This is not quite accurate, because it is not necessary that all treaties must be made a part of municipal law. I agree with Alexander in "International Law in India" in International and Comparative Law Quarterly (1952) p. 289 at p. 295. Preuss [Michigan Law Review (1953) p. 1123 n. 151 calls it a rare example of a treaty which was not enforced without legislative sanction. The only other example he gives is Re Arrow River and Tributaries Slide and Boom Co. Ltd. see B.Y.B. (1953) 30, pp. 202, 203. The precedent of the United States cannot be useful because it has been held by the Supreme Court of the United States that, although the Courts have no power to question the validity of the Act of State, they can consider its effect. See U. section vs Percheman(1) at P. 86 and that the enunciation of treaties must be accepted by Courts, Clark vs Allen (2). Our practice and Constitution shows that there are limitations upon the powers of Courts in matters of treaties and Courts cannot step in where only political departments can act. The power of the Courts is further limited when the right is claimed against the political exercise of the power of the State. Again, the right claimed here is not even a concessionary right such as he has received the support of international writers. It is more of the nature of a gift by the ruler at the expense of the State. It lacks bona fides which is one of the things to look for. There is no treaty involved and whatever guarantee there is, the Constitution precludes the municipal courts from considering. Politically and ethically there might have been some reason to accept and respect such concessions but neither is a reason for the municipal courts to intervene. The position of the municipal courts according to English Jurisriudence has been noticed in earlier cases. To them may be added the following considerations. In Amodu Tijani vs Secretary, Southern Nigeria (3) it was said: "a mere change in sovereignty is not to be presumed as meant to disturb rights of private owners, and (1) (2) ; (3) 558 the general terms of a cession are prima facie to be construed accordingly." (p. 407). Again, in West Rand Central Gold Mining Co. vs Regem(1), it was said: "It must not be forgotten that the obligations of conquering states with regard to private property of private individuals, particularly land as to which the title had already been perfected before the conquest or annexation are altogether different from the obligations which arise in respect of personal rights by contracts. " The observations in Amodu Tijani 's case(2) were cited before the Privy Council in Sardar Rustam Khan 's case(3). But Lord Atkin after referring to all cases from Kamachee Boye Saheba(4), referred to the observations of Lord Halsbury in Cook vs Sprigg(5). "It is well established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer. It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assume the duties and legal obligations of the former sovereign with respect of such private property within the ceded territory. All that can be properly meant by such a proposition, is that, according to the well understood rules of international law, a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has authority to enforce such an obligation". Lord Atkin referred in his judgment to Secretary of State vs Bai Raibai(6) and Vajje Singh 's case(7 ) as laying the (1) (3) (1941) 68 I. A. 109.(4) (1859.) ; (5) (6) (1915) L. R. 42 I.A. 229. (7) (1924) L. R. 51 I.A. 357. 559 limits of the jurisdiction of municipal courts. These cases have been applied in several decisions by this Court and the view of the Supreme Court of the United States or the view taken in International Law has not been accepted. It is not that the Courts in England have not been pressed by the rules of International Law as a science. As Westlake pointed out in the Nature and ]Extension of Title by Conquest (op. cit.): "The authorities on the law of England appear to be prepared to pay that homage ;to international law. We may refer to what was said by Vice Chancellor Lord Cranworth in King of the Two Sicilies vs Willcox, I Sim. N.S. 327 9, and by Vice Chancellor Wood in United States of America vs Prioleau, ; and to the generality of the proposition laid down by Vice Chancellor James in United States of America vs Mcrae, L.R.8. 'I apprehend it, ' he said, 'to be the clear public universal law that any government which de facto succeeds to any other government, whether by revolution or restoration, conquest or reconquest, succeeds to all the public property, to everything in the nature of public (property, and to all rights in respect of the public property, of the displaced power, whatever may be the nature or origin of the title of such displaced powers". But the rule that the Act of State can be questioned in a Municipal Court has been adopted and it has been considered that it is a matter for the political departments of the State. To quote from Cook vs Sprigg(1). ". if there is either an express or a well understood bargain, between the ceding potentate and the Government to which the cession is made, that private property shall be respected, that is only a bargain which can be enforced by sovereign (1) 560 against sovereign in the ordinary course of diplomatic pressure. " I do not, therefore, accept the contention that a change of opinion is necessary. Even Bose J., did not decide in Virendra Singh 's case(1), on the basis of international law or the opinion of the Supreme Court of the United States. In my opinion, these are matters for the political department of the State. However, desirable it may be that solemn guarantees should be respected, we cannot impose our will upon the State, because it is outside our jurisdiction. For these reasons, I would accept the appeals and would set aside the judgment under appeal and restore the decrees dismissing the suits with costs throughout. SHAH J. The Ruler of Sant State had made grants of villages to jagirdars but without right to trees. On March 12, 1948, the Ruler issued an order reciting that the holders of the villages were not given "rights of the forests" and after considering the complaints of certain jagirdars they were given full rights and authority over the forests in the villages under their vahivat. The jagirdars were directed to manage "the forests according to the policy and administration of the State". The respondents claim in these appeals that the rights of the grantees to the forests were not liable to be cancelled by the Dominion of India after the merger of the State of Sant in June 1948, and by executive action the Government of Bombay was not competent to obstruct the exercise of those rights. Pursuant to the agreement dated March 19, 1948 as from June 1, 1948, the State of Sant merged with the Dominion of India. The sovereignty of the Ruler was thereby ,extinguished and the subjects of the Sant State became citizens of the Dominion of India. Accession of one State to another is an act of State and the subjects of the former State may, as held in a large number of decisions of the Judicial Committee and of this Court, claim protection of only such rights as the new sovereign recognises as enforceable 'by the subjects of the former State in his municipal courts. (1) ; 561 In The Secretary of State in Council of India vs Kamachee Boye Saheba(1) the jurisdiction of the courts in India to adjudicate upon the validity of the seizure by the East India Company of the territory of Rajah of Tanjore as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government, fell to be determined. The Judicial Committee held that as the seizure was made by the British Government, acting as a sovereign power, through its delegate the East India Company it was an act of State, to, inquire into the propriety of which a Municipal Court had no Jurisdiction. Lord Kingsdown observed at p. 529: "The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: Such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make. " In Vajesingji joravarsingji vs Secretary of State for India Council(1) the Board observed (at p. 360): ". when a territory is acquired by a sovereign State for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as, he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those (1) 7 Moode 's I.A. 476. (2) L.R. 51 I.A. 357. 184 159 s.c. 476. 562 inhabitants to enforce these stipulations in the municipal courts. The right to enforce remains only with the high contracting parties." In Secretary of State vs Sardar Rustam Khan and Others(1) in considering whether the rights of a grantee of certain proprietary rights in lands from the then Khan of Kalat, ceased to be enforceable since the agreement between the Khan and the Agent to the Governor General in Baluchistan under which the Khan had granted to the British Government a perpetual lease of a part of the Kalat territory, at a quit rent, and had ceded in perpetuity with full and exclusive revenue, civil and criminal jurisdiction and all other forms of administration, it was observed by Lord Atkin delivering the judgment of the Board that : ". in this case the Government of India bad the right to recognise or not recognise the existing titles to land. In the case of the lands in suit they decided not to recognize them, and it follows that the plaintiffs have no recourse against the Government in the Municipal Courts. " The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights which the new sovereign recognises has been accepted by this Court in M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(2); jagannath Agarwala vs State of Orissa (3); Promod Chandra Deb and Others vs The State of Orissa and Others(4) and The State of Saurashtra vs Jamadar Mohamad Abdulla and others(5), and may be regarded as well settled. Mr. Purshottam on behalf of the respondents however contended that this rule was a relic of the imperialistic and expansionist philosophy of the British Jurisprudence, which (1) L. R. 68 I.A. 109. (2) [1959] S.C.R. 729. (3) ; (4) [1962] Suppl. 1 S.C.R.405. (5) 563 is inconsistent with our Constitutional set up. Counsel submits that in jurisdictions where truly democratic institutions exist the rule laid down by the Judicial Committee has not been accepted. The rule is, counsel submits, inconsistent with the true spirit of our Constitution, which seeks to eschew all arbitrary authority, and establishes the rule of law by subjecting every executive action to the scrutiny of the courts and to test it in the light of fundamental rights. Counsel says that the true rule should be the one which has been recognized by the Supreme Court of the United States that of the accession of a State to another, private rights of the citizens enforceable against their sovereign are not affected, and may be enforced in the Courts of the new sovereign. In support of this argument Mr. Purshottam relied upon the observations made by Marshall, C. J., in United States vs Percheman(1): "The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory ? A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could consider itself as attending a wrong to individuals, condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering, at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and to interfere with private property. " But the rights and their enforceability in the Municipal Courts of a State must depend upon the will of the sovereign. The sovereign is the fountain head of all rights, all laws and (1) (1833] ; , at 86, 87. 564 all justice within the State and only those rights which are recognised by the sovereign are enforceable in his Courts, The Municipal Courts which derive their authority from their sovereign and administer his laws cannot enforce the rights Which the former sovereign whose territory has merged or been seized by the new sovereign recognised but the new sovereign has not, for the right to property of the citizen is only that right which the sovereign recognises. It may also be observed that the constitutional provisions in the United States are somewhat different. Under the Con stitution of the United States each treaty becomes a part of the law of the land, the provisions thereof are justiciable and the covenants enforceable by the Courts. Recognition of the rights of the citizens of the acceding State being the prerogative of the sovereign, if rights be recognized by treaty which by the special rules prevailing in the United States become part of the law of the land, they would be enforceable by the Municipal Courts, Under the rule adopted by this Court, a treaty is a contract between two nations, it creates rights and obligations between the contracting States. but there is no judicial tribunal which is competent to enforce those rights and obligations. The treaties have not the force of law and do not give rise to rights or obligations enforceable by the Municipal Courts as observed by Hyde in his 'International Law" vol. 1 p. 433: "Acknowledgement of the principle that a change of sovereignty does not in itself serve to impair rights of private property validly acquired in areas subjected to a change, does not, of course. touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States, such as those of its predecessor. Obviously, the basis of any restraint in that regard which the law of nations may be deemed to impose must be sought in another quarter. " The observations made by Marshall C. J., have received repeated recognition in treaties of cession concluded by the 565 United States. But as observed by Lord Halsbury in cook vs Sprigg(1) "It is a well established principle of law that the transactions of independent States between each other are governed by the others, laws than those which Municipal Courts administer. it is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory. All that can be properly meant by such, a proposition is that according to the well understood rules of international law a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has autho rity to enforce such an obligation. " It was then urged that by cl. 7 of the letter of guarantee written by Mr. V. P. Menon on behalf of the Government of India on October 1, 1948, which was to be regarded as expressly stated in that letter, as part of the merger agreement dated March 19, 1948, the Government of India had undertaken to accept all orders passed and actions taken by the Ruler prior to the date of handing over of the adminis tration to the Dominion Government. Clause 7 of the letter is in the following terms: "No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned un less the order was passed or action taken after the 1st day of April 1948, and it is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in their respect will be final." But by virtue of article 363 of the Constitution, it is not open to the respondents to enforce the covenants of this agree (1) 566 ment in the Municipal Courts: Maharaj Umeg Singh and Others vs The State of Bombay and ohers(1). It was then urged that the Government of Bombay as delegate of the Dominion of India had recognised the right of the respondents when they were permitted to cut the forests. But the plea of recognition has no force. It is true that some of the forests were permitted to be cut by the contractors under special conditions pending decision of the Government of Bombay. The Conservator of Forests North Western Circle had ordered that the question as to the approval to be given to the agreement dated March 12, 1948, was under the consideration of the Government and that written undertakings should be taken from the jagirdars, inamdars or persons concerned that they would abide by the decision or orders passed by the Bombay Government in respect of such private forests when the question of rights over such private forests will be finally settled. On January 9, 1949, on the application of the jagirdar the Divisional Forest Officer agreed to issue authorisation to the contractor valid upto March 31, 1949, subject to the condition that export outside was not to be permitted pending receipt of the orders by the Government and that a written undertaking was given by the purchaser that he would abide by the decision and orders passed by Government. In pursuance of this arrangement undertakings were given by the contractors and the jagirdars agreeing to abide by the decision and the orders to be passed by the Government of Bombay in respect of the forest rights and admitting that the authorization issued by the Divisional Forest Officer was subject to those undertaking. The Forest Officers therefore did not allow the forests to be worked unconditionally. Cutting of trees in the forests by the contractors was permitted subject to certain terms and conditions and on the clear undertaking that the question as to the right and the terms under which they could cut the forests would be decided by the Government. The Government of Bombay on July 8, 1949, resolved that the order passed by the Ruler of the Sant State dated March 12, 1948, transferring forest rights to holders of the (1) ; 567 jagirs villages were mala fide and that they should be can celled, but before taking further action in the matter, the Commissioner should ascertain whether the possession of the forests in question was with the Government or was with the jagirdars. The order proceeded to state: "It the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes, etc., to private contractors and purchasers '. A copy of this order was forwarded to the Forest Officers, Santrampur for information and guidance and it is found endorsed on that order that no transit passes be issued to the jagirdars to whom rights over forests were conceded in March 1948 and all further felling in such jagir forests should be stopped at once and compliance reported. It is true that the order of the Governor was not directly communicated to the jagirdars or the contractors. But if the conduct of the Forest Officers in permitting cutting of the forests is sought to be relied upon, it would be necessary to take into consideration the orders passed by the Conservator of Forests, North Western Circle, the undertakings given by the contractors and the jagirdars and the order passed by the Governor of Bombay and the execution of that order by stoppage of the cutting of the forests. It appears that cutting of trees in forests was permitted only upto some time in 1949 and was thereafter stopped altogether by order of the Revenue Department. The final resolution cancelling the agreement was passed on February 6, 1953. It was recited in the resolution that the Tharav issued by the Ruler in 1948 had been considered by the Government to be mala fide and the same had already been repudiated and it was not binding on the Government of Bombay both by law and under the agreement of integration, in spite of the assurance contained in the collateral letter. It was also recited. "Since the Tharav has not been recognised by Government but has been specifically repudiated, everything done in pursuance thereof including the contracts entered into after passing of the Tharav. is not valid and, therefore, binding on this Government. " 568 Having regard to the conduct of the Officers of the Govern ment of Bombay and the resolution of the Government, the plea that the Government of Bombay as delegate of the Do minion had renounced its right not to regard itself as bound by the order made by the Ruler of Sant State cannot be sustained. The next question which falls to be determined is whether the order can be regarded as "law" within the meaning of cl.4 of the Administration of the Indian States Order, 1948. Clause 4 (1) provided: "Such provisions, or such parts of provisions (a) of any law, or (b) of any notification, order, scheme, rule, form or bye law issued, made or prescribed under any law, as were in force immediately before the appointed day in any Indian State shall continue in force until altered, repealed or amended by an order, under the Extra Provincial Jurisdiction Act, 1947 (XLVII of 1947): Provided that the powers that were exercised by the Ruler of an Indian State in respect of or in relation to such Indian State under any such provisions of law immediately before the appointed day, shall be exercised by the Pro vincial Government or any officer specially empowered in this behalf by the Provincial Government. " It was urged that the order issued by the Ruler of Sant State was either "law" or an "order made or prescribed under any law" in force immediately before the appointed day and by virtue of cl. 4 of the Administration of the Indian States Order, it must be deemed to have remained in operation and any action taken in contravention thereof by executive action was unjustified. Our attention has not been invited to any statutory provisions relating to forests in the State of Sant, nor does the order dated March 12, 1948, purport to be issued in exercise of any statutory power. On the face of it the order grants certain rights in forests which had not been previously granted to the jagirdars by the 569 Ruler. It is urged that the Ruler of Sant was an absolute Ruler in whom were vested all authority legislative, execu tive and judicial, and whatever he did or directed had to be complied with and therefore his actions and directions must be deemed to be "law" within the meaning of cl. 4 of the Administration of the Indian States Order. But the fact that ;the Ruler of Sant State was an absolute Ruler not bound by any constitutional limitations upon the exercise of his powers does not, in my judgment, invest every exercise of his powers with legislative authority. The functions of a State whether it contains a democratic set up or is administered by an autocratic sovereign fall into three broad categories executive, legislative and judicial. The line of demarcation of these functions in an absolute or autocratic form of Government may be thin and may in certain cases not be easily discernible. But on that account it is not possible to infer that every act of an autocratic sovereign has a legislative content or that every direction made by him must be regarded as law. That an act or an order of a sovereign with absolute authority may be enforced and the subjects have no opportunity of getting redress against infringement of their rights in the Municipal Courts of the State will not be decisive of the true character of the functions of the sovereign in the exercise of which the act was done or the order was made. The distinction between functions executive, legislative and judicial vested in one person may not be obliterated, merely because they are in fact exercised or are capable of being exercised indiscrimi nately. In the ultimate analysis, the legislative power is the power to make, alter. amend or repeal laws and within,; certain definite limits to delegate that power. Therefore it is power to lay down a binding rule of conduct. Executive power "is the power to execute and enforce the laws, and judicial power is power to ascertain, construe and determine the rights and obligations of the parties before a Tribunal in respect of a transaction on the application of the laws and even in an absolute regime this distinction of the functions prevails. If an order is made during the regime of a sovereign who exercises absolute powers, and it is enforced or executed leaving nothing more to be done there 570 under to effectuate it, any discussion of its true character would be an idle exercise. Where however in a set up in which the rule of law prevails, to support action taken pursuant to an order you have to reach the source of autho rity in the power of the previous autocratic sovereign, the true nature of the function exercised may become important, when the laws of the former State are by express enactment continued by the new sovereign. The order dated March 12, 1948, conveys to the jagirdars rights which had been previously excluded from the grants. The form of the order is of course not decisive. An important, test for determining the character of the sovereign function is whether the order expressly or by clear implication prescribes a rule of conduct governing the subject which may be complied with a sanction demanding compliance therewith. The order dated March 12, 1948, is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct. I am therefore unable to hold that the order issued on March 12, 1948, by the Ruler of Sant State was "law" or an order made under any law within the meaning of cl. 4 of the Administration of the Indian States Order. Cases which have come before this Court in which the question as to the binding effect of orders issued by the Rulers of the former Indian States fell to be determined clearly illustrate that principle. In Ameer un Nissa Begum and others vs Mahboob Begum and others(1) the question as to the binding character of two 'Firmans ' dated February 24, 1949, and September 7, 1949, issued by H. E. H. the Nizam of Hyderabad fell to be determined. The Court in that case observed (at p. 359); "The 'Firmans ' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law , nay, they would override all other laws which were in conflict with them. So long as a particular 'Firman ' held the field, that alone would gov (1) A I.R. 571 ern or regulate the rights of the parties con cerned, though it could be annulled or modi fied by a later 'Firman ' at any time that the Nizam willed. " The Court declined to consider whether the 'Firmans 'were in the nature of "legislative enactment" or "judicial orders" and observed: "The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new Court, he could, according to ordinary notions, be deemed to have exercised his legislative authority. When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of demarcation, however, between the one and the other would from the very nature of things be not justified or even possible. " In that case the primary question which the Court had to consider was whether certain 'Firmans ' issued by the Nizam could be enforced. It was held that the order may be legislative or judicial in character, but it could not be regarded as executive. It may be noticed that no action was required to be taken after the cessor of the sovereignty of the Nizam, in pursuance of the 'Firmans '. The 'Firmans ' had become effective, and titles of the parties stood adjusted in the light of those 'Firmans ' during the regime of the Nizam. In Director of Endowments. Government of Hyderabad vs Akram Ali(1) the effect of a 'Firman ' issued by the Nizam on December 30. 1920, directing that the Ecclesiastical Department to supervise a Dargah within the jurisdiction of the Nizam until the rights of the parties were enquired into and adjudicated upon by a civil court fell to be determined. The Court in that case held that the right of Akram Ali who claimed to be hereditary Sajjad Nashin and Mutwalli was subject to the order of the Nizam which had been passed before the Hyderabad State merged with the Union of India and the applicant having no rights it could (1) A.I.R. 1956 S.C. 60. 572 be enforced at the date of the Constitution and the Courts were incompetent to grant him relief till the rights were determined by the Constitution. The effect of the 'Firman ' was to deprive the respondent Akram Ali and all 'other claimants of all rights to possession pending enquiry into the case. It is clear from the observations made in that judgment that the only decision of the Court was that by the 'Firman ' the rights of the Sajjad Nashin and Mutwalli was suspended till determination by the civil court of his right to possession. The 'Firman ' was given effect not because it was regarded as the expression of the legislative will but because it had become effective before the Constitution came into effect suspending the rights of the applicant. In Madhorao Phalke vs The State of Madhya Bharat(1) the true character of certain 'Kalambandis ' issued by the Rulers of Gwalior fell to be determined. The appellant was the recipient of a hereditary military pension granted by the Ruler of Gwalior to his ancestors in recognition of their military services. The right to receive pension was recognised by the 'Kalambandis ' of 1912 and 1935 issued by the Ruler. After the formation of the State of Madhya Bharat under the Constitution, the Government of that State by an executive order terminated the right of the appellant. The 'Kalam bandis ' though not issued in the form of legislative enactments were issued for the administration of the department relating to the Shiledari units. and the nature of the provisions unambiguously impressed upon them the character of statutes or regulations having the force of law. The 'Kalambandis ' recognised and conferred hereditary rights: they provided for the adoption of a son by the widow of a deceased Silledar subject to the approval of the State and also for the maintenance of widows out of funds specially set apart for that purpose, and contemplated the offering of a substitute when a silledar became old or otherwise unfit to render service: they made detailed provi sion as to mutation of names after the death of a silledar. They further enacted that the Asami being for the shiledari service it could not be mortgaged for a debt of any banker, and if a decree holder sought to proceed against the amount (1) ; 573 payable to him, execution had to be carried out in accord ance with and in the manner and subject to the limitations prescribed in that behalf. The 'Kalambandis ' were not treated as administrative orders issued merely for the pur pose of regulating the working of the administration of the department of irregular forces, and were therefore to be re garded as regulations having all the characteristics of legislative enactments. In Promod Chandra Deb 's case(1) the true character of ,certain 'Khor Posh ' grants granted by the Rulers of Talcher, Bamara and Kalahandi fell to be determined, in a group of petitions for enforcement of fundamental rights. Out of the four petitions, petition No. 167 of 1958 was dismissed ,on the ground that under an order passed by the Extra Provincial Jurisdiction Act, 1947, a grant made by the Ruler ,of Bamra in favour of the petitioner was annulled before Bamra became part of the Union of India and the right created by the grant had on that account ceased to exist. In two other petitions Nos. 168 of 1958 and 4 of 1959 it was found by the Court that the maintenance grants in favour of certain members of the family of the Ruler were recognised by the Government of India 'and the right thus recognised was given effect to and payments pursuant thereto were continued for nearly eight years after the merger of the State. This Court held that the State having recognized its obligation to pay the maintenance grants which were agreed to be granted under the statutory law and the custom of the State, the grants could not be annulled by executive action. In the principal writ petition No. 79 of 1957 the grants by the Ruler of Talcher was made subject to the terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937. These Rules and Regulations of Talcher of 1937 were regarded as the law of the State and it was in accordance with the law that the 'Khor Posh ' grants were made by the Ruler. If was held that these grants had the effect of law. Sinha C.J., delivering the majority judgment of the Court observed (at p. 436): "There is also no doubt that the grant made by the ruler of Talcher in favour of the petitioner (1) [1962] Suppl. 1 S.C.R. 405. 574 continued to be effective until the Merger. The nature and conditions of such grant of Khorposh are governed by the provisions of the laws of that State as embodied in Order 31 of the 'Rules and Regulations of Talcher, 1937. Under the laws of Talcher, the petitioner had been enjoying his Khorposh rights until the cash grant, as it became converted in 1943 44 as aforesaid, was stopped by the State of Orissa, in April, 1949. " In the view of this Court the terms and conditions, subject to which the grant was made, were on the facts of the cast in the nature of legislative acts and not exercise of executive functions. The Court in that case did not purport to lay down that any act done by the Ruler whether it be executive, legislative or judicial must be regarded since the merger of the State as in the exercise of the legislative will of the Ruler and therefore continuing as law. In a recent judgment of this Court in Tilkayat Shri Govindlalji Maharaj etc. vs State of Rajasthan and others( ') the 'Firman ' issued by the Udaipur Darbar in 1934 relating to the administration of the temple of Sharnathji at Nath dwara, which was expressly declared to be a public temple, and governing the devolution of the right to the management of the temple, and certain incidental matters, fell to be determined. The 'Firman ' consisted of four clauses. By the first clause it was declared that according to the law of Udaipur the shrine of Shrinathji had always been and was a religious institution for the followers of the Vaishnava Sampradaya and that all the property immovable and movable dedicated, offered or presented to or otherwise coming to the deity Shrinathji had always been and was the property of the shrine and that the Tilkayat Maharaj for the time being was merely the custodian manager and trustee. of the said property for the shrine. The second clause prescribed the rule of succession and declared that it was regulated by the law of primogeniture, and provided that the Udaipur Darbar had absolute right to depose any Tilkayat Maharai on the ground that such Tilkayat Maharaj was unfit. The (1) A.I.R. (1963) S.C. 1638. 575 third clause provided for measures to be taken by the Ruler for management of the shrine during the minority of the Tilkayat Maharaj and by the last clause it was provided that in accordance with the law of Udaipur the Maharana had declared Shri Damodarlalji the then Tilkayat Maharajunfit to occupy the Gaddi and had approved of the succession of Goswami Govindlalji to the Gaddi of Tilkayat Maharaj. This 'Firman ' declared the character of the trust relating to the Shrinathji temple, laid down rules as to the succession and provided for the management during the minority of the Tilkayat, and declared the right of the State to remove the Tilkayat and for enforcement of that right by declaring that the then Tilkayat was unfit to occupy the Gaddi. This was in substance though not in form exercise of the legislative will of the sovereign. Its operation was not exhausted by its enforcement during the regime of the Maharana of Udaipur. Devolution of the Gaddi, and declaration about the power of the Ruler over the shrine were intended to govern the administration of the shrine for all times. It is true that in that case in paragraph 32 it was observed after referring to Madhorao Phalke 's ease(1), Ameer un Nissa Begum 's case (2 ) and the Director of Endowments, Government of Hyderabad 's case(3): "In the case of an absolute Ruler like the Maharana of Udaipur it is difficult to make any distinction between an executive order issued by him or a legislative command issued by him. Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby. " It was not and could not be laid down that all orders issued by an absolute Ruler were legislative in character: it was merely sought to be emphasized that so long as the territory of Udaipur and the shrine were under the sovereignty of the Maharana the distinction between commands legislative and executive was academic, for all orders and commands of the Ruler had to be obeyed alike. But since the merger of the State with the Union of India, the question (1) ; , (2) A.I.R. (1955) S.C. 352. (3) A.I.R. 1956 S.C. 60, 576 whether the 'Firman ' was a mere executive order or a legis lative enactment assumed vital importance. If the command was merely executive unless the rights created thereby were recognized by the Dominion of India they had no validity and no reliance could be placed upon them in the Municipal Courts. If the command was legislative, the laws of the former State having been continued upon merger, the legislative command retained vitality and remained enforceable. In the context in which it occurs the statement set out did not and was not intended to lay down, that there is no distinction between legislative commands and executive orders which have to be enforced after the merger of the State with the Indian Union. I may refer to decisions which illustrate the distinction between legislative commands and executive orders of the Rulers of the former Indian States. In Maharaja Shree Umaid Mills Ltd. vs Union of India and Others(1) the question whether an agreement between the Ruler of Jodhpur and a limited Company whereby the Ruler agreed to exempt or remit certain duties or royalties and to hold the Company not liable to pay taxes and further gave an assurance to the Company to amend the laws so as to make them consistent with the agreement was not regarded as "law" within the meaning of article 372 of the Constitution. In the view of the Court the agreement rested solely on the consent of the parties: it was entirely contractual in nature an a none of the characteristics of law. The Court in that case observed that every order of an absolute Ruler who combines in himself all functions cannot be treated as "law" irrespective of the nature or character of the order passed. There is, it was observed, a valid distinction between an agreement between two or more parties even if one of the parties is the sovereign Ruler, and the law relating generally to agreements; the former rests on consensus of mind, the latter expresses the will of the sovereign. This case supports the proposition that every act done or order passed by an absolute Ruler of an Indian State cannot have the force of law or be regarded as "law" since the merger of his territory with the 'Union of India '. To have the vitality of law after (1) ; 577 merger, it must be the expression of the legislative will of the Ruler, There is yet another judgment of this Court in The Bengal Nagpur Cotton Mills Ltd. vs The Board of Revenue, Madhya Pradesh and Others(1) in which also the question whether an agreement between the Ruler of Rajnandgaon and M/s. Shaw Wallace and Company in connection with the setting up of a textile factory on certain concessional terms in the matter of imposition of octroi duties on imported goods fell to be determined. It was observed in that case: "It is plain that an agreement of the Ruler expressed in the shape of a contract; cannot be regarded as a law. A law must follow the customary forms of law making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form. It is not every indication of the will of the Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion, results in a law but not an agreement to which there are two parties, one of which is the Ruler. " The order of the Ruler of Sant dated March 12, 1948, was not in the form of a legislative enactment. It also did not seek to lay down a course of conduct: it merely purported to transmit certain rights which were till the date of the order vested in the Ruler to the jagirdars who were grantees of the villages. It is difficult to hold that an order merely granting forest rights not in pursuance of any legis lative authority, but in exercise of the power of the sove reign in whom the rights were vested, to the jagirdars to whom the villages were granted without forest rights, can be regarded as "law" within the meaning of cl. 4 of the Administration of the Indian States Order, 1948, when the order was not intended to lay down any binding rule of (1) ; (2) 134 154 S.C. 37. 578 conduct of the grantees and merely purported to convey the rights which till then were vested in the Ruler. The other question which remains to be determined is whether the respondents are entitled to the protection of section 299(1) of the Government of India Act, 1935, or article 31 (1) of the Constitution. Undoubtedly the order which deprives them of the right to cut forest trees which they claimed from the jagirdar who derived them under the grant dated March 12, 1948, from the Ruler of Sant is an executive order. Section 299(1) of the Government of India Act, 1935, protection of which was claimed on the merger of the State of Sant with the Dominion of India provided: "No person shall be deprived of his property in British India save by authority of law. " The clause conferred protection upon the property rights of persons against any executive action not supported by law. To attract the clause, there must, however, exist a right to property which is sought to be protected. If for reasons which we have already stated in considering the first question, the subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize, in the absence of any recognition of the rights of the respondents or their predecessor jagirdars, there was no right to property of which protection could be claimed. As held by this Court in State of Saurashtra vs Jamadar Mohamad Abdulla and others(1) orders passed by the Administrator of the State of Junagadh appointed on behalf of the Government of India (which had assumed charge of the administration of the State after the Nawab of Junagadh fled the country) on various dates between November 9, 1947 and January 20, 1949, cancelling grants in favour of certain persons in whose favour the grants had previously been made by the Nawab of Junagadh were not liable to be challenged in suits filed by the grantees in the Civil Courts of the Dominion, on the plea that the properties had been taken away without the authority of law. This Court held that the impugned orders cancelling the grants in favour of the respondents and taking of the properties arose out of and during an act of State and they could not be questioned before Municipal Tribunals, for the (1) (1962] 3 S.C.R. 970. 579 orders of cancellation were passed before the change over of de jure sovereignty. There is no support for the assumption made by the res pondents that an act of State arises merely at a fixed point of time when sovereignty is assumed. An act of State may be spread over a period, and does not arise merely on the point of acquisition of sovereign right: see Promod Chandra Deb 's case(1). Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory, about the rights created by the quondam sovereign, on pain of being held bound by the rights so created. The decision of this Court in jagannath Agarwalla 's case(2) pointedly illustrates this principle. The State of Mayurbhanj merged with the Province of Orissa on January 1, 1949, but an order dated June 28, 1952 made by the Board of Revenue acting on behalf of the State of Orissa rejecting the claim made by a person who had entered into an agreement or arrangement with the Maharaja of Mayurbhanj in 1943 was held to be in the course of an act of State, the rejection of the claim being in pursuance of an order issued under section 4 of the Extra Provincial Jurisdiction Act, 47 of 1947. Therefore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was no title capable of being enforced in the Courts of the Dominion or the Union. It was then urged that in any event since the enactment of the Constitution, by executive action a person may not be deprived of his right to property, and this protection applies as much to rights granted by the former Rulers to persons who on merger became citizens of the Dominion of India as to rights of property of other citizens. In substance it is urged that even if there was no recognition of the right to property which was granted by the former sovereign by the Dominion Government, after the enactment of the constitution the right granted by the former Rulers may only be taken away by legislative command and not by executive action. This argument proceeds upon a misconception of the nature of the fundamental right conferred by article 31(1) of the Constitution. In terms, the Article confers a right to claim protection against deprivation of property otherwise than by (1) [1962] Suppl. 1 S.C.R. 405. (2) ; 580 authority of law. A right to property is undoubtedly pro tected against all actions otherwise than under the authority of law. But the clause postulates a right to property which is protected. It does not purport to invest a person with a right to property which has not been recognized by the Dominion of India or the Union. Even if the right to property was recognized by the Indian State of which the claimant was subject, so long as it is not recognized by the Dominion or the Union it is not enforceable by the Courts in India. On the merger of the State of Sant with the Dominion of India, undoubtedly the respondents became citizens of the Dominion and they were entitled like any other citizen to the protection of the rights which the Dominion recognized. It has also to be remembered that promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union. It was merely change in the form of Government. By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was no cession, conquest occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards self government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character. The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign as suggested in Virendra Singh and Others vs The State of Uttar Pradesh(1) which will presently examine. If therefore the respondents had under the Government of India Act, 1935, after the merger not acquired any right to the forests by virtue of any recognition of the Tharav dated March 12, 1948, the promulgation of the Constitution (1) ; 581 did not invest them with any additional rights which would convert either their claims to the forest rights into property or to enable them to enforce in the Indian Courts such claims not recognized by the State as fundamental right to property. By article 31 right to property is protected against all actions save by authority of law. But if there was no right to property, an executive action refusing recognition of a claim to property could not infringe article 31 of the Constitution. In Virendra Singh 's case(1) this Court held that since the promulgation of the Constitution grants which had been made by the previous Rulers, even if they were not recognized by the Dominion of India or the Union, could not be interfered with except by authority of law. In that case the petitioners were grantees from the Rulers of the States of Sarila and Charkhari of certain villages before those States merged with the Dominion of India. The States originally merged with the Union of Vindhya Pradesh, and the Vindhya Pradesh Government confirmed the grants in December 1948. But the Union of the States of Vindhya Pradesh was dissolved, and the covenanting States separately acceded to the Dominion of India, and surrendered all authority and jurisdiction in relation to the governance of the States and executed instrument called 'The Vindhya Pradesh Merger Agreement '. The States which formed the Vindhya Pradesh were transformed into a Chief Commissioner 's Province on January 23, 1950. The grants of the four villages made in favour of the petitioners Were revoked in August 1952 by the Government of the State of Uttar Pradesh to which State those villages being enclaves within its territory were transferred. The grantees of the villages then petitioned this Court under article 32 of the Constitution challenging the validity of the orders revoking the grant of jagirs and maufis in the four villages as violative of articles 31 (1) and 19 (1 ) (f ) of the Constitution. This Court observed that the properties in question were the properties over which the Rulers had right of disposition at the date of the grants, and the grants were absolute in character and would under any civilised system of law pass an absolute and indefeasible title to the grantees and that assuming that the titles were defensible at the mere will of (1) ; 582 the sovereign the fact remained that they were neither resumed by the former Rulers nor confiscated by the Dominion of India as an act of State and upto the 25th of January, 1950, the right and title of the grantees to continue in possession was good and was not interfered with. The Court accordingly held that the Constitution by the authority derived from and conferred by the people of India; destroyed all vestige of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State of Uttar Pradesh in that case was seeking to uphold. It was further observed that the Dominion of India and the States had abandoned their sovereignty and surrendered it to the people of the land who framed the new Constitution of India and as no sovereign can exercise an act of State against its own subjects, the orders of revocation of the grants were invalid. In my view the conclusion of the Court proceeded upon two assumptions, neither of which was true: (i) that the sovereignty of the Dominion of India and of the States was surrendered to the people of India, and in the exercise of the sovereign power the people gave themselves the new Constitution as from January 26, 1950; and (ii) the petitioners who were in de facto possession of the disputed lands had rights in them which they could have enforced upto 26th January, 1950, in the Dominion Courts against all persons except possibly the State. These assumptions are not supported by history or by consti tutional theory. There is no warrant for holding at the stroke of mid night of the 25th January, 1950, all our pre existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up. It did not seek to destroy the past institutions: it raised an edifice on what existed before. The Constituent Assembly molded no new 583 sovereignty:it merely gave shape to the aspirations of the people, by destroying foreign control and evolving a com pletely democratic form of government as a republic. The process was not one of destruction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce. There is nothing in the Constitution which transformed the claims which till January 25, 1950, had not been recognized into property rights so as to prevent all further exercise of the act of State, and extinguish the powers of the Union to refuse to recognize the claims. The order passed in August 1952 revoking the grants by the Rulers of Sarila and Charkhari was in my view in substance an act of State. It is true that there can be no act of State by a sovereign against his own subjects. But the State was seeking to refuse to recognize the claims made by the grantees from the former Rulers, and the fact that the act of State operated to the prejudice of persons who were at the date of refusal of recognition citizens, did not deprive the act of State of either its character or efficacy. These appeals must therefore be allowed and the suit filed by the respondents dismissed with costs throughout. RAGHUBAR DAYAL J. I agree with the views expressed R, by my learned brother Ayyangar J., on all the points except in regard to the Tharao dated March 12. 1948, being law. I agree with brother Hidayatullah J., that this Tharao is not law, and further agree with him in the order proposed. MUDHOLKAR J. This Bench has been constituted for considering whether the reasoning underlying the decision of this Court in Virendra Singh vs The State of Uttar Pradesh(1) that the inhabitants of the Indian States brought with them, after the merger of those States in the Dominion of India pursuant to agreements entered into by the Rulers of those (1) ; 584 States, rights to property granted to them by the Rulers of those States, is correct or not. The decision and the various grounds upon which it rests have been carefully examined by my brother Ayyangar J., in his judgment and I am generally in agreement with what he has said. As, however, I take a somewhat different view on some of the matters which arise for consideration in this case this judgment has become necessary. The facts have been set out fully in the judgment of my learned brother and, therefore, it will be sufficient to mention only such of them as are necessary to elucidate the questions which I propose to deal with. In consequence of two agreements entered into by the former Ruler of Sant State, the territory of that State merged in the Dominion of India as from June 10, 1948. Prior to that date it had acceded to the Dominion of India on three subjects only. This State, along with other ruling States in India, became an independent sovereign State in the year 1947 when the Dominions of India and Pakistan were constituted. By virtue of the powers vested in the Central Government by the Extra Provincial Jurisdiction Act, 1947 it delegated its functions to the Government of Bombay which passed the Indian States (Application of Laws) Order, 1948 on July 28, 1948. In, consequence of that Order certain laws in force in the Pro vince of Bombay were extended to the merged territories. By the operation of the Indian States (Merger of Governors Provinces) Order, 1949, the Sant State became part of the Province of Bombay. The agreement relating to the merger of the State in the Dominion of India was entered into by the Ruler of Sant some time before the date on which the merger became effective. The Ruler of the State passed a Tharao (which is translated as 'Order) on March 12, 1948 in the following terms: "section Ta. Mu Outward Register No. 371. The Jivak, Patavat, Inami, Chakariyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests. Hence after considering the complaints of certain Jagirs, they, 585 are being given full rights and authority over the forests in the villages under their vahivat. So, they should manage the vahivat of the forest according to the policy and administration of the State. Orders in this regard to be issued. " Taking advantage of the Tharao several Jagirdars entered into contracts pertaining to the exploitation of the forests in their Jagirs. The respondents in these appeals are some of the forest contractors. The Government of the Province of Bombay through the officers of its Forest Department did not allow the respondents to exercise their rights under the contracts entered into with them by the Jagirdars on the ground that the grant of forest rights by the former Ruler to the Jagirdars was not binding upon the successor Government. Thus being deprived of their right to work the forests the various respondents instituted suits after the coming into force of the Constitution of India. Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition, express or implied, by the successor State of rights conferred by the former Ruler on the Jagirdars the respondents could not enforce them in the municipal courts. The suits of the respondents were dismissed by the court of first instance and appeals preferred therefrom by them were dismissed by the District Court. In second appeal, however, the appeals were allowed by the High Court by a common judgment in which reliance is placed largely upon what has been held and said by this Court in Virendra Singh 's case(1) though a reference has also been made to two other decisions of this Court and some decisions of the Privy Council. In the arguments before us it has never been in question that the acquisition of the territory of Sant State by the Dominion of India in pursuance of the Instrument of Accession and Merger Agreement was an act of State. The respondents ' contentions were, however, that (1) in point of fact the Government of Bombay, acting through the officers of the forest department had recognised the Jagirdar 's rights by permitting the contractors to carry on the work of cutting timber; (2) that though the Government of" (1) ; 586 Bombay subsequently repudiated the Jagirdars ' rights that repudiation was of no avail; (3) that the letter sent to the Ruler of Sant State by the Secretary to the States Depart ment, Mr. V. P. Menon, in October, 1948 amounted to a waiver by the Dominion of India of the right of repudiation of the rights of Jagirdars; (4) that after the Jagirdars became the citizens of the Dominion of India there could be no act of State against them; (5) that the doctrine evolved by the Privy Council in its decisions starting from Secretary of State for India vs Kamachee Boye Sahiba(1) and going upto Asrar Ahmed vs Durgah Committee, Ajmer(2) was opposed to the present view on the effect of conquest and cession upon private rights as exemplified in the decisions in United States vs Percheman(3) and that this Court should, therefore, discard the Privy Council 's view and adopt the modem view inasmuch as the latter is considered by common consent to be just and fair and finally (6) that the Jagirdars could not be deprived of the forest rights deprived by them from the Ruler of Sant State before the Constitution, without ,complying with the provisions of section 299 of the Government of India Act, 1935, and after the coming into force of the Constitution without complying with the provisions of article 31 of the Constitution. I agree with my brother Ayyangar J., that the fact that some officers of the forest department had permitted the respondents to carry on operations in the forests leased out to them by the Jagirdars does not amount to recognition of the right conferred upon the latter by the Tharao of March 12, 1948. In the first place, it was not open to the officers of the forest department to grant recognition to the Jagirdars ' rights for the simple reason that the right of granting recognition could be exercised only by the Government acting through its appropriate agency. Moreover the permission which was accorded to the respondents was only tentative and expressly subject to the final decision of the Government on the question of their right under the leases granted by the Jagirdars. (1) ; (2) A 1 R 1947 P. C I. (3) ; 587 The second contention of the respondents is based upon a misapprehension of the legal position flowing from the long series of decisions of the Privy Council which have been accepted by this Court in several of its decisions and in particular Dalmia Dadri, Cement Co. Ltd. vs The Commissioner of Income tax(1); State of Saurashtra vs Memon Haji Ismail (2) ; Promod Chandra Deb and Ors. vs The State of Orissa and Ors.(3); State of Saurashtra vs Jamadar Mahamad Abdulla and Ors.(4). The one decision in which the Privy Council 's view is criticised is that of Virendra Singh 's case(5). The view of the Privy Council has been expressed by Lord Dunedin in Vajesinghji vs Secretary of State for India(6) in the following passage which has been ,quoted with approval in several judgments. "When a territory is acquired by a sovereign State for the first time that is an Act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. in all cases the result is the same. , Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to, those inhabitants to enforce those stipulations in the municipal courts. The right to enforce, remains only with the high contracting parties. " Thus what is clear beyond doubt is that the rights derived by the inhabitants of the conquered and ceded territory from its former rulers cannot be enforced by them against the new (1) [1959] S.C.R. 729.(2) [19601 1 S.C.R. 537. (3) [1962] Supp. 1. S.C.R. 405.(4) [19621 3 S.C.R. 970. (5) ; 51 T.A. 357. 588 sovereign in the courts of that sovereign unless they have been recognized by the sovereign. The only basis upon which rights of this kind can be enforced in a municipal court would be the fact of its recognition by the new sovereign. A right which cannot on its own strength be enforced against a sovereign in the courts of that sovereign must be deemed to have ceased to exist. It follows therefore that a right which has, ceased to exist does not require repudiation. As regards the argument that the Government has waived its right to withold recognition, I agree with all that has been said by my brother Ayyangar J. Indeed, if the inhabitants of a ceded territory have ceased to have a right against the new sovereign there is nothing for the sovereign to waive. I also agree with my learned brother that if the letter of the Secretary to the States Department wpon which reliance is placed by the respondents is regarded as part of the agreement of merger the municipal courts are precluded by article 363 of the Constitution from enforcing any rights arising thereunder. The argument that there can be no Act of State against its citizens is based upon the supposition that the rights claimed by the Jagirdars from their former Ruler would be available to them against the new sovereign unless they were repudiated and that here, as the resolution of the Government of Bombay dated February 6, 1953 stating that Jagirdars ' rights have already been repudiated amounts to an Act of State against persons who had long before this date become the citizens of the Republic of India it was incompetent. As already pointed out, the municipal courts cannot take notice of a right such as this unless it had been recognized expressly or by implication by the new sovereign. doubt, the Government resolution speaks of repudiation. That in my opinion is only a loose way of conveying that the rights of the Jagirdars have not been recognized. That resolution does no more than set out the final decision of Government not to give recognition to the Tharao of March 12, 1948 by which the former Ruler of Sant State ad conferred certain forest rights on the Jagirdars. Indeed, it is clear from paragraph 3 of that resolution that the Government had expressly borne in mind the legal position 589 that rights claimed under the Tharao gave no title to the inhabitants of Sant State to enforce them in a municipal ,court and that the right to enforce them remained only with the high contracting parties. Now as to the argument that this Court should discard the view taken by the Privy Council in Secretary of State for India vs Kamchee Boye Sahiba(1); Secretary of State for India vs Bai Rajbai(2); Vajesinghji vs Secretary of State for India(3); Secretary of State vs Sardar Rustom Khan(4) and Asrar Ahmed 's case(5) and adopt the view taken by ,Chief Justice Marshall in Percheman 's case(6). I agree with much which my learned brother has said but would,add one thing. It is this. The courts in England have applied the principles of international law upon the view that what is by the common consent of all civilized nations held to be an ,appropriate rule governing international relations must also be deemed to be a part of the common law of England. Thus English courts have given effect to rules of international law by resorting to a process of incorporation(7). The English courts also recognise the principle that since the British Parliament is paramount the rules of international law are subject to the right of Parliament to modify or abrogate any of its rules. A municipal court can only enforce the law in force in the State. Therefore, if a rule of international law is abrogated by Parliament it cannot be enforced by the municipal courts of the State and where it is modified by Parliament it can be enforced by the municipal courts subject to the modification. Would the position be different where a particular rule of international law has been incorporated into the common law by decisions ,of courts? So far as the municipal courts are concerned that would be the law of the land which alone it has the power and the duty to enforce. Where Parliament does not modify or abrogate a rule of international law which has become part of the common law, is it open to a municipal (1) ; 42 I.A. 229. (3) 51 I.A. 357. (4) 68 I.A. 109. (5) ; A.I.R. 1947 P.C. I.(6) (7) See International Law a Text 1962 by Jacobini, p. 32 et seq 590 court to abrogate it or to enforce it in a modified form on the ground that the opinion of civilized States has undergone a change and instead of the old rule a more just and fair rule has been accepted ? Surely the law of a State can only be modified or repealed by a competent legislature of theState and not by international opinion however weighty that Opinion may be. Now, a rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants. of the conquered or ceded territory is founded has become a part of the common law of this country. This is 'law in force and is saved by article 372 of the Constitution. The courts in India are, therefore, bound to enforce that rule and not a rule of international law governing the same matter based upon the principle of state succession which had received the approval of Marshall C.J. and which has also received the approval of several text book writers, including Hyde(1). It is true that the International Court of Justice has also stated the law on the point to be the same but that does not alter the position so far as the municipal courts are concerned. If in the light of this our law is regarded as inequitous or a survival of an imperialistic system the remedy lies not with us but with the legislature or with the appropriate Government by granting recognition to the private rights of the inhabitants of a newly acquired territory. Thus while according to one view there is a State succession in so far as private rights are concerned according to the other which we might say is reflected in our laws, it is not so. Two concepts underlie our law : One is that the inhabitants of acquired territories bring with them no rights enforceable against the new sovereign. The other is that the municipal courts have no jurisdiction to enforce any rights claimed by them, even by virtue of the provisions of a treaty or other transaction internationally binding on the new sovereign unless their rights have been recognized (1) See Hyde international Law Vol. 1, 2nd ed. p. 431, and Wesley L. Gould An introduction to International Law pp. 422 427. 591 by the new sovereign. Municipal courts derive, their jurisdiction from the municipal law and not from the laws of nations and a change in the laws of nations brought about by the consent of the nations of the world cannot confer upon a municipal court a jurisdiction which it does .lot enjoy under the municipal law. Apart from that the rule cannot be regarded merely as a device of colonial powers for enriching themselves at the expense of the inhabitants of conquered territories and, therefore, an anachronism. It would neither be just nor reasonable to bind the new sovereign, by duties and obligations in favour of private parties created by the ex sovereign from political motives or for the purpose of robbing the new sovereign of the full fruits of his acquisition. No doubt, International Law does not prevent legislation by the new sovereign for the purpose of freeing itself from Such duties and obligations but that would be a long and laborious process and may be rendered onerous or by reason of constitutional provisions such as those contained in Part III of our Constitution, even impossible. It would also not be reasonable to regard the new sovereign as being bound by duties and obligations created by the ex sovereign till such time as the new sovereign was able to show that they were incurred by the ex sovereign mala fide. It is apparently for such reasons that the law as found by the Privy Council deprives the grantees under the former ruler completely of their rights as against a new sovereign by making those rights unenforceable in a municipal court. It, however, also envisages the recognition of those rights by the new sovereign. This means that the new sovereign is expected to examine all the grants and find out for himself whether any of the grants are vitiated by mala fides or were against his legitimate interests so that he can give recognition to those grants only which were not vitiated by mala fides or which were not against his interests. That this is how the rule was applied would be clear from what happened in this country when time and again territories were ceded by former Indian Rulers to the British Government. As an instance of this there was the Inam Enquiry in the middle of the last century as a result of which a very large number of Inams were ultimately 592 recognised by the British Government. That while dealing with the claims of the former grantees in ceded territories used to be examined meticulously would be clear from the facts in Bai Rajbai 's case(1). Such being the actual posi tion I do not think that the rule which has been applied in this country can be regarded to be anachronism or to be iniquitous In so far as the argument is based on the provisions of s.299 of the Government of India Act, 1935 and article 31 of the Constitution is concerned I would reiterate the view which my brother Sarkar J. and myself have taken in Jamadar Mahamad Abdulla 's case(3) and Promod Chandra Deb 's case(4) which is the same as that expressed by my brother Ayyangar J., and with which my brother Hidayatullah J., has agreed. , Adverting to a similar argument advanced by Mr. Pathak 'in the former case we quoted the following passage from the judgment of Venkatarama Aiyar J., in Dalmia Dadri Cement Co 's case(4): ",It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign and that as subjects of the new sovereign, they have only such rights as are granted or recognised by him." and a passage from the judgment in Bai Rajbai 's case(5), and then observed : "Any right to property which in its very nature is not legally enforceable was clearly incapable of being protected by that section." (pp. 1001 2). That was a reference to section 299(1) of the Government of India Act, 1935. In the other case we have observed at p. 499: "In our opinion section 299(1) of the Constitution Act of 1935 did not help grantees from the former (1) 42 I.A. 229. (2) (1962] 3 S.C.R. 970. (3) [1962] Supp. 1 S.C.R. 405. (4) [1959] S.C.R. 729. (5) 42 I. A. 229. 593 rulers whose rights had not been recognized by his new sovereign in the matter of establishing their rights in the municipal courts of the new sovereign because that provision only protected such rights as the new citizen had at the moment of his becoming a citizen of the Indian Dominion. It did not enlarge his rights nor did it cure any infirmity in the rights of thecitizen:. . . " The other point raised in these appeals was as to whether the Tharao relied upon by the respondents was a law and, therefore, could be said to have been kept in force by the provisions of the Application of Laws Order, 1949 made by the Province of Bombay. My brother Ayyangar J., has largely on the basis of the decision of this Court in Madhorao Phalke vs The State of Madhya Pradesh (1) held that it is law. On the other hand my brother Hidayatullah J., has come to the opposite conclusion. My brother Shah J., has also held that the Tharao is not a law. I agreed with the view taken by my brother Hidayatullah J., and brother Shah J., that it is not a law and that the decision in Madhorao Phalke 's case(1) does not justify the conclusion that it is 'law '. I do not think it necessary for the purpose of this case to examine further the question as to what are the indicia of a law. For these reasons I would allow the appeals with costs throughout. ORDER SINHA C.J. In accordance with the opinion of the majority the appeals are allowed with costs throughout one set of hearing fees. (1) ; 134 154 S.C. 38.

IN-Abs

The Ruler of the State of Sant had issued a Tharao dated 12th March 1948, granting full right and authority to the jagirdars over the forests in their respective villages. Pursuant to the agreement dated March 19, 1948, the State of Sant merged with the Dominion of India. On October 1, 1948, Shree V. P. Menon, Secretary to the Government of India, wrote a letter to the Maharana of Sant State expressly declaring that no order passed or action taken by the Maharana before the day of April 1st 1948, would be questioned. After merger there was obstruction by the forest officers when the respondents were cutting the forests, but after some correspondence they were permitted to cut the trees on furnishing an undertaking that they would abide by the decision of the government. The Government of Bombay, after considering the implications of the Tharao, decided that the order was mala fide and cancelled it on 8th July 1949 In the meantime these respondents were stopped from working the forests by the Government of Bombay. 462 Thereupon these respondents filed suits for declaration of rights in the forests and for a permanent injunction against interference with those rights by the State. The respondents claimed in these suits that the rights of the grantees to the forests were not liable to be cancelled by the Dominion of India after the merger of the State of Sant in June, 1948, by executive action, and that the Government of Bombay was not competent to obstruct them in the exercise of those rights. Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition, express or implied, by the successor State of the rights conferred by the former ruler on the jagirdars the respondents could not enforce them in the Municipal Courts. These respondents filed five suits against the State of Gujarat. All suits except one were dismissed by the Trial Court. The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits. The plaintiffs then appealed to the High Court and the High Court allowed all appeals and the suits were decreed. ' The High Court held on the basis of the letter written by Shri V. P. Menon, Secretary that the succeeding sovereign had waived or relinquished its right to repudiate the Tharao. The High Court further held that the Tharao was not a legislative action of the Ruler of Sant State. The State Government appealed to this Court by special leave. Hence the appeal. Per majority: Hidayatullah J. (i) The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens. It does not come to an end by an action of subordinate officers who have no authority to bind the new sovereign. Till recognition, either express or implied, is granted by the new sovereign, the Act of the State continues. In the present case, the Act of State could only come to an end if Government recognised the rights flowing from Tharao. That Government never did. There was thus no recognition of the Tharao or the rights flowing from it at any time. In the present case, the subordinate officers of the Forest Department allowed each respondent to cut the trees on furnishing an undertaking that he would abide by the decision of the Government and so the question of waiver or relinquishment does not arise. Secretary of State in Council for India vs Kamachee Boye Sahaba, ; , Secretary of State vs Sardar Rustom Khan and Others, (68) I. A. 109, MIS. Dalmia Dadri Cement Co. Ltd. vs Commissioner of Income tax, [1959] S.C.R. 729, The State of Saurashtra vs Memon Haji Ismale Haji, ; , Jagan Nath Agarwala vs State of Orissa, ; , State of Saurashtra V. Jamadar Mohamed Abdulla and Ors., and Vaje Singhji Jorwar Singh vs Secretary of State for India, (1924) L.R. 51 I.A. 357, relied on. Virendra Singh and Ors. vs The State of Uttar Pradesh ; , disapproved. Bhola Nath vs State of Saurashtra, A.I.R. 1954 S.C. 680, Bhojrajji vs The State of Saurashtra, , referred to. 463 (ii) The Act of State did not come to an end by virtue of Article 299(1) of Government of India Act, 1935 and so the respondents could not claim the protection of that section. Section 299(1) did not come into play because it could only come into play after the rights were recognised. In the present case the rights were never recognised by the Government. (iii) The original Act of State continued even after January 26, 1950, because there was no state succession on January 26, 1950 in so far as the people of Sant State were concerned. For them state succession was over some time in 1948. The Act of State which began in ' 1948 could continue uninterrupted even beyond 1950 and it did not lapse or get replaced by another Act of State. These rights in question cannot be protected under the Constitution because these rights were not recognised even before 1950. (iv) That the impugned Tharao was not a law as it did not lay down any rule of conduct. It was a grant made to the Jagirdars mentioned in the Tharao. The fact that Maharana 's Tharao was passed to benefit a larger number of persons en bloc does not make it any the more a law if it did not possess any of the indicia of a law. The Tharao did give rights to the grantees but did not lay down any rule of conduct. It is a grant and as a grant it was open to the new sovereign not to recognise it. Madhorao Phalke vs The State of Madhya Bharat, ; , distinguished. Ameer unnissa Begum and Ors. vs Mahboob Begum and Ors. A.I.R. 1955 S.C. 352. distinguished. Maharaja Shri Umaid Mills Ltd. vs Union of India and Others. ; and The Bengal Nagpur Cotton Mill Ltd. vs The Board of Revenue, Madhya Pradesh and Others, A.I.R. relied on. (v) The right claimed here is not even a concessionary right such as has received the support of the International writers. It is more of the nature of a gift by the Ruler at the expense of the State. It lacks bona fides which is one of the things to look for. There is no treaty involved and whatever guarantee there is, article 363 of the Constitution precludes the Municipal Courts from considering. This distinguishes the jurisdiction and power of the Supreme Court of the United States in which consideration of treaties is included. In the United States the Constitution declares a treaty to be the law of the land. In India the position is different. Article 253 enables legislation to be made to implement international treaties. This Court has accepted the principles laid down by the Courts in England in regard to the limits of the jurisdiction of Municipal Courts. The view of the Supreme Court of United States or the view taken in international law has not been accepted by this Court. Politically and 464 ethically there might have been some reason to accept and respect such concessions but neither is a reason for the Municipal Courts to intervene. The Rule that the Act of the State can be questioned in a Municipal Court has never been adopted and it has been considered that it is a matter for the political departments of the State. However desirable it may be that solemn guarantees should be respected, this Court should not impose its will upon the State, because this is outside its jurisdiction. In this case, the present respondents who were not parties to the merger agreement or to the letter written by Mr. Menon which was made expressly a part of the Agreement cannot take advantage of cl. 7. If they were parties, Article 363 would bar such plea. Maharaj Umeg Singh and Others vs The State of Bombay and Others. ; , relied on. U.S. vs Percheman, ; at 86, disapproved: Shapleigh vs Miar, ; , referred to. Salaman vs Secretary of State for India, , referred to. Cook vs Sprigg. , referred to. Foster vs Nielson. ; , referred to. Birma vs The State, A.I.R. to 7, referred to. Amodutijani vs Secretary Southern Nigeria, [1921] 2 A.C. 399, referred to. Clark V. Allen, ; referred to. West Rand Central Gold Minning Co. vs Regem, [1905] 2 K.B. 391, referred to. Secretary of State vs Bai Raj Bai, (1915) L.R. 42 I.A. 229, relied on. Per Shah J. (1) The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights in Municipal Courts which the new sovereign recognises has been accepted by this Court. M/s. Dalmia Dadri Cement Co., Ltd. V. Commissioner of incomeTax, [1959] S.C.R. 729, jagannath Agarwala vs State of Orissa, ; , Promod Chandra Dev vs State of Orissa, [1962] Suppl. 1 S.C.R. 405 and the State of Saurashtra vs Jamadar mohd. Abdullah, , relied on. The Secretary of State In Council of India vs Kamachee Boye Sahaba, 7 Moore 's I.A. 476, Vajesinghji Joravarsinghji vs Secretary of State for India in Council, L.R. 51 I.A. 357 and Secretary of State vs Sardar Rustam Khan and Others, L.R. 68 I.A. 109, relied on. 465 (ii) The Constitutional provisions in the United States are somewhat different. Under the Constitution of the United States each treaty becomes a part of the law of the land; the provisions thereof are justiciable and the covenants enforceable by the Courts. In India the treaties have not the force of law and do not give rise to rights or obligations enforceable by the Municipal Courts. In the present case by virtue of article 363 of the Constitution, it is not open to the respondents to enforce the covenants of the agreement as stated in the letter of guarantee written by Mr. V. P. Menon in the Municipal Courts. United States vs Parcheman, ; at 86, 87, not relied on. Cook vs Sprigg. , referred to. Maharaj Umeg Singh and Others vs The State of Bombay and Others, ; , relied on. (iii) An act of State may be spread over a period and does not arise merely an the point of acquisition of sovereign right. Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory, about the rights created by the quondam sovereign, on pain of being held bound by the right so created. There. fore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was no title capable of being enforced in the courts of the Dominion or the Union. (iv) The functions of a State whether it contains a democratic set up or is administered by an autocratic sovereign fall into three broad categories executive, legislative and judicial. The line of demarcation of these functions in an absolute or autocratic form of government may be thin and may in certain cases not easily discernible. But on that account it is not possible to infer that every act of an autocratic sovereign has a legislative content or that every direction made by him must be regarded as law. The legislative power is the power to make, alter, amend or repeal laws and within certain definite limits to delegate that power. Therefore It is power to lay down a binding rule of conduct. Executive power is the power to execute and enforce the laws, and judicial power is the power to ascertain, construe. and determine the rights and obligations of the parties before a tribunal. In the present case the order dated March 12, 1948, is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct. The impugned order was not a law or an order made under any law within the meaning of cl. 4 of the Administration of the Indian States Order of 1948. Promod Chandra Deb and Others vs The State of Orisa and Others, (1962] Suppl. 1 S.C.R. 405, Ameer un Nissa Begum and Others vs Mahboob Begwn and Others, A.I.R. (1955) S.C. 352, Director of Endow 134 159 S.C. 30. 466 ments, Government of Hyderabad vs Akram Ali, A.I.R. (1956) S.C. 60, Tilkayat Shri Govindlalji Maharaj etc. vs State of Rajasthan and Others, A.I.R. (1963) S.C. 1638, distinguished, discussed. Madhorao Phalke vs The State of Madhya Bharat, ; discussed. Maharaja Shree Umaid Mills Ltd. vs Union of India, A.I.R. , relied on. The Bengal Nagpur Cotton Mills Ltd. vs The Board of Revenue, Madhya Pradesh and Others, C.A. No. 416 of 1961 decided on July 30, 1963, relied on. (v) To attract section 299(1) of the Government of India Act, 1935, there must, exist a right to property which is sought to be protected. The subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize, in the absence of the any recognition of the rights of the respondents or their predecessor Jagirdars, there was no right to property of which protection could be claimed. On the Sam* reasoning, grantees of the Ruler could not claim protection under Art 31(1) of the Constitution. Per Mudholkar J. (i) The rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants of the conquered or coded territory are founded has become a part of the common law of this country. This being a "law in force" and at the commencement of the Constitution is saved by article 372 of the Constitution. The Courts in India are, therefore, bound to en. force that rule and not what according to Marshall C.J. is the rule at. International Law governing the same matter, though the latter has also, received the approval of several text book writers. The rule which has. been applied in this country is not inequitor nor can it be regarded to be an anachronism. Virendra Singh vs The State of Uttar Pradesh, [1955] S.C.R. 415 United State vs Percheman, ; disapproved. Secretary of State for India vs Kamachee Boye Sahiba, (1859) is Moore P. C. 22, Asrar Ahmed vs Durgah Committee, Ajmer, A.I.R. 1947 P.C. 1, Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Incometax, [1959] S.C.R. 729, State of Saurashtra vs Memon Haji Ismail ; , State of Saurashtra vs Jamadar Mohamed Abdullah and Ors., (1962] 3 S.C.R. 970, Vajesinghji vs Secretary of State for India,, 51 I.A. 357 and Secretary of State for India vs Bai Rajbai, 42 I.A. 229 Promod Chandra Dev vs State of Orissa and Ors. [1962] Supp. 1 S.C.R. 405, relied on (ii) Two concepts underlie our law. One is that the inhabitants of acquired territories bring with them no rights enforceable against the new sovereign. The other is that the Municipal Courts have no jurisdiction to enforce any rights claimed by them, against the sovereign despite the provisions of a treaty unless their rights have been recognised by the 467 new sovereign after cession or conquest. In other words a right which cannot on its own strength be enforced against a sovereign in the Courts of that sovereign must be deemed to have ceased to exist. It follows therefore that a right which has ceased to exist does not, require repudiation. Municipal courts derive their jurisdiction from the Municipal law and not from the laws of nations and a change in the laws of nations brought about by the consent of the nations of the world cannot confer upon a Municipal Court a jurisdiction which it does not enjoy under the Municipal law. (iii) The grantees of the Ruler could not claim the protection of s 299 of Government of India Act, 1935 or of article 31 of the Constitution of India as they possessed no right to property enforceable against the new sovereign. (iv) The impugned Tharao was not law. Madhorao Phalke vs The State of Madhya Pradesh ; , referred to. Per minority Sinha C.J. and Ayyangar J. (i) The juristic basis of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exerciseable by the subjects of that sovereign by virtue of grants for that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign, no title enforceable in the municipal courts of the succeeding sovereign came into being. The doctrine of Act of State evolved by English courts is one purely of municipal law. It denies to such a court jurisdiction to enquire into the consequences of acts which are inseparable from an extension of its sovereignty. That doctrine was, however. not intended to deny any rule of International Law. The British practice that has prevailed in this country has not proved in actual practice to lead to injustice, but has proceeded on a just balance between the acquired rights of the Private individual and the economic interests of the community, and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection. Even in the case of Virendra Singh this Court did not express any decisive opinion in favour of accepting the observations in Percheman 's case as proper to be applied by the municipal courts in India. This Court has in subsequent decisions followed the Privy Council decisions. The view of the Supreme Court of the United States has not been accepted by this Court for the reason that the Constitutional position in regard to the recognition of treaties in both countries are different. In the United States a treaty has the force of law, which is not the position here. Besides, in India by virtue of Article 363 of the Constitution, Municipal Courts are deprived of jurisdiction to enforce any rights arising from treaties. 468 Vinrendra Singh vs The State of Uttar Pradesh, ; , disapproved. Vajesinghji vs Secretary of State for India, 51 I.A. 357, Cook vs Sprigg, , relied on. walker vs Baird, , Johnstone vs Pedlar, ; , referred to. United States vs Percheman, ; , disapproved. M/s, Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Incometax, [1959] S.C.R. 729, Jagan Nath Agarwala vs The State of Orissa, ; , Promodh Chandra Dev vs The State of Orissa, [1962] 1 Supp. S.C.R. 405, The State of Saurarhtra vs Jamadar Mohamad Abdulla, [1962] 3 S.C.R. 970, Secretary of State for India vs Kanzachee Boye Sahiba [1859] 7 Moore, I.A. 476, Secretary of State for India in Council vs Bai Rai Bat, 42 I.A. 229 and Secretary of State vs Rustom Khan, 68 IA. relied on. Amodu Tijani vs Secretary Southern Nigeria, [1921] 2 A.C. 399, referred to. West Rand Central Gold Mining Co., vs Rex, [1905] 2 K.B. 391. referred to. Asrar Ahmed vs Durgha Committee, Ajmer, A.I.R. 1947 P.C. 1, relied on Attorney General of Canada vs Attorney General of Ontario, , referred to. (ii) Where the new sovereign assumes jurisdiction and it does some act and there is ambiguity as to whether the same amounts to a recognition of a pre existing right or not, the covenant and the treaty right be looked at in order to ascertain the intention and purpose of that equivocal act, but beyond This the covenant and the treaty cannot by them selves be used either as a recognition pure and simple or, as waiver of a right to repudiate the pre excisting rights. It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign, there La no, question of a waiver or the right to repudiate. In the present case the High Court erred in holding on the basis of cl. 7 of the letter of Shri V. P. Menon that the Government waived their right to repudiate the grant made by the previous ruler. Bhola Nath vs The State of Saurashtra, A.I.R. (1954) S.C. 680. distinguished 469 (iii) Just previous to the Constitution the grantee had no right of property enforceable against the State. The coming into force of the Constitution could not, therefore, make any difference, for the Constitution, did,not create rights in property but only protected rights which otherwise existed. (iv) In the present case the "Tharao" was not a grant to any individual but to the holders of 5 specified tenures in the State. The 'Tharao ' is more consistent with its being a law effecting an alteration in the tenures of the 5 classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been granted to them. In this light, the 'Tharao ' would not 'be administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and content of tenures referred to. The "Tharao" dated March 12, 1918 satisfies the requirement of "a law" within article 366(10) of the Constitution and in consequence, the executive orders of the Government of Bombay by which the forests right% of the plaintiffs were sought to be denied were illegal and void. The "Tharao" was in truth and substance a law which was continued by article 372 of !he Constitution and therefore it could be revoked by the appellant by legislative authority and not by an executive act. Madhorao Phalke vs The State Madhya Bharat ; , Ameer un nissa Begum vs Mahboob Begum, A.I.R. 1955 Sup 4 Court, 352 and Director of Endowments, Government of Hyderabad Akram Ali, A.I.R. 1956 S.C. 60, relied on. Per Subha Rao J. (i) The decision in Virendra Singh 's case is not only correct, but. is also in accord with the progressive trend of modern international law. It may, therefore, be stated without contradiction that in none of the decisions of this Court that were given subsequent to Vires. dra Singh 's ease the correctness of that decision was doubted. After all, an act of State is an arbitrary act not based on law, but on the modern version of 'Might is right '. It is an act outside the law. There were two different lines of approach. One adopted by the imperialistic nations and the other by others who were not. That divergence was reflected in English and American Courts. All the jurists of International law recognise the continuity of title to immovable property of the erstwhile citizens of the ceding state after the sovereignty changed over to the absorbing state. It may, therefore, be held that so far as title to immovable property is concerned the doctrine of International law has become crystallized and thereunder the change of sovereignty does not affect the title of the erstwhile citizens of the ceding state to their property. In America the said principle of International Law has been accepted without any qualification. M/S. Dalmia Dadri Cement Co. Ltd. V. The Commissioner of Income tax, [1959] S.C.R. 729, Jagannath Agarwala vs The State of Orissa, ; , Promodh Chandra Dev. vs The State of Orrissa 470 [1962] Supp. 1 S.C.R. 405, State of Saurashtra vs Jamadar Mohmed Abdulla, , discussed and distinguished. United States vs Percheman, ; , relied on. Foster vs Neilson, ; , The American Insurance Co. and the Ocean Insurance Co. vs Bales of Cotton , Charles Dehault vs United States, (1835) 9 Ed. 117, Vajeenngli Joravarsingji vs Secretary of State for India in Council, (1951) I.A. 357, referred to. (ii) The law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding state against the absorbing state unless the said state has recognized or acknowledged their title. This Court accepted the English doctrine of Act of State in a series of decisions. The word "recognize" means "to admit, to acknowledge, something existing before". By recognition the absorbing state does not create or confer a new title, but only confirms a pre existing one. Non recognition by the absorbing does not divest the title, but only makes it unenforceable against the state in municipal courts. Pramod Chandra Dev. vs The State of Orissa, [1962] Supp. 1 S.C.R. 503, relied on. (iii) The doctrine of acquired rights, at any rate in regard to immovable property has become crystallized in International Law. Under the said law the title of a citizen of a ceding state is preserved and not lost by cession. The change of sovereignty does not affect his title. The municipal laws of different countries vary in the matter of its enforceability against the state. As the title exists, it must be held that even in those countries, which accepted the doctrine of act of State and the right of a sovereign to repudiate the title, the title is good against all except the State. Before the Constitution came into force the State did Dot repudiate the title. When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable pro perty in the Sant State had a title to the said property and were in actual possession thereof. They had title to the property except against the State and they had, at any rate, possessory title therein. The Constitution in Article 31(1) declares that no person shall be deprived of his property save by authority of law. That is, the Constitution recognised the title of the citizens of erstwhile State of Sant, and issued an injunction against the sovereign created by it not to interfere with that right except in accordance with law. A recognition by the Supreme Law of the land must be in a higher position than that of an executive authority of a conquering State. It was held that the title to immovable property of the respondent was recognised by the Constitution itself and, therefore, necessarily by the sovereign which Is bound by it. 471 In the present case the letter written by the Government of India dated 'October 1, 1948, clearly recognized the title of the respondents to their properties. The letter clearly contains a statement in paragraphs 5 and 7 thereof that enjoyment of Jagirs, grants etc. , existing on April 1, 1948, were guaranteed and that any order passed or action taken by the Ruler before the said date would not be questioned. This is a clear recognition of the property rights of the respondent and similar others. Virendra Singh vs The State of Uttar Pradesh, ; , relied on. M/S. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Incometax [1959], S.C.R. 729, Jagan Nath Agarwala vs The State of Orissa ; , Promodh Chandra Dev vs The State of Orissa ' [1962], Supp. 1 S.C.R. 405 and State of Saurashtra vs Jamadar Mohamed Abdullah , discussed and distinguished.

iminal Appeals Nos. 208 and 209 of 1963. Appeals by special leave from the judgment and order dated August 17, 1963, of the Patna High Court in Criminal Appeals Nos. 554 and 556 of 1961. T. V. R. Tatachari, for the appellants. D. P. Singh and R. N. Sachthey, for the respondents. February 3, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR C.J. The two appellants Haricharan Kurmi and Jogia Hajam were charged along with four other persons with having committed an offence punishable under section 396 of the Indian Penal Code, in that during the night intervening the 24th and the 25th March, 1960, they committed dacoity in the house of Deokinandan Jaiswal, and during the course of the said dacoity, they committed the murder of Damyanti Devi, wife of the said Deokinandan Jaiswal. The names of the four other accused persons are; Ram Bachan Ram, Joginder Singh, Ram Surat Choudhury and Achheylal Choudhury. The learned Sessions Judge, Muzaffarpur, who tried the case, found all the six accused persons guilty of the offence charged. He accordingly convicted them of the said offence and sentenced them to suffer improvements for life. This order of conviction and sentence was challenged by the said six accused persons by preferring appeals before ,the Patna High Court. The High Court has held that the 625 learned trial Judge was right in convicting five of the six appellants because, in its opinion, the evidence led by the prosecution proved the charge against them beyond reasonable doubt. In regard to Joginder Singh, however, the High Court was not inclined to agree with the conclusion of the trial Judge and gave the benefit of doubt to him. Pending the hearing of ' these appeals, a rule for the enhancement of sentence was issued by the High Court against all the appellants. This rule has been discharged in regard to Joginder Singh who has been acquitted, as well as Ram Bachan Ram, Ram Surat Choudhury and Achheylal Choudhury, and the ' sentence of imprisonment for life imposed on them by 'he trial Judge has been confirmed. In regard to the two appellants, however, the High Court took the view that the ends of justice required that the sentence of imprisonment for life imposed on them should be enhanced to that of death. Accordingly, the rule against them was made absolute and ;they have been ordered to be hanged. It is against this order of conviction and sentence that the present appeals have been brought before us by special leave; and the short question of law which has been raised before us by Mr. Tatachari is that the High Court has erred in law in treating the confession made by the co accused Ram Surat Choudhury as substantive evidence against them. This course adopted by the High Court in dealing with the case of the appellants on the basis of the confession made by the co accused person is, it is urged, inconsistent with the consensus of judicial opinion in regard to the true scope and effect of section 30 of the Indian Evidence Act (hereinafter called 'the Act '). These appeals were argued before a Division Bench of three learned Judges of this Court and it was brought to the notice of the said Bench that in dealing with the case of the appellants in the light of the confession made by a co accused person, the High Court had relied on the observations made by this Court in Ram Prakash vs The State of Punjab.(1) Since these observations, prima facie, supported the view taken by the Patna High Court, the Divi sion Bench thought it necessary to refer this matter to a (1) 134 159 S.C. 40. 626 larger Bench in order that the correctness of the said observations may be examined. That is how these appears have come, before a Constitution Bench. , The facts leading to the prosecution of the appellants lie within a narrow compass, and so far as the point which falls to be considered in the present appeals is concerned, there is no dispute in respect of the said facts. Deokinandan Jaiswal is a fairly wealthy businessman and lives in village Dumarbana within the police station of Bairgania in the district of Muzaffarpur. He has a house of his own. Achheylal and Ram Bachan served under him as minims. Jogender Sinch was Jaiswal 's sepoy and Ram Surat was his personal servant. The appellants are the co villagers of Jogender Singh who was one of the accused persons. It appears that on the 24th March, 1960, Jaiswal had received Rs. 15,000 in currency notes from his partner Nathan Mary in the presence of his minims Achheylal and Ram Bachan; in fact, as the said amount was handed over to Jaiswal in the form of different currency notes, Ram Bachan and Achheylal were asked by him to count the said amount. The said amount was then put in different bundles by Jaiswal and to it was added another amount of Rs. 2,000 which he took out from his iron safe. The two bundles were then put together in a bigger bundle and to it was attached a slip containing his signature and date. According to Jaiswal, he handed over the amount of Rs. 17,000 thus put in two bundles to his wife Damyanti Devi, and in her turn, she put the said bundles into the iron safe which had been kept at the first floor of the house in the room adjoining the bed room. About this time, some functions were organised by the Bharat Sevak Samaj in the village and Jaiswal was the convener in regard to the said functions. Naturally, he had to attend to the delegates who had come to the village for the said functions. During the days of these functions, Jaiswal used to return home by about 10 P.m., but on the night of the 24th March, 1960, the function went on late, and so, Jaiswal slept at the Dharamshala where the function took 'Place and did not return home. That is how Damvanti Devi was left alone in the house on the first floor and her only companion was her 627 child Mina about 3 1/2 years old. Apparently, Damyanti Devi retired to her bed room with her little child and on the ground floor were sleeping three of the accused persons, Achheylal, Ram Bachan and Jogender Singh Ram Surat was on leave, so that out of the four servants employed by Jaiswal, three were sleeping on the premises. Batahu, the cook of the family, was sleeping in a verandah attched to the motor garage. Next day Batahu was awakened by Achheylal who reported to him that the door of the hall was open. Thereupon Achheylal and this witness went on the first floor and found that Damyanti Devi was lying dead in a pool of blood. There were cut injuries in her neck which had presumably caused severe bleeding. The little girl Mina was fast asleep. The bundles of currency notes had been removed by the miscreants who had committed the murder of Damyanti Devi. Thereupon, word was sent to Jaiswal and on his return to the house, steps were taken to report to the police station about the commission of the offence; and that set the investigation machinery into operation. As a result of the investigation, the six accused persons were out up for their trial for the offence under section 396 I.P.C. That, in brief, is the nature of the prosecution case. The prosecution sought to prove its case against the six accused persons by relying on the confessions made by three of them, the recovery of the stolen property and discovery of bloodstained clothes in respect of the two appellants. There is no direct evidence to show how, when, and by whom the offence was committed. Besides the confessions,, the evidence on which the prosecution relies is circumstantial and it is on this evidence that the case has been tried in the courts below. For our purpose in the present appeals it is unnecessary to refer to the details set out by the confessional statements in regard to the commission of the offence rind the part played by each one of the accused persons. Ram Surat, Achheylal and Ram Bachan made confessions and it has been held by the High Court as well as the Jearned Sessions Judge that the charge against them is 628 proved. With the correctness or propriety of the conviction of these accused persons we are not concerned in the present appeals. The only point to which reference must be made at this stage is that there is a concurrent finding of the courts below (that the confession made by Ram Surat is voluntary and true. In fact, both the courts did not feel any hesitation in taking the said confession into account against Ram Surat who made the said confession and con victing him on the said confession read in the light of other evidence adduced against him. The charge against the two appellants has been sought to be proved by the prosecution by the statements contained in the confession made by the three accused persons and certain other discoveries, such as blood stained clothes with both of them and stains of blood in the house of the appellant Haricharan. We will presently refer to this evidence. The High Court took the view that having regard to the decision of this Court in the case of Ram Prakash(1), it was open to the High Court to consider the evidence supplied by the confessional statements made by the co accused persons and enquire whether the said evidence received corroboration from any other evidence adduced by the prosecution. Approaching the question from this point of view, the High Court came to the conclusion that the blood stains on the clothes found with both the appellants and blood stains found in the house of the appellant Haricharan afforded sufficient corroboration to the confession of Ram Surat, and so, it has confirmed the conviction of the two appellants under section 396 I.P.C. The High Court then considered the question about the sentence which should be imposed on the two appellants. It appeared from the confession of Ram Surat as well as the confessional statements of Achheylal and Ram Bacban that the two appellants had played a major part in the commission of the offence. In fact, the injuries which proved fatal are alleged by all the 3 accused persons who confessed to have been caused by the two appellants. It is in the light of these statements that the High Court was persuaded to en hance the sentence imposed by the trial Judge against the appellants and it has directed that instead of imprisonment for life, the sentence of death ought to be imposed on (1) 629 them. That is how the only question which calls for our decision in the present appeals is the approach adopted by the High Court justified by the provisions of section 30 of the Act as it has been consistently interpreted by judicial decisions for more than half a century ? Before we address ourselves to this question of law, we may briefly indicate the nature of the other evidence on which the prosecution relies against the appellants. The appellants were arrested the next day after the commission of the offence on the report made by Jaiswal that he sus pected that the murder of his wife had been committed by his four employees and their accomplices, the two appellants before us. On the 26th March, 1960, at about 3.30 P.m. the investigation officer visited the lane between the southern wall of Jaiswal 's godown and the northern wall of the east facing room of the appellant Haricharan and found some blood stains in the lane and on the walls of the grain godown. Later, a shirt bearing blood stains was also found. Pieces of earth containing blood stains and the shirt were subsequently sent to the Chemical Analyser. The origin of the blood found on the pieces of earth sent to the Chemical Analyser could not be determined by him, but the stains of blood on the shirt which was seized from the person of the appellant Haricharan were found to have traces of human blood. Similarly, the nails of Haricharan 's hands showed traces of blood and they were got cut by a barber and sent to the Chemical Analyser. The report shows that these blood stains were too small for serological test. The High Court thought that "the presence of human blood on the shirt which Haricharan was wearing, his nails and at several places beginning from the lane leading to his house and on so many materials kept in his house is a factor" which had to be taken into account. These discoveries were made about 8 A.M. following the night of the murder. In regard to the appellant Jogia, a red coloured check gamcha which bore blood like stains was recovered from the top of the earthern granary in his house at about 6 A.M. On 27th March, 1960. This gamcha was sent to the Chemical Analyser and it is reported to bear stains of human blood It may be added that when the house of Jogia was searched on the 26th March, 1960 this gaamcha was not found as 630 we have just indicated, the judgment of the High Court shows that it took the view that the confessional statement by the co accused persons of the appellants, particularly Ram Surat was corroborated by the discovery of blood stains and that justified the conviction of the appellants under section 396 of the Indian Panel Code. The question about the part which a confession made by a co accused person can play in a criminal trial, has to be determined in the light of the provisions of section 30 of the Act. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The basis on which this provision is found is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to 'a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untrue, and so, section 30 provides that such a confession may be taken into consideration even against a co accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession Particularly if it has been retracted. With that aspect of the problem. however, we are not concerned in the present appeals. When section 30 provides that the confession of a co accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in section 30 is not evidence under section 3 of the Act. 3 defines "evidence" as meaning and including (1) all statements ' which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; 631 (2) all documents produced for the inspection of the Court; Such documents are called documentary evidence. Technically construed. this definition will not apply to a confession. Part (1) of the definition refers to oral statements which the court permits or requires to be made before it; and clearly, a confession made by an accused person is not such a statement. it is not made or permitted to be made before the court that tries the criminal case. Part (2) of the definition refers to documents produced for the inspection of the court; and a confession cannot be said to fall even under this part. Even so, section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co accused person; that is to say, though such a confession may not be evidence as strictly defined by section 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non technical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because section 30 merely enables the Court to take the confession into account. As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that 632 the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor vs Lalit Mohan Chuckerbuttv(1) a confession can only be used to "lend assurance to other evidence against a co accused". In In re. Peryaswami Noopan,(2) Reilly J. observed that the provision of section 30 goes not further than this : "where there is evidence against the co accused sufficient, if,. believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that evidence. " In Bhuboni Sahu vs King(1) the Privy Council has expressed the same view. John Beaumont who spoke for the Board observed that a confession of a co accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence. " It would be noticed that as a result of the provisions contained in section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co accused person; it must (1) Cal. 559 at p. 588. (2) Mad. 75 at p. 77. (3) (1949) 76 I.A. 147 at p. 155. 633 begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in section 30. The same view has been expressed by this Court in Kashmira Singh vs State of Madhya Pradesh(1) where the decision of the Privy Council in Bhuboni Sahu 's(2) case has been cited with approval. In appreciating the full effect of the provisions contained ,in section 30, it may be useful to refer to the position of the evidence given by an accomplice under section 133 of the Act. Section 133 provides that an accomplice shall be a competent witness against an accused person; and that conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to section 114 of the Act brings out the legal position that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two provisions together, it follows that though an accomplice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and ' as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars. The statements contained in the confessions of the co accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider (1) [19521 S.C.R. 526. (2) (1949) 76 I.A. 147 at p. 155. 634 the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the Court has to adopt in dealing with these two types of evidence is thus clear, well understood and well established. It, however, appears that in Ram Prakash 's case(1), some observations have been made which do not seem to recognize the distinction between the evidence of an accomplice and the statements contained in the confession made by an accused person. "An exa mination of the reported decisions of the various High Courts in India," said Imam J., who spoke for the Court in that case, "indicates that the preponderance of opinion is in favour of the view that the retracted confession of an accused person may be taken into consideration against a co accused by virtue of the provisions of section 30 of the Act, its value was ,extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. " The last portion of this observation has been interpreted by the High Court in the present case as supporting the view that like the evidence of an accomplice, a ,confessional statement of a co accused person can be acted upon if it is corroborated in material particulars. In our opinion, the context in which the said observation was made by this Court shows that this Court did not intend to lay down any such proposition. In fact, the other evidence against the appellant Ram Prakash was of such a strong character tnat this Court agreed with the conclusion of the High Court and held that the said evidence was satisfactory and in that connection, the confessional statement of the coaccused person was considered. We are, therefore, satisfied that the High Court was in error in this case in taking the view that the decision in Ram Prakash 's(1) case was intended to strike a discordant note from the well established principles in regard to the admissibility and the effect of confessional statements made by co accused persons. Considering the evidence from this point of view, we must first decide whether the evidence other than the confes sional statements of the co accused persons, particularly Ram Surat, on whose confession the High Court has substan (1) 635 tially relied, is satisfactory and tends to prove the prosecution case. It is only if the said evidence is satisfactory and is treated as sufficient by us to hold the charge proved against the two appellants, that an occasion may arise to seek for an assurance for our conclusion from the said confession. Thus considered, there can be no doubt that the evidence about the discovery of blood stains on which the prosecution relies is entirely insufficient to justify the prosecution charge against both the appellants. In our opinion, it is impossible to accede to the argument urged before us by Mr. Singh that the said evidence can be said to prove the prosecution case. In fact, the judgment of the High Court shows that it made a finding against the appellants substantially because it thought that the confessions of the co accused persons could be first considered and the rest of the evidence could be treated as corroborating the said confessions. We are, therefore, satisfied that the High Court was not right in confirming the conviction of the two appellants under section 396 ,of the Indian Penal Code. It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion. however grave, must not be allowed to take the place of proof. As we have already indicated, it, has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to ' accept other evidence and feels the necessity of seeking for an assurance in support of its con clusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly 636 unsatisfactory and the prosecution seeks to rely on the con fession of a co accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals. In the result, the appeals are allowed and the orders of conviction and sentence passed against the two appellants Haricharan Kurmi and Jogia Hajam are set aside and the accused are ordered to be acquitted. Appeals allowed.

IN-Abs

The appellants along with four others were tried and convicted by the Sessions Judge for the offences of dacoity and murder and sentenced to undergo imprisonment for life. On appeal the High Court confirmed the conviction and sentence. Pending that appeal it issued a rule for enhancement of the sentence, and finally the rule was made absolute and they were ordered to be hanged. The appellants thereupon filed the present appeals by special leave granted by this Court, The main point raised before this Court was that the High Court misconceived the ambit and scope of the decision of this Court in Ram Prakash vs State of Punjab [1959] S.C.R. 121 and that the High Court committed an error in law in treating the confession made by the co accused as substantive evidence against the appellants. Held: (i) Though a confession mentioned in section 30 of the Indian Evidence Act is not evidence as defined by section 3 of the _Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non technical way. But in dealing with a case against an accused person, the court cannot start with the confession of a co accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion ,with regard to the quality and effect of the said evidence, then it is per missible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Kashmira Singh vs State of Madhya Pradesh, [1952] S.C.R. 526, Emperor vs Lalit Mohan Chukerbutty, Cal. In re: Perivsswami Moopan, Mad. 75 and Bhuboni Sahu vs The King, [1949] 76 I.A. 147, followed. (ii) The distinction between evidence of an accomplice under section 133 and confession tinder section 33 Evidence Act is that the former is evidence under section 3 and the court may treat it as substantive evidence and seek corroboration in other evidence but the latter is not evidence under section 3, and the court should first start from other evidence and then find assurance in the confessional statement for conviction. 624 (iii) The High Court was in error in taking the view that the decision in Ram Prakash 's case was intended to strike a dissenting note from the well established principles in regard to the admissibility and the effect of confessional statement made by accused persons. Ram Prakash vs State of Punjab , explained. (iv) On examining the evidence in the present case on the above principles it is found that there is no sufficient evidence to prove the prosecution case.

Appeal No. 177 of 1962. Appeal by special leave from the judgment and order dated August 8, 1961, of the Madhya Pradesh High Court in Misc. Petition No. 81 of 1961. Naunit Lal, for the appellant. I.N. shroff for respondents Nos. Rajani Patel and 1. N. Shroff, for the Intervener. February 3, 1964. The Judgment of the Court was delivered by WANCHOO J. This is an appeal by special leave against the judgment of the Madhya Pradesh High Court. The appellants filed a writ petition in the High Court challenging the validity of a notification issued under section 6 ,of the Land Acquisition Act, No. 1 of 1894 (hereinafter referred to as the Act), Their case was that they were ,owners of certain lands in Chhaparwah. On July 8, 1960. a notification was issued under section 4 of the Act to the effect that certain land in village Chhaparwah was required for a 638 public purpose, namely, "for the construction of buildings, for godowns and administrative office". Thereafter proceed ings appear to have been taken under section 5 A of the Act and an inquiry was made by the Collector. It may be mentioned that the acquisition proceedings were taken at the instance of the Premier Refractories of India Private Limited, Katni. which is a company. The Collector reported that the land was essential for the company and was needed for a public purpose and the objections of the land owners has no subst ance. He therefore recommended that a declaration under section 6 of the Act might be made. He also reported that a draft agreement to be executed between the company and the Government as required by section 41 of the Act was being sub mitted along with a draft notification under section 6. This report was made on October 17, 1960. On December 3. 1960, the notification under section 6 was issued stating that the State Government was satisfied that the land described in the annexure to the notification was required for a public purpose, namely, for the construction of buildings for godowns and administrative office, and hence the notification was issued. It may be noticed that the notification under section 6 did not say that the land was required for a company. Thereupon the appellants filed a writ petition in the High Court on March 20, 1960, and their main contentions were two, namely. (1) that the notification under section 6 did not describe the land to be acquired with sufficient particularity and was therefore of no effect, and (2) that the notification mentioned that the land was required for a public purpose, though in actual fact the land was required for a company, which was entirely different from Government and therefore was invalid. Soon after the writ petition was filed, the State Government issued a fresh notification on April 19, 1961. This notification was mainly under section 17 (1) read with section 17(4) of the Act, which provides that in case of urgency, the State Government may direct the Collector before the award is made under certain circumstances to take possession of any waste or arable land needed for a public purpose or for a company. Curiously enough this notification stated that the State Government also directed that the provisions of section 5 A would not apply, though as we have already stated,. an inquiry under section 5 A had already been made before the noti fication of December 3, 1960 was issued. The notification 639 further stated that it was declared under section 6 of the Act that the land was required for a public purpose, namely, "for the Premier Refractory Factory and work connected therewith". It appears however that the real reason for issuing this notification in this form was to make good the lacuna which appeared in the notification of December 3, 1960 inasmuch as the property to be acquired was not specified with sufficient particularity in that notification. It may be noticed that this notification of April 19, 1961, treating it as a notification under section 6 as well, nowhere specified that the land was required for a company; it only stated that the land was required for a public purpose, namely, for the Premier Refractory Factory and work connected therewith. When the matter came to be argued before the High Court, the main point that was urged was that both the notifications under section 6 of December 3, 1960 and April 19, 1961 were invalid, because +,he acquisition was not for a public purpose as started therein; in fact the acquisition was for a company which was entirely different from Government. The High Court apparently held that the substance of the notifications showed that the land was being required for a public purpose as well as for the purpose of a company. The High Court was further of the view that insofar as the declaration spoke of the acquisition of land for a public purpose it was ineffective, as admittedly the compensation for the property was to be paid wholly by the company and no part of it was to be paid out of public funds. Even so, the High Court held that the declaration must be read in substance and in law as one for acquisition of land for a company, namely, the Premier Refractories of India Private Limited. In this view of the matter, the High Court dismissed the writ petition. The only question that has been urged before us on behalf of the appellants is that the High Court was in error in reading the two notifications as in substance amounting to a declaration that the land was required for a company. Section 6(1) of the Act requires that whenever any land isneeded for a public purpose or for a company, a declaration shall be made to that effect. Further the proviso to s.6(1)provides that no such declaration shall be made unless the 640 compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. This clearly contemplates two kinds of declarations. In the first place, a declaration may be made that land is required for a public purpose, in which case in view of the proviso, the compensation to be awarded for the property to be acquired must come wholly or partly out of public revenues or some fund controlled or managed by a local authority. No declaration under section 6 for acquisition of land for a public purpose can be made unless either the whole or part of the compensation for the property to be acquired is to come out of public revenues or some fund controlled or managed by a local authority; see Pandit Jhandu Lal vs State of Punjab(1). In the second place, the declaration under section 6 may be made that land is needed for a company in which case the entire compensation has to be paid by the company. It is clear therefore that where the entire compensation is to be paid by a company, the notification under G. 6 must contain a declaration that the land is needed for a company. No notification under section 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose, for such a declaration requires that either wholly or in part, compensation must come out of public revenues or some fund controlled or managed by a local authority. In the present case it is not in dispute that no part of the compensation is to come out of public revenues or some fund controlled or managed by a local authority; on the other hand the whole compensation was to be paid by the company. Therefore the notification under section 6 if it was to be valid in the circumstances of the present case had to declare that the land was needed for a company. No valid notification under section 6 could be made in the circumstances of this case declaring that the land was needed for a public purpose, for no part of compensation was to be paid out of public revenues or some fund controlled or managed by a local authority. That is why the High Court felt that the notification under section 6 declaring that the land was needed for a public purpose (1) ; 641 would in the circumstances of this case be ineffective. But the High Court went on to hold that the notifications under section 6 must in substance and in law be deemed to be for acquisition of land for a company in the present case. We are of opinion that this view of the High Court is incorrect. There is nothing in either of the two notifications dated December 3, 1960 and April 19, 1961 to show that the land was needed for a company. The notification of December 3, 1960 says in so many words that it was required for a public purpose, namely, for the construction of buildings for godowns and administrative office. No one reading this notification can possibly think that the land was needed for a company. Similarly the notification of April 19, 1961 says that the land was needed for a public purpose, namely, for the Premier Refractory Factory and work connected therewith. Now the company for which the land in this case was in fact required is the Premier Refractories of India Private Limted, Katni. There is nothing in the notification of April 19, 1961 to show that the land was needed for this company or any other company. All that the notification of April 19, 1961 says is that the land was needed for a public purpose, and the public purpose mentioned there was that the land was required for the Premier Refractory Factory and work connected therewith. The High Court thought that in substance this purpose showed that the land was required for the company mentioned above. But we do not see how, because the purpose specified was for the Premier Refractory Factory and work connected therewith, it can be said that the notification declared that the land was needed for the company. It is not impossible for the Government or for a local body to own such a factory and construct works in connection therewith. The mere fact that the public purpose mentioned was for the Premier Refractory Factory and work connected therewith, therefore, cannot mean that the land was needed for a company; as one reads the notification of April 19, 1961 one can only come to the conclusion that the land was needed for a public purpose, namely, for the construction of some work for a factory. There is no mention of any company anywhere in this notification and it cannot necessarily be concluded that the Premier Refractory Factory was a com 134 159 S.C. 41 642 pany, for a "factory" is something very different from a " company" and may belong to a company or to Government or to a local body or even to an individual. The mere fact that the public purpose declared in the notification was for the Premier Refractory Factory and work connected therewith cannot therefore lead to the inference that the acquisition was for a company. It follows that when the two notifications declared that the land was needed for a public purpose in a case where no part of the compensation was to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to section 6(1) of the Act. All proceedings following on such notifications would be of no effect under the Act. We therefore allow the appeal and set aside the order of the High Court and quash the notifications under section 6 of the Act and restrain the respondents from taking any steps towards the acquisition of the land notified thereunder. As however the point on which the appellants have succeeded was not specifically taken in the writ petition, we direct the parties to bear their own costs throughout. Appeal allowed.

IN-Abs

The Government issued a notification on December 3, 1960 under section 6 of the Land Acquisition Act stating that the land described in the annexure to the notification was required fora public purpose, namely, for the construction of buildings for godownsand administrative office. The appellants challenged the validity of thenotification in the High Court contending that the notification unders. 6 of the Act did not describe the land to be acquired with sufficient particularity and that although the notification mentioned that the land was required for a public purpose, in fact it was required for a company, which was entirely different from Government and was therefore invalid. Soon after the writ petition was filed, the State Government issued a fresh notification on April 19. 1961 mainly under section 17(1) read with section 17(4) of the Act. The notification stated that it was declared under section 6 of the Act that the land was required for a public purpose, namely, "for the Premier Refractory Factory and work connected therewith. " At the time of hearing of the writ petition in the High Court, it was urged on behalf of the appellants that both the notifications under section 6 of the December 3, 1960 and April 19. 637 1961 were invalid because the acquisition was not for a public purpose as stated therein; in fact it was for a company which was entirely different from Government. The High Court dismissed the writ petition and held that the notifications under section 6 must in substance and in law be demed to be for acquisition of land for a company in the present case. Held: Where the 'entire compensation is to be paid by a company. the notification under section 6 must contain a declaration that the land is needed for a company. No notification under section 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose, for, such a declaration requires that either wholly or in part, compensation must come out of public revenues ,or some fund controlled or managed by a local authority. Pandif Jhandu Lal vs State of Punjab, ; , followed. In the present case, the whole compensation was to be paid by the company, therefore the notification under section 6 had to declare that the land was needed for a company. There was nothing in either of the two notifications of December 3, 1960 and April 19, 1961 to show that the land was needed for a company, therefore they were invalid in view of the proviso to section 6 (1) of the Act and all proceedings following on such notifications would be of no effect under the Act.

Appeal No. 151 of 1963. Appeal by special leave from the judgment and decree dated February 17, 1959 of the Madras High Court in Second Appeal No. 252 of 1957. section T. Desai and R. Ganapathy Iyer, for the appellants. R. Gopalakrishnan, for the respondents Nos. 1 6. February 3, 1964. The Judgment of the Court was delivered by MUDHOLKAR J. This is an appeal by special leave from the judgment of the High Court of Madras reversing the decisions of the courts below and granting a number of reliefs to the plaintiffs respondents. The main point which arises for consideration in this appeal is whether the plaintiffs respondents are the lessees of the appellants who were defendants 4 and 5 in the trial court or only their licensees. In order to appreciate the point certain facts need to be stated. The appellants are the owners of a private market situate in Madras known as Zam Bazar Market. There are about 500 odd stalls in that market and meat, fish, vegetables, etc., are sold in that market. The practice of the appellants has been to farm out to contractors the right to collect dues from the users of the stalls. Defendants 1 to 3 to the suit were the contractors appointed by the appellants for collecting rent at the time of the institution of the suit. Two of these persons died and their legal representatives have not been impleaded in appeal as they have no interest in the subject matter of litigation. The third has been transposed as respondent No. 7 to this appeal. They were, however, alive when the special leave petition was filed and were shown as appellants 1 to 3, but two of them were struck out from the record after their death and the third trans posed as Respondent No. 7. Though the building in which the market is located is owned by the appellants it cannot 645 be used as a market for the purpose of sale of meat or any other article of human consumption without the permission of the municipal council under section 303 of the Madras City Municipal Act, 1919 (hereafter referred to as the Act). Before such a permission is granted the owner has to obtain a licence from the Municipal Commissioner and undertake to comply with the terms of the licence. The licence granted to him would be for one year at a time but he would be eligible for renewal at the expiry of the period. Section 306 of the Act confers power on the Commissioner to require the owner, occupier or farmer of a private market for the We of any animal or article of food to do a number of things, for example to keep it in a clean and proper state, to remove all filth and rubbish therefrom, etc. Breach of any condition of the licence or of any order made by the Commissioner would result, under section 307, in suspension of the licence and thereafter it would not be lawful for any such person to keep open any such market. Section 308 of the Act confers powers on the Commissioner to make. regulations for markets for various purposes such as fixing the days and hours on and during which any market may be held or kept for use, requiring that in the market building separate areas be set apart for different classes of articles. requiring every market building to be kept in a clean and proper state by removing filth and rubbish therefrom and requiring the provision of proper ventilation in the market building and of passages of sufficient width between the stalls therein for the convenient use of the building. We are told that regulations have been made by the Commissioner in pursuance of the powers conferred upon him by section 308 of the Act. Thus as a result of the Act as well as the regulations made thereunder a number of duties appear to have been placed upon the owners of private markets. It would also appear that failure to comply with any of the requirements of the statute or the regulations would bring on the consequence of suspension or even cancellation of the licence. We are mentioning all this because it will have some bearing upon the interpretation of the documents on which the plaintiffs have relied in support of the contention that the relationship between them and the appellants is that of tenants and landlord. 646 The suit out of which this appeal arises came to be filed because disputes arose between the plaintiffs and the defendants 1 to 3 who became the contractors for collection of rent as from February 9, 1956. These disputes were with regard to extra carcass fees and extra fees for Sunday Gutha which were claimed by the contractors. The respondents further alleged that the relationship between them and the appellants was, as already stated, that of lessees and lessors while according to the appellants, the respondents were only their licensees. The respondents further challenged the extra levies made by the contractors, i.e., the original defendants 1 to 3 who are no longer in the picture. The reliefs sought by the respondents were for an injunction against the appellants and the defendants 1 to 3 restraining them from realising the extra levies and for further restraining them from interfering with their possession over their respective stalls as long as they continued to pay their dues. The First Additional City Civil Court Judge before whom the suit had been filed found in the respondents ' favour that the extra fees sought to be levied by the contractor were sanctioned neither by the provisions of the Municipal Act nor by usage but upon the finding that the respondents were bare licensees dismissed their suit. The appellate bench of the City Civil Court before whom the respondents had preferred an appeal affirmed the lower court 's decision. The High Court reversed the decision of the courts below and in the decree passed by it pursuant to its judgment granted a number of reliefs to the respondents. Here we are concerned only with reliefs (ii) (e), (f) and (g) since the appellants are not interested in the other reliefs. Those reliefs are : "(ii) that the respondents defendants, in particular defendants 1 to 3 (respondents 1 to 3) be and hereby are restrained from in any manner interfering with the appellants plaintiffs 1 to 4, 6 and 7 carrying on their trade peacefully in their respective stalls at Zam Bazar Market, Rovapettah, Madras and imposing any restrictions or limitations upon their absolute right to carry on business as mentioned hereunder 647 (e) Interfering with the possession and enjoyment of the respective stalls by the appellants plaintiffs 1 to 4, 6 and 7 so long as they pay the rents fixed for each stall; (f) increasing the rents fixed for the appellants plaintiffs ' 1 to 4, 6 and 7 stalls under the written agreements between the said plaintiffs and defendants 4 and 5; (g) evicting of the appellants plaintiffs 1 to 4, 6 and 7 or disturbing the plaintiffs and their articles in their stalls by defendants 1 to 3." Further we are concerned in this case only with the relationship between the meat vendors occupying and using some of the stalls in the market (as the plaintiffs respondents belong to this category) and the appellants landlords. What relationship subsists or subsisted between the appellants and other stall holders vending other commodities is not a matter which can be regarded as relevant for the purpose of deciding the dispute between the appellants and the respondents. It is common ground that under the licence granted by the Municipal Corporation, the market is to remain open between 4 A.m. and II P.m. and that at the end of the day the stall holders have all to leave the place which has then to be swept and disinfected and that the gates of the market have to be locked. None of the stall holders or their servants is allowed to stay in the market after closing time. In point of fact this market used to be opened at 5 A.M. and closed, at 10 P.m. by which time all the stall holders had to go away. It is also common ground that the stalls are open stalls and one stall is separated from the other only by a low brick wall and thus there can be no question of a stall holder being able to lock up his stall before leaving the market at the end of the day. The stall holders were required to remove the carcasses brought by them for sale by the time the market closed. Meat being an article liable to speedy decay the stall holders generally used to finish their 648 business of vending during the afternoon itself and remove the carcasses. They, however, used to leave in their stalls wooden blocks for chopping meat, weighing scales, meat choppers and other implements used by them in connection with their business. These used to be left either in boxes or almirahs kept in the stall and locked up therein. It is also an admitted fact that some of the stall holders have been carrying on business uninterruptedly in their stalls for as long as forty years while some of them have not been in occupation for more than five years. It is in evidence that these stall holders have been executing fresh agreements governing their use and occupation of stalls and payment of what is styled in the agreements as rent whenever a new contractor was engaged by the appellants for collecting rents. The next thing to be mentioned is that the agreements referred to the money or charges payable by the stall holders to the landlords as 'rent ' and not as 'fee. It has, however, to be noted that the dues payable accrue from day to day. Thus in exhibit A 1 the rent of Re. 1 / is stid to be payable every day by 1.00 P.m. In all these agreements there is a condition that in case there is default in payment of rent for three days the stall holder was liable to be evicted by being given 24 hours ' notice. A further condition in the agreements is that a stall holder may be required by the landlord to vacate the stall after giving him 30 days ' notice. There is a provision also regarding repairs in these agreements. The liability for the annual repairs is placed by the agreement upon the landlord and these repairs are ordinarily to be carried out in the month of June every year. Where, however, repairs became necessary on account of the carelessness of a stall holder they were to be carried out at the expense of that stall holder. It may be also mentioned that these agreements are obtained by the contractors from the stall holders in favour of the landlord and bear the signatures only of the stall holder,. It was contended before us by Mr. R. Gopalakrishnan that in order to ascertain the relationship between the appellants and the respondents we must look at the agree 649 ments alone and that it was not open to us to look into extraneous matters such as the surrounding circumstances. It is claimed on behalf of the respondents that the lease in their favour is of a permanent nature. But if that were so, the absence of a registered instrument would stand in their way and they would not be permitted to prove the existence of that lease by parol evidence. From the fact, however, that with every change in the contractor a fresh agreement was executed by the stall holders it would be legitimate to infer that whatever the nature of the right conferred by the agreement upon the stall holders, it could not be said to be one which entitled them to permanent occupation of the stalls. It could either be a licence as contended for by the appellant or a tenancy from month to month. In either case there would be no necessity for the execution of a written agreement signed by both the parties. Here, the agreements in question are in writing, though they have been signed by the stall holders alone. All the same, oral evidence to prove their terms would be excluded by section 92 of the Evidence Act. To that extent Mr. Gopalakrishnan is right. Though that is so, under the 6th proviso to that section the surrounding circumstances can be taken into consideration for ascertaining the meaning of the word 'rent ' used in the agreements. Indeed, the very circumstance that rent is to fall due every day and in default of payment of rent for three days the stall holder is liable to be evicted by being given only 24 hours ' notice it would not be easy to say that this 'rent ' is payable in respect of a lease. On the other hand, what is called rent may well be only a fee payable under a licence. At any rate this circumstance shows that there is ambiguity in the document and on this ground also surrounding circumstances could be looked into for ascertaining the real relationship between the parties. Indeed, the City Civil Court has gone into the surrounding circumstances and it is largely on the view it took of them that it found in favour of the appellants. The High Court, however, has based itself upon the agreements themselves. To start with it pointed out and, in our opinion rightly that the use of the word 'rent ' in, exhibit A 1 did not carry the respondents ' case far. The reasons. 650 given by it for coming to the conclusion that the transaction was a lease, are briefly as follows : (1) Notice was required to be given to the stallholder before he could be asked to vacate even on the ground of non payment of rent; (2) the annual repairs were to be carried out by the landlord only in the month of June; (3) the stall holder was liable to carry out the repairs at his own expense when they are occasioned by his carelessness; (4) even if the landlord wanted the stalls for his own purpose he could obtain possession not immediately but only after giving 30 days ' notice to the stall holder; (5) the possession of the stalls by the respondents had been continuous and unbroken by virtue of the terms of the agreement and that the terms of the original agreement were not shown to have been substituted by fresh agreements executed by the respondents. The High Court, therefore, held that from the general tenor ,of the documents it is fairly clear that as between the appellants and the respondents the terms created only a tenancy in respect of the stalls and not a mere licence or permissive occupation. After saying that if the occupation of the stall holders was only permissive the condition as to payment of rent, eviction for default in payment of rent for more than 3 days, the provision for annual repairs being carried out by the landlord, the further provision that repairs that might be occasioned by the carelessness of the respondents should be carried out at their expense and the adequate provision for 30 days ' notice for vacating the stalls if they were required by the landlord would all seem to be inconsistent and irrelevant, it observed : "As a matter of fact, there is no evidence whatsoever to show that any of these plaintiffs were at any time turned out of their possession of their 651 stalls at the will of the landlords or for default of any of the terms and conditions stipulated in the agreements. The specific provision for 30 days ' notice for vacating and delivering possession seems to be conclusive of the fact that the plaintiffs were to occupy the stalls as permanent tenants and not as mere licensees. The terms of the agreements further disclose that the plaintiffs were to be in exclusive possession of these stalls for the purpose of their trade as long as they comply with the terms and until there was a notice of termination of their tenancy in respect of the shops held by them. The very tenor of the agreements, the intention behind the terms contained in the agreements and the measure of control established by the terms of the agreements, all point only to the fact that the plaintiffs were to be in undisturbed and exclusive possession of the stalls as long as they paid the rent and until there was a valid termination of their right to hold the stalls as such tenants. " While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence. In England it has been held that a contractual licence may be revocable or irrevocable according to the express or implied terms of the contract between the parties. It has further been held that if the licensee under a revocable licence has brought property on to the land, he is entitled to notice of revocation and to a reasonable time for removing his property, and in which to make arrangements to carry on his business elsewhere. (See Halsbury 's Laws of England 3rd edn. 23, p. 431). Thus the mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, section 62(c) of the itself provides that a licence is deemed to be revoked where it has been either granted for a limited period, or 652 acquired on condition that it shall become void on the performance or non performance of a specified act, and the period expires, or the condition is fulfilled. In the agreements in question the requirement of a notice is a condition and if that condition is fulfilled the licence will be deemed to be revoked under section 62. It would seem that it is this particular requirement in the agreements which has gone a long way to influence the High Court 's finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. (lbid p. 427). Here the terms of the document evidencing the agreement between the parties are not clear and so the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. Again, as already stated, the documents relied upon being merely agreements executed unilaterally by the stall holders in favour of the landlords they cannot be said to be formal agreements between the parties. We must, therefore, look at the surrounding circumstances. One of those circumstances is whether actual possession of the stalls can be said to have continued with the landlords or whether it had passed on to the stall holders. Even if it had passed to a person, his right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. That is what was held in Errington vs Errington and Woods(1) and Cobb vs Lane(1). These decisions reiterate the view which was taken in two earlier decisions: Close vs Theatrical Properties Ltd. and Westby & Co. Ltd.,(1) and Smith & Son vs The Assessment Committee for the Parish of Lambeth(1). Mr. section T. Desai appearing for the appellants also relied on the decision of the High Court of (1) (2) (3) [1936] 3 All. E.R.483. (4) at 330. 653 Andhra Pradesh in Vurum Subba Rao vs The Eluru Municipal Council (1) as laying down the same proposition. That was a case in which the High Court held that stall holders in the municipal market who were liable to pay what was called rent to the municipality were not lessees but merely licensees. The fact, therefore, that a stall holder has ,exclusive possession of the stall is not conclusive evidence of his being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. (See Associated Hotels of India Ltd. vs R. N. Kapoor(2). In the case before us, however, while it is true that each stall holder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11 00 P.m. at his pleasure. He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the Market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords, is on the landlords, would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall holders. The right which the stall holders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties (1) I.L.R. at pp. 520 4. (2) ; 654 could not be effectively carried out by the landlord by parting with possession in favour of the stall holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall holders adopted an unreasonable attitude,. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could, in such circumstances, the landlords have ever intended to part with possession in favour of the stall holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent ' was used loosely for 'fee. Upon this view we must allow the appeal, set aside the decree of the High Court and dismiss the suit of the respondents inso far as it relates to reliefs (ii) (e), (f) and (g) grantedby the High Court against the appellants are concerned. So far as the remaining reliefs granted by the High Court are concerned, its decree will stand. In the result we allow the appeal to the extent indicated above but in the particular circumstances of the case we order costs throughout will be borne, by the parties as incurred. Appeal partly allowed.

IN-Abs

in disputes regarding extra fees in respect of meet stalls in a private market owned by the appellants, the respondents stall holders filed a suit alleging that the relationship between them and the appellants was that of lessees and lessors; while according to the appellants, the respondents 643 were only their licensees. The stall holders have been executing agreements, signed by the stall holders alone, in which the payment is styled as rent. Though the building in which the market is located is owned by the appellants it could not be used as a market for the sale of meat or comestibles without the permission of the municipal council, and a number of duties have been imposed upon the owners including that of closing the market and that market functioned only within 'he stated hours. The City Civil Court Judge finding that the respondents were bare licensees dismissed their suit. His decision was affirmed in appeal. On a further appeal the High Court reversed the findings of the Courts below holding that from the general tenor of the document the terms created only a tenancy in respect of the stalls and not a mere licence or permissive occupation saying that if the occupation of the stall holders was only permissive the condition as to the payment of rent, eviction for default in payment of rent for more than 3 days, the provision for annual repairs being carried out by the landlord, the further provision that repairs that might be occasioned by the carelessness of the respondents should be carried out at their expense and the adequate provision for 30 days notice for vacating the stalls if they were required by the landlord would all seem to be inconsistent and irrelevant. On appeal by special leave: Held: (i) While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence, and the mere necessity of giving such a notice would not indicate that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties, which has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. (ii)The fact that a person has exclusive possession is not conclusive evidenceof his being a lessee. If, however, exclusive possession to which a personis entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. Associated Hotels of India Ltd. vs R. N. Kapur, ; , Errington vs Errington and Woods, [1952] 1 K. B. 290, Cobb. vs Lane, , Clove vs Theatrical Proprietors Ltd. and Westby & Co. Ltd. Smith & Son vs The Assessment Committee for the Parish of Lambeth, and vutrum Subba Rao vs The Eluru Municipal Council, I.L.R. [1956] A.P. 515, referred to. (iii) In view of the duties cast upon the landlord and the circumstances of the present case the intention of the parties was to bring into existence merely a licence and not a lease and the word 'rent ' was used loosely for 'fee '.

Appeal No. 770 of 1962. Appeal by special leave from order No. 1742 of 1960 of the Government of India Ministry of Finance (Department of Revenue) dated December 17, 1960 in Custom Revision Application No. 1631 of 1959 and/or from the order dated May 12, 1959 of the Central Board of Revenue in Customs Appeal No. 151 of 1959 and Petition No. 138 of 1961 Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. Sachin Chaudhury, B. Sen and section N. Mukherjee, for the appellant (in C.A. No. 770/62) and the petitioner (in peti tion No. 138/1961). section V. Gupte, Additional Solicitor General, D. R. Prem and R. H. Dhebar, for the respondents (in C.A. No. 770/62 and petition No. 138 of 1961). February 3, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR C.J. This appeal by special leave raises a short question about the true scope and effect of section 52A of the (No. 8 of 1878) 597 (hereinafter called 'the Act '). The appellant, the Indo China Steam Navigation Co. Ltd., which carries on the business of carriage of goods and passengers by sea, owns a fleet of ships, and has been carrying on its business for over 80 years. One of the routes plied by its ships is the Calcutta Japan Calcutta route. An order has been passed by the Customs Authorities confiscating the appellant 's motor vessel 'Eastern Saga" under section 167(12A) of the Act, and giving the appellant the option under section 183 of paying a fine of Rs. 25 lakhs in lieu of confiscation. The appellant contends that this order has been based upon a misconstruction of the provisions of section 52A. The vessel "Eastern Saga" has 6,631 gross registered tons, and 4,441 net registered tons. It has an overall length of 475 2 1/2" a breadth of 59 3" and a summer draft of 24 7". lit carries a crew of 14 officers and 56 seamen. It appears that the vessel has 119 separate rooms, including 34 crews ' cabins, 8 passengers ' cabins, a sailor 's mess, a fireman 's mess, a comprador 's office, a hospital, a boys ' mess, a ship 's office, an engineer 's office, a saloon, lounge, pantry, chart room, radio officer 's cabin, captain 's cabin,, wheel house, alleyways, and stairways. It is clear that the vessel is a well equipped big vessel. It has also domestic; refrigeration compartments which are lined by insulated walls. All crew accommodation in the vessel has been in sulated as required by statutory regulations. Such insula tion consists of a sheathing or panelling of fire board or similar material tacked to wooden frames inserted between the stiffeners jutting out from the steel bulkheads or walls of the said vessel, in consequence of which hollow spaces are left between the panelling and the walls of the vessel, The said panelling or sheathing formed a removable feature or furnishing of the said vessel. The 'Eastern Saga ' arrived at Calcutta from the Far East on October 29, 1957. In the course of its ordinary voyage, as a cargo vessel carrying, a legitimate cargo of 24,815 packages of general merchandise weighing 1,506 tons, it was rummaged by Calcutta Customs Officers on the 30th and 31st October and on the 12th November, 1957 598 On search being made of the vessel 's domestic refrigeration compartments, a two tier white painted shelf was found fixed to the insulated wall of the handling room. The screws which seemed like holding the shelf to the wall. in fact, did not do so they had been hammered flat and could not be turned by a screw driver; the shelf was held by some wooden plugs which had been hidden below a coat of paint; below the shelf, there was a hole in the panelling closed with a plug; this hole gave access to the insulation space of the compartment; it was of the size 7"X4 1/2". Nothing was found hidden in that space. A cabin on the forecastle of the vessel was then searched and two rectangular openings in the cabin wall panelling were discovered behind a steel clothes locker which was screwed to the wall. One of these was closed with a wooden cover. They measured 5"X 13" and 5" X 5" respectively. Nothing was found hidden in either of these two spaces. The cabin marked "Compradoree ' was also searched, and when a wooden bench which, was screwed to the wall panelling was removed, two rectangular holes were found in the panelling behind the bench. These holes which were covered with wooden plugs and overpainted, measured 5" X 4 1/2" and 8" X2 1/2". Nothing was found in these spaces either. The cabin of No. 1 Fitter was then searched and two rectangular holes were found in the visible part of the wall panelling which had been filled in and overpainted; they were respectively 7 1/2"X 10 1/2" and 12" X 12" in size. Nothing was found hidden in these spaces. That took the. searching party to the sailors ' accommodation where a hole measuring 2 1/2"X5 1/2" was found in the wall paneling behind the back batten of a wooden seat which had been screwed to the wall. This hole was covered with a piece of wood and over painted. The hole opened into a space and in that space, the Customs Officers found a large quantity of gold in bars. Further search in the sailors ' accommodation led to the discovery of a hole in the wall panelling behind a steel clothes locker which was closed with a wooden plug. Nothing was found in it. That is how a search was made by the customs officers on Eastern Saga and in one of the holes a large quantity of gold in bars was discovered. 599 On November 12, 1957, notices were served on the owners ' Agents at Calcutta, M/s. Jardine Henderson and Co. Ltd., and on the master of the vessel, Captain Kiunear, respectively to show cause why the vessel should not be con fiscated under section 167(12A) since it had contravened section 52A of the Act and penal action should not be taken against the agents and the master in that behalf. On the same day, a notice in similar terms was issued to Kwok Cho, a member of the crew of the Eastern Saga who had come forward to claim the gold which was discovered as a result of the search. On November 13, 1957, a further notice to show cause was served on the master in regard to another hole which had been discovered after the issue, of the first notice. The agents and the master thereupon sent elaborate replies setting forth their pleas that, in law, no action could be taken against them. The master pleaded that he had no knowledge of the presence of gold or unauthorised holes in the ship and had taken all reasonable precautions in accordance with the Company 's instructions. He fully adopted the other pleas made by the agents. The agents substantially relied on a report by M/s. Norman Stewart and Co., Marine Surveyors, Naval Architects and Consulting Engineers, and urged that unless special, extensive, time consuming and uneconomic detailed searches were carried out, it was impossible to discover special hiding places like the ones discovered on the search made by the customs authorities. They also urged that they had no knowledge about the holes or about the gold which was discovered from one of them. They referred to the statement made by Kwok Cho and alleged that the said statement showed that gold could be smuggled by a smuggler without the knowledge of the master and the owners of the ship. The ship moves on High seas from place to place, during the course of business, and it was impossible that the master, though in the ship, would know anything about the criminal activities of a smuggler carried on in nooks and corners of the ship, and it was inconceivable that the owners of the ship would ever know what was happening on the ship during its travel on the High seas. They also relied on the fact that they had taken all the precautions which could be taken reasonably and had issued express and definite instructions 600 to their crew against committing any offence like smuggling. On receiving the replies sent by the agents, the master,and Kwok Cho, the Additional Collector of Customs heard the appellant, and on November 23, 1957, he passed the impugned order. He held that having carefully considered the written explanations tendered and oral arguments urged before him, he was satisfied that the preventive measures taken by the owners, the agents, and the master proved to be hopelessly inadequate and ineffective. He accepted their. plea that they need not be regarded as persons concerned in the illegal importation of gold into India within the meaning of section 167(8) of the Act. He also upheld their plea that the openings found in the cabin of No. 1 Fitter did not attract the provisions of section 167(12A). In regard to other matters, the explanations offered appeared to him to be unsatisfac tory and unacceptable. His conclusion, therefore, was that the vessel had clearly rendered itself liable to confiscation under section 167(12A) because it had infringed the provisions of section 52A. The quantity of gold found on the vessel was approximately of the value of Rs. 23,79,490/80 nP. Rs. 109/24 nP. per tola, and he noticed the fact that this was the recovery made in one of the several cavities found on the ship. He was, therefore, inclined to infer several holes discovered in the vessel indicating the extent to which the hiding places were used for contravening section 52A. That is why he confiscated 1,358 gold bars discovered as a result of the search absolutely under section 167(8) read with section 23A of the Foreign Exchange Regulation Act. He also imposed a personal penalty of Rs. 10,000 on the sailor Kwok Cho. In regard to the ship, he directed that Eastern Saga be confiscated under section 167(12A) and in lieu thereof, he gave the owners of the ship an option to pay a fine of Rs. 25 lacs which he directed should be paid within 30 days of the date of the despatch of the order, or such extended time as may be allowed. In passing this order, the Additional Collector observed that he had taken into consideration the fact that the agents had already suffered some loss due to the vessel 's detention at the port. The appellant then preferred an appeal before the Central Board of Revenue. The Board considered the matter and came to the conclusion that none of the contentions 601 raised by the appellant was either warranted or supported by the law as it stands. The Board expressed its concurrence with the conclusions of the Additional Collector that the offence under section 52A of the Act had been proved, and the appellant was liable to be dealt with under section 167(12A) of the Act. In regard to the grievance made by the appellant that the fine imposed by way of option was excessive, the Board observed that having regard to the quantity and value of the smuggled gold and other relevant facts, it was not inclined to make any change in the said order. The penalty imposed on the master, said the Board, was also not so large as to need any revision. It is not disputed that the value of the ship is very much more than the amount of Rs. 25 lacs imposed by way of fine under section 183. This order was pronounced on May 12, 1959. The appellant 's attempt to move the Government of India in its revisional jurisdiction failed and its application was dismissed on December 20, 1960. The appellant then moved this Court for special leave and it is with the special leave granted by this Court that the present appeal has come before us. At the hearing of this appeal, the learned Additional Solicitor General has urged a preliminary objection. He contends that none of the Customs Authorities which had dealt with the appellant 's case is a tribunal under article 136(1) of the Constitution, and so, the appeal preferred by the appellant is incompetent. It is true that special leave has been granted to the appellant by this Court, but there can be little doubt that even in cases where special leave has been granted at the ex parte hearing of the matter on the petition of the appellant for special leave, the respondent can at the final hearing, raise a preliminary contention that special leave should not have been granted, since the decision, judgment, or order appealed against, has not been pronounced either by a Court or Tribunal within the meaning of article 136(1). The Additional Solicitor General argues that neither the Customs Collector, nor the Central Board of Revenue, nor the Central Government is a Tribunal, and so, special leave granted to the appellant should be revoked on that ground. It is settled by decisions of this Court that the Customs Officer who initially acts under section 167(12A) is not a Court 602 or Tribunal, though it is also settled that in adjudicating upon the question as to whether section 52A has been contravened by any ship and by such contravention the said ship has made itself liable to confiscation under section 167(12A), the Customs Officer has to act in a quasi judicial manner. In Shewpujanrai Indrasanarai Ltd. vs Collector of Customs and Others(1) this Court has held that an order of confiscation or penalty passed under the is not a mere administrative or executive act, but is really a quasi judicial act, and, therefore, an application for a writ of certiorari lies in respect of such order under article 226 of the Constitution. In expressing this conclusion, section K. Das J. who spoke for the Court, has referred to two earlier decisions where this point had been considered and it was held that in holding his proceedings under the , the Collector acts judicially, vide F. N. Roy vs Collector of Customs, Calcutta, (2) and Lea Roy Frey vs The Superintendent, District Jail, Amritsar and Anr.(3). Similarly, in Thomas Dana vs State of Punjab,(1) this Court has observed that the Collector and other Officers in the hierarchy mentioned by the may have to act judicially in the sense of having to consider evidence and hear arguments in an informal way; even so, the Act does not contemplate that in doing so, the said authorities are functioning as a Court. In Maqbool Hussain vs The State of Bombay etc.,(1) while dealing with the impact of the confiscation of goods under the relevant provisions of section 167 of the Act on the question as to the constitutionality of a subsequent prosecution launched against a person whose goods had been confiscated, this Court had occasion to consider the effect of the order of confiscation in relation to the provisions of article 20 Of the Constitution, and it was held that the proceeding before the Sea Customs Authorities under the Act was not a prosecution and the order of confiscation was not a punishment inflicted by a Court or Judicial Tribunal within the meaning of article 20(2), and so, the impugned prose (1) ; (2) ; (3) ; (4) [1959] Supp. (1) S.C.R. 274. (5) ; at p. 742. 603 cution was not incompetent or invalid. It would thus be seen that one of the points which this Court had to consider in that case was whether the Collector who had passed the order of confiscation, was a Judicial Tribunal within the meaning of article 20, and the answer rendered by this Court was in the negative. It is true that in giving this answer this Court has observed that 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. It would be noticed that the last observation is purely in the nature of an biter observation because the status of the Central Board of Revenue or the Central Government is dealing with the appeals or revision applications under section 190 and 191 of the Act did not fall to be considered in that case, was not argued, and naturally has not been examined; and so, this observation cannot be treated as a decision on the question which has been argued before us in the present appeal. The result, therefore, is that it is no longer open to doubt that the Customs Officer is not a Court or Tribunal, though in adjudicating upon matters under section 167 of the Act, he has to act in a judicial manner. It may be conceded that neither the Central Board of Revenue, nor the Central Government is a Court within the meaning of article 136. The question which then arises is, can the Central Board of Revenue exercising its appellate power under section 190 of the Act, or the Central Government exercising its revisional jurisdiction under section 191, be held to be a Tribunal under article 136? It is clear that before an appeal can be enter tained in this Court under article 136, two conditions have to be satisfied; the order impugned must be an order of a judi cial or quasi judicial character and should not be purely an administrative or executive order; and the said order should have been passed either by a Court or a Tribunal in the territory of India. It is difficult to lay down any definite or precise test for determining the character of a body which is called upon to adjudicate upon matters brought before it. Sometimes in deciding such a question, courts enquire 604 whether the body or authority whose status or character is the subject matter of the enquiry, is clothed with the trap pings of a court. Can it compel witnesses to appear before it and administer oath to them, is it required to follow certain rules of procedure, is it bound to comply with the rules of natural justice, is it expected to deal with the matters before it fairly, justly and on the merits and not be guided by subjective considerations; in other words, is the approach which it is required to adopt judicial or quasi judicial approach? If all or some of the important tests in that behalf are satisfied, the proceedings can be characterised as judicial proceedings and the test of trappings may be said to be satisfied. But apart from the test of trappings, another test of importance is whether the body or authority had been constituted by the State and the State has conferred on it its inherent judicial power. If it appears that such a body or authority has been constituted by the legislature and on it has been conferred the State 's inherent judicial power, that would be a significant, if not a decisive, indication that the said body or authority is a Tribunal. It is in the light of these considerations that we have to examine the question as to whether the Central Board of Revenue and the Central Government is a Tribunal or not under article 136. Before doing so, however, we may refer to some of the decisions which were cited at the Bar on this point. In M/s. Harinagar Sugar Mills Ltd. vs Shyam Sunder Jhun jhunwala and Others(1) the question raised before this Court was whether the Central Government while exercising its powers under section 111(3) of the (No. 1 of 1956) is a Tribunal within the meaning of article 136, or not. In dealing with this question, this Court first enquired whether, while exercising its powers under section 111 of the , the Central Government was required to act judicially or not. The scheme of section 111 was then analysed and it was observed that in an appeal preferred under section 111, there was a lis or dispute between the con testing parties relating to their civil rights, and the Central Government was invested with the power to determine that dispute according to law. This dispute was in regard to the claim made by a transferee of a Company 's shares to have (1) ; 6o5 his transfer registered in the Company 's register, and the view which this Court took was that when such a dispute goes before the Central Government under section 111, it has to consider and decide the proposal and the objections in the light of the evidence, and not on grounds of policy or expe diency. That is why this Court came to the conclusion that the Central Government was a Tribunal under article 136 of the Constitution. In support of the view taken on this point, this Court referred to an earlier decision in Shivji Nathubhai vs The Union of India and Ors. ,(1) where it was held that the Central Government exercising power of review under r. 54 of the Mineral Concession Rules, 1949 against an administrative order of the State Government granting a mining lease was subject to the appellate jurisdiction of this Court, because the power to review was judicial and not administrative. Thus, these, two decisions show how the character of the adjudication made by the Central Government either under section 111(3) of the , or under r. 54 of the Mineral Concession Rules, 1949, was determined by this Court. As illustrations of cases where the application of the said tests leads to the conclusion that certain authorities cannot be held to be tribunals, we may refer to the decisions of this Court in Jaswant Sugar Mills Ltd., Meerut vs Lakshmi Chand and Ors.(2) and Engineering Mazdoor Sabhaand Anr.v. Hind Cycles Ltd.(3). It is in the licht of these decisions that we will proceed to consider whether the Central Board of Revenue and the Central Government can be said to be a Tribunal under article 136 of the Constitution. In considering this matter, let us briefly examine the procedure prescribed by the Act in relation to the adjudica tions made under its provisions. Before we do so, however, we ought to refer to the authorities that function under the Act. Section 3 of the Act refers inter alia, to three authorities which function under it. The Chief Customs Authority is the Central Board of Revenue constituted under the . The Chief Customs Officer is the Chief Executive Officer of Sea customs for any (1) ; (2) [1963] Supp. 1 S.C.R. 242. (3) [1963] Supp. 1 S.C.R. 625. 606 port to which the Act applies; and the Customs Collector includes every officer of Customs for the 'time being in separate charge of a custom house, or duly authorised to perform all, or any special duties of an officer so in charge. It is by reference to these three categories of officers that the procedure prescribed by the Act has to be considered. Chapter XVII of the Act deals with the procedure relating to offences, appeals, etc. Section 169 confers on the Customs Officers power to search on reasonable suspicion. Section 170A confers power on the Customs Officer to screen or X ray bodies of persons for detecting secreted goods. Section 171 prescribes the powers of Customs Officer for boarding and searching such vessels. Section 171 A lays down the powers of Officers of Customs to summon persons to give evidence and produce documents. The power to summon a person to give evidence would include the power to administer oath to him under section 4 of Act 1 of 1873. An enquiry held by the Officer of Customs under section 17 1 A is by sub section (4) of section 171 A deemed to be a judicial pro ceeding within the meaning of sections 193 and 228 of the Indian Penal Code. Under section 183, the officer adjudging the matter brought before him under section 167 of the Act is empowered to give an option to a person to pay a fine in lieu of confiscation. Having thus broadly referred to the provisions relating to adjudication by the Customs Officer, we would now examine the provisions in regard to appeals and revisions made by the Act. Section 188 provides for an appeal against any decision or order passed by any officer of Customs, and it requires that the said appeal must be filed within three months from the date of the order or decision challenged. This appeal lies to the Chief Customs Authority, or in such cases as the Central Government directs, to any Officer of Customs not inferior in rank to a Customs Collector and empowered in that behalf by name or in virtue of his office by the Central Government. The section further provides that the appellate authority may make such enquiry and pass such order as it thinks fit, confirming, altering or annulling the decision or order under appeal. The proviso to this section makes it clear that no order passed in appeal can impose upon the person any greater confiscation, penalty or 607 rate of duty than has been adjudged against him in the original decision or order. The section adds that every order passed in appeal hall be final, subject to the power of revision conferred by section 191. It is thus clear that the orders passed by the Officers of Customs are made appeal able, and the appellate authority is required to reconsider the matter, hold additional enquiry if thought necessary and decide the contentions raised by the appellant on the merits. Section 189 refers to the requirement of the deposit of duty demanded which has to be made by the appellant pending the appeal, and it naturally provides that if as a result of the decision of the appeal, the whole or any portion of the amount deposited is not leviable, the Customs Collector shall return such amount or portion, as the case may be, to the owner of such goods on demand by such owner. Section 190 confers upon the Chief Customs Authority the power to remit penalty or confiscation. Section 190A deals with the revisional powers of the Chief Customs Authority and the Chief Customs Officer; and section 191 prescribes for the revisional powers of the Central Government. Both the revisional powers specified by section 190A and section 191 can be exercised either suo motu by the revisional authority, or on an application made by an aggrieved party in that behalf. That, briefly, is the scheme of appeals and revisions contemplated by the Act. There is a regular hierarchy of authorities beginning with the Customs Officer who deals with the problems of adjudication initially and ending with the Central Government which is the final revisional autho rity. We may also incidentally refer to Rule 49 of the Rules framed by the Central Government in exercise of powers conferred on it by section 9 (c) of the Act. This Rule provides that every appeal presented to the Chief Customs Authority under section 188 and every application made to the Governor General in Council under section 191 shall be accompanied by a copy of the decision or order by which the appellant or the applicant is aggrieved. The question which we are consider ing at this stage is whether the appellate authority acting under section 188 and the revisional authorities acting under sections 190A and 191 can be said to be tribunals within the meaning of article 136. 608 It is thus clear that after the order of confiscation is made under section 167(12A) and an option is given to the owner of the offending ship under section 183, the initial proceedings taken 'under the Act come to an end and a stage is reached for making an appeal against the order of confiscation or the imposition of fine. In the present appeal, we are concerned with the subsequent stage of the proceedings, because what we have to decide on the preliminary objection raised by the Additional Solicitor General is the status or character of the appellate authority or the Central Gov ernment which exercises its revisional jurisdiction. In our opinion, having regard to the scheme of the sections which we have just cited, there is no difficulty in holding that the Central Board of Revenue which functions as an appellate authority, and the Central Government which exercises revi sional powers are both Tribunals within the meaning of article 136 of the Constitution. A dispute is raised either by way of appeal or revision by the party aggrieved by the order passed by the Customs Officers, and that dispute has to be tried by the appellate or the revisional authority in the light of the facts adduced in the proceedings and according to law. All the proceedings under the Act, whether before the Customs Officer, or whether in appeal or revision, have to be conducted in accordance with the principles of natural justice and they are in that sense judicial or quasi judicial proceedings. The fact that the status of the Customs Officer who adjudicates under section 167(12A) and section 183 of the Act is not that of a tribunal, does not make any difference when we reach the stage of appeal or revision. A period of limitation is prescribed for the appeal, a procedure is prescribed by Rule 49 that the appeal or revision must be accompanied by a copy of the decision or order complained against, and the obvious scheme is that both the appellate and the revisional authorities must consider the matter judicially on the evidence and determine it in accordance with law. It is obvious that heavy fines are imposed in these proceedings and the confiscation orders passed may affect ships of very large value. By his appeal or revisional application the ship owner naturally contends that the order of confiscation is improper or invalid and he sometimes urges that the fine imposed is unreasonable and excessive. Where disputes of this character are raised before the appellate or 609 the revisional authority, it would be difficult to accede to the argument that the authority which deals with these dis putes in its appellate or revisional jurisdiction is not a tribunal under article 136. These authorities are constituted by the legislature and they are empowered to deal with the disputes brought before them by aggrieved persons. the scheme of the Act, the nature of the proceedings brought before the appellate and the revisional authorities. the extent of the claim involved, the nature of the Denalties imposed and the kind of enquiry which the Act contemplates, all indicate that both the appellate and the revisional authorities acting under the relevant provisions of the Act constitute Tribunals under article 136 of the Constitution, because they are invested with the judicial power of the State, and are required to act judicially. Therefore, we must over rule the preliminary objection raised by the Additional Solicitor General and proceed to deal with the appeal on the merits. That takes us to the principal question as to the cons truction of section 52A of the Act which has been elaborately argued before us by Mr. Sachin Choudhury. Section 52A provides that no vessel constructed, adapted, altered, or fitted for the purpose of concealing goods shall enter, or be within the limits of any port in India, or the Indian customs waters. This section is the only section included in Chapter VIA and it was inserted by Act 10 of 1957. The plain construction of this section appears to be that whenever a ship answering the description contained in its first part enters or is within the limits of any port in India, or the Indian customs waters, it contravenes the prohibition prescribed by it. The prohibition is against the construction, adaptation, alteration or fitting for the purpose of concealing goods. What has to be proved against a vessel which is charged with having contravened section 52A is that there has been a construction, adaptation. alteration or fitting, and that the said construction, adaptation, alteration or fitting has been made for the purpose of concealing goods. Therefore, if an alteration in a vessel made for the purpose of concealing goods is proved, the contravention of section 52A must be inferred. In other words, the section prohibits absolutely the entry of vessels which show that there has been any 134 159 S.C. 39. 610 construction, adaptation, alteration or filling made in them for the purpose of concealing goods. Mr. Choudhury contends that the contravention of section 52A cannot be established unless the mens rea is proved against the persons responsible for the alleged contravention. In that connection he has relied on the fact that the section makes no difference between concealed goods which are not contraband and those which are contraband. In other words, the argument is that if an alteration is proved to have been made for the purpose of concealing goods which are legitimately carried by the vessel, even so the contraven tion would attract the provisions of section 167(12A) of the Act. That being so if the sweep of the prohibition prescribed by section 52A is so wide, it is necessary to import the requirement of mens rea in determining its scope. He has also relied on the well recognised principle of criminal jurisprudence that unless a statute creating an offence and providing for its punishment clearly, or by necessary implication, rules out mens rea as an essential part of the offence, no person should be found guilty of the said offence unless his guilty mind is proved. There is no doubt that in Ravula Hariprasada Rao vs The State(1), this Court speaking through Fazl Ali J., has accepted the observations made by the Lord Chief Justice of England in Brend vs Wood(1) that "it is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind". (vide also Sherras vs De Rutzen(3). It may also be conceded that offences in respect of which mens rea is not required to be established, are usually of a comparatively minor character and sentences imposed against the offenders are, therefore, not of a severe type; and in the present case, it cannot be disputed that the con fiscation of the ship may mean a serious loss to the owner (1) ; (2) , 318. (3) , 921. 611 of the ship, or imposing a fine against him by way of giving him option in lieu of the confiscation of his ship may also involve the payment of a very large amount; and so, prima facie, there is some force in Mr. Choudhary 's argument that the element of mens rea should not be excluded in consider ing the scope and effect of section 52A of the Act. On the other hand, the scheme of section 167 supports the contention of the Additional Solicitor General that if we read section 52A along with section 167(12A), it would be clear that the legislature intends, by necessary implication, the exclusion of mens rea in dealing with the contravention of section 52A. Section 167(12A) provides that if a vessel constructed, adapted, altered or fitted for the purpose of concealing goods under section 52A, enters or is within the limits of any port in India or within the Indian Customs waters such vessel shall be liable to confiscation and the master of such vessel shall be liable to a penalty not exceeding Rs. 1,000. It would be noticed that in column 1, section 167(12A) reproduces the material words of section 52A and does not add the words "knowingly or wilfully". It is significant that the words "knowingly or wilfully" are used in several other provisions contained in section 167. Section 167(14) and section 167 (61) use the word "wilfully" in respect of the commission of the offences there specified. Similarly section 167(3) and section 167(81) use the word "knowingly" and section 167(78) uses the word "intentionally". Similarly, in section 167(8), though the words "knowingly or wilfully" are not used, we have the expression "concerned in", and that may introduce considerations of mens rea. Thus, where the legislature wanted to introduce the knowledge or intention actuating the commission of the offence as an essential element of the offence, it has used appropriate words to indicate that intention. The failure to use a similar word in section 167(12A) cannot, therefore, be regarded as accidental, but must be held to be deliberate. In our opinion, there is some force in this argument as well. Besides, there can be no doubt that in construing a section, it would be relevant for the Court to consider whether the construction for which Mr. Choudhary contends would not make the provisions of section 52A read with section 167 (12A) substantially nugatory. If it appears that the adoption 612 of the said construction would substantially defeat the very purpose and intention of the legislature in enacting the said section, that would be a legitimate reason for rejecting the said construction. If the words used in section 52A are capable of only one construction and no other, and that construction is the one suggested by Mr. Choudhary, the fact that by adopting the said construction the section would be rendered nugatory, would not be of any material significance. If, on the other hand, two constructions are reasonably possible one of which leads to the anomaly just indicated, while the other does not and helps the effectuation of the intention of the legislature, it would be the duty of the Court to accept the latter construction. The intention of the legislature in providing for the prohibition prescribed by section 52A is, inter alia, to put an end to illegal smuggling which has the effect of disturbing very rudely the national economy of the country. It is well known, for example, that smuggling,of gold has become a serious problem in this country and operations of smuggling are conducted by operators who work on an international basis. The persons who actually carry out the physical part of smuggling gold by one means or another are generally no more than agents and presumably, behind them stands a well knit Organisation which, for motives of profit making, undertakes this activity. That is why section 52A makes an absolute prohibition against the entry of a vessel which contains, inter alia any alteration made for the purpose of concealing goods. Entry of contraband gold with the help of ships has thus become a serious problem and is intended to be checked by this absolute prohibition. If it was held that the knowledge of the owners of the offending vessel or of its master should be proved before section 52A is held to be contravened, in a majority of cases, the offending vessels will escape punishment. It is not difficult to imagine that mens rea or guilty mind could rarely be established against the owners of vessels which are traveling on the High seas and it may not be always easy to prove the guilty knowledge even of the master of the ship. If the guilty mind is made an essential constituent of the section, it would be very easy both for the owners and the master of the ship to plead that the alleged alteration, adaptation or fitting was made with 613 out their knowledge and even contrary to their instructions. It is not difficult to realise in this connection that it would be almost impossible for the customs authorities to establish mens rea in the manner suggested by the appellant. Section 52A refers to the construction for the purpose of concealing goods, but it is obvious that no vessel would ordinarily be constructed initially for the purpose of concealing goods. Like the adaptation, alteration or fitting, the construction also would be made in such a manner as would not be easily detected or discovered. Therefore, it seems to us plain that if we are to accept the construction suggested by Mr. Choudhary, mens rea would rarely be proved against the owners of the vessel, or even its master and the section, in substance, would remain a dead letter on the statute book. In this connection, it is necessary to bear in mind that as the heading of the Chapter shows, what section 52A aims at is the entry of the vessels and that. in fact, is the manner deliberately adopted by the legislature in prescribing the prohibition. It is the entry of the vessel that is prohibited and the use of the negative form adopted by the legislature in enacting section 52A is intended to show that the prohibition is not concerned with the owner of the vessel or the master. the prohibition is concerned with the vessel itself and it provides that a vessel is prohibited from entering the limits of any port in India or the Indian Customs Waters. or remaining there, provided it answers the description mentioned in the first part of section 52A. The only safeguard which is legitimately available to the vessel in resisting the charge that it has contravened section 52A is provided by the requirement that the alleged altera tion, for instance, must be shown to have been initially made for the purpose of concealing goods. If the alteration is shown to serve any operational or functional purpose in the ship, that would clearly justify the plea that it was not made for the purpose of concealing goods. It may be that if the alleged alteration, adaptation or construction is proved to have been initially made for a functional or operational purpose, and it is shown that subsequently it has been used without the knowledge of the master or the owners for the 614 illegal purpose, that may raise a triable issue as to whether the alteration falls within the description of section 52A; but where the alteration is not shown to serve any functional or operational purpose and its very nature suggests that it was intended to serve some secret purpose, it would be easy to draw the inference that its purpose was to conceal goods. Therefore, in our opinion, there is no doubt that the Customs Authorities were right in holding that the mere fact that the owners of the vessel or the master were not shown to have been privy to the alteration etc. or the concealment of gold bars recovered from the offending ship would not take the case of appellant outside the purview of section 52A. The knowledge of the owners, or even of the master is, in the context of section 52A, entirely irrelevant. What is relevant is the proof of the fact that the vessel answering the description prescribed by section 52A entered within the limits of Calcutta which is a port in India. Mr. Choudhary further argued that the alteration on which the case against the appellant is based in the present case cannot be said to be an alteration contemplated by section 52A, because it is not an alteration of the vessel. He suggests that the construction, adaptation, alteration or fitting must be of the vessel as a whole, or, at any rate, of any part of the vessel which can be regarded as its integral or essential part; the paneling wall in 'which the apertures were made, cannot be treated as a part of the vessel, and so, the alteration in question cannot be said to attract section 52A. That, in substance, is another argument which has been pressed before us on behalf of the appellant. In support of this argument, Mr. Choudhary referred us to the certificate issued by Mr. B. Hill who is a Surveyor to Lloyd Register of Shipping united with the British Corporation Register. In this certificate Mr. Hill Purports to say that in his opinion the panelling and lining constitute no part of the vessel & the expression "vessel" is understood for the purpose of its being assigned the notation 100 Al or any other class notation in the Register Book of Lloyds Register of Shipping or for the purpose of the issue of a Loadline Certificate under the Merchant Shipping Acts and that such panelling or lining is not required to be shown in the ship 's official 615 plans submitted to Lloyds Register of Shipping in connection with the above purposes. He adds that such panelling is customarily installed in British Vessels for the health and comfort of crew as a method of insulating accommodation. We are not prepared to accept Mr. Choudhary 's argument that there is any material on the record to show that the panelling is not a part of the vessel. A vessel is defined by section 3 (f) of the Act as including anything made for the conveyance by water of human beings or property; and there seems to be no reason to hold that the panelling is not its integral part. Mr. Hill who has purported to give this certificate has not given evidence in the present proceedings and the statements made by him in his certificate have, therefore, not been tested. Besides, his opinion that the panelling does not form part of the vessel as understood for the two purposes mentioned by him in his certificate cannot assist us in determining whether it can be held to be a part of the vessel under section 52A. For whatever purpose panelling may be constructed, once it is constructed it becomes a part of the vessel and as such, any alteration made in the panelling would attract the provisions of section 52A. We must therefore. reject Mr. Cboudhary 's argument that even if an alteration is proved to have been made in the panels of the vessel, section 52A could not be applied. The contention which Mr. Choudhary faintly urged before us, that the holes made in the panelling walls do not constitute an alteration at all is, clearly ill founded, because the manner in which the holes were made and the use which was obviously intended to be made of the said holes, leave no doubt that they constitute alteration within the meaning of section 52A. Thus, our conclusion is that the Customs Authorities were right in holding that the facts proved in the case showed that the appellant 's vessel Eastern Saga contravened the provisions of section 52A when it entered the port of Calcutta and as such, incurred liability prescribed by section 197(12A) of the Act. What is the nature of the liability prescribed by section 167 (12A) is the next question which calls for an answer in the present appeal. We have already seen that section 167(12A) Provides that if a vessel contravenes section 52A, it shall be liable 616 to confiscation and the master of such vessel shall be liable to a penalty not exceeding Rs. 1,000. Can it be said that the penalty prescribed by section 167(12A) may in any given case not be imposed against the ship on the ground that the contravention proved against it is of a very trivial character, or has been the result of an act on the part of a criminal who acted on his own contrary to the instructions of the master of the ship? The words used in the third column of cl. 12A are that "such vessel shall be liable to confiscation". The context seems to require that it is not open to the Customs Authority to refuse to confiscate the vessel on the ground that there are any extenuating circumstances surrounding the contravention of section 52A in a given case and that it would be unfair to impose the penalty of confiscation. Two penalties are prescribed, one is the confiscation of the ship, and the other is a fine against the master. In regard to the latter penalty, it is within the discretion of the Customs Authority to decide what amount of penalty should be imposed; just as in the case of the first penalty it is not open to it to say that it would not impose the penalty of confiscation against the offending ship, so in the case of the second penalty it is not open to it to say that it will not levy any penalty against the master. In its discretion, it may impose a very small fine against the master if it is satisfied that the master was innocent and despite his best efforts, he could not prevent the contravention of section 52A. If the two penalties prescribed by clause 12A had been alternative, the position may have been different; but they are independent penalties. one is against the ship and the other is against the master,. and so, there is no scope for contending that the Customs Authority may refuse to impose one penalty and impose the other, or may refuse to impose either of the two penalties. It must be regarded as an elementary requirement of clause 12A that as soon as the offence referred to in column 1 of the said clause is proved, some penalty has to be imposed and cl. 12A indicates that two penalties have to be imposed and not one, there being discretion in regard to the penalty impassable against the master as regards the amount of the said penalty. Therefore, we do not think it would be possible to take the view that if there are extenuating circumstances attending the contravention of section 52A in a given case the 617 Customs Authority can refrain from confiscating the vessel. Confiscation of the vessel is the immediate statutory conse quence of the finding that an offence under clause 12A is established, just as the imposition of some penalty against the master is another statutory consequence of the same contravention. In fairness, we ought to add that Mr. Choudhary did not support the view which appears to have been taken by Sinha J. in the case taken before him under article 226 by the Everett Orient Line Incorporated (vide W.P. No. 121/1959 and C.A. No. 374/1961 which have been heard along with this appeal and will be dealt with separately). It appears that in that case Sinha J., held that there was discretion in the Customs Authority in the exercise of which it may, in a proper case refuse to confiscate the offending vessel. In our opinion, this view is not justified by the words of clause 12A of section 167. But the confiscation of the offending vessel under clause 12A is not the end of the matter. In dealing with the offence adjudicated under cl. 12A of section 167, the Customs Officer has also to exercise his jurisdiction under section 183 of the Act. In fact, section 167(12A) and section 183 have to be read together and the adjudication proceedings have to be dealt with in the light of the provisions of the said two sections. Section 183 lays down that whenever confiscation is authorised by this Act, the officer adjudicating it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. It is thus clear that in dealing with offences under section 167(12A), an obligation is, imposed upon the Customs Officer to give the owner of the goods an option to pay fine in lieu of confiscation. It is not disputed, and rightly, that the word "goods" used in section 183 includes vessels, and so, when the adjudicating officer was dealing with the present case, it was his duty to indicate the fine which the owners of the ship can, in their option, choose to pay. That is why the construction of clause 12A of section 167 which leaves no discretion in the adjudicating officer in the matter of confiscating the ship, does not finally determine the matter. Though confiscation is a statutory corollary of the contravention of section 52A, the legislature realised that confiscation of the vessel may cause unnecessary hardship to the owners of the vessel and so a. 183 expressly 618 requires the adjudicating officer to give an option to the owners of the offending vessel. Confiscation is no doubt authorised and required by section 167(12A), but the statutory obligation makes it necessary for the officer to give an option to the owners, and so, in substance, the ultimate penalty which may be imposed on the owners does fall to be determined in the discretion of the said officer. Section 1 8 3 confers discretion on the officer to determine what amount of fine should be imposed in lieu of confiscation, and in doing so, he will undoubtedly have to take into account an relevant and material circumstances, including the extenuating factors on which the owners may rely. Thus, the confiscation of the offending vessel which has been taken out of the domain of the Customs Officer 's discretion under clause 12A, is indirectly brought within his discretion under section 183. Indeed, the scheme of section 183 shows that the only penalty which in law, the officer can impose is one of confiscation. Having done that, he gives an option to the owners of the vessel to pay a fine in lieu of confiscation. There is little doubt that this scheme has been adopted, because if the imposition of fine was made an alternative penalty, difficulties would have arisen in the way of recovering the fine; and so, the legislature has provided that the offending ship should be detained; if the offence is proved, it should be confiscated and the owner of the vessel should be given an option to get his vessel released by paying the fine, which may be imposed on him under section 183. The very fact that an option has to be given to the owner shows that the fine imposed under section 183 is not a matter of penalty imposed by the officer as such, but is only an option given to the owner. Therefore, we are satisfied that on a fair reading of section 16 / (12A) and section 183 of the Act, the course adopted by ,he Customs Authorities is not open to any challenge. Mr. Choudhary then attempted to argue that on the merits, the Central Board of Revenue was in error in holding that section 52A had been contravened by the appellant 's vessel Eastern Saga. We have already indicated in brief the findings recorded by the customs authorities. It is true that the Additional Collector of Customs accepted the plea of the appellant that the owners of the vessel were not concerned with the illegal importation of gold into India within the 619 meaning of section 167(8) of the Act; but he has also found that the preventive measures taken by the owners, the agents and the master for stopping smuggling on board their vessel proved hopelessly inadequate and ineffective. He has also examined the nature of the alterations made and he has concluded that the alterations were made for the purpose of concealing goods. In fact, the presence of so many altera tions on this vessel itself would justify the conclusion that they were made for the illegal purpose prohibited by section 52A. But when gold bars 1,358 in numbers were actually re covered from one of the holes made in the panelling wall, it is impossible to resist the conclusion that the said alteration had been made for the purpose of concealing the said gold. It is clear that the said alterations serve no operational or functional purpose in the ship and the manner in which the said alterations have been made unmistakably indicates the design for concealing goods. If the goods intended to be concealed were not contraband, this elaborate designing of the alteration would be wholly unnecessary. Therefore, we see no substance in the argument that the Customs Authorities were in error in finding that section 52A had been contravened in the present case. Besides, there is no doubt that the question as to whether section 52A had been contravened is substantially a question of fact and this Court would not ordinarily reconsider the matter on evidence with a view to decide whether the said finding is right or not. Mr. Choudhary has then argued that the imposition of a fine of Rs. 25 lacs is excessive and should be modified by us. He suggests that if such a heavy fine is imposed against a vessel, it may indirectly and eventually affect the trade of the country. Besides, he urges that the fine appears to be so unreasonable that it may be characterised as vindicative. Incidentally, he has argued that in imposing the fine, the Additional Collector of Customs took into consideration an irrelevant fact inasmuch as he bore in mind the loss suffered by the appellant during the period that the vessel was detained. There is no difficulty in rejecting the last argument, because if the consideration in question was irrelevant, it has operated in favour of the appellant and not against it. If that consideration had not weighed in the mind of the Additional Collector, 620 he would obviously have imposed a higher fine. Then, as to the extent of the fine, we are not prepared to hold hat the fine is unreasonable or excessive. We have already noticed the value of the gold illegally imported and we have seen the presence of many suspicious alterations in, the panelling walls and other parts of the vessel. It is not easy to detect the illegal importation of gold, and so, if the Customs Authorities took the view that having regard to the value of the gold imported, the presence of a large number of alterations and the value of the ship, Rs. 25 lacs should be imposed as a fine, we cannot entertain the argument that a case is made out for our interference under article 136 of the Constitution. After all, the imposition of the fine merely gives an option to the appellant to pay the fine and secure the release of the vessel. Since the amount of the fine imposed is very much less than the value of the vessel, it is in the interests of the appellant to get the vessel released. Besides, the question as to the propriety of the fine imposed by the Additional Collector of Customs has been examined by the appellate and the revisional authorities and they have seen no reason to interfere with the amount of fine. In such a case, the appellant cannot be heard to complain against the impugned order of fine in an appeal under article 136, when no question or principle of law is involved. In this connection, we may mention one consideration which has weighed in our mind. It is true that modern criminology does not encourage the imposition of severe or savage sentences against criminals, because the deterrent or, punitive aspect of punishment is no longer treated as a valid consideration in the administration of criminal law. But it must be remembered that ordinary offences with which the normal criminal law of the country deals are committed by persons either under the pressure of provoked and unbalanced emotions, or as a result of adverse environments and circumstances, and so, while dealing with these crimi nals who, in many cases, deserve a sympathetic treatment and in a few cases, are more sinned against than sinners, criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measure. But it may not be appropriate to adopt the same approach in deal 621 ing with every offence committed by a vessel which contra venes section 52A. Illegal importation of gold has assumed the proportions of a major problem faced by the country, and the manifold, clever and ingenious devices adopted in carrying out these illegal operations tend to show that the organisation which is responsible for them is inspired merely by cupidity because it conducts its operations solely for the purpose of making profit, and so, it would be open to the Customs Authorities to take the view that the best way to check the spread of these illegal operations is to impose deterrent fines whenever these offences are discovered and proved. Having regard to this aspect of the matter, if the Customs Authorities took the view that the fine of Rs. 25 lakhs was called for in the present case, we see no reason whatever to entertain the plea made by Mr. Choudhary that the said fine should be reduced. The argument that the impact of such heavy fines. may adversely affect the trade of the country, seems to us to be wholly misconceived and ill founded. There is one more point which must be mentioned before we part with this appeal. Mr. Choudhary attempted to argue that if mens rea was not regarded as an essential element of vs 52A, the said section would be ultra vires of Articles 14, 19 and 31(1) and as such,unconstitutional and invalid. We do not propose to consider the merits of this argument, because the appellant is not only a company, but also a foreign company, and as such, is not entitled to claim the benefits of article 19. It is only citizens of India who have been guaranteed the right to freedom enshrined in the said article. If that is so, the plea under article 31 (1) as well as under article 14 cannot be sustained for the simple reason that in supporting the said two pleas, inevitably the appellant has to fall back upon the fundamental right guaranteed by article 19(1)(f). The whole argument is that the appellant is deprived of its property by operation of the relevant provisions of the Act and these provisions are invalid. All that article 31(1) provides is that no person shall be deprived of his property save by authority of law. As soon as this plea is raised, it is met by the obvious answer that the appellant has been deprived of its property by authority of the provisions 622 of the act and that would be the end of the plea under Art.a 31 ( 1 ) unless the appellant is able to take the further step of challenging the validity of the Act, and that necessarily imports article 19(1)(f). Similarly, when a plea is raised under article 14, we face the same position. It may be that if section 52A contravenes article 19(1)(f), a citizen of India may contend that his vessel cannot be confiscated even if it has contravened section 52A, and in that sense, there would be inequality between the citizen and the foreigner, but that inequality is the necessary consequence of the basic fact that article 19 is confined to citizens of India, and so, the plea that article 14 is contravened also must take in article 19 if it has to succeed. The plain truth is that certain rights guaranteed to the citizens of India under article 19 are not available to foreigners and pleas which may successfully be raised by the citizens on the strength of the said rights guaranteed under article 19 would, therefore, not be available to foreigners. That being so, we see no substance in the argument that if section 52A is construed against the appellant, it would be invalid, and so, the appellant would be able to resist the confiscation of its vessel under article 3 1 (1). We ought to make it clear that we are expressing no opinion on the validity of section 52A under article 19 (1) (f) If the said question were to arise for our decision in any case, we would have to consider whether the provisions of section 52A are not justified by article 19 (5). That is a matter which is foreign to the enquiry in the present appeal. The result is the appeal fails and is dismissed with costs. The appellant has also filed W.P. No. 138 of 1961 chal lenging the validity of the order passed by the Central Gov ernment in the same matter. Since the appeal preferred by the appellant against the said order is dismissed, the writ petition also fails and is dismissed. There would be no order as to costs in the writ petition. Appeal and petition dismissed.

IN-Abs

The appellant carries on the business of carriage of goods and passengers by sea and owns a fleet of ships for that purpose. One of its ships named Eastern Saga arrived at Calcutta and was rummaged by the Calcutta Customs Officers. In the sailors ' accommodation, a hole measuring 2 1/2 x 5 1/2 was found in the wall panelling behind the back batton of a wooden seat which had been screwed to the wall. The hole was covered with a piece of wood and over painted. The hole opened into a space and in that space, Customs Officers found 1,458 bars of gold valued at more than Rs. 23 lacs. Notices were duly served and after hearing the parties, the Additional Collector of Customs came to the conclusion that the vessel had rendered itself liable to confiscation under section 167(12A) because it had infringed the provisions of section 52A. He ordered the confiscation of the ship but gave the owners thereof an option to pay a fine of Rs. 25 lacs in lieu of confiscation. The appellant went in appeal to the Central Board of Revenue but that appeal was rejected. The appellant went in revision to the Central Government but the revision petition was also dismissed. 'Me appellant then came to this Court for special leave and obtained the same. Dismissing the appeal Held: (i) The Customs authorities. were right in holding that the facts proved in the case showed that the "Eastern Saga" nor contravened the provisions of section 52A when it entered the port of Calcutta and hence had incurred the liability prescribed by section 167(12.A) of the Sea Customs Act. (ii) The fine of Rs. 25 lacs was not excessive. Illegal importation of gold had assumed the proportions of a major problem facing the country and it was open to the Customs authorities to take the view that the best way to check smuggling was to impose deterrent fines whenever those offences were discovered and proved. (iii) Section 52A was not ultra vires articles 14, 19 and 31(1) and hence was not unconstitutional or invalid. The appellant was not only 595 a company but also a foreign company and as such was not entitled to claim the benefits of article 19. The plea under article 31(1) as well as under section 14 could not be sustained for the simple reason that in supporting the said two pleas, the appellant had inevitably to fall back upon the fundamental right guaranteed by article 19(1)(f). Before an appeal can be entertained under article 136, two conditions have to be satisfied. The order impugned must be an order of a judicial or quasi judicial character and should not be purely an administrative or executive order. The said order should have been passed either by a Court or Tribunal in the territory of India. It is difficult to lay down any definite test to determine whether a body is a court/tribunal or not. Sometimes, courts enquire whether that body or authority is clothed with the trappings of a court, whether it can compel witnesses to appear before it and administer oath to them, whether it was required to follow certain rules of procedure, whether it was bound to comply with the rules of natural justice whether it was expected to deal the matters before it fairly, justly and on merits and not be subjective considerations and whether it was required to adopt or quasi judicial approach. If all or some of the important tests are satisfied the proceedings can be characterised as judicial proceedings and the test of "trappings" is satisfied. Likewise, if it appears that such a body or authority has been constituted by the legislature and on it has been conferred the inherent judicial power of the State, that is significant, if not a decisive indication, that the said body or authority is a Tribunal. The scheme of the , the nature of the proceeding brought before the appellate and revisional authorities, the extent of the claim involved, the nature of the penalties imposed and the kind of enquiry which the Act contemplates, all indicate that both the Central Board of Revenue and the Central Government, while acting as appellate or revisional authorities, constitute Tribunals under article 136 of the Constitution because they are invested with the judicial power of the State and are required to act judicially. In order to prove the offence of section 52A against a vessel, what is to be moved is that there has been a construction, adaptation, alteration of fitting and the said construction, adaptation, alteration or fitting had been made for the purpose of concealing goods. The section prohibits absolutely the entry of vessels which show that there has been construction, adaptation, alteration or fitting made in them for the purpose of concealing goods in them. It is not necessary for the purpose of section 52A to prove mens rea against the person responsible for the contravention of section 52A. It is impossible to prove such mens rea or guilty mind. The knowledge of the owners or even of the masters is entirely irrelevant. Section 167(12A) and section 183 have to be read together. Though confiscation is a statutory corollary of the contravention of section 52A, section 183 expressly requires the adjudicating officer to give an option to the owners of the offending vessel to pay fine in lieu of confiscation. Confiscation is 596 no doubt authorised and required by section 167 (12A) but the statutory obligation makes it necessary for the officer to give an option to the owner. The result is that the ultimate penalty which can be imposed on the owners falls to be determined by the adjudicating officer in his discretion. Shewpujanrai Indrasanrai Ltd. vs Collector of Customs ; , F. N. Roy vs Collector of Customs, Calcutta, ; , Leo Roy Frey vs Superintendent, District Jail, mritsar and Anr. ; , , Thomas Dana vs State of Punjab, [1959] Supp. (4) S.C.R. 274, Maqbool Hussain vs State of Bombay, ; , Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunjhunwala and Ors., ; , Shivji Nathubhai vs Union of India, ; , Jaswant Sugar Mills Ltd., Meerut vs Lakshmi Chand, [1963] Supp. 1 S.C.R. 242, Engineering Mazdoor Sabha vs Hind Cycles Ltd. [1963] Supp. 1 S.C.R. 625, Ravula Hariprasada Rao vs The State, ; , Brend vs Wood, and Sherras vs De Rutzen, (1895) 9. referred to.

Appeals Nos. 1056 and 1057 of 1963. Appeals by special leave from the judgment and order dated September 30, 1963 of the Mysore High Court in Writ Petitions Nos. 1592 and 1522 of 1963. section K. Venkataranga Iyengar and R. Gopalakrishnan, for the appellants (in both the appeals). C. K. Daphtary, Attorney General, B. R. L. lyengar and B. R. G. K. A char, for the respondents (in both the appeals) January 29, 1964. The Judgment of B. P. Sinha, C.J., K. Subba Rao, N. Rajagopala Ayyangar and Raghubar Dayal JJ. was delivered by Subba Rao J. Mudholkar J. delivered a dissenting opinion. SUBBA RAO J. These two appeals raise the question of the validity, of the orders made by the Government of Mysore in respect of admissions to Engineering and Medical Colleges in the State of Mysore. The facts may be briefly stated: in the State of Mysore there are a number of Engineering and Medical Colleges most of them are Government Colleges and a few of them are Government aided Colleges. The State Government appointed a common selection committee for settling admissions to the Engineering Colleges and another common selection committee for settling admissions to Medical Colleges. The Government by an order dated July 26, 1963, marked as exhibit C in the 373 High Court, defined backward classes and directed that 30 per cent of the seats in professional and technical colleges and institutions shall be reserved for them and 18 per cent. to the Scheduled Castes and the Scheduled Tribes. On July 6, 1963, the Government sent a letter to the Director of Technical Education in Mysore, Bangalore, informing him that it had been decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Engineering Colleges shall be fixed as interview marks; it also laid down the criteria for allotting marks in the interview. It appears that a similar order was issued in respect of Medical Colleges. The selection committee converted the total of the marks in the optional subjects to a maximum of 300 marks and fixed the maximum marks for interview at 75. On the basis of the marks obtained by the candidates in the examination and those obtained in the interview, selections were made for admission to Engineering and Medical Colleges. Some of the candidates whose applications for admission to the said colleges were rejected filed petitions under article 226 of the Constitution in the High Court of Mysore for quashing the orders issued by the Government in the matter of admissions to the said Colleges and for a direction that they shall be admitted in the Colleges strictly in the order of merit. The High Court, after considering the various contentions raised by the petitioners, held that the orders defining backwardness were valid and that the criteria laid down for interview of students were good; but it held that the selection committee had abused the powers conferred upon it and on that finding set aside the interviews held and directed that the applicants shall be interviewed afresh in accordance with the scheme laid down by the Government in Exs. C and D and in Annexure IV, subject to the directions given by it. Two of the petitioners have filed the present appeals against the said order of the High Court. We shall now proceed to deal with the various contentions raised by learned counsel for the appellants. Learned counsel for the appellants contends that the Government did not issue any order to the selection corn 374 mittee in charge of admissions to Medical Colleges prescrib ing the marks for interview or fixing the criteria for allotting the said marks. Annexure IV dated July 6, 1963, relates to award of marks for the interview of candidates, seeking admission to Engineering Colleges and Technical Institutions. It was a letter written by the Secretary to the Government of Mysore, Education Department, to the Director of Technical Education in Mysore Bangalore. Therein the Government fixed the percentage of marks to be allotted at the interview. The selection committee was authorised to allot marks to the candidates, having regard to the following factors: (1) General Knowledge. (2) Aptitude and personality. (3) Previous academic career, including special distinctions, etc. (4) N . C.C., A.C.C., etc. (5) Extra curricular activities including sports, social service, debating, dramatics, etc. But at the time of arguments no letter written by the Government in respect of admissions to Medical Colleges was placed before us. There is no definite allegation in either of the two affidavits filed by the appellants that no such order was issued by the Government in respect of Medical Colleges. But, in the petition filed by Chitralekha in para 22 the following statement is found: "As the order empowering them to award 75 marks as interview marks has so far remained secret in that it has not been made available, this Hon 'ble Court may be pleased to send for the same, as the order falls to be quashed. " This averment assumes that such an order was made. In the counter affidavit filed by Dr. Dharmaraj, Dean, Medical College, and Chairman of the selection committee for admission to Medical Colleges, it is stated that the Govern ment by its letter directed that the said selection committee shall interview candidates and allot marks the maximum of which shall be 25 per cent of the maximum marks for the optional subjects and laid down the criteria for allotting marks in the interview. In the paper book as typed the description of the letter is omitted. But the learned; Attorney General stated that in the original the description is given and that is, PLM 531 MNC 63 dated 12th July, 1963. In the counter affidavit filed by B. R. Verma, Deputy Secretary to the Government of Mysore, Education Depart ment, Bangalore, after referring to Annexure IV, it is stated that a similar letter was sent by the Government to the Selection Committee for admission to Medical Colleges. It does not appear from the judgment of the High Court that learned counsel for the appellants denied the existence of such a communication in respect of Medical Colleges, but Proceeded with his argument on the basis that a communi cation similar to Annexure IV issued in connection with admissions to Engineering Colleges existed in the case of Medical Colleges also. But before us the learned counsel for the appellants heavily relied upon the fact that the said order was not filed in the court and was not willing to accept the assurance given by the Attorney General on instructions that such an order existed. In the circumstances we directed the Attorney General to file the said order. A copy of the letter written by the Government has since be en filed and it clearly shows that the relevant instructions were issued in, respect of admission to Medical Colleges also. We, therefore, hold that the Government sent a letter similar in terms. to annexure IV to the selection committee for admission to, Medical Colleges. The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of article 166 of the Constitution. As the argument turns upon the for= of the said annexure it will be convenient to read the material part thereof. "sir, Sub : Award of marks for the "interview" of the candidates seeking admission to Engineering Colleges and Technical Institutions. With reference to your letter No. AAS. 4.ADW/63/2491, dated the 25th June, 1903, on the subject 376 Mentioned above, I am directed to state that Government have decided that 25 per cent of the maximum marks Yours faithfully, Sd/ section NARASAPPA, Under Secretary to Government, Education Department. " Ex facie this letter shows that it was a communication of he order issued by the Government under the signature of the Under Secretary to the Government, Education Department. Under article, 166 of the Constitution an executive action of the Government of a State shall be expressed to be taken in the name of the Governor, and that orders made in the name of the Governor shall be authenticated in such, manner as may be specified in rules to be made by be Governor and the validity of an order which is so authenticated shall not be called in question on the ground hat it is not an order made by the Governor. If the conditions laid down in this Article are complied with, the order cannot be called in question on the ground hat it is not an order made by the Governor. It is con tended that as the order in question was not issued in the name of the Governor the order was void and no interviews could be held pursuant to that order. The law on the subject is well settled. In Dattatreya Moreshwar Pangarkar vs The State of Bombay (1) Das J., as he then was, observed: "Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself action to be expressed and authenticated in the manner therein laid down but an (1) ; , 625. 377 omission to comply with those provisions does not render the executive action a nullity. Therefore ' all that the procedure established by law requires is that the appropriate Gov ermnent must take a decision as to whether the detention order should be confirmed or not under section 11(1). " The same view was reiterated by this Court in The State of Bombay vs Purshottam Jog Naik(1), where it was pointed out that though the order in question then was defective in form it was open to the State Government to prove by other means that such an order had been validly made. This view has been reaffirmed by this Court in subsequent decisions: see Ghaio Mall and Sons vs The State of Delhi (2), and it is, therefore, settled law that provisions of article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be es tablished as a question of fact that the impugned order was issued in fact by the State Government or the Governor. The judgment of this Court in Bachhittar Singh vs The State of Punjab(3) does not help the appellants, for in that case the order signed by the Revenue Minister was not communicated to the party and, therefore, it was held that there was no effective order. In the light of the aforesaid decisions, let us look at the facts of this case. Though Annexure IV does not conform to the provisions of article 166 of the Constitution, it ex facie says that an order to the effect mentioned therein was issued by the Government and it is not denied that it was communicated to the selection committee. In neither of the affidavits filed by the appellants there was any specific averment that no such order was issued by the Government. In the counter affidavit filed by B. R. Varma, Deputy Secre tary to the Government of Mysore, Education Department, there is a clear averment that the Government gave the direction contained in Annexure IV and a similar letter was (1) ; (2)[1959] section C. R. 1424. (3) [1962] SUPP. 3 section C. R. 713. 378 issued to the selection committee for admissions to Medical Colleges and this averment was not denied by the appellants by filing any affidavit. In the circumstances when there are no allegations at all in the affidavit that the order was not made by the Government, we have no reason to reject the averment made by the Deputy Secretary to the Government that the order was issued by the Government. There are no merits in this contention. It is then contended that the Government has no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University and, therefore, the orders made by the Government in respect of admission were illegal. The first argument is. that co ordination and determination of standards of a university is a Union subject and, therefore, the State Legislature has no constitutional competency to make a law for maintaining the standards of university education. As the State Government 's executive power extends to matters with respect to which the Legislature of the State has power to make laws, the argument proceeds, the Government of the State cannot make an order or issue directions for maintaining the standards of the University. The further argument is that prescribing higher marks for admission to a College is for the purpose of maintaining the standards of University education and therefore the State Government is not empowered to do so. In support of this contention reliance is placed upon the judgment of this Court in Gujarat University vs Shri Krishna(1). There, one of the questions raised related to alleged conflict between entry 11 of List II and entry 66 of List I of the Seventh Schedule to the Constitution. By item No. 11 of List II of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of education including Universities subject to the provisions of items 63, 64, 65 and 66 of List I and 25 of List III. By item 66 power is entrusted to Parliament to legislate on co ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. (1) [1963] SUPP. 1 S.C. R. 112 379 The question was whether medium of instruction was comprehended by either of those entries or whether it fell under both. In that context it was observed at p. 715 716: "The State has the power to prescribe the syllabi and courses of study in the institutions named in entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co ordi nation of such standards either on an All India or other basis impossible or even difficult. " This and similar other passages indicate that if the law made by the State by virtue of entry II of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legisiative power of the Parliament under the entry "Co ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipre out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case. It is not possible to hold that if a State legislature made a law prescribing a higher percentage of marks for extra curricular activities in the matter of admission to colleges, it would be directly encroaching an the field covered by entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law. It is then said that the Mysore University Act conferred power to prescribe rules for admission to Colleges on the University and the Government cannot exercise that power. 380 It is true that under section 23 of the Mysore University Act, 1956, the Academic Council shall have the power to prescribe the conditions for admission of students to the University and, in exercise of its power, it has prescribed the percentage of marks which a student shall obtain for getting admission in medical or engineering colleges. The orders of the Government do not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have the minimum qualifications prescribed by the University. The Government runs most of the medical and engineering colleges. Excluding the State aided colleges for a moment, the position is as follows: The Colleges run by the Government, having regard to financial commitments and other relevant considerations, can only admit a specific number of students to the said Colleges. They cannot obviously admit all the applicants who have secured the marks prescribed by the University. It has necessarily to screen the applicants on some reasonable basis. The aforesaid orders of the Govemment only prescribed criteria for making admissions to Colleges from among 'students who secured the minimum qualifying marks prescribed by the University. Once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power. Even so it is argued that the same power cannot be exercised by the Government in respect of private Colleges though they are receiving aid from the State. But the management of aided institutions have not raised any objections. Indeed, from the year 1960 admissions were made to the Colleges by the selection committees constituted by the Government. The High Court, after considering the material placed before it, held that, with the consent of the management of the various professional and technical colleges, the Government took over the responsibility of regulating admission of students to the colleges in question. 381 Nothing has been placed before us to prove that the selec tion committees were constituted against the wishes of the management of the aided colleges. In the circumstances. we cannot disturb the finding of the High Court in this regard. We, therefore, hold that the Government has power to prescribe a machinery and also the criteria for admission of qualified students to medical and engineering colleges run by the Government and, with the consent of the management of the Government aided colleges, to the said colleges also. It is then contended that the system of selection by interviews and viva voce examination is illegal inasmuch as it enables the interviewers to act arbitrarily and to mani pulate the results and, therefore, it contravenes article 14 of the Constitution. To appreciate this contention it is necessary to notice how the interview is held and the criteria laid down for the selection committee to adopt. The Government by its order dated May 17, 1963 constituted a committee consisting of the following members for selection to Government Medical Colleges: (1) The Dean, Medical College, Mysore Chairman. (2) The Dean, Medical College, Bangalore Member. (3) The Dean, Medical College, Hubli Member. So too, highly qualified educationists were appointed to the selection committee for the Engineering Colleges. By notification dated July 6, 1963, in respect of the Engineer ing Colleges and a similar notification issued in respect of the Medical Colleges, the Government prescribed that in addition to the examination marks in optional subjects there should be an interview of students for which the maximum mark prescribed shall be 25 per cent of the maximum marks of the optional subjects. The selection committee has to allot marks, having regard to general knowledge, aptitude and personality, previous academic career, including special distinctions etc. , N.C.C., A.C.C. etc., extra curricular activities including sports, social service, debating, dramatics etc. It is, therefore, clear that the Government by its order not only laid down a clear policy and prescribed definite criteria in the matter of giving marks at the interview but 382 also appointed, competent men to make the selection on that basis. The order of the Government does not in any way contravene article 14 of the Constitution. But learned counsel for the appellants raised a larger question that selection by interviews is inherently repugnant to the doctrine of equality embodied in article 14 of the Constitution, for, whatever may be the objective test laid down, in the final analysis the awarding of marks is left to the subjective satisfaction of the selection committee and, therefore, it gives ample room for discrimination and manipulation. We cannot accept such a wide contention and condemn one of the well accepted modes of selection in educational institutions. James Hart in his "An Introduction to Administrative Law" observes, at p. 180 thus: "A test or examination, to be competitive, must employ an objective standard of measure. Where the standard or measure is wholly sub jective to the examiners, it differs in effect in no respect from an uncontrolled opinion of the examiners and cannot be termed competitive." In the field of education there are divergent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extra curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examinations. In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiners than on the system itself. The scheme of selection, however perfect it may be on paper, may be abused in practice. That it is capable of abuse is 383 not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter. In this case the criteria laid down by the Government are certainly relevant in the matter of awarding marks at the interview. Learned counsel contends that the ability of a student on the basis of the said criteria can be better judged by other methods like certificate from the N.C.C. Commander or a medical board or a psychatrist and should not be left to a body like the selection committee which cannot possibly arrive at the correct conclusion in a short time that would be available to it. This criticism does not affect the validity of the criteria, but only suggests a different method of applying the criteria .than that adopted by the Committee. It is not for us to say which method should be adopted: that must be left to the authority concerned. If in any particular case the selection committee abuses its power in violation of article 14 of the Constitution, that may be a case for setting aside the result of a particular interview, as the High Court did in ,this case. We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending article 14 of the Constitution. Lastly it is contended that though the High Court did not quash the order of the Government embodied in exhibit C, it held that it was not a perfect classification and also indicated its mind that the Government should have adopted the caste test as well as the residence test in making the classification. If the observations of the learned Judge, the argument proceeds, are not corrected, the State may be bound by such observations in the matter when it finally prescribes the criteria for ascertaining the backward classes under article 15 (4) of the Constitution. In exhibit C the Government laid down that classification of socially and educationally backward classes should be made on the following basis: (1) economic condition; and (2) occupation. According to that order a family whose income is Rs. 1,200 per annum or less and persons or classes following occupations of agriculture petty business, inferior services, crafts or other 384 occupations involving manual labour. are in general, socially, economically and educationally backward. The Government lists the following occupations as contributing to social backwardness: (1) actual cultivator; (2) artisan; (3) petty businessmen; (4) inferior services (i.e., Class IV in Government services and corresponding class or service in private employment) including casual labour; and (5) any other occupation involving manual labour. It is, therefore, manifest that the Government, as a temporary measure pending an elaborate study, has taken into consideration only the economic condition and occupation of the family concerned as the criteria for backward classes within the meaning of article 15 (4) of the Constitution. The order does not take into consideration the caste of an applicant as one of the criteria for backwardness. Learned counsel does not attack the validity of the said order. But in the High Court conflicting arguments were advanced in support of this order as well as against it. The High Court heavily relied upon the decision of this Court in M. R. Balaji vs The State of Mysore(1) and came to the conclusion that, the scheme adopted by the State was a very imperfect scheme and that in addition to the occupation and poverty tests, the State should have adopted the "caste" test as well as the 'residence" test in making the classification. It also observed that the decision in Balaji 's case says that "the `caste ' basis is undoubtedly a relevant, nay an important basis in determining the classes of backward Hindus but it should not be made the sole basis". It concluded that part of the discussion with the following observation: "But I earnestly hope that soon the State will make a more appropriate classification lest its bonafides should be questioned. " Learned counsel contends that these observations are not supported by the decision in Balajis case, and that they are in conflict with the observations made therein. We shall, therefore, consider the exact scope of the observations in the said decision of this Court. There, 68 per cent of seats in Colleges were reserved for the alleged backward communities. It was argued before this Court on behalf of the peti (1) [1963] Supp. 1 section C. R. 439. 385 tioners therein that the impunged order, which was passed under article 15(4) of the Constitution, was not valid because the basis adopted by the order in specifying and enumerating the socially and educationally backward classes of citizens in the State was unintelligible and irrational, and the classification made on the said basis was inconsistent with and outside the provisions of article 15 (4) of the Constitution. In considering the said question, Gajendragadkar J., speaking for the Court, made the following observations, at p. 658: "The backwardness under article 15 (4) must be social and educational. It is not either social or educational, but it is both social and educational; and that takes us to the question as to how social and educational backwardness has to be determined. " Adverting to the expression "classes" of citizens in article 15(4) of the Constitution, the learned Judge proceeded to state: The group of citizens to whom article 15(4) applies are described as "classes of citizens not as castes of citizens. A class according to the dictionary meaning, shows division of society according to, status, rank of caste. . to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves. 134 159 S.C. 25 386 Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group that test would inevitably break down in relation to many sections of Indian Society which do not recognise castes in the conventional, sense known to Hindu society. . . That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups Or classes of citizens, it cannot be made the sole or the dominant test in that behalf." Two principles stand out prominently from the said obser vations, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social back wardness; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the sole or dominant test in that behalf. The observations extracted in the judgment of the High Court appear to be in conflict with the observations of this Court. While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of article 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste. While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class. To put it differently, the authority concerned may take caste into consideration in ascertaining 387 the backwardness of 'a group of persons; but, if it does not, its order will not be bad on that account, if it can ascertain the backwardness of a group of persons on the basis of other relevant criteria. The Constitution of India promises Justice, social, economic and political; and equality of status and of opportunity,. among others. Under article 46, one of the Articles in Part IV headed "Directive Principles of State Policy", the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Under article 341, "The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be." Under article 342, in the same manner, the President may specify the tribes or tribal communities as Scheduled Tribes. Article 15(4) says: "Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes." These provisions form a group of Articles which have relevance in the making of a special provision for the advancement of any socially and educationally backward classes of citizens in the matter of admissions to colleges. These provisions recognize the factual existence of backward classes in our country brought about by historical reasons and make a sincere attempt to promote the welfare of the weaker sections thereof. They shall be so construed 388 as to effectuate the said policy but not to give weightage to progressive sections of our society under the false colour of caste to which they happen to belong. The important factor to be noticed in article 15 (4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression 'classes" is used in cl. (4) of article 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the Constitution from using the expression "backward classes or castes". The juxtaposition of the expression "backward classes" and "Scheduled Castes" in article 15 (4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong. This interpretation will carry out the intention of the Constitution expressed in the aforesaid Articles. It helps the really backward classes instead of promoting the interests of individuals or groups who, though they belong to a particular caste a majority whereof is socially and educationally backward, really belong to a class which is socially and educationally advanced. To illustrate, take a caste in a State which is numerically the largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, an effective minority may be socially and educationally far more advanced than another small sub caste the total number of which is far less than the said minority. If we interpret the expression "classes" as "castes", the object of the Constitution will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those who really deserve. This anomaly will not arise if, without equating caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward 389 class or not. I On the other hand, if the entire sub caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution. We do not intend to lay down any inflexible rule for the Government to follow. The laying down of criteria for ascertainment of social and educational backwardness of a class is a complex problem depending upon many circumstances which may vary from State to State and even from place to place in a State. But what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of article 15(4) of the Constitution, it does not vitiate the classification if it satisfied other tests. In the result, the appeals fail and are dismissed. There will be no order as to costs. MUDHOLKAR I. The appellants in these appeals had challenged before the High Court of Mysore the validity of the mode of selection of candidates for admission to the Medical Colleges in that State by preferring petitions before the High Court under article 226 of the Constitution. They pointed out in their petitions that the selection committee, instead of selecting persons for admission on the basis of merit, chose to interview the candidates and made the ultimate selection by adding marks upto 75 to the marks actually secured by the candidate at the Pre University Course examination (herein referred to as P.U.C. Examination) on the basis of the interview. Their contentions are that in the absence of any Government order there was no basis upon which marks at the interview could be added to the marks secured in the P.U.C. examination, that the so called order on which reliance was placed on behalf of the State is not a Government order at all as the document produced does not comply with the requirements of article 166 of the Constitution, that no criteria were laid down for allotting marks TO the candidates at the interview, that this was a violation of article 14 of the Constitution, that the Govern 390 ment was constitutionally incompetent to prescribe qualifications for admission to Colleges under the University different from those prescribed by the University and that under the Mysore University Act the University alone had the power to prescribe rules for admission to Colleges affiliated to the University. The High Court held against the appellants on all these points. But upon the view that the Selection Committee had "misused" the powers conferred upon it and had wrongly interpreted the Government Order, quashed the results of the interview and directed that after interviewing the petitioners before it afresh their cases should be considered for admission by the Selection Committee in accordance with the Government Order. In the course of its order the High Court has found fault with the Government for not taking the castes of the candidates into consideration while exercising its powers under article 15(4) and making provision for the advancement of backward classes and made certain remarks to which objection has been taken on behalf of the appellants. My learned brother Subba Rao J. whose judgment I have had the opportunity of seing has upheld the judgment of the High Court but has not agreed with the observations made by it suggesting that the caste of candidates should also have been taken into consideration while determining the social and educational backwardness of a class. I regret my in ability to agree with many of the conclusions reached by my learned brother and I am of opinion that the appeals ought to be allowed. Even assuming for the time being that the Government of Mysore had the power both under the Constitution and under a law enacted by the Legislature to prescribe qualifications for admission to any Colleges in the State, including colleges imparting technical or professional education, the first question is whether there was in fact a Government Order justifying the course adopted by the Selection Com mittee. It may be mentioned that the document which was filed in the High Court as being the Government Order was merely a communication addressed on behalf of the Government by one of its Secretaries to the selection Committee and signed by an Under Secretary. But this document only 391 refers to the interview prescribed for making selections of candidates for admission: to Engineering Colleges. At the hearing in this Court the Attorney General who appeared for the State of Mysore stated that there was a Government. Order also as regards admission to Medical Colleges that it was actually brought to the notice of the High Court and that he may be permitted to produce that order. Leave was granted by us to him to do so. On December 20, 1963, that is, after judgment had been reserved Mr. Achar, Assistant Government Advocate, placed on record, what according to the State, is the Government Order. This document, however, was not a part of the record of the writ petitions and the only manner in which the so called Government Order relating to admission to Medical Colleges was brought to the notice of the High Court was by specifying in Dr. Dharmaraj 's affidavit, the number of the letter addressed by a Secretary to the Government to the Selection Committee dealing with admissions to the Medical Colleges. It is desirable to reproduce in extenso the document which has been filed now in this Court. It runs thus: "GOVERNMENT OF MYSORE CONFIDENTIAL: No. PLM Mysore Government Secretariat, Vidhana Soudha, Bangalore, dated 12th July, From The Secretary to Government of Mysore, PH. Labour & Munl. Department, Bangalore. TO The Chairman, Selection Committee & Dean, Medical College, Mysore. Sir, SUBJECT. Award of marks for the interview of thE 392 candidates seeking admission to Medical Col leges in the State. I am directed to state that Government have decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Medical Colleges, shall be fixed as interview marks. I am further to state that the Selection Committee is authorised to allot marks for the interview of the candidates as fixed above, having regard to the following factors: 1. General Knowledge. Aptitude and personality. section Previous academic career including special distinctions, etc. 4. N.C.C., A.C.C., etc. Extra curricular activities including sports, social service, debating, dramatics, etc. I am also to state that Government have decided that students with exceptional merit in games and sports State and inter State standard may be selected upto a maximum of two per cent of the total number of seats. Yours faithfully, Sd./ L. G. DESAI, Under Secretary to Government, PH. Labour & Munl. Attested Sd./ H. L. LINGARAJ URS, Dy. Secretary to Government, PH. Lb. & M1. 393 This is nothing more than a communication emanating from a secretary to the Government of Mysore to the Chairman, and addressed to the Selection Committee and Dean, Medical College, Mysore. It is thus not an order of the kind contemplated by article 166 of the Constitution. That Article lays down that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor and that the orders made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules made by the Governor. It further provides that where an order is authenticated in the manner prescribed in the rules made by the Governor, its validity shall not be called in question on the ground that it is not an order made by the Governor. The essence of article 166, however, is that executive action of the Government of a State shall be expressed to be taken in the name of the Governor. The document placed before us does not show that the action, to wit, prescribing an interview, allotting marks for it and laying down the criteria to be observed by the Selection Committee in allotting marks even purports to emanate from the Governor. All that the Secretary on whose behalf some Under Secretary has signed, says is that he is "directed to state" that the Government has taken a certain decision. This document thus is not that decision. What that decision is, how it is worded, when it was taken and whether it is expressed in the name of the Governor, we do not know. The cases in which it has been held by this Court that the provisions of article 166(2) are directory and not mandatory are of no help because here what we are concerned with is about the actual existence of an order made by the Governor. No doubt, where there is merely non compliance with the provisions of article 166(1) or of the rules framed by the Governor in the matter of authentication of an order, evidence aliunde could be led to establish that in fact an order was made by the Governor. This clearly, does not mean that the existence of a Government order need not be established. On the contrary these decisions accept the position that the making of a Government Order is sine qua non for justifying any action which is purported to be taken by an officer of the Government on its behalf. Here the Secretary has said a certain procedure. was to be followed by the Selection Committee. He has himself 394 no power to order that to be done de hors an order of the Government. It is for this reason that he has made a refer ence to such an order. But that order is not before us. It was said by the learned Attorney General that the existence of the order was not denied by the appellants. But that is not correct. Right from the beginning they have been saying that there was no "Government Order" in so far as admission to the Medical Colleges was concerned. What was relied on behalf of the State was the letter addressed to the Selection Committee concerned with the applications of persons for admission to Engineering Colleges. But since both the appellants were applicants for admission to a Medi cal College it was not necessary for them to say further that what was relied on was not a Government Order even in regard to Engineering Colleges. In reply to the appellants ' averment reliance was placed upon an affidavit by Dr. Dharamraj in which reference is made to the very com munication which I have reproduced earlier as being the "Govemor 's Order". If that is what is claimed to be the Govemor 's Order, then the State must fail on the short ground that it is not expressed to be made in the name of the Governor and is thus prime facie not the Governors Order. In Bachittar Singh vs The State of Punjab(1) one of the questions which arose for consideration was whether what a Minister wrote on the file of a case and initialled amounted to an Order of the Governor within the meaning of article 166. This Court negatived the contention on the ground that since what he had said there was not expressed in the name of the Governor, it cannot be regarded as the Govemor 's Order. ' It is true that in that case there was no communication of the Minister 's so called order to the party in whose favour it was made but mention was made of this fact in the judgment only to emphasise that what was said in the note of the Minister had not attained any finality. The view taken in Bachittar Singh 's(1) case does not run counter to any decisions of this court; but on the other hand is supported by that taken in the State of Punjab vs Sodhi Sukhdev Singh(2). The appellant 's s first contention must succeed and it must be held that the addition of (1)[1962] Supp. 3 S.C.R. 713. (2)[1962] 2 section C. R. 371. 395 marks for interview by the Selection Committee was without any validity or legal authority. Learned Attorney General seemed to suggest that the decision of this Court in Bachittar Singh 's case is contrary to at least three other decisions of this Court. The first of them is Dattatraya Moreshwar Pangarkar vs The State of Bombay and Ors.(1). In that case the petitioner who had been detained under the had challenged the legality of the detention on two grounds. One of those grounds was that the order of confirmation of detention under section 11(1) was not expressed to be made in the name of the Governor as required by article 166(1) of the Constitution. Dealing with the argument Das J. (as he then was) with whom Patanjali Sastri C.J. agreed has observed as follows at p. 623: "Section 11(1) plainly requires an executive decision as to whether the detention order should or should not be confirmed. The continuation of the detention as a physical fact automatically follows as a consequence of the decision to confirm the detention order and for reasons stated above, does not require any further executive decision to continue the detention. It follows, therefore, that the contemplates and require the taking of an executive decision either for confirming the detention order under section 11(1) or for revoking or modifying the detention order under section 13. But the Act is silent as to the in which the executive decision, whether it is described as an order or an executive action is to be taken. No particular form is prescribed by the Act at all and the requirements of the Act will be fully satisfied if it can be shown that the executive decision has in fact been taken. it is at this stage that learned counsel for the petitioner passes on to Article 166 of the Constitution and contends that all executive action of the Government of a State must be expressed (1)[1952] S.C.R. 612. 396 and authenticated in the manner, therein pro vided. The learned Attorney General points out that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office files by way of notings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression the whole governmental machinery, he contends, will be brought to a standstill. I agree that every executive decision need not be formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an outsider or is required to be officially notified or to be communicated it should normally be expressed in the form mentioned in Article 166(1) i.e, in the name of the Governor." Thus according to the learned Judge where an order affects an outsider it must normally be made in the name of the Governor. Here, what is said to be an order is intended to affect outsiders in that the selection committee was required to hold interviews and allot marks to the candidates under different heads. Further it affects the candidates seeking admission to the Medical College. Moreover this 'order ' has not remained merely on the files of the Government for enabling its officers to take certain action but was specifically intended to govern the actions of the Selection Committee. That is an additional reason why it was necessary to express it in the name of the Governor. After saying what I have already quoted, the learned Judge proceeded to observe in his judgment: "Learned Attorney General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, for the provisions of that Article, like their counterpart in the Government of India 397 Act, are merely directory and not mandatory as held in J. K. Gas Plant Manufacturing Co. (Rampur) Ltd., and Ors. vs The KingEmperor(1). In my opinion, this contention of the learned Attorney General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. 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 of the Courts to hold such provisions to be directory only, the neglect of them not affecting the, validity of the acts done." Thus, even upon the view taken by him that the provisions are merely directory the learned Judge has clearly taken the view that it has to be shown that the decision upon which reliance is placed on behalf of the Government was in fact taken. In the case before him he found as a fact that such a decision had been taken. There is no material in this case on the basis of which it could be said that in the present case any decision had at all been taken by the Government in so far as interviews for admission to Medical Colleges were concerned. According to Mukherjea J. (as he then was) with whom Chandrasekhara Aiyar J., agreed, while cl. (1) relates to the mode of expression of an executive order, cl. (2) lays down the manner in which such order is to be authenticated and that when both the requirements are complied with the order would be immune from challenge in a court of law on the ground that it had not been made or executed by the Governor. Also, according to him, the provisions of (1) ,,154 9. 398 cl. (1) are directory and not imperative in their character. In the course of the judgment the learned Judge observed: ". . . I agree with the learned Attorney General that non compliance with the provisions of either of the clauses would lead to this result that the order in question would lose the protection which it would otherwise enjoy, had the proper mode for expression and authentication been adopted. could be challenged in any court of law even on the ground that it was not made by the Governor of the State and in case of such challenge the onus would be upon the State authorities to show affirmatively that the order was in fact made by the Governor in accordance with the rules framed under Article 166 of the Constitution" (p. 632). Mahajan J., (as he then was) expressed no opinion upon this point, which was the second point raised in the case, as according to him, the detention was invalid because the Government had at the time of confirming the order omitted to specify the period during which the detention should con tinue. It will thus be clear that all the teamed Judges who have dealt with, the provisions of article 166 of the Constitution have definitely held that where the existence of a Government Order is itself challenged by a person who is affected by it the burden is upon the Government to establish that an order was in fact made by the Governor in the manner provided for in the rules of business framed by the Governor under cl. (3) of article 166. Even my learned brother does not say that in a case like the present the existence of the Governor 's order is not required to be established by the State. But according to him here the petitioners have not in fact denied the existence of the Governor 's Order. In para 20 of the writ petition of Chitralekha she has definitely averred: "Even the Government Order enabling them to award 75 marks is not made available"; and again in para 22 she stated: "As the order, empowering them to award 75 marks as interview marks has so far remained secret in that is has not been made available, this 399 Hon 'ble Court may be pleased to send for the same, as the order falls to be quashed." In reply to these averments a counter affidavit was filed by Dr. J. J. Dharmaraj, Dean, Medical College and Chairman of the Selection Committee for admission to Medical Colleges. In para 4 thereof he has stated as follows: "The Government by its letter No. PLM dated the 12th July, 1963 directed that the Selection Committee shall interview the candi dates and allot marks the maximum of which shall be 25 per cent of the maximum marks for optional subjects and laid down the criteria for allotting marks in the interview. " It is abundantly clear from this that reliance was placed not upon any order of the Governor but upon a direction con tained in a certain communication addressed to the Selection Committee. Mr. Varma, Deputy Secretary to the Government also filed a counter affidavit in para 36 of which he has stated as follows: "The Government gave a direction by its letter No. SD 25 THL 63, dated 6th July, 1963 to the Director of Technical Education (copy of which is marked as, Annexure IV) that in addition to the examination marks in the Optional sub jects, there should be an interview of candidates in which the maximum marks allotted would be 25 per cent of the maximum for the optional subjects. A similar letter was sent by the Government to the Selection Committee for admission to Medical Colleges. " Thus, here again, there is no positive averment that the Governor had made an order providing for interview of candidates who, had applied for admission to Medical Col leges. The only other place where the appellants ' allega tions are dealt with is para 44 of Mr. Varma 's a affidavit: "The Allegations made in some of the petitions that only the first Government Order embodied the decision of the Government and the second Government Order did not embody the decision 400 of the Government but only the decision of the Minister for Education, is untenable. When an order is issued in the name of the Governor, I submit it is not permissible to enquire whether any advice, and if so, what advice, was tendered by any Minister to the Governor. " Here, what the Deputy Secretary has done is merely to state the legal position without affirming definitely that an order had in fact been made in the name of the Governor. It may be mentioned that the two orders dealing with the classification of backward classes and reserving seats in technical institutions were in fact issued in the name of the Governor on July 26, 1963 and copies of those orders have been placed on record. They are in the appropriate form. If a similar order had actually been made by the Governor there is no reason why it should not have been filed. Even in this Court the Assistant Government Advocate has filed on behalf of the State only a copy of the letter sent by a Secretary to the Government and has not only not produced a copy of the Governor 's Order but has not even alleged that such order exists. Nor again, during the arguments did the learned Attorney General make a categorical statement that the Governor had made an order in regard to the interviews. That may be because he has not been instructed to say that such order in fact exists. We have given no opportunity to the appellants to file any further affidavit after the production before us of the Secretary 's letter. In this state of the material on record can it then be said that the burden which was upon the State to establish the existence of an order of the Governor has been discharged? I do not think that we can ignore the omission of the State to aver categorically that there is in existence an order of the Governor or to make any attempt to produce it or to seek an opportunity to establish its existence by other evidence. If there is an order of the Governor dealing with the matter nothing would have been easier than saying so and either to produce the original or its copy or to establish its existence by other evidence. The whole tenor of the affidavits filed on behalf of the State as well as of the argument advanced before us leaves no doubt in my mind that an that there is on the subject is the aforesaid letter of the 401 Secretary to the Selection Committee and nothing more. In no case has this Court held that such a document can be treated as the Governor 's order or even evidence of the ex istence of the Govrnor 's order. The two other cases of this Court on which reliance was placed are: The State of Bombay vs Purshottam Jog Naik(1) and Ghaio Mail and Sons vs The State of Delhi (2) which purport to follow Pangarkar 's case(3) also underline the necessity of proof of the existence of the Governor 's Order when what is relied upon is defective in form. It is these reasons which impel, me to differ from my learned brother on the second point dealt with by him in his judgment. What I have said above is sufficient for the purpose of disposing of both the appeals. But in view of the import ance of one of the other points on which my learned brother has expressed his opinion, I would say a few words. That point concerns the power of the Government of a State to prescribe by an executive order the standards for selection of candidates for admission to technical institutions affiliated to a university. In Gujrat University vs ShriKrishna(4) the question which was raised in this Court was whether the Gujrat University could lay down and impose Gujrati and/or Hindi in Devnagari script as exclusive media of instruction and examination in institutions other than those maintained by the University and institutions affiliated to the University and Constituent colleges. One of the important arguments raised in that case was that under Entry 166 of List 1 of the Seventh Schedule the power of co ordination and determination of standards in institutions for higher education or research in scientific and technical institutions. was conferred upon Parliament and that these matters must be regarded as having been excluded from entry 11 of List 11 of that schedule, which runs thus: "Education, including universities, subject to the Pro visions of Entries 63, 64, 65 and 66 of List 1 and Entry 25 of List III." (1) ; (2) [1959] S.C.R.1424. (3) ; (4) [1963] Supp. 1 S.C.R.112. 134 159 S.C. 26 402 In the course of his judgment, Shah Y., speaking for the majority (my learned brother Subba Rao J., dissenting) observed: "It is manifest that the extensive power vested in the Provincial Legislatures to legislate with respect to higher scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List 1 and List III mentioned in item II of List H. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, Whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of 'education including universities power to legislate on that subject must lie with the Parliament. The plea raised by counsel for the University and for the State of Gujarat that legislation prescribing the medium or media in which instruction should be imparted in institutions of higher education and in other institutions always falls within item II of List II has no force Item II of List II and item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by item 66 of List I must prevail over the power of the State under item 11 of List 11. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour. . . Power to legislate in respect of 403 medium of instruction is, however not a distinct legislative head; it resides with the State legislatures in which the power to legislate on education is vested, unless it is taken away by necessary intendment to the contrary. Under items 63 to 65 the power to legislate in respect of medium of instruction, having regard to the width of those items, must be deemed to vest in the Union. Power to legislate in respect of medium of instruction, in so far it has a direct bearing and impact upon the legislative head of co ordination and determination of standards in institutions of higher education or research and scientific and technical institutions, must also be deemed by item 63 of List I to be vested in the Union." (p. 715). (italics mine) What I have quoted above and particularly the words occur ring in the earlier part of the quotation and those in italics would make it clear that this Court has emphatically laid down that where the question of co ordination and determination of standards in certain institutions like a medical college is concerned the power is vested in the Parliament and even though Parliament may not have exercised that power the State Legislature cannot step in and provide for the determination and co ordination of standards. It seems to me that by requiring the Selection Committee to add to the marks secured by the candidates at the P.U.C. Examination the marks awarded by the Selection Committee for the interviews and prepare a fresh order of merit on the basis of the total marks so arrived at the State would be quite clearly interfering with the standards for admission laid down by the University. It seems to me that the standard of any educational institution would certainly be affected by admitting to it candidates of lower academic merit in preference to those with higher academic merit by using the devious method of adding to the qualifications of less meritorious candidates marks at the discretion of the selectors on the basis of interviews. This is not a universal practice in institutions of higher or technical education in the country and by adopting it the State of Mysore has provided 404 a standard of its own for admission of students to such ins titutions. It is evidently with a view to prevent the happening of such things that our Constitution has excluded matters pertaining to standards in institutions of higher education and some other institutions from the purview of the State legislatures. The second portion in italics by me in the above quotation makes it clear that according to the majority of this Court the power to legislate in respect of matters such as the medium of instruction which have a direct bearing and impact upon the legislative head of coordination and determination of standards in the institutions referred to in item 66 of List I is vested in the Union. Therefore, in each case it will be for the Court to consider whether what is being sought to be done by a State legislature will have a direct impact upon entry 66 of List 1. In my judgment where any law of the State legislature seeks to vary academic standards for admission to institutions of the kind referred to in Entry 66 its action has a direct bearing upon that entry and the power in this regard is excluded from the purview of entry 11 of List 11. I may quote a part of paragraph 24 of the majority judgment which my learned brother has quoted. It reads thus: "The State has the power to prescribe the syllabi and courses of study in the institutions named in entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an over riding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co ordi nation of such standards either on an All India or other basis impossible or even difficult. " Can it be said that this and other passages in this judgment show that according to the majority the law made by the State Legislature by virtue of entry 1 1 of List II would be bad only if it makes it impossible or difficult for Parliament to exercise its legislative power under entry 66 of List I? Does the judgment mean that it has to be ascertained in each case whether the impact of the State law providing for such standards is so great on entry 66 of List I as to abridge appreciably the central field or, does it not follow from the judgment that if a State Legislature has made a law prescribing a different, even higher, percentage of marks or prescribing marks for extra curricular activities, it would be directly encroaching on the field covered by entry 66 of List I ? The majority judgment after saying what has been quoted above proceeds thus: "Though the powers of the Union and the State are in the exclusive lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand, it is certainly within the province of the, State Legislature to prescribe syllabi and courses of study and of course to indicate the medium or media of instruction. On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure co ordination and determination of standards, that is, to ensure maintenance or improvement of standards. The fact that the Union has not legislated, or refrained from legislating to the full extent of its power does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the 'doctrine of pith and substance of the impunged enactment. . the validity of State legislation would depend upon whether it prejudicially affects co ordination and determination of standards, but not upon the existence 406 of some definite Union legislation directed to achieve that purpose." (p. 716). These observations do not seem to justify the conclusion that it is only where the State law makes it impossible or difficult for Parliament to exercise its legislative power under entry 66 that the State law would be bad. According to the decision of the majority the validity of a State legislation would depend upon whether it prejudicially affects the coordination and determination of standards and that if it does so, that is enough to invalidate that legislation. Interference with academic standards would of necessity affect coordination and determination of standards amongst institutions of similar type all over the country and, therefore, upon the view taken in the Gujarat University case(1) State legislation embodying previsions of the kind referred to in the letter of the Secretary to the Government to the Selection Committee would be bad. As I understand the decision what it means when it says that regard must be had to the pith and substance of a State law to see whether it is in conflict with the powers of Parlia ment is that conflict must be the direct result of the State law and not one which is merely incidental. It does not mean that for ascertaining whether there is a conflict one has to gauge the force of the impact of a State law on Parliament 's power. Thus where a law is in pith and substance ,one which will directly affect Parliament 's power to coordinate and determine standards in the institutions comprised in entry 66 of List I it will be directly in conflict with it and the extent or force of such conflict will make no difference. Now just as prescribing a medium of instruction for being adhered to in those institutions would, if it has the effect of affecting the standards, which must mean, the academic standard of their institutions, produce a direct impact on Parliament 's power under the aforesaid entry, so would prescribing interviews for admissions to these institutions, since admissions would thereby be made to depend on standards other than purely academic. I fail to see how else can the impact of the State law on Parliament 's power can be characterised. The fact that raising of the interview marks from 25 in the. past to 75 now (which we are told (1) [1963] SUPP. S.C.R. 112. 407 represents 25% of the total marks for the P.U.C. Examina tion) has raised a furore, only highlights the directness of the impact which was there even when the interview marks were 25%. To hold otherwise would mean that where interview marks are low in comparison with the total marks for the P.U.C. Examination the impact would be merely oblique or indirect but by some process it will become direct, if the marks are raised to a higher percentage, say 50 per cent or even 100 per cent of the P.U.C. Examination marks. Surely the directness of the impact would not depend upon its intensity. Again, the addition of interview marks to the marks secured at the P.U.C. examination by a candidate for admission to an institution of the kind comprised in entry 66 of List I cannot but be said to affect the standard in such institution. An illustration would make it clear. Suppose the maximum P.U.C. marks are 300 and interview marks are 600. Could there be a doubt that the academic standard of the institution would remain unaffected and that the impact on entry 66 is direct ? Now, instead of 600, if the, interview marks are only 30, would not the standard still be affected? May be that the effect on academic merit would be much less than when the maximum interview marks were 600 but still there would be some effect. In ,either case the effect is the direct consequence of the additional requirement of an interview and therefore the impact of the State law would be direct in both cases. It is not as if a consequence which is direct can be regarded as oblique or indirect just because it is less significant by reason of the fact that the proportion of interview marks to the P.U.C. marks is low. Therefore, whether the State law affects the standards of such institutions materially or only slightly has no relevance for the purpose of determining whether it operates in an excluded field or not. The only test is whether or not the effect it has on the standards is direct. That is how I understand the majority decision of this Court. Even upon the view that for a State law to be bad, its impact must be "so heavy or devastating as to wipe out the central field", I think that it is in fact of that kind in this 408 case. Already by reserving 48 per cent of the total number of seats for scheduled castes and tribes and backward classes the seats available for meritorious candidates have been reduced to 52 per cent. By providing in addition, for dilution of academic merit by bringing in considerations of the kind set out in the Secretary 's letter, meritorious candidates are likely to be placed in a further disadvantageous position. According to that letter the matters to be considered at the interview are: (1) General knowledge. (2) Aptitude and personality. (3) Previous academic career, including special distinctions, etc. (4) N.C.C., A.C.C. etc. (5) Extra curricular activities including sports, social service, debating, dramatics, etc. While the first and the third of these matters would be of some relevance in deciding who should be allowed a chance to be future doctors what relevance the other three matters have it is difficult to appreciate. Further "aptitude and personality" would be a matter entirely for the subjective satisfaction of the selectors and is in itself quite vague. Then again the total marks under these heads are as high as 75 and there is no allocation of marks under the different heads. Thus if the selectors choose to allocate say 30 or 40 marks for "personality" many meritorious candidates may go far down in the list prepared on the basis of the total of marks at the interview and the P.U.C. Examination. Since the number of marks for the interview is high and according marks for interviews and allocating marks under different heads is left entirely for the Selection Committee to decide, the impact of the alleged directive on the central field must necessarily be regarded as heavy. For, its effect would be to lower further the already alarmingly low standards in our educational institutions. Again, here what we have is not a State law but merely what is claimed to be an executive fiat. It is true that article 162 says that the executive power of the State is co exten sive with the power of the legislature to legislate and 409 this Court has held in Rai Sahib Ram Jawaya Kapur & Ors. vs The State of Punjab (1) that the power of the State is not confined to matters over which legislation his already been passed. But neither article 162 nor the decision of this Court goes so far as to hold that the State 's power can be exercised in derogation of a law made by a competent legislature. On the other hand the Court appears to have approved of the view taken by two learned Judges of the Allahabad High Court in Motilal vs The Government of the State of Uttar Pradesh (2) that an act would be within the executive power of the State if it is not an act which has been assigned by the Constitution to other authorities or bodies and is not contrary to the provisions of any law and does not encroach on the legal rights of any member of the public. Here we have the Mysore University Act, section 23 of which provides that the Academic Council shall have power to prescribe the conditions for admission of students to the University. Now since a competent legislature has conferred this power on a particular body the State cannot encroach upon that power by its executive act. Thus this is a case where there is not merely an absence of legislative sanction to the action of the State but there is an implied limitation on its executive power in regard to this matter. Moreover, while the Constitution permits the State without the necessity of any law empowering it to do so to make reservations of seats for the benefit of backward classes and scheduled castes and tribes there is no provision either in the Constitution or in any other law which empowers the State Government to issue directions to selection committees charged with the consideration of applications for admission to any colleges as to what should be the basis of making admissions. It was said that most of the medical Colleges are owned by the State and the State as the owner of those Colleges was entitled to give directions to its officers as to the mode of selection of persons for admission to those Colleges. But it seems to me that the matter is not quite as simple as that. Educational institutions which are affiliated to the University must conform to the pattern evolved by the University and the proprie (1) [1955]2 section C. R. 225 (2) A. I. R. 1951 All. 257 (F. B) 410 tors or the governing bodies of those institutions can claim no right to adopt a different pattern. The pattern set by the University would necessarily be affected if the standards of admission, teaching, etc., are varied by those who run those institutions. It is not material to consider whether either the object or effect of the addition of an interview for selecting candidates for admission to the institutions is to improve upon the standards fixed by the Academic Council For, it is to that body to which the legislature has entrusted the whole matter. It was said that no objection to the Government 's action was taken by the University. What is important is not whether no objection was taken by the University but whether it consented to the action of the Government. That it did not consent would appear from the consent memo filed. in the High Court on behalf of the University a copy of which has been filed in this Court after our judgment was reserved. Therein the counsel for the University has stated; "Under section 23(b) and section 43 of the Mysore University Act read with section 2(a) of the same Act, the Academic Council alone can prescribe qualifications for admission. 'Me University is not consulted about either Exhibit 'D ' or increasing the interview marks to 25 per cent as per letter dated 6.7.1963. Interview marks must also be treated as marks given to a subject. " There is thus no substance in the plea made on behalf of the, State. This is an additional reason why I think that the provision for interviews is not valid. My learned brother has dealt at length with the question as to the value of interviews in the matter of making admissions to educational institutions. I do not think it necessary to pronounce any opinion upon that question in this case and would reserve it for a future occasion. I would also likewise reserve my opinion on the other points upon which he has expressed him self excepting one, that is, as to the relevance of the consideration of caste in deter mining the classes which are socially and educationally backward. I would only say this that it would not be in accordance 411 either with cl. (1) of article 15 or cL (2) of article 29 to require the consideration of the castes of persons to be borne in mind for determining what are socially and educationally backward classes. It is true that cl. (4) of article 15 contains ,a non obstante clause with the result that power conferred by that clause can be exercised despite the provisions of cl. (1) of article 15 and cl. (2) of article 29. But that does not justify the inference that castes have any relevance in determining what are socially and educationally backward ,communities. As my learned brother has rightly pointed out the Constitution has used in cl. (4) the expression "classes" and not "castes". Upon the view which I have taken on the two points I have discussed the appeals must be allowed and a direction be issued to the Selection Committee to make the selection ,of candidates solely on the basis of the result of P.U.C. examination. I would allow them with costs here as well as in the High Court. ORDER BY COURT In view of the judgment of the majority, the appeals fail and are dismissed. There will be no order as to costs.

IN-Abs

The Government of Mysore by an order defined backward classes and directed that 30 per cent of the seats in professional and technical colleges and institutions shall be reserved for them and 18 per cent to the Schedule castes and Scheduled Tribes. It was laid down that classification of socially and educationally backward classes should be made on the basis of economic condition and occupation. By a letter the Government informed the Director of Technical Education that it had been decided that 25% of the maximum marks for the examination in optional subjects shall be fixed as interview marks. The selection will be conducted by a committee composed of Heads of Technical Institutions aid in allotting marks for interview factors like general knowledge, personality and extracurricular activities of the candidates should be ' taken into consideration. On the basis of the above criteria selections were made for admission to Engineering and Medical Colleges. Thereupon some of the candidates whose applications for admission were rejected filed writ petitions before the High Court of Mysore for quashing the orders issued by the Government and for directing that they shall be admitted in the colleges strictly in the order of merit. The High Court rejected the contentions raised on points of law but found that the selection committee has abused its power and directed that the petitioners be interviewed afresh and admissions be made in accordance with the Government Order and letter which were declared valid. Before this Court it was contended that the Government letter was invalid inasmuch as it did not comply with the provisions of article 166 of the Constitution. The next contention was that the Government had no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University. Another contention was that selection by viva voce examination was illegal by reason of the fact that it enables the interviewers to act arbitrarily and therefore it contravenes article 44 of the Constitution. Lastly it was contended that unless the observation of the High Court that the classification was not perfect since the Government has not applied the caste test as well as the economic test is corrected it will mislead the Government. Held: (Per B. P. Sinha, C.J., Subba Rao, Raghubar Dayal and Rajagopala Ayyangar JJ.) (i) The provisions of article 166 of the Constitution are only directory and not mandatory and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. In the present case the impugned order though it does not conform to the provisions of article 166 ex facie says that an order to the effect mentioned therein was issued by the Government and it is not denied by the appellants that the order was made by the Government and neither it is denied that it was communicated to the selection committee. Therefore it is valid. 134 159 S.C. 24 370 Dattatraya Moreshwar Pangarkar vs State of Bombay ; , State of Bombay vs Purushottam log Naik, , Ghaio Mall & sons vs State of Delhi, [1959] S.C.A. 1424 and Bachittar Singh vs State of Punjab, [1962] Supp. 3 S.C.R. 713, referred to. (ii) If the impact of the State law providing for standards of education on entry 66 of List I is so heavy and devastating as to wipe out or appreciably abridge the Central field it may be struck down. But that is a question of fact to be ascertained in each case. If a State law Prescribes higher percentage of marks for extra curricular activities in the matter of admission to colleges it cannot be said that it would be directly encroaching on the field covered by entry 66 of List I. The Government Orders do not contravene the minimum qualification prescribed by the Mysore University; what the Government did was to appoint a selection committee and prescribe for selection of students who have the minimum qualifications prescribed by the University. Since they cannot admit all the students who have secured the minimum marks prescribed by the University they had necessarily to select the applicants on some reasonable basis. The State Government is therefore entitled to prescribe a machinery and also the criteria for admission of qualified students to medical and engineering colleges run by the Government and with the consent of the management of the Government aided colleges, to the said colleges also. Gujarat University vs Shri Krishna, [1963] Supp. 1 S.C.R. 112, distinguished. (iii) The selection by viva voce is one of the methods suggested by modern authorities on education in preference to written tests. It is no ', for the court to say which method should be adopted, it should be left to the authorities concerned. The fact that one particular method is capable of abuse is not sufficient ground for quashing it as being violative of article 14. If in a given case the selection committee abuses its powers in violation of article 14 the selection will be held invalid and will be set aside as the High Court has done in the present case. (iv) A classification of backward classes based on economic conditions and occupation is not bad and does not offend article 15(4). The caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness and though it is a relevant factor to determine social backwardness of a class, it cannot be the sole or dominent test in that behalf. If in a given selection caste is excluded in ascertaining a class within the meaning of article 15(4) it does not vitiate the classification if it satisfied other tests. The inference to the contrary which may be drawn from the observation of the High Court in the impugned judgment will not be correct in law or a correct reading of the observations of this Court in M. R. Balaji vs State of Mysore, [1963] Supp. 1 S.C.R. 439. (v) Various provisions of the Constitution like articles 15, 29, 46, 341 and 342 which recognise the factual existence of backward classes in our 371 country and which make a sincere attempt to promote the welfare of the weaker sections thereof should be construed to effectuate that policy and not to give weightage to progressive sections of the society under the false colour of caste to which they happen to belong. Under no circumstances a "class" can be equated to a "caste" though the caste of an individual or group of individuals may be a relevant factor in putting him in a particular class. If in a given situation caste is excluded in ascertaining a class within the meaning of article 15(4) it would not violate the classification if it satisfied other tests. If an entire sub caste by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution. Per Mudholkar, J. (dissenting): (i) The decisions of this Court dealing with article 166 of the Constitution have definitely held that where the ' existence of a Government Order itself is challenged by a person who is affected by it the burden is upon the Government to establish that an order was in fact made by the Governor in the manner provided for in the rules of business framed by the Governor under cl. (3) of article 166. (ii) It is not correct to say, in this case, that the appellants have not denied the existence of the order. Right from the beginning they have been saying that there was no "Government Order" in so far as admission to the Medical College was concerned. Since both the appellants were concerned only with the admission to a Medical College they had no necessity to deny the existence of the Government Order regarding admission to an Engineering College. The document which is relied on the State to establish that there was a Government Order is nothing but a communication from the Secretary to Government of Mysore addressed to the selection committee and Deans Medical College Mysore. It is thus not an order of the kind contemplated by article 166. Except a statement in that communication that the Under Secretary is "directed to state" that the Government has taken a decision there is no evidence or averment that the Governor has made an order providing for interview. In no case has this Court held that such a document. can be treated as the Governor 's Order or even evidence of the existence of the Governor 's Order. (iii) The decision of this Court in Gujarat University vs Shri Krishna, [1963] Supp. 1 S.C.R. 112, establishes that the power to provide for coordination and determination of standards in certain institutions like the medical colleges is vested in the Parliament and even though Parliament may not have exercised that power the State Legislature cannot step in and provide for the determination and coordination of standards by requiring that marks on the basis of interviews be awarded to the applicants for admission of candidates to, such institutions as is done in the present case. It constitutes an interference with the standards of admission laid down by the University. (iv) The executive power of the State which is co extensive with legislative power under article 162 of the Constitution cannot be exercised where such exercise is contrary to law or where it has been assigned to 372 other authorities or bodies. Section 23 of the Mysore University Act, provides that the Acadamic Council shall have power to prescribe the conditions of admission to the University and therefore the executive cannot encroach on this power. Rai Sahib Ram Jawaya Kapur vs State of Punjab, and Motilal vs Government of State of Uttar Pradesh, A.I.R. 1951 All 259 (F.13.). (v) It would not be in accordance with cl. (1) of article 15 or cl. (2) of article 29 to require the consideration of the caste of persons to be borne in mind for determining what are socially and educationally backward classes.

minal Appeal No. 24 of 1951. Appeal by special leave granted by the Supreme Court on the 2nd April, 1951, from the Judgment and Order dated the 5th May, 1950, of the High Court of Judicature at Allahabad in Criminal Miscellaneous Case No. 34 of 1949. M. C. Setalvad, Attorney General for India, K. section Krishnaswamy Aiyangar and section P.Sinha (V. N. Sethi, K. B. Asthana, N. C. Sen, K. N. Aggarwala, Shaukat Hussain, K. P. Gupta, M. D. Upadhyaya and G. C. Mathur, with them) for the appellants. Gopalji Mehrotra and Jagdish Chandra for the respondent. May 8. The Judgment of the Court was delivered by MUKHERJEA, J. This appeal which has come before us, on special leave, is directed against a judgment of a Full Bench of the Allahabad High Court, dated 5th May, 1950, by which the learned judges held the appellants guilty of contempt of court; and although the apology tendered by the appellants was accepted, they were directed to pay the costs of the respondent State. The appellants, six in number, are members of the Executive Committee of the District Bar Association at Muzaffarnagar within the State of Uttar Pradesh, and the contempt proceedings were started against them, because of certain resolutions passed by the Committee on 20th April, 1949, copies of which were forwarded to the District Magistrate and other officers by a covering letter signed by appellant No.1 as President of the Bar Association. To appreciate the contentions that have been raised in this appeal, it would be necessary to state a few relevant facts. The resolutions which form the basis of the contempt proceedings relate to the conduct of two judicial officers, both of whom functioned At 1172 Muzafarnagarn at the relevant time. One of them named Kanhaya Lal Mehra was a Judicial Magistrate while the other named Lalta Prasad was a Revenue Officer. It is said that the first appellant as President of the Bar Association received numerous complaints regarding the way in which these officers diposed of cases in their courts and behaved towards the lawyers and the litigant public. The Executive Committee of the Association took the matter in hand and, after satisfying themselves that the complaints were legiti mate and well founded, they held a meeting on 20th April, 1949, in which the following resolutions were passed: Rsolved that "Whereas the members of the Association have had ample opportunity of forming an opinion of the judicial work of Sri Kanhaya Lal, Judicial Magistrate, and Shri Lalta Prasad, Revenue Officer, It is now their considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and the lawyers alike. Besides the above mentioned defects common to both of them, other defects are separately catalogued as hereunder: * * * * (The complaints against each of the officers separately were then set out under specific heads). Resolved further that copies of the resolution be sent to the Honourable Premier, the Chief Secretary of the Uttar Pradesh Government, the Commissioner and the District Magistrate for suitable action; Resolved that the District Magistrate and Collector be requested to meet a deputation of the following in this connection at an early date;" (The names of 5 members who were to form the deputation were then mentioned. ) 1173 It is not disputed that this meeting of the Executive Committee of the Bar Association was held in camera and no non member was allowed to be present ' at it. The resolutions were typed out by the President himself and the proceedings were not recorded in the Minute Book of the Association at all. On the following day, that is, on 21st April, 1949, the President sent a copy of the resolutions with a covering letter marked " confidential" to the District Magistrate, Muzaffarnagar. Copies of the resolutions were similarly despatched to the Commissioner of the Division, the Chief Secretary and the Premier of Uttar Pradesh. It is not disputed that the District Magistrate was the immediate superior of the officers concerned, and the other three were the higher executive authorities in the official hierarchy. One paragraph of this covering letter contained the following statement: "Complaints against these officers had been mounting and a stage was reached when the matter had to be taken up formally. The resolution is not only well considered and unanimous but represents a consensus of opinion of all practitioners in the Criminal and Revenue side. " The post script of the letter addressed to the District Magistrate contained a prayer that he might find it convenient to fix an early date to meet the deputation of 5 members as indicated in the third resolution. The Divisional Commissioner, by his letter dated 27th April, 1949, addressed to appellant No. 1, acknowledged receipt of the copy of the resolutions and requested the addressee to supply specific details of cases tried by these officers in support of the allegations contained in the resolution. Without waiting for this information, however, the Commissioner on the day following wrote a letter to the Chief Secretary of the U.P. Government suggesting that the matter should be brought to the notice of the High Court inasmuch as instances were not rare where influential members of the Bar got resolutions like these passed by their associations with a view to put 152 1174 extra judicial pressure upon the judicial officers so ,as to make them amenable to their wishes which often were questionable. On 10th May, 1949, a deputation of 5 members waited upon the District Magistrate and discussed with the latter the entire situation. The Magistrate also told the deputation that the details of complaints as required by the Commissioner should be furnished at an early date. These details were sent to the District Magistrate by the appellant No. I on 20th June, 1949, and specific instances were cited, the accuracy of which was vouched by a number of senior lawyers who actually conducted those cases. On 20th July, 1949, the District Magistrate through the Divisional Commissioner wrote a letter to the Registrar of the High Court of Allahabad requesting the latter to draw the attention of the High Court to the resolutions passed on 20th April, 1949, and other remarks made by the members of the Committee and suggesting that suitable action might be taken against them under section 3 of the Contempt of Courts Act of 1926. On 16th November, 1949, the High Court directed the issue of notices on 8 members of the Committee to show cause why they should not be dealt with for contempt of court in respect of certain portions of the resolution which were set out in the notice. In answer to these notices, the opposite parties appeared and filed affidavits. The case was heard by a Bench of three Judges who, by their judgment dated 5th May, 1950, came to the conclusion that with the exception of two of the opposite parties who were not members of the Executive Committee at the relevant date, the remaining six were guilty of contempt of ' court. It was held that the opposite parties were not actuated by any personal or improper motives; the statement made on their behalf that their object was not to interfere with but to improve the administration of justice was accepted by the court, but nevertheless it was observed that the terms used in the resolution were little removed from personal abuse and whatever might have been the motive, they clearly were likely to bring the Magistrate into contempt and 1175 lower their authority. The concluding portion of the judgment stands as follows: "We think that the opposite parties acted under a misapprehension as to the position, but they have expressed their regrets and tendered an unqualified apology. In the circumstances, we accept their apology, but we direct that they pay the costs of the Government Advocate which we assess at Rs. 300. " It is the propriety of this judgment that has been assailed before us in this appeal. According to the learned judges of the High Court,, the allegations made against the judicial officers in the present case come within the category of contempt which is comniitted by "scandalising the court". The learned judges observed on authority of the pronouncement of Lord Russell in Reg. vs Gray(1), that this class of contempt is subject to one important qualification. The judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could treat that as contempt of court. In the opinion of the learned judges, the complaint lodged by the appellants exceeded the bounds of fair and legitimate criticism and in this respect the members of the Bar Association could not claim any higher privilege than ordinary citizens. No distinction, the High Court held, could also be made by reason of the fact that the charges against the judicial officers in the present case were embodied in a representation made to authorities who were the official superiors of the officers concerned and under whose administrative control the latter acted. The learned Attorney General who appeared in sup. port of the appeal, characterised this way of approach of the High Court as entirely wrong. His contention is that any act or publication which is calculated to lower the authority or dignity of a judge does not per se amount to contempt of court. The test is whether the allegations are of such character or are made in (1) 1176 such circumstances as would tend to obstruct or interfere with the course of justice or the due administration of law. Reliance was placed by him in this connection upon certain pronouncements of the Judicial Committee which held definitely that an imputation affecting the character or conduct of a judge, even I though it could be the subject matter of a libel proceeding, would not necessarily amount to a contempt of court. The Attorney General laid very great stress on the fact that the resolutions passed and the representations made by the appellants in the present case were not for the purpose of exposing before the public the alleged shortcomings of the officers concerned ; the whole object was to have the grievances of the lawyers and the litigating public which were genuinely felt, removed by an appeal to the authorities who alone were competent to remove them. Such conduct, it is argued, cannot in any way be calculated to interfere with the due administration of law and cannot be held to be contempt of court. The points raised are undoubtedly important and require to be examined carefully. It admits of no dispute that the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the courts. It would be only repeating what has been said so often by various judges that the object of contempt proceedings is not to afford protection to judges, personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened. There are indeed innumerable ways by which attempts can be made to hinder obstruct the due administration of justice in courts. One type of such 1177 interference is found in cases where there is an act or, publication which "amounts to scandalising the court itself" an expression which is familiar to English lawyers since the days of Lord Hardwick(1). This scandalising might manifest itself in various ways but, in substance, it is an attack on individual judges or the court as a whole with or without reference to particular cases, casting unwarranted and defamatory aspersions upon the character or ability of the judges. Such conduct, is punished as contempt for this reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties. There are decisions of English courts from early times where the courts assumed jurisdiction in taking committal proceedings against persons who were guilty of publishing any scandalous matter in respect of the court itself. In the year 1899, Lord Morris in delivering the judgment of the Judicial Committee in MacLeod vs St. Aubin(2) observed that "committals for contempt by scandalising the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. " His Lordship said further: "The power summarily to commit for contempt is considered necessary for the proper administration of justice. It is not to be used for the vindication of a judge as a person. He must resort to action for libel or criminal information. " The observation of Lord Morris that contempt proceedings for scandalising the courts have become obsolete in England is not, strictly speaking, correct; for, in the very next year, such proceedings were taken in Reg. vs Gray(1). In that case, there was a scandalous attack of a rather atrocious type on Darling J. who was sitting at that time in Birmingham Assizes and was trying a man named Wells who was indicted intter alia for selling and publishing obscene literature. (1) Vide In re Read and Huggonoson ; , 471. (2) (3) (1900] 2 Q.B. 36. 1178 The judge, in the course of the trial, gave a warning ,to the newspaper press that in reporting the proceedings of the court, it was not proper for them to give publicity to indecent matters that were revealed during trial. Upon this, the defendant published an article 'in the Birmingham Daily Argus, under the heading "An advocate of Decency", where Darling J. was abused in scurrilous language. The case of Wells was then over but the Assizes were still sitting. There can be no doubt that the publication amounted to contempt of court and such attack was calculated to interfere directly with proper administration of justice. Lord Russell in the course of his judgment, however, took care to observe that the summary jurisdiction by way of contempt proceedings in such cases where the court itself was attacked has to be exercised with scrupulous care and only 'when the case is clear and beyond reasonable doubt. "Because", as his Lordship said, "if it is not a case beyond reasonable doubt, the court should and ought to leave the Attorney General to proceed by criminal information". In 1943, Lord Atkin, while delivering the judgment of the Privy Council in Devi Prashad vs King Emperor(1), observed that cases of contempt, which consist of scandalising the court itself, are fortunately rare and require to be treated with much discretion. Proceedings for this species of contempt should be used sparingly and always with reference to the administration of justice. "If a judge is defamed in such a way as not to affect the administration of justice, he has the ordinary remedies for defamation if he should feel impelled to use them. " It seems, therefore, that there are two primary con siderations which should weigh with the court when it is called upon to exercise the summary powers in cases of contempt committed by "scandalising" the court itself. In the first place, the rejection on the conduct or character of a judge in reference to the discharge of his judicial duties would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in (1) 70 1, A. 216. 1179 respect of public acts done in the seat of justice. It is not by stifling criticism that confidence in courts can be created. "The path of criticism", said Lord Atkin(1), "is a public way. The wrong headed are permitted to err therein; provided that members of the public abstain, from imputing motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice, or attempt to impair the administration of justice, they are immune. " In the second place, when attacks or comments are made on a judge or judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the judge and what amounts really to contempt of court. The fact that a statement is defamatory so far as the judge is concerned does not necessarily make it a contempt. The distinction between a libel and a contempt was pointed out by a Committee of the Privy Council, to which a reference was made by the Secretary of State in 1892 (2). A man in the Bahama Islands, in a letter published in a colonial newspaper criticized the Chief Justice of the Colony in an extremely ill chosen language which was sarcastic and pungent. There was a veiled insinuation that he was an incompetent judge and a shirker of work and the writer suggested in a way that it would be a providential thing if he were to die. A strong Board constituting of 11 members reported that the letter complained of. though it might have been made the subject of proceedings for libel, was not, in the circumstances. calculated to obstruct or interfere with the course of justice or the due administration of the law and therefore did not constitute a contempt of court. The same principle was reiterated by Lord Atkin in the case of Devi Prashad vs King Emperor(, ') referred to above. It was followed and approved of by the High Court of Australia in King vs Nicholls(1), and has been accepted as sound by this (1) Ambard vs Attney General for Trinidad and Tobago, at P. 335. (2) In the matter of a special referencefrom the Bahama Islands (3) 70 I.A. 216. (4) 1180 Court in Reddy vs The State of Madras (1). The position therefore is that a defamatory attack on a judge may be a libel so far as the judge is concerned and it would be open to him to proceed against the libellor in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such court, it can be punished summarily as contempt. One is a wrong done to the judge personally while the other is a wrong done to the public. It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court 's administration of justice, or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper admi nistration of law (2). It is in the light of these principles that we will proceed to examine the facts of the present case. It cannot be disputed that in regard to matters of contempt, the members of a Bar Association do not occupy any privileged or higher position than ordinary citizens. The form in which the disparaging statement is made is also not material, but one very important thing has to be noticed in the case before us, viz., that even assuming that the statement was derogatory to the dignity of the judicial officers, very little publicity was given to this statement, and in fact, the appellants made their best endeavours to keep the thing out of the knowledge of the public. The representation was made to 4 specified persons who were the official superiors of the officers concerned; and it has been found as a fact by the High Court that the appellants (1) (1952] section C. R. 452. (2) Mr. Mookerjea J. in In re Motilal Ghosh and Othera, I.L.R. at 283. 1181 acted bona fide with no intention to interfere with the administration of justice though they might have been under a misapprehension regarding the precise legal position. No copies of the resolution were even sent to the officers concerned. Apart from the contents of the representation by the appellants and the language use therein, this fact would have a bearing on the questio as to whether the conduct of the appellants brought them within the purview of the law of contempt. The first question that requires consideration is whether in making the allegations which they did against the two judicial officers, the appellants exceeded the limits of fair and legitimate criticism. There were three resolutions passed at the meeting; the second, and third were of a mere formal character and do not require any consideration. The offending statement is to be found in the first resolution which again is in two parts. In the first part, there are allegations of a general nature against both the officers, but the second part enumerates under specific heads the complaints which the Committee had against each of them separately. With regard to Kanhaya Lal, the a legations are that he does not record the evidence in cases tried by him properly, that in all criminal matters transferred to his court, where the accused are already on bail, he does not give them time to furnish fresh sureties with the result that they are sent to jail, and lastly, that he is not accommodating to lawyers at all. So far as the other officer is concerned, one serious allegation made is, that he follows the highly illegal procedure of hearing two cases at one and the same time, and while he records the evidence in one case himself, he allows the Court Reader to do the thing in the other. It is said also that he is short tempered and frequently threatens lawyers with proceedings for contempt. Some of these complaints are not at all serious and no judge, unless he is hypersensitive, would at all feel aggrieved by them. It is undoubtedly a grave charge that the Revenue Officer hears two cases simultaneously and allows the Court Reader to do the work for him. If true 153 1182 it is a patent illegality and is precisely a matter which should be brought to the notice of the District Magistrate who is the administrative head of these officers. As regards the first part of the resolution, the alle gations are made in general terms that ' these officers do not state facts correctly when they pass orders and that they are discourteous to the litigant public. These do not by any moans amount to scandalising the court. Such complaints are frequently heard in respect of many subordinate courts and if the appellants had a genuine grievance,it cannot be said that, in ventilating their grievances they exceeded the limits affair criticism. The only portion of the resolution to which 'prima facie objection can be taken is that which describes these officers as thoroughly incompetent in law and whose judicial work does not inspire confidence. Those remarks are certainly of a sweeping nature and can scarcely be justified. Assuming, however, that this portion of the resolution is defamatory, the question arises whether it can be held to amount to contempt of court. To answer this question, we have to see whether it is in any way calculated to interfere with the due administration of justice in these courts, or, in other words, whether such statement is likely to give rise to an apprehension in the minds of litigants as to the ability. of the two judicial officers to deal properly with cases coming before them, or even to embarrass the officers themselves in the discharge of their duties. We are unable to agree with the learned counsel for the respondent that whether or not the representation made by the appellants in the present case is calculated produce these results is to be determined solely and exclusively with reference to the language or con tents of the resolutions themselves; and that no other fact or circumstance can be looked into for this purpose, except perhaps as matters which vate or mitigate the offence of content: offence is found to have been committed that pleas of justification or privilege are speaking available to the defendant in contempt 1183 proceedings. The question of publication also in the technical sense in which it is relevant in, a libel action may be inappropriate to the law of contempt. But, leaving out cases of ex facie contempt, where the question arises as to whether a defamatory statement directed against a judge is calculated to undermine the confidence of the public in the capacity or integrity. of the judge or is likely to deflect the court itself from a strict and unhesitant performance of its duties, all the surroundung facts and circumstances under which the statement was made and the degree of publicity a was givine to it would undoubtedly be relevant ' circumstances. It is true as the learned counsel for the respondent suggests that the matter was discussed in the present case among the members of the Bar, and it might have been the subject matter of discussion amongst the officers also to whom copies of the resolutions were sent. No doubt, there was publication as, is required by the law of libel, but in contempt proceedings, that is not by any means conclusive. What is material is the nature. and extent of the publication and whether or not it was likely to have an injurious effect on the minds of the public or of the judiciary itself and therefore to interference with the administration of justice. On the materials before us,, it is difficult to say that the circumstances under which the representation was made by the appellants was calculated to have such effect. There might have been some remote possibility but that cannot be taken note of. We are clearly of the opinion that the contempt, if any, was only of a technical character, and that after the affidavits were filed on behalf of the appellants before the High Court, the proceedings against them should have been dropped. The result, therefore, is that the appeal is allowed and the judgment of the High Court is set aside. There will be no order for costs either here or in the court below in favour of either party. Appeal allowed.

IN-Abs

(1) Vide Vaghoji vs Camaji, I.I. R. 117O The object of contempt proceedings is not to afford protection to judges personally from imputations to which they maybe exposed as individuals, but is intended to be a protection to the public whose interest would be very much affected if, by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which the people have in the administration of justice by it is weakened. When the court itself is attacked, the summary jurisdiction by way of contempt 'proceedings must be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. There are two primary considerations which should weigh with the court in such cases, viz., first whether the reflection on the conduct or character of the judge is within the limits of fair and reasonable criticism, and secondly, whether it is a mere libel or defamation of the judge or amounts to a contempt of the court. If it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt. Where the question arises whether a defamatory statement directed against a judge is calculated to undermine the confidence of the public in the competency or integrity of the judge or is likely to deflect the court itself from a strict and unhesitant performance of its duties, all the surrounding facts and circumstances under which the statement was made and the degree of publicity that was given to it would be relevant circumstances. The question is not to be determined solely with reference to the language or contents of the statement made. The Executive Committee of a District Bar Association received several complaints against the way in which the Judicial Magistrate and the Revenue Officer of the District disposed of cases and behaved towards litigants and lawyers, and passed a resolution which stated that " it was their considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and lawyers alike " and gave a list of various complaints against the officers. This resolution was passed in camera, typed out by the President himself and forwarded confidentially to the District Magistrate, Commissioner of the Division, and the Chief Secretary and Premier of the State. The District Magistrate moved the High Court of Allahabad to take action against the appellants, who had passed the resolution, for contempt of court. The High Court held that the appellants were guilty of contempt but accepted their apology. On appeal: Held, that in the light of all the circumstances of the case, the contempt, if any, was only of a technical character and that after the affidavits bad been filed on behalf of the appellants before the High Court, the proceedings against them should have been dropped.

minal Appeals Nos. 109 111 of 1963. Appeals from the judgment and order dated May 31, 1963, of the Bombay High Court in Criminal Applications Nos. 217, 218 and 114 of 1963. The appellants (in Cr. A. Nos. 109 & 110 of 1963) appeared in person. Janardan Sharma and Appellant also, for the Appellant (in Cr. A. No. 111 of 1963). N. section Bindra and R. H. Dhebar, for respondents (in Cr. A. Nos. 109 111 of 1963). Purushottam Trikamdas and R. H. Dhebar, for the respondents (in Cr. A. No. 110 of 1963). 449 January 29, 1964. The Judgment of the Court was delivered by WANCHOO J. These three appeals on certificates granted by the Bombay High Court raise common questions of law and will be dealt with together. They arise out of three habeas corpus petitions filed by the appellants in the High Court under section 491 of the Code of Criminal Procedure challenging their detention under r. 30 of the Defence of India Rules (hereinafter referred to as the Rules). A large number of constitutional questions were raised in the applications and were decided by the High Court against the appellants. These appeals came up for hearing in August 1963 along with some other appeals from decisions of other High Courts, and the constitutional questions were decided by this Court on September 2, 1963, (see Makhan Singh Tarsikka vs State of Punjab) (1). It was held therein that the applications under section 491 (1) of the Code of Criminal Procedure were incompetent in so far as they sought to challenge the validity of the detention on the ground that the Defence of India Act and Rules framed thereunder suffer from the vice that they contravened the fundamental rights guaranteed by articles 14, 21, 22(4), (5) and (7). The other points raised in the appeals were not considered at that time and it was directed that the appeals should be set down for hearing before a Constitution Bench to be dealt with in accordance with law. Consequently, these appeals have been put up before this Bench for disposal of the other points raised therein. A preliminary objection has however, been raised on behalf of the State to the hearing of these appeals on the ground that the orders under which the appellants were detained and which are under consideration in these appeals had been revoked by the State Government and fresh orders of detention had been passed, and in consequence these appeals had become infructuous. Reliance in this connection is placed on the decision of the Federal Court in Keshav Talpade vs King Emperor(2). In that case the detenu was released while his appeal was pending before the Federal Court. It was however urged on his behalf that even (1) A.T.R. (2) 134 859 S.C. 29. 450 though he had been released and no order could thereafter be made on the habeas corpus application, the court should pronounce an opinion on the correctness of the High Court 'a ' judgment. The Federal Court refused to do so and dis missed the appeal on the ground that no order in the appeal could be made after the release of the detenu. Generally speaking, no useful purpose would be served by the appeal court deciding the appeal in a habeas corpus matter where the detenu has been released before the appeal comes up for final hearing. But the facts in the present case are different. Here what has happened is that the earlier order of detention which is the basis of the present appeals has been revoked by the Government of Maharashtra on the ground of a technical defect and a fresh order of detention was passed on the same date, and the appellants were immediately rearrested after their release from jail under the fresh order of detention. In the Federal Court case, however, it appears that the detenu was released and there was no question of a fresh order of detention being made on the same day leading to his re arrert. In the circumstances, it is urged by the appellants that though technically the appellants were released before the present appeals came up for final hearing, in substance they are under detention even now and the points of law raised by them. against the earlier order of detention will apply equally to the fresh order of detention. It is therefore urged that the Court should decide the present appeals as that would settle the law and help the detenus in case they make fresh application under section 491 of the Code of Criminal Procedure against the fresh order of detention. It is further urged that the appellants intend after the emergency is over to sue for damages for false imprisonment and the order of the Bombay High Court would stand in their way 'in case such a suit is brought, and therefore an authoritative pronouncement on the questions of law raised should be made by this Court in the present appeals, even though technically the order out of which the present appeals have arise ' in has been revoked. We are of opinion that the circumstances of the present cases are different from the circumstances in Keshav Talpade 'scase(1) and therefore it would be in the interests of justice to decide (1) 451 the points raised in the present appeals. We may add that there is nothing to preclude this Court from deciding the appeals even though the order from which these appeals have arisen has been revoked, though ordinarily this Court would not do so. But as we have already indicated, it seems to us just and fair 'in view of the fact that the appellants have not been filially released and are still under detention under a fresh order of detention under the Rules that the points raised in these appeals should be decided. The points are of general importance and are likely to arise in many cases. We therefore over rule the, preliminary objection. The facts in the three appeals are similar and we shall therefore briefly refer to the facts in Appeal No. 1 1 0 for the purposes of dealing with the points raised on behalf of the appellants. The appellants were first detained on November 7, 1962 by an order made by the Commissioner of Police, Greater Bombay, under the , No. IV of 1950. The matter was then reported to the Government. Before this, however, the security of India had been threatened by the Chinese invasion and an Emergency had been declared under article 352 of the Constitution. Further on October 26, 1962, the Defence of India Ordinance 1962 was passed, followed by the Rules framed thereunder. When the matter came before the Government, it decided that the order of November 7, 1962 made by the Commissioner of Police should be revoked and ordered accordingly on November 10. On the same day, the Government decided to detain the appellants and passed an order under r. 30 of the Rules. This order said that with a view to preventing the appellants from acting in a manner prejudicial to the defence of India, the public safety and the maintenance of public order, it was necessary to detain them,. and therefore in exercise of the powers conferred upon the Government by r. 30 of the Rules, the Government directed the detention of the appellants. This order was served on the appellants in jail. It was challenged by the appellants by filing habeas corpus petition under article 226 of the Constitution and under section 491 of the Code of Criminal Procedure. The 452 High Court, as already indicated, dismissed the applications but granted leave to the appellants to appeal to this Court. The constitutional points raised, as already indicated, were decided by this Court on September 2, 1963, and now we are concerned with the other points raised on behalf of the appellants. The first contention that has been urged is that the de tention is illegal inasmuch as the detention order was served on the appellants while they were in jail, and reliance in this connection is placed on the judgments of this Court in the cases of Rameshwar Shaw vs District Magistrate, Burdwan(1), and Makhan Singh Tarsikka vs The State of Punjab(2). In those cases, it was held by this Court that where a person is detained in jail as an under trial prisoner no order of detention either under the preventive Detention Act or under the Rules could be served on him because one of the necessary ingredients which go to make up the satisfaction of the detaining authority is necessarily absent in such a case. It was pointed out in Rameshwar Shaw 's case(1) that "before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention." The same principle was reiterated in the case of Makhan Singh Tarsikka(2). There is however a vital difference between the facts of those two cases and the facts in the present appeals. Those two cases were concerned with the service of an order of detention under the or under the Rules on a person who was in jail in one of two (1) A. I. 1964 S.C. 334. (2) A. I. R. 453 circumstances, namely (1) where he was in jail as an under trial prisoner and the period for which he was in jail was indeterminate, or (2) where he was in jail as a convicted person and the period of his sentence had still to run for some length of time. In those cases the service of the order of detention under the or under the Rules in jail would not be legal for one of the necessary ingredients about which the authority had to be satisfied would be absent, namely, that it was necessary to detain the person concerned which could only be postulated of a person who was not already in prison. In the present cases, however, the appellants were not under detention either as under trial prisoners for an indeterminate time or as convicted persons whose sentences were still to run for some length of time. They were detained under the Pre ventive Detention Act by an order of November 7, 1962 which had been reported to Government for approval and which order could only remain in force for 12 days under section 3 (3) of the unless in the meantime it had been approved by the State Government. The State Government, however, decided on November 10, 1962, to revoke the order of the Commissioner of Police under the and to pass an order itself under the Rules. In those circumstances, the principle of the two cases referred to above would not in our opinion apply, for the detention of the appellants depended upon the approval of the State Government. The State Government, however, decided to revoke the order of November 7, 1962 and instead decided to pass an order under the Rules on the same day, namely November 10, 1962. In these circumstances it would be in our opinion an empty formality to allow the appellants to go out of jail on the revocation of the order of November 7, and to serve them with the order dated November 10, 1962 as soon as they were out of jail. Where the detention is not of the two kinds considered in the cases of Rameshwar shaw(1) and Makhan Singh Tarsikka (2 ) and is either under the or under the Rules, and its duration is dependent upon the will of the State Government, we cannot see any reason for holding that if the State Government decides 1964 S.C. 334. (2) A. I. R. 1964 S.C. I 120. 454 to revoke an earlier order of detention it cannot pass a fresh order of detention the same day and serve it on the detenu in jail, for the two orders are really of the same nature and are directed towards the same purpose. Further the order of the Commissioner dated November 7, 1962 was subject to the approval of the State Government without which it could only be in force for 12 days. In these circumstances the order passed by the State Government on November 10 under the Rules when it had decided to revoke the order of November 7, 1962, would in our opinion be perfectly valid so far as the time of the making of the order was concerned and its service in jail on the persons who were detained not as under trials or as convicted persons but as detenus, could not be assailed on the ground on which the order of detention was assailed in the cases of Rameshwar Shaw(1) and Makhan Singh Tariskka(2). The principal of those two cases cannot in our opinion be applied to a case where a fresh order of detention is passed after the cancellation or revocation of an earlier order of detention. The contention therefore that the making of the order of detention on November 10, 1962 or its service in jail in these cases, makes the detention illegal, must be negatived. It is next urged that the detaining authority has failed to arrive at that kind of satisfaction which the Rules require. This contention is based on the words of the order dated November 10, 1962. Rule 30 inter alia lays down that the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from 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 directing that the person be detained. Now the order of November 10, 1962 is in these terms: "No. S.B.III/DOR.1162 IV Home Department (Special) (1) ; (2) A.I.R. 1964 S.C.1120. 455 ORDER "Whereas the Government of Maharashtra is satisfied with respect to the person known as Shri Shamrao Vishnu Parulekar of Bombay that with a view to preventing him from acting in a manner prejudicial to the defence of India, the public safety and the maintenance of pub lic order, it is necessary to make the following order: "Now, therefore, in exercise of the powers conferred upon it by rule 30 of the Defence of India Rules, 1962, the Government of Maharashtra does hereby direct that the said Shri Shamrao Vishnu Parulekar be detained. By order and in the name of the Governor of Maharashtra Sd. Deputy Secretary to Government of Maharashtra, (Home Department) Sachivalaya, Bombay, this 10th day of November, 1962". The contention of the appellants is that the first part of the order does not say that it is necessary to detain the appellants. The words used in the first part of the order are "it is necessary to make the following order" and then follows the second part which says that the Government directs that the said person be detained. We are of opinion that when the first part says "it is necessary to make the following order", it in effect says that "it is necessary so to do which is what r. 30 of the Rules requires. Reading the order as a whole, in substance it does say that it is necessary to detain the person with a view to preventing him from acting in a manner prejudicial to the defence of India, etc. In r. 30 the words are "so to do" while in the order they are "to make the following order". The two expressions in our opinion mean the same thing and we cannot 456 accept the argument that the satisfaction necessary under r. 30 of the Rules was not arrived at in these cases by the authority making the order. Then it is urged that as the State Government is equivalant to the Governor, it is the Governor who should. be satisfied and not the Home Minister as is the case according to the affidavit filed on behalf of the State Government. The State Government in this connection relies on the Rules of Business, copy of which has been made available to us. These rules have been framed by the Governor under article 166 of the Constitution for the more convenient transaction of the business of Government and for the allocation among Ministers of the said business. In the affidavit on behalf of the State Government reliance is placed on item 2 (b) of the First Schedule to the Rules of Business dealing with subjects allocated to the Home Department (Special), entry (7) which provides for preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community. During the hearing, our attention was drawn to item (1) of the First Schedule to the Rules of Business dealing with subjects allotted to General Administration Department, entry (44), which provides for preventive detention for reasons connected with defence, foreign affairs or the security of India. It is obvious from the Rules of Business that preventive detention has been divided into two parts and allocated to two different departments. Where preventive detention is for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community, it can be dealt with by the Minister in charge of item 2 (b) dealing with subjects allocated to the Home Department (Special); but where the preventive detention is for reasons connected with defence, foreign affairs or the security of India, it can be dealt with by the Minister in charge of item 1 relating to subjects allotted to the General Administration Department. The detention order in the present cases states that it was made with a view to preventing the appellants from acting in a manner prejudicial to the defence of India, the public 457 safety and the maintenance of public order. As the deten tion order mentions both the defence of India and the maintenance of public order, such an order could only be made by a Minister who was in charge both of item 1 relating to subjects allotted to the General Administration Depart ment and of item 2(b) relating to subjects allotted to Home Department (Special). In the affidavit on behalf of the State the order was sought to be justified on the round that it was made by the Home Minister in charge of item 2 (b) relating to subjects allocated to the Home Department (Special). We are of opinion that as the detention order was for reasons connected with the defence of India also, it could not be dealt with under item 2 (b), entry (7) only which item deals with subjects allocated to the Home De partment (Special) and had to be dealt by a Minister who was in charge of both item 1 relating to subjects allotted to the General Administration Department and item 2 (b) relating to subjects allotted to Home Department (Special). In the original affidavit filed on behalf of the State it was however not clear whether the Minister who dealt with these orders was also in charge of the subjects allotted to the General Administration Department but it was stated at the bar that the Minister who dealt with the matter and passed the order on the basis of which the appellants were detained was in charge not only of item 2 (b) relating to subjects allocated to the Home Department (Special.) but was also in charge of item 1 relating to subjects allotted to the General Administration Department. We therefore called upon the State Government to file an affidavit to that effect and an affidavit was filed on December 21, 1963. That affidavit says that the order of November 10, 1962 was passed by the Chief Minister who was at the relevant time in charge both of the General Administration Department as well as the Home Department (Special). We have already referred to the terms of the order of detention. That order refers to three reasons as the basis for the order, namely, (i) the defence of India, (ii) the public safety, and (iii) the maintenance of public order. Now preventive detention connected with the defence of India could only be ordered under the Rules of Business by the Minister who was in charge of the General Administration Department. 458 while preventive detention for reasons connected with the maintenance of public order could only be ordered by the Minister in charge of subjects allocated to the Home Depart ment (Special). The order therefore in the present case could only be made by a Minister who was in charge both of subjects allotted to the General Administration Department and subjects allotted to the Home Department (Special). In view of the affidavit now filed it appears that the Chief Minister was in charge of both the departments and in the circumstances he could pass the order under challenge. The contention under this head must therefore fail. The next argument is that there is no order of allocation made by the Governor under article 166 of the Constitution after the passing of the Defence of India Ordinance and the Rules framed thereunder and therefore the allocation of business by the, Rules of Business which were enforced by an order of the Governor dated May 1, 1960 would not be of any effect in allocating the subject of preventive detention arising under the Defence of India Ordinance Act and the Rules to the Minister and the Governor should have passed the order of detention himself. We are of opinion that there is no force in this contention. Allocation of busi ness under article 166 (2) of the Constitution is not made with reference to particular laws which may be in force at the time the allocation is made; it is made with reference to the three lists of the Seventh Schedule to the Constitution, for the executive power of the Centre and the State together extends to matters with respect to which Parliament and the Legislature of a State may make laws. Therefore. when allocation of business is made it is made with reference to the three Lists in the Seventh Schedule and thus the allocation in the Rules of Business provides for all con tingencies which may arise for the exercise of the executive power. Such allocation may be made even in advance of legislation made by Parliament to be available when ever Parliament makes legislation conferring power on a State Government with respect to matters in List I of the Seventh Schedule. It was therefore in our opinion not necessary that there should have been an allocation made by the Governor under article 166 (3) of the power to detain under 459 the Defence of India Ordinance, Act and Rules after they were passed; it will be enough if the allocation of the sub ject to which the Defence of India Ordinance, Act and Rules refer has been made with reference to the three Lists in the Seventh Schedule and if such allocation already exists, it may be taken advantage of if and when laws are passed. Preventive detention is provided for in List 1, item 9, for reasons connected with defence, foreign affairs and the security of India, and in item 3 of List III for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community. The allocation of business made under article 166 is in pursuance of these entries in the three Lists in the Seventh Schedule and would be available to be used whenever any law relating to these entries is made and power is conferred on the State Government to act under that law. The contention of the appellants that fresh allocation should have been made under article 166 (3) by the Governor after the passing of the Defence of India Ordinance, Act and Rules must therefore fail. Lastly reliance is placed on sections 40 and 44 of the Defence of India Act. Section 40 gives power to the Central Government to delegate its powers under the Act or the Rules to any officer or authority subordinate to the Central Government or to any State Government or any officer or authority subordinate to such Government or to any other authority, and the argument is that before the State Government can exercise the power conferred by r. 30, there has to be a delegation by the Central Government. This argument in our opinion is misconceived. It is true that section 40 gives authority to the Central Government to delegate its powers under the Act or the Rules to the State Government and others. But no delegation under that section is required for the exercise of the power under r. 30 by the State Government, for r. 30 itself lays down that the power there in can be exercised by the Central Government or the State Government. No further delegation therefore was necessary in favour of the State Government in so far as the exercise of power under r. 30 is concerned. 460 Next it is urged that the order of detention does not show that section 44 was kept in mind when it was made. Section 44 lays down that "any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence". It is urged that an order of detention necessarily interferes completely with the ordinary avocation of life of the person detained and therefore before such an order could be made, section 44 should be borne in mind. Therefore the order of detention is to be made when it is the only way of carrying out the purposes of the Act, for section 44 provides that there should be as little interference with the ordinary avocations of life as possible under the Act. The argument further is that r. 30 (1) provides as many as eight clauses which provide for the regulation of conduct of an individual and cl. (b) relating to detention, which amounts to complete interference with the avocation of life of the detenu could only be resorted to in view of section 44 when it is shown that no other way of regulating the conduct of the person de tained as provided in the other clauses of r. 30 (1) would meet the needs of the situation. So it is urged that unless the order shows on the face of it that the State Government thought that the detention was the only mode in which the purposes of the Act and the Rules could be carried out, the order would be bad in view of section 44 of the Act. We are of opinion that there is no force in this contention. It is true that section 44 provides that there should be as little interference with the ordinary avocations of life as possible when orders are made under the Act or the Rules; but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of r. 30 (1) and had come to the conclusion that the only way in which the purposes of the Act and the Rules could be carried out was by the use of cl. (b) of r. 30 (1). In our opinion when the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that that was the only way which the State Government thought was necessary to adopt in order to meet the situation. It will then 461 be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to section 44. No such thing has been shown in the present cases and we are satisfied that the orders in question cannot be said to go beyond the needs of the situation, even assuming that section 44 is mandatory as urged on behalf of the appellants and not merely directory as urged on behalf of the State. The appeals therefore fail and are hereby dismissed.

IN-Abs

Appellants were first detained on November 7, 1962 under . That order was revoked by the Government and the appellants were released but re arrested under Rule 30 of the Defence of India Rules. The orders of detention were served on appellants in Jail. The appellants challenged those orders in the High Court by filing habeas corpus petitions under article 226 of the Constitution and section 491 of the Code of Criminal Procedure. The writ petitions were dismissed by the High Court and the appellants came to this Court under a certificate from the High Court. The contentions raised by the appellants were that their detention was illegal because the detention order was served on them when they were in jail, that the orders of detention were passed without the satisfaction of the authority concerned regarding their necessity, the satisfaction was to be that of the Governor and not of any Minister, that there should have been fresh allocation of business by the Governor under article 166(3) of the Constitution after the passing of the Defence of India Ordinance, Act and Rules, that before the State Government could exercise the power conferred by Rule 30, there had to be delegation by the Central Government that the order of detention did not show that section 44 of Defence of India Act was kept in mind when the order was made and that unless the order showed on the face of it that the State Government thought that detention was the only mode in which the purpose of the Act and Rules could be carried out, the order was bad. Dismissing the appeals. Held: The orders of detention passed by the State Government and their service on the appellants in jail were perfectly valid and did not make the detention illegal. The appellants were detained not as undertrials or as convicted persons but as detenus and hence the cases of Rameshwar Shaw and Makhan Singh Tarsikka did not apply in the present case. Reading the detention order as a whole, it was clear that it did Ray in substance that it was necessary to detain the appellants with a view to preventing them from acting in a manner prejudicial to the Defence of India, public safety and maintenance of public order. There was no difference between the words "so to do" in Rule 30 and the words "to make the following order ' in the detention order. As the detention order mentioned both the defence of India and maintenance of public order, such an order could be made on the satisfaction of a Minister who was incharge of both the subjects in view of the Rules of Business promulgated by the Governor. It was not necessary that fresh allocation of business should be made by the Governor under article 166(3) after the passing of the Defence of India Ordinance, Act and Rules. It Is enough if the allocation of the 448 subject to which the Defence of India Ordinance, Act and Rules refer has been made with reference to the three lists in the Seventh Schedule and if such allocation already exists, it may be taken advantage of if and when laws are passed. Rule 30 of the Defence of India Rules lays down that the power can be exercised by the Central Government or the State Government and hence no further delegation is necessary in favour of the State Government for the exercise of power under Rule 30. It is true that section 44 of the Defence of India Act provides that there should be as little interference with the ordinary avocation of life as possible when orders are made under the Act or the Rules, but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of Rule 30(1) and had come to the conclusion that the only way in which the purpose of the Act and the Rules could be carried out was by the use of Rule 30(1) (b). When the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein, it means that that was the only way which the State Government thought was necessary to adopt in order to meet the situation. It is for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to section 44. Makhan Singh Tarsikka vs State of Punjab A.I.R. 1964 S.C: 381 Keshav Talpade vs King Emperor, , Rameshwar Shaw vs District Magistrate, Burdwan, ; , Alakhon Singh Tarasikka vs State of Punjab, A.I.R. , referred to

minal Appeal No. 164 of 1962. Appeal from the judgment and order dated May 2, 1962, of the Allahabad High Court in Criminal Revision No. 1579 of 1961. O. P. Rana and C. P. Lal, for the appellant. Harnam Singh Chadda and Harbans Singh, for the respondent. February 6, 1964. The Judgment of the Court was delivered by AYYANGAR J. This appeal which comes before us on a certificate of fitness granted by the High Court of Allahabad under article 134(1)(c) of the Constitution, is against a judgment of that Court acquitting the respondent Kartar Singh of an offence under section 7 read with section 16 (1)(a) (i) of the which may be conveniently referred to as the Act. 681 The facts giving rise to the prosecution are briefly these: The respondent runs a shop at Haldwani and among the products sold by him is ghee. On March 19, 1960 a quantity of the ghee was purchased by the Food Inspector of the area and he put samples of the purchase into three phials which were sealed in the respondent 's presence. It may be mentioned that even in the seizure memo the Food Inspector noted the ghee purchased by him as "pahadi ghee". One of the samples was forwarded to the Public Analyst to the Government of Uttar Pradesh for analysis forascertaining whether the said ghee was adulterated. The analysis disclosed that in several respects the samplewas sub standard and that in particular it had a ReichertValue of 22 5 as against the prescribed minimum of 28 for ghee in Uttar Pradesh. After setting out the details of the ana lysis, the Public Analyst expressed the opinion that the sample "contained a small proportion of vegetable fat or oil foreign to pure ghee". On receipt of this report, the Medical Officer of Health, Haidwani sanctioned the pro secution of the respondent and a complaint was thereafter laid before the Magistrate 1st Class by the Food Inspector. The respondent pleaded not guilty and entered on his defence. Subsequently, the second sample was got analysed by the Director, Central Food Laboratory, who reported that his analysis disclosed a Reichert Value of 21 7 as against 22 5 of the Public Analyst. The opinion expressed by him as regards the sample of ghee which he analysed was the same as that of the Public Analyst, viz., that the sample was adulterated. The defence of the respondent who admitted that he had sold the ghee, samples of which were the subject of analysis, but denied it was adulterated, was two fold: (1) He had obtained the ghee which he sold from Jodhpur, (2) The sample must be held not to be adulterated on the basis of the decision of the Allahabad High Court in State vs Malik Ram(1). The plea by the respondent regarding the ghee sold having come from Jodhpur was made because if this were established under the rules framed under the Act, to which (1) A.I.R. 1962 AU. 682 we shall later refer, the minimum Reichert value prescribed for ghee in the Jodhpur area was 21 and that minimum re quirement was satisfied by the sample analysed. The res pondent led evidence to prove his purchase from Jodhpur but the learned Magistrate did not accept this case. The other defence was a point of law relying on the decision of a Division Bench of the Allahabad High Court reported as State vs Malik Ram(1). The learned Judges who decided that case drew a distinction between ghee obtained from Cattle in the hill districts of Uttar Pradesh and those from cattle in the plains. This decision was relied on by the respondent because the ghee sold by him was noted as 'pahadi ghee ' by the Food Inspector. The learned Judges held that notwithstanding the terms of the rules to which we shall later refer, ghee obtained from hilly areas of Uttar Pradesh like Kumaun hills, could not be held to be adulterated if its Reichert value was equal to that prescribed for Himachal Pradesh which was mostly a hilly area. They therefore held that though the rules under the Food Adulteration Act prescribed a minimum Reichert value of 28 for ghee for the entire State of Uttar Pradesh, still if ghee from hill areas of the Uttar Pradesh State reached a minimum of 26 Reichert value, such ghee would not be "adulterated ghee". We shall consider the correctness of this decision after completing the narrative of the proceedings. The learned Magistrate held that this decision did not affect the present case because the Reichert value of the respondent 's ghee was less than 26.The Magistrate therefore convicted the respondent andsentenced him to rigorous imprisonment for a period of sixmonths and a fine of Rs. 500 and in default to furtherimprisonment for three months. The respondent preferred an appeal to the Sessions Judge Kumaon, and raised the same pleas and defences as he put forward before the learned Magistrate. The Sessions Judge concurred in the finding of the Magistrate regarding the story of the respondent having bought the ghee from Jodhpur, and he also agreed with the Magistrate about the effect of the decision of the Division Bench of the High Court which was also relied on before him. The (1) A.I.R. 1962 All. 683 Sessions Judge, however, while upholding the conviction reduced the sentence of imprisonment from six months to one month and the fine to Rs. 200. The respondent thereupon filed a Criminal Revision petition to the High Court under sections 435 and 439 of the Criminal Procedure Code. The learned Judge of the High Court agreed with the Courts below on the finding of fact as regards the Jodhpur origin of the ghee observing "as the file stands I am satisfied that this ghee was of local origin". There was, of course, no point raised before him as regards the correctness of the analysis. 'Me learned Judge, however, held that the basis on which the Reichert value had been prescribed for the several areas in the country was not based on any rational classification and he therefore held that it was sufficient if any vendor of ghee in the country satisfied the minimum standards prescribed for any area under these rules. As there were areas in the country in regard to which a minimum Reichert value of 21 had been prescribed, he held that the respondent was not guilty of adulteration and so directed his acquittal. It is from this decision that the present appeal has been filed by the State. Before considering the point about the standards prescribed under the Food Adulteration Act being violative of article 14, an Article which though not specifically mentioned, is apparently the ground upon which the learned Judge has held that the prescription of the Reichert value of 28 for Uttar Pradesh was unenforceable, it would be necessary to set out the statutory provisions on which the decision of the present appeal turns. The preamble to the Act describes it as one "to make provision for the prevention of adulteration of food". Section 2 defines the word 'adulterated ' as follows : "An article of food shall be deemed to be adulterated (i) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability;" 684 to read only the portion that is material. Section 3 enables the Central Government to constitute a committee for food standards and it runs "3.(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute a Committee called the Central Committee for Food Standards to advise the Central Government and the State Governments on matters arising out of the administration of this Art and to carry out the other functions assigned to it under this Act. (2) The Committee shall consist of the following members, namely: (a) the Director General, Health Services, ex officio, who shall be the Chairman; (b) the Director of the Central Food Laboratory, ex officio; (c) two experts nominated by the Central Government; (d) one representative each of the Central Ministries of Food and Agriculture, Commerce and Industry, Railways and Defence nominated by the Central Government; (e) one representative each nominated by the Government of each State; (f) two representatives nominated by the Central Government to represent the Union territories; (g) two representatives of Industry and Com merce nominated by the Central Government; (h) one representative of the medical profession nominated by the Indian Council of Medical Reserch". 685 Section 7 which prohibits the manufacture and sale of adulterated food reads: "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food;. " Section 8 makes provision for State Governments appointing Public Analysts and section 9 for the appointment of Food Ins pectors. The next material provision is that contained in section 13 which deals with the reports of the analysis of food for the purpose of ascertaining whether there are adulterat ed or sub standard etc. Its first sub section directs the Public Analyst to make a report and under sub section (3) the Certificate issued by the Director of the Central Food Laboratory under sub section (2) is to supersede the report given by a Public Analyst under sub section Section 16 provides for the penalties for offences under the ' Act. Section 23 confers on the Central Government power to make rules but these rules have to be framed after consultation with the Committee established under section 3 and among the rules which might be made are Section 23(1)(b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;. . . "23. (2) All rules made by the Central Government under this Act shall as soon as possible after they are made be laid before both Houses of Parliament. " Under the power conferred by section 23, the Prevention of Food Adulteration Rules, 1955, were promulgated. Rule 5 which occurs in Part III of the rules headed "Definitions and Standards of quality" specifies that "the standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix. " Ghee is one of the articles of food whose standards are prescribed in Appendix B, milk and milk products being listed under head A 1 1. Ghee is dealt with in item 14 of A 11 and the standard prescribed for it runs: Ghee means the pure clarified fat derived solely from milk or from curds or from cream to 686 which, no colouring matter or preservative has been added. It shall conform to the following specifications in Punjab, Uttar Pradesh, Bhopal Vindhya Pradesh, Bihar, West Bengal (except Bishnupur) and PEPSU (except Mahendragarh): (a). . . (b) Reichert Value Not less than 28. (c). . . . (d). . . . In Madras, Andhra, Travancore Cochin, Hyderabad, Mysore, Orissa, Assam, Tripura, Manipur, Madhya Bharat, Bombay, Himachal Pradesh, Mahendragarh District of PEPSU, Madhya Pradesh (except cotton tract areas) and Rajasthan (except Jodhpur) the specifications will be the same as above except that Reichert value shall be not less than 26.0. In Saurashtra, Kutch, cotton tract areas of Madhya Pradesh, Jodhpur Division of Rajasthan and Bishnupur Sub division of West Bengal the Reichert value shall not be less than 21 and the Butyro refractometer reading at 40 degree C shall be between 41 5 to 45.0. The limits for free fatty acids and moisture shall be the same as for ghee in Punjab, PEPSU etc. given above. Explanation. By cotton tract is meant the areas in Madhya Pradesh where cotton seed is extensively fed to the cattle. The learned counsel for the State has urged before us that the learned Judge was not justified in striking down or re drafting the rules framed by the Central Government in the manner in which he has done, purporting to invoke article 14 of the Constitution, and in virtually setting up what he considered was the reasonable standard of quality which should determine whether the ghee sold by the respondent was adulterated or not. We entirely agree with this submission. Now, it is common ground that if the rules were valid and the standards prescribed enforceable, the ghee 687 sold by the respondent was 'adulterated ' with the result that the respondent was guilty of an offence under section 7 read with section 16 of 'the Act. The only question is whether there was any material placed before the Court for refusing to apply the rules for determining the standards of quality. The standards themselves, it would be noticed, have been prescribed by the Central Government on the advice of a Committee which included in its composition persons considered experts in the field of food technology and food analysis. In the circumstances, if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any apriori reasoning but only as a result of materials placed before the Court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of article 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend article 14 the burden is on him to plead and prove the infir mity is too well established to need elaboration. If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formu lating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under section 3 of the Act, that presumption is strong, if not overwhelming. We might in this connection add that the respondent cannot assert any fundamental right under article 19(1) to carry on business in adulterated foodstuffs. Where the necessary facts have been pleaded and established, the Court would have materials before it on which it could base findings, as regards the reasonableness or otherwise or of the discriminatory nature of the rules. In 688 the absence of a pleading and proof of unreasonableness or arbitrariness the Court cannot accept the statement of a party as to the unreasonableness or unconstitutionality of a rule and refuse to enforce the rule as it stands merely because in its view the standards are too high and for this reason the rule is unreasonable. In the case before us there was neither pleading nor proof of any facts directed to that end. The only basis on which the contention re garding unreasonableness or discrimination was raised was an apriori argument addressed to the Court, that the division into the zones was not rational, in that hilly and plain areas of the country were not differentiated for the prescription of the minimum Reichert values. That a distinction should exist between hilly regions and plains, was again based on apriori reasoning resting on the different minimum Reichert values prescribed for Himachal Pradesh and Uttar Pradesh and on no other. It was, however, not as if the entire State of Himachal Pradesh is of uniform elevation or even as if no part of that State is plain country but yet if the same minimum was prescribed for the entire area of Himachal Pradesh, that would clearly show that the elevation of a place is not the only factor to be taken into account. At this stage it might be pointed out that the test for Reichert or Reichert Meissl value of ghee is one of the important tests for detecting adulteration with certain vegetable oils by determining the proportion of the volatile soluble acids in the ghee. The presence of the adulterant disturbs the ratio existing in normal butter fat or ghee between soluble and insoluble acids and volatile and non volatile acids. The Reichert value of pure ghee is not constant, but is dependent on several factors among them the breed of the cattle to be found in an area, whether the cattle are pasture fed or stall fed, and the nature of the additional feed given, the nature of the terrain, the rain fall and climatic conditions etc. That the feed available for the cattle is a very material and determining factor is apparent even from the rules, for a distinction is drawn between different areas of Madhya Pradesh depending on cotton seed being available for feeding the cattle. It is on the basis of the conjoint effects of these and other factors which 689 obtain in the different areas, some pointing to a higher Reichert value and others neutralising it and after extensive survey conducted from samples collected and analysed during various seasons, that the country has been divided into zones under the rule in Appendix 'B ' and the minimum Reichert value ascertained and prescribed for each. From the fact that certain areas included in some of the zones are hilly, it does not automatically follow that was the potent factor or the only factor which was taken into consideration for prescribing the standard for that region. Without appreciating the several factors which bear upon the Reichert value of the ghee produced in a locality and the value attributed to each of these several relevant factors, it would not be possible to pronounce upon the reasonable ness or correctness of the classification of the areas and the prescription of different standards to each of them. In State vs Malik Ram (1) a Division Bench of the High Court held that because certain areas of Uttar Pradesh were hilly, the Reichert value prescribed for the hilly areas like those in Himachal Pradesh should be adopted and be given effect to notwithstanding there was no ambiguity in the rules as regards the area where the prescribed standards should be applicable. Except a principle which the Court deduced from the rules themselves there was no material before the Court that the minimum standard prescribed for Uttar Pradesh was defective in any respect. The approach adopted by the learned Judges in Malik Ram 's case appears to us to be a reversal of the well recognised principle that it is for those who challenge the constitutionality of a statute or a statutory rule to allege and prove the grounds of invalidity and the adoption of the contrary rule that when a party makes such a challenge it is for those who seek to support it to sustain it by positive evidence of its reasonableness and legality. The Court evolved from a reading of the rules a principle that the standards vary with the elevation of the place, without having before it any materials for such a conclusion save what it considered was the rationale underlying the division into zones. As already explained, even in Himachal Pradesh the elevation of every place is not the same and there are areas which (1) A.I.R. 1962 All. 134 159 S.C. 44 690 are higher than others and so the test adopted does not even satisfy logic. We do not consider that the Court was justified in practically legislating and laying down what the rules should be rather than give effect to the law by adherence to the rules as framed. In the case now under appeal the learned Judge took the matter a step further and he adopted the lowest Reichert value prescribed for any area in the country as that which he would adopt for every other area in the country disre garding the rules. We find no justification for this either and, in fact, if the learned Judges in Malik Ram 's case(1) were in error in applying the Himachal standard to hilly areas of Uttar Pradesh, the judgment now under appeal discloses even more error. We might add that if one could legitimately discard the standard prescribed in the rules, as the learned Judge has done, we do not see any principle in holding, as he seems to indicate, that where the Reichert value is below 21 the ghee should be treated as adulterated. We, therefore, hold that the learned Judge was not justified in allowing the revision of the respondent and acquitting him. The result is that the appeal is allowed, the acquittal of the respondent is set aside and his conviction restored. It was stated to us on behalf of the respondent that of the imprisonment for one month to which the sentence passed on him by the Magistrate was modified by the Sessions Judge, he had already undergone a sentence of 18 days. He has been on bail practically since the admission of his Revision Petition in the High Court. In the circumstances, we consider that the sentence of imprisonment passed on him might be reduced to the period already undergone. The sentence of fine imposed will, however, stand. Appeal allowed. 1) A.I.R. 1962 All.

IN-Abs

The respondent was tried for the commission of an offence under section 7 read with section 16(1)(a)(i) of the for selling adulterated ghee. The analysis of the ghee had disclosed that it had a Reichert Value of only 22 5 whereas the minimum Reichert value fixed for Uttar Pradesh, where the respondent sold the ghee, was 28. The defence of the respondent was that he had obtained the ghee which he sold from Jodhpur where the Reichert value fixed was only 22 and that the sample must be held not to be adulterated on the basis of the decision of the Allahabad High Court in State vs Malik Ram, A.1,R. 1962 All. This decision laid down that a distinction should be made between ghee obtained from cattle in the hill districts and ghee obtained from cattle in the plains and that ghee obtained from the hill districts of U.P. cannot be held to be adulterated if its Reichert value was equal to that prescribed for Himachal Pradesh which is a hilly area. It was the contention of the respondent that his ghee was admittedly pahadi ghee and therefore this decision would apply. The First Class Magistrate rejected these contentions and convicted him and sentenced him to six months ' R.I. and a fine of Rs. 500. On appeal the Sessions Judge concurred in the findings of the trial court but reduced the sentence. The respondent thereupon filed a Criminal Revision Petition before the High Court. The High Court agreed with the courts below that the ghee was not Jodhpur ghee but it was produced locally. But it held that the Reichert values as fixed were not based on any reasonable classification and therefore it was sufficient if a vendor satisfied the minimum standard prescribed for any area in the country and since the minimum prescribed for certain areas is 21 and since the ghee in question had 22 2 the respondent was not guilty of the offence charged. The State thereupon appealed to this Court by way of a certificate under article 134(1)(e) of the Constitution. It was urged by the appellant that the High Court was wrong in striking down or re drafting the rules framed by the Central Government in the manner in which the High Court has done purporting to invoke 680 article 14 of the Constitution and virtually setting up what the High Court considered was the reasonable standard. Held: (i) Where the Government have prescribed certain standards after taking into considerations various factors the court cannot strike down these standards as unreasonable or discriminatory merely on some priori reasoning. It can do so only by basing its decision on materials placed before it by way of scientific analysis. The party invoking article 14 must make averments with details to sustain such a plea and lead evidence to establish his allegations. In the absence of such plea and evidence the court cannot accept the statement of a party as to the unconstitutionality of a rule and refuse to enforce that rule as it stands merely because in its view the standards are too high and for this reason the rule is unreasonable. (ii) Applying these principles it is found that the case State vs Malik Ram (A.I.R. 1962 All. 156) was wrongly decided by the Allahabad High Court. In the case under appeal the High Court took the matter a step further and adopted the lowest Reichert value prescribed for any area in the country as what should be adopted for every other area in the country disregarding the rules. Hence the High Court was wrong in allowing the revisions.

Appeal No. 9 of 1964. Appeal from the judgment and order dated September 9, 1964 of the Patna High Court in Election Appeal No. 2 of 1963. C.B. Agarwala, L.M. Sarma and D.N. Mukherjee, for the appellant. Sarjoo Prasad and K.K. Sinha, for the respondent No. 1. The Judgment of the Court was delivered by Dass Gupta, J. The appellant Brij Mohan Singh and the resportdent Priya Brat Narain Sinha were among the candidates who contested the Aurangabad Constituency seat for the Bihar Legislative Assembly at the General Election held in 1962. The polling took place on February 21, 1962. The appellant received a majority of votes and was declared elected. The respondent Priya Brat Babu who was the sitting member was defeated on April 9, 1962, he filed a petition challenging the validity of the appellant 's election. He prayed for a declaration that the election of the appellant Brij Mohan Singh be declared void and that he (Priya Brat Narain Sinha) be declared to have been duly elected to the Bihar Legislative Assembly from the Aurangabad Constituency. Among the grounds on which the appellant 's election was challenged were these three : (1) That the appellant was born on October 15, 1937 and was thus under 25 years of age on the date of filing the nomination papers and therefore disqualified under article 137 of the Constitution from being a member of the Bihar Legislative Assembly; (2) That he held subsisting contracts under the Bihar Government in his individual and personal capacity and was thus disqualified under section 7(d) of the Representation of the People Act; (3) That the appellant, and with his consent, his party men Rameshwar Prasad Singh and others (whose names are mentioned) were directly responsible for publication and distribution of copies of leaflets containing direct insinuations and aspersions against the respondent 's personal character, these being false to the knowledge of the appellant. The Election Tribunal held on a consideration of the oral and documentary evidence produced before it that none of these or the other grounds on which the validity of the election was challenged had been established. Accordingly, the Tribunal dismissed the petition. 863 On appeal, the High Court of Judicature at Patna set aside the judgment and order of the Election Tribunal and made an order setting aside the election of the appellant Brij Mohan Singh to the Bihar Legislative Assembly. The High Court however refused the respondent 's prayer to be declared duly elected. Against this order of the High Court the present appeal has been preferred on a certificate granted by the High Court under article 133(1)(b) of the Constitution. The only grounds that appear to have been pressed before the High Court were the three which we have mentioned above. The High Court agreed with the Election Tribunal that the allegation that the appellant held a contract under the Government in his personal capacity had not been established. As regards the other two grounds the High Court disagreed with the Election Tribunal. The High Court held that the appellant was below the age of 25 years on the date of filing the nomination and was therefore not qualified to be a candidate for the Bihar Legislative Assembly. The High Court also held that the appellant had published a leaflet exhibit 10 containing attacks upon the personal character of the respondent and was thus guilty of a corrupt practice within the meaning of section 123(4) of the Representation of the People Act. As already stated, the High Court set aside the election of the appellant. The findings of the High Court on the question of age and also on the question of publication of the document exhibit 10 have been challenged before us. It was also urged that in any case the pamphlet exhibit 10 did not amount to an attack on the personal character of the respondent. [After considering the evidence his Lordship concluded that it was not proved that the appellant had committed any corrupt practice or that he was below twenty five years on the date of filing of nomination papers. On the question whether an entry made in an official record maintained by an illiterate public servant, by some one else at his request is relevant under section 35 of the Evidence Act his Lordship held:] On an examination of the physical appearance on the hathchitha and the entries made therein, the evidence of the Chowkidar and the circumstances under which this document was ultimately produced before the Tribunal we are inclined to agree with the view of the Election Tribunal that this is a genuine document which was maintained by the Chowkidar in the discharge of his official duty. If the document had been manufactured to assist the appellant we do not think it likely that the Chowkidar would have refused to produce it readily when summoned to do so. The fact 864 that a warrant of arrest had to be executed against him is a convincing circumstance that the Chowkidar was unwilling to produce it. We are not impressed by the argument of Mr. Sarjoo Prasad that the omission of the Chowkidar to produce the document in obedience to the summons and the issue of warrant of arrest to secure its production were all pre arranged to create an atmosphere for the acceptance of the document as genuine. The appellant 's lawyers before the Election Tribunal could not possibly have been sure that the Tribunal would in the last resort issue a: warrant of arrest. It is not likely that they would take such risk so that ' the document might not come at all. In our opinion, this document is genuine and is the book that was maintained by the Chowkidar for noting the births in his Ilaka during the years 1934 to 1936. The entry therein showing the birth of a son to Sarjoo Singh on October 15, 1935 can however be of ' no assistance to the appellant unless this entry is admissible in evidence under the Evidence Act. If this entry had been made by the Chowkidar himself this entry would have been relevant under section 35 of the Evidence Act. Admittedly, however, the Chowkidar himself did not make it. Mr. Agarwal tried to convince us that when an illiterate public servant is unable to make an entry himself and he gets the entry made by somebody else this should be treated as an entry made by the public servant. This argument must be rejected. The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within section 35 of the Evidence Act. It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act. The entry in the hath chitha has therefore to be left out of consideration in coming to a conclusion about the appellant 's age. Appeal allowed.

IN-Abs

The appellant and respondent were rival candidates for election to the Bihar Legislative Assembly. The appellant obtained a majority of votes and was declared elected. This election was challenged by the respondent on the ground that the appellant had not attained the age of 25 years on the date of filing the nomination papers and was on that account disqualified under article 173 of the Constitution from being a member of the Assembly; that he held subsisting contracts under the Bihar Government in his individual and personal capacity and was thus disqualified under section 7(d) of the Representation of the People Act and that he and his party men were directly responsible for publication and distribution of copies of leaflets entitled "Bagula Neta Se Hoshiar" containing direct insinuations and aspersions against the personal character of the respondent, those being false to the knowledge of the appellant. The Election Petition was dismissed by the Election Tribunal. The respondent appealed to the High Court. The High Court came to the conclusion that the allegation that the appellant held Governpapers and that the appellant was. gulty of a corrupt practice in the appeal and set aside the election of the appellant on the ground that he was below the age of 25 on the date of filling the nomination papers and that the appellant was guilty of. a corrupt practice in that he had published the offending leaflets. With certificate ' of fitness granted by the High Court the appellant appealed to this Court. Allowing the appeal: HELD: (i) The burden of proving that appellant had not attained the age of 25 years on the date of has nomination was on the respondent and he had failed to prove that and hence the election of the appellant could not be set aside on that ground. The entry made in an official record maintained by an illiterate Chowkidar, by somebody else at his request, does not come within Section 35 of the Evidence Act. (ii) The respondent had not been able to prove the publication of the leaflets by the appellant or has agent or by any other person with the consent of the appellant o.r of his election agent, and hence the Election Tribunal was right in coming to the conclusion that the commission of any corrupt practice by appellant under section 123(4) had not been proved.

Appeal No. 542 of 1962. Appeal from the judgment and order dated April 7, 1960, of the Andhra Pradesh High Court in Tax Revision case No. 27 of 1958. Setalvad, K. Srinivasamurthy and Naunit Lal, for the appellant. A.Ranganadham Chetty and B. R. G. K. Achar, for the respondent. February 6, 1964. The Judgment of the Court was delivered by SHAH, J. With certificate of fitness granted by the High Court of Andhra Pradesh this appeal is preferred by Shree Bajrang Jute Mills Ltd. The appellant is engaged in the manufacture of jute goods, and is a registered dealer under the Madras General Sales Tax Act. For the assessment year 1954 55 the appellant submitted its return for sales tax claiming a deduction of Rs. 21,80,118 1 3 from the turnover in respect 693 of the jute goods supplied by rail to the Associated Cement Company Ltd. hereinafter for the sake of brevity called 'the A.C.C. under despatch instructions from that Company. The Commercial Tax Officer rejected the claim of the appellant for deduction and that order was confirmed in appeal to the Deputy Commissioner of Commercial Taxes. In appeal to the Sales Tax Appellate Tribunal, the order was reversed, the Tribunal holding that the appellant was entitled to exemption in respect of the turnover for the goods supplied to the A.C.C. A revision petition presented against the order to the High Court of Andhra Pradesh was heard with a large number of other petitions which raised certain common questions. The High Court reversed the order of the Tribunal and restored the order passed by the Deputy Commissioner of Commercial Taxes. The factory of the appellant is situated at Guntur. The A.C.C. owns cement factories at many places (including one at Tadepalli in the State of Andhra called the Krishna Cement Works) and for the purpose of marketing its products it requires jute packing bags. For securing a regular supply of jute bags, the A.C.C. entered into a contract with the appellant of which the following four conditions are material : "1. All the goods are sold F.O.R. Guntur unless otherwise expressly stated in this contract. Goods to be packed . well pressed and marked in. bound bales of. per each. Payments to be, made in cash, in exchange for Mills Delivery Order on sellers on due date or for Railway receipts or for Dock receipts, or for Mate 's receipts, (which Dock receipts or Mate 's receipts are to be handed by a Dock 's or Ship 's Officer to the seller 's representative). The buyers agree that the property in the goods sold shall not pass from the sellers to the buyers so long as the sellers are in possession of any bills of lading, railway receipts, dock warrants or Mate 's receipts or any other document of 694 title whether such documents are in the names of sellers or buyers, until payment is made in full. (a) The buyers agree that the risk of loss, deterioration or damage in the goods during transit whether by land or canal or sea or when the goods are in the custody of the seller or any third person in a warehouse, dock or any premises shall be borne by the buyers notwithstanding that the property in the goods does not pass to the buyers during such transit or custody." As and when the gunny bags were needed for packing its products the A.C.C. issued despatch instructions calling upon the appellant to send jute bags by railway to the cement factories of the A.C.C. outside the State of Andhra. Pursuant to those instructions the appellant loaded the goods in the railway wagons, obtained railway receipts in the name of the A.C.C. as consignee and against payment of the price, delivered the receipts to the Krishna Cement Works, Tadepalli which, it is common ground, was for the purpose of receiving the railway receipts and making pay ment, the agent of the A.C.C. It is also common ground that the jute bags were sold to the A.C.C. for the purpose of packing cement by the factories of the A.C.C. to which they were sent and not for any other purpose. The assessing authority and the Deputy Commissioner held that as the railway receipts were delivered to the agent of the buyer within the State of Andhra, and price was also realized from the agent of the buyer within the State, the goods must be deemed to have been delivered to the buyer in the State of Andhra, and the appellant was liable to pay sales tax on the price of the goods sold. With that view the High Court agreed Under the Government of India Act, 1935, the Legislatures of every Province could legislate for levying tax on sales of goods in respect of all transactions, whether the property in the goods passed within or without the Province, provided the Province had a territorial nexus with one or more elements constituting the transaction of sale : Poppat 695 Lal Shah vs The State of Madras(1) and The Tata Iron & Steel Company Ltd. vs State of Bihar(1). But this resulted in simultaneous levy of sales tax by many Provinces in respect of the same transaction each fixing upon one or more element constituting the sale, with which it had a territorial nexus. With the dual purpose of maintaining an important source of revenue to the States, and simultaneously preventing imposition of an unduly heavy burden upon the consumers by multiple taxation upon a single transaction of sale, the Constitution made a special provision imposing restrictions upon the legislative power of the States in article 286 which as originally enacted ran as follows : "(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. Explanation. For the purposes of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce : Provided that the President may by order direct that any tax on the sale or purchase of goods which (1) ; (2) ; 696 was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty first day of March, 1951. (3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." After the enactment of the Constitution, by a Presidential Order the Provincial Sales Tax Acts were made to accord with the restrictions imposed by article 286 of the Constitution. It is manifest that by article 286 the legislative authority of the States to impose taxes on sales and purchases was restricted by four limitations in respect of sales or purchases outside the State, in respect of sales or purchases in the course of imports into or exports out of India, in respect of sales or purchases which take place in the course of interState trade or commerce and in respect of sales and purchases of goods declared by Parliament to be essential for the life of the community. These limitations may overlap, but the power of the State to tax sale or purchase transactions may he exercised only if it is not hit by any of the limitations. The restrictions are cumulative. The sales in the present case are not sales, which have taken place in the course of inter State trade or commerce. The only point of contest is whether they are "outside the State ' of Andhra. It is now well settled that by article 286(1) (as it stood before it was amended by the Constitution Sixth Amendment Act, 1956) sales as a direct result of which goods were delivered in a State for consumption in such State i.e. the sales falling within the Explanation to article 286(1) were fictionally to be regarded as inside that State for the purpose of cl. (1) (a) and so within the taxing 697 power of the State in which such delivery took place and being outside all other States exempt from sales tax by those other States : Tobacco Manufacturers (India) Ltd. vs The Commissioner of Sales tax, Bihar, Patna(1): Indian Copper Corporation Ltd, The State of Bihar and others (2) and The State of Kerala and others vs The Cochin Coal Com pany Ltd.(3). But the Explanation is not exhaustive of what may be called "inside sales". Clause (1)(a) excludes from the reach of tile power of the States sales outside the State but it does not follow from the Explanation that it localises the situs of all sales. The power of the State under Entry 54 List II of the Seventh Schedule to tax sales [not falling within cls. (1)(b), (2) and (3)] which are outside the Explanation, and which may for the sake of brevity be called 4non Explanation ' sales, remains unimaired. It is not necessary for the purpose of this case to express an opinion, whether the theory of territorial nexus of ;the taxing State, with one or more elements which go to make a completed sale authorises since the promulgation of the Constitution the exercise of legislative power under Entry 54, List II of the Seventh Schedule to tax sales, where property in goods has not passed within the taxing State. The question which then falls to be determined is whether the sales to the A.C.C. by the appellant may be regarded as "non Explanation sales". There can be no doubt that if the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered, the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by article 286(1) (a) read with the Explanation. The facts found by the taxing authorities clearly establish that property in the goods despatched by the appellant passed to the A.C.C. within the State of Andhra when the railway receipts were handed over to the agent of the A.C.C. against payment of price. The question still remains : were (1) ; (2) ; (3) ; 698 the transactions 'non Explanation sales ' i.e. falling outside the Explanation to article 286(1)? To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of consumption in the State in which they were delivered. It is not disputed that the goods were supplied for the purpose of consumption outside the State of Andhra, and in the States in which they were supplied. It is submitted that the goods were actually delivered within the State, when the railway receipts were handed over to the agent of the buyer. But the expression "a actually delivered" in the context in which it occurs, can only mean physical delivery of the goods, or such action as puts the goods in the possession of the purchaser : it does not contemplate mere symbolical or notional delivery e.g. by entrusting the goods to a common carrier, or even delivery of documents of title like railway receipts. In C. Govindarajulu Naidu & Company vs State of Madras(1) Venkatarama Ayyar, J., dealing with the concept of actual delivery of goods, so as to attract the application of the Explanation to article 286(1) (a) rightly observed: "In the context it can mean only physical delivery and not constructive delivery such as by transfer of documents of title to the goods. The whole object of the Explanation is to give a power of taxation in respect of goods actually entering the State for the purpose of use therein and it will defeat such a purpose if notional delivery of goods as by transfer of documents of title to the goods within the State is held to give the State a power to tax, when the good are actually delivered in another State. " A similar view has been expressed in two other cases M/s. Capco Ltd. vs The Sales Tax Officer and another (2 ) and Khaitan Minerals vs Sales Tax Appellate Tribunal for Mysore (3). (1) A.I.R. 1953 Mad. (3) A.I.R. (2) A.I.R. 1960 AM. 699 Counsel for the respondent State relied upon section 39ofthe Indian , which provides inso far as it is material, by the first sub section that where,in pursuance of a contract of sale, the seller is authorisedto send the goods to the buyer, delivery of the goods toa carrier, for the purpose of transmission to the buyer, is prima facie deemed to be delivery of the goods to the buyer. But that provision will not make mere delivery of the railway receipts representing title to the goods, actual delivery of goods for the purpose of article 286. The rule contained in section 39(1) of the Indian raises a prima facie inference that the goods have been delivered if the conditions prescribed thereby are satisfied: it has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption. The High Court was therefore in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts, that the goods were actually delivered within the State. If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted, on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States. The appeal must therefore be allowed. The order of the High Court is set aside and the order of the Appellate Tribunal is restored. The appellant to get its costs in this Court and the High Court from the respondent State.

IN-Abs

The appellant, carrying on business as a manufacturer of jute goods with its factory at Guntur, used to send jute bags by railway to the cement factories of the A.C.C. outside the State of Andhra. For securing a regular supply of jute bags, the A.C.C. entered into a contract with the appellant and under the despatch instructions from that company, the appellant loaded the goods in the railway wagons, obtained railway receipts in the name of the A.C.C. as consignee and against payment of the price, delivered the receipts to the Krishna Cement Works, Tadepalli, which was for the purpose of receiving the railway receipt and making payment, the agent of the A.C.C. From the amounts shown as gross turnover in the return for the assessment year 1954 55, the appellant claimed reduction of certain amounts in respect of the goods supplied by rail to the A.C.C. outside the State of Andhra Pradesh under its despatch instructions. The Commercial Tax Officer and the Deputy Commissioner of Commercial Taxes disallowed the claim and held that as the railway receipts were delivered to the agent of the buyer within the State of Andhra, and price was also realized from the agent of the buyer within the State, goods must be deemed to have been delivered to the buyer in the State of Andhra Pradesh, and the appellant was liable to pay tax on the sales. On appeal, this order was reversed by the Appellate Tribunal. In revision the High Court restored the order of the Deputy Commissioner of Commercial Taxes. The question for determination in this appeal was whether the sales to the A.C.C. by the appellant may be regarded as "non Explanation sales", i.e. falling outside the Explanation to article 286(1). Held:(i) If the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered, the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by article 286(1)(a) read with Explanation. To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of consumption in the State in which they were delivered. The expression "actually delivered ' in the context in which it occurs, can only mean physical delivery of 692 the goods, or such action as puts the goods in the possession of the purchaser; it does not contemplate mere symbolical or notional delivery. C.Govindarajulu Naidu & Co. vs State of Madras, A.I.R. 1953 Mad. 116, M/s. Capco Ltd. vs Sales Tax Officer, A.I.R. 1960 All. 62 and Khaitan Minerals vs Sales Tax Appellate Tribunal for Mysore, A.I.R. followed. Poppat Lal Shah vs State of Madras, ; , Tata Iron & Steel Co. Ltd. vs State of Bihar, ; , Tobacco Manufacturers(India) Ltd. vs Commissioner of Sales Tax, Bihar, [1961] 2 S.C.R.106, Indian Copper Corporation Ltd. vs State of Bihar, [1961] 2 S.C.R.276 and State of Kerala vs Cochin Coal Co. Ltd., [1961] 2 S.C.R. 219, referred to. (ii)Section 39 of the Indian will not make mere delivery of the railway receipts representing title to the goods, actual delivery of goods for the purpose of article 286. The rule contained is section 39(1) has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods, have been actually delivered for the purpose of consumption.

Appeals Nos. 86 to 97 of 1962. Appeals from the judgment and order dated July 25, 1955, of the Assam High Court in Civil Rule Nos. 94 97, 105, 106, 114 and 175 to 179 of 1953. M. C. Setalvad, Sohan Shroff, P. K. Kapila and Sukumar Ghosh, for the appellants. Naunit Lal, for the respondents. February 4, 1964. The Judgment of the Court was delivered by SHAH J. These appeals have been filed with certificates granted by the High Court of Assam under article 132 of the Constitution against orders passed in certain petitions filed by the appellants praying for writs of certiorari or other appropriate writs quashing orders relating to assessment of sales tax, and prohibiting the Superintendent of Taxes, Dhubri and other officers from taking action in enforcement of the said orders. The appeals raise common questions and may be disposed of by a common judgment. The appellants are merchants carrying on business as dealers in jute, and have their principal place of business at Calcutta. The appellants have a branch office at Dhubri in the State of Assam and are registered dealers under the Assam Sales Tax Act, 1947 (17 of 1947). The appellants purchased jute at Dhubri and other places in the State of Assam and despatched bales 'of jute to diverse factories ,outside the Province of Assam. The appellants submitted returns of turnover for purposes of sales tax before the Superintendent of Taxes, Dhubri, under the Assam Sales Tax Act in respect of transactions of sale during the period 657 between March 1948 to March 1950. The Superintendent of Taxes called upon the appellants under section 17(2) of the Act to produce their books of account and other evidence in support of their returns and granted them time to enable them to comply with the requisition, but the appellants failed to do so. The Superintendent of Taxes then made "best judgment assessments" exercising his powers under section 17(4) of the Act and issued demand notices for the tax determined. Against the orders passed by the Superintendent of Taxes appeals were preferred to the Assistant Com missioner of Taxes. Before the appellate authority the appellants produced some but not all their books of account and documents in support of their returns. Before the appellant authority it was contended, inter alia, that the definition of "sale" in section 2(12) of the Act was beyond the legislative competence of the Provincial Legislature, that tax was sought to be levied on sales effected outside the State, and that imposition of sales tax on the transactions of the appellant amounted to levying an "export tax" which was not open to the Provincial Legislature. It was however not contended before the Assistant Commissioner of Taxes that the jute bales, sale price of which was included in the turnover were not at the time of the contracts in the form of jute bales actually within the State of Assam and there fore the Explanation to section 2(12) did not make that sale price liable to be included in the turnover of the appellants. The Assistant Commissioner of Taxes, Assam, dismissed the appeals. In the revision applications preferred to the Commissioner of Taxes, Assam, against the order of the Assistant Com missioner of Taxes it was contended for the first time that the price of jute included in the turnover under the orders passed by the Superintendent of Taxes was not liable to be taxed because within the meaning of the Explanation to section 2(12) the goods were not at the time of the contracts actually in the Province of Assam. The Commissioner rejected the contention after examining what he called the "time table of cultivation". He observed that the usual time for marketing jute of the new crop was between July and June of the following year, jute being planted in or 134 159 S.C. 42. 658 about February and being ready for marketing some time about the month of June. The Commissioner further observed that the contracts were made on diverse dates between March and September and deliveries under the contracts were made after the month of July when the new crop was brought into the market. The contracts between the months of March and July were therefore in respect of the last year 's crop and the goods sold must actually have been in the Province of Assam at the date of the contracts. The Commissioner made certain modifications in the assessment order, but with those modifications we are not concerned in these appeals. Against the order passed by the Commissioner, petitions under article 226 of the Constitution were filed by the appellants for writs of certiorari and prohibition. Amongst the grounds urged before the High Court were the following two grounds, which alone survive for determination in these appeals: (1) that the Explanation to section 2(12) of the Act was ultra vires the Assam Legislature under the provisions of the Government of India Act, 1935, and therefore tax could not be levied on sales irrespective of the place where the contracts were made merely relying upon the circumstance that at the time of the contracts of sale the goods contracted to be sold were actually in the Province of Assam; and (2) that the finding recorded by the Commissioner that the goods were actually in the Province of Assam at the time when the contracts were made was "speculative". The High Court held that the Explanation to section 2(12) was. in respect of the period prior to the Constitution, not ultra vires the authority of the Provincial Legislature, and that no attempt was made to establish before the appellate authority that the books of account supported the contention that the goods were not actually in existence in the State of Assam at the time of the contracts of sale. Holding that the reasons which the Commissioner had given in support of his finding were not "altogether unjustified" and that the taxing 659 authorities being "fully conscious" that one of the essential ingredients of tax liability was that the goods must be actually in existence in the State of Assam at the time of the contracts of sale, the High Court declined to consider whether the conclusions of the taxing authorities on questions of fact were correct. But the High Court held that the plea about the vires of section 2(12) and the Explanation thereto raised a substantial question as to the interpretation of the Constitution, and accordingly granted certificates of fitness under article 132 of the Constitution. At the hearing of these appeals counsel for the appellants sought leave to challenge the correctness of the decision that the goods were when the contracts were made actually within the Province of Assam. We have heard counsel for the appellants at great length upon this application for leave to appeal on grounds other than constitutional on which the certificates were granted by the High Court. After carefully considering the arguments, we are of the view that no case has been made out for acceding to that request. A person appealing to this Court under article 132 of the Constitution may not challenge the correctness or propriety of the decision appealed against on grounds other than those on which the certificate is granted, unless this Court grants him leave to raise other questions. Such leave is generally granted where the trial before the High Court has resulted in grave miscarriage of justice or where the appeal raises such substantial questions that on an application made to this Court under article 136 of the Constitution leave would be granted to the applicant to appeal against the decision on those questions. The Assam Sales Tax Act, 1947, was enacted in 1947. By section 2(3) the expression "dealer" is defined as meaning any person who carries on the business of selling or supplying goods in the Province, and by the Explanation the manager or agent of a dealer who resides outside the Province and carries on the business of selling or supplying goods in the Province is in respect of such business to be deemed a dealer for the purpose of the Act. Clause (12) of section 2 defines 'sale '. Section 3 is the charging section and section 4 prescribes the rates of tax. The sales tax authority may, 660 if he is not satisfied that the return furnished by the dealer is correct and complete, serve on the dealer a notice requiring him either to attend in person and to produce or cause to be produced any evidence on which he may rely in support of his return [sub section (2) of section 17], and may make an assessment to the best of his judgment if the dealer fails to make a return or fails to comply with the terms of the notice issued under sub section (2) of section 17. Section 30 confers a right of appeal to an aggrieved dealer to the authority prescribed by the rules, and by section 31 revisional jurisdiction may be exercised by the Commissioner of Sales Tax against the order of the sales tax authorities. By section 32, within sixty days from the date of service of any order in appeal or revision, the dealer may, by application in writing, require the Board of Revenue or the Commissioner, as the case may be, to refer to the High Court any question of law arising out of such order, and if the Board or the Commissioner decline to state the case, the dealer may apply to the High Court calling upon the Board or the Commissioner to state the case, and the High Court may if it be not satisfied with the correctness of the decision of the Com missioner, require the authority concerned to state the case and refer it and on receipt of any such requisition, such authority shall state and refer the case. The High Court upon hearing any such case decides the question of law raised on the reference and delivers its judgment thereon containing the grounds on which such decision is founded [sub section The Act therefore provides a hierarchy of taxing tribunals competent to decide question as to the liability of the tax payer under the Assam Sales Tax Act, with a right to have questions of law arising out of the order decided by the High Court of the Province. Primarily it is the Superintendent of Taxes who assesses the liability to pay tax. An appeal against the order of the Superintendent lies to the Assistant Commissioner of Taxes and against the order of the Assistant Commissioner a revision application lies to the Commissioner Against the order of the Commissioner a reference may be demanded on questions of law to the High Court and if reference is refused the High Court may be moved to call for a reference. The scheme evolved by the Legislature for determination 661 of tax liability is that all questions of fact are to be decided by the taxing authorities and on questions of law arising out of the decision of the taxing authorities the opinion of High Court may be obtained. The High Court has however no power to decide questions of fact, which are exclusively within the competence of the taxing authorities. The High Court is again not an appellate authority over the decision of the Commissioner; it has merely to give its opinion on questions of law arising out of the order of the Commissioner. Whether the decision of the Commissioner is not supported by any evidence, or is based upon a view of facts which could never be reasonably entertained, is a question of law which arises out of the order. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed. The appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under article 226 and sought to reopen the decision of the taxing authorities on questions of fact. The jurisdiction of the High Court under article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restric tions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under article 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is 662 claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under article 226 of the Constitution, the machinery created under the statute to be by passed, and will leave the party applying to it to seek resort to the machinery so set up. In the present case the appellants had the right to move the Commissioner to refer a case to the High Court under section 32 of the Act, and to move the High Court if the Commissioner refused to refer the case. But they did not do so and moved the High Court in its jurisdiction under article 226 of the Constitution, and invited the High Court to reopen the decision of the taxing authorities on questions of fact, which jurisdiction by the statute constituting them is exclusively vested in the taxing authorities. This they did, without even raising the questions before the Superin tendent of Taxes and the Assistant Commissioner. The appellants who are dealers registered under the Assam Sales Tax Act submitted their returns to the Superintendent of Taxes, but failed when called upon to produce their books of account and other evidence in support of their returns. Even before the Assistant Commissioner, they produced some but not all their books of account and evidence demanded by the Superintendent. By the Explanation to section 2(12) of the Act the expression 'sale ', notwithstanding anything contained in the Indian , includes sale of any goods which are actually in the Province at the time when the contract of sale in respect thereof is made, irrespective of the place where the said contract is made and such sales are deemed for the purposes of the Act to have taken place in the Province. Under the Indian , a sale takes place when property in the goods passes. But, for the purposes of the Assam Sales Tax Act situation of the goods 663 is seized by the Legislature for the purpose of fictionally regarding the sale as having taken place within the Province of Assam if at the time of the contract of sale the goods are within the Province. Liability to sales tax in respect of the goods where the transfer in the property of the goods has taken place outside the Province of Assam undoubtedly arose if the conditions prescribed by the Explanation, exist : viz. the goods are actually in the Province when the contract of sale is made, and not otherwise. But the question whether the goods at the date of the contract of sale were actually in the Province is a question of fact which had to be determined by the sales tax authorities. Before the Superintendent of Taxes liability to pay tax was challenged but it does not, appear to have been contended that at the time of the contract of sale, :the goods were not actually within the Province, and no such contention appears to have been even raised before the Assistant Commissioner of Taxes. Before the Commissioner in the revision application filed by the appellants it was urged that part of the goods the price of which was sought to be included in the turnover were not within the Province at the time of the contract of sale and therefore the price of those goods could not be taken into account in computing the taxable turnover. The Commissioner held having regard to the "time table of cultivation of jute" and the time when the jute is brought into the market for sale, that the goods sold were within the Province on the dates of the contracts and therefore the price thereof was liable to be included in the taxable turnover. The High Court, as we have already observed, took the view that the finding of the Commissioner was not "altogether unjustified", nor could it be said that the Commissioner and the other taxing authorities "were not quite conscious of" the requirements which attracted the application of the Explanation to section 2(12) and declined to enter upon a reappraisal of the evidence which in the view of the High Court the taxing authorities alone were competent to enter upon. In these appeals Mr. Setalvad on behalf of the appellants contends that there is clear evidence on the record to show that even applying the test laid down by the Commissioner 664 some of the contracts of sale were made before the goods were marketable and therefore the view taken by the taxing authorities that the goods were at the date of the contract in existence within the Province of Assam was "without any foundation". Counsel also submitted that some of the contracts related to jute grown in Pakistan and with respect to those contracts also the assumption made by the Com missioner that the goods were within the State of Assam at the date of the contract of sale could not be warranted. Counsel then said that the description of the goods in the contracts of sale indicated that they related to bales whereas the contracts for purchase by the appellants were in respect of loose jute and as the goods purchased were not identical or ascertainable with reference to the contracts of sale made by the appellants, liability to pay tax was not attracted under section 2(12) of the Act. We are unable to entertain these pleas because they were never raised before the Superintendent of Taxes and the Assistant Commissioner and no evidence was produced by the appellants to support those pleas. Before the Commissioner it was broadly urged that the goods in respect of the con tracts could not have been in existence within the Province at the date of the respective contracts of sale but that argument was for reasons already mentioned rejected by the Commissioner and the High Court declined to allow the question whether the findings of the Commissioner were "speculative" to be agitated. The appellants now seek to plead that the taxing authorities were in error in holding that the goods conformed to the conditions as to the sites of the goods at the dates of the contracts of sale, prescribed by section 2(12) so as to make the price liable to be included in the taxable turnover. The Legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable, to the authorities appointed in that behalf with right of recourse to the High Court on questions of law arising out of the order of the Commissioner of Taxes. It is therefore contemplated by the Legislature that all material evidence on which a tax payer relies to justify his claim that his transactions are not taxable, should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon the claim. If after a proper trial, the claim is negatived, 665 because the facts on which it is founded are not proved, the proceeding must end. If, however, the adjudication of the Commissioner is vitiated because there is no evidence to support it or it is based on conjectures, suspicions or irrelevant materials, or the proceedings of the taxing authorities are otherwise vitiated so that there has been no fair trial, the High Court may undoubtedly advise the Com missioner on questions properly referred to it in the manner provided by the Act. But the High Court cannot be asked to assume the role of an appellate authority over the decision of the Commissioner on questions of fact or even of law. Assuming that there is some substance in the contention that the adjudication by the Commissioner proceeded on grounds which the appellants characterised as "speculative", it was open to them to resort to the machinery provided by the Act, and having failed to do so, they could not ask the High Court to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the Act. We accordingly decline to entertain the application to raise questions other than those raised by the certificate granted by the High Court, because the questions sought to be raised are questions of fact which were not canvassed at the appropriate stage before the taxing authorities and the machinery provided under the Act for determination of questions relating to liability to tax is attempted to be bypassed. The constitutional question on which certificate was granted does not need consideration in any detail. By the Explanation to section 2(12) of the Act notwithstanding anything to the contrary contained in the provisions of the Indian , a sale is deemed to be complete when the goods which are actually within the State of Assam at the time when the contract of sale is made, irrespective of the place where the contract is made. Under the , in the absence of a contract to the contrary a sale is complete when property in the goods passes, but by the Assam Sales Tax Act the Legislature has attempted to locate the sites of sale for the purpose of levy 666 of sales tax by fixing upon the actual situation of the goods within the Province at the date of the contract, for the purposes of levying tax on sales. The Legislature has thereby not overstepped the limits of its authority : The Tata Iron & Steel Company Ltd. vs The State of Bihar(1). No argument has therefore been advanced before us to support the plea of unconstitutionality. All the appeals fail and are dismissed with costs. One hearing fee. Appeals dismissed.

IN-Abs

The appellants who are merchants carrying on business as dealers in jute in Calcutta, submitted returns of turnover for purposes of sales tax due under the Assam Sales Tax Act, 1947, but as they did not comply with the requisition of the Superintendent of Taxes to produce their books, the latter made a "best judgment assessment" under section 17(4) of the Act. Their appeals to the Assistant Commissioner of Taxes and revision petitions to the Commissioner of Taxes, Assam were dismissed. The appellants then moved the High Court of Assam by petitions under article 226 and contended that Explanation to section 2(12) of the Act was ultra vires the Assam Legislature and that the tax could not be levied on sales irrespective of the place where the contracts were made. They also contended that the finding of the Commissioner that the goods were actually in the State of Assam at the time when the contract was made was based on mere speculation. The writ petitions were dismissed by the High Court and the appellants appealed to the Supreme Court with certificate under article 132(1) of the Constitution. Before the Supreme Court the appellants applied for leave under article 132(3) of the Constitution to challenge the correctness of the decision of the High Court that the goods were actually within the State of Assam when the contracts were made. Held:(i) Leave under article 132(3) be refused and the appeal must be restricted to the question of law as to the interpretation of the Constitution, certified by the High Court. If these questions were desired to be raised the appellants ought to have moved the Commissioner to refer the case to the High Court under section 32 of the Act. They could have moved the High Court if the Commissioner refused to refer the case to the High Court. The Act provided machinery for obtaining relief and the same had to be resorted to and could not be allowed to be by passed. Ordinarily, the High Court does not entertain a petition for a writ under article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. The High Court does not generally enter upon questions which demand an elaborate examination of evidence to establish the rights to enforce which the writ is claimed. The High Court does not in exercise of its jurisdiction under article 226 act as a court of appeal against the decision of a court or Tribunal correct errors of fact. 656 The scheme of the Assam Sales Tax Act is that all questions of fact are to be decided by the taxing authorities. The opinion of the High Court can be obtained on questions of law arising out of the decisions of the taxing authorities. The High Court has under the Act no power to decide questions of fact which are exclusively within the competence of the taxing authorities. (ii)Explanation to section 2(12) of the Act is not ultra vires the Legislature.

minal Appeal No. 141 of 1962. Appeal from the judgment and order dated January 30, 1962, of the Bombay High Court in Criminal Revision Application No. 1142 of 1960. S.V. Gupte, Additional Solicitor General, J. B. Dada chanji, O. C. Mathur and Ravinder Narain, for the appellant. 702 section K. Kapur and R. H. Dhebar., for respondent No. 1. section T. Desai, J. L. Jain and V. J. Merchant, for respondent No. 2. February 7, 1964. The Judgment of Gajendragadkar C.J., Wanchoo and Rajagopala Ayyangar JJ. was delivered by Gajendragadkar C.J. The dissenting opinion of Sarkar and Das Gupta JJ. was delivered by Das Gupta J. GAJENDRAGADKAR C.J. The short question of law which arises for our decision in the present appeal is whether the proceeding before an Income tax Officer under section 37 of the Indian Income tax Act, 1922 (No. XI of 1922) (hereinafter called the Act) can be said to be a proceeding in any court within the meaning of section 195(1)(b) of the Code of Criminal Procedure. This question arises in this way. The appellant Lalji Haridas and respondent No. 2 Mulii Maniial Kamdar are businessmen and they carry oil their business in Jamnagar and Bombay respectively. They have known each other for several years past in the course of their ordinary business activities. In the income tax assessment proceedings of the appellant for the assessment years 1949 50 and 1950 51, respondent No. 2 gave evidence on oath before the Income tax Officer, Ward A, Jamnagar on the 4th December, 1958. In his evidence he denied that he had a son named Nihal Chand and that he had done any business in the name of M/s. Nihal Chand & Co. at Jamnagar. According to the appellant, the said statements were false to the knowledge of respondent No. 2 and were made by him to mislead the Income tax Officer and to avoid the incidence of income tax on himself. As a result of the said false statements, the appellant was heavily taxed. On the 24th November, 1959, the appellant filed a criminal complaint against respondent No. 2 under section 193 of the Indian Penal Code (No. 452/S of 1959) in the Court of the Presidency Magistrate, 19th Court, Esplanades, Bombay. At the hearing of the said complaint, respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint, because the 703 proceedings in which he was alleged to have made a false statement on oath were proceedings before a Court within the meaning of section 195 (1) (b) Cr. P.C., and since no complaint in writing had been made by the Court of the Income tax Officer before which the said proceedings were conducted, the provisions of section 1 95 (1) (b) created a bar against the competence of the appellant 's complaint. The learned Presidency Magistrate held that the Income tax Officer was not a Court within the meaning of section 195(1) (b), Cr.P.C., and so, he rejected the preliminary objection raised by respondent No. 2. Against the said decision of the Presidency Magistrate, respondent No. 2 preferred a Criminal Revision Application (No. 1142 of 1960) before the Bombay High Court. The State of Maharashtra was impleaded as respondent No. 1 to the said Revision Application. A Division Bench of the said High Court reversed the conclusion of the Presidency Magistrate and held that the Income tax Officer was a Court within the meaning of section 195(1) (b), Cr.P.C., and so, it upheld the preliminary objection raised by respondent No. 2. In the result, the complaint filed by the appellant was ordered to be dismissed. The appellant then applied for and obtained a certificate from the Bombay High Court under article 134(1) (c) of the Constitution and it is with the said certificate that he has brought the present appeal before us. That is how the narrow question which arises for our decision in the present appeal is whether the proceedings before an Income tax Officer are proceedings in any Court under section 195(1)(b), Cr.P.C. The question thus raised is undoubtedly a short one, but its decision is not easy, because the arguments urged in support of the two respective constructions are fairly balanced and the task of preferring one construction to the other presents some difficulty. The proceedings before the Income tax Officer during which, according to the appellant, respondent No. 2 made a false statement on oath, were held by the Income tax Officer under section 37 of the Act. Section 37(1) deals with the powers of Income tax authorities and provides, inter alia, that the Income tax Officer shall, for the purposes of the Act have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (No. V of 1908), when trying a suit in 704 respect of the matters specified by clauses (a) to (d). Section 37(2) confers upon the Income tax Officer certain additional powers which can be exercised subject to any rules made in that behalf, provided the said Officer is specially authorised by the Commissioner in that behalf, and in exercising these powers, the provisions of the Code of Criminal Procedure 1898 relating to searches apply. Section 37(3) deals with the question of impounding and retaining any books of account or other documents. That takes us to section 37(4) which is relevant for our purpose; this section provides that any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code. It is thus clear that while the Income tax Officer exercises his powers under section 37(1), (2) and (3) the proceedings held by him arc judicial proceedings for the purposes of the three sections of the Indian Penal Code mentioned in sub section (4). Therefore, the question as to whether the false statement alleged to have been made by respondent No. 2 was made by him at any stage of a judicial proceeding within the meaning of section 193 I.P.C., must be answered in the affirmative. That is the plain effect of section 37(4) of the Act. Section 193 of the Indian Penal Code with which we are directly concerned in the present appeal provides for punishment for intentionally giving false evidence. It consists of two parts; the first part deals, inter alia, with false evidence intentionally given in any stage of a judicial proceeding, and prescribes that the person found guilty of having given such false evidence in a judicial proceeding shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable lo fine; the second part deals with cases where false evidence has been intentionally given in any other case, and it prescribes the maximum sentence of three years as well as fine. In other words, if the false evidence has been intentionally given in any judicial proceeding, the sentence awardable is higher than that where false evidence is intentionally given in proceedings which are not judicial. There are three explanations to section 193. Expln.I provides that a trial before a Court martial is a judicial proceeding; expln.2 lays down that an investi 705 gation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice; this explanation takes in, for instance, committal proceedings. Under expln. 3, an investigation directed by a Court ,of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. This explanation covers enquiries before officers deputed by Courts of Justice to ascertain, for instance, on the spot the boundaries of land. It would thus be seen that having provided for a higher sentence in regard to the offence of giving false evidence in any stage of a judicial proceeding, the three explanations of section 193 include within the expression "judicial proceeding" certain proceedings which on a strict construction of the said expression may not have been included under it. For the purpose of the present appeal, however, the only point to notice at this stage is that section 37(4) of the Act makes a proceeding before an Income tax Officer, held under the said section, a judicial proceeding for the purposes of section 193, I.P.C. and that means that if an offence of giving false evidence is proved to have been committed by a person in a proceeding before the Income tax Officer, he would be liable for the higher sentence awardable under the first part of section 193. That takes us to section 195 of the Code of Criminal Procedure. It is well known that section 195 provides for an ex ception to the ordinary rule that any person can make a complaint in respect of the commission of an offence triable under the Cr. P. C. Section 4(h) of this Code defines a "complaint" as meaning the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include the report of a police officer. This definition shows that any person can make a complaint in respect of the commission of an offence. Section 190 requires that the Magistrate to whom a complaint has been made should take cognizance of the said complaint, subject to the provisions of the said section. Thus, the general rule is that any person can make a complaint, and section 195 provides for an exception. Section 195(1) 134 159 S.C. 45 706 (b)with which we are concerned, provides that no Court shall take cognizance of any offence punishable under the sections therein mentioned, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except the complaint in writing of such Court, or of some other Court to which such Court is subordinate, amongst the sections mentioned are sections 193 and 228 I.P.C. The effect of these provisions is that if an offence is alleged to have been committed either under section 193 or section 228 I.P.C., and it appears that the said offence was committed in relation to any proceeding in any Court, it is only if the said Court, or the Court to which it is subordinate, makes a complaint in that behalf that cognizance will be taken of the said complaint. A person cannot make a complaint in respect of the alleged commission of any of the offences specified in section 195(1)(b); that is its plain effect. Section 195(2) which was added in 1923 when the earlier section 195 was substantially amended, provides that in clauses (b) and (c) of sub section (1) the term "Court" in cludes a Civil, Revenue or Criminal Court, but it does not include a Registrar or Sub Registrar under the Indian Regis tration Act, 1877. It is unnecessary to deal with the effect of this provision, because, as will presently appear we do not propose to base our decision on the ground that the Income tax Officer is a Revenue Court under this sub section. The only point of interest to which we may incidentally refer is that this sub section gives an inclusive, though not an exhaustive, definition and takes within its purview not only Civil and Criminal Courts, but also Revenue Courts, while excluding a Registrar or Sub Registrar under the Indian Registration Act. In dealing with the question which has been raised in the present appeal what we are required to determine is whether a proceeding before an Income tax Officer which by virtue of the operation of s.37(4) of the Act, must be held to be a judicial proceeding under section 193, I.P.C. is a proceeding in any Court under section 195. P. C. Section 193 makes a dis tinction between offences committed in any judicial proceed ing and those committed in proceedings other than judicial proceedings, whereas section 195(1)(b), Cr. P. C. does not refer to judicial proceedings as such, but mentions proceedings in 707 any Court. That is why the controversy between the parties in the present appeal lies within a very narrow compass. Can it be said that the proceeding which is a judicial proceeding under section 193, I.P.C., must be held to be a proceeding in any Court under section 195(1)(b), Cr. P. C.? It is on this aspect of the dispute that the arguments on both sides are fairly balanced. In dealing with this question, it is unnecessary to consider what would have been the position of the Income tax Officer acting under section 37(1), (2) and (3), and what would have been the character of the proceedings taken before him if sub section (4) had not been enacted. In Jagannath Prasad vs The State of Uttar Pradesh(1), it has been held by this Court that the Sales tax Officer functioning under the U.P. Sales Tax Act, 1948 (No. 15 of 1948) was not a Court within the meaning of section 195, Cr.P.C., and so, it was not necessary for him to make a complaint for the prosecution of any person against whom it was alleged that he had committed an offence,under section 471 I.P.C. This decision would tend to indicate that in the absence of section 37(4) it would have become necessary to hold that the Income tax Officer acting under section 37(1), (2) and (3), would not be a Court under section 195, Cr. P.C., and in that sense the provisions of section 195 could not have been attracted. This position is not disputed by Mr. Desai who appears for respondent No. 2. He, however, contends that the provisions of section 37(4) which have been inserted in the Act in 1956 make all the difference, and according to him, this sub section was added in order to make section 195 (1) (b), Cr. P. C., applicable to the proceedings before the Income tax Officer. On the other hand, the Additional Solicitor General has strenuously argued that the purpose which the legislature had in mind in inserting sub section (4) in section 37 was merely to make the proceedings before the Income tax Officer judicial proceedings within the meaning of section 193, I.P.C., and not to make section 195 (1) (b), Cr. P. C. applicable to them. If the intention of the legislature had been to take the proceedings before the Income tax Officer within the mischief of the said section of the Cr. P.C., the legislature would have expressly said so in terms. The (1) [1953]2 S.C.R. 850 708 omission to refer to the relevant provision of the Cr.P.C. in section 37(4) is not accidental, but deliberate, and so, though the proceeding before the Income tax Officer may be and has to be regarded as a judicial proceeding under section 193, I.P.C., it cannot be said to be a proceeding before a Court, because the Income tax Officer is not a Court. In support of his argument, the Additional Solicitor General has referred us to several statutes where the legislative intention to extend the provisions of section 195, Cr. P.C., to specific proceedings has been carried out by making an express provision in that behalf. Section 23 of the Work men 's Compensation Act, 1923 (No. 8 of 1923) provides that the Commissioner shall have all the powers of a Civil Court for the purposes therein indicated, and by an amendment made in 1929, it further lays down that the Commissioner shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter 35 of the Code of Criminal Procedure. The argument is that where the legislature wanted to extend the provisions of section 195, Cr.P.C. to the proceedings before the Commissioner held under the Workmen 's Compensation Act, it thought it necessary to make a specific and express provision in that behalf. A similar provision is contained in section 18 of the (No. 4 of 1936). In the (No. 14 of 1947), the position is similar to that in the case of the Workmen 's Compensation Act; section 11(4) confers on the authorities therein specified powers as are vested in a Civil Court in respect of the matter mentioned therein. In 1950, sub section (8) was added to section II by which it was provided that every Labour Court, Tribunal or National Tribunal shall be deemed to be Civil Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure. This scheme also shows, says the Additional Solicitor General, that where the legislature wants to make any Tribunal or authority a Court, it uses express and appropriate language in that behalf. Section 45 of the (No. 31 of 1950) likewise confers powers of a Civil Court on the Custodian and expressly adds that the proceedings before him shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, and the Custodian shall be deemed 709 to be a Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure. The same provision is made by section 17 of the (Act 64 of 1951), as well as by section 26 of the (No. 44 of 1954). On the other hand, section 51 of the ministrator General 's Act, 1913 (No. 3 of 1913) provides that whoever, during any examination authorised by this Act, makes a false statement on oath knowingly, he shall be deemed to have intentionally given false evidence in a stage of a judicial proceeding The argument is that in this case, the legislature wanted to equate the proceedings under this Act with judicial proceed ings under section 193, I.P.C., and did not intend to make sec tion 195, Cr. P.C., applicable to them, because it does not make the authority under this Act a Court, or does not, in terms, extend the provisions of the said section to the pro ceedings held before such an authority. The same comment has been made on the provisions of section 171A(4) of the (No. 8 of 1878). Thus presented, the argument is no doubt attractive and cannot be rejected as without any substance. The expression "judicial proceeding" is not defined in the Indian Penal Code, but we have the definition of the said expression under section, 4(m) of the Cr.Procedure Code. Section 4(m) provides that "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. The expression "Court" is not defined either by the Cr.P.C. or the I.P.C. though 'Court of Justice ' is defined by section 20 of the latter Code as denoting a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. Section 3 of the Evidence Act defines a "Court" as including all Judges and Magistrates and all persons except the Arbitrators legally authorised to take evidence. Prima facie, there is some force in the conten tion that it would not be reasonable to predicate about every ,judicial proceeding that it is a proceeding before a Court, and so, it is open to the appellant to urge that though the proceeding before an Income tax Officer may be a judicial 710 proceeding under section 193, I.P.C., it would not follow that the said judicial proceeding is a proceeding in a Court as required by section 195(i)(b), Cr. It is somewhat remarkable that though section 193, I.P.C., refers to a judicial proceeding, section 195, Cr.P.C. refers to a proceeding in any Court; it does not say a judicial proceeding in any Court. Mr. Desai contends that reading section 193 I.P.C. and section 195(1)(b) Cr. P.C., together. it would not be unreasonable to hold that proceedings which are judicial under the former, should be taken to be proceedings in any Court under the latter. The whole basis of providing for a higher sentence in regard to offences committed at any stage of a judicial proceeding appears to be that the legislature took the view that the said offences were more serious in character, and so, it distinguished the said offences from similar offences committed at any stage of other proceedings. The argument is that while providing for a higher sentence in respect of this more serious class of offences committed at any stage of judicial proceedings, the legislature intended that there should be a safeguard in respect of complaint as regards the said offences and that safeguard is provided by section 195(1)(b), Cr. In other words, an offence which is treated as more serious by the first paragraph of section 193, I.P.C. because it is an offence committed during the course of a judicial proceeding should be held to be an offence committed in any proceeding in any Court for the purpose of section 195(1)(b) Cr. On this argument, it is necessary to consider whether the Income tax Officer is a Court or not, for, in substance, the contention is that as soon as section 37(4) of the Act was enacted, the proceedings before an Income tax Officer became judicial proceedings for the purpose of section 193, I.P.C. and since they are classed under the first paragraph of the said section, they attract the protection of section 195(1)(b), Cr. In our opinion, there is considerable force in this argument, and, on the whole. we are inclined to prefer the construction suggested by Mr. Desai to that pressed before us by the learned Additional Solicitor General. It is true, the Additional Solicitor General has mainly relied upon the relevant provisions of several statutes in support of his construction and in so far as it appears that 711 certain provisions in some of the said statutes in terms extend the application of section 195, Cr.P.C. to the proceedings to which they relate, the argument does receive support, but we hesitate to hold that the omission to refer to section 195(1) (b), Cr. P.C. in section 37(4) of the Act necessarily means that the intention of the legislature in enacting section 37(4) was merely and solely to provide for a higher sentence in regard to the offence under section 193, I.P.C. if it was committed in proceedings before the Income tax Officer. It is plain that if the argument of the Additional Solicitor General is accepted, the result would be that a complaint like the present can be made by any person and if the offence alleged is proved, the accused would be liable to receive hi her penalty awardable under the first paragraph of section 193, I.P.C. without the safeguard correspondingly provided by section 195(1)(b), Cr. Could it have been the intention of the legislature in making the offence committed during the course of a proceeding before an Income tax Officer more serious without affording a corresponding safeguard in respect of the complaints which can be made in that behalf? We are inclined to hold that the answer to this question must be in the negative. That is why after careful consideration. we have come to the conclusion that the view taken by the Bombay High Court should be upheld though for different reasons. Section 37(4) ,of the Act makes the proceedings before the Income tax Officer judicial proceedings under section 193 I.P.C. and these judicial proceedings must be treated as proceedings in any Court for the purpose of section 195(1)(b), Cr.P.C. That. we think, would really carry out the intention of the legislature in enacting section 37(4) of the Act. In this connection there is another consideration which has weighed in our minds. We have already noticed that section 37(4) makes the proceedings before the Income tax Officer judicial proceedings within the meaning of section 228 I.P.C. When we turn to the latter section, we notice that the said section deals with the offence of intentionally causing insult or interruption to public servant sitting in judicial proceed ing. It is obvious that the offence with which section 228 deals is an offence committed against a public servant sitting in a judicial proceeding. This section is one of the sections mentioned in section 195(1)(b), Cr.P.C., and so any complaint in 712 respect of the offence alleged to have been committed under section 228, I.P.C. has to be made by the Court in question. There can be little doubt that if a person offers an insult to a public servant sitting in a judicial proceeding, or causes. interruption to him while he is so sitting at any stage of the judicial proceeding, the complaint has to proceed from the public servant himself; that is the effect of section 195(1)(b) Cr. Before section 37(4) of the Act was enacted, an insult given to an Income tax Officer or interruption caused to his proceedings whilst he was conducting his proceedings, would not have amounted to an offence under section 228, I.P.C. Section 37(4) makes a proceeding before the Income tax Officer a proceeding under section 228 I.P.C. and thus, an interruption in his proceedings, or an insult given to him, has now become punishable under the said section. Could it have been intended by the legislature in enacting section 37(4) that whereas an insult offered to a public servant acting judicially, or interruption caused in his proceedings would normally be cognizable only on the complaint of the public servant him self, the same offence, if committed in respect of the proceedings before an Income tax Officer, should be cognizable at the complaint of a private party? The anomaly which would result if the construction suggested by the Additional Solicitor General is accepted, is, in our opinion, so glaring that the alternative contention urged by Mr. Desai and upheld by the Bombay High Court which avoids the said anomaly appears to be more reasonable and more consistent with the true intention of the legislature. That is why we are not prepared to accept the appellant 's argument that the Bombay High Court was in error in dismissing his complaint on the ground that the condition precedent prescribed by section 195(1) (b) Cr.P.C. had not been complied with as no complaint had been filed by the Income tax Officer. It appears that In re: Punam Chand Maneklal(1) the Full Bench of the Bombay High Court had taken the view that an Income tax Collector is a Revenue Court within the meaning of that term as used in clauses (b) and (c) of section 195, Cr. P C., 1898. Scott, C. J. who spoke for the Full Bench, observed that it could not be contended that the Income tax Collector was a Civil or Criminal Court, and so, he addressed himself (1) I.L.R. 713 to the narrow question as to whether he was a Revenue Court. Dealing with the question on that footing, he examined the functions of the Income tax Collector under Act 11 of 1886, and held that he was a Revenue Court. He rejected the contention that he could be treated as a Registrar or Sub Registrar under the Registration Act, and so, he found no difficulty in coming to the conclusion that he was a Revenue Court. The Bombay High Court in the present case has substantially based itself on this decision in reversing the conclusion of the Presidency Magistrate and directing that the complaint filed by the appellant should be dismissed. It is unnecessary to consider whether the view taken by the Full Bench in re: Punam Chand Maneklal(1) is right, because the relevant provisions of the Income tax Act have been subsequently modified in 1922 and different considerations have now assumed importance. It is no longer possible to hold that the Income tax Officer is a Revenue Court, and, indeed, that has not been the contention raised before us by Mr. Desai. In the result, the appeal fails and is dismissed. DAS GUPTA, J. Is an Income tax Officer under the Indian Income tax Act, 1922, a court within the meaning of cl.(b) in sub section (1) of section 195 of the Code of Criminal Procedure? That is the short but difficult question that arises in this appeal against a decision of the High Court of Judicature at Bombay. On November 24, 1949, the appellant filed a complaint in the Court of the Presidency Magistrate, Bombay, alleging that when the respondent Mulji Manilal Kamdar was examined on commission by the Income tax Officer, Jamnagar Circle, Jamnagar, he gave answers which were false to his knowledge. He prayed for the issue of process against the said Mulji Manilal Kamdar, so that he might be dealt with according to law. An objection was raised by the accused that in the absence of a complaint by the Income tax Officer before whom the false statement was alleged to have been made the Magistrate was debarred from taking cognizance of the case. This contention was based on a submission that the Income tax Officer was a court within the meaning of section 195(1)(b). This objection was rejected by the Presidency Magistrate. (1) I.L.R. 38 Boni.714 The High Court of Bombay was moved against the Presidency Magistrate 's order. But considering itself bound by a Full Bench decision of the Court in in re: Punainchand Manieklal(1) and the later decision in State vs Nemchand Peshvir (2) the High Court held that an income tax Officer when holding proceedings under section 23 of the Income tax Act, 1922 is a Revenue Court within the meaning of cl. (b) in sub section (1) of section 195 of the Code of Criminal Procedure. The correctness of the High Court 's view is challenged before us by the complainant on the strength of a certificate granted by the High Court finder article 134(1) (c) of the Constitution. Section 195(1)(b) is one of the group of sections in the Code of Criminal Procedure which have laid down exceptions to the general rule of criminal law that criminal proceedings can be instituted in a court by any person. To this rule section 195 along with sections 196, 196A, 197, 197A, 198, 198A, and 199 provide exceptions. Section 195 mentions in its first sub section a number of offences of which no court shall take cognizance except on the complaint in writing of the persons as indicated. Three classes of offences are dealt with in three cls.(a), (b) and (c) of this sub section. Section 195(1)(a) deals with offences punishable under sections 172 to 188 of the Indian Penal Code and provides that no Court shall take cognizance of any of these except on the complaint in writing "of the public servant concerned or of some other public servant to whom he is subordinate." Section 195(1)(b) deals with offences punishable under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 and provides that when any such offence is alleged to have been committed in or in relation to any proceeding in any court, no court shall take cognizance of it except on the complaint in writing of such Court or some other court to which such court is subordinate. Section 195(1)(c) deals with offences punishable under sections 463, 471, 475 and 476 and provides that when any such offence is alleged to have been committed by a party to any proceeding in any court in respect of any document produced (1) I.L.R. (2) 715 or given in evidence in such proceeding, no court shall take cognizance of the same except on the complaint in writing of such court, or some other court to which such court is subordinate. The second sub section of section 195 runs thus "In clauses (b) and (c) of sub section (1), the term "court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar, or SubRegistrar, under the Indian Registration Act, 1877. " In this appeal we are concerned directly with cl.(b) of section 195(1). The appellant 's complaint before the Magistrate alleged the commission of an offence under section 193 of the Indian Penal Code in the course of the examination on oath by the Income taxx Officer, Ward A, Jamnagar Circle, Jamnagar. The examination itself took place in relation to assessment proceedings against the complainant for the years 1949 50, and 1950 51. If the Income tax Officer is a Court it necessarily follows that the Magistrate was not entitled to take cognizance of this offence except on the complaint of the Income tax Officer. That is how the question whether the Income tax Officer is a Court or not falls to be considered. Section 5 of the Income tax Act, 1922, mentions six classes of Income tax Authorities for ;the purposes of the Act, The primary function of an Income tax Officer is the assessment of income that is chargeable to tax under section 3 of the Act and the determination of the tax payable on it. He has to perform other functions under the Act that are subsidiary and ancillary to this main function. Under section 5 (7) the Income tax Officers are subordinate to the Director of Inspection, the Commissioner of Income tax and the Inspecting Assistant Commissioner of Income tax within whose jurisdiction they perform their functions. Under section 5(8) they have to observe and follow the orders, instructions and directions of the Central Board of Revenue. Chapter III of the Act in its several sections state what heads of income profits and gains shall be chargeable to income tax and indicates the duties which the Income tax Officer 716 has to perform for the purpose of his main function of assessing the chargeable income. For instance, deductions under section 7 (2) (iia) in respect of conveyance owned by the assessee or used by him for the purpose of his employment"shall be such sum as the Income tax Officer may estimate,. . "The allowances permissible under section 10(2)(i) "shall be such sum as the Income tax Officer may determine"; the allowances under section 10 (2) (ix) also shall be such sum in respect of loans made in the ordinary course of business as the Income tax Officer may estimate to be irrecoverable. Again, the allowances mentioned in cl.(a) and cl.(b) of section 10(4) (a) cannot be made "if in the opinion of the Income tax Officer any such allowance is excessive or unreasonable. " The proviso to section 10(5) requires the Income tax Officer to satisfy himself in the cases dealt with there whether the main purpose of the transfer of assets was the reduction of liability to income tax and provides that where he is so satisfied the actual cost of the assets shall be such amount as the Income tax Officer may determine. Other sections showing the different matters in which the Income tax Officer has to be satisfied or to form an opinion for the purpose of assessment are sections 12(a), 13 and 17. Chapter IV of the Act,which lays down the proce dure to be followed in making the assessment, imposes inter alia the duty of calling for returns of income (section 22); of making assessment of the Income and to determine the sum payable by the assessee (section 23); the power to assess Companies to super tax (section 23A); the power to make provi sional assessment in advance of regular assessment (section 23B). It is obvious however that for carrying out these several functions properly it is necessary for the Income tax Officer to examine documents and persons. Power for this purpose are conferred on the Income tax Officer (and certain other Income tax Authorities) in section 37 of the Act. The first subsection of section 3 7 runs thus : "The Income tax Officer, Appellate Assistant Commissioner and Appellate Tribunal shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) 717 when trying a suit in respect of the following matters, namely : (a) discovery and inspection. (b) enforcing the attendance of any person, including any officer of a banking company, and examining him on oath, (c) compelling the production of books of account and other documents; and (d) issuing summons. The second subsection empowers any Income tax Officer specially authorised by the Commissioner to enter and search any building and seize books of account and other documents. Under the third sub section the Income tax Officer may impound or retain the books of account and other documents after following certain procedure. The fourth sub section of this section which does not confer any powers but has been relied on strongly by the respondent will be dealt with in full detail later in this judgment. From the brief summary of the Income tax Officer 's functions given above it is clear that he is a part and parcel of the executive organ of the State. The fact that for carrying out some of these executive functions he will have the powers as are vested in a court under the Code of Civil Procedure has not the effect of converting him into a limb ,of the judicial organ. It has been held that he is a quasi judicial authority. That is not sufficient however to make him a court. Before we can call him a court, he must be shown to be a part of the judicial organ of the State. Leaving out for later consideration the effect of section 37(4) it is clear that an Income tax Officer is not a court. We have not thought it necessary to refer to the numerous decisions of the High Courts in India, of this Court or of the Privy Council in which the question of what is a court has been considered. We have considered this unnecessary in view especially of the fact that most of these were noticed in a recent decision of this Court in Jagannath 718 Prosad vs State of Uttar Pradesh(1) where the question whether a Sales Tax Officer was a court or not within the meaning of section 195(2) of the Criminal Procedure Code was considered. This Court held that the Sales Tax Officer is not a Court within the meaning of that section. All the reasons set out in this judgment which Kapur J. delivered for the Court are applicable to the case of the Income tax Officer and if the reasoning in that case is taken to be correct, as it must be, ;the Income tax Officer also must be, held to be not a court unless any different conclusion is. justified from the provisions of section 37(4) of the Act. It will not be out of place to mention here what them Constitution Bench of this Court said in Jaswant Sugar Mills vs Lakshmi Chand(2) as regards the nature of the functions of Income tax Officers. The question for the court 's decision in that case was whether a Conciliation Officer under cl. 29 of the Government Order under sections 3 and 8 of the U.P. was a "Tribunal" within the meaning of article 136 of the Constitution and the Court held that it was not such a tribunal. As illustrations of other authorities whose primary function is administrative even though they have the duty to act judicially, Shah J. speaking for the Court said : "The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income tax and Sales Tax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are (1) [1963] Supp. 1 S.C.R. 242.(2) ; 719 still not delegates of the judicial power of the State. Their primary function is administrative and not judicial." It is true that the question whether an Income tax Officer was a court or a tribunal was not directly for decision in jaswant Sugar Mills ' case(1). It is clear however that as a part of the reasoning which the court applied for coming to the conclusion that the Conciliation Officer is not a Tribunal this Court was of opinion that an Income tax Officer is also not a "Tribunal". Obviously, if it is not even a Tribunal it cannot be a court. It is not seriously disputed by Mr. Desai who appeared before us for the respondent that looking at the functions of an Income tax Officer it is not possible to say that the Income tax Officer is a court specially after this Court 's decision in Jagannath Prasad 's case( ',) mentioned above. His main contention is that even though the Income tax Officer was not originally a court within the meaning of section 195 of the Code of Criminal Procedure, the deeming provision in section 37(4) has made him a court. Section 37(4) runs thus : "Any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860)." The authorities mentioned in the section are the Income tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal. The direct effect of subsection 4 of section 37 therefore is that proceedings before an Income tax Officer "shall be deemed to be a judicial proceedings within the meaning of section 193 and section 228 and for the purposes of section 196 of the Indian Penal Code. As we read the section it at once leaps to the eye that there is no mention in this of section 195 of the Code of Criminal Procedure. In introducing this deeming provision in 1956 (1) [1963] Supp. 1 S.C.R. 242.(2) ; 720 Parliament did not think it necessary to extend the deeming provision for the purpose of section 195. If Parliament intended this provision to produce the consequence that the authori ties in the section should be deemed to be a court within the meaning of section 195 (2) of the Code of Criminal Procedure, it is reasonable to expect that Parliament would have added the words "and shall be deemed to be a court within the meaning of section 195 (2) of the Code of Criminal Procedure", or "shall be deemed to be a court for the purpose of s.195 of the Code of Criminal Procedure" or some similar Phraseology. The omission to use any such words is all the more remarkable when we notice that on several occasions before 1956 Parliament had in expressing an intention that a particular authority should be a court for the purpose of section 195 added express words to give effect to that intention. Thus, in the , which was enacted in 1936, section 18 after stating that every authority appointed under sub section (1) of section 15 shall have all the powers of a civil court under the Code of Civil Procedure for certain purposes, proceeded to say that "every such authority shall be deemed to be a civil court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898. " Again, in section 23 of the Workmen 's Compensation Act which confers on the Commissioner for workmen 's Compensation all the powers of a civil court under the Code of Civil Procedure, 1908 the legislature added in 1929 the following words: "and the Commissioner shall be deemed to be a civil court for all the purposes of section 195 and of Chapter XXXV of,the Code of Criminal Procedure, 1898". It is worth noticing also that in several other statutes parliament after stating that certain proceeding shall be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code proceeded to say that for certain purposes it shall also be deemed to be a court. The Evacuee property Act of 1950 after stating that the enquiry by the custodian shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, goes on to say "and the Custodian shall be deemed to be a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898". Another instance of similar 721 legislation is to be found in section 17 of the Evacuee Interest (Separation) Act, 195 1, which after stating that any proceeding before the competent officer or the appellate officer shall be judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code adds "and the competent Officer or the appellate officer shall be deemed to be a civil court within the meaning of section 480 and section 482 of the Code of Criminal Procedure, 1898". The uses exactly similar words in section 26. That section first confers on every officer appointed under the Act the same powers in respect of certain specified matter, , for the purpose of making any enquiry or hearing any appeal under the Act as are vested in a Civil court under the Code of Civil Procedure and then proceeds thus "any proceeding before any such officer shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code and every such Officer shall be deemed to be a civil court within the meaning of section 480 and 482 of the Code of Criminal Procedure, 1898. " Similarly, the after providing in sub section (3) of section 11 that every enquiry or investigation by a Board, Court, Labour Court. Tribunal or National Tribunal, shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code adds in sub section (8) of the same section the provision that "every Labour Court, Tribunal or National Tribunal shall be deemed to be a civil court for the purposes of section 480 and section 482 of the Code of Criminal Procedure, 1892. " This sub section was added in 1950. In clear contrast with these are the statutes which after saying that certain proceedings shall be judicial proceeding refrain from adding that the authority will be deemed to be a court. One such statute is the , which in section 171A(4) lays down that every enquiry under that section shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code and stops there. A somewhat similar provision, though in different phraseology, appears in section 51 of the Administra tor General 's Act, (111 of 1913) which runs thus:134 159 S.C. 46 722 "Whoever, during any examination authorised by this Act, makes upon oath a statement which is false and which he either knows or believes to be false or does not believe to be true, shall be deemed to have intentionally given false evidence in a stage of a judicial proceeding." The learned Solicitor General, who appealed before us on behalf of the appellant, strongly urged that if the inten tion of the legislature had ever been that the Income tax Officer or other authorities mentioned in section 37 should be deemed to be a court for the purpose of section 195 of the Code of Criminal Procedure it would have taken care to express that intention in clear phraseology. In any case, argues learned counsel, when in 1956 the old section 37 was wholly recast the Parliament which at least then had before it a well established pattern of legislative forms in the numerous statutes mentioned above for expressing an intention that an authority shall be deemed to be a court for the purpose of section 195 or any other provision of the Code of Criminal Procedure, there could be no conceivable reason for the failure to follow that pattern. In our opinion, there is considerable force in this argument. On behalf of the accused respondent Mr. Desai suggets that the words actually used, viz., "that proceeding before the authority shall be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code" were by themselves sufficient to give effect to an intention that authority shall also be deemed to be a court within the meaning of section 195 of the Code of Criminal Procedure According to the learned Counsel, a judicial proceeding with in the meaning of section 193 of the Indian Penal Code can only be before a court. For this proposition we can find no support either in principle or authority. It seems clear to us on the contrary ;that proceedings before tribunals which are quasi judicial and not a court may well be considered to be judicial proceedings within the meaning of section 193 of the Indian Penal Code. Though the words "judicial proceeding" have been used in numerous sections of the Indian 723 Penal Code, it has not defined the words, though the words court of justice" as also the words "a judge" have been de fined. The Code of Criminal Procedure in which also the phrase "judicial proceeding" occurs in several sections has ,defined it in section 4(m) thus: "Judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath". This definition of judicial pro ceeding was included in the Code of Criminal Procedure, 1898, from the very beginning. The fact that for all these years since 1898 Parliament has not thought fit to give any definition of the words "judicial proceeding" in the Indian Penal Code is some justification for thinking that the words "judicial proceeding" in the Indian Penal Code may reason ably be held to have the same meaning as in the Code of Criminal Procedure. In other words, it would be reasonable to think that in the Indian Penal Code also the word "judicial proceeding" has been used to include "any pro ceeding in the course of which evidence is or may be legally taken on oath. " That would bring within the meaning of the words "judicial proceeding before many quasi judicial authorities which are not courts, e.g., a ,Customs Officer or a Sales Tax Officer. It is unnecessary for our present purpose to attempt an exact definition of the words "judicial proceeding" as used in section 193 or in any other section of the Indian Penal Code. Even without any such definition however it appears clear that the phrase "judicial proceeding ' is wide enough to include not only proceedings before courts but proceedings before certain other tribunals. It is pertinent to point out that if a proceeding before any other authority except a court could not be a judicial proceeding within the meaning of section 193 of the Indian Penal Code, it would not have been necessary for Parliament in the Evacuee Property Act, 1950, in the Evacuee Interest (Separation) Act, 1950, and in the , to add, after laying down that the proceedings before certain authorities shall be judicial proceedings within the meaning of section 193 and section 228 of the Indian Penal Code the further words, that "the authority shall be, deemed to be a civil court" for certain purposes of the Code of Criminal 724 Procedure. It is especially interesting to note in this connection the provisions of section 11(3) and section 11(8) of the to which we have already referred. Under section 11(3) as originally enacted every enquiry or investigation by a Board, Court or Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. When Parliament added to this section sub section (8) what was enacted was that every tribunal shall be deemed to be a civil court for the purpose of section 480 and section 482, Criminal Procedure Code, 1898. After the amendment by the Act 36 of 1956 the concluding portion of section 11 (3) ran thus : "Every enquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. " The same Act substituted in section 8 the words "Labour Court, Tribunal or National Tribunal" for the words "Tribunal". In spite of the fact however that every enquiry or investigation by a Board has to be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code Parliament refrained from saying that a Board shall also be deemed to be a civil court for the purpose of section 480 and section 482 of the Code of Criminal Procedure. This emphasises the fact that the legislature did not think that the necessary effect of legislating that a proceeding before an authority shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code would be that authority shall also be deemed to be a court. To say now that the legislature in providing in section 37(4) of the Indian Income tax Act that a proceeding before the specified authorities shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, intended also to say that such authority shall be deemed to be a court within the meaning of section 195 of the Code of Criminal Procedure would be to impute to the legislature an intention of which it itself had no knowledge. Learned counsel for the accused respondent then drew our attention to the use of the words "judicial proceeding" in section 476 and section 479A of the Code of Criminal Procedure 725 and argued that in these sections the words "judicial pro ceeding" have been used as equivalent to proceeding in a court. That may well be so. Section 476 lays down proce ure in cases mentioned in section 195(1)(b) and (c) of offences that appear to have been committed in or in relation to a proceeding in a court. It was quite correct therefore to refer to such proceeding in a later part of the section as judicial proceeding. Section 479A lays down the procedure in certain cases of offences of giving false evidence in civil, revenue or criminal courts and necessarily speaks of the proceeding before those courts as judicial proceeding. It is difficult to see how the use of the words "judicial proceeding" in these sections support the contention that "judicial proceeding" can only be a proceeding before a court. There can be no doubt that every proceeding before a court is a "judicial proceeding". It does not follow however that every judicial proceeding is a proceeding before a court. Mr. Desai drew a grim picture of what would happen if the authority a proceeding before which was deemed to be a judicial proceeding within the meaning of section 228 of the Indian Penal Code was not at the same time considered a court within the meaning of section 195. He rightly points out that one consequence will be that if any person offers any insult or causes any obstruction to a public servant when he is sitting in any such judicial proceeding and thus commits an offence under section 228 of the Indian Penal Code it will be possible for persons other than the public servants to institute a criminal case for such offence. This, says the learned counsel, would be a very undesirable thing. We fail to see why this should be considered to be undesirable. But assuming this is so, that is not to our mind a consideration which should compel us to give the words "judicial proceeding" a meaning which they do not bear. It may be mentioned here, as already stated, that under section 171A(4) of the Sea Customs Act, 1874, every enquiry before a Custom Officer "shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the 726 Indian Penal Code". In spite of this, the Constitution Bench of this Court held in its recent decision in Indo China Steam Navigation, Co. Ltd. vs The Additional Collector of customs(1) that a Customs Officer is not even a Tribunal. After discussig several previous decisions of this Court Gajendragadkar C.J., speaking for the Court observed thus: "The result therefore is that it is no longer open to doubt that the Customs Officer is not a court ' or tribunal. " It is difficult to see how if the presence of the words "shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code" in section 171A(4) have not the effect of making a Customs Officer a court or a tribunal, the presence of similar words in section 37(4) in the Indian Income tax Act, can have that effect. In our opinion, the words used in section 37(4) of the Income tax Act furnish no reason to alter the legal position that is inescapable on a consideration of the functions of the Income tax Officer that he is not a court within the meaning of section 195 of the Code of Criminal Procedure. We would therefore allow the appeal, set aside the order passed by the High Court and direct that the Presidency Magistrate, Bombay, should now dispose of the case in accordance with law. ORDER In accordance with the opinion of the majority, this appeal fails and is dismissed.

IN-Abs

The appellant filed a criminal complaint against respondent No. 2 alleging that he had committed an offence under section 193 of the Indian Penal Code, 1860 by giving false evidence in certain proceedings before the Income tax Officer under section 37 of the Indian Income tax Act, 1922. Respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint, because the proceedings in which he was alleged to have made a false statement on oath were proceedings before a court within the meaning of section 195(1)(b) of the Code of Criminal Procedure, 1898, and since no complaint in writing had been made by the court of the Income tax Officer the provision of section 195(1)(b) created a bar against the competence of the appellant 's complaint. On the rejection of this preliminary objection respondent No. 2 preferred a criminal revision application before the Bombay High Court impleading the State of Maharashtra as respondent No. 1. The High Court allowed the revision application. Thereupon the appellant appealed to this Court on a certificate issued under article 134(1)(c) of the Constitution. The short question before this court was whether the proceedings before an Income tax Officer under section 37 of the Income tax Act can be said to be a proceeding in any court within the meaning of section 195(1)(b) Code of Criminal Procedure. Held (per P. B. Gajendragadkar, C.J., K. N. Wanchoo and N. Rajagopala Ayyangar JJ.) (i) While the Income tax Officer exercises his powers under section 37(1), (2) and (3), the proceedings held by him are judicial proceedings for the purposes of sections 193, 196 and 228 Indian Penal Code and the false statement alleged to have been made by respondent No. 2 was Made in a judicial proceeding within the meaning of section 193, Indian Penal Code. (ii)It is not necessary to decide the general question whether the Income tax Officer is a Court or not for section 37(4) of the Income tax 701 Act makes the proceedings before the Income tax Officer, judicial proceedings for the purposes of section 193 Indian Penal Code and these judicial proceedings must be treated as proceedings in any court for the purpose of section 195(1)(b) Code of Criminal Procedure. The High Court was right in allowing the revision application on the ground that the condition precedent prescribed by section 195(1)(b) Code of Criminal Procedure had not been complied with as no complaint has been filed by the Income tax Officer. Jagannath Prasad vs State of Uttar Pradesh, [1963] 2 S.C.R. 850 and Puran Chand Maneklal, in re: I.L.R. , distinguished. Per Sarkar and Das Gupta JJ. (dissenting) (i) From the nature of functions under the various provisions of the Income tax Act it is clear that the Income tax Officer is a part and parcel of the executive organ of the State. The fact that for carrying out some of these executive functions he will have the powers as are vested in a court under the Code of Civil Procedure will not make him a limb of the judicial organ. Neither does the fact that he is a quasi judicial authority make him a court. (ii)In Jaswant Sugar Mills vs Lakshmi Chand. [1963] Supp. 1 S.C.R. 242 this court has held that the Income tax Officer is not a Tribunal and therefore it is obvious that he cannot be a court. (iii)To say that the legislature in providing in section 37(4) of the Indian Income tax Act that a proceeding before the specifiedauthority shall be deemed to be a judicial proceeding within the meaningof section 193 and section 228 Indian Penal Code intended also to say that suchauthority shall be deemed to be a court within the meaning of section 195Code of Criminal Procedure would be to impute to the legislature anintention of which it itself had no knowledge. (iv)The words used in section 37(4) of the Income tax Act furnishes no reason to alter the legal position that is inescapable on a consideration of the functions of the Income tax Officer that he is not a court within the meaning of section 195 Code of Criminal Procedure. Jagannath Prasad vs State of Uttar Pradesh, [1963] 2 S.C.R. 850, Punamchand Manaklal, re: I.L.R. , State vs Nemchatid Pesvir, , Indochina Steam Navigation Co. Ltd. vs The Additional Collector of Customs, , referred to.