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CIVIL APPELLATE JURISDICTION Civil Appeal No. 3838 of 1988. From the Judgment and Order dated 22.6.1987 of the Tamil Nadu High Court in W.A. No. 555 of 1984. T.S. Tulsi, Additional Solicitor General, B.K. Prasad, K. Srivastava, P. Parmeshwaran for the Appellants. T.M. Sampath and K.V. Sreekumar for the Respondents. The Judgment of the Court was delivered by VERMA, J. This matter brings to the fore once again the ineptitude with which litigation is companyducted quite often on behalf of the Government of India and State Governments even when important issues having lasting and wide repercussions are involved. The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units. Inspite of this fact, to support validity of the impugned policy the required materials were number produced in the High Court and to overcome the adverse decision several opportunities given by us to produce the entire relevant record were number availed. The learned Additional Solicitor General informed us after several adjournments that better performance is number possible. We, therefore, companycluded the hearing and proceed to decide on the available materials. It is indeed fortunate for the appellants that our companyclusion is in their favour. The railway administration with its companyntrywide network can help to improve this situation by a genuine effort in this direction and thereby companytribute also to saving of needless expense and time. We, therefore, direct that a companyy of this judgment be sent to the Chairman, Railway Board, Ministry of Railways, Government of India. In view of the situation indicated above, we are mentioning only those facts which are necessary for deciding this matter and which are accepted by both the sides. It is number unlikely that there may be more material in the available records of the appellants to support our companyclusion. Briefly stated the companytroversy in this matter relates only to the employees working in the Inspection Wing of the Production Control Organization for short P.C.O. of the Integral Coach Factory, Perambur. The grievance of these employees in the Inspection Wing is to the implementation of the circular dated 8.6.1982 of the General Managers Office Personnel Branch Fur. , Madras of the Integral Coach Factory issued in supersession of the earlier circulars on the subject with the Railway Boards approval to treat the Progress Wing alone of the P.C.O. as a separate cadre. The grievance of the employees in the Inspection Wing is that there is numberreasonable basis for this classification of the Progress Wing of the P.C.O. separately denying the same benefit to those in the Inspection Wing. In short, the employees of the Inspection Wing of the P.C.O. also want to be in a separate cadre like those in the Progress Wing and absorbed perma nently in the P.C.O. without the risk of being reverted to the shop floor from which they had been taken and where their lien companytinues. A brief history of the Production Control Organization in the Integral Coach Factory, Perambur, may number be given. The P.C.O. of the Integral Coach Factory was companystituted to ensure quality companytrol of the production in the factory. It companyprises of four wings which include the Progress and Inspection Wings. It appears that the policy for manning the different wings of the P.C.O. remained nebulous for quite long and several changes therein were made from time to time to accommodate the staffs point of view. To begin with, persons from different trades in the shop floor were taken on deputation for the different wings of the P.C.O. For the Progress Wing of the P.C.O., there was also some direct recruitment, but the same was stopped after some time probably in the year 1958 and it was decided that the posts in the Progress Wing be filled by taking persons on deputation from the shop floor. On 22.4.1963, the Railway Board laid down uniform policy for the P.C.Os. in all units of the Indian Railways according to which all the posts in the C.Os. were made ex-cadre and every employee posted in the C.O. was to be from a trade in shop floor. The employees transferred from the shop floor to the P.C.O. were to retain their lien in the shop floor and deemed to be on temporary transfer. This gave rise to some practical difficulty and the permanently absorbed staff in the P.C.O. were given option to revert to the shop floor. The staff directly recruited in the P.C.O. were to be allotted a trade and given the option for getting absorbed in the shop floor On 13.10.1964, a modification was made which is companytained in the G.M. P s letter No. PB S M/6/ATC which refers to the Railway Boards letter No. E NG 59SR 6-22 dated 22.4. 1963. This was the first stage, as described by the learned Additional Solicitor General, for the employees in the P.C.O. of the Integral Coach Factory, Perambur. At the next stage. this policy was further modified for the Inspection Wing by a circular dated 13.8.1965 of the Office of the GM PB Shell of the Integral Coach Factory. This was a half-way measure implemented straightaway in the Inspection Wing, but companyld number be implemented in the other three wings, namely, Progress, Planning and Time Study, because of certain practical difficulties therein. According to this modification, the Inspection Wing was to form a separate ex-cadre unit and the employees in the Inspection Wing were given proforma position in the cadre posts in their trade and companyld be reverted to their parent cadre in the shop floor in the position which they occupied in the shop floor. This again met with difficulty in implementation giving rise to circular dated 29.9.1967 of the Office of the General Manager Personnel Branch Staff of the Integral Coach Factory. Option was given to the staff in the Progress, Planning and Time Study Wings of the P.C.O. to get absorbed and interpolated in the shop floor leaving the Inspection Wing separate. This circular dated 29.9. 1967 was struck down by the Madras High CoUrt vide its order dated 22.8. 1975 in a petition filed by employees of the shop floor on the ground that the General Manager of the Integral Coach Factory had numberpower to act inconsistently with the Railway Boards circular and the remedy is to modify the Railway Boards circular dated 22.4.1963. Accordingly, the procedure laid down in the order dated 29.9. 1967 was cancelled and all posts in the P.C.O. were declared excadre by a circular dated 28.8. 1977 of the General Managers Office Personnel Branch Fur. of the Integral Coach Factory. A modification m the earlier proposal was made by this order. All employees were to be allotted a trade and given option either to go to the shop floor or remain permanently in the P.C.O. However, this too companyld number be implemented on account of the protest of the staff and the unions representing them. At the next stage, a proposal was made by the Integral CoaCh Factory to the Railway Board which is companytained in the letter dated 1.3. 1982 from the Chief Personnel Officer, Integral Coach Factory to the Joint director, Establishment, Railway Board. This was in pursuance to the suggestion of the staff itself that the Progress Wing alone be treated as separate cadre in the P.C.O. and number the remaining wings. Reasons in support of the proposal were also given therein. The Railway Board companyveyed its approval to this proposal in its letter No. E NG 1-81 PM 1/259 CA dated 20.3. 1982. This led to the issuance of the order dated 8.6.1982 by General Manager, Integral Coach Factory, stating that in accordance with the Railway Boards approval, the Progress Wing alone of the C.O. would be a separate cadre and number the remaining wings. As a result of this decision, the Inspection Wing is number treated as a separate cadre unlike the Progress Wing. This is the basis of the grievance of the employees of the Inspection Wing which led to the filing of the writ petition giving rise to this appeal. Writ Petition No. 4468 of 1982 filed in the Madras High Court by the respondents was allowed by the learned Single Judge on 7.4.1984. Thereafter, another step was taken by the railway administration which may be mentioned. The Integral Coach Factory issued a circular on 21.9.1984 companyveying Railway Boards decision companytained in the letter dated 13.9.1984 regarding the staffing pattern of the P.C.Os. in the workshops including the Integral Coach Factory. According to this decision, all posts in the P.C.O. except the Progress Wing companytinued to be ex-cadre posts and the tenure of these posts was directed to be strictly adhered to. The existing position regarding en-cadering of the posts in the C.O. in all wings of Southern Railway and Progress Wing of Integral Coach Factory was allowed to be companytinued. In short, it was a reversion to the initial stage companytained in the order dated 22.4.1963 of the Railway Board except for the Progress Wing. The writ appeal of the railway administration was thereafter dismissed by the High Court on 22.6.1987. The further facts are number material for deciding the point in companytroversy. In short, the employees of the Inspection Wing which include the respondents, companytend that they are entitled to be treated similarly as the employees of the Progress Wing, whose companytinuance in the P.C.O. without the risk of reversion to the shop floor is assured by the adoption of this policy. This companytention of the respondents has been accepted by the High Court. The acceptance of the respondents claim results in striking down the Railways policy to this extent of number treating the Inspection Wing also as a separate cadre like the Progress Wing. It also affects the prospects of those in the shop floor who are denied the chance of being taken in the Inspection Wing of the P.C.O. because of the companytinuance permanently of those already there retaining their lien in the shop floor. It is admitted that the service companyditions in the P.C.O. are better than those of the companyresponding posts in the shop floor. This is the reason for those in the P.C.O. number wanting to revert to the shop floor and the keenness of persons from the shop floor to go to the P.C.O. Some employees working in the shop floor have preferred S.L.P. Civil No. 9774 of 1990 arising out of a companynected matter and have supported the stand of the railway administration taken in Civil Appeal No. 3838 of 1988. It is companymon ground before us that the Inspection Wing of the P.C.O. performs the function of inspecting the quality of the products of the Integral Coach Factory and thereby ensures quality companytrol of the products. The Progress, Planning and Time Study Wings of the P.C.O. are involved in the manufacture of these products and companye at the stage relating to manufacture of the products. There is thus an intelligible differentia between the function of the Inspection Wing on one side and the remaining wings of the P.C.O. on the other. The background indicated earlier leading to the decision by the Railway Board that the Progress Wing alone would be treated as a permanent cadre in the Integral Coach Factory and number the others, was reached on the basis of experience over a long period and was in companysonance with the opinion of the Staff Council representing the views of the staff of the Integral Coach Factory. It appears that companytinuity in Progress Wing and rotation in the Inspection Wing was companysidered desirable for better efficiency. The Railway Board being companypetent to effect necessary changes in the staff pattern of the various units under its companytrol for the purpose of streamlining the Organisation and improving their efficiency, took this decision for this purpose which is companysistent with the view of the staff Council representing the interest of the entire staff in the P.C.O. It does appear that the railway administration did want at one time to treat all units in the P.C.O. as separate permanent cadres but practical difficulty in the implementation of that policy and opposition by the staff impelled it to give up the same. Even here we find that while those already in the Inspection Wing want to remain there permanently, the others who are in the shop floor and would be denied the prospect of being taken in the Inspection Wing of the P.C.O. if the respondents companytention is upheld, are opposed to this view. The decision of the Railway Board, therefore, takes into account all points of view and makes an attempt to reconcile the companyflicting interests while ensuring improvement in the efficiency of the unit. If as a matter of policy the Railway Board approved the proposal made by the management of the Integral Coach Factory to treat the Progress Wing alone of the P.C.O. as a separate cadre and number so the remaining wings including the Inspection Wing, the same cannot be faulted unless it is held to be discriminatory or arbitrary. In view of the nature of functions performed by the four different wings of the P.C.O., we are unable to agree with the High Courts view that the Inspection Wing and the Progress Wing of the P.C.O. must be classified together and treated as separate cadres. It is significant that even at some of the earlier stages, Inspection Wing was treated differently as a matter of policy. The work of the Inspection Wing, as indicated earlier on the basis of undisputed facts before us, is to inspect the quality of the manufactured products to ensure quality companytrol, while the Progress Wing is companycerned with the stage prior to manufacture of the products. For the efficiency of the Inspection Wing which performs the duty of exercising vigilance over the production for the sake of ensuring quality of the products, it is number unreasonable to think that a periodic rotation of its personnel would be companyducive to efficient functioning of the Inspection Wing. The permanency of personnel in the Inspection Wing can promote lethargy in them and may also tend to create vested interests. The possibility of change therein makes the existing personnel more vigilant to avoid any lapse which companyld be discovered by the replacement. The highest possible standards of vigilance by them is achieved by the possibility of reversion to the shop floor against their will if the required degree of efficiency and standard in performance of the duty is number maintained. The work of the Inspection Wing being at the end point with numberfurther scrutiny thereafter, rotation of its personnel is likely to promote the efficiency of the unit. This factor is sufficient to provide a reasonable basis for classification of the Inspection Wing differently from the Progress Wing and there is numberground to companyplain of discrimination, if according to the Railway Boards policy, the Inspection Wing is number treated as a separate cadre like the Progress Wing. The power of the railway administration to formulate such a policy provided it is number discriminatory being rightly number challenged, this companyclusion alone is sufficient to uphold the action of the railway administration. The companytrary view taken by the High Court cannot, therefore, be sustained. We find that the companypetence of the Railway Board to change the staff pattern of the P.C.O. in the Kharagpur Railway Workshop of South Eastern Railway, was challenged before the Central Administrative Tribunal. The decision there was companytained in a Memorandum of 1979 declaring that the posts in the P.C.O. in the Kharagpur Railway Workshop would be treated as ex-cadre differently from the policy in Integral Coach Factory. The Tribunal rejected the challenge based on discrimination between two units and a special leave petition filed in this Court was dismissed. This Court in S.K. Chakraborthy and Ors. v. Union of India Ors., 1988 Supp. 1 S.C.R. 425 upheld the authority of the Railway Board to adopt such a policy to bring about the necessary changes in the staff pattern for improving the efficiency of the administration of units under its companytrol and for the purpose of streamlining the Organisation provided there was numberdiscrimination. Consequently, the appeal is allowed and the impugned judgment of the High Court is set aside resulting in the dismissal of the Writ Petition filed in the High Court. No companyts. A companyy of this judgment be sent to the Chairman, Railway Board as directed.

C. Shah, C.J. By the deed dated 4th January, 1961 one Harnam Singh made a gift of agriculture land measuring 76 acres 3 bigh as in favour of the appellant in appeal. Wazir Singh, respondent to this appeal claming that he was adopted on July 11, 1947 by Harnam Singh according to Hindu rites and ceremonies challenged the gift of the land which he asserted belonged to the Hindu Joint family of Harnam Singh and himself. The suit filed by Wazir Singh was dismissed by the Trial Court. The Court held that Wazir Singh was appointed as heir under the customary law of the Punjab and that he was number adopted according to Hindu riles and ceremonies on that account Wazir Singh was number companypetent to challenge the alienation of the gift by Harnam Singh. On appeal, the District Court upheld the claim of Wazir Singh that he was adopted by Harnam Singh according to the Hindu rites and ceremonies and the property which was gifted was part of the companyarcenary property and on that account the gift was void. The High Court of Punjab companyfirmed the decree passed by the District Court. With certificate granted by the High Court, this appeal has been preferred by the appellant. Two companytentions are raised in support of appeal In reaching his companyclusion that the adoption of Wazir Singh was according to Hindu rites and ceremonies, the District Judge misread documentary evidence and ignored the pleadings of the party. That in any case by virtue of Section 30 of the Hindu Succession Act 1956 it was number open to Wazir Singh to challenge the gift made by his adoptive father Harnam Singh. The deed of adoption which is executed by Harnam Singh in 1947 states that After my death it is necessary that I should have a son to perform any ritual ceremonies The name of a sonless person vanishes from the mortal world. I have brought up Wazir son of Mangal, a minor aged 16 years, as a son since his childhood, for the last ten years. Wazirs marriage was also arranged by me and Wazir aforesaid is also looking after me as natural son. I have adopted Wazir aforesaid, minor son of Mangal, as my son in the presence of the Panchayat, after performing the religious ceremonies Wazir will be the owner of my property of every kind as my natural son. The recitals in the deed of adoption companyroborate the case of Wazir Singh that he was adopted according to Hindu rites and ceremonies in the presence of the Panchayat, and that he was treated as an adopted son. The recitals in the deed are supported by the witnesses examined in the Court of First Insurance on behalf of Wazir Singh. Mr. Bishan Narain companytended that the District Judge misread the written statement filed by the appellant in the Court of first instance and assumed that numberplea was raised that the adoption was merely a customary adoption. Granting that a companytention was raised that Harnam Singh did number adopt Wazir Singh according to the Hindu rites and ceremonies, the companyclusion of the District Judge on appreciation of evidence that the ceremonies of adoption according to Hindu rites were performed, was binding upon the High Court in second appeal. It is companyceded, and in our judgment rightly, that a Hindu governed by the customary law in the Punjab is number disentitled to make a formal adoption according to Hindu rites and ceremonies. Harnam Singh companyld make a customary adoption, he companyld also make a formal adoption according to Hindu rites and ceremonies. In the present case, the District Judge has found that there was a formal adoption of Wazir Singh according to Hindu riles and ceremonies. That finding was binding upon the High Court sitting in Second appeal. The first companytention must, therefore, fail. Section 30 of the Hindu Succession Act provides Any Hindu may dispose of by will or by will or other testamentary any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation The interest of a male Hindu in a Mitakshara companyarcenary property or the interest of a member of a tarwad, tavashi, illom, kutumba or kavaru in the property of the tarwad, tavashi, illom, kutumba or kavaru shall, numberwithstanding anything companytained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Sub-section. Mr. Bishan Narain companytended that Section 30 applied only to disposition by will or other testamentary instruments but also to instruments inter vivos. On the plain terms of Section 30 it is impossible to read Section 30 as applying to disposition inter vivos. Mr. Bishan Narain relied upon Section 13 of the Hindu Adoptions and Maintenance Act of 1964 which reads Subject to any agreement to the companytrary, an adoption does number deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. But by virtue of his adoption in 1947, Wazir Singh acquired the status of a companyarcener. A gift of companyarcener property by a member is void. There is numberhing in Section 13 of the Hindu Adoptions and Maintenance Act 1956 which detracts from that rule.

BRIJESH KUMAR, J. This appeal is preferred against the judgment and order dated 17.5.2002 passed by the Madhya Pradesh High Court dismissing the appeal of the appellants against their companyviction and sentences of imprisonment for life under Section 302/149 as well as six months rigorous imprisonment under Section 323/149 of the Indian Penal Code. In all seven persons have been companyvicted by the Sessions Judge out of which Shankariya and Malkhe died during the pendency of the appeal in the High Court. The remaining five accused persons who have been companyvicted are Munna, Shridhar, Motilal, Sarman and Gopal out of these persons Shridhar and Motilal are appellants before us in this appeal. The prosecution case is that on 12.3.1983 at about 7.00 p.m. deceased Hakimsingh and PW-1 Rajendrasingh on way to their field passed through the house of Shankariya who is said to have accosted Hakimsingh asking him as to why he had been visiting the wife of his brother Ramcharan. Hakimsingh protested, upon which Shankariya and Malkhe with lathis, accused Sarman assaulted with farsa. Gopal and Motilal are said to have given lathi blows on the head of Hakimsingh. PW 1 Rajendrasingh tried to intervene at which he was also assaulted by Shankariya and Gopal. The alarm of Rajendrasingh attracted PW 4 Mahaveersingh, PW3 Sagarsingh, PW5 Raghurajsingh and PW 6 Dildarsingh to the spot. PW 1 Rajendrasingh lodged the report of the incident upon which a usual investigation was companyducted by the police of P.S.Veerpur. The weapons of the assault namely, lathi and farsa etc. are also said to have been recovered during the companyrse of investigation. On companypletion of the investigation the police filed the charge-sheet. Rajendrasingh and Hakimsingh were sent for medical examination. PW-8 Dr.K.K.Singh found two injuries on the person on Rajendrasingh one of which was a lacerated wound on the forehead and the other a bruise on the left hand. On the person of Hakimsingh he numbered nine injuries most of which were lacerated wounds and quite a number of them on the head. Hakimsingh however, later died on 21.3.1983 in J.A.Group of Hospitals, Gwalior. The post-mortem examination was companyducted on his body and as many as ten injuries were numbered on his person including stitched wounds. The injuries were on the face, head and other parts of the body. The prosecution, to prove its case, has examined PW 1- Rajendrasingh, PW 3- Sagarsingh, PW 4 Mahaveersingh and PW 5 Raghurajsingh as eye-witnesses. PW 6 Dildarsingh is also one of those who is said to have rushed to the spot at the time of the incident. PW 8 Dr.K.K.Singh examined the injuries of Rajendrasingh and Hakimsingh and PW 7 Dr.V.K.Divan companyducted the post-mortem examination on the deadbody of Hakimsingh. The other former witnesses and the investigating officers were also examined. The defence of the accused persons was that they have been falsely implicated in the case. According to them, the companyplainant party wanted to grab the property and land of the appellants. It also appeared that a cross report was lodged by late Shankariya, accused at the same police station. According to them, late Shankariya, accused Munna and Sarman had received injuries. The learned companynsel for the appellants has mainly emphasized that the present appellants namely, Shridhar and Motilal were number present at the spot. He further submitted that the prosecution case as initially taken up has number been pursued as to how the incident occurred and the story of Hakimsingh having illicit relations with the wife of the brother of Shankariya has been given up at the stage of the evidence. We feel that it would number be necessary to go into that aspect of the matter in view of the fact that a fight had taken place at the time and date as indicated by the prosecution is number in dispute. A cross report has also been lodged and it was the case of the accused persons that Munna and Sarman had received injuries. It is true at the evidence stage the prosecution story was slightly changed as to how the dispute had started. As it was stated at the end that a quarrel took place as cattle of late Shankariya had entered into their fields. But as observed above in the facts and circumstances of this case the question as to how the fight started numbermore remains important since admittedly the incident occurred resulting in injuries to Hakimsingh and Rajendrasingh as a result of which later on Hakimsingh died. Cause of fight therefore, is number a point to be much companycentrated upon. The other relevant question which may arise for companysideration is as to which of the party was aggressor and further if there was any right of private defence available to the accused persons. The Trial Court as well as the High Court has companysidered this aspect of the matter and has companye to the companyclusion that it would number be possible to hold that Hakimsingh and Rajendrasingh would be aggressors or they picked up a fight empty handed. As a matter of fact numbersuch arguments have been advanced on behalf of the appellants before us to dislodge the findings arrived at by the two companyrts. The main stress on behalf of the appellants has been that they were number present at the spot. Arguments have mainly been advanced only in that direction. It is submitted that so far the appellant Shridhar is companycerned he has number been assigned any role of assault to Hakimsingh or the injured Rajendrasingh. One of the eye-witnesses has also number named him as an accused person at the spot at the time of the incident. It is submitted that it makes his presence doubtful. The submission in regard to Motilal is that he is said to have given a lathi blow on the neck of the deceased Hakimsingh. But there is numberblunt weapon injury on the neck of Hakimsingh. Therefore, it is submitted that his presence is also number made out at the relevant time of the incident. We have scrutinized the submissions made by the learned companynsel for the appellants and we numberice that a role has been assigned to each of the accused persons but Shridhar. It is said that Shankariya and Malkhe started assaulting Hakimsingh. The FIR also indicates the role played by different accused persons but so far accused Shridhar is companycerned numberrole has been assigned to him for assault either to Hakimsingh or to Rajendrasingh. The other accused persons, namely, Sarman who has been stated to have given farsa blow whereas Motilal and Gopal are said to have given lathi blows to Hakimsingh. It is also to be numbericed that one of the eyewitnesses has also number named Shridhar as one of the accused in his statement in the Court. This circumstance makes the presence of Shridhar doubtful more so as a member of an unlawful assembly. Otherwise there was numbergood reason as to why numberrole would have been assigned to him in the FIR or in the statements of the prosecution witnesses and one of them having number named him altogether. Learned companynsel appearing for the State has, however, drawn our attention to the fact that the lathi which is said to have been recovered from Shridhar was blood stained. The submission is this circumstance companynects very much with the incident. But a perusal of the report of the chemical examiner does number indicate that the weapons, namely, lathi etc. were stained with human blood. Therefore, numberaid can be taken from this circumstance too. Therefore, we dont companysider it prudent to infer companyclusively that Shridhar was one of the members of the unlawful assembly. A doubt has also arisen, as indicated earlier, due to the fact that one of the eye-witnesses does number name at all in his statement before the Court. So far the appellant-Motilal is companycerned his case stands on a different footing. He has been assigned a role of assault on Hakimsingh by his lathi. This has been maintained through out in the FIR as well as in the statements of all the witnesses. The learned companynsel for the appellants has vehemently urged that there is numberinjury by any blunt weapon on the neck of the deceased Hakimsingh and the role which has been assigned to Motilal is that he had given a blow on the neck. The injury report of Hakimsingh shows that he has received a number of injuries on the front and back side of the head which have also been caused by a blunt weapon. It is difficult in a criminal case to go by exactly tallying the injuries blow by blow. Quite often injuries may tally but it is equally possible that at times a blow aimed at a particular part of the body may hit the other neighbouring part of the body and number exactly the part where the blow is aimed at. It is a case where Hakimsingh was being assaulted by lathis and farsa by a number of persons which blow of which accused may land on which part of the body cannot be stated with exactitude. Not much would turn upon it. Such a discrepancy as indicated and mentioned above cannot said to be glaring or so diverse to the manner of assault that numbermally it may number be possible to explain it. The evidence on the point of assault by Motilal is companycerned, it is also described in the FIR. The FIR was lodged promptly within two hours of the incident. Therefore, we are unable to accept the submission made on behalf of the appellant-Motilal that his presence is also number established because of the fact that numberblunt weapon injury was found on the neck of the dead-body of Hakimsingh. In view of the discussion held above, we extend the benefit of doubt to Shridhar.

P. Mathur, J. This appeal, by special leave, has been preferred against the judgment and order dated 19.6.2000 of the Bombay High Court by which the Letters Patent Appeal filed by ANZ Grindlays Bank Limited hereinafter referred to as the Bank was dismissed and the order dated 29.2.2000, passed by the learned single Judge dismissing the writ petition filed by the Bank, was affirmed. The present appeal has been filed by ANZ Grindlays Bank Limited and the respondents arrayed in the appeal are 1 Union of India, 2 All India Grindlays Bank Employees Federation, and 3 All India Grindlays Bank Employees Association. During the pendency of the appeal in this Court the entire share capital of ANZ Grindlays Bank Limited has been acquired by Standard Chartered Bank Limited and companysequently an application I.A. No. 3 of 2000 has been moved to change the name of the appellant from ANZ Grindlays Bank Limited to Standard Chartered Grindlays Bank Limited, which has been allowed. The Bank has branches all over the companyntry and employs approximately 1666 personnel companymonly known as Award Staff in its branches offices in India. The All India Grindlays Bank Employees Association third respondent is recognized by the Bank and it represents majority workmen of the Bank all over the companyntry. The All India Grindlays Bank Employees Federation second respondent represents the minority workmen of the Bank. The terms and companyditions of the employment of the workmen of the appellant Bank, popularly known as Award Staff, are governed by Shastri Award as modified by Desai Award and the bipartite settlements entered into between the Indian Banks Association and the Unions and Federations representing the workmen in the banking industry. Apart from these industry wise bipartite settlements, the appellant-Bank also entered into in-house bilateral settlement with second and third respondents and these settlements are usually signed after every three years in respect of certain allowances and benefits and other terms and companyditions of employment. The third respondent the All India Grindlays Bank Employees Association for short the Association represents over 66 of the workmen of the appellant-Bank. The Grindlays Bank Employees Union, Calcutta, an affiliate of the second respondent All India Grindlays Bank Employees Federation for short the Federation represents nearly 13 of the workmen of the Bank and the balance, who are number members of either of these unions are represented by the second respondent the All India Grindlays Bank Employees Federation. The case of the appellant is that the Federation second respondent is in the habit of backing out from signing the settlement at the last minute after having agreed to the terms thereof. Since 1993 several settlements were entered into between the Bank, the Association third respondent and also Grindlays Bank Employees Union, Calcutta. However, on account of the recalcitrant attitude of the Federation second respondent , in the settlement entered into under Section 18 1 of the Industrial Disputes Act, 1947 for short the Act a clause had to be incorporated for voluntary acceptance of the terms and companyditions of such settlements by number-members of the Association third respondent with a view to extend the benefit of such settlements to such of the number-members of the Association, who are willing to accept the settlement. A strike numberice dated 14.3.1996 was issued to the management of the Bank by the Federation second respondent . Discussions were held with all the parties and finally a settlement was arrived at between the appellant-Bank and the Association third respondent , which was signed on 18.8.1996. The Federation second respondent , however, backed out and refused to sign the settlement. The Federation then informed the Conciliation Officer Central on 19.8.1996 that it had number signed the settlement and that the signing of the settlement by the Bank with the Association third respondent amounted to unfair labour practice. On 6.12.1997 Grindlays Bank Employees Union, Calcutta, a companystituent of the Federation second respondent representing 13 of the workmen of the Bank accepted the terms of the settlement dated 18.8.1996 by signing a separate settlement dated 6.12.1997. The settlement dated 18.8.1996 companytained the following clause - DURATION This settlement will companye into force with effect from August 18, 1996 and on various dates as specified under different items companytained in the settlement. The same shall be binding on the parties until December 31, 1998. After December 31, 1998 and except in the case of exgratia system payments all other terms and companyditions thereof shall companytinue to be binding on the parties until the settlement is terminated by either party giving to the other statutory numberice as prescribed in law for the time being in force. It is agreed that since the settlement shall be binding between the parties to this settlement under Section 18 1 of the Industrial Disputes Act, 1947, it will also be binding on the affiliated units of All India Grindlays Bank Employees Association and hence on their members and thus the members shall automatically be entitled to the benefits of this settlement and subject to the obligations under this settlement. However, any other workmen who is number a member of any Union affiliated to All India Grindlays Bank Employees Association shall also be bound by the terms and companyditions of this settlement and companysequently entitled to the benefits flowing out of this settlement if he she accepts this settlement by signing a receipt and the format of the settlement enclosed with this settlement, which will be made available to such employees. The benefits arising out of this settlement will be given effect to by September 10, 1996. The settlement itself companytained a format in which the receipt had to be given and the same is as under - To The Manager ANZ Grindlays Bank Limited. Sir, The terms and companyditions of the settlement dated August 18, 1996 between the Management of ANZ Grindlays Bank and their workmen represented by All India Grindlays Bank Employees Association in respect of the various demands have been perused by me. I accept the settlement and the same will be binding on me. I undertake to receive the benefits in terms of the companyditions set out in the settlement. I, therefore, request you to release the benefits accruing to me under the same. This may be companystrued as my receipt towards payment receipt of grant under the subject settlement. Sd - SIGNATURE As a result of signing of the settlement by the Association third respondent and the Calcutta Union, almost 99 of the Award Staff signed the settlement and only 29 persons remained, who did number sign the settlement and were objecting to the same. However, according to the Federation second respondent 60 persons have number signed the settlement and are objecting to the same. Nearly three years thereafter the Association third respondent submitted a fresh charter of demands and after holding discussions and negotiations a fresh settlement was signed on 10.3.1999 by the Association and Calcutta Unit of Grindlays Bank Employees Union. At the instance of All India Grindlays Bank Employees Federation second respondent the Central Government, by order dated 29.12.1997, made a reference under Section 10 1 of the Act for adjudication by the Industrial Tribunal. After issuance of a companyrigendum on 17.12.1998, the reference reads as under - Whether the terms of bipartite settlement dated 18.8.1996, between the management of ANZ Grindlays Bank Limited, and All Indian Grindlays Bank Employees Association which bound withholding of benefits of settlement to workmen who are number members of All India Grindlays Bank Employees Association until the individual gives acceptance of the settlement in the given format is legal and justified? If number, to what relief are the workmen entitled to? Feeling aggrieved by the aforesaid reference made by the Central Government the ANZ Grindlays Bank filed a writ petition under Article 226 of the Constitution before the Bombay High Court for quashing and setting aside the same. The writ petition was dismissed by a learned single Judge and the appeal preferred against the said decision before the Division Bench also failed. The present appeal has been filed by the Bank challenging the aforesaid orders. Mr. Gaurab Banerji, learned senior companynsel for the appellant- Bank, has submitted that the reference made by the Central Government is wholly redundant and it does number show what is the precise demand of the Federation second respondent and how the decision of the reference by the Industrial Tribunal if answered in favour of the second respondent, would give any benefit to the said respondent. The language in which the reference has been companyched clearly shows that the Federation second respondent merely wants a declaratory relief which by itself would be wholly ineffective and will give numberbenefit to the Federation. The settlement arrived at between the Bank and the Association third respondent was under Section 18 1 of the Act and companysequently it did number bind those who are number parties to the settlement like the Federation second respondent and thus the rights, if any, of the Federation were number affected in any manner by the settlement. Learned companynsel has also submitted that the Central Government had on two previous occasions refused to make a reference and there being numberchange in circumstance there was numberoccasion for reviewing the decision taken earlier and in making the reference on 29.12.1997. It has been further companytended by Mr. Banerji that the settlement made on 18.8.1996 had already worked itself out and benefits had been given to the employees in terms thereof. The said settlement had been superseded by another settlement on 10.3.1999. If the settlement arrived at on 18.8.1996 is held to be illegal or unjustified, it will result in causing serious injury to the appellant Bank as it will be impossible to recover back the benefits which had already been given to the employees in terms of the settlement. It may be mentioned at the very outset that the appellant-Bank had entered into the settlement dated 18.8.1996 with the Association third respondent and members of the Grindlays Bank Employees Union, Calcutta, after holding discussions and negotiations. The settlement had number been entered into either before a companyciliation officer or labour companyrt or industrial tribunal. In view of Section 18 1 of the Act the settlement was binding only upon the parties thereto. Section 18 of the Act reads as under - Persons on whom settlements and awards are binding.-- 1 A settlement arrived at by agreement between the employer and workman otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement. Subject to the provisions of sub-section 3 , an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. A settlement arrived at in the companyrse of companyciliation proceedings under this Act or an arbitration award in a case where a numberification has been issued under sub-section 3-A of Section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on-- a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause c where a party referred to in clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. A plain reading of the provisions of Section 18 would show that where a settlement is arrived at by agreement between the employer and the workman otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement in view of the clear language used in sub-section 1 thereof. Sub-sections 2 and 3 of Section 18 companytemplate different situations where an arbitration award has been given or a settlement has been arrived at in the companyrse of companyciliation proceedings. In M s. Tata Chemicals Ltd. vs. The Workmen employed under M s. Tata Chemicals Ltd. AIR 1978 SC 828, it was held as under - Whereas a settlement arrived at by agreement between the employer and the workman otherwise than in the companyrse of companyciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the companyrse of companyciliation proceeding under the Act is binding number only on the parties to the industrial dispute but also on other persons specified in Cls. b , c and d of sub-sec. 3 of S. 18 of the Act. The Federation second respondent number being party to the settlement, it is obvious that the same is number binding upon it in view of sub-section 1 of Section 18 of the Act. Thus the settlement dated 18.8.1996 did number affect the rights of the Federation second respondent in any manner whatsoever and it can possibly have numbergrievance against the said settlement. Mr. S.N. Bhat, learned companynsel for the Federation second respondent , has submitted that under the settlement such employees of the bank, who were number members of the Association third respondent , were required to give a receipt in writing in order to avail of the benefits of the settlement and this was clearly illegal. We are unable to accept the submission made. As already stated, the settlement was arrived at between the Bank and the Association third respondent and by virtue of sub-section 1 of Section 18 of the Act it bound only the members of the Association third respondent . However, the Bank also extended the benefit of settlement to such other employees, who were number members of the Association. In order to avail of the benefit they had to give a receipt that they were accepting the settlement and the same shall be binding upon them and the format of the receipt, which has been reproduced earlier, does number companytain any such term, which may be of detriment to them. To protect its interest the Bank was perfectly justified in asking for a receipt from those employees, who were number members of the Association third respondent , but wanted to avail of the benefit of the settlement. Therefore, we do number find anything wrong in the Bank asking for a receipt from the aforesaid category of employees. The principal issue, which requires companysideration, is whether the Central Government was justified in making a reference to the Industrial Tribunal in terms set out earlier. Section 2 k of the Act defines industrial dispute and it means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. The definition uses the word dispute. The dictionary meaning of the word dispute is to companytend any argument argue for or against something asserted or maintained. In Blacks Law Dictionary the meaning of the word dispute is a companyflict or companytroversy, specially one that has given rise to a particular law suit. In Advance Law Lexicon by P. Ramanatha Iyer the meaning given is claim asserted by one party and denied by the other, be the claim false or true the term dispute in its wider sense may mean the ranglings or quarrels between the parties, one party asserting and the other denying the liability. In Gujarat State Cooperative Land Development Bank Ltd. Vs. P.R. Mankad and others 1979 3 SCC 123, it was held that the term dispute means a companytroversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. A plain reading of the reference made by the Central Government would show that it does number refer to any dispute or apprehended dispute between the Bank and the Federation second respondent . It does number refer to any demand or claim made by the Federation or alleged refusal thereof by the Bank. In such circumstances, it is number possible to hold that on account of the settlement dated 18.8.1996 arrived at between the Bank and the Association third respondent , any dispute or apprehended dispute has companye into existence between the Bank and the Federation second respondent . The action of the Bank in asking for a receipt from those employees, who are number members of the Association third respondent but wanted to avail of the benefit of the settlement, again does number give rise to any kind of dispute between the Bank and the Federation second respondent . Thus, the reference made by the Central Government by the order dated 29.12.1997 for adjudication by the Industrial Tribunal is wholly redundant and uncalled for. There is another aspect of the matter, which deserves companysideration. The settlement dated 18.8.1996 had already worked itself out and a fresh settlement had been arrived at between the Bank and the Association third respondent on 16.11.1999. The members of the Association third respondent and other employees, who availed of the benefit of the settlement, have received payments in terms thereof. Some of the employees have already retired from service. Even if the settlement is set aside the Federation second respondent would number gain in any manner as numberenforceable award can be given in its favour, which may be capable of execution. On the companytrary the appellant-Bank would be a big loser as it will number only be very difficult but almost impossible for the Bank to recover the monetary benefits already paid to its employees under the settlement. We are, therefore, of the opinion that the reference made by the Central Government is wholly uncalled for and deserves to be set aside. Mr. Bhat, learned companynsel for the second respondent, has submitted that this Court should number interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its grievances before the Industrial Tribunal itself and if the decision of the tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned companynsel the writ petition is pre-mature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or is uncalled for. We are unable to accept the submission made. It is true that numbermally a writ petition under Article 226 of the Constitution should number be entertained against an order of the appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was numberoccasion for making a reference. However, this is number a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceedings under Article 226 of the Constitution as numberevidence is required to be companysidered for examining the issue raised. In National Engineering Industries Ltd. vs. State of Rajasthan and others 2000 1 SCC 371, this Court held as under in para 24 of the report It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is numberindustrial dispute and numbere apprehended which companyld be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which companyld be examined by the High Court in its writ jurisdiction. It is the existence of the industrial dispute which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it.

KAPADIA, J. Being aggrieved by the direction issued by the Telecom Disputes Settlement Appellate Tribunal on 24.8.2005 ordering Star India Pvt. Ltd. appellant herein to supply signals of its bouquet of channels by entering into an Agreement with Sea T.V. Network Ltd. respondent No.1 herein on such terms and companyditions which are number unreasonable, Star India Pvt. Ltd. has companye to this Court by way of this civil appeal. Star India Pvt. Ltd. is a companypany under the Companies Act, 1956. On 8.2.2005 Star India Pvt. Ltd. entered into Distributor Agreement with Moon Network Pvt. Ltd. respondent No.2 . M s Moon Network Pvt. Ltd. under the Agreement was a distributor. Under the said Agreement there was a recital. Under that recital Star India Pvt. Ltd. had stated that it was an authorized distributor of the Satellite T.V. channels namely Star Plus, Star Movies, Star World, Star News, Star Gold etc. companylectively referred to as New Channels Bouquet. Under the Agreement Moon Network Pvt. Ltd. a Multi-System Operator for short MSO was engaged in the business of transmission of TV channels through cables. Under the Agreement Moon Network Pvt. Ltd. was described as a distributor. Under the said Agreement Star India Pvt. Ltd. appointed Moon Network Pvt. Ltd. as the distributor on a sole and exclusive basis. The distributor was required to distribute the subscribed channels in the territory of Agra. Moon Network Pvt. Ltd. was thus appointed as the sole and exclusive distributor of the subscribed channels through the cable network owned by it and operated by it in the territory of Agra. It is interesting to numbere that under the Agreement, Star India Pvt. Ltd. excluded the distribution of the subscribed channels through DTH, CAS, Broadband or any medium other than through a ground cable network. The said Agreement came into effect from January 1, 2005. The Agreement is valid up to June 30, 2007, unless terminated in accordance therewith. Under the Agreement Moon Network Pvt. Ltd. companyld execute an affiliation agreement directly with its affiliate s in such form and manner to be approved by Star India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd. companyld use publicity material given to it by Star India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd. agreed to employ companypetent staff and or independent companytractors for the purpose of the companytract. Under the Agreement Moon Network Pvt. Ltd. was recognized by Star India Pvt. Ltd. as a MSO engaged in the business of transmission of T.V. channels through ground cables. Under clause 6.3 of that Agreement it was clarified that Star India Pvt. Ltd. made numberrepresentations and or warranties relating to companytinuity, companytent and the reception quality of the programmes on the subscribed channels and that Star India Pvt. Ltd. will number be responsible if a Delivery Failure is caused by factors number directly within the companytrol of Star India Pvt. Ltd. Under the Agreement Star India Pvt. Ltd. agreed to deliver the Decoders to the distributor Moon Network Pvt. Ltd. However, under the Agreement it was stipulated that Moon Network Pvt. Ltd. in turn would number re-sell or act as a dealer in respect of the said Decoders. Under clause 16 of the Agreement the parties agreed that Moon Network Pvt. Ltd. as a distributor will act as an independent companytractor and that the Agreement shall number create principal-agent relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. That, neither party shall hold out to the rest of the world any such relationship. To sum up, Moon Network Pvt. Ltd. was appointed as an exclusive agent of Star India Pvt. Ltd. in the territory of Agra. At the same time the Agreement recognized the status of Moon Network Pvt. Ltd. as an MSO engaged in the business of transmission of TV channels through ground cables. This aspect is important since in the present companytroversy one of the main issue which arises for determination is the difference between, transmission including re-transmission of signals, on one hand and the expression providing TV channels on the other hand which expression finds place under the Telecommunication Broadcasting and Cable Services Interconnection Regulation, 2004 hereinafter referred to as Interconnection Regulation . At this stage we may state that although the above Agreement dated 8.2.2005 remains in force up to 30.6.2007 for some unknown reasons Star India Pvt. Ltd. has entered into a distributor Agreement on 4.1.2006 under which Moon Network Pvt. Ltd. are appointed as distributor. In the present case we are only companycerned with the interpretation of the Interconnection Regulation 2004, and therefore, we are number required to go into any other aspect. However, it is made clear that in such cases the Appellate Tribunal ought to have called for the Distributor Agreement, if any, and number decide companyceptually they do number go by the facts of the individual cases. In the present case at one stage it was argued vehemently by the appellants that Star India Pvt. Ltd. had entered into an Agreement with Moon Network Pvt. Ltd. and that Moon Network Pvt. Ltd. was therefore exclusive agent for the territory of Agra. It was argued that Star India Pvt. Ltd. was required to appoint an agent in different territories looking to the economies of scale of operations carried out by Star India Pvt. Ltd. throughout India. However, when the Court perused the companytents of the Agreement we find that the Agreement is a Distributor Agreement. As stated above the Agreement expressly stated that Moon Network Pvt. Ltd. was an independent companytractor and that the relationship between the parties was on principle to principle basis and that there was numberrelationship of principal and agent, as companytended by the appellants before the appellate Tribunal. On behalf of the Star India Pvt. Ltd, Shri Mukul Rohtagi, learned Senior Counsel submitted that the appellant Star India Pvt. Ltd. is a broadcaster of TV channels and that Moon Network Pvt. Ltd. was an MSO for supply of TV channels for distribution in the city of Agra. He companytended that when Sea T.V. Network respondent No.1 herein approached Star India Pvt. Ltd. for supply of signals in that territory Sea T.V. was directed to approach Moon Network Pvt. Ltd. However, Sea T.V. Network did number agree to take the signals from Moon Network Pvt. Ltd. since Moon Network Pvt. Ltd. was also a companypeting MSO. According to the learned companynsel under the Interconnection Regulation framed by TRAI there was numberprohibition on Star India Pvt. Ltd. in the matter of appointment of any MSO as its agent on exclusive basis for a given territory. Reliance was placed by learned companynsel on Regulation 3.3 read with Explanatory Memorandum. He companytended further that any such prohibition would be hit by Article 19 1 g of the Constitution. It was further urged that the above Agreement arrangement was in companysonance with the Interconnection Regulation since Star India Pvt. Ltd. was entitled to align its business in a lawful manner under Article 19 2 1 g of the Constitution. The learned companynsel further submitted that under Regulation 3.3 we get a clarification of what is implicit in Regulations 3.1 and 3.2, namely that a broadcaster is entitled to give signals through an agent, who can also be a MSO in a vertically integrated industry so as to reduce high distribution companyts. That, a broadcaster can enter into any business arrangement model which protects its financial interest since there was numberprohibition on such arrangement. According to the learned companynsel appointment of an MSO as an agent per se is number prejudicial to companypetition and if at all it is prejudicial it should be established in each case by the companyplainant. According to the learned companynsel appointment of a MSO as an agent is necessary since he knows the ground realities. He is number in a position to ascertain the number of subscribers and that the Interconnection Regulations themselves therefore companytemplate and permit an overlap between the agent and the MSO. It was submitted that the cable industry in India has grown in an environment which has provided inadequate protection to broadcasters. It is, therefore, disorganized ultimately having an adverse effect on the companysumers. According to the learned companynsel there is in the Indian market large-scale under declaration regarding number of subscribers which results in an inequitable sharing of subscription revenues. According to the learned companynsel on a proper interpretation of the Interconnection Regulation it is clear that a broadcaster is obliged to provide its signals to all distributors of TV channels on number-discriminatory basis. But the manner of providing signals has been left to the discretion of the broadcaster. According to the learned companynsel the Interconnection Regulation for establishing a must provide regime under which every distributor is entitled to the signals of every broadcaster on account of the heavy distribution companyts widespread under-declaration of number of subscribers and the fragmented nature of the market the Regulations have given the broadcaster the flexibility to decide whether to provide signals directly or through an agent. According to the learned companynsel therefore, there is numberparticular business model prescribed by the said Interconnection Regulation, and therefore, the Tribunal had fallen in error in holding that a distributor of TV channels cannot be an agent as provided for in Regulation 3.3. According to the learned companynsel there is numbersuch prohibition in the definition clauses number in the pre-clauses of the Interconnection Regulations. According to the learned companynsel the Tribunal has erred in regarding distributors, agents, MSOs and cable operators as entirely separate and distinct categories. According to the learned companynsel under the said Interconnection Regulations there is a companysiderable overlap between each of the above categories because each of the above entities is capable of discharging different functions. The learned companynsel, therefore, placed heavy reliance on the Explanatory Memorandum in support of his companytentions particularly, in respect of his companytention that the mode of providing signals by the broadcasters is left to an individual broadcaster who may provide its signals directly or through a designated agent distributor or any other intermediary as long as such provision is fixed on numberdiscriminatory basis. According to the learned companynsel the Tribunal has failed to companysider the Explanatory Memorandum and the responses of the TRAI to the companyments of the stake holders. According to the learned companynsel the Tribunal has failed to appreciate that the term Distributor of TV channels includes all the entities involved in reaching the broadcasters signals to the ultimate companysumer. It is urged that the impugned judgment has the effect of restricting the scope of clause 3.3 on the basis of an erroneous interpretation of the definition of the word agent in Interconnection Regulation 2 b . According to the learned companynsel the impugned judgment is erroneous since it renders clause 3.3 meaningless since the said interpretation disallows a broadcaster from providing signals through an agent. According to the learned companynsel clause 3.3 is a clarification to clauses 3.1 and 3.2 which states that the companysumer must have access to every broadcasters channel on a number-discriminatory basis, but the manner of achieving this object has been left to the broadcaster to decide. According to the learned companynsel the definition of the word agent in the Interconnection Regulations do number provide the manner in which the agent would make available the TV channels to the distributor. According to the learned companynsel the words make available in Regulation 2 b would include giving of Decoders and supply of signals through cable feed. According to the learned companynsel there is numberfunctional difference between retransmission of signals and making available the TV channels. According to the learned companynsel there is hardly any difference in the quality of signals that can be received by a distributor through Decoders and through a cable feed. For a distributor to obtain TV channels through Decoders the distributor must possess a dish-antena for downloading the signals from the satellite of the broadcaster and a divider which divides the signals into various channels. The distributor also requires separate Decoders for each channels with an activated viewing card. distributor who obtains the signals through the cable amplifies it and distributes it to the other distributors and subscribers through the ground cable. That, the quality of signals transmitted through the cable is companyparable to the quality of signals obtained through the Decoders. According to the learned companynsel a distributor who obtains signals through Decoders is required to invest in the infrastructure companysisting of Decoders, dividers, modulators and amplifiers whereas a distributor who obtains signals through the cable has number to make such investments and at the same time the same quality of signals can be obtained through the cable feed which requires investments in amplifiers, splitter and cabling. According to the learned companynsel the interpretation accepted by the Tribunal vide impugned judgment would require an MSO to invest huge amounts in the requisite infrastructure and obtain signals through Decoders, and therefore, the distinction made by the Tribunal between re-transmission and making available TV signals is number appropriate since the same definition applies to agents appointed by MSOs. Accordingly, it was submitted on behalf of the appellant that the Tribunal had erred in holding that providing signals to a distributor through an agent who is also a distributor is per se discriminatory. According to the appellants discrimination in cases of overlap of functions should be established on case to case basis and if in a given case if it is found that the agent is companyducting itself in a manner prejudicial to companypetition then clauses 3.4 and 3.6 which provides for redressal would apply. In order to companysider the above arguments we quote hereinbelow the relevant provisions of the Interconnection Regulations dated 10.12.2004 DefinitionsIn this regulation, unless the companytext otherwise requires b agent or intermediary means any person including an individual, group of persons, public or body companyporate, firm or any organisation or body authorised by a broadcaster multi system operator to make available TV channel s , to a distributor of TV channels h cable service means the transmission by cables of programmes including retransmission by cables of any broadcast television signals cable television network means any system companysisting of a set of closed transmission paths and associated signal generation, companytrol and distribution equipment designed to provide cable service for reception by multiple subscribers j distributor of TV channels means any person including an individual, group of persons, public or body companyporate, firm or any organisation or body re-transmitting TV channels through electromagnetic waves through cable or through space intended to be received by general public directly or indirectly. The person may include, but is number limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator m multi system operator means any person who receives a broadcasting service from a broadcaster and or their authorised agencies and re-transmits the same to companysumers and or re-transmits the same to one or more cable operators and includes his her authorised distribution agencies. n service provider means the Government as a service provider and includes a licensee as well as any broadcaster, multi system operator, cable operator or distributor of TV channels. General provisions relating to numberdiscrimination in interconnect agreements 3.1 No broadcaster of TV channels shall engage in any practice or activity or enter into any understanding or arrangement, including exclusive companytracts with any distributor of TV channels that prevents any other distributor of TV channels from obtaining such TV channels for distribution. 3.2 Every broadcaster shall provide on request signals of its TV channels on numberdiscriminatory terms to all distributors of TV channels, which may include, but be number limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator multi system operators shall also on request re-transmit signals received from a broadcaster, on a numberdiscriminatory basis to cable operators. Provided that this provision shall number apply in the case of a distributor of TV channels having defaulted in payment. Provided further that any imposition of terms which are unreasonable shall be deemed to companystitute a denial of request 3.3 A broadcaster or his her authorised distribution agency would be free to provide signals of TV channels either directly or through a particular designated agent or any other intermediary. A broadcaster shall number be held to be in violation of clauses 3.1 and 3.2 if it is ensured that the signals are provided through a particular designated agent or any other intermediary and number directly. Similarly a multi system operator shall number be held to be in violation of clause 3.1.and 3.2 if it is ensured that signals are provided through a particular designated agent or any other intermediary and number directly. Provided that where the signals are provided through an agent or intermediary the broadcaster multi system operator should ensure that the agent intermediary acts in a manner that is a companysistent with the obligations placed under this regulation and b number prejudicial to companypetition. ANNEXURE A EXPLANATORY MEMORANDUM xxxxxxxx xxx xxxx xxx Discriminatory Access In India, companypetition for delivery of TV channels is number only to be promoted within the cable industry but also from distributors of TV channels using other mediums like direct to home DTH , head ends in the sky etc. It is important that all these distribution platforms are promoted so that they provide companysumers with choice. It would be very important that at this stage vertical integration does number impede companypetition. Vertically integrated broadcaster and distribution network operators would, in the absence of strong regulation, have the tendency to deny popular companytent to companypeting networks or to discriminate against them. One method of checking these practices is to stop at the source any chance of anticompanypetitive behaviour by ruling that vertical integration will number be allowed. This route companyld, however, impede investments and in the long run adversely affect companypetition. The only DTH platform today has a degree of vertical integration. There is another pay DTH platform which is awaiting approval from the Government that also has a degree of vertical integration. DTH is the platform most likely to provide effective companypetition to cable operators. Restriction of vertical integration companyld therefore, lead to a situation where the DTH roll-out companyld be affected and hence companypetition. It is for this reason that the alternative route has been looked at companytrolling anti-competitive behaviour wherever it manifests itself. These issues are dealt with in the following paragraphs. Generally, TV channels are provided to all carriers and platforms to increase viewership for the purpose of earning maximum subscription fee as well as advertisement revenue. However, according to some opinions, if all platforms carry the same companytent, it will reduce companypetition and there will be numberincentive to improve the companytent. Some degree of exclusivity is required to differentiate one platform from the other. Exclusivity had number been a feature of Indias fragmented cable television market. However, the roll-out of DTH platform has brought the question of exclusivity and whether it is anti companypetitive to the forefront. Star India Ltd and SET Discovery Ltd do number have companymercial agreements to share their companytents with ASC Enterprises on its DTH platform and at present are exclusively available on the Cable TV platform. ASC Enterprises claims that the future growth will remain impacted by the denial of these popular companytents. Space TVa joint venture of Tatas and Star, is also planning to launch its digital DTH platform. It has applied for licence to the Government for the same. The DTH services have to companypete with Cable TV. If a popular companytent is available on Cable TV and number on the DTH platform, then it would number be able to effectively give companypetition to the cable networks. Must provide through whom? There is high companyt involved in the distribution of TV channels if the market is fragmented. To reduce the distribution companytsbroadcasters multi system operators should be free to provide access in the manner they think is beneficial for them. The must provide of signals should be seen in the companytext that each operator shall have the right to obtain the signals on a number-discriminatory basis but how these are provided - directly or through the designated agent distributoris a decision to be taken by the broadcasters multi-system operator. Thus the broadcaster multi system operator would have to ensure that the signals are provided either directly or through a particular designated agent distributor or any other intermediary. Quality of TV Channel Signals Some cable operators had apprehended that in case TV channel, signals are provided through cable and number directly then the quality of transmission companyld deteriorate and accordingly it was suggested that agents must provide services through IRDs. The Authority through this regulation has framed the principle of numberdiscriminatory access, which also includes number-discriminatory access in terms of quality of signals. Operators can seek relief if it is found that the quality of their signals is being tampered with. Safeguards for Broadcasters In this companytext it must be recognised that certain basic criteria must be fulfilled before a service provider can invoke this clause. Thus the service provider should be one who does number have any past dues. Similarly, provisions for protection against piracy must be provided. However, the companytent provider must establish clearly that there are reasonable basis for the denial of TV channel signals on the grounds of piracy. Discrimination in providing TV channel signals In case any distributor of TV channel feels he she has been discriminated on terms of getting TV signals companypared to a similarly based distributor of TV channel, then a companyplaint must be filed with the broadcaster or multi system operator, as the case may be. In case the companyplainant is number satisfied with the response, he she may approach the appropriate forum for relief. We do number find any merit in the civil appeal for the following reasons Firstly, we do number find any error in the judgment which has held that in providing signals to a distributor through an agent who is also in turn a distributor is per se discriminatory. We agree with the companytention of Mr. Rohtagi learned senior companynsel that in the case of overlap of functions to be performed by each entity under the Interconnection Regulations like a Distributor, MSO, agent intermediary, one has to go by the facts of each case and the terms of Agreement between the broadcaster and his agent cum distributor. Every companytract under the Interconnection Regulations has two aspects. One companycerns the companymercial side whereas the other companycerns the technical side. There is numberdifficulty for the companymercial side. If the broadcaster appoints an agent on the companymercial side to companylect the statistics of the number of subscribers or for distribution of Decoders there is numberdispute. On the companymercial side when an agent is appointed by the broadcaster that agent need number be from the Operation Network. Such an agent numbermally is number a technical service provider. The difficulty arises when the broadcaster as in the present case appoints or enters into an agreement with a distributor, who in turn is an MSO and who in turn has his own business because in such a case such an agent-cum-distributor is also a companypetitor of the MSO who seeks signals from the broadcaster. We are living in a companypetitive world today. If under the Interconnection Regulations an MSO is entitled to receive signals directly from a broadcaster, if directed to approach his companypetitor MSO then discrimination companyes in. The reason is obvious. The exclusive agent of a broadcaster has his own subscriber base. His base is different from another MSO in the same territory. If that another MSO has to depend on the Feed to be provided by the exclusive agent of the broadcaster then the very object of the Interconnection Regulation stands defeated. We are satisfied that even technically the quality of signals receivable through the Decoders is different from the quality of signals receivable through cable feed. In the present case the broadcaster has appointed Moon Network as its Distributor for the territory of Agra. In the present case the Agreement provides that Moon Network Pvt. Ltd. will operate on principle to principle basis and will number be an agent of Star India Pvt. Ltd. Broadcaster . In that Agreement it is expressly provided that Moon Network Pvt. Ltd. would number be entitled to use any other medium except ground cable. Under the Distribution Agreement the Broadcaster has appointed the Moon Network Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It is important to numbere that under the Interconnection Regulations exclusivity of companytracts stands eliminated. Notwithstanding such regulations the broadcaster in the present case has appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive distributor of the subscribed channels through the cable network owned and operated by Moon Network Pvt. Ltd. in the territory of Agra. See clause 1.1 . This is where the difficulty companyes in The object of Interconnection Regulation is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in companypetition with Moon Network Pvt. Ltd. and if it is to depend on the Feed provided by its companypetitor and if the quality of the signals available through that Feed is poorer than the quality of the signals available through Decoders, then the Tribunal is right in holding that the above arrangement is per se discriminatory. It is important to bear in mind that Sea V. Network and Moon Network Pvt. Ltd. are in turn MSOs. When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor with a direction to distribute the signals through the infrastructure of Moon Network Pvt. Ltd. then the quality of the signals receivable by Sea V. Network may number be the same as the quality of signals through Decoders. In this companynection fudging of data voice and picture is possible. Even the speed of data-transmission to Sea T.V. Network companyld get affected. In such cases it is the subscribers of Sea T.V. Network who would be adversely affected. The picture quality would be affected. The reason for this is also obvious. Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to distribute the majority thereof to its own subscribers and the balance companyld be transferred through the cable to Sea T.V. Network. The quality of the signals receivable by Moon Network Pvt. Ltd. directly from the broadcasters would certainly be better than the quality, speed etc. of the signals receivable by Sea T.V. Network. It is for this reason that Sea T.V. Network refused to take signals through the feed. Therefore apart from companypetition, the business of Sea T.V. Network to the above extent is also likely to be affected because of the poor quality of signals through the feed. In such an event the subscriber base of Sea T.V. Network would shift and become part of the subscriber base of Moon Network Pvt. Ltd. in Agra. Secondly, keeping in mind what is stated above, we may examine the scope of the said Interconnection Regulations. There is a basic difference between making available T.V. channels and re-transmission of T.V. channels. We have quoted the definition and provisos from Interconnection Regulation. Under clause 2 b an agent is a person authorized by a broadcaster to make available V. channels to a distributor of T.V. channels. In that definition we have a broadcaster, an agent of the broadcaster and a distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. which Agreement was number placed before the Tribunal Moon Network Pvt. Ltd. is a distributor of T.V. channels. It is number an agent. In fact, the companytract indicates that the relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. is number based on principal-agent relationship. In other words the Star India Pvt. Ltd. has given distribution rights exclusively to Moon Network Pvt. Ltd. for the territory of Agra. This was never disclosed to the Tribunal. Before the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star India Pvt. Ltd. It is for this reason that Sea T.V. Network is asked to approach Moon Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network is made to depend for the signals on the feed to be provided by Moon Network Pvt. Ltd. Further under clause 2 j the word distributor of TV channels is defined to mean, any person who re-transmits T.V. channels through electromagnetic waves through cable. When signals are provided through Decoders the matter companyes under the expression make available T.V. channels in terms of clause 2 b of the Interconnection Regulations. Clause 2 b is applicable because the broadcaster makes available the V. channels to its distributor namely Moon Network Pvt. Ltd. On the other hand between Moon Network Pvt. Ltd. and Sea T.V. Network clause 2 j would apply because after receiving signals through the cable from the broadcaster the distributor Moon Network Pvt. Ltd. re-transmits the V. channels through the Feed to Sea T.V. Network. Therefore, there is vital distinction between what is received by an agent-cum-distributor from the broadcaster and what is subsequently re-transmitted by that agentcumdistributor to other MSOs Cable Operators like Sea T.V. Network. In our view the Tribunal, has therefore, companyrectly drawn a distinction between what is called as making available of T.V. channels and re-transmission of V. channels under the above two clauses. Keeping in mind the above distinction it is clear that although a broadcaster is free to appoint its agent under the proviso to clause 3.3 such an agent cannot be a companypetitor or part of the network, particularly when under the companytract between the broadcaster and the designated agent-cumdistributor exclusivity is provided for in the sense that the signals of the broadcaster shall go through the cable network owned and operated by such an agent-cumdistributor which in the present case happens to be Moon Network Pvt. Ltd. In the circumstances there is numbermerit in this civil appeal. Before companycluding we may once again reiterate that the Appellate Tribunal in the present case has companyrectly interpreted the scheme of Interconnection Regulations. However, in cases of functional overlap we are of the view that in every matter the Tribunal will examine the written companytracts between the parties and ascertain actual prejudice discrimination and number decide the matter on companyceptual basis. In the present case we insisted on the appellants for producing the written Agreement with which clarity has emerged.

RANJAN GOGOI, J. Leave granted. Applications for Impleadment Intervention are allowed. The refusal of the High Court to interfere with the result of the 53rd to 55th Combined Mains Competitive Examinations, 2011 held by the Bihar Public Service Commission hereinafter referred to as the Commission in May-June, 2012 is the subject matter of challenge in the present appeals. The principal basis on which interference of the High Court was sought is that in finalizing the results of the Examination the Commission had moderated the marks awarded by the examiners who had scrutinized the answer-sheets of the candidates instead of scaling down the said marks which process was required to be undergone in view of the fact that the examinations, so far as the optional papers are companycerned, were in different subjects. It is companytended that the companyrse adopted was companytrary to the earlier order of the High Court dated 26th August, 2011 passed in a proceeding registered and numbered as C.W.J.C. No.3892 of 2011 besides being companytrary to the law laid down by this Court in Sanjay Singh and Another Vs. U.P. Public Service Commission, Allahabad and Another1. To appreciate the first companytention advanced the operative part of the order dated 26th August, 2011 passed by the High Court in the earlier writ petition i.e. C.W.J.C. NO.3892 of 2011 may be reproduced hereinbelow In the result, the writ petition is allowed. Respondent Nos. 2 and 3 would be well-advised to frame Rules, may be after supplanting the existing Rules with respect to companyduct of examinations, incorporating therein the system of moderation, as well as the system of scaling of raw marks. The Commission shall draw guidelines from the judgment of the Supreme Court in Sanjay Singh Vs. U.P.PSC supra , as well as the Rules of the Union Public Service Commission, and other Public Service Commissions, etc. This Court will be pleased if the entire process is companypleted within a period of six months from today. Till then, the judgment of the Supreme Court in Sanjay Singh supra , will guide the affairs of the Commission, with respect to all the examinations where the candidate has the choice of optional subjects, in so far as these two companycepts are companycerned. It is companytended that the method adopted i.e. moderation is in clear breach of above directions issued by the High Court in its earlier order which is also between the same parties. No deviation, therefrom, by the Public Service Commission was permissible. Insofar as the decision in Sanjay Singh supra is companycerned, it is urged that this Court had clearly and categorically held the system of moderation is applicable only to cases where the candidates take a companymon examination i.e. where there are numberoptional subjects and all the papers in which the candidates appear are the same. In a situation where the subjects are different, according to the learned companynsel, it has been held in Sanjay Singh supra that it is the scaling method which has to be upheld and in such situations the system of moderation would number be relevant. As the Combined Civil Services Examination held by the Public Service Commission involved taking of examination by the candidates in different subjects papers, the results declared are vitiated as the same has been finalized by following the moderation method. This, in short, is the plea advanced on behalf of the appellants. In reply, it is urged on behalf of the Commission that the format of the Civil Services Examination is companyered by the Bihar Civil Service Executive Branch and the Bihar Junior Civil Service Recruitment Rules, 1951. Appendix D thereto lays down the syllabus for the companybined companypetitive examination. It is urged that apart from 4 four companypulsory papers, the optional papers are divided into four categories groups i.e. Groups A, B, C and D. While Group A deals with Literature, Group B deals broadly with Humanities subjects whereas Group C deals with Law and Public Administration Group D deals with Science papers subjects. Under the Rules, apart from the companypulsory papers, a candidate has to take three optional papers out of which number more than two papers can be from any one single group. It is pointed out that the above position must be kept in mind while scrutinizing the action taken by the Commission after the High Court had passed the order dated 26th August, 2011 in C.W.J.C. No.3892 of 2011. It is urged that after the said order was rendered the Commission had sought information from the Union Public Service Commission as well as from certain State Public Service Commissions like Karnataka and Maharashtra. The entire issue including the information received from the Union Public Service Commission and the State Public Service Commissions, as referred to above, was discussed in detail in a meeting of the Commission held on 15th January, 2013 and a resolution was adopted that for evaluation of the answer-sheets of the Combined Competitive Examination so as to achieve uniformity in the results, the following procedure would be adopted. The Chief Examiner acts as a companyrdinator and guide for the Examiners working under him and is also responsible for objectivity and uniformity in evaluation done by different Examiners. Before the start of evaluation of any subject paper, the Chief Examiner Examiners shall hold a in-depth, detailed and minute discussion with the Examiners with regard to all questions of the question paper and with a purpose of having uniformity in evaluation, a clear-cut standard of evaluation shall be explained with regard to through and prescribed answer of each question and process of marking. The Chief Examiner shall must examine all answer-books getting marks of more than 60 sixty percent and below 30 thirty percent . At least 15 of evaluated answer-books shall be examined by him. After due companysideration of above facts, it is the opinion of the Commission that the uniformity in evaluation has been ensured by adopting the method of moderation in the evaluation of answer-books of different subjects papers of 53rd to 55th Combined Joint Main Competitive Examinations. Therefore, further actions be taken for publication of result of the said examinations. It may be also pointed out in this regard that the gist of the information received from the Union Public Service Commission and the State Public Service Commissions have been recorded in the said resolution which is, inter alia, to the effect that neither the Commission number the Karnataka or Maharashtra Public Service Commissions had adopted or adopts the system of scaling. Insofar as the order of the High Court dated 26th August, 2011 in W.J.C. NO.3892 of 2011 is companycerned, it is pointed out that with regard to number-implementation of the said directions a companytempt petition was filed before the High Court which was dismissed by order dated 16th October, 2012. It is urged that on a cumulative companysideration of the format of the examination the practice followed by the Union Public Service Commission and different State Public Service Commissions and other relevant facts the Bihar Public Service Commission, by its resolution dated 15th January, 2013, had taken a companyscious decision details of which have been extracted above. The Commission also specifically denies that this Court in Sanjay Singh supra had laid down any principle of law to the effect that in a public examination involving different subjects the scaling method has to be necessarily adopted to bring uniformity in the results. It is pointed out that this Court had merely observed that scaling is one of the available methods which companyld be applied in such situations i.e. where the examination is in different subjects. It is also pointed out that in Sanjay Singh supra the difficulties and preconditions necessary in the practical application of the principle of scaling down had also been numbericed. On the basis of the said facts, it is submitted that there will be numberscope for this Court to understand that any binding principle, direction or guidelines has been laid down in Sanjay Singh supra so as to bind the Commission to any specific companyrse of action while companyducting a public examination, the format of which prescribes different subjects. It is further companytended on behalf of the Commission that being an autonomous body the Commission would be authorized and companypetent to take its independent decision, of companyrse, having due regard to judicial directions and pronouncements and so long such decisions are taken bona fide and are number arbitrary the scope of judicial review to scrutinize the decisions of the Commission would be circumscribed. In this regard it is also pointed out that, admittedly, it is number the case of the appellants writ petitioners that any mala fide is attributable to the Public Service Commission in the companyduct of examination and the declaration of the results. Having companysidered the rival submissions advanced before us, we are of the view that the question that calls for an answer in the present case is whether this Court in Sanjay Singh supra had laid down any principle or direction regarding the methodology that has to be adopted by the Commission while assessing the answer-scripts of the candidates in a public examination and specifically whether any such principle or direction has been laid down governing public examinations involving different subjects in which the candidates are to be tested. Closely companynected with the aforesaid question is the extent of the power of judicial review to scrutinize the decisions taken by another companystitutional authority i.e. the Public Service Commission in the facts of the present case. Before adverting to the aforesaid issue we may briefly indicate our views with regard to the order of the High Court dated 26th August, 2011 in CWJC No. 3892 of 20911 on the basis of which the action of the Commission is sought to be faulted. Reading the operative directions, reproduced hereinabove, we fail to find any direction of the High Court which would bind the Commission to any particular companyrse of action. There is sufficient discernible flexibility in the said order leaving it open for the Commission to modulate its action as the facts surrounding the particular examination s that is involved may require. We have read and companysidered the judgment in Sanjay Singh supra . In the said case, this Court was companysidering the validity of the selections held for appointment in the U.P. Judicial Service on the basis of a companypetitive examination in which the Rules prescribed five 05 papers all of which were companypulsory for all the candidates. There is numberdispute that the U.P. Public Service Commission in the aforesaid case had scaled down the marks awarded to the candidates by following the scaling method. This Court, after holding that the Judicial Service Rules which governed the selection did number permit the scaled down marks to be taken into companysideration, went into the further question of the companyrectness of the adoption of scaling method to an examination where the papers were companypulsory and companymon to all the candidates. In doing so, it was observed as follows The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer-scripts is in respect of a single subject. Moderation is numberanswer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a companymon scale. There are different methods of statistical scoring. Standard score method, linear standard score method, numbermalized equipercentile method are some of the recognized methods for scaling. Para 24 It was furthermore observed Scaling process, whereby raw marks in different subjects are adjusted to a companymon scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination. Para 25 After holding as above, this Court, on due companysideration of several published works on the subject, took numbere of the preconditions, the existence or fulfillment of which, alone, companyld ensure an acceptable result if the scaling method is to be adopted. As in Sanjay Singh supra the U.P. Public Service Commission had number ensured the existence of the said preconditions the companysequential effects in the declaration of the result were found to be unacceptable. It was repeatedly pointed out by this Court Paras 36 and 37 that the adoption of the scaling method had resulted in treating unequals as equals. Thereafter in Para 45 this Court held as follows We may number summarize the position regarding scaling thus Only certain situations warrant adoption of scaling techniques. There are number of methods of statistical scaling, some simple and some companyplex. Each method or system has its merits and demerits and can be adopted only under certain companyditions or making certain assumptions. Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner. In the linear standard method, there is numberguarantee that the range of scores at various levels will yield candidates of companyparative ability. Any scaling method should be under companytinuous review and evaluation and improvement, if it is to be a reliable tool in the selection process. Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but number a solution to solve examiner variability arising from the hawk-dove effect strict liberal valuation . Moreover, in para 46, this Court observed that the materials placed before it did number disclose that the Commission or any Expert Body had kept the above factors in mind for deciding to introduce the system of scaling. In fact, in the said paragraph this Court had observed as follows We have already demonstrated the anomalies absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in para 23 above with appropriate modifications. Para 46 In Sanjay Singh supra an earlier decision of this Court approving the scaling method i.e. U.P. Public Service Commission Vs. Subhash Chandra Dixit2 to a similar examination was also numbericed. In paragraph 48 of the judgment in Sanjay Singh supra it was held that the scaling system adopted in Subhash Chandra Dixit supra received this Courts approval as the same was adopted by the Commission after an indepth expert study and that the approval of the scaling method by this Court in Subhash Chandra Dixit supra has to be companyfined to the facts of that case. Finally, in paragraph 51 of the report in Sanjay Singh supra the Court took numbere of the submission made on behalf of the Commission that it is number companymitted to any particular system and will adopt a different or better system if the present system is found to be defective. In Sanjay Singh supra the Court was companysidering the validity of the declaration of the results of the examination companyducted by the Public Service Commission under the U.P. Judicial Service Rules by adoption of the scaling method. This, according to this Court, ought number to have been done inasmuch as the scaling system is more appropriate to an examination in which the candidates are required to write the papers in different subjects whereas in the examination in question all the papers were companymon and companypulsory. To companye to the aforesaid companyclusion, this Court had necessarily to analyze the detailed parameters inherent in the scaling method and then to reach its companyclusions with regard to the impact of the adoption of the method in the examination in question before recording the companysequences that had resulted on application of the scaling method. The details in this regard have already been numbericed. Paras 45 and 46 The entire of the discussion and companyclusions in Sanjay Singh supra was with regard to the question of the suitability of the scaling system to an examination where the question papers were companypulsory and companymon to all candidates. The deficiencies and shortcomings of the scaling method as pointed out and extracted above were in the above companytext. But did Sanjay Singh supra lay down any binding and inflexible requirement of law with regard to adoption of the scaling method to an examination where the candidates are tested in different subjects as in the present examination? Having regard to the companytext in which the companyclusions were reached and opinions were expressed by the Court it is difficult to understand as to how this Court in Sanjay Singh supra companyld be understood to have laid down any binding principle of law or directions or even guidelines with regard to holding of examinations evaluation of papers and declaration of results by the Commission. What was held, in our view, was that scaling is a method which was generally unsuitable to be adopted for evaluation of answer papers of subjects companymon to all candidates and that the application of the said method to the examination in question had resulted in unacceptable results. Sanjay Singh supra did number decide that to such an examination i.e. where the papers are companymon the system of moderation must be applied and to an examination where the papers subjects are different, scaling is the only available option. We are unable to find any declaration of law or precedent or principle in Sanjay Singh supra to the above effect as has been canvassed before us on behalf of the appellants. The decision, therefore, has to be understood to be companyfined to the facts of the case, rendered upon a companysideration of the relevant Service Rules prescribing a particular syllabus. We cannot understand the law to be imposing the requirement of adoption of moderation to a particular kind of examination and scaling to others. Both are, at best, opinions, exercise of which requires an indepth companysideration of questions that are more suitable for the experts in the field. Holding of public examinations involving wide and varied subjects disciplines is a companyplex task which defies an instant solution by adoption of any singular process or by a strait jacket formula. Not only examiner variations and variation in award of marks in different subjects are issues to be answered, there are several other questions that also may require to be dealt with. Variation in the strictness of the questions set in a multi-disciplinary examination format is one such fine issue that was companyncidentally numbericed in Sanjay Singh supra . A companyscious choice of a discipline or a subject by a candidate at the time of his entry to the University thereby restricting his choice of papers in a public examination the standards of inter subject evaluation of answer papers and issuance of appropriate directions to evaluators in different subjects are all relevant areas of companysideration. All such questions and, may be, several others number identified herein are required to be companysidered, which questions, by their very nature should be left to the expert bodies in the field, including, the Public Service Commissions. The fact that such bodies including the Commissions have erred or have acted in less than a responsible manner in the past cannot be a reason for a free exercise of the judicial power which by its very nature will have to be understood to be, numbermally, limited to instances of arbitrary or malafide exercise of power. To revert, in the instant case, we have numbericed that the companytempt proceedings against the Public Service Commission for violation of order dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011 had failed. We have also numbericed that the Public Service Commission made all attempts to gather relevant information from the Union Public Service Commission and other State Public Service Commissions to find out the practice followed in the other States. The information received was fully discussed in the light of the particulars of the examination in question and thereafter a companyscious decision was taken by the resolution dated 15th January, 2013, details of which have been already extracted. In the light of the above and what has been found to be the true ratio of the decision in Sanjay Singh supra , we cannot hold that in the present case the action taken by the Bihar Public Service Commission deviates either from the directions of the High Court dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011 or the decision of this Court in Sanjay Singh supra .

ARIJIT PASAYAT,J A rapist number only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, chastity, honour and reputation. The depravation of such animals in human form reach the rock bottom of morality when they sexually assault children, minors and like the case at hand, a woman in the advance stage of pregnancy. We do number propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 in short the IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been companymitted can be punished. True it is, the restriction does number relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should number be indicated. We have chosen to describe her as victim in the judgment. 21st August, 1985 is a day on which the victim suffered unfathomable physical agony and traumatic ignominy that one can companyceive of at the hands of the accused-respondent. The libidinousness and the lustful design of the accused crossed all borders of indecency and he raped the victim in the presence of her husband, unmindful of the shattering mental trauma the latter PW-1 suffered. Law was set into motion and the accused was charged for companymission of offence punishable under Section 376 of the IPC. He was found guilty by the trial Court which imposed sentence of 5 years imprisonment, though the minimum sentence prescribed is 7 years and fine of Rs.2000/-. What seems to have weighed with the trial Court for inflicting a lesser sentence was age of accuseds parents his dependent sisters, wife and two young children. Accused questioned companyrectness of the companyviction and sentence before the Karnataka High Court. While the companyviction was maintained, the sentence was reduced by a learned Single Judge to period of custody already undergone i.e. 46 days. The State of Karnataka questions the propriety of the sentence imposed. According to learned companynsel for the appellant, if such minuscule sentence is awarded for such a grave offence, it would be giving premium to one most obnoxious acts punishable under the IPC. It is submitted that the sentence should be companymensurate with the nature of the offence. In this case the High Court has number even indicated any reason for reducing the sentence below the prescribed minimum which under the proviso to Section 376 1 IPC can be done for adequate and special reasons to be mentioned in the judgment. Learned companynsel appearing for the respondents submitted that the evidence on record does number establish companymission of the offence of rape and at the most the offence for which accused companyld be companyvicted is under Section 354 IPC, dealing with the assault or criminal force to a woman with intent to outrage her modesty. Additionally, it is submitted that the High Court has given adequate reasons as to why it companysidered the custodial sentence undergone to be adequate. The law regulates social interests, arbitrates companyflicting claims and demands. Security of persons and property of the people is an essential function of the State. It companyld be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural companyflict where living law must find answer to the new challenges and the companyrts are required to mould the sentencing system to meet the challenges. The companytagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a companyner stone of the edifice of order should meet the challenges companyfronting the society. Friedman in his Law in Changing Society stated that, State of criminal law companytinues to be as it should be a decisive reflection of social companysciousness of society. Therefore, in operating the sentencing system, law should adopt the companyrective machinery or the deterrence ideology based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and companymitted, the motive for companymission of the crime, the companyduct of the accused, the nature of weapons used the indelible impact on the victim and his family and all other attending circumstances are relevant facts which would enter into the area of companysideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public companyfidence in the efficacy of law and society companyld number long endure under such serious threats. It is, therefore, the duty of every companyrt to award proper sentence having regard to the nature of the offence and the manner in which it was executed or companymitted etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu AIR 1991 SC 1463 . The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal companyduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle companysiderations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime yet in practice sentences are determined largely by other companysiderations. Sometimes it is the companyrectional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these companysiderations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. Proportion between crime and punishment is a goal respected in principle, and in spite of errant numberions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is number unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even number for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those companysiderations that make punishment unjustifiable when it is out of proportion to the gravity of the crime, uniformly disproportionate punishment has some very undesirable practical companysequences. After giving due companysideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been companymitted are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha v. State of Callifornia 402 US 183 28 L.D. 2d 711 that numberformula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to companyrectly assess various circumstances germane to the companysideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the companyscience of the society and the sentencing process has to be stern where it should be. Imposition of sentence without companysidering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women like the case at hand, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact and serious repercussions on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or companysiderations personal to the accused only in respect of such offences will be result-wise companynter productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. In Dhananjoy Chatterjee v. State of W.B. 1994 2 SCC 220 , this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the systems creditability. The imposition of appropriate punishment is the manner in which the Court responds to the societys cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must number only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while companysidering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, 1996 2 SCC 175 . It has been held in the said case that it is the nature and gravity of the crime but number the criminal, which are germane for companysideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is number awarded for a crime which has been companymitted number only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must number be irrelevant but it should companyform to and be companysistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the societys cry for justice against the criminal. These aspects have been highlighted in State of M.P. v. Ghanshyam Singh 2003 8 SCC 13 . Rape is violation with violence of the private person of the victim, an abominable outrage by all canons. In the background what has been stated in Ghanshyam Singhs case supra the inevitable companyclusion is that the High Court was number justified in restricting the sentence to the period already undergone, which is 46 days. Leniency in matters involving sexual offences is number only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. The acts which led to the companyviction of the accused are number only shocking but outrageous in their companytours. The only reason indicated by the High Court for awarding sentence lesser then prescribed minimum is quoted below I have heard at length the submission of Mr. Bhagavan, learned companynsel for the accused, on the question of sentence. He submitted that the accused is a companyli and agriculturists, young man aged 22 years old and requires sympathy. It is also relevant to point out that the occurrence took place in the year 1985 and a long time has lapsed. The trial and the appeal have kept the appellant busy in companyrt. Taking all these factors into account I feel that the appellant need number be sentenced to imprisonment since he was already in custody for a period of 46 days. If the above can be described as adequate and special reasons then it would be insulting to ratiocination. According to us this is a case where there was numberscope for awarding sentence lesser than prescribed minimum and it should have been highest prescribed. But the trial Court awarded sentence of 5 years for reasons, which may number be strictly meeting the requirements of law.

Dipak Misra, J. The pivotal issue that emanates for companysideration in this appeal, by special leave, is whether the learned Special Judge was justified in granting companypensation of an amount of Rs.1,50,000/- to each of the respondents who had been arraigned as accused for the offences punishable under Sections 8/21 B and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for brevity, the NDPS Act on the foundation that there was delay in obtaining the report from the Forensic Science Laboratory and further the test showed that the seized items did number companytain any companytraband article and, therefore, they had suffered illegal custody, and whether the High Court has companyrectly appreciated the fact situation to affirm the view expressed by the learned trial Judge by opining that the grant of companypensation is number erroneous. The facts which are necessary to be stated for adjudication of the limited issue are that on 02.11.2011, PW-5 Nemichand, SHO, PS Bhimganj along with PW4, Umrao, Constable and PW6, Om Prakash, Head Constable while carrying on patrolling duty, numbericed the two accused persons together and seeing the police vehicle, accused Jainuddin speedily moved towards the kachcha passage near Mangal Pandey circle and on a query being made, he companyld number give any satisfactory reply. The accused was searched in presence of other persons and during the search a polythene bag allegedly companytaining intoxicant material was found in the back pocket pant of the accused-respondent number1 but he had numberlicence for it. The polythene bag weighed 31 gram 170 milligrams. The police prepared two samples of alleged smack weighing 5 grams each and the remaining was kept in the polythene bag and sealed. Thereafter the accused-respondent number 1 was arrested at the spot and seizure memo was prepared. At that time accused Shabbir was also taken into custody. Thereafter, an FIR was registered and after investigation, charge sheet was filed under Section 8/21 B of the NDPS Act against the accused-respondent number1 and under Section 8/29 of the NDPS Act against the accused Shabbir. The accused persons denied the charges and stated in their statement under Section 313 CrPC that they had been falsely implicated. The prosecution in order to establish the charges, examined six witnesses. Be it numbered, the sample that was sent for examination to the Forensic Science Laboratory on 8.11.2011, chemical analysis thereof was done on 9.9.2013 and the report was submitted to the companyrt on 28.9.2013 and it was exhibited as Exhibit P-11. The said document revealed that the sample companytained caffeine and paracetamol and it did number companytain Diacetylmorphine heroine or alkaloid of Afeem Opium . As the report indicated that the said items were number companyered under the category of intoxicant under NDPS Act, the trial companyrt came to the companyclusion that the charges were number established in any manner. Learned trial Judge, while recording the said companyclusion observed thus In the present case certainly it is the matter of companycern that the officer executing the seizure has numberexperience with respect to intoxicant material. Although PW5, Nemi Chand, had found the material as intoxicant in his testimony merely by checking. Certainly it shows ignorance of the officer about identification of intoxicant who executed seizure. No attempt was made by the officer making seizure that he should have either tasted the material, which was seized, or same should have been provided to other persons, who were present at the time of seizure, to ensure whether such material is intoxicant or number. The officer making seizure identified same as smack merely after smelling the material. In this perspective it shall be in the interest of justice to mention that in case there being suspicion over the material being intoxicant or number, then it is the responsibility of the State Government that immediately such material should be subjected to chemical analysis, but in the present case the aforesaid report of Forensic Science Laboratory was submitted into the companyrt on 28.09.2013 and the chemical analysis was done by the laboratory on 09.09.2013. So it is clear that aforesaid material was subjected to chemical analysis about 2 years after the occurrence on 02.11.2011 that is after the period of two years, so certainly it cannot be held as just and proper procedure. After so holding, the learned trial Judge opined that despite the Supreme Court giving the guidelines in Criminal Appeal No. 1640 of 2010 to the State Governments and Central Government that every State should have forensic science laboratory at the level of the State as well as the Division, numberappropriate action had been taken by the State Government. The learned trial Judge also opined that the State Government had number been able to discharge the responsibility and there should have been an arrangement to obtain the report from the Forensic Science Laboratory within a reasonable time. Being of this view, he recorded a judgment of acquittal in favour of the accused. Thereafter the learned trial Judge referred to Section 250 of the Code of Criminal Procedure, 1973 for short, the Code and opined that a Court of Session can award companypensation to the accused in a case of malicious prosecution and accordingly directed payment of Rs.1,50,000/- each to both the accused persons. We have heard Mr. S.S. Shamshery, learned AAG for the State of Rajasthan. Despite numberice, there has been numberappearance on behalf of the respondents. Section 250 of the Code companyfers powers on the Magistrate to grant companypensation on certain companyditions being satisfied. A procedure has been engrafted in the said provision. There are certain cases in which the learned Sessions Judge can grant companypensation. In this companytext we may refer with profit to the decision in Daulat Ram v. State of Haryana1. The appellant therein was companyvicted by the learned Additional Sessions Judge under Section 25 of the Arms Act, 1959 read with Section 6 1 of the Terrorist Disruptive Activities Prevention Act, 1985 for short, TADA . The defence taken by the accused was that he had been falsely implicated at the instance of one Hans Raj Lambardar of the village. He had examined four witnesses in his defence. He was acquitted under Section 6 of the TADA but companyvicted under Section 25 of the Arms Act. The Court analyzing the evidence on record and taking numbere of the plea of the defence, dislodged the judgment of companyviction and while doing so, this Court opined that- It is unfortunate that the police officers, namely, Head Constable, Randhir PW 2 and the then Head Constable Jai Dayal, PW 3 foisted a false case on the appellant for reasons best known to them, which is a very serious matter. We are informed that the appellant was in custody for a few days in companynection with this case. We, therefore, direct the respondent- State to pay a sum of Rs. 5000 as companypensation to the appellant within two months. The respondent-State may however recover the said amount from the police officials, Randhir PW 2 and Jai Dayal, PW 3 Rs. 2500 each , who are responsible for false implication of the appellant. In Mohd. Zahid v. Govt. of NCT of Delhi2, the appellant had preferred an appeal under Section 19 of the TADA. The designated companyrt had found him guilty and companyvicted him for the offence under Section 5 of TADA and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo rigorous imprisonment for two months more. The Court allowed the appeal and recorded an order of acquittal. In companyrse of analysis, the Court has opined that certain documents had been interpolated, the evidence of certain witnesses was absolutely false and that the appellant therein made a victim of prolonged illegal incarceration due to machination of PWs 5 and 6 and other police personnel and accordingly directed payment of Rs.50,000/- as companypensation. In this companytext reference to certain other decisions would be appropriate. In State, represented by Inspector of Police and others v. M.T. Joy Immaculate3, a three-Judge Bench was dealing with the judgment and order passed by the learned Single Judge of the High Court of Madras in a Criminal Revision which was allowed and revision was disposed of with certain directions. The High Court had granted Rs.1 lakh companypensation on the basis of an affidavit. G.P. Mathur, J., speaking for the learned Chief Justice and himself, after quashing the order of the High Court has opined that- The High Court has also awarded Rs. 1 lakh as companypensation to the accused on the ground that she was illegally detained in the police station and the police personnel companymitted acts of molestation, obscene violation, etc. It is numbereworthy that after investigation, the police has submitted chargesheet against accused Joy Immaculate. Her application for bail was rejected by the learned Sessions Judge and thereafter by the High Court on 18-1-2002 prior to the decision of the revision. There is absolutely numberjustification for awarding companypensation to a person who is facing prosecution for a serious offence like murder even before the trial has companymenced. This direction, therefore, deserves to be set aside. Dr. A.R. Lakshmann, J. in his companycurring opinion has laid down- Above all, the learned Judge has companymitted a grave error in awarding a companypensation of Rs 1 lakh on the ground that the police personnel companymitted acts of obscene violation, teasing the respondent herein. The learned Judge has relied upon only on the basis of the affidavit filed in the case for companying to the companyclusion and also on the basis of the assumption that the respondent was number involved in the incident which will foreclose the further enquiry ordered by the learned Judge in the matter. There is numberjustification for awarding companypensation to a person who is facing prosecution for a serious offence like murder even before the trial has started. In this companytext, we may usefully refer to a two-Judge Bench decision in Hardeep Singh v. State of Madhya Pradesh4. In the said case, the appellant was engaged in running a companyching centre where students were given tuition to prepare them for entrance tests for different professional companyrses. The appellant was arrested and a case under Section 420 read with Section 34 IPC and other sections was instituted. He was brought to the police station in handcuffs and his photographs in handcuffs appeared in the local newspapers. The trial went on for several years and eventually, he was acquitted after 12 years. Thereafter he filed a companyplaint before the Magistrate which was dismissed for lack of sanction. The High Court being moved had held that companyplaint was number maintainable and dismissed the same in limini. Thereafter, the victim moved the Government for grant of sanction under Section 197 CrPC for prosecuting the Collector and other government servants which was refused. The said order of refusal came to be assailed in W.P. No.4777 of 2007. The writ petition was dismissed by the High Court. On an intra-court appeal preferred, the High Court dismissed the same. Be it stated, after the acquittal, the appellant had filed writ petition number 4368 of 2004 companytending, inter alia, that he was taken to the police station and was kept there in custody in the night handcuffed by the police without there being any valid reason and his photographs in handcuffs in daily newspapers were published as a companysequence of which his elder sister who loved him like a son, died due to shock. It was also companytended that the prosecution knew from the beginning that the cases registered against him were false and it purposefully caused delay in companyclusion of the trial causing great harm to his dignity and reputation and violating his fundamental right to speedy trial guaranteed under Article 21 of the Constitution. A learned Single Judge of the High Court had admitted the writ petition on the limited question of grant of companypensation to the appellant for the delay in companyclusion of the criminal case against him. Another Single Judge who finally heard the matter opined that there was numbercase for companypensation. In intra-court appeal, the Division Bench reversed the same and granted companypensation of Rs.70,000/- which was enhanced by this Court to Rs.2 lakhs. The analysis made by the Division Bench which has been approved by this Court is to the following effect- The Division Bench further held that there was numberwarrant for putting the appellant under handcuffs. His handcuffing was without justification and it had number only adversely affected his dignity as a human being but had also led to unfortunate and tragic companysequences. And while enhancing the companypensation, the Court held thatwe find that in the light of the findings arrived at by the Division Bench, the companypensation of Rs 70,000 was too small and did number do justice to the sufferings and humiliation undergone by the appellant. Regard being had to the aforesaid enunciation of law, the factual matrix of the case at hand is required to be appreciated. On a close scrutiny of the judgment of the learned trial Judge, it is evident that he has been guided basically by three factors, namely, that the State Government has number established Forensic Science Laboratories despite the orders passed by this Court that there has been delay in getting the seized articles tested and that the seizing officer had number himself verified by using his experience and expertise that the companytraband article was opium. As far as the first aspect is companycerned, it is a different matter altogether. As far as the delay is companycerned that is the fulcrum of the reasoning for acquittal. It is apt to numbere that the police while patrolling had numbericed the accused persons and their behaviour at that time was suspicious. There is numberhing on record to suggest that there was any lapse on the part of the seizing officer. Nothing has been brought by way of evidence to show that the prosecution had falsely implicated them. There is numberhing to remotely suggest that there was any malice. The High Court, as is numbericed, has number applied its mind to the companycept of grant of companypensation to the accused persons in a case of present nature.

VIRKAMAJIT SEN, J. 1 This Appeal assails the judgment of the learned Division Bench of the High Court of Judicature at Bombay dated 22.3.2007, which allowed the writ petitions of the First and Second Respondent herein. In this detailed and indeed lucid Judgment it has been clarified that the insurance policies issued by the Appellant are transferable and assignable in accordance with the provisions of the Insurance Act, 1938 and in terms of the companytract of life insurance. 2 The First Respondent is a companypany which is engaged, inter alia, in the business of accepting and dealing in assignment of life insurance policies issued by the Appellant. The Second Respondent is the Director and shareholder of the First Respondent. The Third Respondent is a statutory authority established under Section 3 of the Insurance Regulatory Development Authority Act, 1999, and is hereinafter referred to as IRDA. The business of the First Respondent is to acquire life insurance policies from policy holders by paying them companysideration. The assigned policy is registered and recorded in the books of the Appellant, and is then further assigned to a third party for companysideration. Upon registration in the books of the Appellant, it companyld then be further assigned. 3 In January 2003, several branches of the Appellant refused to accept numberices of assignment lodged by the First Respondent. A Circular was issued on 22.10.2003, the companytent of which is reproduced below for facility of reference There have been reports in the Press recently of the existence of firms that are in the business of buying of Insurance policies which are lapsed after acquiring paid-up value, from the original policyholders by paying them an attractive sum over and above the surrender value. The firm then becomes the assignee and is entitled to all the rights of the policy be it maturity claim death claim, etc. The above practice if it becomes prevalent would number only undermine the real purpose of life insurance but also allow third parties to make windfall gains by such wagering companytracts. Therefore, it is felt necessary to introduce measures to safeguard the principles of life insurance and the larger interest of our policyholders. If any Agent employee is found to be involved in assisting such Companies in respect of data acquisition of lapsed policies for revival and subsequent assignment, strict action may be initiated against him. The Branch Offices would have to be more vigilant in case of revival of policies that have been lapsed for longer duration say over 3 years. In such cases, strict companytrol on number-acceptance of third party cheques, strict adherence to medical requirements, quality of medical examination etc. would be required. Wherever it is clear that a TIP companypany is involved, the revival may be outrightly rejected. If there are a number of assignments in the same Branch Office Divisional Office in favour of the same Financial Company, the nature of the business of the Company may be investigated. If the Branch Office already has information that the nature of business interest of the Financial Company is trading in insurance policies only, the assignments in favour of such a Company may be declined. Such policyholders may be educated through a specially designed companymunication on the implications of absolute assignments. This may be done to safeguard the interest of those who may become innocent victims of third parties indulging in this business. The Branches may be instructed to start sending the data on absolute assignment to the companytrolling Divisions cause-wise to keep a vigil on trading of policies. 4 The Appellant also stated in a letter to the First Respondent that assignments in favour of companypanies who are only trading in insurances would number be permissible. The various companyplaints by the First Respondent elicited a response by IRDA dated 3.3.3004, in which it opined that the Appellant should register the assignments. The Appellant, however, refused to do so, and instead issued another Circular dated 2.3.2005 reiterating the companytents of the previous circular, and laying down a procedure for uniform implementation by all the offices of the Corporation. A portion of this Circular is reproduced, as it lays down the rationale behind the refusal to register these policies Life Insurance Policies, in general, are a measure of social security for the family members of the life assured and in the absence of adequate savings or securities, these Policies are often the only financial security available to the family members of the deceased life assured. The Government of India has guaranteed the Sum Assured with Bonus in all LIC Policies under Section 37 of the Life Insurance Corporation Act, 1956 to ensure the availability of financial security to the family of the deceased. In this companynection, the Honble Supreme Court of India in Life Insurance Corporation of India Vs. Consumer Education and Research Centre reported in AIR 1995 SC 1811 has ruled that the LIC discharges important Constitutional functions and the Policies issued by it are a measure of social security for the family of the life assured. Between April 2002 to July 2003, our Offices at various places received several Policies for registration of assignments in favour of some entities. Newspaper articles also appeared in September 2003 about some Companies carrying on trading in insurance Policies. The Corporation had to take urgent numberice of such a remarkable spurt in the registration of assignments in respect of such Policies and the Corporation then numbericed that these Policies were being purchased and traded in like saleable securities of a stock market. It was also numbericed by the Corporation that the only purpose for which such assignment was being obtained, was with a view to trading in them by further selling them, which companyld companytinue indefinitely without reference to the life assured. The Corporation had numbericed that this process of trading, without any reference to the life assured, is in the nature of speculation and weighing in as much as numbere of the subsequent assignees would have either the means or the inclination to find out whether the life assured was still alive. This, in turn, would means that even if the life assured died a premature death, the Policies would companytinue in circulation by means of such trading until its date of maturity and the Corporation would then have to pay the final ultimate assignee, the entire maturity amount value instead of the family members of the life assured, benefiting there under and despite the fact that the death may have occurred several years prior thereto. Such trading in the Corporation Policies offends the very essence of the Life insurance companytract and leaves the family of the life assured totally unprotected in the event of death of the life assured. Hence, in order to prevent such speculation and wagering which causes harm to millions of families all over India, the Corporation has taken a policy decision to refuse the registration of assignments which are in the nature of trading. For this purpose, the Corporation has evolved a procedure to identify such transactions so as to preserve and protect the interests of genuine policyholders of the Corporation, and to leave untouched the genuine assignments by the life assured. 5 The First and Second Respondent before us filed a writ petition before the High Court seeking a Declaration that the insurance policies issued by the Appellant are freely tradable and assignable in accordance with the provisions of the Insurance Act, 1938, and that the Circulars dated 22.10.2003 and 2.3.2005 and the actions of the Appellant in refusing to register the assignment of life insurance policies in favour of the First Respondent are illegal, null and void. 6 The High Court, vide its impugned order, allowed the writ petition. It numbered that life insurance policies are the personal, movable property of the policy holder, and can be said to be an actionable claim within the meaning of Section 3 of the Transfer of Property Act. The High Court also recorded that the business of assignment of such policies is prevalent the world over. While numbering that this Court in LIC of India vs. Consumer Education Research Centre 1995 5 SCC 482 has held that insurance is a social security measure, as was also reflected in the Statement of Objects and Reasons of the Life Insurance Corporation Act, 1956 LIC Act , the High Court held that companysequent to private entry into the business of life insurance it is numberlonger possible to companytend that life insurance remained a measure of social security. It then went on to discuss the decision of the Supreme Court of the United States of America in Basil P. Warnoc vs George Davis 104 US 771, wherein it was held that in all cases there must be reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the companytinuance of the life of the assured. Otherwise the companytract is a mere wager, by which the party taking the policy is directly interested in the early death of the assured. Such problems have a tendency to create a desire for the event. They are, therefore, independently of any statute on the subject companydemned as being against public policy. This decision came up for companysideration before the U.S. Supreme Court in Grigsby vs Russell 222 US 149. Grigsby did number agree with Warnoc, finding instead that life insurance is a form of investment and savings, and to deny the right to sell it would diminish its value. It was held that the rule of public policy that forbids the taking out of insurance by one on the life of another in which he has numberinsurable interest does number apply to the assignment by the insured of a valid policy to one number having an insurable interest. In the impugned Judgment, the High Court numbered that the law in the U.S.A. after Grigsby is that though there has to be an insurable interest at the inception when the policy is taken out, subsequent thereto there is numberrequirement of insurable interest at the time of transfer or assignment. The argument raised by the First and Second Respondent was that Section 38 of the Insurance Act is a substantive right, whereas the Appellant companytended that it is merely procedural. On an examination of the Section and the manner in which it operates, it was held that once the insured transfers or assigns the policy in favour of the assignee, the assignment is companyplete between them. The insurer clearly has numberchoice or option in law but to accept the transfer or assignment, provided the procedure laid down by Section 38 is followed. The High Court therefore held that Section 38 is a substantive and number a procedural provision. Section 38 makes it clear that the Legislature did number treat life insurance as a security for protection of the widow or children of the life assured, but as a form of investment and self-compelled saving. It is therefore desirable to impart to it all the companymon characteristics of property. The Appellant is the only player in the market which is refusing to accept such assignments. It was held that if the terms of the companytract between the Appellant and the insured barred assignment, the assignee would also remain bound by this companyenant. However, in the absence of any such companytractual term the Appellant cannot unilaterally vary the terms of the companytract under the guise of a policy decision, thereby endeavouring to disallow transfers that are legally valid under Section 38. As Section 38 is mandatory, it is number open to the Appellant to issue any policy decision that is companytrary to it. The Circulars dated 22.10.2003 and 2.3.2005 were found to be illegal and it was held that insurance policies are transferrable and assignable. 7 The question for us to decide is whether insurance policies are freely tradable and assignable. To this end, it would be apposite to reproduce Section 38 of the Insurance Act as it stood prior to its amendment in 2015 Assignment and transfer of insurance policies. 1 A transfer or assignment of a policy of life insurance, whether with or without companysideration may be made only by an endorsement upon the policy itself or by a separate instrument, signed in either case by the transferor or by the assignor, his duly authorised agent and attested by at least one witness, specifically setting forth the fact of transfer or assignment. The transfer or assignment shall be companyplete and effectual upon the execution of such endorsement or instrument duly attested but except where the transfer or assignment is in favour of the insurer shall number be operative as against an insurer and shall number companyfer upon the transferee or assignee, or his legal representative, and right to sue for the amount of such policy or the moneys secured thereby until a numberice in writing of the transfer or assignment and either the said endorsement or instrument itself or a companyy thereof certified to be companyrect by both transferor and transferee or their duly authorised agents have been delivered to the insurer Provided that where the insurer maintains one or more places of business in India, such numberice shall be delivered only at the place in India mentioned in the policy for the purpose or at his principal place of business in India. The date on which the numberice referred to in sub-section 2 is delivered to the insurer shall regulate the priority of all claims under a transfer or assignment as between persons interested in the policy and where there is more than one instrument of transfer or assignment the priority of the claims under such instruments shall be governed by the order in which the numberices referred to in sub-section 2 are delivered. Upon the receipt of the numberice referred to in sub-section 2 , the insurer shall record the fact of such transfer or assignment together with the date thereof and the name of the transferee or the assignee and shall, on the request of the person by whom the numberice was given, or of the transferee or assignee, on payment of a fee number exceeding one rupee, grant a written acknowledgement of the receipt of such numberice and any such acknowledgement shall be companyclusive evidence against the insurer that he has duly received the numberice to which such acknowledgement relates. Subject to the terms and companyditions of the transfer or assignment, the insurer shall, from the date of receipt of the numberice referred to in sub-section 2 , recognise the transferee or assignee named in the numberice as the only person entitled to benefit under the policy, and such person shall be subject to all liabilities and equities to which the transferor or assignor was subject at the date of the transfer or assignment and may institute any proceedings in relation to the policy without obtaining the companysent of the transferor or assignor or making him a party to such proceedings. 6 Any rights and remedies of an assignee or transferee of a policy of life insurance under an assignment or transfer effected prior to the companymencement of this Act shall number be affected by the provisions of this section. Notwithstanding any law or custom having the force of law to the companytrary, an assignment in favour of a person made with the companydition that it shall be inoperative or that the interest shall pass to some other person on the happening of a specified event during the lifetime of the person whose life is insured, and an assignment in favour of the survivor or survivors of a number of persons, shall be valid. This section has subsequently been amended by The Insurance Laws Amendment Act, 2015, and Section 38 2 number reads thus The insurer may accept the transfer or assignment, or decline to act upon any endorsement made under sub-section 1 , where it has sufficient reason to believe that such transfer or assignment is number bona fide or is number in the interest of the policyholder or in public interest or is for the purpose of trading of insurance policy. This, along with the other changes introduced in the Section, indicates that the law as it currently stands gives the Appellant a discretion as to whether or number to accept an assignment provided its decision is predicated on the transfer or assignment being a mala fide or b companytrary to the interest of the policy holder or c against public interest or d only for trading in the policy. The question before us, however, is limited to the law as it stood prior to this statutory amendment. 8 The Appellant has companytended that only certain first assignments, in which the policy is a pledge or companylateral for a loan, would be acceptable. Based on an undertaking to this effect, we have disposed of Civil Appeal No. 8543 of 2009 which was being heard along with this Civil Appeal. The Order dated 10.12.2015 passed by us reads thus The Affidavit filed on behalf of the Respondent No.1 is taken on record. Learned Senior Counsel appearing for the Appellant also submits that the Undertakings may be accepted by the Court. The Undertakings furnished in the said Affidavit are accepted by the Court. The affiant is cautioned that if any of the Undertakings are breached, apart from any other companysequences, the Contempt of Courts would be attracted to the Respondent. In view of the above, the Interim Orders passed on 4th April, 2008 are recalled. The provisional registration shall be accorded permanence and or full registration. It is clarified that the Undertakings shall stand extended to any fresh Applications for registration that may number be moved by the Respondents for transactions, assignments and transfers effected prior to the Amendment of Section 38, viz. with effect from 26th 2 December, 2014 in other words, these Applications shall be processed with expedition as per the unamended Section 38. It is further clarified that in view of the disposal of this Appeal, in the circumstances mentioned above, the Appellant will be liable to pay interest at the prevailing Bank rate without penal interest as per Section 8 sub-section 5 of the Insurance Regulatory and Development Authority Protection of Policy Holder Interest Regulations, 2002. The disposal of this Appeal is without prejudice to other Appeals in which arguments have been closed. The Civil Appeal is disposed of with numberOrder as to companyts. The Appellant has argued that if multiple assignments are permitted the assignee will number know if the insured has died, and trading in the policy may companytinue even after he has. Furthermore, allowing parties in the position of the First Respondent to revive a lapsed policy would amount to wagering. Regarding the prevailing law in other jurisdictions, it has been submitted that the law in the U.S. is number based on Grigsby, as the U.S. legal system it is a federal one. Even if Grigsby were taken as the prevailing interpretation of the law, it does number state that all assignments must be accepted regardless that they are in bad faith. The fact that the Government provides tax deductions under Section 80C of the Income Tax Act, 1961, that Life Insurance is number liable to be attached and sold in execution of a decree under Section 60 of the Civil Procedure Code, and that Life Insurance is guaranteed by the Central Government under Section 37 of the LIC Act indicates that it is a measure of social security, so the power to refuse bad faith assignments should be allowed on the grounds of public policy. Finally, it has been argued once again that Section 38 is merely procedural, and the substantive law is to be found and extrapolated from Common Law. 9 The First and Second Respondent, on the other hand, have companytended that Section 38 recognises all assignments that companyply with the requirements stated therein. Insurance is intrinsically a matter of companytract, and the Appellant cannot, by way of a Circular, amend a companytract and interfere with companytractual rights and obligations. An insurable interest is a precondition or essential element at the time of taking out the scheme but number thereafter, including at the point of any reassignment. Section 38 is substantive, number procedural, so there is numberreason to advert to companymon law, as the Insurance Act was passed well after the two American Supreme Court decisions alluded to above. Subsection 9 of the postamendment Section 38 was relied upon, which reads as follows Any rights and remedies of an assignee or transferee of a policy of life insurance under an assignment or transfer effected prior to the companymencement of the Insurance Law Amendment Act, 2015 shall number be affected by the provisions of this section. Thus this sub-section protects the existing rights of the First Respondent. Even in the absence of this sub-section, Section 6 of the General Clauses Act, 1897 would have companye to the aid of these Respondents. It has also been alleged that the only reason that the Appellant is averse to allowing reassignment of policies is because it wants to protect its own interests and repudiate its companytractual liability. 10 It would be apposite for us to begin our analysis by discussing the operation of Section 38 of the Insurance Act as it stood prior to its amendment. Section 38 1 prescribed the procedure by which assignment were to be effected, namely, by way of an endorsement or by means of a separate instrument. Sub-section 2 stated that once a transfer or assignment was made in the manner prescribed by sub-section 1 , it was companyplete and effectual. However, this transfer or assignment only became binding upon written numberice thereof being given by the transferor and transferee to the insurer. Sub-section 3 determined the priority of claims on the Insurance Policy by operation of law. Sub-section 4 directed that upon receipt of the numberice referred to in sub-section 2 , the insurer became bound to record the transfer or assignment together with the date thereof and the name of the transferee and the assignee and if so requested grant a written acknowledgment of the receipt of such numberice. Sub-section 5 mandated the insurer to recognise the transferee or assignee named in the numberice as the only person entitled to the benefit under the policy and such person would be subject to all liabilities and equities. Sub-section 6 and 7 provided for some other companytingencies with which we are number immediately companycerned. 11 It is thus clear that on transfer or assignment of a policy and on the requisite procedure being companyplied with, the assignee alone has an absolute interest in the policy. The insurer was bound by the provisions of Section 38 to accept such a transfer or endorsement. The only limitations placed on transferring a policy were in terms of the procedure laid out in Section 38, and subject to the terms of policy itself. The Section left numberscope for the insurer to dispute the right to transfer or assign the policy. Section 38 was thus clearly mandatory and substantive. The erstwhile Section 39 4 also deserves reproduction in this vein, as it further indicated the mandatory character of Section 38. It reads thus A transfer or assignment of a policy made in accordance with section 38 shall automatically cancel a numberination Provided that the assignment, of a policy to the insurer who bears the risk on the policy at the time of the assignment, in companysideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall number cancel a numberination, but shall affect the rights of the numberinee only to the extent of the insurers interest in the policy. 12 The Appellant has argued that Section 38 companyld result in scenarios where it was bound to accept fraudulent policies since it had number been bestowed with discretionary powers. We do number find any companytent in this companytention, for the reason that in cases of fraud, the assignment companyld be challenged on that ground even after being recorded. Furthermore, when the Appellant encountered a fraud inter alia in reviving lapsed policies, such as in cases of reviving the policy of an insured who is already deceased, it companyld refuse to recognize the revival, which it is well within its rights to do as a companytractual clause to this effect forms part of the policy. 13 The amendment to the Insurance Act by the Insurance Laws Amendment Act, 2015, is significant. As previously discussed, Section 38 as it number stands gives the insurer the discretion to decide whether or number to accept a transfer or assignment of an Insurance Policy. The Amendment Act, according to its Statement of Objects and Reasons, is An Act further to amend the Insurance Act, 1938 and the General Insurance Business Nationalisation Act, 1972 and to amend the Insurance Regulatory and Development Authority Act, 1999. It is thus neither a declaratory or clarificatory piece of legislation. The language of the extant Section 38 cannot be interpreted to mean that this is what Section 38 had meant all along. Furthermore, had the Legislature intended to amend Section 38 retrospectively, it would have said so explicitly. Instead, it has incorporated sub-section 9 , which protects rights and remedies of assignees that arose prior to the companymencement of the Amendment Act. It is thus clear that Parliament intended to allow all previous assignments and transfers provided that they companyplied with the requirements laid out in Section 38. In the face of this clear legislative intent, numberother interpretation of Section 38 is possible. It is accordingly number incumbent for us to discuss whether insurance policies partake of the nature of social security, or whether the transfer of such policies tantamount to wagering companytracts. 14 In our companysidered opinion it is number open to the Appellants to charter a companyrse which is different to the postulation in the Insurance Act, by means of its own Circulars. We need number go beyond mentioning the decision of this Court in Avinder Singh v. State of Punjab 1979 1 SCC 137 wherein it has been held that the Legislature cannot efface itself by delegating its plenary powers unless the delegate functions strictly under its supervision. If the delegate is allowed to function independently it would tantamount to usurpation of legislative power itself. This view came to be reiterated to decades later in Agricultural Market Committee v. Shalimar Chemical Works Ltd. 1997 5 SCC 516. This Court held that Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. The position that obtains today is diametrically opposite inasmuch as the statute permitted, at the relevant time, the assignment and or transfer of life insurance policies, but the delegate, through its Circulars, has attempted to nullify that provision of law. We companyclude, therefore, that the circulars are ultra vires the Statute and must therefore be made ineffectual. 15 We also think that it is number appropriate to import the principles of public policy, which are always imprecise, difficult to define, and akin to an unruly horse, into companytractual matters. The companytra proferentem rule is extremely relevant inasmuch as it is the Appellant who has drafted the insurance policy and was therefore well-positioned to include clauses making it specifically impermissible to assign policies.

Murtaza Fazal Ali, J. This appeal by certificate is directed against the judgment of the Allahabad High Court dated 23-9 1959. We have gone through the effective judgment of the High Court rendered by Justice Lakshami Prasad and we find ourselves with companyplete agreement with the view taken by the learned judge as also with the reasons given by him. Mr. Dikshit appearing for the appellant State submitted two points before us. In the first place it was argued that in view of the provisions of Section 44 b of the U.P. Zamindari Abolition and Land Reforms Act, 1950 read with Rule 37 A and Rule 38 in assessing the companypensation, the amount on account of agricultural income-tax to be paid for the previous year had to be taken into companysideration. It was submitted that although the respondents had filed appeals against the District Agricultural Income-tax Officer who was the Collector to the appellate Court and ultimately succeeded in getting the order of the Collector set aside by the Commissioner who remanded the case for a fresh assessment, the decision of the Commissioner was wholly irrelevant because under Section 44 b it was the amount which was assessed by the first authority which alone had to be companysidered. Section 44 b runs thus 44 b An amount on account of agricultural income-tax, if any, paid or to be paid for the previous agricultural year by the intermediary in respect of his share or interest in the mahal calculated in the manner prescribed. Rule 37 A also gives the basis on which the income-tax is to be deducted. Rule 38 however requires the Collector to forward to every Compensation Officer in Form 25 the agricultural income-tax assessed upon the inter-median in his district during the previous agricultural year. We are however unable to agree with the argument of Mr. Dikshit because what Section 44 b read with the Rules companytemplates in that the agricultural income-tax which is to be taken into account should be the amount of income tax which has been finally assessed and number one which is under appeal. Justice Lakshmi Prasad in his well reasoned judgment has pointed out that the Government itself issued various circulars to the Compensation Officers number to finalise the companypensation and to await the decision of various references and appeals made against the Collectors order assessing the agricultural income-tax. For these reasons there fore, the first companytention raised by Mr. Dikshit is over-ruled. It was then pointed out that the respondent number having filed any objections to the companypensation assessed, the companypensation became final particularly when the respondent accepted the companypensation paid. In the first place in view of the circulars sent by the Government, it cannot be said that the companypensation was, final. Secondly, the acceptance of the companypensation by the respondents under protest and without prejudice did number show that companypensation had been finalised or that the same was accepted by the respondents unconditionally so as to estop them from challenging the same. This companytention also therefore fails. The High Court has passed a very just and equitable order by directing the Collector to redetermine their assessment in the light of the order of the Commissioner after which the companypensation would be finally fixed under Section 44 b of the Act on the basis of the final assessment made by the Collector. The redetermination of the assessment may go even against the respondent in which case the State might benefit materially.

PARIPOORNAN, J. Leave granted. This is a typical case where the extraordinary discretionary jurisdiction vested in the High Court under Article 226 of the Constitution of India was improperly invoked, and High Court was pleased to exercise its jurisdiction resulting in an abuse of process. The appellant is the Executive Engineer, Bihar State Hosuing Board and represents the said Board hereinafter referred to as Board . The respondents to this appeal are Sri Ramesh Kumar Singh Petitioner in the Writ Petition , 2 State of Bihar, 3 Sub-Divisional Magistrate, Saraikella, District Singhbhum the companypetent authority and 4 Sri S.N. Pandey, Adityapur, District Singhbhum east . The first respondent assailed the show-cause numberice - Annexure Ext. P-4-dated 16.12.1992 issued to him by the 3rd respondent herein under Section 59 of the Bihar State Housing Board Act, 1982 in CWJC No. 82/93 - High Court of Patna. By judgment dated 10.2.1993 a Divison Bench of the High Court quashed Annexure Ext. P-4, show cause numberice, and also the Eviction proceedings No. 6/92 pending before the 3rd respondent. The Board, party-respondent in the writ petitio, has filed this appeal against the aforesaid judgment dated 10.2.1993. The broad facts relevant for the disposal of the appeal are in a narrow companypass. The appellant-Board has allotted quarter No. M-11/ Old Adityapur, Near Jamshedpur, to the 4th respondent on hire-purchase basis. Under the provisions fo the Bihar State Housing Board Act, 1982 and the BIhar State Housing Board Management and Disposal of Housing Estates Regulations of 1983, detailed procedure for allotment, payment of hire purchase amount, vesting of ownership on payment of the last instalment by the hirer, procedure for summary eviction of unauthorised occupation, etc. are provided. The hirer is a tenant of the Board till the last instalment is paid whereafter the ownership is transferred to the hirer by executing an appropriate companyveyance. on this basis the 4th respodent, hirer, is a tenat of the Board. Section 58 of the act states that provisions of the Bihar Buildings Lease, Rent and Eviction companytrol Act are inapplicable to the tenacy created by the Board. Section 59 of the Bihar State created by the Board. Section 59 of the Bihar State Housing Board Act enables the Board to evict persons in occupation in cases of sub-tenancy or any other unauthorised occupation, by application to the companypetent authority. By numberification No. 3196/Patna dated 22.11.1973 Annexure Ext. P-1 , the Government f Bihar, in exercise of powers companyferred on it by Section 2 10 of the Bihar State Housing Board Ordinance, had authorised all civilian Sub-Divisional Officers and Magistrates, just below the rank of S.D.D.s, as companypetent authorities for the purposes of the Act. The 3rd respondent is the companypetent authrity within whose jurisdiction the instant buildingquarter No. M/11 Old Adityapur, Near Jamshedpur is stituate. The 4th respondent, the allottee of the quarter No. M11/ Old , Adiyapur, Near jamshedpur, companyplained to the 3rd respondent by companymunication dated 20.10.1992 annexure Ext. P-2 that he has been allotted the said abuilding by the Board, and while he was residing with his fmaily in the siad building, the 1st respondent has forcibly and unauthorisedly occupies the first floor of the building. The 3rd respondent forwarded the aforesaid companymunication to the appellant. The appellant by Annexure Ext. P-3 dated 15.12.1992 informed the 3rd respondent, S.D.O. that house No. MIG M/11 Old , Adityapur, Near Jamshedpur stands allotted to the 4th respondent and the application of the 4th respondent, which is self-explantory, praying for eviction of the portion unauthorisedly occupied by the 1st respondent, is referred for necessary action. In this back-ground, the 3rd respondent issued Annexure Ext. P-4 numberice dated 16.12.1992 to the 1st respondent which is to the follwing effect UNDER SECTION OF BIHAR HOUSING BOARD ACT ----------------------------------------- SHOW CAUSE NOTICE ------------------ To, Shri R.K. Singh, Contractor, M-11, Adityapur, JAMSHEDPUR. It appears from the petition of the Executive Engineer, Bihar State Housing Board Adityapur Jamshedpur that you are illegally and unauthorisedly living in HOuse NO. M-11 Old of Housing Board situated at Adityapur Housing Board. You are hereby directed through this numberice that to explain in person or through an Advocate on 28.12.1992 at 10 A.M. in the companyrt of undersigned that why number an order of eviction of the house in question by passed. Sd - Sub-Divisional Magistrate, Saraikella 16.12.1992 emphasis supplied It is seen that the 1st respondent instead of shwoing cause against Annexure Ext. P-4, straightaway approached the High companyrt by filing CEJC NO. 82/93 and assailedl Annexure Ext. P-4. According to him, 4th respondent is the owner of the building having purchased the same from the Board, that he is a tenant of the first floor under the 4th respondent, that the 3rd respondent is incompetent to initiate proceedings for eviction under the Bihar State Housing Board Act, and that only proceedings under the Bihar Buildings Lease, Rent Eviction Control Act will lie for eviction. So, he prayed for quashing Annexure Ext. P-4 show-cause ntocie and the eviction proceedings. The High Court heard the parties and took the view that the 1st respondent is number a tenant of the Board, and so the Board will have numberjurisdiction to initiate proceedings either on its own motion or at the instance of the 4th respondent and in this view, the proceedings, initiated as per Annexure Ext. P-4, are unjustified and without jurisdiction. The High Court opined that the 4th respondent may seek appropriate remedy by bringing a suit under he Bihar Buildings Lease, Rent Eviction Control Act. In the result, Anexure Ext. P-4 and also the eviction proceedings NO. 6/92 were quashed. It is from the aforesaid judgment of the High Court dated 10.2.1993, the Board has companye up on appeal by special leave. We heard companynsel. It is companymon groudn that Quarter No. M/11 Old Adityapur, Near Jamshedpur, belongs to Board. According to the Board and the 4th respondent the hirepurchase transaction is still in force, and the ownsership of the building has number been finally transferred to the 4th respondent. The 1st respondent would say that the 4th respondent is the owner having purchased the building from the Board. The basic or fundamental fact is thus in dispute. The 3rd respondent is the companypetent authority ntofied by the State Government under the BIhar State Housing Board Act, 1982 to initiate summary proceedings for eviction against the sub-letting, unauthorised occupation by any person, of the premises, etc. belonging to the Board. Annexure Ext. P-4, numberice, is the one so issued by the 3rd respondent. The appellant and the 4th respondent companypalined about the forcible or unauthorised occupation by the first respondent of the premises belonging to the Board. The 3rd respondent was companypetent to initiate the proceedings under the Act if the building still belongs to the Board and the ownersip has number vested in the 4th respondent. It may be, that this basic fact is denied by the 1st respondent when he states that the 4th respondent is the owner having purchased the building from the Board and that he is a tenant under the 4th respondent. The baisc facts, on the basis of which the jurisdiciton of the 3rd respondent to initiate companytinue the proceedings, require investigation and adjudication. If, as pleaded by te appellant and the 4th respondent, the Board is the owner and the 4th respodent is the hirer, it cannot admit of any doubt that the 3rd respondent has jurisdiction to initiate the proceedings as per Annexure Ext. P-4. If that basic fact is denied by the 1st respondent, that may require investigation of disputed facts and adjudication by the companypetent authority - the 3rd respondent. Without showing cause against Annexure Ext. P-4, numberice, the 1st respondent straightaway filed the Writ Petition in the High Court and assailed Annexure Ext. P-4 and the eviction proceedngs. The averments in thsi regard, companytained in paragraph 13 h of the Special Leave Petition, are number denied i the detailed ocunter affidavit filed by the 1st respondent in this Court. We ar companycerned in this case, with the entertainment of the Writ Petition against a show cause numberice issued by a companypetent statutory authority. It should be borne in mind that there is number attack against the vires of the statutory provisions governing the matter. No question of infringement of any fudamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 numberice is ex facie a nullity or totally without jurisdiction in the traditional sense of that expression -- that is to say even the companymencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthrised. In such a case, for entertaining a Writ Petition under Article 226 of the Constitution of India against a show-cause numberice, at power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropariate that the party shold avail of the alternate remedy and show cause against the same before the authority companycerned and taken up the objection regarding jurisdiction alos, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India. On the facts of this case, we hold that the 1st respondent was unjustified in invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against Annexure Ext. P-4 before the 3rd respondent. The appropriate procedure for the 1st respondent would have been to file his objections and place necessary materials before the 3rd respondent and invite a decision as to whether the proceedings initiated by the 3rd respondent under Section 59 of the Bihar State Housing Board Act, 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Article 226 of the Constitution can hardly be an appropriate remedy. The High Court companymitted a grave error in entertaining the Writ Petition and in allowing the same by quashing Annexure Ext. P-4 and also the Eviction proceedings No. 6/92, without proper and fair investigation of the basic facts. We are, therefore, companystrained to set aside the judgment of the High Court of Patna in CWJC NO. 82/93 dated 10.2.1993.

ASHOK BHUSHAN, J. This appeal has been filed against the judgment of the High Court of Chhatisgarh allowing an IA filed by the legal representatives of the petitioner in Criminal Misc. Petition. The respondents aggrieved by the order of the High Court dated 02.02.2017 has filed this appeal. The brief facts necessary for deciding this appeal are Smt. Chandra Narayan Das whose legal representatives are the respondent Nos.1 to 7 had filed a companyplaint against the appellants alleging offence under Sections 420, 467, 468, 471, 120B, 201 and 34 IPC. The husband of Smt. Chandra Narayan Signature Not Verified Das was a lease holder of a shop situated in the Civic Centre, Digitally signed by ASHWANI KUMAR Date 2017.11.03 173423 IST Reason Bhilai Steel Plant, Chhatisgarh. Shop No.12 was allowed in the name of the husband of appellant No.1 in the year 1959. Although, husband of the appellant No.1, a Member of Parliament had died in 1952 itself, it was alleged by the companyplainant that certain agreements were got executed by legal heirs of Member of Parliament which companystituted companymission of offence. The companyplaint was dismissed by the Magistrate vide order dated 26.02.2015 holding that prima facie case under Sections 420, 467, 468, 120B and 201/34 IPC is number made out against the accused. Smt. Chandra Narayan Das filed a criminal revision before the Additional Sessions Judge, Durg which was dismissed by VIIIth Additional Sessions Judge, Durg vide judgment dated 20.11.2015. Criminal Misc. Petition against the said order dated 20.11.2015 was filed in the High Court of Chhatisgarh by Smt. Chandra Narayan Das. The High Court on 18.02.2016 issued numberice in the Criminal Misc. Petition. After issuance of numberice the petitioner, Smt. Chandra Narayan Das died on 02.04.2016. An application was filed by the legal heirs of Smt. Chandra Narayan Das praying them to be substituted in place of the petitioner. The application was opposed by the appellants. The High Court vide its order dated 02.02.2017 allowed the said application and permitted the legal representatives of Smt. Chandra Narayan Das to companye on record for prosecuting the Criminal Misc. Petition. Aggrieved by the said judgment, the appellants have companye up in this appeal. Learned companynsel for the appellants submits that in the Code of Criminal Procedure, 1973 hereinafter referred to as Code 1973 there is numberprovision which permits legal representatives of the companyplainant to be substituted for prosecuting the companyplaint. It is submitted that the present is a case where numbersummons were issued to the appellants since the companyplaint was rejected by the Magistrate and a criminal revision challenging the said order has also been dismissed. It is submitted that the High Court companymitted error in permitting the legal representatives of companyplainant to be brought on record for prosecuting the case. Learned companynsel for the respondents refuting the submission of the learned companynsel for the appellants companytends that rejection of companyplaint and order of the Sessions Judge dismissing the criminal revision were under challenge before the High Court on the ground that prima facie offence was disclosed in the companyplaint and companyrts below companymitted error in rejecting the companyplaint. The offence having been companymitted by the appellants, the High Court has every jurisdiction to permit the legal representatives to prosecute the matter in the event of death of original companyplainant. It is submitted that Code 1973 does number companytain any provision that on death of companyplainant, the companyplaint cannot be allowed to be prosecuted by any other person including the legal representatives. We have companysidered the submissions of the learned companynsel for the parties and perused the records. There is numberdispute regarding facts and events in the present case. The original companyplainant died during the pendency of the Criminal Misc. Petition before the High Court which was filed challenging the order of the Sessions Judge rejecting the criminal revision against the order of Magistrate dismissing the companyplaint. Section 256 of Code of Criminal Procedure, 1973 is companytained in Chapter XX with the heading Trial of summonscases by Magistrates. Section 256 on which reliance has been placed provides as follows Section 256. Non appearance or death of companyplainant. 1 If the summons has been issued on companyplaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the companyplainant does number appear, the Magistrate shall, numberwithstanding anything hereinbefore companytained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day Provided that where the companyplainant is represented by a pleader or by the officer companyducting the prosecution or where the Magistrate is of opinion that the personal attendance of the companyplainant is number necessary, the Magistrate may dispense with his attendance and proceed with the case. The provisions of subsection 1 shall, so far as may be, apply also to cases where the numberappearance of the companyplainant is due to his death. Analogous provision to Section 256 of Code 1973 was companytained in Section 247 of Criminal Procedure Code, 1898. In Section 247 the proviso was added in 1955 saying that where the Magistrate is of the opinion that personal attendance is number necessary, he may dispense with such attendance. The said proviso took out the rigour of the original rule and whole thing was left to the discretion of the Court. Subsection 1 of Section 256 companytains the above proviso in the similar manner. Thus, even in case of trial of summonscase it is number necessary or mandatory that after death of companyplainant the companyplaint is to be rejected, in exercise of the power under proviso to Section 256 1 , the Magistrate can proceed with the companyplaint. More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 IPC for which procedure for trial of summonscase was number applicable and there is numberprovision in Chapter XIX Trial of warrantcases by Magistrates companytaining a provision that in the event of death of companyplainant the companyplaint is to be rejected. The Magistrate under Section 249 has power to discharge a case where the companyplainant is absent. The discharge under Section 249, however, is hedged with companydition the offence may be lawfully companypounded or is number a companynizable offence. Had the Code 1973 intended that in case of death of companyplainant in a warrant case the companyplaint is to be rejected, the provision would have indicated any such intention which is clearly absent. In this companytext a reference is made to judgment of this Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC 983. In the said case this Court had occasion to companysider the provisions of Criminal Procedure Code, 1898. The companyplainant had filed a companyplaint against the appellants. The companyplaint was filed under Sections 498 and 496 IPC. Accused was summoned. However, during the pendency of the companyplaint, the companyplainant died. The companyplainants mother applied for substituting her to act as companyplainant and companytinue the proceedings. Magistrate permitted the mother of companyplainant to pursue the companyplaint against which revision was filed before the High Court which was dismissed. Aggrieved by the order of the High Court the appellant had companye up before this Court. In the above companytext this Court companysidered the pari materia provisions of the Criminal Procedure Code, 1898 with regard to Section 247 number Section 256 it was specifically held that said provision does number furnish any valid analogy. In paragraph 4 of the judgment following was observed 4 Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247 and 259 under which on the companyplainant remaining absent, the companyrt can acquit or discharge the accused. These analogies do number avail him because they provide for special situations. Inquiries and trials before the companyrt are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and Section 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summons is issued on a companyplaint and the companyplainant on any day remains absent from the companyrt, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This number being the trial of a summons case but a companymittal inquiry, Section 247 neither applies number can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish numberanalogy. Under Section 259, if the offence being tried as a warrant case is companypoundable or is number companynizable the Magistrate may discharge the accused before the charge is framed if the companyplainant remains absent. Once again this section cannot apply because the Presidency Magistrate was number trying the case under Chapter XXI. This Court further had occasion to companysider Section 495 of Code 1898 number Section 302 of Criminal Procedure Code and this Court laid down in paragraph 7 as follows 7 Mr. Keswani companytends that the Presidency Magistrate has made a substitution of a new companyplainant and there is numberhing in the Code which warrants the substitution of one companyplainant for another. It is true that the Presidency Magistrate has used the word substitute but that is number the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the companyplainant to companytinue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered with some exceptions to authorise the companyduct of prosecution by any person. The words any person would indubitably include the mother of the companyplainant in a case such as this. Section 198 itself companytemplates that a companyplaint may be made by a person other than the person aggrieved and there seems to us numbervalid reason why in such a serious case we should hold that the death of the companyplainant puts an end to the prosecution. At this stage reference to Section 302 of the Criminal Procedure Code is necessary. Section 302 of the Criminal Procedure Code is companytained in Chapter XXIV with the heading General provisions as to inquiries and trials. Section 302 relates to permission to companyduct prosecution which is to the following effect Section 302. Permission to companyduct prosecution Any Magistrate inquiring into or trying a case may permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson, other than the AdvocateGeneral or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission Provided that numberpolice officer shall be permitted to companyduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. Any person companyducting the prosecution may do so personally or by a pleader. This Court had occasion to companysider Sections 256 and 302 in Balasaheb K. Thackeray Anr. Vs. Venkat Babru, 2006 5 SCC 530. In the above case companyplaint was filed under Section 500 read with Section 34 IPC. A petition was filed under Section 482 of the Code 1973 against the order of issue of process in the High Court which was dismissed. SLP was filed in this Court in which numberice was issued and during the pendency of the appeal it was numbered that companyplainant had died. It was companytended that the companyplaint be dismissed on the ground that companyplainant is dead. This Court in the above companytext referred to Sections 256 and This Court repelled the argument of the appellant that companyplaint be dismissed on the ground that companyplainant had died. Following was held in paragraphs 3 to 6 Learned companynsel for the appellants with reference to Section 256 of the Code submitted that the companyplaint was to be dismissed on the ground of the death of the companyplainant. As numbered above learned companynsel for Respondent 1s legal heirs submitted that the legal heirs of the companyplainant shall file an application for permission to prosecute and, therefore, the companyplaint still survives companysideration. At this juncture it is relevant to take numbere of what has been stated by this Court earlier on the principles applicable. In Ashwin Nanubhai Vyas v. State of Maharashtra with reference to Section 495 of the Code of Criminal Procedure, 1898 hereinafter referred to as the old Code it was held that the Magistrate had the power to permit a relative to act as the companyplainant to companytinue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley after referring to Ashwin case it was held that heir of the companyplainant can be allowed to file a petition under Section 302 of the Code to companytinue the prosecution. Section 302 of the Code reads as under Permission to companyduct prosecution. 1 Any Magistrate inquiring into or trying a case may permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission Provided that numberpolice officer shall be permitted to companyduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. Any person companyducting the prosecution may do so personally or by a pleader. To bring in application of Section 302 of the Code, permission to companyduct the prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson other than the Advocate General or the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission. Two Judge Bench in Jimmy Jahangir Madan Vs. Bolly Caiyappa Hindley dead By Lrs., 2004 12 SCC 509 referring to this Courts judgment in Ashwin Nanubhai Vyas supra had held that heirs of companyplainant can companytinue the prosecution. Following was held in paragraph 5 The question as to whether the heirs of the companyplainant can be allowed to file an application under Section 302 of the Code to companytinue the prosecution is numberlonger res integra as the same has been companycluded by a decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is companyresponding to Section 302 of the Code.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 356 of 1965. Appeal by special leave from the judgment and decree dated October 27, 1964, of the Madhya Pradesh High Court in Second Appeal No. 240 of 1964. Sen and M. S. Gupta, for the appellants. T. Desai and A. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Sarkar, J. The first respondent Tikam Das had let out a house in the city of Jabalpur to the second respondent Surya Kant Naidoo. Sometime in 1961 Tikam Das, herein referred to as the landlord, served a numberice on Surya Kant, herein referred to as the tenant, terminating the tenancy and later in the same year filed a suit in a civil companyrt against the latter for ejectment. On June 23, 1962, by companysent of parties, a decree for ejectment was passed in that suit in favour of the landlord against the tenant. The appellants who were occupying the premises as sub-tenants under the tenant had number been made parties to the suit. On June 25 and 26, 1962, the appellants served numberices on the landlord under s. 15 2 of the Madhya Pradesh Accommodation Control Act, 1961 which had companye into force on December 30, 1961, claiming that as the tenant had sub-let the premises to them before the Act had companye into force with the companysent of the landlord, they had become his direct tenants under s. 16 2 of the Act and on June 28, 1962, the appellants filed a suit against both the landlord and the tenant in a civil companyrt claiming a declaration that they had in the circumstances become direct tenants of the premises under the landlord. On June 30, 1962, the landlord sent a reply to the numberices sent by the appellants in which he denied that the sub-letting by the tenant had been with his companysent or was lawful. It does number appear that the landlord had put his decree in execution for evicting the appellants. One of the points canvassed in the High Court was whether in view of s. 45 1 of the Act a civil companyrt was companypetent to entertain the appellants suit and it held that it was number and in that view of the matter dismissed the suit. The question is whet-her the High Court was right. The Act established certain authorities called Rent Controlling Authorities and gave them power to decide various matters. Sub- ,section 1 of s. 45 states that numbercivil companyrt shall entertain any suit or proceeding in so far as it relates to any matter which the Rent Controlling Authority is empowered by ,or under this Act to decide. If, therefore, the suit related to a matter which a Rent Controlling Authority had jurisdiction to decide, the civil companyrt would have numberjurisdiction to entertain it. Now the appellants suit was for a declaration that they had .become direct tenants under the landlord by virtue of s. 16 2 of the Act. That provision is in these terms S. 16. 1 Where, before the companymencement of this Act, the interest of a tenant in respect of any accommodation has been determined without determining the interest of any sub-tenant to whom the accommodation either in whole or in part had been lawfully sub-let, the subtenant shall, with effect from the date of the companymencement of this Act be deemed to have become a tenant holding directly under the landlord on the same terms and companyditions on which the tenant would have held from the landlord, if the tenancy had companytinued. Clearly the appellants would number be entitled to the benefit of this provision unless the sub-letting to them was lawful. This is where their difficulty arises. Sub-section 2 of s. 15 deals with the case of a sub-letting before the Act and provides for a numberice of the sub-letting being given to the landlord by the tenant and the sub-tenant. There is numberdispute that the sub-letting to the appellants was before the Act and they had given the numberice. The subletting, therefore, companyes within sub-s. 2 of s. 15. Then we companye to sub-s. 3 of s. 15 which provides, Where in any case mentioned in sub-section 2 , the landlord companytests that the accommodation was number lawfully sub-let and an application is made to the Rent Controlling Authority in this behalf, either by the landlord or by the sub-tenant, within two months of the date of the receipt of the numberice of subletting by the landlord or the issue of the numberice by the tenant or the sub-tenant, as the case may be, the Rent Controlling Authority shall decide the dispute. This subsection empowers a Rent Controlling Authority to decide whether a sub-letting was lawful where the landlord disputes that the subletting was lawful, on an application made to it by either party within the period mentioned. When the Rent Controlling Authorities have the power to decide the lawfulness of the subletting, a civil companyrt is plainly debarred from deciding that question by s. 45 1 . In the present case the landlord did companytend that the sub-letting was number lawful. The appellantss suit was filed within the period mentioned in sub-s. 3 of s. So the Rent Controlling Authorities had the power to decide the question on which the appellants suit depended. It follows that the suit related to a matter which the Rent Controlling Authorities had power to decide and numbercivil companyrt was, therefore, companypetent to entertain it. Hence we think that the High Court was right in deciding that the suit had been filed in a companyrt incompetent to entertain it, and in dismissing it. It was said that a Rent Controlling Authority would have numberpower to decide a dispute as to whether a sub-letting was lawful where the numberice mentioned in s. 15 2 had number been served, orafter the period mentioned in sub-s. 3 of that section had expired if it had number been moved earlier. Another question mooted was that the two months mentioned in sub-s. 3 only provided a special period of limitation for the application mentioned in it and the provision of the period did number mean that a Rent Controlling Authority had power to decide the matter only if an application had been made within that period, so that if numbersuch application had been made, after the expiry of the period a civil companyrt would have jurisdiction to decide a dispute as to whether a sub-letting was lawful. The point is that the real effect of s. 15 3 was to deprive the civil companyrt of the jurisdiction to decide that dispute for all time. We do number feel called upon to decide these questions. They do number arise in the present case and it was number said that these questions affect the question of the companypetence of the civil companyrt to try the present suit. They clearly do number. The suit was filed within the period of two months during which admittedly the Rent Controlling Authorities had jurisdiction to decide the dispute on which it was based. Whatever may be the jurisdiction of a civil companyrt on other facts, in the present case it clearly had numberjurisdiction to entertain the appellants suit. It was said on behalf of the appellants that s. 15 3 had numberapplication to the present case as the landlord had before the appellants suit was filed, obtained a decree against the tenant for eviction. We are unable to accept this companytention. There is numberhing in sub-s. 3 of s. 15 to indicate that it does number apply to a case where a landlord has obtained such a decree. If in spite of the decree the appellants had a right under the Act to a direct tenancy under the landlord, they had a right to move the Rent Controlling Authority within the period mentioned number expired for a decision of the question that the sub-letting to them was lawful. If the Rent Controlling Authority had the power to decide that question, a civil companyrt would number be companypetent to decide the dispute in a suit brought within that period. So the decree does number make a civil companyrt, a companyrt companypetent to entertain the suit. It was also said that as the landlord had number applied under sub-s. 3 of s. 15-and this is number disputed by the landlord that provision is put out of the way and it must number be held that the appellants had become direct tenants under him. The words of the sub-section lend numbersupport to this companytention. The appellants can claim the direct tenancy only when they establish that the sub-letting to them was lawful. As they claim that right, they must establish it and they do number do so by the failure of the landlord to move for a decision that the sub-letting was number lawful. This companytention of the appellants seems to us to be untenable. In any case it is difficult to appreciate how the failure of the landlord to apply under s. 15 3 would affect the question of the companypetence of a civil companyrt to entertain the appellants suit which had been filed before the time limited by the sub-section for the landlord to apply to a Rent Controlling Authority had expired. We number companye to sub-s. 2 of s. 45 of the Act which is in these terms S.45. 1 Nothing in sub-section 1 shall be companystrued as preventing a civil companyrt from entertaining any suit or proceeding for the decision of any question of title to any accommodation to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such accommodation. It is said by the appellants that their suit raises a question of title to the tenanted premises within the meaning of that word as used in the subsection. This companytention does number seem to us to be well founded. Accommodation has been defined in the Act as a building, garden, ground, out-house, or garage appurtenant to it, its fixtures and furniture supplied for use there and also land number used for agricultural purpose. The word, therefore, refers to property of certain varieties and in our opinion the words title to any accommodation in the sub-section mean a right to or interest in property existing otherwise than under the Act and number those created by it. It does number include a subtenants right created by the Act to be treated under certain cir- 133. cumstances as the direct tenant of the landlord. This seems to, us to be clear from the whole scheme of the Act, which is to create certain rights and to leave them in certain cases to be decided by the Rent Controlling Authority established under it, quickly, inexpensively and summarily and with restricted rights of appeal from their decision. The object of the Act as disclosed by its scheme would be defeated if civil companyrts were to adjudicate upon the rights which it was intended the Rent Controlling Authorities would decide, with all the companysequent delay, expense and series of appeals. Again if the civil companyrts had the power to decide such rights, s. 15 3 would be meaningless, for the decision of the dispute as to whether sub-letting was lawful was necessary only for establishing a sub-tenants right to a direct tenancy under the landlord under s. 16 2 . Subsection 2 of s. 45 was clearly intended only to protect a right to resort to a civil companyrt for the decision of a question as to an interest in property existing apart from the Act companycerning which an adjudication may have been incidentally made by a Rent Controlling Authority in deciding a question which it had been expressly empowered by the Act to decide. We, therefore, think that sub-s. 2 of s. 45 does number authorise a civil companyrt to decide the dispute as to the lawfulness of the sub-letting and does number therefore make it companypetent to entertain the appellants suit. For these reasons, in our view, numbercivil companyrt had jurisdiction to try the appellants suit and it was rightly dismissed as having been filed in an incompetent tribunal.

O R D E R Arising out of SLP C No. 2351/2006 Leave granted. The grievance of the appellants is that a sum of Rs.46,221/- had wrongly been paid to the respondent as he was put on a wrong scale of pay. It is that amount which is number sought to be recovered. The respondent herein filed a writ petition questioning the said action on the part of the appellants herein. The said amount was sought to be recovered by way of an adjustment from the amount of gratuity payable to the respondent. The appellants did number file any companynter affidavit before the High Court. The High Court by reason of the impugned judgment number only directed the appellants to return the said sum of Rs. 46,221/- to the respondent forthwith, but also imposed a companyts of Rs. 25,000/- as companypensation for illegally encroaching upon his right to gratuity. The appellants are, thus, before us. There cannot be any doubt, whatsoever, that all administrative bodies are entitled to rectify their mistake and for the said purpose, if an administrative order is required to be passed, they are number denuded therefrom. The respondent herein, however, has retired from service in 1997. He was otherwise entitled to the amount of gratuity. The amount of gratuity should number, ordinarily, have been withheld. We, therefore, are of the opinion that interest of justice would be subserved if we exercise our jurisdiction under Article 142 of the Constitution of India and direct the appellants to companyply with the High Courts order and at the same time set aside that portion of the High Courts order whereby the appellants herein have been asked to pay a sum of Rs.25,000/- to the respondent, as companypensation for illegally encroaching upon his right to gratuity. It is directed accordingly.

ORIGINAL JURISDICTION Writ Petition No. 435 of 1968. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. C. Agarwala, for the petitioners. B. Agarwala, Uma Mehta, S. K. Bagga and S. Bagga, for respondents Nos. 1 and 2. P. Rana, for respondent No. 3. The Judgment of the Court was delivered by Mitter, J.-By this petition the petitioners challenge validity of 1 the Professions Tax Limitation Amendment and Validation Act, 1949, 2 S. 131 of the U. P. Zila Parishad Act, 3 an order of assessment of Rs. 2,000/- dated 25th March, 1968 made by the Kar Adhikari, Zila Parishad Muzaffarnagar and pray for incidental reliefs. The petitioners carry on the business of manufacture and sale of khandsari and gur in the District of Muzaffarnagar, U. P. They own a crusher in village Morna in the said district where the manufacture of khandsari as sugar is carried on. They challenge the imposition of Circumstances and Property tax of Rs. 2,000/- imposed on their business under, the order of assessment passed by respondent No. 2. Kar Adhikari, Zila Parishad Muzaffarnagar for the year 1967-68. As they did number produce their accounts for their business in khandsari the Kar Adhikari, an officer appointed by the Zila Parishad of Muzaffarnagar assessed them to Rs. 2,000/- as Circumstances and Property tax on the estimated income of Rs. 96,000/- from their property and business for the year. To appreciate how the Zila Parishad a district authority came to have the power to levy the tax, it is necessary to take an account of some past legislation. The Local body to administer the district of Muzaffarnagar in U. P. until the year 1958 was the District Board of Muzaffarnagar companystituted under the U. P. District Boards Act, 1922 U. Act X of 1922 . Chapter VI of the Act companytaining sections 108 to 132 gave the Board certain powers of taxation, local rates etc. and prescribed the procedure for imposition and recovery of the levy. Under S. 114 the Board had the power to impose a tax on circumstances and property subject to certain companyditions, inter alia, that the tax companyld be imposed only on persons residing or carrying on business in the rural area with an income above a certain minimum limit. The rate of tax was number to exceed Rs. 0-0-4 in the rupee on the total income and the total amount of tax was number to exceed the maximum which might be prescribed by rule. By s. 115 a Board deciding to impose a tax had to frame proposals by special resolution, specifying the particular tax out of those prescribed in s. 108 which it desired to impose, the persons or classes of persons to be made liable and the description of the property or other taxable thing or circumstance in respect of which they were to be made liable, the amount of rate leviable from such persons or classes of persons and any other matter which the State Government required by rule to be specified. S. 116 enabled any person ordinarily residing or carrying on business in the district to raise objections to the proposal which had to be companysidered by the Board. Under s. 117 the Board had to submit the finally settled proposals to the State Government which companyld either sanction the same or return them to the Board for further companysideration. When the State Government had sanctioned the proposal of the Board, it had to frame rules under s. 172 in respect of the tax as for the time being it companysidered necessary after taking into companysideration the draft rules submitted by the Board. Following on the above, the Board was required to direct the imposition of the tax with effect from a date to be specified by special resolution. Under s. 120 1 a companyy of the resolution passed by the Board was to be submitted by it to the State Government. Government was required to numberify in the official gazette the imposition of the tax from the appointed day upon receipt of the companyy, of the boards resolution and the imposition of a tax was in all cases to be subject to the companydition that it had been so numberified. Under sub-s. 3 of s. 120 a numberification of the imposition of a tax under sub-s. 2 was to be companyclusive proof that the tax had been imposed in accordance with the provisions of the Act. Matters mentioned in clauses a to f including inter alia the assessment and companylection of taxes was under s. 123 to be governed by rules except in so far as the provision therefore was made by the Act. S. 172 empowered the State Government to make rules companysistant with the Act in respect inter alia of matters mentioned in s. 123. On the 1st of March 1928, the U. P. Local Self Government issued a numberification prescribing rules for the assessment and companylection of a tax on circumstances and property in the rural area of the Muzaffarnagar District under s. 172 of the Act after the previous publication thereof as required by s. Rule 3 provided that the tax shall be assessed by an assessing officer appointed by the District Board with the help of the members of the circle companycerned. Rules 4 and 5 laid down a time schedule for the work of the assessing officer and the submission of the list of persons within the district who appeared to be liable to pay the tax to the board. He was first required to prepare a list on or before 15th December of each year of all persons who appeared to him to be so liable. He was then to companysider the circumstances and property of every person entered in the list and to determine the amount of the tax to which such person should be assessed. The name of every person assessed and the amount of tax to which he was assessed was to be entered in an assessment list in the form attached to the rules and was to be companypleted on or before the 20th of January next. After the preparation of the list and the submission thereof to the Board the latter companyld take action to revise the list by a resolution and the Board was to return the list to the assessing officer by the 15th February. In terms of the U. P. District Boards Act, 1922 rules were framed on the 1st March 1928 and the State Government issued a numberification on the 20th April, 1928 under S. 120 2 of the Art to the effect that the District Board Muzaffarnagar had in exercise of powers companyferred by S. 108 2 imposed with effect from May 15, 1928 a tax on all persons ordinarily residing or carrying on business in the rural area of Muzaffarnagar District according to their circumstances and property at the rate of Rs. 0-0-3 in the rupee on incomes of Rs. 300/- but number exceeding Rs.1200 per annum and Rs. 0-0-4 in the rupee on incomes of over Rs. 1200/- per year provided that in the case of persons residing in numberified and town areas and paying tax on circumstances and property to their respective companymittees, the rate of tax was to be Rs. 0-0-2 on the income of Rs. 300 but number exceeding Rs. 1200 and Rs. 0-0-3 on the income of over Rs. 1200/- per annum. In 1935 the Government of India Act of that year was enacted whereby the Legislative Lists were defined in the Seventh Schedule to the Act in terms of ss. 99 to 107 in Chapter I of Part V. Certain restrictions on legislative powers were also defined in Chapter 11 of the said Part companytaining ss. 108 to 110. Item 46 of the Provincial Legislative List was amended in 1940 to read Taxes on professions, trades, callings and employments, subject, however, to the provisions of section 142-A of this Act. The said section which also came into force under the same Amending Act ran as follows - 142-A. 1 Notwithstanding anything in section one hundred of this Act, numberProvincial law relating to taxes for the benefit of a Province or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. The total amount payable in respect of any person to that Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, callings and employments shall number, after the thirty first day of March,nineteen hundred and thirty-nine, exceed fifty rupees per annum Provided that, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub-section shall, unless for the time being provision to the companytrary is made by a law of the Federal Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any being a rate greater than fifty rupees per annum , as may for the time being fixed by a law of the Federal Legislature-, and any law of the Federal Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specified Provinces, municipalities, boards or authorities. The fact that the Provincial Legislature has power to make laws as aforesaid with respect to taxes on professions, trades, callings and employments, the generality of the entry in the Federal Legislative List relating to taxes on income. In exercise of the powers companyferred by the above section the Central Legislature passed the Professions Tax Limitation Act, 1941 Act XX of 1941 on 26th November 1941. The preamble to the Act shows that its object was to limit the total amount payable in respect of any person in respect of his profession, trade or calling etc. by way of tax to fifty rupees per annum numberwithstanding the provision to the companytrary in s. 142-A of the Government of India Act, 1935. The Act which companytained only three sections and a Schedule provided by section 2 that the amount of tax payable in respect of any one person to a Province, municipality, district board etc. was to cease to be levied to the extent to which such taxes exceeded Rs. 50 per annum. The section ran as follows Notwithstanding the provisions of any law for the time being in force, any taxes payable in respect of any one person t a Province or to any one municipality, district board, local board or other local authority in any Province by way of tax on professions, trades, callings or employments, stall from and after the companymencement of this Act cease to be levied to the extent to which such taxes exceed fifty rupees per, annum. S.3 was a saving provision whereby the provisions of s. 2 were number to apply to the taxes specified in the Schedule. All the five items in the Schedule related to taxes on professions, trades or callings by certain municipalities. S.108 of the U. P. District Boards Act, 1922 was amended in 1948 to read A board- a shall, by numberification in, the, official Gazette, impose a local rate under section 3 of the United Provinces Local Rates Act, 1914, as modified by this Act and I may companytinue a tax already imposed on person assessed according to their circumstances and property in accordance with section 114 Provided that the tax on circumstances and property So imposed shall number be abolished or altered without the previous sanction of the State Government. It will be numbericed that after the Professions Tax Limitation Act of 1941 the District boards in U. P. were number allowed to companylect, a tax on circumstances and property of any person in excess of Rs. 50. The situation was however altered in 1949 when the Professions Tax Limitation Amendment and Validation Act, 1949 was passed with the assent of the Governor General on 26th December 1949 Act LXI of 1949 . This was really to get over the decision of the Allahabad High Court in District Board of Farrukhabad v. Prag Dutt 1 . The Act was passed to amend the Professions Tax Limitation Act, 1941 and to validate the imposition in the United Provinces of certain taxes on circumstances and property. Section 2 of the Act purported, to add items 3-A and 3-B in the Schedule to the Professions Tax limitation Act, 1941 with retrospective effect. Items 3-A and 3-B read as follows - 3-A. The tax on inhabitants assessed according to their circumstances and property, imposed under clause ix of sub-section 1 of section 128 of the United Provinces Municipalities Act, 1916 U. P. Act II of 1916 . 3-B. The tax on persons assessed according to their circumstances and property. imposed under clause b of section 108 of the United Provinces District Boards Act, 1922 J. P. Act X of 1922 . I. L. R. 1949 Allahabad 26. The usual clauses for validation with retrospective effect were companytained in s. 3 of the Act. Taxes on professions, trades, callings and employments again came to be dealt with by Art. 276 of the Constitution in 1950. Clause 1 of the article laid down that Notwithstanding anything in article 246, numberlaw of the Legislature of a State relating to taxes for the benefit of the state or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. Cl. 2 was aimed at limiting the maximum amount in respect of such taxes subject to certain qualifications. It ran as follows The total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall number exceed two hundred and fifty rupees per annum Provided that if in the financial year immediately preceding the companymencement of this Constitution there was in force in the case of any State or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded two hundred and fifty rupees per annum, such tax may companytinue to be levied until provision to the companytrary is made by Parliament by law, and any law so made by Parliament may be made either generally or in relation to any specified States, municipalities, boards or authorities. On August 22, 1968 the U. P. Antarim Zila Parishad Act XXII of 1958 was passed by the U. P. Legislature. Under section 1 3 of the Act it was to companye into force on 29th day of April 1959 and to expire on 31st December 1959. The said Act was purported to be extended to 31st December 1962 by successive legislation. Under s. 3 1 of the Act of 1958 all district boards in U. P and all companymittees of such boards companystituted under the District Boards Act of 1922 were to cease to function and all members and the President of each board and all members of each companymittee were to vacate and be deemed to have vacated their respective offices. The U. P. Kshettra Samithis and Zila Parishads Adhiniyam, .1961 repealed the United Provinces District Boar Act 1922 49-1 S.C. India/71 in relation to a district as from the date on which the establishment of Kshettra Samithis under the new Act XXXIII of 1961 was companypleted and as from the date on which the U. Antarim Zila Parishad Act was to stand repealed in relation to that district. The Kshettra Samitis and Zila Parishad were companystituted in the District of Muzffarnagar under the Act. This Act was a companyprehensive Act which prescribed inter alia for dividing all the rural areas of each district into khands, the establishment of Kshettra Samithis for each khand, their companyposition and establishment and incorporation of Zila Parishads. Each Zila Parishad was to be a body companyporate having perpetual succession and a companymon seal with power to acquire, hold and dispose of property and to discharge its functions under the Act. The powers and functions of Kshettra Samitis and Zila Parishads were specified in Chapter III of the Act. Chapter IV of the Act companytaining ss. 39 to 55 laid down provisions-for the appointment of officers and servants of the Zila Parishads. Under S. 43 1 appointments to the posts of Karya Adhikari, Abhiyanta and Kar Adhikari and the posts created under subsection 2 of S. 39 carrying an initial salary of Rs. 200 or more per month were to be made by the Parishad in companysultation with the State Public Service Commission or such other Commission or Selection Board as might be companystituted by the State Government in this behalf in the manner prescribed provided that if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Under S. 47 Notwithstanding anything companytained in S. 43 officiating and temporary appointments to posts mentioned in sub-section 1 of section 43, may be made by the appointing authority specified in section 43 or in the rules made under section 44, without companysulting the Commission, but numbersuch appointment shall, except as provided in subsection 2 , companytinue beyond a period of one year save after companysultation with the Commission. Under sub-s. 2 the appointments made under sub-s. 1 might in special circumstances and where the appointing authority was the Parishad, with the approval of the State Government be companytinued without companysulting the Commission for a period number exceeding two years. Chapter VII of the Act of 1961 companytains provisions for taxation and levy of fees and tolls in ss. 1 19 to 146. S. 120 sanctioned the companytinuance of imposition of circumstances and property tax which was imposed or companytinued under the U. P. District Boards Act 1922 until abolished or altered and all rules, regulations and bye-was, orders, numberifications were companytinue in force as if enacted under the Act of 1961. S. 131 1 enabled the Zila Parishad to exempt for a period number exceeding one year, from the payment of a tax or any portion of a tax imposed under the Act, any person who was in its opinion, by reason of property unable to pay the same and renew the exemption as often as it deemed necessary. Subss. 2 and 3 allow other such exemptions either by the Zila Parishad or the State Government. The main plank of the argument on behalf of the petitioners was that the Central Act LXI of 1949 was beyond the legislative companypetence of the Federal Legislature, but even assuming the said Act was within the companypetence of the legislature as a result of the amendment of s. 108 of the U. District Boards Act in 1948 the board companyld only companytinue to levy the tax which was lawfully being imposed in 1948 on persons assessed according to their circumstances and properties in accordance with s. 114 and inasmuch as the tax had been reduced to Rs.

In this appeal the Regional Provident Fund Commissioner and the Union of India have brought in challenge the judgment and order rendered by the learned Single Judge of the Bombay High Court in Writ Petition No. 1129 of 1980. It has been held by the learned Judge that the respondent-Chemical Company had established a new companycern at Roha in Kolaba District of Maharashtra State on 9-7-1977. The said new companycern which was to manufacture organic chemicals had numberhing to do with the existing factory of Respondent 1-Company at Ambarnath in Thane District which was being run since 1921. The companytention of Respondent 1 is to the effect that Roha factory was an infant industry which was entitled to earn exemption from the operation of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 hereinafter referred to as the Act . As per Section 16 l b of the Act the claim for exemption was for three years from the date of its establishment in 1977. Though initially the exemption was claimed for three years for Roha factory, on account of the representation of the workmen of the said factory the claim for exemption was companyfined only for two years from its establishment, that is for two years from 9-7-1977. It is number in dispute that thereafter Roha factory also got companyered by the Act and is companyplying with the provisions of the said Act. The authorities functioning under the Act did number accept the said companytention of the respondent-Company and took the view that it was number an infant industry at all but was a part and parcel of the parent factory of the respondent-Company at Ambarnath which was being run since 1921. In short, it was number treated as a new and infant industry. Therefore, benefit under Section 16 l 6 was denied by the authorities functioning under the Act. That brought the respondent-Company to the High Court by way of writ petition under Article 226 of the Constitution of India. The learned Single Judge of the High Court after hearing the parties came to the companyclusion in the light of the evidence led before him by way of documentary evidence companysisting of affidavits and supporting material that Roha factory was a separate establishment and only because it was also owned by the same respondent-Company which had already established since 1921 its Ambarnath factory it companyld number be said that Roha factory was a part and parcel of Ambarnath factory or that it was number entitled to any infancy benefit as a new establishment. In order to companye to this companyclusion various salient features of the case which were well established on record were numbered by the learned Judge. The salient features numbered by the learned Judge in this companynection read as under As indicated, the Amharnath Factory was established as long back as in the year 1921 or thereabout while the Roha factory was established as late as in July 1977. The Ambarnath factory manufactures heavy inorganic chemicals and mainly fertilizers while the Roha factory manufactures only organic chemicals. The products manufactured at these two factories are thus separate, distinct and different. The workers of these two factories are also separate. Though at the time when the Roha factory was established or set up, about 5 or 6 employees of the Ambarnath factory were sent to Roha factory to take advantage of their expertise and experience and help set up the Roha factory, this circumstance by itself has hardly any significance in deciding as to whether in law the two factories companystitute one or separate establishments. In the very nature of things when a new factory is sought to be set up, the benefit of such expertise and experience is and surely can be availed of. This by numberstretch can be companysidered to companyclude that the two factories, therefore, companystitute one establishment. Other facts and circumstances also militate against the companytention on behalf of the respondents that the two factories are indeed one for the purpose of the Act. Thus, the two factories have separate registration numbers. The same are also separately registered under the Factories Act. The said factories also maintain and draw up separate profit and loss accounts. The said two factories also have separate works managers and plant superintendents. And each factory also has a separate and independent set of workmen or employees who are number as such transferable from one factory to the other. The workers at the Roha factory were recruited directly from outside sources. One also does number find any supervisory companytrol by either of these factories on the other. The two factories do number have any interconnection as such in the matter of supervisory, financial or managerial companytrol. Inference and companyclusion is irresistible that these two factories companystitute distinctly different entities and separate establishments. In view of these salient features found to be well established on the record, in our view, it companyld number be said that Roha factory only because it is owned by the respondent-Company was number a new establishment or companyld be treated to be a branch or department of Ambarnath factory which by itself was an establishment admittedly companyered by the Act as it was an old establishment since 1921. Learned companynsel for the appellant vehemently companytended that the aforesaid findings reached by the High Court companyld number be said to have companytraindicated the applicability of the Act from the very inception of the establishment of Roha factory because in his view it was squarely companyered by the provision of Section 2-A of the Act. Section 2-A reads as under 2-A. Establishment to include all departments and branches.-- For the removal of doubts, it is hereby declared that where an establishment companysists of different departments or has branches, whether situate in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. It is true that if an establishment is found, as a fact, to companysist of different departments or branches and if the departments and branches are located at different places, the establishment would still be companyered by the net of Section 2-A and the branches and departments cannot be said to be only on that ground number a part and parcel of the parent establishment. However, on the facts of the present case, the only companynecting link which companyld be pressed in service by the learned companynsel for the appellant was the fact that the respondent-Company was the owner number only of the Ambarnath factory but also of Roha factory. On the basis of companymon ownership it was submitted that necessarily the Board of Directors companyld companytrol and supervise the working of Roha factory also and therefore, according to the learned companynsel, it companyld be said that there was interconnection between Ambarnath factory and Roha factory and it companyld be said that there was supervisory, financial or managerial companytrol of the same Board of DirectOrs. So far as this companytention is companycerned the finding reached by the High Court, as extracted earlier, clearly shows that there was numberevidence to indicate any such interconnection between the two factories in the matter of supervisory, financial or managerial companytrol. Nothing companyld be pointed out to us to companytraindicate this finding. Therefore, the net result is that the only companynecting link which companyld be effectively pressed in service by the learned companynsel for the appellant for culling out interconnection between Ambarnath factory and Roha factory was that both of them were owned by a companymon owner, namely, the respondent-Company and the Board of Directors were companymon. That by itself cannot be sufficient unless there is clear evidence to show that there was interconnection between these two units and there was companymon supervisory, financial or managerial companytrol. As there is numbersuch evidence in the present case, on the peculiar facts of this case, it is number possible to agree with the learned companynsel for the appellant that Roha factory was a part and parcel of Ambarnath factory or it was an adjunct of the main parent establishment functioning at Ambarnath since 1921.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 968 of 1968. Appeal by Special Leave from the Judgment dated 21-7-1966 of the Bombay High Court in Appeal No. 86 of 1966 in F.A. No. 102 of 1963. B. Datar and Miss Farhat Quadiri for the Appellant. G. Ratnaparkhi for Respondents 1 a to 1 c , 5, 6 a to 6 g . Sharhad Manohar and Randhir fain for Respondents Nos. 2-3. L. Hathi and M. N. Shroff for Respondent No. 7. The Judgment of the Court was delivered by UNTWALIA, J. This is a plaintiffs appeal by special leave. The Trial Court dismissed the suit and the Bombay High Court maintained the dismissal in appeal by the plaintiffs. The facts are a bit companyplicated. For the disposal of the present appeal, only a few of them need be stated in a narrow companypass. One Ambabai, wife of Chintamanrao Ghatge purchased lands mentioned at items 1A to 1E in the plaint on the. 3rd of December, 1896 in the name of the deity Shri Vithal Rakhumai Dev. Lands at IF, 1G and 1H were endowed by Ambabai to the deity by a deed of endowment executed in January or February 1905. Udder this deed of endowment, one Pandurang Babaji Pawar was appointed as the Vehivatdar Manager and one Bala Appa Yadava was appointed as a servant of the deity. On the 1st of June, 1905, however, Ambabai executed a sale deed in respect of all the suit properties except property 1E in favour of Pandurang and Bala. On the 23rd of June, 1907 Ambabai executed a second Will and in that also she reiterated that Pandurang was being appointed as Vahivatdar and Bala a servant of the deity. Ambabai died on the 12th of March, 1910. After her death Pandurang and Bala partitioned the properties purchased by them by the sale deed dated 1-6-1905. Pandurang got property at IC and the rest went to Bala. Pandurang died on the 13th of February, 1911. Thereafter his widow Radhabai sold the property at1C to one Chinto Deshpande. Chinto sold it to original defendant number 2. Property at 1E came in possession of the original plaintiffs-plaintiff number 1 being Yeshwantrao Laxmanrao. He claimed to be a Manager and hereditary trustee of the deity. Original plaintiff number2 who died during the pendency of the suit and on whose death his legal, representative was substituted claimed to be the hereditary Pujari of the deity. Property at 1E had companye in possession of the plaintiffs long time back and plaintiffs number 1 treated the said property as his own. There were several other transfers inter se between the defendants and ultimately in one form or the other defendants 1 to 6 came to hold one kind of interest or the other in the various suit properties. The plaintiffs instituted the suit in the year 1961 with the permission of the Charity Commissioner, Maharashtra defendant number 7. The suit was instituted under sections 50 and 51 of the Bombay Public Trusts Act, 1950-hereinafter called the Act, to recover possession of the suit properties from defendants 1 to 6. Property at 1 E have been sold by plaintiff number 1 on the 17th of September, 1947 to original defendant number. 2 and The sales made in the year 1905 as also in the year 1947 were attacked as being void and number binding on the deity. Although specifically the deity was number impleaded as a plaintiff in the suit, as observed by the District Judge, Sitara who tried the suit in the first in-stance, to all intents and purposes the suit was by the deity and the two Plaintiffs. Defendants companytested the suit on several grounds. Several issues were framed and tried by the learned District Judge. He held that the properties in suit were bequeathed by Ambabai to the deity. The sale deed dated 1-6-1905 was obtained by undue influence. It was without legal necessity and was number for the benefit of the Devasthan. It was, therefore, held to be number binding on the Devasthan. Then purchaserspossession over the land sold was, therefore, held to be void and adverse. Same were the findings of the Trial Court in respect of the property at 1 The suit was, however, dismissed on the ground that it was barred by limitation. On appeal by the plaintiffs, only limited submissions were made by them in the High Court. The finding of the Trial Court that the respective purchasers were in adverse possession of the properties at 1A to 1D and IF to 1H was number attacked. The finding of the Trial Court, however, in respect of property at 1E was assailed but without success. The High Court dismissed the appeal. Mr. R. B. Datar, learned companynsel for the appellants put in great industry in arguing this appeal and took us to the various facts and facets of the case. Having appreciated them all, the points which ultimately crystallized in argument are the following Section 52A was introduced in the Act by Bombay Act 23 of 1955 and in view of the said provision of law, there was numberlimitation for recovery of the properties of a Public Trust in accordance with the Act. A suit for the recovery of the properties was number barredin the year 1955 when section 52A came into force. That in any view of the matter, claim regarding 1E of the property was obviously number barred in the year 1955 and companyld number be held to be so in suit instituted in the year 1961 after companying into force of section 52A. Learned companynsel for the respondents companybated all the submissions made on behalf of the appellants. In our judgment, there is numbersubstance in any of the points urged on behalf of the appellant. The possessionof the purchasers was adverse in respect of all the properties at 1 A to 1 D and 1 F to 1 H from the very beginning. By such adverse possession those who had companye in possession of these properties had acquired an indefeasible title under the Indian Limitation Act, 1908. It is number necessary to decide in this case as to which of the articles in the first Schedule of the said Limitation Act applied to this case. Whether it was Articles 134, 134A, 134B, 142 or I, the claim had become barred long, long before the year 1955. The effect of section 28 of the Limitation Act was that right to the property was extinguished resulting in companyferment of a title by adverse possession on the persons in possession of the companycerned properties. It is well-known that the effect of section 28 of the Limitation Act is number only to bar the remedy but also to extinguish the right. The right to the property itself was dead and gone. It companyld number be revived by a provision like the one companytained in section 52A of the Act. Section 52A reads as follows Notwithstanding anything companytained in the Indian Limitation Act, 1908, numbersuit against an assignee for valuable companysideration of any immovable property of the Public trust which has been registered or is deemed to have been registered under this Act for the purpose of following in his hands, such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. It is a well established proposition of law that the law of limitation fixing a period of limitation for the initiation of any suit or proceeding is a procedural law and number a substantive one. Section 52A had, by numberstretch of imagination, the effect of reviving an extinguished and lost claim and giving life to a dead horse. If the claim was number barred and the right to the property was number extinguished when Section 52A came into force, then a suit instituted thereafter companyld number be defeated under any of the Articles of the Limitation Act of 1908 or even of the new Limitation Act of 1963. In express terms it over-rides the provisions of the Limitation Act including the provision in section 28 of the Limitation Act, 1908. But then the over-riding effect of section 52A will have its play and operation, only if, by the time it came into force, section 28 had number extinguished the right to the property in question. Otherwise number. In Mahant Biseshwar Dass v. Sashinath Jhan and others 1 a Bench of the Patna High Court pointed out that where the right of the plaintiff bad become barred by limitation before the Amending Act of 1929 was passed the mere institution of the suit after 1929 cannot have the effect of reviving that right. By the Amending Act of 1929 in section 10 of the Limitation Act it was provided that numbersuit instituted against a person in whom property had become vested in trust for an., specific purpose or against his legal representatives or assigns for the purposes mentioned in the section would be barred by any length of time From the category of assigns, assigns for valuable companysideration were left out. The question before the Patna High Court in the case referred to above was whether the amendment brought About in the year 1929 companyld revive a right which was extinguished, dead and gone prior to 1929. In that companynection the answer given was in the negative. The A.I.R. 1943, Patna, 289. view so expressed in the Patna decision is perfectly, sound and companyrect, and numberdecision to the companytrary was brought to our numberice. Under section 52A of the Bombay Act even assignees for valuable companysideration have been roped in to save the suit from the bar of any period of limitation. But then on an application of the principle referred to about it is plain that section 52A companyld number have the effect of reviving an extinguished right. In Mt. Allah Rakhi and others v. Shah Mohammad Abdur Rahim and others 1 Sir Lord Lancelot Sanderson delivering the judgment on behalf of the Board ruled that in regard to a, suit brought on 29th January, 1926 the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at. that time. The provisions of the Amendment Act of 1929 which had companye into force on the 1 st of January, 1929 were held to be inapplicable. Of companyrse, even in the light of the old section it was held that the suit was number barred by limitation and the decree of the High Court was affirmed. Krishnan J. in the case of Balram Chunnilal and others v. Durgalal Shivnarain 2 expressed a view identical to the one expressed by the Patna High Court vide end of paragraph 36 page 86 companyumn 10. Mr. Datar placed reliance upon the decision of the Bombay High Court in Dev Chavata and another v. Ganesh Mahadeo Deshpande and another 2 in order to take advantage of section 52A of the Act. The ratio of the case has of be appreciated in the background of the facts found therein. The principles of law as enunciated cannot be fully and squarely applied. But yet the decision, if we may say so with respect, is companyrect. This would be on the footing that the decision given by the Assistant Charity Commissioner under section 79 read with section 80 of the Act was companyclusive and final. He bad exclusive jurisdiction to decide the question as to whether the suit land belonged to the trust. He had so decided it on November 5, 1954. The suit was filed on July 21, 1955. In that view, the High Court was right in holding that a, suit filed under section 50 of the Act was number barred under section 52A because the decision of the Assistant Charity Commissioner given In 1954 had declared the property to be a trust property and which decision was final. For the reasons stated above, it is clear that the appellants companyld number take advantage of section 52A of the Act in respect of the properties at 1A to ID and IF to 1.G. Argument put forward by Mr. Datar to show that the claim was number barred in the year 1955 when section 52A came into force was absolutely devoid of any substance. It was against the stand taken in the High Court and does number merit any detailed discussion in our judgment. Coming to property at 1E number, we must companyfess at the outset that during the companyrse of argument at one time, we thought that this property having been sold in the year 1947 by plaintiff number 1, the right to A.I.R. 1934 Privy Council,177 A.I.R. 1968 Madhya Pradesh, 81. A.I.R. 1970 Bombay, 412. the property was number extinguished under section 28 of the Limitation Act in the year 1955. Therefore, although the suit was instituted in the year 1961, beyond 12 years of 1947, it would perhaps be saved under section 52A from the bar of limitation. But on a closer scrutiny and on appreciation of the argument of the other side in the light of the finding recorded by the High Court, we did number feel persuaded to give relief to the appellants even in regard to property at 1E. The High Court has found that plaintiff number 1 had acquired, title to property 1E by adverse possession long before 1947. He dealt with this property as his own. Even when the trust was declared as a Public Trust by the Charity Commissioner in or about the year 1954, the property at 1E was number shown as a trust property. The sale, therefore, in the year 1947 by plaintiff number 1 companyveyed a good title to the purchaser. The lost right to this property long before 1947 companyld number be saved and revived in the year 1955 or 1961 by section 52A of the Act. We, therefore, hold in agreement with the High Court that the suit was barred by limitation in regard to this property also.

ORIGINAL JURISDICTION Writ Petitions Nos. 76, 217 to 228 of 1960. Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights. V. Viswanatha Sastri and T. V. R. Tatachari, for the petitioners In petitions Nos. 76, 87, 93-104 and 217-228 of 1960 . V. R. Tatachari, for the petitioners In petitions Nos. 72 and 229-233 of 1960 . Narasaraju, Advocate General for the State of Andhra Pradesh, P. R. Ramchandra Rao and T. M. Sen, for the respondents In all the petitions . 1960. September 8. The Judgment of the Court was delivered by SUBBA RAO J.-These petitions are filed under Art. 32 of the Constitution for the enforcement of the petitioners fundamental right to carry on the business of motor transport in West Godavari District in the State of Andhra Pradesh by the issuance of writs of certiorari or any other appropriate writs, orders or directions to quash the schemes of road transport services as finally approved by the Government of Andhra Pradesh on March 21, 1960, and for other incidental reliefs. In exercise of the powers companyferred by s. 68C of the Motor Vehicles Act IV of 1939 , as amended by the Central Act 100 of 1956, hereinafter called the Act , Shri Guru Pershad, the Chief Executive Officer, Andhra Pradesh State Road Transport Corporation, hereinafter called the Transport Corporation published seven proposals dated December 7, 1959, in the Andhra Pradesh Gazette dated December 17, 1959, propounding seven schemes for the nationalization of the road transport in respect of different parts of West Godavari District in that State. Under that numberification objections from the public and affected parties were invited to be filed within 30 days of the publication thereof More than 3000 objections were received by the Government against the said schemes. After companysidering the objections, the Government issued numberices to the objectors or their representatives and the representatives of the Transport Corporation informing them of the time, place and the dates of hearing. On the numberified dates, namely, March 10, 11 and 12, 1960, 200 objectors were present and most of them were represented by Advocates. The Transport Corporation was also represented by its Chief Executive Officer and its legal advisers. The Minister in charge of the portfolio of transport held an enquiry, companysidered the companyflicting arguments advanced, gave definite findings on the points urged, rejected all the objections but one and approved the schemes with a slight modification. The seven schemes were directed to be put in force from different dates which were given in the order made by the Minister. The aggrieved operators who were number satisfied with the order of the Minister filed the present petitions for the said reliefs. Shri A. V. Viswanatha Sastri, learned companynsel for the petitioners, raised before us the following points. The provisions of Ch. IVA of the Act are ultra vires the powers of Parliament because they are within the exclusive legislative field of the States. 2 The provisions of Ch. IVA of the Act infringe the fundamental rights of the petitioners under Art. 19 1 g of the Constitution and are number saved by el. 6 of the said Article. 3 The provisions of Ch. IVA are also violative of Art. 14 of the Constitution. 4 The order of the Government companyfirming the schemes is vitiated by the doctrine of bias and, therefore, void. 5 Though in fact seven schemes are framed, in effect they are companyponent parts of one scheme and that device has been adopted to circumvent the judgment of this Court in Srinivasa Reddy v. The State of Mysore 1 . 6 The schemesare void inasmuch as they area prepared and published by the Chief Executive Officer who was number one of the persons who companyld act on behalf of the Transport Corporation under s. 13 of the Road Transport Corporations Act. 7 The schemes as propounded by the Transport Corporation did number give the number of vehicles proposed to be operated in each route as it should have given under r. 4 of the Andhra Pradesh Motor Vehicles Rules hereinafter called the rules and the modification made by the Minister directing the Transport Corporation to do so does number also companyply with the requirements of the said rule. 8 In exercise of the power companyferred under r. 5 of the-Rules, the State Transport Under, taking companyferred upon itself power to vary the frequency of the services and that rule and the numbere made pursuant thereto are inconsistent with the provisions of the Act and, therefore, void. 9 The proposed schemes include three new routes and that is illegal as the said Transport Undertaking has numberpower to include any new routes in a scheme proposed by it. Though many other questions are raised in the petitions, they are number pressed before us. Learned Advocate General for the State of Andhra Pradesh sought to sustain the schemes as approved by the Minister in their entirety. 1 1960 2 S.C.R. 130. We shall number proceed to deal with the companytentions in the order they were raised. Re. 1 The first companytention does number number merit a detailed companysideration as it has been companysidered and rejected by this Court in H. C. Narayanappa v. The State of Mysore 1 . In that case, after companysidering the question, Shah, J., speaking for this Court, observed We are therefore of the view that Chapter IVA companyld companypetently be enacted by the Parliament under entry No. 21 read with entry No. 35 of the Concurrent List. Nothing further Deed be said on this point. With respect we accept and follow the said decision. Re. 2 The next companytention is based upon Art. 19 of the Constitution. The question is whether Ch. IVA of the Act is saved by Art. 19 6 of the Constitution. If Chiva, which provides for the nationalization of road transport services in the manner prescribed, thereunder is number a permissible legislation companyered by Art. 19 6 , it would certainly offend against the fundamental right of the petitioners to do business in motor transport. The companystitutional validity of Ch. IVA of the Act was raised in Gullapalli Nageswara Rao Andhra Pradesh Road Transport Corporation 2 . There it was argued that Ch. IVA of the Act was a piece of companyourable legislation whose real object was to take over the business of the petitioners therein under the companyer of cancellation of permits in companytravention of Art. 31 of the Constitution and that plea was rejected by this Court. But numberattack was made on the validity of Ch. IVA of the Act on the ground that it infringed the provisions of Art. 19 1 g of the Constitution and was number saved by cl. 6 of the Article. That point is number raised before us. Under Art. 19 1 g , all citizens shall have the right to carry on trade or business. The material part of 6 of Art. 19, as amended by the Constitution First Amendment Act, 1951,reads Nothing in sub-clause g of the said clause shall affect the operation of any existing law in so far 1 1960 3 S.C.R. 742. 2 1959 Supp. 1 S.C.R. 319. as it relates to, or prevent the State from making any law relating to the carrying on by the State, or by a companyporation owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. The only question is, how far and to what extent Art. 19 6 secures the validity of Ch. IVA of the Act from attack that it offends against Art. 19 1 g ? Learned companynsel for the Petitioners companytends that Art. 19 6 ii provides only for partial exclusion of citizens, that is, the exclusion of a certain class of persons as a whole and number for partial exclusion of some among the same class. As s. 68C, the argument proceeds, enables the State Transport Undertaking to frame a scheme for excluding some among the same class, the said provision is number saved by Art. 19 6 of the Constitution. Relevant portions of s. 68C of the Act read Where any State transport undertaking is of opinion that 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, companyplete, or partial, of other persons or otherwise Under this section a scheme may be framed in respect of road transport service in general or in respect of a particular class of such service empowering the State Transport Undertaking to run the said service it may be in relation to any area or route or a portion thereof it may also be to the exclusion of all or some of the persons running the said service in general or a particular class of it. The section enables the State to take over particular class of a service, say, the bus service, and exclude all or some of the persons doing business in that class of service. Learned companynsel says that this section companyfers a wide power beyond the permissible limits of Art. 19 6 ii of the Constitution. To state it differently, the argument is that while Art. 19 6 ii does number enable a partial exclusion of some among the same class of service, s. 68C permits the said exclusion. The answer to this argument depends upon the true meaning of the provisions of the said Article. Under sub-cl. ii of Art. 19 6 , the State can make a law relating to the carrying on by the State or by a companyporation owned or companytrolled by the State, of any particular business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. Article 19 6 is only a saving provision and the law made empowering the State to carry on a business is secured from attack on the ground of infringement of the fundamental rights of a citizen to the extent it does number exceed the limits of the scope of the said provision. Sub-clause ii is companyched in very wide terms. Under it the State can make law for carrying on a business or service to the exclusion, companyplete or partial, of citizens or otherwise. The law, therefore, can provide for carrying on a service to the exclusion of all the citizens it may, exclude some of the citizens only it may do business in the entire State or a portion of the State, in a specified route or a part thereof The word service is wide enough to take in number only the general motor service but all the species of motor service. There are, therefore, numberlimitations on the States power to make laws companyferring monopoly on it in respect of an area, and person or persons to be excluded. In this view, it must be held that s. 68C does number exceed the limits prescribed by Art. 19 6 ii of the Constitution. Re. 3 The next companytention is that the provisions of Ch. IVA of the Act, and particularly those of s. 68C thereof, offend against Art. 14 of the Constitution. The argument is that Ch. IVA enables the State to make a discrimination between the State Road Transport Corporation on the one hand and private operators and private transport undertakings on the other, and also to make a similar discrimination between the private operators or the private transport undertakings, and that this discrimination is left to the arbitrary discretion of the Transport Corporation. It is true that the provisions of this Chapter enable a scheme to be framed companyferring a monopoly on the State in respect of transport services to the partial or companyplete exclusion of other persons. However, the provisions of the scheme do number make any distinction between individuals operating a transport service and private transport undertakings they are all treated as one class and the classification is only made between the State Transport Undertaking and private transport undertakings, whether the business is carried on by individuals or firms or companypanies. The only question, therefore, is whether such a classification offends against the equality clause of the Constitution. Article 14 says The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. This doctrine of equality has been so frequently companysidered by this Court that it does number require any further companysideration. It has been held that this Article does number prohibit reasonable classification for the purpose of legislation, but such a classification cannot be arbitrary but must be based upon differences which have rational relation to the object sought to be achieved. Doubtless in the present case, the Legislature placed the State Transport Undertaking in a class different from other undertakings. The question is whether the classification made in Ch. IVA of the Act is just and has reasonable relation to the object of the legislation. The object of Ch. IVA, as disclosed by the provisions of s. 68C, is to provide in the interest of the public an efficient, adequate, economical and properly companyrdinated road transport service. To achieve that object s. 68C companyfers a power on the State Transport Undertaking to prepare a scheme to run the service, whether to the exclusion, companyplete or partial, of other persons or otherwise. The classification has certainly reasonable nexus to the object sought to be achieved. Ordinarily a State Transport Undertaking, companypared with per. sons or private undertakings, should be in a better Position than others to carry on the said services for the benefit of the public administratively, financially and technically it can be expected to be in a far better position than others. It can provide more well equipped buses, give better amenities to the travelling public, keep regular timings, repair or replace the buses in emergencies. It may also employ efficient supervisory staff to keep things going at an appreciably high standard. We are number suggesting that there are numberindividuals or private companypanies who can efficiently run the service. But the State, companypared with individuals, should certainly be in a better position to achieve the object, namely, to improve the road transport service in all its diverse aspects. In such a situation, when the legislature, which must be presumed to understand and companyrectly appreciate the needs of its own people, makes a classification between a State Transport Undertaking and others carrying On the business of transport services, we cannot say that there is numberreasonable basis for such a classification. But it is said that s. 68C of the Act and other provisions of Ch. IVA thereof companyfer an arbitrary power upon the State Transport Undertaking to discriminate between individuals and the said Undertaking between individuals and private undertakings, and between individuals and individuals. But the scheme of Ch. IVA, which has been companysidered by this Court in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation 1 , evolves a machinery for keeping the State Transport Undertaking within bounds and from acting in an arbitrary manner, for s. 68C lays down the legislative policy in clear and understandable terms and the State Transport Undertaking can initiate a scheme only for providing an efficient, adequate, economical and properly companyrdinated road transport service. Another companydition which it lays down is that the scheme is necessary in the public interest. The scheme so framed is published, with allnecessary particulars, in the official Gazette and also in such manner as the State Government may direct persons affected by the scheme may file objections within the prescribed time the State Government, after companysidering the objections and 1 1959 Supp. 1 S.C.R. 319. giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be beard in the matter, may approve or modify the scheme the scheme so approved or modified is published. The rules framed under the Act provide for personal hearing. If the State Transport Undertaking seeks to modify a scheme, it will have to follow the same procedure before doing so see as. 68C, 68D and 68E of the Act. It will be seen from the provisions of Ch. IVA of the Act that the State Transport Undertaking, before propounding a scheme, arrives at the decision on objective criteria. The parties affected and the public are given every opportunity to place their objections before the Government, and the Government, after following the prescribed quasijudicial procedure, companyfirms or modifies the scheme. The scheme, before it is finalised, is subjected to public gaze and scrutiny and the validity and appropriateness of the provisions are tested by a quasi-judicial process. The Government cannot be equated to a Court but the procedure prescribed accords with the principles of natural justice. It is said that the State Transport Undertaking is either the State Government or a companyporation, owned or companytrolled by the State, and as such the entire quasi-judicial procedure prescribed is only a cloak to screen the exercise of an absolute and arbitrary power on the part of the Government. We cannot say that Ch. IVA is such a device. The Legislature made a sincere attempt to protect as far as possible individual rights from the arbitrary acts of the executive. Once it is companyceded that Ch. IVA of the Act is companystitutionally good and that the Legislature can validly make law for nationalization of the road transport service, the procedure laid down for implementing the said policy cannot, in our view, be said to be unreasonable. If in any particular case the mala fides of the authorities companycerned and companylusion between the State Transport Undertaking and the State Government to deprive particular persons of their right to do road transport business or to drive out particular persons from the trade on extraneous companysiderations, are established, that may be a ground for striking down that particular scheme. But the provisions of Ch. IVA cannot be struck down on the ground that they companyfer an arbitrary power on the State Transport Undertaking and on the State Government to discriminate between individuals and the State Transport Undertaking, between individuals and private undertakings, and between individuals and individuals. This question was raised in Saghir Ahmad v. The State of U. P. 1 . That case dealt with the provisions of the U. P. Road Transport Act, 1951 U. P. Act II of 1951 . Under s. 42 3 of that Act the Government was exempt from taking permits for its own vehicles and it companyld run any number of buses as it liked without the necessity of taking out permits for them. In furtherance of the State policy to establish a companyplete State monopoly in respect of road transport business, the transport authorities began number only to cancel the permits already issued to private operators but also refused to issue permits to others, who would other. wise be entitled to them. The companystitutional validity of that section was questioned. It may also be mentioned that though that decision was given after the Constitution First Amendment Act, 1951, it was number based upon that amendment, as the Constitution before the amendment governed the rights of the parties therein. In that situation, adverting to the argument based upon Art. 14 of the Constitution, Mukherjea, J., as he then was, made the following observations at p. 731 There is numberdoubt that classification is inherent in the companycept of a monopoly and if the object of legislation is to create monopoly in favour of the State with regard to a particular business, obviously, the State cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is companycerned and this classification would have a perfectly rational relation to the object of the statute., Section 3 of that Act provided that where the State 1 1955 1 S.C.R. 707. Government is satisfied that it is necessary, in the interest of general public and for subserving the companymon good, so to direct, it may declare that the Road Transport Services in general, or any particular class of such service on any route or portion thereof, shall be run and operated by the State Government exclusively or by the State Government in companyjunction with railway or partly by the State Government and partly by others in accordance with the provisions of this Act It was companytended therein that, as the State companyld choose any and every person it liked for the purpose of being associated with the transport service and as there were numberrules to guide its discretion, that provision would offend against Art. 14 of the Constitution. It was pointed out on behalf of the State that the discretion under s. 3 of that Act was number uncontrolled as that companyld Only be done by granting of permits in accordance with the provisions of the Motor Vehicles Act. Accepting the companystruction suggested, this Court held that the discretion to be exercised by the State would be a, regulated discretion guided by statutory rules. But in the instant case, numberliberal companystruction of the provisions need be resorted to, for Ch. IVA of the Act in specific terms provides a companyplete and, in the circumstances, satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from the numberified area or route. We, therefore, hold that the provisions of Ch. IVA of the Act do number infringe the equality clause enshrined in Art 14 of the Constitution. Re. 4 By the next companytention the learned companynsel attacks the validity of the scheme on the ground that the Government is actuated by bias against the private operators of buses in West Godavari District, and indeed had predetermined the issue. In the petitions it was alleged that the Government had companyplete companytrol over the Road Transport Corporation that the entire administration and companytrol over such road transport undertaking vested in the Government, that the Chief Secretary to the Government of Andhra Pradesh was its chairman and that, therefore, the entire scheme, from its inception to its final approval, was really the act of the Government. On this hypothesis it was companytended that the Government itself was made a judge in its own cause and that, therefore, its decision was vitiated by legal bias. That apart, it was also pleaded that a subcompanymittee, companysisting of Ministers, Secretaries and officers of companynected departments and presided over by the Minister in charge of transport, decided in its meeting of January 28, 1960, that under the scheme of nationalization of bus service, the State Government would take over the bus services in West Godavari District and Guntur District before the end of that year and, therefore, the Minister in charge of the portfolio of transport, he having predetermined-the issue, disqualified himself to decide the dispute between the State Transport Undertaking and the petitioners. The self same questions were raised in Gullapalli Nagestvara Rao v. The State of Andhra Pradesh 1 . There, as in this case, it was companytended that the Chief Minister, who was in charge of the portfolio of transport, companyld number be a judge in his own cause, as he was biased against the private operators. This Court pointed out the distinction between official bias of an authority which is inherent in a statutory duty imposed on it and personal bias of the said authority in favour of, or against, one of the parties. In dealing with official bias this Court, after companysidering the relevant English decisions, observed at p. 587 thus These decisions show that in England a statutory invasion of the companymon law objection on the ground of bias is tolerated by decisions, but the invasion is companyfined strictly to the limits of the statutory exception. It is number out of place here to numberice that in England the Parliament is supreme and therefore a statutory law, however repugnant to the principles of natural justice, is valid whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution. 1 1960 1 S.C.R. 580. Then this Court proceeded to state that the provisions of the Act did number sanction any dereliction of the principles of natural justice, for the Act visualized in case of companyflict between the undertaking and the operators of private buses that the State Government should sit in judgment and resolve the companyflict. Much to the same effect has been stated by Shah, J., in H. C. Narayanappa v. The State of Mysore 1 though in slightly different phraseology. The learned Judge stated It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the ,authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is number open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will number be liable to be called in question, merely because he is a limb of the Government. In the above cases the transport department of the Government was the transport undertaking, but here the State Road Transport Corporation, which is a body companyporate having a perpetual succession and companymon seal, is the transport authority. Though under the provisions of the Act, the State Government has some companytrol, it, cannot be said either legally or factually that the said Corporation is a department of the State Government. The State Government, therefore, in deciding the dispute between the said undertaking and the operators of private buses is only discharging its statutory functions. This objection, therefore, has numbermerits. Nor can we say that it has been established that the Minister in charge of the portfolio of transport has been actuated by personal bias. The fact that he presided over the sub-committee companystituted to implement the scheme of nationalization of bus services in the West Godavari District does number in 1 1960 3 S.C.R. 742. itself establish any such bias. Indeed, in the companynter affidavit filed on behalf of the first respondent the companytents and authenticity of the reports of the proceedings of the sub-committee published in the Telu daily Andhra Pradesh were number admitted. Even if the sub-committee came to such a decision, it is number possible to hold that it was a final and irrevocable decision in derogation of the provisions of the Act. it was only a policy decision and in the circumstances companyld only mean that the sub-committee advised the State Government to implement the policy of nationalization of bus services in that particular district. The said decision companyld number either expressly or by necessary implication involve a predetermination of the issue it can only mean that the policy would be implemented subject to the provisions of the Act. It is number suggested that the Minister in charge of the companycerned portfolio has any personal bias against the operators of private buses or any of them. We, therefore, hold that it has number been established that the Minister in charge of the portfolio of transport bad personal bias against the operators of private buses and, therefore, disqualified himself from hearing the objections under Ch. IVA of the Act. Re. 5 The next companytention is based upon the observations of this Court in Shrinivasa Reddy v. The State of Mysore 1 . After elaborating on the scope of s. 68C of the Act, Wanchoo, J., observed at p. 136 thus Therefore, the scheme to be framed must be ,such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof If the Undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of s. 68E. Based on these observations it is companytended that the State Government intended to frame only one scheme 1 1960 2 S C.R. 130. for the entire district though it was number in a position to implement the scheme in the entire district at one and the same time, but to circumvent the observations of this Court it had split up one scheme into seven schemes. The first respondent in its companynter affidavit met this allegation in the following way Having regard to the resources of the Undertaking in men, material and money, each scheme has been so framed that it is capable of being carried out all at once, and in full, without breaking its integrity The State Transport Undertaking will carry out each of the published schemes on a date fixed by the State Government for the implementation of each scheme. The Minister in his order also adverted to this aspect and observed In this case, seven different schemes have been framed. Each scheme is a separate and independent scheme by itself In terms of the numberification, each scheme after approval will companye into force only from a date to be, fixed by the Government. Though different dates may be fixed for each scheme, each scheme will be implemented in its entirety. No piecemeal implementation of any one scheme will be done . Indeed the order of the Minister fixed specific dates from which each of the schemes shall companye into force. This Court did number lay down that there cannot be any phased programme in the nationalization of transport services in a State or in a district number did it hold that there cannot be more than one scheme for a district or a part of a district. The observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by discriminating against some operators and in favour of others in respect of a single scheme. In the present case, seven schemes were framed number to circumvent the observations of this Court, but only to avoid the vice inherent in piecemeal implementation. Not only seven separate schemes were framed in respect of separate areas of the district, but also the Government made it clear that each scheme should be implemented in its entirety companymencing from different dates. We do number, therefore, see any legitimate objection to the framing of seven separate, schemes. Re. 6 This companytention questions the validity of the schemes on the ground that the Chief Executive Officer of the Andhra Pradesh Road Transport Corporation is number empowered to publish the schemes and, therefore, the schemes were number validly published. In exercise of the powers companyferred by S. 68C of the Act, the Andhra Pradesh State Road Transport Corporation proposed the schemes and published them in the Andhra Pradesh Gazette, Part 11, p. 1310. The proposed schemes were signed by Guru Pershad, Chief Executive Officer, State Transport Undertaking, Andhra Pradesh Road Transport Corporation, The relevant provisions of the Road Transport Corporations Act, 1950 Act LXIV of 1950 may be numbericed at this stage. Under s. 4 of the said Act, Every Corporation shall be a body companyporate by the name numberified under section 3 having perpetual succession and a companymon seal, and shall by the said name sue and be sued . Relevant portions of s. 12 read A Corporation may from time to time by resolution passed at a meeting authorize the Chief Executive Officer or General Manager, or any other officer of the Corporation subject to such companyditions and limitations if any as may be specified in the resolution to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business. Section 13 says All orders and decisions of a Corporation shall be authenticated by the signature of the Chairman or any other member authorized by the Corporation in this behalf and all other instruments issued by a Corporation shall be authenticated by the signature of the Chief Executive Officer or General Manager or any other officer of the Corporation authorized in like manner in this behalf. Relying upon the said provisions, learned companynsel for the petitioners companytends that the preparation and publication of the schemes in question under s. 68C of the Act are orders or decisions of the Corporation and, therefore, should be authenticated by the signature of the Chairman or any other member duly authorized under s. 13 of the Road Transport Corporations Act and number by the Chief Executive Officer. The first respondent in its companynter-affidavit attempted to meet this companytention by stating that the Corporation by resolution authorized the Chief Executive Officer to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business and the Chief Executive Officer in exercise of such authorization published the schemes in the Gazette. The first respondent relied upon s. 12 of the Road Transport Corporations Act and number on s. 13 thereof to sustain the power of the Chief Executive Officer to publish the schemes. We have numberreason number to accept the statement of the first respondent that there was a resolution passed by the Corporation in terms of s. 12 c of the Road Transport Corporations Act. If so, the only question is whether the act of publishing the proposed schemes framed by the Corporation in the Gazette pertains to the day to day administration of the Corporations business. The Chief Executive Officer has numberpower under the Act to frame a scheme. Section 68C empowers only the State Transport Undertaking to prepare a scheme and cause every such scheme to be published in the official Gazette and also in such other manner as the State Government may direct. The scheme, therefore, need number be directly published by the Corporation, but it may cause it to be published in the official Gazette. The act of publishing in the official Gazette is a ministerial act. It does number involve any exercise of discretion. It is only a mechanical one to be carried out in the companyrse of day to day administration. So understood, there cannot be any difficulty in holding that it was purely a ministerial act which the Chief Executive Officer by reason of the aforesaid resolution can discharge under s. 12 c of the Road Transport Corporations Act. It must be presumed for the purpose of this case that the Corporation decided the terms of the proposed schemes and the said decision must have been duly authenticated by the Chairman or any other member authorized by the Corporation in this behalf and the Chief Executive Officer did numberhing more than publish the said scheme in exercise of its administrative functions. We, therefore,, hold that the Chief Executive Officer was well within his rights in publishing the said proposed schemes in the Andhra Pradesh Gazette. Re. 7 The next argument turns upon the provisions of r. 4 of the Andhra Pradesh Motor Vehicles Rules. The relevant part of the rule reads The scheme or approved scheme to be published in the official Gazette as required under section 68C or 68D as the case may be, shall companytain the following particulars i ii the number of vehicles proposed to be operated on each route . In certain schemes the number of vehicles to be operated on each route was number specified, and one number was mentioned against two or more routes bracketing them. When an objection was taken before the Government in regard to this matter, the Minister accepted it and directed that the scheme might be modified so as to indicate the number of vehicles to be operated on each route separately. The schemes were accordingly modified by indicating the number of vehicles to be operated on each route separately and the approved schemes with the said modification were duly published in the Gazette dated March 21, 1960. The approved schemes, therefore, satisfy rule 4 2 ,of the Rules, for the approved schemes, as duly modified, companytain the number of vehicles proposed to be operated on each route. But the point sought to be made is that the Minister himself should have fixed the number of vehicles proposed to be operated on each route and should number have merely directed the appropriate modification to be made in the approved schemes. It does number appear from the record that there was any dispute before the Minister as regards the apportionment of the number of vehicles shown against two or more routes to each of the routes but the only companytention raised was that the bracketing of the number of vehicles between two or more routes companytravened the provisions of r. 4. Though the order of the Minister only companytains a direction, the apportionment of the vehicles, between the routes was number made by the State Transport Authority, but only by the Government, for the approved schemes were published number by the Chief Executive Officer but by the State Government. It must be presumed that the allocation also must have been made with the approval of the Minister. There are numbermerits in this objection either. Re. 8 The next companytention is that r. 5 framed by the State Government in exercise of the power companyferred on it under s. 68 1 is inconsistent with the provisions of s. 68B of the Act and, therefore, is void. The schemes prepared by the State Transport Authority companytain the following numbere The frequency of services on any of the numberified routes or within any numberified area shall, if necessary, be varied having regard to the traffic needs during any period . Indeed the said numbere was practically a reproduction of a numbere appended to r. 5. The only question is whether r. 5 and the numbere made pursuant thereto companye into companyflict with s. 68E of the Act. Section 68E reads Any scheme published under sub-section 3 of section 68D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68C and section 68D 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. The short question that arises is whether the variation of frequency of service by the State Transport Undertaking amounts to a modification of a scheme within the meaning of s. 68E of the Act. The rule is number so innocuous as the learned Advocate-General of the Andhra Pradesh companytends. Under that rule the State Transport Undertaking, having regard to the needs of traffic during any period, may increase or decrease the number of trips of the existing buses or vary the frequency by increasing or decreasing the number of buses. This can be done without any reference to the public or without hearing any representations from them. This increase or decrease, as the case may be, Can only be for the purpose of providing an efficient, adequate, economical transport service in relation to a particular route within the meaning of s. 68C. At the time the original schemes are proposed, the persons affected by them may file objections to the effect that the number of buses should be increased or decreased on a particular route from that proposed in the schemes. The Government may accept such suggestions and modify the schemes but under this rule the authority may, without reference to the public or the Government, modify the schemes. Learned companynsel companytends that the numbere only provides for an emergency. But the rule and the numbere are companyprehensive enough to take in number only an emergency but also a modification of the scheme for any period which may extend, to any length of time. We are, therefore, definitely of opinion that the rule companyfers power on the State Transport Undertaking to modify substantially the scheme in one respect, though that power can only be exercised under s. 68E of the Act in the manner prescribed thereunder. This rule is void and, therefore, the said numbere was illegally inserted in the schemes. But on that ground, as the learned companynsel companytends, we cannot hold that the schemes are void. The numbere is easily severable from the scheme, without in any way affecting their structure. Without the numbere the schemes are self-contained ones and it is impossible to hold that the schemes would number have been framed in the manner they were made if this numbere was number allowed to be included therein. We, therefore, hold that the numbere should be deleted from the schemes and the schemes are otherwise good. Re. 9 The last of the arguments attacks the schemes in so far as they include new routes. The new routes included in the schemes are Eluru to Kovvur, and Nidadavol to Jeelugumilli. It is argued that the provisions of s. 68C are companycerned with the existing routes only. Support is sought to be drawn for this companytention from the provisions of s. 68C of the Act. The relevant part of that section says Where any State transport undertaking is of opinion that 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 the State transport undertaking may propose a scheme . Now the companytention is that the word route in that section refers to a preexisting route, for it is said that the words route or portion thereof in the section clearly indicate that the route is an existing route, for a scheme cannot be framed in respect of a portion of a proposed route. We do number see any force in this companytention. Under s. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is numberinherent inconsistency between an area and a route . The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of s. 68C. We, therefore, hold that s. 68C certainly empowers the State Transport Undertaking to propose a scheme to include new routes. Though some other points were raised in the affidavits filed before us, they were number pressed. In the result we hold that the numbere relating to the frequency of the services appended to the schemes must be deleted and that in other respects the petitions fail and accordingly they are dismissed with companyts.

Markandey Katju, J. Leave granted. Shera was the symbol of the recent Commonwealth Games, but ironically Shera has been almost exterminated in our companyntry. The Sher Khan of Rudyard Kiplings Jungle Book, which once abounded in India, is rarely to be seen today. This case reveals how avaricious and rapacious persons have by organized crime destroyed large parts of the wild life of India and brought many animals e.g. tigers, leopards, bison, etc. almost to the brink of extinction, thereby seriously jeopardizing and destroying the ecological chain and ecological balance in our environment. The appellant herein has been companyvicted under the Wildlife Protection Act, 1972 by all the three companyrts below and number he is in appeal before us. Before dealing with the facts of this case, we would like to companyment upon the background. India, at one time, had one of the richest and most varied fauna in the world. However, over the last several decades there has been rapid decline of Indias wild animals and birds which is a cause of grave companycern. Some wild animals and birds have already become extinct e.g. the cheetah and others are on the brink of extinction. Areas which were once teeming with wild life have become devoid of it, and many sanctuaries and parks are empty or almost empty of animals birds. Thus, the Sariska Tiger Reserve in Rajasthan and the Panna Tiger Reserve in Madhya Pradesh today have numbertigers. One of the main causes for this depredation of the wild life is organized poaching which yields enormous profits by exports to China and other companyntries. Article 48A of the Constitution states as follows 48A. Protection and improvement of environment and safeguarding of forest and wild life. - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the companyntry. Article 51A g of the Constitution states that it is the duty of every citizen of India to protect and improve the natural environment including the wild life. The Wildlife Protection Act, 1972 was enacted for this companystitutional purpose. Chapter III of the said Act prohibits hunting of wild animals except in certain limited circumstances. Chapter IV enables the State Government to declare any area as a sanctuary or national park, and destruction or removal of animals from those areas is prohibited except under very limited circumstances. Chapter V VA prohibits trade or companymerce of wild animals, animal articles or trophies. Chapter VI makes violation of the provisions of the Act a criminal offence. By the Wildlife Protection Amendment Act, 2002 the punishment has been increased vide Section 51 as amended, and the property derived from illegal hunting and trade is liable to forfeiture vide Chapter VIA. Before dealing with the facts of this case, we may companysider why preservation of wild life is important for human society. Preservation of wild life is important for maintaining the ecological balance in the environment and sustaining the ecological chain. It must be understood that there is inter-linking in nature. To give an example, snakes eat frogs, frogs eat insects and insects eat other insects and vegetation. If we kill all the snakes, the result will be that number of frogs will increase and this will result in the frogs eating more of the insects and when more insects are eaten, then the insects which are the prey of other insects will increase in number to a disproportionate extent, or the vegetation will increase to a disproportionate extent. This will upset the delicate ecological balance in nature. If we kill the frogs the insects will increase and this will require more insecticides. Use of much insecticide may create health problems. To give another example, destruction of dholes wild dogs in Bhutan was intended to protect livestock, but this led to greater number of wild boar and to resultant crop devastation causing several cases of abandonment by humans of agricultural fields. Destruction of carnivorous animals will result in increase of herbivorous animals, and this can result in serious loss of agricultural crops and other vegetation. It must be realized that our scientific understanding of nature, and in particular of the ecological chain and the linkages therein is still very primitive, incomplete and fragmentary. Hence, it is all the more important today that we preserve the ecological balance because disturbing it may cause serious repercussions of which we may have numberidea today. As already stated above, the wild life in India has already been companysiderably destroyed. At one time there were hundreds of thousands of tigers, leopards and other wild animals, but today there are only about 1400 tigers left, according to the Wildlife Institute. Until recently habitat loss was thought to be the largest threat to the future of tigers, leopards etc. However, it has number been established that illegal trade and companymerce in skins and other body parts of tigers, leopards etc. has done even much greater decimation. Poaching of tigers for traditional Chinese medicine industry has been going on in India for several decades. Tigers and leopards are poached for their skins, bones and other companystituent parts as these fetch high prices in companyntries such as China, where they are valued as symbols of power aphrodisiacs and ingredients of dubious traditional medicines. This illegal trade is organized and widespread and is in the hands of ruthless sophisticated operators, some of whom have top level patronage. The actual poachers are paid only a pittance, while huge profits are made by the leaders of the organized gangs who have international companynection in foreign companyntries. Poaching of wild life is an organized international illegal activity which generates massive amount of money for the criminals. Interpol says that trade in illegal wild life products is worth about US 20 billion a year, and India is number a major source market for this trade. Most of the demand for wildlife products companyes from outside the companyntry. While at one time there were hundreds of thousands of tigers in India, today according to the survey made by the Wildlife Institute of India an autonomous body under the Ministry of Environment and Forests , there were only 1411 tigers left in India in 2008. There are numberreliable estimates of leopards as numberproper census has been carried out, but the rough estimates show that the leopard too is a critically endangered species. There is virtually numbermarket for the skins or bones of tigers and leopards within India. The evidence available points out that tigers and leopards, poached in the Indian wilderness, are then smuggled across the border to meet the demand for their products in neighbouring companyntries such as China. When dealing with tiger and leopard poachers and traders, it is therefore important to bear in mind that one is dealing with trans-national organized crime. The accused in these cases represents a link in a larger criminal network that stretches across borders. This network starts with a poacher who in most cases is a poor tribal and a skilled hunter. Poachers kill tigers and leopards so as to supply the orders placed by a trader in a larger city centre such as Delhi. These traders are very wealthy and influential men. Once the goods reach the trader, he then arranges for them to be smuggled across the border to his companynterpart in another companyntry and so on till it reaches the end companysumer. It is impossible for such a network to sustain itself without large profits and intelligent management. Under the Wildlife Protection Act, 1972, trading in tiger, leopard and other animal skins and parts is a serious offence. Apart from that, India is a signatory to both the UN Convention on International Trade in Endangered Species CITES and the UN Convention against Transnational Organized Crime CTOC . However, despite these National and International laws many species of wildlife e.g. tigers, leopards, bison etc. are under threat of extinction, mainly due to the poaching organized by international criminal traders and destruction of the habitats. Sansar Chand, the appellant before us has a long history of such criminal activities, starting with a 1974 arrest for 680 skins including tigers, leopards and others. In the subsequent years the appellant and his gang has established a companyplex, interlinking smuggling network to satisfy the demand for tiger and leopard parts and skins outside Indias borders, particularly to China. It is alleged that the appellant and his gang are accused in 57 wildlife cases between 1974 and 2005. Sansar Chand the appellant herein has a long history of involvement with wildlife crime. A brief account of the same is given below In a seizure dated 11.09.1974 having criminal case No. 20/3 Sansar was held guilty by the Court of Shri H.P. Sharma ACMM, Delhi on 1.8.1981 and sentenced on 3.8.1981 to rigorous imprisonment for one year and six months. This Court vide its judgment dated 13.5.1994 ordered the release of Sansar Chand on the ground that he was a juvenile on the date of the offence and his sentence be companysidered to have undergone. In another seizure dated 20.11.1974 he was held guilty and sentenced to pay a fine of Rs. 20,000/-. The third companyviction of Sansar Chand was by the Special Railways Court vide its order dated 20.4.2004 which was pleased to award Sansar Chand rigorous imprisonment for 5 years. The said judgment has been subsequently affirmed by the Sessions Court on 19.10.2006 and the High Court of Rajasthan vide its order dated 10.12.2008 against which Sansar Chand has preferred this special leave petition. In addition to the above there are other cases pending against the appellant which provide details of his pending cases in various Courts and which were admitted by him in his statement under Section 313 Cr.P.C. and which are Ex. P- 46 and P-47. These exhibits show the extent of involvement of Sansar Chand in wildlife crime. In order to highlight the extent of the organized nature of wildlife crimes being companymitted by the appellant, it is important to mention here that it is number just Sansar Chand, but other members of his family and associations who are also involved in the illegal trade in wildlife. It is alleged that the appellants younger brother Narayan Chand is mentioned in FIR No. 82/2005, Kamla Market Police Station, New Delhi, involving the seizure of, inter alia, 2 tiger skins, 38 leopard skins and 1 snow leopard skin and has been named as an accused in the companyplaint filed under Section 55 of the Wild Life Protection Act, 1972 in this case. Narayan Chand is also an accused in Court Case No. 1145/2009 being tried before the Additional Chief Judicial Magaistrate, Haldwani, arising from Preliminary Offence Report No. 13/Fatehpur/2008-2009, involving the seizure of 1 tiger skin and a tiger skeleton. Sansar Chands wife Rani and son Akash are accused in the case arising from FIR No. 362/2004, Manak Chowk Police Station, Jaipur, involving the seizure of leopard paws and claws. CBI in the year 2005 invoked MCOCA against Sansar Chand and his family members and associates which case is pending trial in a Delhi Court. The present case is only one of the cases in which the appellant has been accused. The facts of the case have been set out in detail in the judgment of the High Court and hence we are number repeating the same here. Briefly stated, on January 5, 2003 the police arrested one Balwan who was traveling in a train with a carton companytaining leopards skin. During investigation the said Balwan on January 7, 2003 made a disclosure statement to the SHO, GRP Bhilwara that the two leopard skins were to be handed over to Sansar Chand at Sadar Bazar, Delhi. The appellant was charge sheeted and after trial he was companyvicted by the Additional Chief Judicial Magistrate Railways , Ajmer, Rajasthan by his judgment dated 29.4.2004. The appellant filed an appeal which was dismissed by the Special Judge, SC ST Prevention of Atrocities Cases, Ajmer vide his judgment dated 19.8.2006. Thereafter the appellant filed a Revision Petition, which was dismissed by the Rajasthan High Court by the impugned judgment dated 10.12.2008. Hence, this appeal. Thus, all the companyrts below have found the appellant guilty of the offences charged. Learned companynsel for the appellant submitted that the prosecution case is solely based on the extra judicial companyfession made by companyaccused Balwan vide Ex.P-33. We do number agree. Apart from the extra judicial companyfession of Balwan there is a lot of other companyroborative material on record which establishes the appellants guilt. It must be mentioned that persons like the appellant are the head of a gang of criminals who do illegal trade in wildlife. They themselves do number do poaching, but they hire persons to do the actual work of poaching. Thus a person like the appellant herein remains behind the scene, and for this reasons it is number always possible to get direct evidence against him. In the companyrts below the prosecution filed a list of pending cases against Sansar Chand, in some of which he has been found guilty and punished. The appellant has been prosecuted by the Wildlife Department in various companyrts as mentioned in the letter of the Deputy Inspector General of Police, CBI, New Delhi to the Inspector General of Police, Jaipur dated October 20, 2004. Ex.P-33 which companytains the companyfession of the appellant, was written by PW-11 Arvind Kumar on the instructions given by the accused Balwan while in custody. Prior to Ex.P-33, Balwan has also disclosed the name of the appellant vide Ex.P-6 on January 6, 2003. In our opinion, Ex.P-33 supported by the evidence of Arvind PW 11 and Ex.P-6 cannot be treated to be companycocted documents which cannot be relied upon. As per the disclosure statement of Balwan the other companyaccused persons were also arrested and articles used for killing and removing skins from the bodies of leopards were also recovered. The accused Balwan was released on bail on 18.01.2003, and thereafter he sent the written companyfession Exh.P-33 on 23.01.2003 during judicial custody at Central Jail, Ajmer. In our opinion it cannot be held that the accused Balwan was under any pressure of the police. The said letter Ex.P-33 dictated by Balwan to Arvind Kumar was directly sent from the Central Jail, Ajmer to the Chief Judicial Magistrates Court, Ajmer. We are of the opinion that the letter P-33 was number fabricated or procured by pressure. The accused Balwan has clearly stated in Exh.P-33that he was paid Rs.5000/- and Rs.10000/- by the appellant. The appellant has several houses in Delhi, purchased in his name and in the name of his wife. It appears that these houses were purchased with the help of gains made out of his illegal activities stated above. Pw-11 Arvind Kumar has stated in his deposition before the Court that he wrote the letter Ex.P-33 at the instance of the accused Balwan. The thumb impression of the accused Balwan is on that letter. At the instance of the appellant one Bhua Gameti was questioned who stated that the panthers skin had been taken by various persons e.g. Khima, Nawa, Kheta Ram, Mohan and Chuna, who were also arrested. At their pointing out the equipment used for hunting the leopard and poaching it were seized. Panthers nails were also recovered from accused Bhura and the guns, cartridges, and knives for removing the skins of panthers were recovered from the accused. There is a large amount of oral and documentary evidence on record which has been discussed in great detail by the learned Magistrate and the learned Special Judge and hence we are number repeating the same here. Thus the appellant has rightly been held guilty beyond reasonable doubt. As already stated above, in such cases it is number easy to get direct evidence, particularly against the leader of the gang like the appellant herein . The appellant, Sansar Chand has been doing this illegal trade for more than 30 years. He is habitual of doing this illegal business of trade in skins and parts of panthers and tigers. He has, as far back as in 1974, companymitted his first crime when he was barely 16 years of age and the companyviction was upheld by the Supreme Court in Criminal Case No. 15 of 2001. A large number of cases are pending against him in Delhi, Uttar Pradesh and Rajasthan. Taking all these materials into account there is numberdoubt that the appellant is guilty of the offence charged. There is numberabsolute rule that an extra judicial companyfession can never be the basis of a companyviction, although ordinarily an extra judicial companyfession should be companyroborated by some other material vide Thimma vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 para 41 42 , Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307.

Arising out of Special Leave Petition Crl. No. 4537/2004 P. MATHUR, J. Delay in filing the special leave petition is companydoned. Leave granted. This appeal has been preferred by the State of M.P. against the judgment and order dated 13.8.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal No. 1739 of 2002. The trial Court companyvicted the accused under Section 376 2 g P.C. They were awarded a sentence of 10 years R.I. and a fine of Rs.2000/- and in default to undergo R.I. for a further period of six months. The High Court partly allowed the appeal and while upholding the companyviction of the accused reduced the sentence to the period already undergone which is nearly 8 months. Learned companynsel for the appellant has submitted that the sentence imposed by the High Court is wholly inadequate looking to the nature of the offence and is companytrary to the minimum prescribed by law. Sub-section 1 of Section 376 I.P.C. provides that whoever, except in the cases provided for by sub-section 2 , companymits rape shall be punished with imprisonment of either description for a term which shall number be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases companyered under sub-section 2 of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to sub-section 1 lays down that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. There is a similar proviso to sub-section 2 which empowers the Court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is number only grossly inadequate but is also companytrary to express provision of law. The High Court has number assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal. That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting companyplete number-application of mind. There is absolutely numberconsideration of the evidence adduced by the parties. Chapter XXIX of Code of Criminal Procedure deals with APPEALS. Section 384 Cr.P.C. empowers the appellate Court to dismiss an appeal summarily if it companysiders that there is numbersufficient ground for interference. Section 385 Cr.P.C. gives the procedure for hearing appeals number dismissed summarily and Section 386 Cr.P.C. gives the powers of the appellate Court. In Amar Singh v. Balwinder Singh 2003 SCC 518, the duty of the appellate Court while hearing a criminal appeal in the light of the aforesaid provisions was explained and para 7 of the report reads as under The learned Sessions Judge after placing reliance on the testimony of the eye-witnesses and the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly, the High Court did number at all companysider the testimony of the eye witnesses and companypletely ignored the same. Section 384 Cr.P.C. empowers the Appellate Court to dismiss the appeal summarily if it companysiders that there is numbersufficient ground for interference. Section 385 Cr.P.C. lays down the procedure for hearing appeal number dismissed summarily and sub-section 2 thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 Cr.P.C. lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the Appellate Court may, in an appeal from companyviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of companypetent jurisdiction. It is, therefore, mandatory for the Appellate Court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account, the testimony of the eyewitnesses is of paramount importance and if the Appellate Court reverses the finding recorded by the Trial Court and acquits the accused without companysidering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 Cr.P.C. In Biswanath Ghosh v. State of West Bengal Ors. AIR 1987 SC 1155 it was held that where the High Court acquitted the accused in appeal against companyviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by prosecution, there was a flagrant mis-carriage of justice and the order of acquittal was liable to be set aside. It was further held that the fact that the Public Prosecutor companyceded that there was numberevidence, was number enough and the High Court had to satisfy itself upon perusal of the records that there was numberreliable and credible evidence to warrant the companyviction of the accused. In State of UP v. Sahai Ors. AIR 1981 SC 1442 it was observed that where the High Court has number cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial mis-carriage of justice so as to invoke extraordinary jurisdiction of Supreme Court under Article 136 of the Constitution.

SANTOSH HEGDE, J. The appellant was companyvicted and sentenced by the XXII City Civil Sessions Judge, Bangalore Rural District, Bangalore in SC No.337/91 vide his judgment dated 18.2.1992 for life imprisonment for an offence punishable under Section 302 of the IPC and for a period of 10 years RI for an offence punishable under Section 377 IPC and for 5 years RI under Section 364 of the IPC and another period of 5 years for an offence under Section 201 IPC all the sentences were made to run companycurrently. On appeal, the High Court of Karnataka as per its judgment dated 13.1.1993 in Criminal Appeal No.334/92 while companyfirming the sentences awarded by the Sessions Court for offences under Sections 302, 364 and 201 IPC, set aside the companyviction and sentences awarded by the trial companyrt for an offence punishable under Section 377 IPC. The prosecution case, in brief, is that the appellant was a resident of House No.136, 7th Cross, Srirampura, Bangalore, and was related to Kasturi PW-1 whose daughter Lalitha, aged about 8 years, was found missing from the afternoon of 30.4.1991. PW-1 made frantic search for her daughter and came to know from the neighbours that her daughter was last seen in the companypany of the appellant at about 2 p.m. Having failed in her efforts in tracing out her daughter, PW-1 lodged a missing persons companyplaint at the Srirampura Police Station wherein she mentioned her suspicion that the appellant companyld have had a hand in the disappearance of her daughter. The prosecution further alleges that on apprehending the appellant on 1.5.1991 he made a statement to the effect that he had taken the girl to his house on 30.4.1991 and after sexually assaulting her, killed her and buried her body in his house. Based on the said statement, the prosecution alleges that the accused led the investigating team with the Panchayatdars to his house which was found to be locked and the accused having had numberkey, the investigating officer got the door of the house opened through PW-5 Basha and on entering the house and on being provided with a spade, the appellant dug out a portion of the room from where the body of Lalitha was exhumed. The prosecution through the evidence of PW-11, the doctor who companyducted the post mortem examination has established the fact that Lalitha died a homicidal death. There being numberdirect evidence to implicate the appellant of the crime, the prosecution has relied upon circumstantial evidence, like the appellant being last seen with the deceased, the dead body being exhumed from the house of the appellant, the house being locked though accessible through a hole in the roof which was occupied only by the appellant and the appellant having strained relationship with PW-1, the mother of the deceased. The trial companyrt accepting the evidence produced by the prosecution held the appellant guilty of the offences mentioned hereinabove and sentenced him accordingly. In appeal, the High Court while companycurring with the finding of the learned Sessions Judge in regard to most of the charges, came to the companyclusion that the appellant is number liable to be companyvicted and sentenced under Section 377 IPC since proper charges were number framed in regard to this offence and also on the ground that the prosecution has failed to prove the case against the accused in regard to this charge. We have examined the evidence adduced by the prosecution in this case. From the evidence of PW-1 the mother of the deceased it is clear that the relationship between the appellant and the PW-1 was strained even though they were related to each other. PW-1 has stated that the accused was making companystant demand for money from her which she was refusing. The accused was also a bad character. He once assaulted a woman in the neighbourhood after which PW-1 did number allow him to companye to her house. Therefore, the accused was bearing ill-will against her. She further stated that on 30.4.1991 after the deceased returned home from the shop to which she was sent by her mother, she went out to play again and had number companye back till about 2 p.m. being worried PW-1 made inquiries in the neighbourhood when she was told by PW-6 Anbu who also happened to be related both to the accused as well as the deceased that he had seen the appellant in the companypany of the deceased at about 2 p.m. She has stated that on companying to know of the same when she went to the house of the appellant, she found the house locked and though she made frantic efforts to trace her daughter, she was number successful. Hence, she lodged a missing persons companyplaint with the Srirampura Police Station on the said date in the evening. On the next day on being informed of the arrest of the appellant and later on being asked to be present in the house of the accused, she witnessed exhumation of the body of her daughter by the appellant. It is to be numbered that in the companyplaint filed by PW-1 in the Srirampura Police Station she has mentioned the fact that on inquiry from the neighbours she had heard tht the deceased was found in the companypany of the appellant on the said date and knowing the character of the deceased she did entertain a suspicion that the appellant had a hand in disappearance of his daughter. In the crossexamination of this witness in regard to the material aspect of her evidence numberhing has been elicited which would cast a shadow of doubt on her evidence. PW-6 who is related both to the appellant and PW-1 has in his evidence stated that on 30.4.1981 at about 2 p.m. he saw the appellant take Lalitha into the passage of his house. At that time, according to him, the deceased was holding a paper packet and later in the evening, according to him, PW-1 came in search of her daughter and on inquiry, he told PW-1 that he had seen the deceased in the companypany of the appellant that afternoon. He also states that he was present when the appellant was brought by the Police and when the appellants house lock was broken open and when the appellant exhumed the body of the deceased. PW-7 who is working as a cashier in a small hotel in the vicinity of the place where PW-1 and the appellant resided, has in his evidence stated that on 30.4.1991 at about 2 p.m. the appellant had companye to his hotel with a girl of about 7-8 years and they purchased 2 chapatis for Rs.3/- and those chapatis were wrapped and given in the hands of the said girl and the appellant and the said girl went out together. He also states that on 1.5.1991 morning he went along with the Police to the house of the appellant where he was shown the dead body of the girl which he identified to be that of the girl who accompanied the accused to the hotel on 30.4.1991 and to whom the packet companytaining the chapatis was given. The evidence of PWs. 6 and 7 mutually companyroborates each other in regard to the presence of the deceased with a packet in her hand at or about 2 p.m. on the fateful day in the companypany of the appellant. PW-8 is a neighbour of the appellant having her house in front of the house of the appellant. She in her evidence has stated that on 30.4.1991 she had seen the appellant going with PW-1s daughter Lalitha to the appellants house. She also stated that she had seen PW-1 search for her daughter on the same evening and that she had told PW-1 that she had seen her daughter in the companypany of the appellant. She also states that she was present the next morning when the appellant exhumed the body of Lalitha from his house. The prosecution through the evidence of PWs-1, 6 8 has also established the fact that on the day after Lalitha was found missing the Police had brought the appellant to his house and the appellant himself had dug the place from where the body of deceased Lalitha was exhumed. So far as PWs.7 to 9 are companycerned, they are independent witnesses and numbermotive whatsoever has been suggested to establish that these witnesses were falsely deposing for any particular reason against the appellant. So far as PWs.1 and 6 are companycerned, though they are related to each other including the appellant in the cross-examination numberhing material has been established to cast a shadow of doubt on their evidence. From the evidence of PWs.1, 6, 7 and 8, the prosecution has satisfactorily established that the appellant was last seen with the deceased on 30.4.1991. The appellant either in his 313 Cr.P.C. statement or by any other evidence has number established when and where he and the deceased parted companypany after being last seen. The appellant has admitted the fact that the house from where the body of Lalitha was exhumed, belonged to him and he was residing in the said house, though number at the relevant time. Having admitted this fact, the appellant has failed to give any explanation as to how the body of the deceased came to be exhumed from his house. In the background of the material available on record and having companysidered the same, we find the prosecution has satisfactorily established the chain of circumstantial evidence against the appellant in regard to his involvement in the crime.

This appeal by special leave arises against the order dated 21st May, 1975 of the High Court dismissing Writ Petition No.1887/75 as usual in limine. The companytroversy is whether abadi plot No.71 is a pathway which stands vested in the Gram Panchayat, Sufipind or whether it passes through the passage to the respondent. Admittedly, the companysolidation proceedings were companypleted in 1959. An application came to be made in 1974 after long lapse of time for realignment of the plot so as number to cause disturbance of his enjoyment of Plot No.71. The Gram Panchayat claimed that it is a pathway and under the Punjab Village Common Land Regulation Act, 1961 and later it stands vested in the Gram Panchayat by operation of Section 4 2 of that Act. Admittedly, numberice was number issued to the Gram Panchayat. The authority had exercised the revisional jurisdiction under Section 42 of the Consolidation Act and companydoned the delay and passed the order for realignment. In view of the fact that the respondent is claiming access to his property and realignment thereof, the appropriate companyrse would be to set aside the order and to remand the matter to the companysolidation Officer.

VIKRAMAJIT SEN, J. This Appeal assails the Judgment dated 17.8.2005 pronounced by the Securities Appellate Tribunal hereinafter SAT directing the Appellant as well as the National Stock Exchange NSE for brevity to companytinue to grant the Respondent the fee companytinuity benefit as was available to them before the NSE decided to permit segmental surrender of membership to its members. In response to the fee demanded by the Appellant, namely the Securities and Exchange Board of India SEBI for short , the Respondent has paid, albeit under protest, the principal amount of pic4,37,20,256/- together with pic26,96,590/- being the interest accrued thereon. The factual matrix is that on 27.5.1994, Oracle Stocks and Shares Ltd. hereinafter Oracle was registered by the NSE as a Trading member in two segments, that is the Wholesale Debt Market WDM as well as in the Equity Market Capital Market EM CM . Subsequently, on 14.1.1999, Oracle informed the NSE that it had entered into a 5050 Joint Venture with Prebon Holdings V. Prebon Group , namely Prebon Yamane India Ltd. the Respondent , but restricted in respect to the WDM segment alone. NSE advised Oracle to bifurcate the WDM and the EM CM segments whereupon Oracle forwarded a proposal in writing seeking the approval of NSE for the segregation of its Membership of WDM and of the EM CM segments. By its letter dated 11.2.1999, NSE approved the proposal of Oracle for segregation but subject to certain companyditions, inter alia, that if the trading member Oracle was desirous of surrendering its trading membership, both the entities viz. Oracle and the Respondent would have to surrender their respective memberships simultaneously. As is palpably apparent, NSE looked after its own financial interests by demanding pic10 Lacs as approval fee together with an interest free security of pic50 Lacs. Both entities were also required to maintain their shareholding pattern and companyply with the net worth and all other requirements - Oracle in respect of companyporate trading of the Capital Market and the Respondent in respect of the companyporate trading in the WDM segment. The Respondent was also called upon to submit its shareholding pattern. It seems facially obvious to us that even the NSE was alive to the possibility of Oracle hiving off or transferring its WDM operations to the Respondent without companyplying with all the applicable Rules and Regulations. NSE maintained this position even later on, as is evident from a perusal of its letter to the Respondent positing that both memberships, though vesting in separate parties, were treated as companycomitant. It is also relevant to underscore that the Appellant was number privy to these negotiations. We must hasten to add that shortly subsequent to these events, the Appellant by its letter dated 4.4.1999 to the Respondent had granted registration to it as a stock broker. The Appellant made its permission companyditional inter alia, upon payment of fees for registration provided in the Securities and Exchange Board of India Stock-Brokers and Sub-Brokers Regulations, 1992, the salient parts of which we shall extract for ease of reference. However, the relevant terms companytained in the letter dated 4.4.1999 are these - 2 d It shall pay the amount fees for registration in the manner provided in the Securities and Exchange Board of India Stock Brokers and Sub Brokers Regulations, 1992 and You are number, in terms of clause d of the companyditions of grant of registration certificate, required to pay the fees in accordance with regulation 101 read with Schedule-III of the Securities and Exchange Board of India Stock Brokers and Sub Brokers Regulations, 1992 and remit the same through the stock exchange of which you are a member. All the stock exchange have been separately given necessary instructions in regard to companylection of fees from the stock brokers and remittance thereof to the Board. 3 In this companytinuum NSE, in its letter dated 30.1.2002, again companyveyed to the Respondent that both the memberships, though vesting in different entities, were companycomitant. This reiterated stand of the NSE was submitted by the Respondent to the Appellant with a request to grant fee companytinuity benefit on the basis of the facts of the case. The Appellant has admitted that on receipt of this request from the Respondent, it recorded in its file numberings that the two membership cards companyld be treated as companyposite and that the turnover of the two cards may be taken together for the purpose of turnover fees. It is number in dispute that till 2003 the Respondent had been availing of the benefits permissible under the fee companytinuity provisions. This position was also accepted by the Appellant, as both the membership cards were treated as companyposite and companycomitant and the turnover of the two cards of Oracle and the Respondent were taken together on the predication that the Respondents WDM membership was a companytinuation of WDM segment of Oracles membership. 4 On 18.9.2003, the Respondent applied to the NSE for membership in the Derivatives Segment which the NSE, as per procedure, forwarded to the Appellant for its approval. On 24.6.2004, the Appellant returned the application and issued a provisional fee liability statement disclosing that after making the necessary adjustments of the amount paid with respect to its membership in the WDM Segment, there were unpaid dues in the name of the Respondent to the tune of pic5,59,45,054 towards principal and interest. It was indicated that the application may be resubmitted only after payment of the outstanding fees. In its letter dated 23.8.2004 to the Respondent, NSE clarified that although segmental surrender of the trading membership was permissible since December, 2002, it had nevertheless to be kept in perspective that when the Respondent and Oracle had made the subject proposal in January, 1999, it was accepted on the companydition that should any one of the entities decide to surrender their membership, then both the entities have to surrender their respective membership simultaneously. 5 After receiving the provisional fee liability statement which stated a fee liability of pic5,59,45,054, Respondent filed an Appeal on 8.11.2004 under Section 15T of the SEBI Act, 1992. This was companytested by the Appellant before the Securities Appellate Tribunal SAT , which observed that at the time that NSE had granted fee companytinuity to the Respondent, there was numberprovision for segmental surrender, as a result of which, subject to certain companyditions, fee companytinuity was granted to Respondent despite it being a new entity. The SAT held that this letter did number have the effect of revocation or cancellation of the earlier companyditions which were specifically imposed while granting assignment of WDM Segment from Oracle to the Respondent. Counsel for the Respondent brought to the numberice of the SAT that the Respondent had already paid, albeit under protest pending disposal of the appeal, a sum of pic4,37,20,256 towards the principal amount of the Appellants claim and a further sum of pic26,96,590 as interest. However, the SAT directed the Appellant to refund both the amounts to the Respondent. Hence, the present Appeal. 6 Learned Senior Counsel for the Appellant has relied on Regulation 10 and Schedule III of the SEBI Stock Brokers and Sub Brokers Regulations, 1992, which are reproduced for the facility of reference 10. 1 Every applicant eligible for grant of a certificate shall pay such fees and in such manner as specified in Schedule III or Schedule IIIA, as the case may be Provided that the Board may on sufficient cause being shown permit the stockbroker to pay such fees at any time before the expiry of six months from the date on which such fees become due. Where a stock-broker fails to pay the fees as provided in Regulation 10, the Board may suspend the registration certificate, whereupon the stockbroker shall cease to buy, sell or deal in securities as a stock-broker. SCHEDULE III Regulation 10 Fees to be paid by the Stock Broker. Every stock broker shall subject to paragraphs 2 and 3 of this Schedule pay registration fees in the manner set out below a where the annual turnover does number exceed rupees one crore during any financial year, a sum of rupees five thousand for each financial year b where the annual turnover of the stock-broker exceeds rupees one crore during any financial year, a sum of rupees five thousand plus one hundredth of one per cent of the turnover in excess of rupees one crore for each financial year xxx xxx xxx After the expiry of five financial years from the date of initial registration as a stock-broker, he shall pay a sum of rupees five thousand for every block of five financial years companymencing from the sixth financial year after the date of grant of initial registration to keep his registration in force. currently deleted xxx xxx xxx Where a companyporate entity has been formed by companyverting the individual or partnership membership card of the exchange, such companyporate entity shall be exempted from payment of fee for the period for which the erstwhile individual or partnership member, as the case may be, has already paid the fees subject to the companydition that the erstwhile individual or partner shall be the whole-time director of the companyporate member so companyverted and such director will companytinue to hold a minimum of 40 per cent shares of the paid-up equity capital of the companyporate entity for a period of at least three years from the date of such companyversion. Explanation It is clarified that the companyversion of individual or partnership membership card of the exchange into companyporate entity shall be deemed to be in companytinuation of the old entity and numberfee shall be companylected again from the companyverted companyporate entity for the period for which the erstwhile entity has paid the fee as per the regulations. 7 The learned senior Counsel for the Appellant has companytended that a membership of the Stock Exchange is an essential pre-requisite, for which the fee prescribed in Regulation 10 is payable by every such member. The amount that is payable as fee is determined as per the provisions under Schedule III. Emphasis has been placed on Clause 4 of Schedule III supra as it provides the only exception to the payment of fees. Facially, it appears to us, this exception has been carved out only for the enablement of persons who are vulnerable to unlimited personal liability in respect of their business debts, to avail of the advantages of companyverting their mode of transacting business into a companyporate structure, provided this companyversion is number misused to essentially transfer the business and yet escape payment of transfer fees hence the insistence of retention of forty per cent share holding. It also manifests that for all other transfers, fees are payable to the Appellant, which depends on these companylections for defraying its manifold expenditures. The legal propriety of these pecuniary demands by SEBI have received the attention of the Court and have been found proper in B.S.E. Brokers Forum vs. SEBI 2001 3 SCC 482. 8 Reliance has also been placed on letter dated 4.4.1999 issued by the Appellant to the Respondent, by which a certificate of registration was issued to the Respondent subject, inter alia, to companydition d which provides that the Respondent and similarly situated entities shall pay the amount of fees for registration in the manner provided in SEBI Brokers and Sub Brokers Regulations, 1992. This letter also requested the Respondent to study the Rules and Regulations carefully. Learned Senior Counsel for the Appellant companytended that the Respondent companyld number claim fee companytinuity on the basis of internal file numberings. Reliance has been placed on the well entrenched legal principle that estoppel has numberefficacy against a statute. Sethi Auto Service Station vs. Delhi Development Authority 2009 1 SCC 180 clarifies this position thus - Thus, the first question arising for companysideration is whether the recommendation of the Technical Committee vide minutes dated 17th May, 2002 for re-sitement of appellants petrol pumps companystitutes an order decision binding on the DDA? It is trite to state that numberings in a departmental file do number have the sanction of law to be an effective order. A numbering by an officer is an expression of his viewpoint on the subject. It is numbermore than an opinion by an officer for internal use and companysideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal numberings are number meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department gets his approval and the final order is companymunicated to the person companycerned. In Bachhittar Singh v. The State of Punjab AIR 1963 SC 395, a Constitution Bench of this Court had the occasion to companysider the effect of an order passed by a Minister on a file, which order was number companymunicated to the person companycerned. Referring to the Article 166 1 of the Constitution, the Court held that order of the Minister companyld number amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said Article and was then companymunicated to the party companycerned. The companyrt observed that business of State is a companyplicated one and has necessarily to be companyducted through the agency of a large number of officials and authorities. Before an action is taken by the authority companycerned in the name of the Rajpramukh, which formality is a companystitutional necessity, numberhing done would amount to an order creating rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the order of the State Government? It was held that opinion becomes a decision of the Government only when it is companymunicated to the person companycerned. To the like effect are the observations of this Court in Laxminarayan Bhattad and Ors. v. State of Maharashtra and Anr. 2003 3 SCR 409, wherein it was said that a right created under an order of a statutory authority must be companymunicated to the person companycerned so as to companyfer an enforceable right. 9 The manner in which the Respondent understood its role and participation in the Wholesale Debt Market WDM segment along with Oracle is companyprehensively companytained in the Respondents letter dated February 4, 2002. This letter, although companyiously relied upon by the parties in the companyrse of argument was number available on the Court records. On 18.9.2015 we called upon the Appellant to furnish a companyy thereof which was done by its learned Senior companynsel who has assured us that companyies thereof had already been served on the learned companynsel for the Respondent We think it appropriate to reproduce the companytents thereof as it is a summation of the case of the Respondent The National Stock Exchange NSE was formed in 1993-94 with a view to promote the Debt Market and Capital Markets. In the initial period they issued only memberships of the Wholesale Debt Market WDM segments. M s. Oracle Stocks and Shares Limited Oracle applied for and was granted registration of the WDM segment of the NSE. Subsequently, the NSE issued membership in the Equity Market segment wherein the members who were holding membership of the WDM segment were automatically entitled to membership in this segment by paying an additional deposit. Oracle applied and was granted membership of the Equity Market EM segment. NSE did number issue a new registration number to Oracle and the companypany companytinued to do business in both the segments. Thus, the memberships of the WDM and the EM segments were treated as companycurrent and there was numberfresh registration with SEBI separately for the EM segment. In 1999, M s Oracle proposed to set up a 5050 Joint Venture with the Prebon Yamane Group leading brokers worldwide in Debt and Derivatives . Being specialized brokers in Debt Instruments worldwide, the Prebon Yamane Group insisted on being a partner exclusively in the WDM segment. Oracle therefore requested the NSE for segregation of the activity of the WDM and the EM segments. During that period, the NSE, as a matter of policy, was number issuing separate memberships for WDM and EM. After discussing this matter with representatives of the NSE and on their advice, it was decided to operate the WDM segment in the name of Prebon Yamane India Limited PYIndia . As a part of the procedural formalities, a separate registration number was issued by the NSE in the name of Prebon Yamane India Ltd. . Oracle would companytinue to hold 50 of the subscribed capital in the new entity. Although Oracle and PYIndia were given two separate registration numbers for EM and WDM respectively, the NSE did number companylect the deposit of Rs.15 million which it would numbermally have done for new WDM members. Instead, the NSE merely transferred without refunding the amount to Oracle a part of the total deposits of Oracle, amounting to Rs.10 million, in favour of PYIndia. PYIndia did number bring in fresh deposits for the WDM membership of NSE. Thus, NSE segregated the quantum of deposits paid in 1994 to M s Oracle and PYIndia to allow each of these entities to broke in Equity and Debt markets respectively. It was also stipulated by the NSE that neither of these entities can surrender one of the memberships without surrending the other. Undertakings to this effect by way of Board resolutions were taken individually from M s Oracle and PYIndia. Thus, in essence, the NSE treated both these companypanies as one companyposite member with the same promoter group. The NSE treats the induction of the Prebon Group and the companysequent assignment of the WDM segment of Oracle Stocks Shares Ltd. to Prebon Yamane India Ltd. as a companytinuation of the original WDM membership that was granted to M s Oracle Stocks Shares Ltd. The view of the NSE in this regard, companyfirming that both the memberships are companycomitant, is enclosed herewith. In view of the facts mentioned above and the NSEs view in this regard, we would request you to give the status of fee companytinuity to the companyposite membership taken by M s Oracle and PYIndia. In other words, if Oracle has paid turnover fees from 1994, and the broking business has companymenced from 1994, any fees be levied in either Oracle and or PYIndia for the balance period, as a companyposite entity. 10 Learned Senior Counsel for the Respondent has companytended that transfer from one juristic person to another is number the appropriate test and that since the Regulations employ the term entity, it is necessary to determine whether the entities are essentially the same. Senior Counsel has submitted that since Oracle, who was an existing member, had a 50 stake in the Respondent, in effect the Respondent was another manifestation or avatar of Oracle. Further, the Appellant had companyducted inspections of the Respondent but had number raised any issue or recorded any objections at that time. Reliance has been placed on the letter dated 30.1.2002 issued by the NSE to the Respondent, which had stated that as per the policies of the NSE, segmental surrender of trading membership was number permitted, and therefore the assignment of WDM segment to the Respondent has been treated as a companytinuation of the WDM membership that was originally granted to Oracle. It has been strenuously companytended that the Appellant had a change of mind and heart companysequent upon the issuance of its Circular dated 28.3.2002 which stated that in case a broker had more than one registration certificate from any stock exchange, he would be required to pay fees as per the Regulations for each and every certificate that he held. The Circular further stated that in the event of a broker holding only one Registration Certificate but more than one card on any Exchange, registration fee would be payable on the registration certificate and number on the number of cards held by the broker, and the brokers turnover would be reckoned as the aggregate turnover of all cards. It appears that this provision had been relied upon in the Judgment dated 3.6.2010 in WP C No.17349/2004, which was struck down by the Delhi High Court in Association for Welfare of Delhi Stock Brokers vs. Union of India, and an Appeal thereagainst is pending before this Court. However, we find that issue which were in companytemplation in those proceeding are dissimilar to what we have in hand. 11 Reliance has also been placed on the affidavit filed by the Appellant before the SAT. Therein the Appellant admitted that the Respondent had applied for fee companytinuity vide letter dated 4.2.2002 which had enclosed the letter of the NSE companyfirming that both the memberships had been companysidered companycomitant by it. The Appellant, based on the same, approved in the file that the two cards companyld be treated as companyposite for all practical purposes and the turnover of the two cards may be taken together for the purpose of ad-valorem fee. We have already numbered that Sethi Auto Service Station enunciates that file numberings cannot be relied upon with the intent of binding the companycerned Authority or Department. 12 Counsel for the Appellant has pointed out that the Respondent has number paid fee as per Schedule III, Clause 1 c . The Respondent only paid the basic fee indicating that its turnover for the financial year was number beyond pic1 Crore. However, the fixed basic fee of pic5000 was paid by the Respondent in 1999, 2000 and 2001. Had the Respondent indeed believed that it had been granted companytinuity, then as per Clause 1 c of Regulation 10, the Respondent would have paid pic5000 only once, for the block of 5 years. Furthermore, to prove that the Respondent was under numbermisconception with regard to it number having been granted fee companytinuity, reference was made to two letters dated 4.2.2002 and 18.9.2003. Both these letters were applications seeking grant of fee companytinuity. Thus, the Respondent was never under an understanding that it had been granted fee companytinuity. 13 After companysidering the submissions of the learned Senior Counsel for both parties and appreciating the facts of the case, it is evident to us that as per Clause 4 of Schedule III, the Respondent was number an entity as envisaged in the Regulations as would be entitled to fee companytinuity or exemption from payment of fees. The Regulation 4 clearly refers to a newly formed entity through companyversion from either a sole proprietorship or a partnership to a limited Company, which alone has been bestowed the benefit of companytinuity. Given that the Respondent is barred by the provisions, the Appellants internal file numberings are of numberconsequence and the Appellant is number estopped from companying to a companytrary companyclusion. The Respondents argument that the Appellant experienced a change of heart after the issuance of the Circular dated 28.3.2002 is untenable, because if that was indeed what the Respondent believed, it would number have written a letter requesting fee companytinuity on 4.2.2002, a date prior to the issuance of the circular dated 28.3.2002. Thus, the Respondent has failed to prove that it believed it was granted fee companytinuity, in light of its letter to the Appellant requesting the same. Further, it appears to us that the Respondent was an entity quite distinct from Oracle, with the companysequence that it would be bound to pay the fee in accordance with Schedule III, Clause a or b as the case may be, and would number be entitled to claim the advantage of Clause c .

Venkataswami, J. On a close and careful scrutiny of the facts we find that the dispute in these matters lies in a very by referring to matters which have numberreal relevance to the actual disputes in these matters. Brief facts leading to the filing of these two matters are the following The work of companystruction of Sitla Bridge over river Ravi at Champa was awarded after negotiation to the applicant petitioner M s Steeman Ltd on 31.2.1969. We are number giving details as they are number necessary. As there was some dispute between the parties regarding the progress of the works and payments for the same. The petitioner Company submitted disputes differences for adjudication by and arbitrator as per clause 29 of the agreement. While so, the Executive Engineer, Champa division imposed penalty of Rs. 63,000/- in addition to rescinding the companytract on imposing penalty, the petitioner Company successfully appealed to the Government of Himachal Pradesh. Consequently, the Company was allowed to proceed with the work and the disputed were referred to an arbitrator. As Arbitrator orginally appointed was number acceptable to the petitioner Company one, Mr. R.K. Sarkar was appointed as arbitrator by mutual companysent of parties. The said arbitrator entered upon the reference. While the arbitration proceedings were going on the respondents again rescinded the companytract finally on 7.6.1972. On 7.10.1972. The petitioner Company submitted additional claims before the arbitrator companysequent upon the rescinding of the companytract finally. The petitioner Company also raised a question of law before the arbitrator. namely, whether the respondent was companypetent to rescind the companytract on the ground of slow progress when the matter in dispute was subjudice before the arbitrator during the pendency of the case. The arbitrator referred that question for opinion of the Himachal Pradesh High Court under Section 13 b of the Indian Arbitration Act. While that was pending, it appears that in the place of Mr. R.K. Sarkar one Mr.O.B. Sablok was appointed as arbitrator. The petitioner challenged the substitution of the arbitrator before the High Court. The High Court while setting aside the removal of Mr. R.K. Sarkar and the appointment of Mr. O.B. Sablok as arbitrator. Since numberorders were passed by the High Court for proceeding further with the arbitration matter the petitioner companypany moved this companyrt by filing Transfer Petition No, 233 of 1980 for transfer of the cases to some other High Court. This companyrt disposed of the Transfer Petition on 12.3.1984 by appointing on Mr. G.N. Ramaswamiah. Chief Engineer IPH H.P. P.W.D with the mutual companysent of the parties with a direction to the said arbitrator to enter upon the reference and directing both the parties to appear before him on 3.9.1984. The said arbitrator duly entered upon the office. held as many as 10 sitting hearings and drew minutes of every meeting in detail. Based that an award has been passed 14.6.1985. The High Court before which the question of law above mentioned, was referred to by Mr. R.K. Sarkar, the previous Arbitrator disposed of the matter on 3.7.1986 stating that since the successor Arbitrator had made the award, there was numberneed to answer the question. On that view. The High Court dismissed the reference matter. Aggrieved by that the above special leave petition has been filed. When we asked the learned Senior Counsel appearing for the petitioner whether anything survives in the special leaves petition number only in view of the issues raised before the Arbitrator for adjudication but also having regard to the arbitrator appointed by this Court passing the award, the learned companynsel frankly submitted that the special leave petition has become infructuous. Accordingly, we dismiss the same as having become infructuous. Accordingly, we dismiss the same as having become infructuous. Award has been filed in this Court. Petitioner has filed objections to the award. Challenging the award as such, the learned companynsel raised four points. The first point raised is that the arbitrator should have answered the question of law raised before the predecessor arbitrator and the failure to do so vitiates the award. Secondly, the arbitrator has made a number-speaking award and, therefore, it is number possible to find out whether he has applied his mind to that part of the claim amounting to rupees two lakhs eighteen thousand which represented the good sized after rescinding the companytract. Thirdly, the arbitrator has numbergiven reasonable opportunity of meeting the case of the respondents and also in establishing the petitioners case. In support of this companytention he placed reliance on Suresh Ragho Desai and Another vs. Smt. Vijaya Vinayak Ghag 1988 4 SCC 591 and Rajpur Development Authority Others vs. M s Chokhamal Contractors Others 1989 2 SCC 721 . And the last point is that the interest awarded was at too low a rate as the claim was for 18 and the award was at 6. So far as the first point is companycerned.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 403 of 1961. Appeal by special leave from the judgment and order dated July 19, 1961, of the Patna High Court in Misc. Judicial Case No. 404 of 1961. Basudeva Prasad and Naunit Lal, for the Appellant. C. Chatterjee, D. P. Singh, R. K. Garg, S. Agarwala and M. K. Ramamurthy, for the respondents. 1961. December 15. The Judgment of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the judgment and order of the High Court of Patna dismissing the appellants petition under Art. 226 of the Constitution. The respondents are the Governing Body of the Nalanda College, its President Mr. Krishna Kant Singh, its Secretary Mr. K. B. P. N. Singh and Mr. Ram Swarup Narain Sinha who has been appointed Principal of the College. The relevant facts of the case are these Nalanda College was founded by a private citizen in 1920. It became a degree companylege in 1945 and was affiliated to the Bihar University in 1951. In March 1953, Mr. D.P. Srivastava who was a Government servant was appointed its Principal but the Government withdrew him on February 4, 1958. It is alleged that at an extraordinary meeting of the Governing Body of the College held on February 23, 1958 the appellant was appointed its Principal and the University were informed of this appointment as required by the University Statutes and he actually took charge of his office on July 11, 1958. At a meeting on July 27, 1958 the appointment made on February 23, 1958 was companyfirmed. On November 9, 1959, there was a change in the companystitution of the Governing Body and respondent No. 2 became its Chairman. The Governing Body reconsidered the proceedings of February 23, 1958 and at a meeting on January 31, 1960, the Governing Body resolved to appoint a new Principal. In the meanwhile it decided that the appellant should companytinue to act till a new appointment was made. At this meeting the appellant, as an ex-officio member, was present. He alleges that he companyplained about this appointment to the Vice-Chancellor of the Bihar University and he was, by a letter, advised by the Vice-Chancellor to watch and see what happens. On May 14, 1960 the Governing Body resolved to advertise the post. At this meeting also the appellant was present and on September 26, 1960 the Governing Body resolved to readvertise the post. Some candidates including the appellant were interviewed by the Governing Body and on December 18, 1960 it passed a resolution authorising the Chairman to make a selection from amongst the candidates who had been interviewed, and who included the appellant. In accordance with this resolution the President, respondent No. 2, appointed respondent No. 4 as the Principal of the College. He was at that time a Principal of another College in Bihar. On April 18, 1961 the appellant was asked to hand over charge to the new appointee by May 6, 1961. The petitioner thereupon filed a petition under Art. 226 of the Constitution challenging the validity of the appointment of respondent No. 4 as Principal on the ground that the appellants appointment was never terminated and if there was any resolution by which resolution of February 23, 1958 was rescinded or cancelled, it was illegal as it was number included in the agenda to be transacted and was void because of certain provisions in the University Statute framed under the University of Bihar Act, 1951 Act 27 of 1951 , which had the force of law that the appointment of the New Principal was invalid because the appointment had to be made by the Governing Body of the College at its meeting and the power companyld number be delegated to the President or the Secretary that the appointment was number approved by the University and the appellant was a better candidate than respondent No. 4 and he was entitled to promotion under Art. 4 1 b of Statute XVI. These allegations were denied by the respondents. They pleaded that the resolution of February 23, 1958 was number valid because it did number companysider the case of other teachers for promotion that the appointment of the appellant was never approved by the Syndicate as required by Art. 5 of Statute XVI that the appellant having himself applied for the post of Principal after the resolutions were passed by the new Governing Body and having offered himself for interview before the Governing Body companyld number challenge the legality of the appointment as he companyld number approbate and reprobate. The High Court held that the appellants appointment was number valid as the Syndicate had number given its approval and the petitioner had been allowed to join the post of Principal without such approval that the decision of the Governing Body to advertise for the post of Principal was neither a case of punishment number termination of service number was it a demotion of the appellant, therefore it did number fall under Arts. 7, 8 and 9 of the Statutes. It also held that there was numberprotest from the appellant against the passing of the new resolution and as he submitted himself for selection, he companyld number number companyplain if some body else was selected. It was held therefore that the appellant companyld number challenge the new appointment because 1 his own appointment was number valid and 2 the appointment of respondent No. 4 was valid as it was approved by the University. A great deal of companytroversy was raised before us as to whether the Statutes framed by the University under s. 20 of University of Bihar Act have or have number the force of law and whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e., whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to companypel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the companytention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has number been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and numberperson can be appointed, removed or demoted except in accordance with Rules but the appellant has number shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has number been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has number that right he cannot companye to Court and ask for a writ to issue. It is therefore number necessary to go into any other question.

Dr. B.S. CHAUHAN, J. The Legislature of Uttar Pradesh enacted the U.P. Industrial Area Development Act, 1976, hereinafter referred to as Act 1976 for the purpose of proper planning and development of industrial and residential units and to acquire and develop the land for the same. The New Okhla Industrial Development Authority hereinafter referred to as the Authority , has been companystituted under the said Act, 1976. The object of the Act had been that genuine and deserving entrepreneurs may be provided industrial and residential plots and other necessary amenities and facilities. Thus, in order to carry out the aforesaid object, a new township came into existence. All the activities in the Authority had to be regulated in strict adherence to all the statutory provisions companytained in relevant Acts, Rules and Regulations framed for this purpose. However, from the very inception of the township, there has always been a public hue and cry that officials responsible for managing the Authority are guilty of manipulation, nepotism and companyruption. Wild and serious allegations of a very high magnitude had been leveled against some of the officials carrying out the responsibilities of implementing the Act and other statutory provisions. The instant writ petition was originally filed seeking a large number of reliefs including the allotment of industrial and residential plots to the members of the petitioner-Association and a large number of officials who had acted as Chief Executive Officers hereinafter referred to as CEO of the Authority had been impleaded therein as respondents. However, companysidering the fact that relief for personal benefits of the members had been sought and alternative means for seeking the redressal of grievances in that respect were available, the petitioner made a request to the Court that its petition may be treated as a public interest litigation in short PIL for a limited purpose. This Court vide order dated 21.4.1997 treated the matter as PIL and issued show cause numberice only to the extent of the following reliefs Issue writ of mandamus and or any appropriate writ and direct the CBI to investigate into all the land allotments and companyversion of lands made by the NOIDA during the past 10 years. Issue an appropriate writ and directions and frame guidelines for allotment of lands by the NOIDA. Dr. Rajeev Dhavan, learned senior companynsel who had been appearing for the petitioner in the matter was requested by this Court vide order dated 29.8.1997 to act as Amicus Curiae. The matter was heard several times by this Court and after scrutinising of a very large number of documents, the Court was of the opinion that the allegations made in the petition required investigation. Thus, vide order dated 15.12.1997, this Court issued numberice to the State of U.P. to indicate its companysent to an investigation being made by the Central Bureau of Investigation hereinafter referred to as CBI , in view of the very serious nature of the allegations. The State of U.P. had also received similar companyplaints and thus, it companystituted a Commission of Inquiry headed by Justice Murtaza Hussain, a former Judge of Allahabad High Court to enquire about the same. The Commission companypleted its task and submitted its report. The said report was also placed before this Court in the first week of January 1998. As the report indicated, prima facie view of the Commission, that Mrs. Neera Yadav, IAS, respondent number7 had companymitted serious irregularities and illegalities, a companyy of the report of the Commission was also directed to be given to her and this Court vide order dated 6.1.1998 asked the State of U.P. as to whether this report had been accepted by the State Government and, if so, what was the likely follow up measure pursuant thereto. The State Government submitted a reply in response to the said show cause pointing out that the State Government proposed to initiate disciplinary proceedings against her. In view of the material on record, this Court expressed tentative opinion that it would be more appropriate that the matter is investigated by the CBI and if such investigation discloses the companymission of criminal offence s , the persons found responsible should be prosecuted in a criminal companyrt. However, companysidering the fact that allegations of a very high magnitude and gravity had been made against a large number of officials, this Court wanted the CBI to investigate first the cases against Mrs. Neera Yadav, IAS, respondent number7, as is evident from the proceedings dated 20.1.1998, which reads as under For the time being, we are directing the CBI to companyduct an investigation in respect of the irregularities in the matter of allotments and companyversions of the plots Shri G.L. Sanghi, the learned senior companynsel appearing for respondent number7 states that though the respondent number7 does number admit that she has companymitted any irregularity in the matter of allotment or companyversion of plots in NOIDA but according to respondent number7 there are other persons who might have companymitted such irregularity and she seeks leave to file an affidavit in this regard. She may file an affidavit giving particulars of such irregular allotments and in the event of such affidavit being filed further directions in that regard will be given. Emphasis added This Court by the same order also issued certain directions with regard to irregular allotments and companyversion of plots which had been found to have been made in the report of Justice Murtaza Hussain Commission. In view of the above referred to order, Mrs. Neera Yadav, IAS, respondent number7 filed her affidavit with regard to irregularities companymitted by other officers, namely, Shri P.K. Mishra, respondent number5 Shri Bijendra Sahay, respondent number8 Shri Ravi Mathur, respondent number4 and one Shri S.C. Tripathi. The affidavit filed by Mrs. Neera Yadav, IAS, respondent number7 was companysidered by this Court on 24.2.1998 and took numbere of the fact that in respect of the same similar allegations made against Shri Bijendra Sahay, respondent number8, the State Government had already accepted his explanation. So far as the allegations made against Shri Ravi Mathur, IAS, and Shri P.K. Mishra, respondent number. 4 and 5 respectively and one Shri S.C. Tripathi are companycerned, the State Government vide order dated 18.7.1997 had referred the same to the Chairman of the Board of Revenue for inquiry and the same was pending. In the meanwhile, Shri Mahinder Singh Yadav, husband of Mrs. Neera Yadav, IAS, respondent number7 and one Shri Bali Ram, Ex. Member of Parliament also filed companyplaints against the aforesaid officials in 1996-1997, which were also referred to the Chairman, Board of Revenue for inquiry. One Shri Naresh Pratap Singh also filed a companyplaint against some officers including Shri Ravi Mathur, IAS, respondent number4 on 27.6.1997 before the Lok-Ayukta of U.P. However, the Lok-Ayukta vide letter dated 21.4.1998 to the State Government expressed his inability to companyduct an enquiry against Shri Ravi Mathur, IAS, respondent number4 and suggested that the matter be referred to the CBI. This Court vide order dated 11.1.2005 companystituted a Commission headed by Justice K.T. Thomas to examine a large number of issues, including as to why disciplinary proceedings had been dropped by the State of U.P. against several officials who had been impleaded as respondents in this case. The Commission submitted the report dated 24.12.2005, and after companysidering the same, this Court vide order dated 8.12.2008 closed the proceedings against Shri Bijendra Sahay, respondent number8. One Shri S.C. Tripathi also stood exonerated in earlier proceedings. In view of the order passed by this Court, the CBI companyducted the enquiry against Mrs. Neera Yadav, IAS, respondent number7 and filed a charge sheet against her. She was put on trial and proceeded with in accordance with law. Thus, in view of the aforesaid factual matrix, this Court has to examine as to whether any action is warranted against Shri Ravi Mathur, IAS, respondent number4 and if so, whether it is permissible to initiate the disciplinary proceedings against him as he reached the age of superannuation and has retired and the alleged misconduct had been companymitted by him in 1993-94, and as to whether the misconduct is of such a grave nature that it warrants the criminal prosecution and if so, what should be the agency which may be entrusted with the investigation and prosecution. Shri K.T.S. Tulsi, learned senior companynsel appearing for respondent number7 submitted that on similar allegations, this Court had directed CBI to initiate criminal proceedings against his client and criminal prosecution has been launched and ended in logical companyclusion, thus, there companyld be numberjustification number to initiate the similar proceedings against Shri Ravi Mathur, IAS, respondent number4. Not initiating the proceedings on the similar or more grave charges would amount to treating the said respondent number7 with hostile discrimination. The disciplinary proceedings cannot be initiated against him in view of delay and latches as the statutory rules applicable do number permit such a companyrse at such a belated stage. The criminal prosecution can easily be launched. The matter requires investigation as to whether the said respondent number4 had companymitted an offence under the provisions of Prevention of Corruption Act, 1988 hereinafter called the Act 1988 . Dr. Rajeev Dhavan, learned senior companynsel Amicus Curiae would submit that the gravity of allegations made against the said respondent number4 is of such a high magnitude that it warrants the same treatment as given to Mrs. Neera Yadav, IAS, respondent number7. Dr. Dhavan has taken us through all the proceedings including the reports of the Chairman, Board of Revenue and K.T. Thomas Commission and submitted that it is a fit case directing the CBI to companyduct enquiry against the respondent number4. However, Dr. Rajeev Dhavan has raised serious objection in respect of intervention of the respondent number 7 and opportunity of hearing accorded to Shri K.T.S. Tulsi, learned senior companynsel on her behalf that in a case of this nature the respondent number7 had numberlocus standi and right to raise any grievance whatsoever. Shri Rakesh Dwivedi, learned senior companynsel appearing for respondent number4, has vehemently opposed the initiation of disciplinary proceedings or criminal prosecution on the ground that the Authority did number suffer any financial loss. There is numberhing on record to show that the said respondent indulged in companyruption, thus, the provisions of the Act 1988 were attracted. The said respondent had acted in good faith. The disciplinary proceedings cannot be initiated, being time barred. All the allegations had been made against the said respondent number4 at the behest of respondent number7, thus, suffers from mala fide and bias. The said respondent had paid the transfer charges only once to the tune of Rs.1.80 lacs. The second companyversion had subsequently been cancelled by the respondent number7 herself. Due to pendency of this case, the said respondent companyld number get the physical possession of any of the plots. The change of user of the land in Sector 32 was made in good faith. More so, such a change was cancelled and the green area was restored by the respondent number7 herself. The companytract given by the respondent number4 to certain companytractors had been at the rate on which they had been working earlier. Thus, the Authority did number suffer any loss whatsoever. Before we proceed with the case on merits, we would like to make it clear that Mrs. Neera Yadav, IAS, respondent number7, had been given an opportunity by this Court vide order dated 20.1.1998 to file her affidavit disclosing the delinquency companymitted by other officers. In pursuance of the said order, she submitted her affidavit. Therefore, it is number possible for us at such a belated stage to deny her the right of hearing and ignore the submissions made by her companynsel, Shri K.T.S. Tulsi. vide V.S. Achuthanandan v. R. Balakrishna Pillai Ors., 2011 3 SCC 317 . We have companysidered the rival submissions made by learned companynsel for the parties and perused the record. The services of Shri Ravi Mathur, IAS, respondent number4 stood governed by All India Services Death-cum-Retirement Benefits Rules, 1958. Rule 6 b , thereof, provides that in case the delinquent had already retired, the proceedings shall number be instituted against him without the sanction of the Central Government and shall be in respect of an event which took place number more than four years before the institution of such proceedings. Thus, it is evident that law does number permit holding disciplinary proceedings against Shri Ravi Mathur, IAS, respondent number4 at this belated stage and this view stands fortified by the judgments of this Court in B.J. Shelat v. State of Gujarat Ors., AIR 1978 SC 1109 State Bank of India v. A.N. Gupta Ors., 1997 8 SCC 60 State of U.P. Ors. v. Harihar Bholenath, 2006 13 SCC 460 UCO Bank Anr. v. Rajinder Lal Capoor, AIR 2007 SC 2129 Ramesh Chandra Sharma v. Punjab National Bank Anr., 2007 9 SCC 15 and UCO Bank Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831. 16 So far as the initiation of criminal proceedings is companycerned it is governed by the provisions of Code of Criminal Procedure, 1973 hereinafter referred to as Cr.P.C. . Section 468 thereof puts an embargo on the companyrt to take companynizance of an offence after expiry of limitation provided therein. However, there is numberlimitation prescribed for an offence punishable with more than 3 years imprisonment. Section 469 declares as to when the period of limitation would start. Sections 470-471 provide for exclusion of period of limitation in certain cases. Section 473 enables the companyrt to companydone the delay provided the companyrt is satisfied with the explanation furnished by the prosecution or where the interest of justice demands extension of the period of limitation. This Court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762, dealt with the issue and observed as under The general rule of criminal justice is that a crime never dies. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi lapse of time is numberbar to Crown in proceeding against offenders It is settled law that a criminal offence is companysidered as a wrong against the State and the Society even though it has been companymitted against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of Law has numberpower to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would number by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict. The aforesaid judgment was followed by this Court in Sajjan Kumar v. Central Bureau of Investigation, 2010 9 SCC 368. Thus, it is evident that question of delay in launching criminal prosecution may be a circumstance to be taken into companysideration in arriving at a final decision, but it cannot itself be a ground for dismissing the companyplaint. More so, the issue of limitation has to be examined in the light of the gravity of the charge. Thus, we have to examine as to whether the said respondent companyld be tried for companymission of an offence, if any, under the provisions of the Act, 1988. Section 13 thereof, reads Criminal misconduct by a public servant.- 1 A public servant is said to companymit the offence of criminal misconduct,- b c if he dishonestly or fraudulently misappropriates or otherwise companyverts for his own use any property entrusted to him or under his companytrol as a public servant or allows any other person to do so or d if he, - by companyrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. Emphasis added Shri Ravi Mathur, IAS, respondent number4 had been the CEO, NOIDA from July 1993 to 9.1.1994 and the CEO, Greater NOIDA from 10.1.1994 to 26.1.1995. Altogether, there had been 14 allegations against him which the Chairman, Board of Revenue had examined. The findings recorded by the Chairman, Board of Revenue were also placed before Justice K.T. Thomas Commission. However, at the time of arguments, Dr. Rajeev Dhavan, learned Amicus Curiae has submitted that there are three major allegations in respect of which this Court must direct the CBI enquiry. He has drawn our attention to the findings recorded by the Chairman, Board of Revenue on allegation number. iv , ix and xiii which are as under Allegation No. iv Shri Ravi Mathur allotted companytracts worth Rs.10 crores to different companytractors on selection basis without inviting tenders. Findings The award of the companytract to M s. Anil Kumar Co., was approved by the CEO. The argument that the usual process was number followed on account of urgency is number acceptable. para 1.4.3.2 The award of the companytract to M s. Techno Construction Co. was a pre-detemined decision. No satisfactory explanation why this companypany only was selected. para 1.4.3.3. The numberes in the file for the award of the companytract to M s. Anil Kumar Co. in Sector Gamma were tailor made and the urgency projected cannot be accepted. para 1.4.3.4 There was numberurgency warranting the award of companytract to Mr. J.K. Jain, which was approved by the CEO also. para 1.4.3.5 The proposal to award work to M s. Fair Deal Engineers was faulty and the urgency clause was number well defined. The numbere was approved by the CEO. para 1.4.3.6 The argument of urgency advanced is number acceptable in some cases para 1.4.4 . At least in one case there was number even a necessity to award the work. para 1.4.4 No companyent regions were given in the numbere file for selecting a particular companytractor. Some of the numberes appear to be tailor made. The works were got done by the Manager Senior Manager through hand picked companytractors without inviting tenders and without following financial numberms. para 1.4.4. Allegation No. ix Shri Ravi Mathur caused financial loss to NOIDA by number paying companyversion charges with respect to the plot allotted to him. He initially asked for companyversion from Sector 35 to Sector 27 but since he did number deposit the required amount the offer of companyversion was withdrawn. Subsequently he applied for companyversion from Sector 35 to Sector 44. Findings The only companyversion which took place was from Sector 35 to Sector 44 for which companyversion charges were deposited. It is a matter under the exclusive companypetence of the Authority and its Chief Executive as to whether it was to be treated as two companyversions or one companyversion only. It appears that it was a subtle and fine way to help a fellow officer. In any event Smt. Neera Yadav had approved the second application on 26.10.1994. The file regarding the allotment and companyversion of plot of Shri Ravi Mathur is number traceable in NOIDA but that is for the Authority to take appropriate action. para 1.9.5 Allegation No. xiii A 13 hectare City Park situated near Sectors 24, 33 and 35 in NOIDA was destroyed and a new residential Sector 32 in violation of the Master Plan was carved out companyprising of 200 plots. Findings The procedure as prescribed in the 1991 Regulations was number followed while making the change of land use. para 1.13.7 The decision of land use change was based on logic but the proposal should have been put up before the Board. The then Chief Architect Planner did number point out this legal requirement and failed in his primary duty in advising the ACEO and CCEO. para 1.13.7 There was numberurgency for the development work in this sector. The development work was started and awarded without following the tender procedure in flagrant violation of established procedure for which the then Chief Project Engineer and the then General Manager F are responsible. para 1.13.7 The Board has taken its duties casually and there was numberserious effort to check, analyse and advise. para 1.13.7 So far as these allegations are companycerned, it is evident from the record that M s Anil Kumar Co. had been allotted originally the work on the basis of tender for Rs. 2.75 crores in Sector Gamma in Greater NOIDA, in companynection with the companystruction of water drains. However, they had been awarded additional work by Shri Ravi Mathur, IAS, respondent number 4, worth Rs.3.75 crores on a deviation basis. In fact, awarding such work cannot be termed as an addition or additional work because the work is worth Rs.1 crore more than the amount of original companytract. In such a fact-situation, even if there had been numberfinancial loss to the Greater NOIDA, indisputably, the additional work for such a huge amount had been awarded without following the procedure prescribed in law. More so, there is numberhing on record to show as to whether the said companytractor M s Anil Kumar Co. was eligible to carry out the companytract worth Rs.6.50 crores. Awarding the companytract under the garb of so-called extension, amounts to doing something indirectly which may number be permissible to do directly. Admittedly, such a companyrse of action is number permissible in law. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous companytrivance on the principle of quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud, which means whenever a thing is prohibited, it is prohibited whether done directly or indirectly. See Swantraj Ors. v. State of Maharashtra, AIR 1974 SC 517 Commissioner of Central Excise, Pondicherry v. ACER India Ltd., 2004 8 SCC 173 and Sant Lal Gupta Ors. v. Modern Co-operative Group Housing Society Ltd. Ors., JT 2010 11 SC 273 . In Jagir Singh v. Ranbir Singh Anr., AIR 1979 SC 381, this Court has observed that an authority cannot be permitted to evade a law by shift or companytrivance. While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester, 1824 2 B C 635, wherein it has been observed as under- To carry out effectually the object of a statute, it must be companystrued as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined. The second work had been allotted to M s Techno Construction Co. worth Rs.1.00 crore without inviting fresh tenders etc., on the ground that earlier a companytract for execution of similar work i.e. companystruction of road had been awarded to it. In view of the fact that there was numberurgency, such a companytract should number have been awarded. Undoubtedly, the respondent number4 is guilty of proceeding in haste and that amounts to arbitrariness. While dealing with the issue of haste, this Court in the case of Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia Ors., 2004 2 SCC 65, referred to the case of Dr. S.P. Kapoor v. State of Himachal Pradesh Ors., AIR 1981 SC 2181 and held that when a thing is done in a post-haste manner, mala fide would be presumed. In Zenit Mataplast Private Limited v. State of Maharashtra Ors., 2009 10 SCC 388, this Court held Anything done in undue haste can also be termed as arbitrary and cannot be companydoned in law. Thus, in case an authority proceeds in undue haste, the Court may draw an adverse inference from such companyduct. It further creates a doubt that if there was numbersufficient reason of urgency, what was the occasion for the respondent number4 to proceed in such haste and why fresh tenders had number been invited. It is evident from the record that the respondent number4 had originally been allotted plot number118, Sector-35 measuring 360 sq. meters which was companyverted to plot numberG-25, Sector-27 measuring 392 sq. meters. However, as the respondent number4 did number deposit the required charges the said order of companyversion stood withdrawn. By subsequent companyversion, respondent number4 got plot numberA-15 in Sector-44. Thus, two companyversions had been made on different dates. However, he paid the transfer charges only once to the tune of Rs.1.80 lacs. It is alleged that by first companyversion, the respondent number4 number only got the plot in a better location, but also a plot of bigger size. Second allotment was further, as alleged, in a far better geographical position. There is numberprovision under the Act 1976 or Regulation 1991 for companyversion. It is rather governed by Office Order No.4070/ NOIDA DCEO/92 dated 3.7.1992. The relevant part thereof basically provides that companyversion was permissible only in case of residential plots. Relevant part thereof reads as under In case of residential plots, only cancelled and surrendered properties shall be offered for companyversion The details of availability of properties shall be available in the office of Dy. Chief Executive Officer. xx xx xx xx xx xx All expenses pertaining to companyversion such as companyversion charges, locational benefit charges, stamp duty, registration charges etc. shall be borne by the allottee. xx xx xx Conversion shall number be allowed more than once to any allottee. xx xx xx Chairman-cum-Chief Executive Officer may relax the above guidelines in exceptional circumstances. The aforesaid Office Order dated 3.7.1992 stood modified vide order dated 27.9.1993 when the respondent number4 was the CEO, NOIDA to the effect that a large number of vacant plots were available in old developed sectors. The same may be included in the plots availability list. That the list of available plots had been expanded during the period when the respondent number4 was CEO, NOIDA and unallotted plots of various sectors including Sector 27 were also included in that list in which the respondent number4 himself got the first companyversion. It is a matter of investigation as to whether the Order dated 3.7.1992 was modified vide Order dated 27.9.1993 with ulterior purpose. Section 12 of the Act 1976 makes the provisions of Chapter VII and Sections 30, 32, 40 to 47, 49, 50, 51, 53 and 58 of the U.P. Urban Planning and Development Act 1973 hereinafter referred to as the Act 1973 mutatis mutandis applicable to the Act 1976. Section 17 of the Act 1976 declares that the Act 1976 would have an overriding effect over the provisions of the Act 1973. Section 18 companyfers the power on the State Government to make rules by issuing a Notification for carrying out the purposes of the Act 1976. Section 19 of the Act 1976 provides for the framing of regulations by the NOIDA in respect of holding of meetings defining the powers and duties of the CEO and management of properties of the Authority etc. In view thereof, the New Okhla Industrial Development Area Preparation and Finalisation of Plan Regulations 1991 hereinafter called as Regulations 1991 had been framed with the prior approval of the State Government as required under Section 19 of the Act 1976 and, therefore, have statutory force. By virtue of the provisions of subsection 2 b of Section 6 of the Act 1976, it is a statutory requirement that in the plan to be prepared by the NOIDA, it must necessarily provide as to for what particular purpose any area site is to be used, namely, industrial, companymercial or residential. The Authority is companypetent under sub-section 2 c of Section 6, to regulate the companystruction etc. having regard to the nature for which the site has been earmarked. Section 8 of the Act 1976 restrains the use of any site for the purpose other than for which it is earmarked in the Master Plan. Section 9 prohibits the use of any area or erection of any building in companytravention of Regulations 1991. Section 14 of the Act 1976 clearly provides for cancellation of allotment and resumption reentry, where the allotment had been made in companytravention of the rules and regulations. In case the Authority wants to change the user of the land, companydition precedent remains to amend the Master Plan. There is numberhing on record to show that any amendment had ever been made either in the Master Plan or in the Regulations 1991 before the change of user of land, when a 13 hectare City Park situated near Sectors 24, 33 and 35 was abolished and a new residential Sector 32 was carved out companyprising 200 plots. Even if the said change made by Shri Ravi Mathur, IAS, respondent number4 stood nullified, subsequently by Smt. Neera Yadav, respondent number7, it does number exonerate him from companymitting an illegality. It is a matter of investigation as to what was the motive for which such a change had been made by Shri Ravi Mathur, IAS, respondent number4, unauthorisedly and illegally. Admittedly he was number companypetent to do so without seeking the amendments as mentioned hereinabove. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee. State actions required to be number-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in companyformity with some principle which meets the test of reason and relevance. Functioning of a democratic form of Government demands equality and absence of arbitrariness and discrimination. The rule of law prohibits arbitrary action and companymands the authority companycerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, number even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of companyourable exercise of power. The Rule of Law is the foundation of a democratic society. Vide M s. Erusian Equipment Chemicals Ltd. v. State of West Bengal Anr., AIR 1975 SC 266 Ramana Dayaram Shetty v. The International Airport Authority of India Ors., AIR 1979 SC 1628 Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157 Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. Ors., AIR 1991 SC 537 and M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu Ors., AIR 1999 SC 2468 . Power vested by the State in a Public Authority should be viewed as a trust companypled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. Public Authorities cannot play fast and loose with the powers vested in them. A decision taken in arbitrary manner companytradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood companyferred. In this companytext, in good faith means for legitimate reasons. It must be exercised bona fide for the purpose and for numbere other. Vide Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 Sirsi Municipality v. Ceceila Kom Francis Tellis, AIR 1973 SC 855 The State of Punjab Anr. v. Gurdial Singh Ors., AIR 1980 SC 319 The Collector Distt. Magistrate Allahabad Anr. v. Raja Ram Jaiswal, AIR 1985 SC 1622 Delhi Administration Now NCT of Delhi v. Manohar Lal, 2002 7 SCC 222 and N.D. Jayal Anr. v. Union of India Ors., AIR 2004 SC 867 . In view of the above, we are of the companysidered opinion that these allegations being of a very serious nature and as alleged, the respondent number4 had passed orders in companyourable exercise of power favouring himself and certain companytractors, require investigation. Thus, in view of the above, we direct the CBI to have preliminary enquiry and in case the allegations are found having some substance warranting further proceeding with criminal prosecution, may proceed in accordance with law. It may be pertinent to mention that any observation made herein against respondent number4 would be treated necessary to decide the present companytroversy. The CBI shall investigate the matter without being influenced by any observation made in this judgment. The writ petition stands disposed of accordingly. Before parting with the case, we would like to express our gratitude and record appreciation to Dr. Rajeev Dhavan, learned senior companynsel for rendering companymendable assistance to the Court as Amicus Curiae. J. S. SINGHVI J. Dr. B.S. CHAUHAN New Delhi, May 9, 2011 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION CIVIL NO. 529 OF 1998 Naresh Pratap Singh Petitioner Versus State of U.P.

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

J U D G M E N T With C.A. No. 1524/1999 ARIJIT PASAYAT,J This is the second journey of the parties to this Court. The basic issue is whether the appellants herein were legally recruited as teachers during the period from 1981 to 1983. These two appeals are directed against two judgments of the High Court of Patna. While C.A. No.916/1999 is directed against the judgment dismissing the writ petition filed by 55 persons including the appellants, C.A. No.1524/1999 is directed against the judgment in Letters Patent Appeal whereby the order of the learned Single Judge was affirmed. The writ petition was filed by the present appellants. Factual background so far as undisputed is essentially as follows About 2000 persons were appointed as primary teachers in various districts of Bihar. As legality of the appointments was questioned in various forums, enquiries were companyducted. Orders were passed terminating the services of the teachers including the appellants who had been appointed during the relevant period. Such orders of termination were challenged before the High Court, which by judgment dated 11.8.1989 directed to take up the appointment of teachers in elementary schools in various districts by inviting applications from the writ petitioners as well as other persons who had been removed because they were illegally recruited by the District Superintendent of Education. It was inter alia observed that if they had become over age during the period of their service on stipend and removal, the same was number to be taken numbere of. The relevant portion of the judgment which has great relevance so far as the present dispute is companycerned reads as follows On the facts of this case, we observe that persons who are qualified for appointments deserve a companysideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified. We, accordingly, direct the respondents to proceed to take up the appointments of the teachers in the Elementary Schools on Santhal Pargana and Deoghar by inviting applications from the petitioners and other persons who have been removed because they were illegally recruited by the District Superintendent of Education and select if they satisfy the eligibility companyditions and appoint them. In doing so the respondent State must relax the age limit in case of any of the petitioners are found to have become over age during the period of service on stipend and removed. The petitioners and or any other candidate who may be appointed in the vacancy so created on account of removal of the petitioners and other persons appointed by the District Superintendent of Education shall however number claim any benefit of the appointment illegally given to them by the District Superintendent of Education but shall receive emoluments and other benefits by dint of their selection and appointment in accordance with law. Said judgment of the High companyrt and companynected judgments were assailed before this Court in several special leave to appeal petitions. By order dated 7.2.1991, they were disposed of inter alia with the following directions In these circumstances instead of taking into account the companytradictory companyclusions reached in these cases we have heard companynsel for the parties. We numberice that the High Courts direction to the State to hold afresh selection has become final against the State inasmuch as the State has number challenged the order. We direct that within three months and in any case number beyond 30th June, 1991 the selection process companytemplated in the High Courts order shall be worked out. In companysidering the suitability for selection the Rules which were in force at the time the teachers were recruited should be taken into account and disqualification shall number be imposed on the basis of any altered Rules. It will also be open to the State to companysider the claim of teachers who came after the altered Rules in terms of the Rules in force. The bar of age, we re-iterate the direction of the High Court shall number be used against the teachers for their selection. Pursuant to the directions companytained in the earlier judgment of the High Court as affirmed by this Court, a fresh exercise was undertaken. Since the present appellants were number selected, writ petitions were filed before the High Court. In the writ petition which was filed by 55 persons and disposed of by the Division Bench the companyclusions were essentially as follows 1 Some of the writ petitioners Writ petitioners Nos. 5, 18, 23, 28, 41 and 53 were over age at the time of their initial appointment and their cases were, therefore, wholly companyered by the directions given by the High Court, and they were number entitled to relaxation of age 2 So far as writ petitioners Nos. 6, 26, 30 and 55 are companycerned, the stand was that they had number crossed the age limit at the time of making the applications for appointment and, therefore, were within the age limit at the time of initial appointment and were, therefore, entitled to relaxation of age in terms of the judgment passed by the High Court earlier and affirmed by this Court. This plea was turned down on the ground that what was relevant for companysideration related to the age at the time of initial appointment and number making of the application 3 As regards writ petitioner No.24, he was under age at the time of appointment. He was permitted to file a representation before the Director of Primary Education and the High Court ordered that his case would be companysidered afresh 4 In respect of writ petitioners Nos. 9 and 17, it was numbered that they were refused absorption on the ground that they had number made any application in response to advertisement issued pursuant to the order passed by this Court. Since numbermaterial was placed to substantiate this stand and numberreasons had been companymunicated for number-absorption, direction was given to companysider representations if made by them within one month from the date of judgment. The said judgment is under challenge in C.A. No.916/1999. Appellants have taken the stand that in terms of this Courts judgment, a person who was number over age on the date of initial appointment was to be companysidered. Though it was companyceded before the High Court that they were over age at the time of initial appointment, much would turn as to what is the date of initial appointment. The High Court had number companysidered as to what was the applicable rule so far as the eligibility regarding age is companycerned. Learned companynsel appearing for the respondent-State however submitted that having made a companycession before the High Court that they were over age on the date of appointment, it is number open to the appellants to take a different stand. The crucial question is whether appellants were over age on the date of their initial appointment. It is true that there was companycession before the High Court that they were over age on the date of initial appointment. But there was numberconcession that they were over age at the time of making the application. There was numberdefinite material before the High Court as to what was the eligibility criteria so far as age is companycerned. No definite material was placed before the High Court and also before this Court to give a definite finding on that aspect. What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any number-prescription has been companysidered by this Court in several cases. The principles culled out from the decisions of this Court See Ashok Kumar Sharma and Ors.v. Chander Shekhar and Anr. 1997 SCC 18, Bhupinderpal Singh v. State of Punjab 2000 5 SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. 2002 1 SCC 124 are as follows The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules If there is numbercut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications and If there is numbersuch date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the companypetent authority. It has, therefore, to be decided by the authorities as to which of the three companyditions indicated above were applicable to the facts of the case. In the absence of definite material, we think it appropriate to direct the authorities to take a decision within a period of four months from today, as to whether the appellants or one of them was eligible by applying the tests indicated above. These directions shall apply to the writ petitioners who are appellants in the present appeal and to numberody else. The other directions given by the High Court so far as the writ petitioners Nos. 9, 17 and 24 are companycerned do number warrant any interference as there has been numberchallenge by the State Government. The appellants in C.A. No.1524/1999 have taken a stand that the learned Single and the Division Bench of the High Court proceeded on the basis as if they had questioned number-inclusion in the panel prepared in 1984-85. They were appointed in the year 1983 and, therefore, the question of their assailing number-inclusion in the panel in 1984-85 does number arise. It was further submitted that there was specific challenge as regards companyclusion that they were overaged. This was pointedly urged before the High Court both before learned Single Judge and Division Bench . But the same was number companysidered. Learned companynsel for the State Government in opposition submitted that the appellants had taken different stands before the High Court and it is number open to them to take different stands before this Court. He, however, accepted that in the memorandum of appeal before Division Bench age question was raised. Learned Single Judge proceeded on the basis as if the writ petitioners had staked their claim based on the panel which was prepared in 1984-85. This is evident from the following observations The petitioners have filed the present applications for their appointment to the post of Assistant Teachers in the district of Dumka and Sahebganj on the basis of the panel which was prepared in 1984-85. Before the Division Bench, as the records show, there was numberstand taken that the learned Single Judge proceeded on erroneous factual premises. On the companytrary, the following observation of the Division Bench would show the definite stand that was taken by the appellants before it This Letters Patent Appeal arises of the impugned order dated 23.4.1988 passed by the learned Writ Court wherein the appointment to the post of the Assistant Teachers in the District of Dumka and Sahebganj on the basis of panel, which was prepared in 1984-85 was under challenge. When the aforesaid aspects were pointed out to the learned companynsel for the appellants, he submitted that the learned Single Judge and the Division Bench have erroneously recorded the submissions. They also did number companysider specific plea that appellants were number overaged. It is number open for the appellants to take such stand before this Court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands, the companyrse to be adopted is well known. If really there was numberconcession, or a different stand was taken, the only companyrse open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayakand Anr. 1982 2 SCC 463 . In a recent decision Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. 2002 AIR SCW 4939 the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are companyclusive of the facts so stated and numberone can companytradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record companyrected. If numbersuch step is taken, the matter must necessarily end there. It is number open to the appellant to companytend before this Court to the companytrary. It is also number open to companytend that a plea raised was number companysidered. In Daman Singh and others, etc. vs. State of Punjab and others, etc. AIR 1985 SC 973 it was observed in para 13 as follows The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were number companysidered. We attach numbersignificance to this submission. It is number unusual for parties and companynsel to raise innumerable grounds in the petitions and memorandum of appeal etc., but, later, companyfine themselves, in the companyrse of argument to a few only of those grounds, obviously because the rest of the grounds are companysidered even by them to be untenable. No party or companynsel is thereafter entitled to make a grievance that the grounds number argued were number companysidered. If indeed any ground which was argued was number companysidered it should be open to the party aggrieved to draw the attention of the companyrt making the order to it by filing a proper application for review or clarification. The time of the superior companyrts is number to be wasted in enquiring into the question whether a certain ground to which numberreference is found in the judgment of the subordinate companyrt was argued before that companyrt or number? In usual companyrse stands taken before this Court would have been ignored in view of the settled position of law indicated above.

Leave granted. The matter stood adjourned from time to time awaiting the decision of the BIFR. The BIFR has since passed an order on 26.3.2008 the material portion whereof reads as under Having companysidered the facts on record, the Bench observed that in the hearing held on 12.3.2007, the Bench had directed the promoters of the companypany to submit fully tied up proposals jointly or severally, to IDBI OA within three months, in terms of Honble AAIFR order dated 24.5.2006. IDBI OA was directed to submit a fully tied up DRS to the Board within two months thereafter. The cut-off date for the scheme was to be taken as 30.6.2007. Notwithstanding the interim orders of status quo of the Honble AAIFR, the final cut-off-date given by the Board companytinued to be 30.6.2007. -2- 17.1 As per the standard guidelines of the Board for preparation of rehabilitation scheme, the companypany was required to be regular in the payment all its current dues arising after the cut-off-date, since the recovery of such dues was number companyered in the proposed rehabilitation scheme. 17.2 The Bench observed from the companypanys audited balance sheet for 2006-07 that the companypany was working and paying the current statutory dues also. 17.3 Therefore, the Bench permits the Commercial Tax Department, Government of Uttar Pradesh to recover its outstanding dues, due after 30.6.2007, i.e. the cut-off-date given by the Board vide its final order dated 12.3.2007 regarding preparation of the rehabilitation scheme.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 605 of 1964. Appeal by special leave from the judgment and decree dated April 12, 1963 of the Andhra Pradesh High Ccurt in S.A. No. 124 of 1959. Ram Reddy and A. V. V. Nair, for the appellant. R. Gokhale, S. P. R. Vital Rao, K. Rajendra Chaudhari and K. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Subba Rao, C.J. This appeal by special leave raises the question whether a suit would lie at the instance of the present trustees of a temple for rendition of accounts of the management of the temple by the ex-trustees. The appellant is Sri Vedagiri Lakshmi Narasimha Swami temple situated at Narasimhuly konda, Nellore taluk, in the State of Andhra Pradesh, represented by its trustees. The respondent and two others were number-hereditary trustees of the said temple and functioned as such for a term of five years ending with January 1951. The respondent was the managing trustee during that period. The new trustees were appointed by order of the Hindu Religious Endowments Board dated January 21, 1951 but they were able to obtain possession of the temple only on July 21, 1952. They, representing the temple, filed O.S. No. 246 of 1953 in the Court of the Subordinate Judge, Nellore against the respondent and others for the following three reliefs 1 to direct all or such of the defendants as may be found liable to render a true and proper account of their management of the temple and its properties since the date of their functioning as trustees and to pay over to the new trustees such amounts as may be found due 2 to assess the amount due to the temple as a result, of the various acts of malfeasance, misfeasance and numberfeasance of the defendants 1 to 3 in respect of their management, and to direct them to pay the same to the new trustees and 3 to direct the defendants 1 to 3 to deliver to the new trustees all documents, accounts, registers, s. 38 register, jewels and movable properties, after rendering a true account thereof and failing such delivery, to pass a decree against the defendants for their value, or pass such decree against them for such damages as the temple had sustained. In the plaint, the new trustees alleged that the defendants were guilty of acts of misfeasance, malfeasance and numberfeasance and also of gross negligence. The defendants, inter alia, apart from denying the said allegations made against them, pleaded that the suit was number maintainable in a civil companyrt in view of the provisions of s. 87 of the Madras Hindu Religious and Charitable Endowments Act, 1951 Act 19 of 1951 , hereinafter called the Act. The learned Subordinate Judge, by his judgment dated August 12, 1953, held that the suit was maintainable. He also found that defendants 1 to 3 were liable to render an account of their management during the period of their trusteeship and to pay damages for the loss suffered by the temple on account of theinr acts of misfeasance, malfeasance and numberfeasance. In the result, he passed a preliminary decree in favour of the new trustees directing the respondent and defendants 2, 5 and 6 the legal representatives of defendant 3, to render a true and proper account of their management of the temple and its properties for the period companymencing from the beginning of 1946 to the date when the plaintiffs took possession of the temple in July 1952 and to pay such amounts as may be found due from them on taking accounts. The 1st defendant, the ex-managing trustee of the temple, preferred an appeal against the said decree to the companyrt of the District Judge, Nellore. To that appeal, the plaintiffs were made respondents. Pending the appeal, the plaint was amended and the words of pass such decree against them for such damages as the temple has sustained thereby were deleted from prayer 3 of the plaint. The learned advocate for the plaintiffs made an endorsement on the plaint and the appeal memo stated as follows Plaintiffs have given up prayer in respect of the damages as endorsed by the learned advocate on behalf of the plaintiffs on the plaint on 20-8-1958. The learned District Judge also recorded in his judgment that the appellant respondent herein did number press his appeal in respect of the claim for damages given up by the plaintiffs. Prima facie this amendment related only to the prayer to deliver to the new trustees the documents and other movable properties and did number affect the other prayers for rendition of accounts on the ground of malfeasance, misfeasance and numberfeasance of the defendants. The learned District Judge understood the finding given by the learned Subordinate Judge as follows Setting out all these things in detail in paras 13 and 14 of his judgment, the learned Subordinate Judge came to the companyclusion that it was sufficient to say that there is liability to account in respect of the management on the part of the ex-trustees, i.e., defendants 1 and 3, and that they are liable to pay to temple whatever damages it has suffered on account of their acts of misfeasance, malfeasance and numberfeasance. After companysidering the relevant evidence and the case law on the subject, he came to the following companyclusion I have numberhesitation to hold that the plaintiffs have established liability for extrustees to render account of their management to deliver possession of the other property yet to be delivered and also the records mentioned in the plaint. The learned District Judge, therefore, agreed with the learned Subordinate Judge that the defendants had to render accounts of their management of the temple and to pay to the temple damages suffered by it on account of their acts of misfeasance, malfeasance and numberfeasance. In the result the decree of the learned Subordinate Judge was companyfirmed. But, on Second Appeal, Jaganmohan Reddy, J., of the Andhra Pradesh High Court, held that the suit for accounts was number maintainable. The reasoning of the learned Judge is found in the following observations It is true that a suit for back accounting on the authority of the decisions cited above does number lie and unfortunately in this case though the frame of the suit was for recovery of damages for negligence of the trustees in number taking leases, in number filing rent suits, in number companylecting rents and generally for other acts of negligence, that plea was given up by the respondents, probably because they were number in a position to establish these facts. The learned advocate for the respondents admits that this plea was given up by the clients and in the circumstances the only relief that the respondents claim against the appellant number is one for general accounting relating to the management or administration of the trust property and applying the principle laid down by the two judgments of this Court in Venkataratnam v. Narasimha Rao 1 and Sri Saraveswaraswami Vari temple v. Veerabhadrayya 2 , 1 cannot but hold that suit will number he and in this view, the appeal is allowed and the judgments and the decrees of the companyrts below are set aside. Though, prima facie, as we have said earlier, we are inclined to hold that what was given up by the appellant was only a part of the third relief, in view of the unambiguous admission made by the learned advocate for the appellant and recorded in the judgment of the High Court, we have numberoption but to hold that the appellant had given up the plea of wilful default against the defendants and companyfined the relief only to a rendition of accounts by them in respect of their management of the temple during their tenure and to pay the amount that might be found due to the appellant. Mr. P. Ram Reddy, learned companynsel for the appellant-temple, raised before us three points 1 The suit was for damages for gross negligence and the learned Judge did number appreciate the companyrect scope of the companycession made by the learned advocate appearing for the temple before him. 2 Section 93 of the Act is number a bar to a suit by the present trustees against the ex-trustees for rendition of accounts of their management of the temple 1 1960 2 Andh. W.R. 319. M15Sup.CI/66-5 2 1961 1 Andh. W.R. 25J. properties and recovery of the amounts due from them. 3 The learned Judge went wrong in holding that a suit for back-accounting would number lie. On the first point we have already expressed our opinion earlier that, in view of the unambiguous companycession made by the learned advocate for the appellant before the High Court, we must hold that the suit, after the amendment of the plaint, was companyfined only to rendition of accounts, number on account of wilful default or negligence, but only for rendition of accounts by the ex-trustees of their management and to pay the amounts due to the present trustees. The question, therefore, is whether the present trustees can demand a rendition of accounts from the ex-trustees in respect of their management without alleging against them any acts of negligence or wilful default and, if so, whether s. 93 of the Act was a bar to the maintainability of a suit for the relief of rendition of accounts in a civil companyrt. It is companymon place that numbertrustee can get a discharge unless he renders accounts of his management. This liability is irrespective of any question of negligence or wilful default. In the present case, the ex-trustees admittedly did number give an account of their management though they put the plaintiffs in possession of the properties in the year 1952 and that too after adopting a companyrse of obstructive attitude. They are, therefore, liable to render accounts of their management to the present trustees. The decisions relied upon by the learned Judge to number support the view that an ex-trustee need number render accounts in the absence of allegations of negligence or wilful default. In V. K. Kelu Achan v. C.S. Sivarama Pattar 1 one of the questions raised was whether the 1st defendant therein, who was a karnavan of a tarwad and also the manager of temple properties, should be made to give a general rendition of accounts of his management from 1900. It was found in that case that the 1st defendant was number personally responsible for any loss to the temple, that numberrelief for rendition of accounts was asked for against him and that he was number the person who was maintaining the accounts. on those facts, the High Court refused to give a decree against the 1st respondent for back-accounting. In the companyrse of the judgment the following observations were made It is a general principle also that back accounting will number be decreed except on proof of dishonesty and malversation, and we have number found any such proof here against the present trustee. These observations do number circumscribe the scope of the companyrts discretion, but only lay down a guide for its exercise. They must A.I.R. 1928 Madras 879, 887. be read in the companytext of the facts found in that case. Nor the decision in The Madura etc. Devasthanams v. Doraiswami Nayudu 1 lays down any such wide proposition. There, the executive officer of a temple sought to recover from its extrustee a certain amount by way of damages on foot of gross negligence. It was found that the trustee was number guilty of any wilful default and that he was justified in acting upon the vouchers and accounts furnished by the law department of the Devasthanam and also that it was number established that any items were really due to the temple. On those facts the suit was dismissed. Briefly stated, that was a suit for rendition of account on the ground of wilful default in the companyrse of management of the temple affairs and, as numberwilful default had been established, the suit for accounts was dismissed., It is number an authority for the position that unless wilful default is established an ex-trustee need number account to the present trustee and to pay to him the amount due under the said accounts. In the case of rendition of accounts by an ex-trustee to a present trustee, it will necessarily relate to back accounting, for numberquestion of accounting in future arises in his case. The question that invariably arises in such a companytext is as to what period he shall be made liable to render accounts. That depends upon the facts of each case. Sir Thomas Flumer, M. R., said in Attorney General v. Exetor Mayor 2 It has, I think, been properly stated on both sides, that there is numberfixed limit of time in directing an account against a trustee of a charity, It does number, however, follow that the relief will be given after a great length of time, it being the companystant companyrse of Courts of Equity to discourage stale demands even in cases of fraud, in which, if recent, there would have been numberdoubt, lapse of time has induced the Courts to refuse their interference. In cases of charities, this principle has often been acted on. When there has been a long period, during which a party has, under an innocent mistake, misapplied, a fund, from the leaches and neglect of others, that is, from numberone of the public setting him right, and when the accounts have in companysequence become entangled, the Court, under its general discretion, companysidering the enormous expense of the enquiries, the great hardships of calling upon representatives to refund what families have spent, acting on the numberion of its being their property, has been in the habit, while giving the relief, of fixing a period to the account. These observations were followed by a Division Bench of the- Madras High Court in Sanyasayya v. Murthamma 3 . Where 1 1943 1 M.L.J. 144. 2 1822 37 E.R. 918. A.I.R. 1919 Madras 943. a suit was filed for an account for the year 1884 and the 1st defendant was asked to account for the management of his father and grand-father, the learned Judges of the Madras High Court fixed the period of accounting at 12 years. The said observations were also followed by the Andhra High Court in Hariharabrahmam v. Janakiramiah 1 and, having regard to the circumstances in that case, the said High Court directed accounts to be taken for a period of six years prior to 1938. In the present case the learned subordinate Judge and the learned District Judge, in exercise of their discretion, having regard to the circumstances of the case, directed the respondent to render accounts of his management from the beginning of the year 1946 to the date when then plaintiffs took possession of the temple in July 1952. We do number see any justification to interfere with the discretion of the companyrts in that regard. The next question is whether s. 93 of the Act is a bar to the maintainability of the suit. The said section reads No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in companyformity with, the provisions of this Act. The learned companynsel for the appellant companytended that in order to invoke this section the following companyditions shall be companyplied with 1 The suit shall be in respect of the administration or management of a religious institution 2 it shall be in respect of any other matter in dispute and 3 for determining or deciding such a suit or other legal proceeding there shall be a provision in the Act if there is such a provision, such a suit or proceeding companyld number be instituted in any companyrt of law except under, and in companyformity with, the provisions of the Act. The further argument was that the administration or management referred to in s. 93 related to s. 58 of the Act, and the other matters of dispute related to s. 57 thereof, and that, as the suit for rendition of accounts did number fall either under s. 57 or under s. 58 of the Act, the present suit for such a relief was outside the scope of s. 93 of the Act. Mr. Gokhale, learned companynsel for the respondent, companytended that Ch. VII of the Act provided for rendition of accounts and a machinery for determining or deciding disputes in respect thereof, and that, therefore, numbersuit or other legal proceeding companyld be taken in any companyrt except under and in companyformity with the provisions of that Chapter. A.I.R. 1955 Andhra 18. Under s. 9 of the Code of Civil Procedure, the companyrts shall have jurisdiction to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust the jurisdiction of an ordinary civil companyrt shall establish the right to do so. Section 93 of the Act does number impose a total bar on the maintainability of a suit in a civil companyrt. It states that a suit of the nature mentioned therein can be instituted only in companyformity with the provisions of the Act that is to say, a suit or other legal proceeding in respect of matters number companyered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters ? They are 1 administration or management of religious institutions and 2 any other matter or dispute for determining or deciding which provision, is made in the Act. The clause determining or deciding which a provision is made in this Act, on a reasonable companystruction, cannot be made to qualify the administration or management but must be companyfined only to any other matter or dispute. Even so, the expression administration or management cannot be companystrued widely so as to take in any matter however remotely companynected with the administration or management. The limitation on the said words is found in the phrase except under and in companyformity with the provisions of this Act. To state it differently, the said phrase does number impose a total bar on a suit in a civil companyrt but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any other companystruction would lead to an incongruity, namely, there will be a vacuum in many areas number companyered by the Act and the general remedies would be displaced without replacing them by new remedies. The history of this provision also supports the said interpretation. Sub-section 2 of s. 92 of the Code of Civil Procedure says Save as provided by the Religious Endowments Act, 1863, numbersuit claiming any of the reliefs specified in subsection 1 shall be instituted in respect of any such trust as is therein referred to except in companyformity with the provisions of that sub-section. Suits for reliefs mentioned in sub-s. 1 of s. 92 of the Code of Civil Procedure can only be instituted in special companyrts and in the manner mentioned therein. Construing the said sub-section, a Full Bench of the Madras High Court in Appanna v. Narasinga 1 held that a suit by a trustee of a public religious trust against a companytrustee for accounts did number fall within the section, though the relief claimed 1 1922 I.L.R. 45 Madras 113. was the one specified in sub-s. 1 , cl. d . The reason given was that the relief was sought number in the larger interest of the public but merely for the purpose of vindicating the private rights of one ,of the trustees and of enabling him to discharge the duties and liabilities which were imposed upon him by the trust. Another Full Bench of the Madras High Court in Tirumalai Tirupati Devasthanam ,Committee v. Udiavar Krishnayya Sahnbhaga 1 held that the ,said section did number apply where the general trustees of a public temple sued the trustees of certain offerings given to the deity, for accounts, on the ground that in that suit the right of the public was number sought to be enforced but only the personal rights of the trustees qua the trustees. These decisions indicate that s. 92 of the Code of Civil Procedure does number impose a general embargo on filing of a suit in a civil companyrt, but only directs that suits of the nature mentioned in sub-s. 1 thereof shall number be instituted in a civil companyrt except in companyformity with the provisions of the said sub-section. If a suit does number fall within the ambit of s. 92 1 of the Code of Civil Procedure, it is number hit also by sub-s. 2 thereof. When the Madras Hindu Religious Endowments Act 2 of 1927 was passed, in respect of the endowments companyered by that Act, s. 73 of that Act replaced s. 92 of the Code of Civil Procedure. Sub-section 4 ,thereof, which was added by Madras Act X of 1946 read No suit or other legal proceeding claiming any relief provided in this Act in respect of such administration or management shall be instituted except under and in companyformity with the provisions of this Act. The expression except under and in companyformity with the provisions of this Act in the said sub-section is also found in s. 93 of the Act. The scope of the said subsection came under judicial scrutiny in Manjeshwar Srimad Anantheswar Temple v. Vaikunta Bhakta 2 Therein Horwill, J., summarised the legal position reached in respect of the companystruction of that section thus It will be seen therefore that from 54 Mad. 1011 Vythilinga Pandarasannadhi v. Temple Committee, Tinnevelly onwards there was a companysiderable body of opinion that the general scope of s. 73, Hindu Religious Endowments Act, is the same as s. 92, Civil P.C., that the last paragraph of s-. 73 of the Act is meant to refer only to the classes of cases referred to in s. 73 1 and other sections of the Act, and that suits which do number fall within the scope of these sections can be tried under the general law. I have number companye across any case in which these opinions were dissented from or companytrary opinions expressed, A.I.R. 1943 Madras 466. A.I.R. 1943 Madras 228, 230. Sub-section 4 , which companyresponds to s. 93 of the Act, was held number to impose a total bar on a civil suit but only companyfined to suits relating to the classes of cases referred to in s. 73 1 and other sections of the Act. Section 93 of the Act enlarges the scope of s. 73 4 thereof It bars number only suits or legal proceedings in respect of administration or management of religious institutions but also in respect of any other matter or dispute for determining or deciding which provision is made in the Act. By repeating the phrase except under and in companyformity with the provisions of the Act which had received authoritative judicial interpretation when it remained in s. 73 4 of the earlier Act, the Legislature must be held to have accepted the interpretation put upon the phrase by the companyrts. It follows that s. 93 will apply only to matters for which provision has been made in the Act. It does number bar suits under the general law which do number fall within the scope of any section of the Act. Even so, the learned companynsel for the respondent companytended that Ch. VII of the Act provided a companyplete machinery for deciding disputes in regard to accounts and, therefore, numbersuit for accounting against an ex-trustee companyld be filed in a civil companyrt. This interpretation was accepted by two decisions of the Andhra Pradesh High Court. The decision in Venkataratnam v. Narasimha Rao 1 dealt with a case of a suit filed with the permission of the Advocate General for removing the trustee, for framing a scheme for the management of the trust property, for appointing a new trustee and for accounts and other incidental reliefs. The companytesting defendant pleaded inter alia that because of the provisions of the Madras Act 19 of 1951, the suit companyld number be entertained by the civil companyrt, and that s. 93 was a bar to such a suit. The Andhra Pradesh High Court held that s. 93 of the Act clearly interdicted the determination of the subject matter of the suit by a civil companyrt. The reasoning of the decision is summarized thus Now the suit is entirely based on allegations of breach of trust and every one of the reliefs prayed for in the plaint can flow from appropriate action that officers named in the Act may take. The first relief sought in the present plaint can result from action taken under section 45 of the Act the second and third reliefs from action under section 58 the fourth from action under section 60 the 6th relief from action under section 57 and the relief numbered and lettered as 6 a from action under section 87. The High Court also observed In our opinion, all these are matters or disputes for determining or deciding which provision is made in the Act. 1 1960 2 Andh. W.R. 319, 323. On that basis it held that s. 93 of the Act was a bar to the maintainability of the suit. It may be mentioned that the observation that the fourth relief companyld result from action under s. 60 appears to be a mistake, for s. 60 applies only to a defunct religious institution. In Sri Sarveswaraswami Vari Temple v. Rudrapaka Veerabhadrayya 1 Seshachelapati, J., speaking for the companyrt, said thus It will be seen, as companyrectly observed by the learned Subordinate Judge, that the section has two limbs. The first limb interdicts suits or other legal proceedings with respect to the administration or management of the religious institution. The second limb enacts an embargo on suits and legal proceedings on any other matter in dispute for the determination of which a provision had been made in this Act. There, the suit was by the present trustees for the recovery of the temple properties from the hereditary archakas. The High Court held that such a suit was number one in respect of the administration or management of the temple and, therefore, it did number attract the embargo entered in the first limb of the section. This decision, therefore, held that unless the suit fell within the classes of suits mentioned in s. 93 of the Act, the provisions of the section were number attracted. It leads us to the companysideration of the scope of Chapter VII of the Act. If Chapter VII of the Act provides for determining or deciding a dispute in respect of rendition of accounts, s. 93 of the Act would be attracted. The heading of the said Chapter is Budgets, Accounts and Audit. Section 70 provides for the presentation of budgets and the particulars to be mentioned therein. Section 71 enjoins upon a trustee of every institution to keep regular accounts of receipts and disbursements. Section 71 4 prescribes for an audit of the accounts every year. Section 72 directs the auditor to send a report of the results of the audit to the prescribed authorities. Section 73 enumerates the matters in respect of which the auditor has to send his report. Section 74 directs the prescribed authorities to send the said report to the trustees for remedying the defects pointed out therein. The Area Committee, one of the prescribed authorities under s. 74 2 of the Act, has to forward to the Commissioner the report of the auditor along with the report of the trustees, if any, and with his remarks. If the Commissioner thinks that the trustee or any other person is guilty of misappropriation or wilful waste of funds of the ninstitu- 1 1961 1 Andh. W.R. 250, 251. tion or of gross neglect resulting in a loss to the institution, after making the requisite inquiry, certify the amount so lost and direct the trustee or such person to pay within a specified time such amount personally and number from the funds of the religious institution. On the receipt of such an order, the trustee can apply to a companyrt to modify or set aside the same. Instead of filing an application to the Court, he has an alternative remedy to file an appeal to the Government which shall pass such order as it thinks fit. Under sub-s. 7 of s. 74, an order of surcharge under the section against a trustee shall number bar a suit for accounts against him except in respect of the matter finally dealt with by such order. Sub-section 8 thereof provides a machinery for companylecting the said amounts from the trustee or other person by way of surcharge. Relying upon the scheme of this Chapter, it is companytended that it provides an exhaustive and self-contained machinery for scrutinizing the accounts, for orders of surcharge and to recover the amount surcharged from the trustee or other persons and for a suit to set aside such orders or alternatively for an appeal to the Government and that, therefore, numbersuit for rendition of accounts would lie dehors the provisions of the Act. We find it difficult to accept this argument. Chapter VII only provides for a strict supervision of the financial side of the administration of an institution. The scope of the auditors investigation is limited. It is only an effective substitute for the trustee himself furnishing an audited account. It is companycerned only with the current management of a trustee. It does number even exonerate a trustee of his liability to render accounts except to a limited extent mentioned in sub-s. 7 of s. 74 it only facilitates the rendition of accounts. Under sub-s. 7 of s. 74, an order of surcharge under that section against a trustee shall number bar a suit against him except in matters finally dealt with in such order. This shows by necessary implication that a suit can be filed for accounts against a trustee in other respects. In any view, it has numberhing to do with the management of a temple by a previous trustee. It is companytended that under sub-s. 5 of s. 74 the trustee or any other person aggrieved by such order may file a suit in the civil companyrt or prefer an appeal to the Government questioning the order of the Commissioner and, therefore, it is open to any member of the public to file a suit under the Act. Any person there only refers to a person mentioned in sub-s. 3 of s. 74, i.e., a person who is guilty of misappropriation or wilful waste of the funds of the institution etc. It obviously refers to a trustee or some other person in management of the institution who is guilty of misappropriation. We, therefore, hold that Chapter VII of the Act has numberbearing on the question of liability of an ex-trustee to render account to the present trustee of his management. Chapter VII does number provide for determining or deciding a dispute in respect of such rendition of accounts. If so, it follows that s. 93 of the Act is number a bar to the maintainability of such a suit. In the result, we set aside the decree of the High Court and restore that of the learned Subordinate Judge. The respondent will pay the companyts of the appellant throughout.

S.Khehar, J. The respondent was appointed as an Octroi Clerk by the Gram Panchayat, Rakhial, i.e., the appellant before this Court, on 31.3.1977, on temporary basis, inter alia, for a lump sum salary of Rs.200/- per month. In addition to the above, he was number entitled even to dearness allowance or any other allowance s . In terms of the order of appointment, the respondent actually assumed his duties with effect from 1.4.1977. The pleadings of the case reveal, that for a short period, the work of companylecting octroi, which had originally been vested in the Gram Panchayat, came to be executed through a companytractor. The respondent was accordingly required to serve under a companytractor, in companytinuation of his order of appointment dated 31.3.1977. The respondent originally declined to do so. But subsequently, assumed his duties on 10.6.1986 under the Gram Panchayat. Thereafter, the service of the respondent was dispensed with with effect from 30.6.1986. Even though, the challenge raised by the respondent has a chequered history, it is relevant to mention, that the respondent succeeded in Letters Patent Appeal No. 933 of 1995, when a Division Bench of the High Court on 29.7.2004 accepted, that the resolution passed by the Gram Panchayat dated 30.6.1986, for dispensing with the service of the respondent, was number in companysonance with law. The High Court accordingly set aside the above resolution. The respondent was, therefore, ordered to be reinstated, against the post of an Octroi Clerk. By the order passed by the High Court, the respondent was deemed to be treated as having companytinuously rendered service against the post of Octroi Clerk, with effect from the date his services were dispensed with. He was also held entitled to full back wages, besides other companysequential benefits, for the intervening period. The review petition filed by the appellant came to be dismissed by the High Court, vide an order dated 14.09.2004. The operation of the above order passed by the High Court, was stayed by this Court on 24.10.2005. The aforesaid interim order has companytinued till date. It does number appeal to logic, that a temporary employee can be allowed to companytinue in service, when the very purpose for which he is engaged does number survive. The pleadings in this case reveal, that the obligation cast on Gram Panchayats to companylect octroi ceased in the year 2001. As such, even if one was number to interfere with the companyclusion drawn by the High Court, in setting aside the resolution passed by the Gram Panchayat dated 30.06.1986, it is apparent, that the respondent companyld number have companytinued beyond the year 2001, and or be paid emoluments for the period after 2001. In the above view of the matter, we are of the view, that if the calculation of the actual amount payable to the respondent is to be done at the rate of wages paid to him, when he was engaged in service, the arrears of the respondent for the period from 1986 to 2001 companyld only have been determined at the rate of Rs.200/- per month. BY the above yardsticks, the respondent would be entitled to, only a sum of Rs.2,500/- per annum. If the amount had even been doubled by the time his services were dispensed with, he would be earning approximately Rs.5,000/- per annum, on 30.06.1986. Keeping in all that mind, we are of the view, that the ends of justice would be met, if a quantified lump sum amount is paid to the respondent as back wages. We are satisfied in quantifying the above amount at Rs.1,00,000/- Rupees one lakh only . The above amount shall be released to the respondent within three months, from the date a certified companyy of this order, is furnished to the Gram Panchayat. The appeal stands disposed of in the aforesaid terms. J. JAGDISH SINGH KHEHAR NEW DELHI J. JULY 23, 2015. ADARSH KUMAR GOEL ITEM NO.107 COURT NO.4 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No s . 4220/2006 RAKHIAL GRAM PANCHAYAT Appellant s VERSUS JAGATSINH ADESINH JHALA Respondent s Date 23/07/2015 This appeal was called on for hearing today.

N. VARIAVA, J. This Appeal is against the Judgment dated 18th February 1999 passed by the Karnataka High Court. Briefly stated the facts are as follows The Appellants are a Public Limited Company doing business in Xerox machines, parts and accessories, as part of its business. After the Xerox machine is sold to a customer, if the customer so desires, the Appellants enter into one of the two types of Agreements, namely, either a Full Service Maintenance Agreement FSMA or a Spares and Service Maintenance Agreement SSMA . In FSMA the Appellants take on the responsibility of fully maintaining the machine, servicing it and if necessary replacing parts. The Appellants also supply material, like toners and developers. They charge at the rate of 0.27 paise per companyy produced by the machine. Under the SSMA, the Appellants agree to maintain the machine including replacement of parts, if necessary, for a lump sum of Rs. 7,000/- per annum. However, the companyts of toners, developers etc are to be borne by the customer. It appears that in the Returns filed by the Appellants, for Sales Tax purposes, they declared total taxable turnovers at Rs. 4,23,58,510/- and Rs. 1,63,58,556/-. The Assessing Authority, on verification of the books of accounts, determined the total and taxable turnovers at Rs. 10,34,70,495/- and Rs. 4,70,23,693/-. The Assessing Authority held that amounts received for sale of parts, toners and developers, under the aforementioned two types of Agreements, were includible for the purposes of sales tax. The Appellants filed an Appeal before the Joint Commissioner of Commercial Taxes Appeals , Bangalore. In that Appeal, the matter was remanded back for purposes of companysidering certain reductions. An Appeal was filed before the Karnataka Appellate Tribunal which was dismissed. In the meantime, after remand the Assessing Authority again passed an Order holding that the spare parts and goods supplied under the Service Agreements amounted to sale. The Appellants then filed a Revision Petition which was dismissed by the impugned Judgment. Mr. Ganesh, learned senior companynsel for the Appellants, submitted that the essence of a sale of goods is that the parties must enter into a companytract for the transfer of property in movables for a price. He submitted that such a companytract may be a separate and distinct companytract or it may be an inseparable part of a larger companytract, such as a companytract for the companystruction of a house with materials to be supplied by the companytractor. He further submitted that prior to the 46th Amendment to the Constitution of India, it had been held by this Court in the Gannon Dunkerlys case 1959 SCR 379 that numbersales tax companyld be levied on the transfer of property in goods in the case of such an inseverable companytract. He further submitted that Article 366 29A b , inserted by the 46th Amendment, only enables an inseverable companytract to be split up, so as to enable sales tax to be levied on that part of it which companysists of a companytract to transfer property in movables for a price. He submitted that Article 366 29A b does number have the effect or companysequence of companyverting what in law is number a sale of goods into a taxable sale of goods. He submitted that Article 366 29A b does number make any departure from the basic companycept of the parties having to enter into a companytract for the transfer of property in movables for a price. He submitted that the statutory definitions of Sale Sec. 2 k , Taxable Turnover Sec. 2 u-1 and Turnover Sec. 2 k , read with the charging Section 5B, in the Karnataka Sales Tax Act, also indicate that there must be an agreement for transfer of property in certain goods for an identifiable price. He submitted that in a maintenance companytract, the only obligation cast on the service provider is to keep the equipment in question in operating companydition and to repair it if necessary and to replace a part only if found necessary. He submitted that a maintenance companytract is thus number a companytract which is entered into for a transfer of the property in any specific part or companyponent for any identifiable price. He submitted that a maintenance companytract, when entered into, is number an agreement for the sale of goods. He submitted that a maintenance companytract does number get transformed into an agreement for the sale of goods merely by reason of the subsequent development of some parts or companyponents being replaced by the service provider, as an integral part of the companytractual obligation of keeping the equipment in good operating companydition. He submitted that in a maintenance companytract, the charge is paid for the service and number as a price for the replacement of any particular part or companyponent. He submitted that when the companytract is entered into, it is number even known whether any part or companyponent will require replacement or number. He submitted that there is thus numbernexus or companyrelation between the price paid for the companytract and the value of any part or companyponent which subsequently gets replaced, if at all, during the companytract period. He further submitted that the basic and essential requisites of a companytract of sale of goods are thus entirely missing in a maintenance companytract, and the same are number created or brought into existence by the 46th Amendment. He submitted that the predominant and basic object of a maintenance companytract is the rendering of a service and number the sale of any goods. In support of his submissions Mr. Ganesh relied on the case of State of U. P. vs. Union of India 2003 3 SCC 239 where it is held that if a companytract is basically a service companytract, the incidental supply of goods under the companytract as an essential part of the service does number attract the levy of sale of tax even after the insertion of Article 366 29A b . It has been held that this provision does number obliterate the distinction between a service and a sale of goods. Even though at first blush the submissions of Mr. Ganesh may appear attractive, on a proper companysideration, we think that Mr. Iyer was right when he submitted that the Agreements are number just service companytracts but also maintenance companytracts. Mr. Iyer is right that the machines belong to the customer after they are sold to them. If after the sale some part was to be replaced or some companyponent supplied there would be sale as understood in law. Under the Agreements, apart from the service element, for which numbertax is sought to be levied, there is the element of supplying parts and companyponents like toners developers etc. Mr. Iyer is right in submitting that merely because price is number being separately charged for this, does number detract from the position that the supply is for a price. Such supply has all the elements of sale as understood in law. There is transfer of title in movables for a price. The mere fact that it is number known in the beginning whether or number a part will have to be replaced is irrelevant. If there were numbersuch Agreements, it would number be known whether or number a part would be required to be replaced. It companyld number be denied that, even in the absence of any such Agreements, if a part was required to be replaced and was replaced there would be a sale of that part. The same position remains even under the Agreements. As and when a part is required to be and is replaced a sale takes place at that instance. To leave numberroom for doubt it must be mentioned that the tax is on sale. So if there is numberreplacement of a part then there is numbersale of a part. So far as toners and developers are companycerned it is known from the beginning that they will require regular replenishment. Under SSMA the customer buys them. Under FSMA they are replenished by the Appellants. Faced with this situation Mr. Ganesh next submitted that in any event, from the point of view of the Appellants, the part or companyponent replaced can be companysidered to be material which is companysumed in the execution of the maintenance companytract and, therefore, number exigible to tax by virtue of Explanation I to Rule 6 4 of the Karnataka Sales tax Rules. The said Explanation reads as under for the purposes of clauses m and n of sub-rule 4 , labour and other like charges include charges for obtaining on hire or otherwise machinery and tools used for execution of Works Contract, charges for planning, designing and architects fees, companyt of companysumables used in the execution of the works companytract, companyt of establishment to the extent relatable to supply of labour and services and other similar expenses relatable to supply of labour and services. On the other hand Mr. Iyer submitted, and in our view rightly, that the term companysumables used in this explanation has to be read in the companytext of the words preceding and following. He submitted that read as such it is clear that the term companysumables refers to such items as are used up in execution of the works companytract, so that numberhing tangible is left, in which property in the goods can pass to the buyer. A part placed in the machine does number get companysumed. It remains in the machine. May be over a companyrse of time there may be wear and tear and or deterioration but it does number get companysumed. Mr. Ganesh however strenuously submitted that in the toner or developer, supplied in the FSMA there is numbertransfer of property or sale. He submitted that the toner and developer are companysumed in the process of the execution of the Agreement itself. He submitted that numbersales tax is, therefore, leviable. In support of this submission Mr. Ganesh relied upon the case of Pest Control India Ltd. vs. Union of India Ors. reported in 1989 75 STC 188. In this case there was a companytract for eradication of pests, rodents, termites etc. In carrying out this work chemicals were sprayed through machines. The question was whether there was a sale of chemicals in execution of the works companytract. It was held once the chemicals were sprayed they got companysumed and numberhing tangible remained in which property companyld be transferred. Mr. Ganesh also relied on the case of The Deputy Commissioner of Sales Tax Law , Board of Revenue Taxes , Ernakulam vs. M. K. Velu reported in 1993 89 STC 40. In this case there was a companytract for display of fireworks. The question was whether there was a sale of fireworks. It was held that the fireworks got companysumed in the process of execution of the work. It was held that thereafter numbertangible property remained. It was held that there was numbertransfer of goods. Mr. Ganesh next relied on the case of Dynamic Industrial Cleaning Services P Ltd. vs. State of Kerala Anr. reported in 1995 97 STC 564. In this case there was a companytract to clean boilers in factories. Chemicals were used to clean the boilers. It was held that the chemicals were used up and thus there was numbertransfer of property and thus numbersale. Relying on these cases Mr. Ganesh submitted that toners and developers get companysumed in the process of printing and thus there is tangible property left in which there can be transfer of property. On the other hand, Mr. Iyer submitted that there is transfer of property in tangible goods i.e. toners and developers, before they get companysumed. He submitted that this case is akin to sale of petrol or sale of ink. He submitted that the authorities relied upon by Mr. Ganesh are all cases where the goods get companysumed in execution of the work and where there is numbertransfer of property in the goods before the goods are companysumed. He submitted that the principles laid down in those cases have numberrelevance and cannot apply to the facts of this case. We have companysidered the rival submissions. As set out hereinabove the word companysumable in Explanation I to Section 6 4 refers to such items which get companysumed before the property in the goods can pass. We are informed that toners and developers are liquids which are put in the Xerox machine. They perform, to put it simply, the same function as ink in printers. Under the Sale of Goods Act if specified goods in a deliverable state are delivered the property in the goods passes. It companyld number be disputed that the toner and developer will be delivered in bottles companytainers. In the FSMA supplies are left with the customer. Thus clause 9 of the Section dealing with the customers obligation provides as follows THE CUSTOMER 9. shall be accountable to MX for xerographic supplies stock left in trust with the customer who shall ensure that such stock is used only in the Equipment under this Agreement. MX reserves the right to charge the Customer for any stocks which are unaccounted for, to MXs satisfaction, at the then prevailing MX prices. Thus for the extra stock there is a provision which provides that it is left in trust. However once the toner and developer are put into the machine they are numberlonger in trust. This is because the property in the toner and developer passed the moment they are put into the Xerox machine. Now they belonged to the customer. At this stage they are tangible movables in which property can pass. This is clear from the provision that Appellants will charge for unaccounted stock at prevailing prices. That they are goods in which property can pass is also clear from the fact that in the SSMA the customer has to buy the toner and developer. If as number claimed they are companysumables in which property cannot be transferred how are the Appellants charging for toners and developers. In our view, Mr. Iyer is right. The sale i.e. transfer of property takes place before the goods are companysumed. The transfer takes place in respect of tangible goods. Just like petrol is companysumed after sale or ink is companysumed after sale in this case also the toners and developers get companysumed after sale. The property passes the moment they are put in the machine. At that stage they are number companysumed but are tangible goods in which property can pass. In view of the above it is held that there is sale of parts, both in FSMA and SSMA. There is also sale of toners and developers even in the case of FSMA. Before us numbercontention is raised that sales tax is number being levied on a companyrect basis. On the companytrary Mr. Iyer pointed out to us the Order dt. 30th August 1994 of the Joint Commissioner of Commercial Taxes wherein, whilst remitting back for recalculation of tax, the principles on which it is to be done are laid down.

The High Court see 1995 216 ITR 658 declined to call for a reference at the behest of the Revenue of the following question page 659 Whether, on the facts and in the circumstances of the case, including, in particular, the fact that part of the official residence of the ex-Ruler of Ratlam, who is the assessee respondent, stood let out, the Tribunal is justified in law in holding that the assessee is entitled to exemption of the value of the said property in its entirety under Section 5 l iii of the Wealth-tax Act, 1957 ? It did so for the reason that, in its view, numberquestion of law was raised. It appears, in fact, that the question was number referred because the answer was indicated by an earlier judgment of the High Court. A question of law does clearly arise.

CIVIL APPELLATE JURISDICTION CIVIL Appeal No. 720 of 1976. Appeal under section 38 of the Advocates Act, 1961 from the order dated the 23rd April, 1976 of the Disciplinary Committee of the Bar Council of India in D.C. Appeal No, 11 of 1975. J. Francis for the Appellant. N. Ganpule and Mrs. V.D. Khanna for the Respondent No. 1. V. Tambekar for the Respondent. The Judgment of the Court was delivered by SEN, J. The disciplinary proceedings out of which this appeal under s. 38 of the Advocates Act, 1961 Act for short has arisen were initiated on a companyplaint made by a group of 12 advocates practising in the two companyrts of Sub- Divisional Magistrates in the Collectorate of Poona alleging various acts of professional misconduct against the appellant P.D. Khandekar and one A.N. Agavane. The proceedings stood transferred to the Bar Council of India under s. 36B of the Act. The Disciplinary Committee of the Bar Council of India by its order dated April 23, 1976 held both the appellant and A.N. Agavane guilty of professional misconduct and directed that the appellant be suspended for a period of four months from June 1, 1976 and Agavane for a period of two months therefrom. This Court by its order dated September 24, 1976 admitted the appeal and stayed the operation of the suspension of order. First as to the facts. The Complainants alleged various acts of professional misconduct against the appellant and Agavane. According to them, the appellant and agavane sometimes impersonated as other advocates for whom the briefs were meant and at times they directly approached the clients and adopted questionable methods charging exorbitant fees. The State Bar Council referred to four specific charges relating to them, two of impersonation as A.D. Ghospurkar and N.L. Thatte and depriving these gentlemen of the briefs meant for them. The State Bar Council held that these two charges have number been substantiated and the Disciplinary Committee of the Bar Council of India has number gone into them. Both the Disciplinary Committee of the Bar Council of India and the State Bar Council however found the appellant and Agavane to be guilty of giving improper legal advice and held the charge of professional misconduct proved, but having regard to the fact that they were junior members of the bar, the Disciplinary Committee has taken a lenient view and passed the sentence indicated above. In dealing with the question of punishment to be imposed on them, the Disciplinary Committee observes We take into companysideration the age of the advocates the families they have to maintain, the environments in which they practise and the standard which is maintained in such on environment is number very high as the Bar Association Rules certify toutism and provide for toutism which companyld be unthinkable anywhere else. The gravamen of the charge against the appellant and Agavane relates to the giving of improper legal advice on two specific companynts, namely 1 On January 7, 1974 the appellant and Agavane are alleged to have got the remarriage of a companyple S.B. Potdar and Smt. Leelawati Dhavale performed although their divorce was number legal. The accusation is that the appellant and Agavane induced Potdar and Smt. Dhavale to part with Rs. 100 towards their professional fee on the faith of an assurance that the affidavit sworn by them before the Sub-Divisional Magistrate, Poona to the effect that they had divorced their respective spouses and had got married at Poona on January 7, 1974 as per Hindu rites would be sufficient proof of their marriage. 2 On February 22, 1374 the appellant and Agavane drew up an affidavit companytaining a recital that Smt. Sonubai Girju Valekar of Loni Bhapkar, Tehsil Baramati, District Poona had made a gift of her lands to her grand-daughter Smt. Mangala Ramesh Ghorpade. The charge is that she had met all the lawyers except these two and all of them advised her to give the market value of the land intended to be gifted and pay ad valorem stamp duty thereon indicating the amount of stamp duty and the registration charges payable, but these two lawyers told her that she should number unnecessarily spend a large A amount over the stamp duty and registration charges and they would instead have the work done within an amount of Rs. 50 which was finally settled at Rs.45. The charges levelled against the appellant and Agavane are serious enough and if true in a case like the present, the punishment has to be deterrent, but the question still remains whether the charges have been proved. The appellant virtually pleads that the case against him is a frame-up. As to the incident of January 7, 1974, the appellant pleads that the affidavit sworn by Potdar and Smt. Dhavale was prepared on their instructions as they represented that they had divorced their respective spouses and expressed that they wanted to marry each other on that very day and leave Poona. His case is that they represented that the priest was insisting upon an affidavit as regards their divorce as a precaution before performing their marriage and therefore they wanted to swear an affidavit to that effect. Regarding the incident of February 22, 1974, there was a companyplete denial that the appellant drew up an affidavit companytaining a recital that Smt. Sonubai had made a gift of her lands to her grand-daughter Smt. Mangala which he handed over to her on receipt of Rs. 45 as his professional fee. The Disciplinary Committee has recorded a finding that it did number companysider that the companyduct of the appellant and Agavane amounted to cheating their clients, and that both were guilty of giving improper legal advice, but these were number cases of a bona fide mistake of a lawyer. With respect to the first charge, it held that they had misled their clients Potdar and Smt. Dhavale that the affidavit sworn by them before the Sub-Divisional Magistrate and the certificate of marriage issued by him would make them legally married according to Hindu rites although numbermarriage was ever performed. As regards the second charge, the Disciplinary Committee held them to be guilty of number giving proper legal advice to their client Smt. Sonubai. It observed that if the gift deed companyld number be executed because Smt. Sonubai had numbersufficient funds to bear the companyt of stamp duty and registration charges payable, the affidavit was numbersubstitute for that as it would hardly be evidence of a gift. It further observed that it was unfortunate that the appellant an Agavane did number advise Smt. Sonubai also to execute a will companytemporaneously in favour of her granddaughter Smt. Mangala because if the affidavit were supplemented by an unregistered will, numberhing would be wrong. It proceeded upon the view that the affidavit companyld be taken as evidence that Smt. Sonubai had handed over possession of her property to her grand-daughter Smt. Mangala and if the latter possessed it for 12 years she would acquire title by prescription and although the will may number be a deed of gift, it would be the nearest approach to it. In an appeal under s. 38 of the Act this Court would number, as a general rule, interfere with the companycurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on numberevidence or it proceeds on mere companyjectures and surmises. Finding in such disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a companyviction in a criminal prosecution. There should be companyvincing preponderance of evidence. It is argued that the finding as to professional misconduct on the part of the appellant and Agavane reached by the Disciplinary Committee was number based on any legal evidence but proceeds on mere companyjectures and surmises. The case against the appellant and Agavane rests upon professional misconduct and number any other companyduct. The question is whether there was any evidence upon which the Disciplinary Committee companyld reasonably find that they have been guilty of professional misconduct, within the meaning of sub-s. of s. 35 of the Act. The test of what companystitutes grossly improper companyduct in the discharge of professional duties has been laid down in many cases. In the case of in re Solicitor Ex parte the law Society, Darling, J. adopted the definition of infamous companyduct in a professional respect on the part of a medical man in Allinson v. General Council of Medical Education Registration, applied to professional misconduct on the part of a Solicitor, and observed If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and companypetency, then it is open to the General medical Council to say that he has been guilty of infamous companyduct in a professional respect. The Privy Council approved of the definition in George Frier Grahame v. Attorney General, Fiji and this Court in the matter of P. An Advocate has followed the same. The narrow question that remains for companysideration number is whether the finding of the Disciplinary Committee as to professional misconduct on the part of the appellant can be legally sustained. The test to be applied in all such cases is whether the proved misconduct on the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession to which he has been admitted, and unfit to be entrusted with the responsible duties that an advocate is called upon to perform. The Judicial Committee of the Privy Council in, a Pleader v. The Judges of the High Court of Madras laid down that charges of professional misconduct must be clearly proved and should number be inferred from mere ground for suspicion, however reasonable, or what may be error of judgment or indiscretion. There is a world of difference between the giving of improper legal advice and tho giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does number amount to professional misconduct. In re A Vakil, Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke and said that Negligence by itself is number professional misconduct into that offence there must enter the element of moral delinquency. Of that there is numbersuggestion here, and we are therefore able to say that there is numbercase to investigate, and that numberreflection adverse to his professional honour rests upon Mr. M., The decision was followed by the Calcutta High Court in re An Advocate, and by the Allahabad High Court in the matter of An Advocate of Agra and by this companyrt in the matter of P. An Advocate. For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. When an advocate is entrusted with a brief, he is expected to follow numberms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsels paramount duty is to the client. When a person companysults a lawyer for his advice, he relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client for the protection of his interests. An advocate stands in a loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need. The members of the legal profession should stand free from suspicion. In the matter of P. An Advocate, 1 Page, C.J. in an oftquoted passage after extolling the ideals that an advocate ought to set before him, and the ancient and numberle companyception of his office, observed From this companyception of the office of an advocate it follows that the public are entitled to receive disinterested, sincere and honest treatment and advice from the advocates to whom they repair for companynsel and succour in their time of need and it is for this reason that Lord Mansfield laid down, and the Court has always insisted, that members of the legal profession should stand free from all suspicion. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the companyfidence of the public in the fidelity, honesty and integrity of the profession. For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. It is against professional etiquettee for a lawyer to give that an advocate should accept employment with such motive, or so long as his client has such understanding of his purpose. It is professionally improper for a member of the bar to prepare false documents or to draw pleadings knowingly that the allegations made are untrue to his knowledge. Thus the giving of improper legal advice may amount to professional misconduct. That however may number be so by the giving of wrong legal advice. It appears to us that there was abundant evidence upon which the Disciplinary Committee companyld find the appellant and Agavane guilty of giving wrong legal advice, but there is companysiderable doubt whether upon such evidence the charge of professional misconduct can be supported. In the instant case, it is number at all certain that it can be said with strict accuracy that the appellant was guilty of moral turpitude or that there was any moral delinquency on his part. As to the first charge, the Disciplinary Committee has found the appellant and Agavane to be guilty of drawing up a false affidavit to the effect that Potdar and Smt. Dhavale had been married at Poona on January 7, 1974 according to Hindu rites although numbersuch marriage was even performed. Upon the evidence on record, it is difficult to believe that Potdar and Smt. Dhavale companyld be prevailed upon to swear an affidavit of the kind unless it was prepared on their instructions or that they were induced to part with Rs. 100 towards the professional fee of the appellant and Agavane on the faith of a false assurance that the affidavit would be sufficient evidence in proof of their marriage. Potdar was an Overseer and had put in an advertisement inviting suitable proposals for his marriage. Smt. Dhavale held a Diploma in Education and had been working as a Teacher in a Primary School under the Zila Parishad, Satara. She had also advertised in the papers seeking suitable proposals for her marriage. Both of them companyresponded with each other and decided to get married and for this purpose they came to Poona on January 7, 1974 for legal advice with respect to their marriage. Incidentally, Smt. Dhavale who is a tribal woman claims to have got a divorce by custom prevalent among her tribe, whereas Potdar who was married earlier according to Hindu rites presumably got his divorce by initiating proceedings under the Hindu Marriage Act, 1955. They both approached the appellant and Agavane and wanted their legal advice and stated that they would like to get married and leave Poona on the same day or, in other words, they were in a hurry to get married. Ex. C-13 which inter alia states We have today married at Poona as per Hindu rites was drawn up by the appellant and Agavane and signed by both the parties before the Sub-Divisional Magistrate in English after reading the companytents. The recital in the affidavit that they got married at Poona on January 7, 1974 according to Hindu rites must have been made on their instructions. They were both anxious to leave Poona and brought a document styled as a marriage certificate obtained under s. 5 of the Bombay Registration of Marriages Act, 1953 under which even Hindu marriages have to be registered. The document was signed by both Potdar and Smt. Dhavale and also attested by one Gangadhar Laxman Jamkhedkar who claimed to have acted as the priest and said to have solemnised the marriage. There is numberhing unprofessional for an advocate to draft an affidavit on the instructions of his client. The testimony of Smt. Dhavale shows that she accompanied by Potdar came to the Court of the Sub- Divisional Magistrate on January 7, 1974 at 2.30 p.m. The purpose of their visit is number very clear. At first, her version was that she told the appellant and Agavane that they wanted to have their marriage performed. She then added that they told these lawyers that they wanted to get their marriage registered. They both appeared before the Sub- Divisional Magistrate and verified the affidavit Ex. C-13 to be true to their personal knowledge. When companyfronted with the portion marked as AA We have today married at Poona as per Hindu rites, she asserted that she and Potdar had number been married according to Hindu rites at Poona on January 7, 1974 or at any time thereafter. She however states that she was living with Potdar as she was under the belief that she had been married to him. The fact remains that she has also changed her surname to Smt. Potdar. It is rather improbable that a Hindu lady like Smt. Potdar would start living with a stranger as husband and wife and also adopt a new surname unless there was a marriage. Both of them were educated persons and they had the power to understand what they were doing and therefore they being the executants of the affidavit must be held bound by the recitals companytained therein. The oral evidence adduced by the companyplainant was number sufficient to rebut the presumption arising from the recitals companypled with the other circumstances appearing. The evidence with regard to the second charge, namely, that the appellant and Agavane were guilty of number giving proper legal advice to Smt. Sonubai is even less companyvincing. It is quite possible that this old illiterate lady aged about 90 years came to the Sub-Divisional Magistrates Court with the purpose of executing a gift deed in favour of her grand-daughter Smt. Mangala. There is however numberreal or substantial evidence to companynect the appellant with the affidavit. The testimony of smt. Sonubai is wholly inconclusive as to the identity of the person who prepared the affidavit. She states in her examination in-chief that she had entrusted the work of execution of the gift deed to two advocates and that they represented to her that the affidavit was a gift deed, but added that she would number be also to identify them because she had a weak eye-sight and was also hard of hearing for the last 2/3 years and was number able to see or hear properly. She further unequivocally admitted that she never approached the appellant at any time for any work. It is difficult to support the charge of professional misconduct against the appellant on such evidence. It must accordingly be held that the Disciplinary Committee of the Bar Council of India erred in holding the appellant and Agavane guilty of professional misconduct because the evidence adduced by the companyplainants falls short of the required proof, but the circumstances appearing do give rise to companysiderable suspicion about the manner in which they have been companyducting their affairs, which defects from the numberms of professional ethics. May be, the companyplainants were number actuated from a purely altruistic motive in lodging the companyplaint but that does number fully exonerate the appellant and Agavane of the way they have been carrying on their activities. It appears from the order of the Disciplinary Committee that some 12 to 14 advocates practising in the two Courts of the Sub Divisional Magistrates in the Collectorate of Poona had formed an association called the Poona Collectorate Bar Association, the purpose of which was that the entire work in the Collectorate should be pooled together. To attain that object, the companyplainants employed servants for companylecting work from prospective clients on a percentage of fees to be given to them and the work to be distributed among the members. It further appears that the appellant and Agvane were two junior lawyers who preferred number to become members of the association, but started their practice sitting under a tree in the Court precincts. Presumably, the gentlemen of the bar who were members of the association found that their activities a were prejudicial to their interests because they directly got in touch with the clients and did the same kind of work with impunity by adopting similar questionable methods. We can only express the hope that these lawyers will, in future, see to it that such improprieties as those referred to do number recur. The Disciplinary Committee speaks of the environments in which these lawyers work. The companyplainants have examined four advocates to substantiate the charge against the appellant and Agavane viz. A.D. Ghospurkar, N.L. Thatte, T.S. Pariyani and A. Mandake. The evidence of these lawyers shows that their work mainly companysists in attestation of witnesses. Their appearance in cases were few and far between. They either sit in the verandah near the stamp-vendor in front of the Sub-Registrars office or in the Court companypound with the petition-writers or typists. To illustrate this, A.D. Ghospurkar, who is an advocate of 8 years standing, frankly admits that his main work is to indentify parties who companye to make affidavits before the Sub-Divisional Magistrates and that his work of companyducting cases is negligible. During his 8 years at the bar, he has done near about 10 to 12 chapter cases and about 8 cases in other companyrts. The case presents a dismal picture of the legal profession. We mean numberdisrespect to the members of the Poona Collectorate Bar. The companyditions prevalent are more or less the same everywhere and it is a matter of deep companycern that numberhing has been done to organize the bar. We regret to say that the companyplainants themselves are number free from blemish. The Disciplinary Committee of the Bar Council of India observes that the method adopted by the companyplainants to procure work by employing agents itself amounts to professional misconduct. It deprecates the practice that is prevalent at the Poona Collectorate Bar and observes with regard to the companyplainants This means that the purpose of the Association was to appoint certain touts who would get work for their members and then the work will be distributed among the members. Touting or appointing touts is number companysistent with the rules framed under the Advocates Act and such practice would be companysidered professional misconduct but that is exactly what the Bar Association referred to above intend to do. We are informed that disciplinary proceedings have since been initiated against the companyplainants and therefore we refrain from expressing any opinion on the impropriety of their companyduct. The Preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times companyport himself in a manner befitting his status as an officer of the Court privileged member of the companymunity and a gentleman. Rule 36 of these rules provides that an advocate shall number solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal companymunications etc. It is a well recognized rule of etiquette in the legal profession that numberattempt should be made to advertise oneself or solicit work directly or indirectly. In his Brief to Counsel, 5th edn., 1962, p. 94, the celebrated author Henry Cecil administered a word of caution Dont go touting for work in any circumstances. There are all sorts of ways of doing this. Dont adopt any of them. If you are going to get on, you will get on without doing that kind of thing, and if you are number going to get on, the little extra work you get will number either make you successful or companynter-act the bad impression you will make on many people inside and outside the law. We are companystrained to say that the evil of touting has been in existence since ancient times and still is a growing menance, and the bar is open to the accusation of having done numberhing tangible to eradicate this unmitigated evil. The persons most affected by this system are the junior lawyers as a class. Some lawyers may well expound unblushingly the doctrine of getting on, getting honour and at last getting honest. If it is generally known that a person however honest has got on and got honour through the patronage of touts, the bar should decline to show such a man any honour or companysideration whatsoever. We impress upon the Bar Council of India and the State Bar Councils that if they still take strong action to eradicate this evil, it would lead to a high standard of propriety and professional rectitude which would make it impossible for a tout to turn a penny within the precincts of the law companyrts. Finally, it is the solemn duty of the Bar Council of India and the State Bar Councils to frame proper schemes for the training of the junior members of the bar, for entrusting of work to them, and for their proper guidance so that eventually we have new generation of efficiently trained lawyers. It is regrettable that even after more than two decades that the Advocates Act was brought on the Statute Book, neither the Bar Council of India number the State Bar Councils have taken any positive steps towards ameliorating the companyditions of the members of the bar, particularly of the junior members. Sub-ss. 3 of ss. 6 and 7 of the Act provide that the State Bar Councils and the Bar Council of India may companystitute one or more funds in the prescribed manner for the purpose of a giving financial assistance to organised labour welfare schemes for the indigent, disabled or other advocates, and b giving legal aid or advice in accordance with the rules made that behalf. Sub-ss. 3 thereof provide that they may receive any grants, donations, gifts or benefactions for the above purposes, which shall be credited to the appropriate fund or funds under that subsection. The Bar Council of India and the State Bar Councils hold very large funds, may be to the tune of rupees one crore and above, but numberpositive steps have been taken in organizing the legal profession and safeguarding the interests of lawyers in general, particularly the junior members of the bar. It is with a deep sense of anguish that one finds the legal profession in a state of total disarray and for the majority it is a companytinuous struggle for existence. The hardest hit are the junior members. We expect that the matter will receive the attention that it deserves. In the result, the appeal partly succeeds and is allowed. The order of the Disciplinary Committee of the Bar Council of India holding the appellant and A.N. Agavane guilty of professional misconduct is set aside. The proceedings drawn against them under sub-s. 1 of s. 35 of the Advocates Act, 1961 are dropped. We hope and trust that they would number by their companyduct or behaviour prove themselves to be unworthy to remain as members of the great profession to which they belong.

THE 1ST DAY OF NOVEMBER, 1996 Present Honble Mr.Justice K.Ramaswamy Honble Mr.Justice G.B.Pattanaik Prashant Kumar and S.K.Agnihotri, Advs. for the appellants Dr.I.B.Gaur, Adv. for the Respondent O R D E R The following Order of the companyrt was delivered Delay companydoned. Leave granted. This appeal by special leave arise from the order in the companytempt proceedings dated August 1, 1995 made by the Madhya Pradesh Administrative Tribunal at Indore in Miscellaneous Application No.99 of 1994. The admitted position is that the respondent was appointed as a Sub-Inspector in the Police Department on January 1, 1960 and his date of birth in the High School Certificate was August 5, 1934. In 1992, he filed an application in the Tribunal for companyrection of his date of birth companytending that his date of birth was July 16, 1938. The Tribunal by order dated February 25, 1994 disposed of the application with a direction to companysider the representation of the respondent. The representation was companysidered and rejected by proceeding dated May 23, 1994. Consequently, the respondent filed a companytempt application companytending that the appellants have wilfully and deliberately disobeyed the order of the Tribunal and sought for initiation of the proceedings against the appellants under Section 12 of the Contempt of Court Act. In the impugned order, the Tribunal has held that the respondent has number deliberately disobeyed the orders of the companyrt as direction was to companysider the case afresh on the finding that the Director General of Police had number applied his mind to the issue and therefore the impugned order came to be issued. The question is whether the Tribunal was right in its giving directions? It is seen that the Assistant Inspector General of Police who is the Administrative Officer assists the Administrator, namely, the Director General of Police. He had put up the numbere on it and after companysideration of it the Director General of Police had made a numbere inform the respondent.

civil appellate jurisdiction civil appeal number 7 of 1964. appeal from the judgment and decree dated january 7 1955 -of the madras high companyrt in appeal suit number 371 of 1959. ganapathy iyer and r. thiagarajan for appellants. s. k. sastri and m. s. narasimhan for respondent number 2 the judgment of the companyrt was delivered by ramaswami. j. in the suit which is the subject-matter of this appeal the plaintiffs alleged that plaint a schedule properties belonged to the second defendant and his son the third defendant. the second defendant sold the village for rs. 28000/- to one swaminatha sarma by a sale deed ex. a dated december 12 1912 which he executed for himself and as guardian of the third defendant who was then a minumber. the second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minumber sons half share should later on be set aside. accordingly the second defendant executed the indemnity bond-ex. b in favour of swaminatha sarma. the sons of swaminatha sarma sold plaint a schedule village to the father of the plaintiffs for a sum of rs. 53000/-. on the same date they assigned the indemnity bond-ex. b to the father of the plaintiffs under an assignment deed-ex. d. the third defendant after attaining majority filed o.s. number 640 of 1923 in the chief companyrt of pudukottai for setting aside the sale deed-ex. a in respect of his share and for partition of joint family properties. the plaintiffs were impleaded as defendants 108 and 109 in that suit. the suit was decreed in favour of the third defendant and the sale of his share was set aside on companydition of his paying a sum of rs. 7000/- to defendants 108 and 109 and a preliminary decree for partition was also granted. in further proceedings the village was divided by metes and bounds and a final decree- ex. f was passed on october 6 1936. meanwhile a creditor of the third defendant obtained a money decree and in execution thereof attached and brought to sale the third defendants half-share in the a schedule village. in the auction-sale subbaiah chettiar the plaintiff s brother-in-law purchased the property for a sum of rs. 736/- subject to the liability for payment of rs. 7000/- under the decree in o.s. number 640 of 1923. thereafter the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the a schedule village and are entitled to recover the same from the second defendant personally and out of the b schedule properties. the plaintiffs have claimed damages to the extent of half of the companysideration for the sale deed-ex. c. minus rs. 7000/-withdrawn by them. the plaintiffs claimed a further sum of rs. 500/as court expenses making a total of rs. 20000. the suit was contested on the ground that the companyrt sale in favour of subbaiah chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half-share of the a schedule village and companysequently the plaintiffs did number sustain any loss. the trial companyrt held that subbaiah chettiar-p.w. i was benamidar of the plaintiffs who companytinued to remain in possession of the whole village. the trial companyrt was however of the opinion that though the plaintiffs had in fact purchased the third defendants halfshare in the companyrt sale they were number bound to do so and they companyld claim damages on the assumption that third parties had purchased the same. the trial companyrt accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on b schedule properties. the second defendant took the matter in appeal to the madras high companyrt which found that the only loss actually sustained by the plaintiffs was the sum of rs. 736/- paid for the companyrt sale and the sum of rs. 500/- spent for the defence of o.s. number 640 of 1923. the high companyrt accordingly modified the decree of the trial court and limited the quantum of damages to a sum of rs. 1236/- and interest at 6 per cent p.a. from the date of the suit. the question presented for determination in this appeal is- what is the quantum of damages to which the plaintiffs are entitled for a breach of warranty of title under the indemnity bond-ex. b dated december 19 1912. it was companytended by mr. ganapathy iyer on behalf of the appellants that in o.s. number 640 of 1923 defendant number 3 obtained a partition decree and a declaration that defendant number 2 was number entitled to allenate his share in the a schedule properties. it was submitted that on account of this decree the appellants lost title to half-share of a schedule properties and accordingly the appellants were entitled to get back half the amount of companysideration under the indemnity bond-ex. b. the argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half-share of the third defendant in companyrt auction was number a relevant factor so far as the claim for damages was companycerned. it was suggested that the purchase in companyrt auction was an independent transaction and the defendants companyld number take the benefit of that transaction. we are unable to accept the companytention of the appellants as companyrect. in the present case it should be observed in the first place that the indemnity bond-ex. b states that defendant number 2 shall be liable to pay the amount of loss in case the sale of the share of the said minumber son chidambaram-is set aside and you are made to sustain any loss. in the second place it is important to numberice that the sale deed-ex. a executed by the second defendant in favour of swaminatha sarma was only voidable with regard to the share of the third defendant and the family properties. the sale of the half-share of defendant number 3 was number void ab initio but it was only voidable if defendant number 3 chose to avoid it and proved in court that the alienation was number for legal necessity. in a case of this description the indemnity bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. a breach of the convenant can only occur on the disturbance of the vendees possession and so long as the vendee remains in possession he suffers numberloss and numbersuit can be brought for damages either on the basis of the indemnity bond or for the breach of a companyvenant of the warranty of title. the view that we have expressed is borne out by the decision of the madras high companyrt in subbaroya reddiar v. rajagopala reddiar 1 in which a who had a title to certain immovable property voidable at the option of c sold it to b and put b in possession thereof. c then brought a suit against a and b got a decree and obtained possession thereof in execution. in this state of facts it was held by seshagiri ayyar j. that bs cause of action for the return of the purchase money arose number on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the limitation act. at page 889 of the report seshagiri ayyar j. states the cases can roughly speaking be classified under three heads a where from the inception the vendor had numbertitle to companyvey and the vendee has number been put in possession of the property b where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale and c where though the title is knumbern to be imperfect the companytract is in part carrried out by giving possession of the properties. in the first class of cases the starting point of limitation will be the date of the sale. that is mr. justice bakewells view in ramanatha iyer v. ozhapoor pathiriseri raman namburdripad 1913 14 l.t. 524 and i do number think mr. justice miller dissents from it. however the present case is quite. different. in the second class of cases the cause of action can arise only when it is found that there is numbergood title. the party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to and so long as his possession is number disturbed he is number damnified. the cause of action will therefore arise when his right to continue in possession is disturbed. the decisions of the judicial companymittee of the privy companyncil in hanuman kamat v. hanuman mandur i 892 i.l.r. 19 cal. 123 p.c. and in bassu kuar v. dhum singh i 889 i.l.r. ii all. 47 p.c. are authorities for this position. a similar view has been expressed by the allahabad high court in muhammad siddiq v. muhammad nuh 2 and the bombay high companyrt in gulabchand daulatram v. survajirao ganpatrao. 3 in the present case it has been found by the high companyrt that p.w. 1 the auction-purchaser was the brother-in-law of the plaintiffs i.l.r. 38 mad. 887. i.l.r. 52 all. 604. a.i.r. 1950 bom. 401. and that he was managing the estate of the plaintiffs and defending o.s. 640 of 1923 on their behalf it has also been found that p.w. i did number take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at numbertime were the plaintiffs dispossessed of the property. the only loss sustained by the plaintiffs was a sum of rs. 736/- paid at the companyrt sale and a sum of rs. 5001- spent for the defence of o.s.

GOPALA GOWDA J. This appeal is directed against the impugned judgment and order dated 08.04.2005 of the High Court of Uttar Pradesh at Allahabad wherein the High Court allowed the appeal filed by the respondents and set aside the order passed by the Additional District Judge and upheld the findings of the trial companyrt. The appellant has appealed against the impugned judgment urging various legal and factual companytentions, the main companytention being that the High Court has allowed the appeal without framing substantial question questions of law although it is mandatory as per Section 100 of the Code of Civil Procedure, 1908 hereinafter referred to as the CPC . The relevant facts of the case in brief are stated hereunder The appellant, Amar Nath is the plaintiff whose father, Vaij Nath is the brother of Ram Nath and Ram Dev. The respondent number1 - the defendant is the only daughter of Ram Nath. Ram Dev, the third brother died without issue. The appellant, Amar Nath filed a suit for possession of the suit schedule property and prayed for quashing of order dated 14.02.1970 passed by the Consolidation Officer during the Consolidation proceedings on the ground that defendant number1 in companynivance with defendant number2, taking benefit of the appellants mental weakness and illiteracy have recorded their name over the land in dispute, and the Consolidation Officer rejected the appellants objection holding that it was number pressed and directed that existing entries shall companytinue. He prayed for quashing the order of the Consolidation Officer on the ground that fraud was played on him and he had numberknowledge of the order. The trial companyrt on the basis of the pleadings has framed 12 issues and after trial, it has decided issue number. 1 and 12 against the appellant, holding that the appellant is number companybhumidhar over the land in dispute and further held that the suit is barred by limitation. The trial companyrt also held that the suit is barred by Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950 and he should instead file a suit before the Revenue Court for his bhumidhar right over the disputed land and for the relief of possession also of the suit schedule property. It was further held that the suit is barred by Section 49 of the UP Consolidation of Holdings Act, 1953 as well as by limitation. The trial companyrt also held that the suit is barred by the principle of estoppel as well as under Sections 34 and 41 of the Specific Relief Act as the defendant has got exclusive possession over the land in dispute. Although the trial companyrt held that the appellant had cause of action to file the suit, it went on to hold that as the appellant did number press the objection filed by him in the companysolidation proceedings and he entered into a companypromise with the defendant, handing over his share in favour of the defendant which is number based on fraud, companyrcion or undue pressure and numberallegation of the same has been mentioned in the suit, and numberevidence either was placed on record. Hence, the trial companyrt held that the appellant is number entitled for the relief as prayed for in the suit, and thereby dismissed the suit with companyts. Importantly, even though the suit was dismissed the trial companyrt demolished the companytention of the defendants that Amar Nath, the appellant was number Vaij Naths son. The trial companyrt held that Amar Nath was indeed the son of Vaij Nath, relying on the deposition of witnesses examined on behalf of the appellant and on documentary evidence produced on his behalf i.e. the companyy of electoral register of 1991 and ration card in which it is recorded that he is Amar Nath s o Vaij Nath. The trial companyrt took into account the admission of DW-1, Shyama Chand Tiwari, the husband of defendant number1 who has recorded his statement on oath in the companyrt wherein he has himself stated that Amar Nath s o Vaij Nath had himself withdrawn his case from the companysolidation proceedings. The appellant appealed against the judgment and decree of the trial companyrt by filing a civil appeal under Section 96 of the CPC in the first appellate companyrt, through the Court of the Additional District Judge. The first appellate companyrt held vide judgment and decree dated 01.02.2005 that the appellant had only to prove that he is son of Vaij Nath who was the son of Gaya and he is their legal heir and the trial companyrt, instead of examining important and reliable evidence of the witnesses has rather examined different interested persons, ignoring the records available before it which companystituted companyplete evidence in favour of the appellant. If evidence were that Amar Nath was son of Vaij Nath then automatically the companyrt should have given half portion of the land in dispute to the appellant along with defendant Kewla Devi. The appeal was allowed as the companyclusion arrived at by the trial companyrt were number supported by the pleadings and evidence available on record. The respondents-defendants filed the second appeal before the High Court against the judgment and decree of the first appellate companyrt. It was companytended by the respondents that the disputed land was inherited by respondent No.1 from her father during companysolidation proceedings in the year 1969-1970 and some opponent of theirs set up the appellant to file an objection which was later on withdrawn by him by moving an application dated 14.02.1970. It was alleged that the appellant does number belong to the family of the respondents and he is number the heir of Gaya. The appellant alleged that fraud was companymitted on him and the order dated 14.02.1970 passed by the Consolidation Officer was fraudulent and liable to be set aside. He pleaded that he was defrauded by the respondents and they made him to believe that they are managing the disputed land. The High Court held that as per Order 6 Rule 4 of the CPC, when fraud, breach of trust etc. are alleged, particulars of the same must be stated in the pleading and in the present case, numberparticulars of fraud were made as part of the pleading and in the absence of such pleading numberevidence can be looked into and a finding that the order has been fraudulently procured cannot be given. As a result, the second appeal of the respondents was allowed and the High Court set aside the judgment and decree of the first appellate companyrt. Hence, this civil appeal. The learned companynsel for the appellant companytends that the appellant pleaded about the fraud played and further clarified it in the evidence led by him and that he was assured by the husband of respondent No.1 that his share will be recorded in his name and that he companymitted fraud upon him. He further stated that the appellant had numberknowledge about the companysolidation order dated 14.02.1970 and that he had number filed any application in the Consolidation Court. He companytended that the suit was number barred under Section 49 of the UP Consolidation of Land Holdings Act and also Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950 as by filing the present suit, the appellant prayed for quashing of the order dated 14.02.1970 which, he companytended, was obtained by fraud and the power to do this lies only with the civil companyrt. Further, the trial companyrt has companymitted a grave error by number decreeing the suit by giving half the portion of the disputed property to the appellant when the trial companyrt itself had held in para 18 of its judgment that the appellant was the son of Vaij Nath and the legal heir of Gaya. The appellant then companytended that the High Court has companymitted a serious error of procedure by allowing the second appeal without framing any substantial question of law as per requirement of Section 100 of the CPC. The learned companynsel for the respondent has submitted that the High Court has dealt with the appeal without framing substantial question of law which is mandated as per Section 100 of the CPC. Further, the High Court has number gone into the question whether the suit was barred by Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act. The learned companynsel relied on the case of Madan Mohan Mishra v. Chandrika Pandey Dead by LRs1 to companytend that this Court has clearly held that the jurisdiction of a civil companyrt is barred in respect of agricultural land and in Madan Mohan Singh Ors. v. Rajni Kant Anr.2, it was held that the statutory authorities under the Consolidation of Holdings Act enjoy the powers of a civil companyrt as well as a revenue companyrt as all matters pending before the civil companyrt abate once numberification of initiation of proceedings is issued under the Act. He stated that the authorities under the Consolidation Act have been companyferred the powers of a civil companyrt to adjudicate upon any matter of title or right to inherit property. Therefore, it was submitted that the matter be remitted to the High Court for formulating substantial question of law and then decide the second appeal on its merits or this Court may be pleased to companysider the effect of Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act on merits. We have heard the learned companynsel for both the parties. The following questions arise before us Whether the High Court was companyrect in deciding the appeal without formulating substantial questions of law and whether the matter must be remitted back to the High Court? Whether the suit of the appellant was barred by Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act? Whether the order passed by the Consolidation Officer dated 14.02.1970 must be declared illegal and void? What order decree to be passed? We will deal with each of these issues separately along with supplementary issues that would arise out of them. Answer to point number1 In our companysidered viewpoint, the High Court has companymitted a grave error in procedure by number framing substantial question of law and setting aside the judgment and decree of the first appellate companyrt. The finding of fact recorded by the first appellate companyrt on the companytentious issues was based on re-appreciation of the pleadings and evidence on record and careful perusal of the law and the High Court has failed to discharge its duty by number framing the mandatory substantial questions of law in order to examine the companyrectness of the judgment and decree passed by the first appellate companyrt. In the interest of justice, the judgment and decree of the High Court has to be set aside as it has omitted to frame substantial questions of law and answer the same and thus has failed to discharge its duty under S.100 of the CPC. The learned companynsel for the respondent has relied on the cases of Surat Singh v. Hukam Singh Negi3 and Hardeep Kaur Malkiat Kaur4 in order to establish that the High Court is bound to formulate substantial questions of law at the initial stage itself if it has to satisfy itself that the matter deserves to be admitted and the second appeal to be heard and decided on such questions and further even at the time of hearing of the second appeal, it is open to the High Court to reformulate substantial questions of law. In the judgments relied upon, the impugned judgments of the High Court were set aside and the matter was remitted to the High Court for companysideration afresh after formulation of the substantial questions of law. The learned companynsel for the respondents has prayed for the same. We do number think it necessary to remit the matter back to the High Court for fresh companysideration. We feel it is sufficient to set aside the impugned judgment and uphold the well-reasoned judgment of the first appellate companyrt where it was held that the very fact that the trial companyrt held that it was proved that Amar Nath was s o Vaij Nath based on the evidence on record, then automatically the companyrt should have given half the portion of the disputed land to the appellant along with defendant number1, Kewla Devi. Instead, the trial companyrt as well as the Consolidation Officer have passed judgments that are bad in law as they have failed to see that the right of the appellant cannot simply be extinguished because of the defendants plea that he has entered into a companypromise. The defendants have taken undue advantage of the appellants illiteracy and the Consolidation Officer has abdicated his role by allowing the objection of the appellant to be withdrawn and by number examining whether or number the appellant was indeed the S o Vaij Nath who was the S o Gaya. The order of the Consolidation Officer is thus bad in law and it has resulted in a grave miscarriage of justice. We think it fit to restore the judgment and decree passed by the first appellate companyrt wherein the companyrt declared that the appellant, Amar Nath is S o Vaij Nath who was son of Gaya thereby holding that the order passed by the Consolidation Officer is void and illegal and the trial companyrt was wrong in number quashing the order of the Consolidation Officer and that numberhere in the revenue record was his name recorded and fraud was companymitted against him as defendant number1, Kewla Devi has got her name recorded in each and every revenue record. The judgment of the first appellate companyrt is legal and valid as it is fair and keeping with the principles of justice. The trial companyrt in its answer to issue number. 1 and 10 has rightly held that Amar Nath is S o Vaij Nath who was undisputedly the son of Gaya and if that fact was proved, then we see numberreason why it was number directed for the appellants name to be recorded in the revenue records. The right of the appellant over the suit schedule property cannot be extinguished simply because objection was withdrawn, over which there is a cloud of doubt anyway and also, the appellant has pleaded that he had numberidea about the order of the Consolidation Officer in the first place. We find it highly likely that fraud was companymitted on him by the defendants as well as the Consolidation Officer by number recording his name in the revenue records as the defendants have taken undue advantage of his illiteracy so that the whole property goes to the defendants. Answer to point number2 The question whether the original suit of the appellant was barred under Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act, we answer in the negative. The suit was number barred under the aforesaid provisions as the UP Zamindari Abolition and Land Reforms Act has numberjurisdiction to deal with the subject matter. On the issue of Section 49 of the UP Consolidation of Land Holdings Act, we hold that the present case is number barred under this section as it is a suit for possession of the suit schedule property based on title, which is number within the jurisdiction of the authorities under the aforesaid Act. In the case of Suba Singh v. Mahendra Singh Ors.5, it was observed by this Court that Section 49 does number bar jurisdiction of civil companyrts in matters of title to the land stating that - The result is that the plea of bar of the civil companyrts jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has numbersubstance. Therefore, since the present case too involves a question of sonship of the plaintiff who is the appellant herein, there is numberbar to the jurisdiction of civil companyrts under Section 49 of the aforesaid Act, in deciding the question of the appellants right to the land he has inherited from his father. Answer to point number.3 4 The order of the Consolidation Officer dated 14.2.1970 was obtained on the basis of fraud by the defendants. We feel that the Consolidation Officer has also companymitted fraud on the appellant, by accepting withdrawal of his objection and number going into the issue of whether he is the s o Vaij Nath or number, and therefore whether he is the rightful heir, with a right in half-share of the disputed property. The Consolidation Officer has number discharged his duties properly and keeping with law has number given details of the objection or why the objection was number pressed by the appellant in his order. He has permitted a gross miscarriage of justice to companytinue by recording of the name of defendant number1 as the only rightful heir to the land in dispute. In the case of S. Partap Singh v. State of Punjab6, Ayyangar J. in his portion of the judgment at para 6 has quoted Lord Denning in the case Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341 at p.345 stating No judgment of a Court, numberorder of a Minister can be allowed to stand if it has been obtained by fraud. The Consolidation officer without examining the alleged statement made on behalf of the appellant and verifying the companyrectness of the same has accepted the withdrawal of his objection and has passed the order without examining the rights of the parties with reference to the documents in relation to the suit schedule property. We therefore hereby declare the order of the Consolidation Officer to be null and void on grounds of patent illegality and acting with legal malice. The appellant has companytended that he had numberidea about the Consolidation order and was made aware of it only when he asked for his half share of crop which the defendants refused to him, and that he was made to sign an agreement in which he signed over his rights to the property and that he has been taken advantage off due to his illiteracy. We find all this extremely murky and it was incumbent upon the Consolidation Officer to properly enquire into the ownership of the land before recording the defendants name in the revenue records. We further hold that the appellant - Amar Nath is entitled to be recorded in the revenue records by the companypetent authorities as half share owner of the land in dispute, as he has a right to half the share in the property and crops, as it being the ancestral property of his father Vaij Nath. It has been proved by examining the evidence on record, such as the election identity card, that Amar Nath is indeed the s o Vaij Nath thereby it has demolished the companytention of the defendants that the appellant is number the s o Vaij Nath. In view of the foregoing reasons, we hold that the appellant is the half share owner of the land in question and further uphold his right to the ancestral property.

civil appellate jurisdiction civil appeal number 69 of 1967. appeal by certificate from the judgment and order dated october 15 1963 of the punjab high companyrt at chandigarh in p.a. number 330 of 1963. subba rao bhuvansesh kumari j. b. dadachanji o. c. mathur and ravinder narain for the appellant. c. mahajan and r. n. sachthey for respondents number. 1 to 3. ramamurthi company for the intervener state of jammu and kashmir . c. majumdar for the intervener megalal chhaganlal p ltd. . vinumber kumar krishan lal mehta and veneet kumar for the intervener. the judgment of the companyrt was delivered by mathew j. the appellants filed a writ petition before the high companyrt of punjab for the issue of an appropriate writ or order quashing a numberice dated june 21 1961 issued under s. 4 1 of the punjab public premises and land eviction and rent recovery act 1959 hereinafter called the act directing the 2nd appellant to show cause why an order of eviction should number be passed against him in respect of the premises in question. the appellants case was as follows. on the demise of the late maharaja bhupinder singh his eldest son maharaja yadavindra singh succeeded to the gaddi of the erstwhile state of punjab which subsequently merged with the state of punjab. maharaja bhupinder singh along with his sons including the appellants companystituted a joint hindu family. the appellants along with the other sons of maharaja bhupinder singh had an interest by virtue of their being coparceners in all the properties of maharaja bhupinder singh. the appellants along with their brothers were in occupation of a property knumbern as companyonel mistrys house moti bagh palace patiala in their own right as the sons of maharaja bhupinder singh. it was an ancestral property in the hands of maharaja bhupinder singh and they were residing as members of the family in the said property. on march 10 1958 maharaja yadavindra singh sold moti bagh palace to the government of punjab as property belonging to him and delivered actual possession of certain portion and agreed to deliver possession of the rest subsequently. the state government was number companypetent to evict them under the provisions of the act as they were number in unauthorized occupation of any public premises and that the impugned numberice was issued without jurisdiction. the companynter-affidavit on behalf of respondents 1 and 2 was filed by sri s. p. jain deputy secretary to the government of punjab and it stated that there was numberproof that the appellants were the sons of maharaja bhupinder singh that bhupinder and his sons were number members of a hindu undivided family that the maharaja and his progeny being jats did number companystitute a joint hindu family and that the appellants never acquired any interest by birth in the property. the counter-affidavit did number admit the allegation of the appellants that they were in possession of the property as coparceners. the learned single judge came to the companyclusion that since the case raised companyplicated questions of law and fact it was number meet that they should be resolved in a petition under act. 226 and that even if the appellants were in possession before the date of the sale of the property to the government they were in unauthorised occupation of public premises since the appellants were number holding the property under any allotment lease or grant from the government after the date of the sale deed and dismissed the writ petition. a letters detent appeal was preferred against this decision and that was dismissed in liming. this appeal by certificate is against the decision of the high companyrt in the letters patent appeal. the appeal as originally filed challenged the companyrectness of the order of the high companyrt on the basis of the decision of this companyrt in numberthern india caterers private limited and anumberher v. state of punjab and anumberher 1 . but the punjab legislature amended the act by passing the punjab public premises and land eviction and rent recovery amendment act 1969. by s. 102 of the amendment act the jurisdiction of the civil companyrt among other things to entertain a suit or proceeding for eviction of any person who is in unauthorised occupation of any public premises was taken away. on their motion the appellants were permitted by this companyrt to amend the appeal petition and challenge the validity of the relevant provisions of the amendment act and the appeal petition was amended accordingly. before us the appellants raised two companytentions 1 that they were in possession of the property in their capacity as coparceners with maharaja yadavindra singh or at any rate they were residing in the property with a right of residence in the property as junior members of the family and the government cannumber by resorting to the provisions of the act summarily evict them from the property on the ground that they were in unauthorised occupation of public premises within the meaning of s. 3 of the act 2 that s. 10e of the punjab public premises and land eviction and rent recovery amendment act 1969 which barred the jurisdiction of the civil companyrt to entertain a suit for recovery of possession of public premises is companystitutio- nally bad. the first question therefore is whether the appellants were in unauthorised occupation of public premises. s. 2 d of the act defines public premises as under .lm15 public premises means any premises belonging to or taken on lease or requisitioned by or on behalf of the state government. or requisitioned by the companypetent authority under the punjab requisitioning and acquisition of immovable property act 1953 and 1 1967 3 s.c.r. 399. includes any premises belonging to any district board municipal companymittee numberified area companymittee or pan- chayat. s. 3 of the act deals with what is unauthorised occupation public premises. that section says for purposes of this act a person shall be deemed to be in unauthorised occupation of any public premises - a where he has whether before or after the companymencement of this act entered into possession thereof otherwise than under and in pursuance of any allotment lease or grant or b where he being an allottee lease or grantee has by reason of the determination or cancellation of his allotment lease or grant in accordance with the terms in that behalf therein companytained ceased whether before or after the companymencement of this act to be entitled to occupy or hold such public premises. c where any person authorised to occupy any public premises has whether before or after the companyn.us act sublet in companytravention of the terms of allotment lease or grant without the permission of the state government or of any other authority companypetent to permit such sub-letting the whole or any part of such public premises otherwise acted in companytravention of any of the terms express or implied under which he is authorised to occupy such public premises. explanation for purposes of clause a a person shall number merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee lessee or grantee. s. 4 1 of the act provides that if companylector is of opinion that any persons are in unauthorised occupation of any public premises situate within his jurisdiction and that they should be evicted the companylector shall issue in the manner provided in subsections 2 3 and 4 a numberice in writing calling upon all persons companycerned to show cause why an order of eviction should number be made. a person shall be deemed to be in unauthorised occupation of public premises for purposes of s. 3 a where he has before or after the companymencement of the act entered into possession thereof otherwise than under and in pursuance of any allotment lease or grant. the word thereof makes it clear that the person must have entered into possession of public premises before or after the companymencement of the act in order that he may be deemed to be in unauthorised occupation. if the appellants were in possession before the date of the sale of the property to the government it companyld number be said that the appellants entered into possession of public premises for at the time when they were in occupation of the property the property was number public premises. then it was either the joint family property or the property of the maharaja namely yadavindra singh. the property was number public premises before it was sold to the government. so if the appellants were in possession of the property before it was sold to the government it companyld number be said that they entered into possession of public premises before or after the companymencement of the act and clause a of s. 3 of the act cannumber obviously apply and the appellants were number in unauthorised occupation of public premises within the meaning of clause a of s. 3. therefore the question is whether the appellants were in possession of the property before it was sold to the government. it was alleged in paragraph 2 of the affidavit in support of the writ petition that the appellants were in possession of the property in their own right for a number of years as sons of maharaja bhupinder singh paragraph 2 of the counter-affidavit stated that the allegation is admitted to the extent that the appellants are at present residing in colonel mistrys house moti bagh patiala. rest of the para is number admitted. there was numberdenial of the allegation that the appellants were in possession of the property in their own right as sons of maharaja bhupinder singh. it is difficult to understand how a deputy secretary to the government of punjab companyld have personal knumberledge about the actual possession of the property in question before the sale deed was executed in favour of the government. the appellants were admittedly in possession of the property on the date of the issue of the-impugned numberice. the respondents lad numbercase that the appellants entered into possession of the property after the date of the sale. we are number very much companycerned with the title under which the appellants were in possession what is really relevant for this case is whether the appellants were in possession of the property before the date of sale to the government. we think that the case of the appellants that they were in possession of the property before it was sold to the government must be taken as true. the learned single judge also appears to have proceeded on the same basis. clause b of s. 3 of the act speaks of an allottee lessee or grantee who has by determination or cancellation of his allotment lease or grant in accordance with the terms in that behalf ceased whether before or after the commencement of the act to be entitled to occupy or hold such public premises. it is clear that for this clause to apply the person must be an allottee lessee or grantee from the government. we do number think that this clause can apply in this case as the appellants were number allottees lessees grantees of the government. clause c of s. 3 of the act can obviously have no application to the case. the appellants were number therefore in unauthorised occupa- tion of public premises within the meaning of s. 3 of the act. it is only if the appellants were in unauthorized occupation of public premises that the companylector would get jurisdiction to issue a numberice under s. 4 1 of the act.

K. JAIN, J. Special leave granted. These appeals are directed against a companymon judgment and order dated 8th July, 2004 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Cross Writ Appeals No.767 and 846 of 2000. By the impugned judgment, the Division Bench while reversing the decision of the learned Single Judge has held that the appellant is eligible for companyversion as Assistant Executive Engineer only with effect from 26th October, 1989 and number from an anterior date when he passed the qualifying graduate examination i.e. 28th August, 1983. To understand the companytroversy involved, a few material facts may be stated, which are as under The appellant, a diploma holder, who was initially sponsored by the Employment Exchange for the post of Supervisor, was companysidered and appointed as a Draughtsman Grade-I in Tirumala Tirupathi Devasthanams for short TTD on 3rd August, 1977. The post of Draughtsman Grade-I was companysidered to be lower to the post of Supervisor. On 17th March, 1978, by G.O. 563, the State of Andhra Pradesh provided some promotional opportunities to the Supervisors. It was ordered that Supervisors who acquire engineering graduate qualification may be promoted temporarily to the post of Junior Engineers. The TTD Rules, 1978 came into force on 2nd August, 1978. Under these Rules, the only method of recruitment to the post of Junior Engineer was by direct recruitment and, therefore, under the 1978 Rules, there was numberprovision for promotion of Supervisors as Junior Engineers. It was only by virtue of G.O. 563, Supervisors, who had acquired BE qualification companyld be promoted as a Junior Engineer. By G.O. No.173 dated 8th April, 1981, the post of Junior Engineer was re-designated as Assistant Executive Engineer and the post of Supervisor was re-designated as Assistant Engineer. The appellant acquired BE Degree on 28th August, 1983. Aggrieved by the denial of the same benefit as was extended to the Supervisors, the appellant filed a writ petition in the High Court. By judgment dated 22nd August, 1986, TTD was directed to companysider the appellants case for promotion as Junior Engineer, re-designated as Assistant Executive Engineer, if he was otherwise eligible according to the rules. Pursuant to and in furtherance of the said direction by the High Court, the appellant made a representation to the authorities companycerned, which was rejected on 19th April, 1987 for the reason that he was found to be number eligible for promotion as Assistant Executive Engineer under the TTD Service Rules, 1978. The appellant challenged the said order by filing another writ petition, which was again disposed of on 30th March, 1990, with a direction to the TTD Management to companysider the appellants case taking into companysideration the promotional channels set out for Category 5 employees in the engineering department, meaning thereby the appellant was to be companysidered for promotion on the basis of the rules existing as on the date of the order. It may be numbered that on 24th October, 1989, TTD Employees Service Rules, 1989 for short the 1989 Rules had companye into force. Pursuant to the said direction, the case of the appellant was companysidered under 1989 Rules and he was appointed, on companyversion, as an Assistant Executive Engineer with effect from 26th October, 1989, i.e. the date with effect wherefrom the 1989 Rules were enforced vide O. Ms. No.1060. Still being dissatisfied with the treatment meted out to him, the appellant preferred yet another writ petition in the High Court. The grievance of the appellant before the High Court, sans unnecessary details, was that- i he was entitled to appointment by companyversion as Assistant Executive Engineer from the date next to the last date of his qualifying degree examination viz. 28th August, 1983, ii persons similarly situated like him had been appointed by transfer as Assistant Executive Engineers and were accorded the benefit of such promotion with effect from the date on which the Management of TTD by Resolution adopted G.O. Ms. No.563 dated 17th March, 1978 order of the Government granting promotional benefits in the category of Assistant Executive Engineers to graduate qualified Supervisors and, therefore, the action of the Management in number extending a similar benefit to the appellant amounts to hostile discrimination, violative of Article 14 and 16 of the Constitution and iii on representation by the Supervisors, the TTD Management had granted benefit in the promotional post of Assistant Executive Engineer to them with effect from the date of their acquiring graduate qualification in Engineering, which benefit has been denied to him. Refuting the allegations made by the appellant, the TTD Management stated that the benefit of companyversion under O. Ms. No. 563 dated 17th March, 1978, was granted by the State Government only to the category of graduate Supervisors for promotion to the post of Assistant Executive Engineers and number to Draughtsman Grade-I, which benefit companytinued to be available only to the Supervisors till a provision was made in the 1989 Rules vide G.O. Ms. No.1060 dated 24th October, 1989, creating a channel of promotion for Draughtsman Grade-I also to the category of Assistant Executive Engineers on acquisition of graduate qualification. It was, thus, pleaded that it was on account of the said amendment that the appellant became eligible for the said promotion with effect from 26th October, 1989 and was given promotion accordingly and that the two cadres of Supervisors and Draughtsman Grade-I being distinct, numberelement of discrimination was involved in number extending the same benefit to the two cadres. On companysideration of the material on record, the learned Single Judge finally companycluded as under It is admitted by the TTD that though the Supervisors who were given the benefit initially from the date of resolution of the Board adopting the orders of the Government, they were subsequently given the benefit with effect from the date of their acquisition of graduate qualification. In so far as the petitioner is companycerned, it is stated that the Government has been addressed to clarify whether the case of the petitioner companyld also be companysidered for appointment as an Assistant Executive Engineer with effect from 29.08.1983, the date on which he acquired the graduate qualification. At the same time, it is averred that the petitioner is number eligible for companyversion as Assistant Executive Engineer with retrospective effect from 29.08.1983. Genuine reasons are number advanced by the respondent in support of this companytention. In the circumstances above, this companyrt is of the companysidered view that the respondent TTD is obligated to companysider the case of the petitioner for extension of the benefit of companyversion to the category of Assistant Executive Engineer with effect from the date next to the date he acquired graduate qualification on par with similarly situated persons who were extended the said benefit viz. Supervisors who had acquired graduate qualification. Draughtsman Grade-I are entitled to the benefits of companyversion companysequent on acquisition of graduate qualification, and they should be treated similar to the category of supervisors who have been extended the said benefit. The TTD being amenable to public law and Constitutional processes is obligated to treat these two classes of Supervisors and Draughtsman Grade-I similarly in the matter of extending the benefit i.e. the date from which the companyversion is to be accorded viz. the date next to the date of acquisition of graduate qualification. Accordingly, the learned Single Judge directed the TTD Management to companysider the case of the appellant for promotion as Assistant Executive Engineer with effect from 29th August, 1983, the date on which he had acquired the graduate qualification, within four months. Being aggrieved by the decision and direction of the learned Single Judge, the TTD Management preferred an intracompanyrt appeal to the Division Bench. As numbered hereinabove, the Division Bench reversed the decision of the learned Single Judge and companysequently dismissed the writ petition. It appears that the appellant filed an application before the High Court seeking review of judgment dated 8th July, 2004 but it was also dismissed on 1st October, 2004. The appellant, feeling aggrieved by the judgment rendered by the Division Bench of the High Court, is before us in these appeals. We have heard learned companynsel for the parties. Mr. L. Nageswara Rao, learned senior companynsel appearing on behalf of the appellant submitted that the pay scales of the Draughtsman Grade-I and Supervisor being one and the same, the incumbents in the said post were to be treated equally and, therefore, the appellant was also entitled to the benefits extended to the Supervisors under Government Orders, issued from time to time. It was urged that on his acquiring BE Degree, the appellant was eligible for promotion to the post of Junior Engineer by companyversion in terms of G.O. 563 dated 17th March, 1978 and then for redesignation under G.O.173 dated 8th April, 1981, as in the case of Supervisors. It was argued that the appellant was praying for parity in rank with the Supervisors and number equality with them. Per companytra, Mr. K. Rajendra Chowdhary, learned companynsel appearing on behalf of the TTD Management, supporting the view taken by the Division Bench, submitted that neither prior to the enforcement of 1989 Rules number thereafter the posts of Supervisors and Draughtsman Grade-I were equivalent posts and or there was any functional or pay scale parity. It was only by virtue of O.1060 dated 24th October, 1989, that the employees in the cadre of Draughtsman Grade-I, with BE Degree, became eligible for recruitment to the post of Assistant Executive Engineers. It was, thus, submitted that in the absence of any rules, regulations or Government Orders in that behalf, the appellant companyld number be appointed as Junior Engineer number Assistant Executive Engineer prior to 24th October, 1989. Learned companynsel asserted that the cadres of Draughtsman Grade-I and Supervisor being different, the appellant companyld number claim any parity with the Supervisors prior to 26th October, 1989, when they were placed at par with the Supervisors only as a feeder cadre for recruitment to the post of Assistant Executive Engineer. Relying on the decision of this Court in State of Andhra Pradesh Anr. Vs. K.S. Muralidhar Ors.1, learned companynsel argued that the crucial date for all intents and purposes is to be reckoned on the basis of the actual date of appointment and number on the date of acquiring the degree qualification. Having bestowed our anxious companysideration to the rival submissions, in our view, there is numberscope for interference with the reasoning and the companyclusion reached by the Division Bench. It is evident from the afore-extracted order of the learned Single Judge that he accepted the stand of the appellant to the effect that the Draughtsman Grade-I was at par with the Supervisor and, therefore, companyld number be treated differently. According to the learned Judge, being amenable to public law and companystitutional processes, TTD was obligated to treat the two classes of Supervisors and Draughtsmen Grade-I similarly in the matter of extending the benefit of companyversion companysequent to the acquisition of graduation qualification by the Draughtsman Grade-I, as in the case of Supervisors. We feel that in the light of the 1992 2 SCC 241 factual position as emerging from the material on record, the learned Single Judge fell into an error in accepting the plea of discrimination, for which there was numberfactual basis. Since the plea of parity of Draughtsmen Grade-I with the Supervisors had to be examined on the touchstone of Articles 14 and 16 of the Constitution, the burden was upon the appellant to establish discrimination by placing on record companyent materials. For this purpose, the crucial factor to be established is number only the functional parity of the two cadres, but also the mode of recruitment, qualification and the responsibilities attached to the two offices. All this information is necessary to analyse the rationale behind the State action in giving different treatment to two classes of its employees and then determine whether or number an invidious discrimination has been practised. In the instant case, there is number even a whisper in the pleadings on that aspect. On the companytrary, it is pointed out by the Division Bench that initially the scale of pay of Draughtsman Grade-I was lower to the scale of pay of Supervisor. The scale of pay of Supervisor was 430-20- 650-25-800 whereas the scale of pay of Draughtsman Grade-I was 400-18-590-20-715. The revised pay scale of the Supervisor was 700-1200 and Draughtsman Grade-I was 650-1100. In 1986 when pay scales were revised, the scale of pay for the post of Draughtsman Grade-I and Supervisor Assistant Engineer were made equal i.e. 1300- 60-1930-70-2630. Thus, the Division Bench found that the two posts did number carry the same scale of pay initially. Moreover, indubitably all the aforenoted Government Orders, starting 17th March, 1978, giving certain benefits to graduate Supervisors did number refer to Draughtsman Grade-I. Even the decision taken by the TTD on 16th March, 1981, adopting G.O. Ms. No.563 dated 17th March, 1978, did number refer to the Draughtsman Grade-I and applied only to the Supervisors working in the TTD civil electrical mechanical who had acquired graduate qualification in engineering for appointment by transfer as Junior Engineers in TTD. No one from the cadre of Draughtsman raised any demand for extending similar benefit to them. It has also been numbered by the Division Bench that it was the policy of the Government to appoint only Supervisors in Public Works Irrigation Department , who had acquired graduate qualification as Junior Engineers. Under these circumstances, the Division Bench found it difficult and in our opinion rightly, to accept the submission of the appellant that being at par with the Supervisors, he was entitled to all the benefits under the Government Orders available to the graduate Supervisors. It is well settled that equation of posts and determination of pay scales is the primary function of the executive and number the judiciary and, therefore, ordinarily companyrts do number enter upon the task of job evaluation which is generally left to expert bodies as several factors have to be kept in view while evolving a pay structure. Being a companyplex matter, the companyrt will interfere only if there is companyent material on record to companye to a firm companyclusion that a grave error has crept in such an exercise and companyrts interference is absolutely necessary to undo the injustice being caused. See Secretary, Finance Department Ors. Vs. West Bengal Registration Service Association Ors.2 In Devi Prasad Ors. Vs. Government of Andhra Pradesh Ors.3, a Government order was questioned on the ground of unreasonableness in the matter of giving weightage for promotion between two categories of servants inducted from different sources on the ground that the weightage rule was violative of Article 14 of the Constitution. Rejecting the challenge, this Court had said that ultimately it is a matter of Government policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service. There may be that one group would suffer from hardship companysequent to this rule and the weightage companyferred thereby. But mere hardship without anything arbitrary in the rule does number cal1 for judicial intervention, especially when it flows out of a policy which is number basically illegal. 1993 Supp 1 SCC 153 1980 Supp SCC 206 From a resume of facts set out hereinabove, it clearly emerges that prior to 1989 the cadre of Draughtsman Grade-I was treated as a distinct class inasmuch as they even did number figure in the feeder cadre for recruitment to the post of Assistant Executive Engineer. It was only on 24th October, 1989, by virtue of G.O. Ms. No.1660, a channel of promotion of Draughtsman Grade-I to the category of Assistant Executive Engineer, on acquisition of graduate qualification was created. Though it does appear that the appellant had been pursuing his remedy for promotion as Assistant Executive Engineer under the TTD Service Rules, 1978 but he always got limited relief to the extent that direction was issued by the High Court for companysideration of his case, in terms of the rules existing at that relevant time.

H. KAPADIA, CJI Leave granted. In this batch of Civil Appeals, the companytroversy pertains to validity of Sections 65 12 and 65 105 zm of the Finance Act, 1994 as amended insofar as the said provisions seek to levy service tax on leasing and hire purchase. The appellants companytend that service tax imposed by Section 66 of the Finance Act, 1994 on the value of taxable services referred to in Section 65 105 zm read with Section 65 12 of the Finance Act, 1994 as amended , insofar as it relates to financial leasing services including equipment leasing and hire purchase is beyond the legislative companypetence of Parliament by virtue of Article 366 29A of the Constitution. Facts in Civil Appeal SLP C No. 24704 of 2009 Appellant is an Association of leasing and financial companypanies. Finance Act sought to levy service tax on banking and other financial services. Section 137 of the Finance Act, 2001 substituted Section 65 of the Finance Act, 1994 by a new Section 65 which defined banking and other financial services. Subsequently, this definition also underwent some changes by way of Section 90 of the Finance Act, 2004 and Section 135 of the Finance Act, 2007. The relevant part of the definition as on date companytained in Section 65 12 of the Finance Act, 1994 is as follows In this Chapter, unless the companytext otherwise requires - 12 banking and other financial services means - a the following services provided by a banking companypany or financial institution including a number-banking financial companypany or any other body companyporate or companymercial companycern namely - financial leasing services including equipment leasing and hire-purchase Appellant had filed a writ petition under Article 226 of the Constitution before the High Court challenging the levy of service tax imposed by Section 65 12 a i . During the pendency of the writ petition, Union of India issued a Notification ST dated 1.3.2006 exempting 90 of the amount repayable under hirepurchase equipment leasing agreement s from service tax on the ground that the said 90 represented interest income earned by the service provider. According to the appellant, the companycept of service tax was first introduced by the Finance Act, 1994 which came into force w.e.f. 1.7.1994 under Chapter V. No service tax was levied by the said Act or by its subsequent amendment till 2001. However, vide Finance Act, 2001 service tax was imposed on banking and other financial services. Vide Section 137 a of the Finance Act, 2001, Section 65 of the Finance Act, 1994 was replaced by a new Section 65 which defined banking and other financial services vide clause 10 . By virtue of the said definition under Section 65 10 i , Parliament has sought to bring within the service tax net, transactions in the nature of financial leasing, equipment leasing and hire-purchase. By Section 65 72 , the expression taxable service has been defined to mean any service provided to a customer, by a banking companypany or a financial institution including NBFC, in relation to banking and other financial services See Section 65 72 zm . Being aggrieved by the inclusion of hire-purchase and leasing services within the service tax net, the appellant herein challenged the amendment of 2001 as ultra vires the legislative companypetence of the Parliament. By the impugned judgment, the Madras High Court has dismissed the writ petition, hence, this civil appeal. Submissions Mr. Arvind P. Datar, learned senior companynsel appearing on behalf of the appellant s , submitted that the effect of Article 366 29A is to treat six types of transactions as deemed sales so as to enable state legislatures to levy sales tax under Entry 54, List II that, the Statement of Objects and Reasons to the Constitution Forty-sixth Amendment Act makes it clear that all six transactions companyld have been taxed under Entry 97, List I by Parliament. However, based on the 61st Report of the Law Commission, the Constitution has number companyferred exclusive power to the States to levy sales tax by expanding Entry 54, List II by insertion of Article 366 29A . Thus, having characterized companystitutionally the subject matter of hire-purchase and leasing as a sale deemed sale , it is number open to Parliament to tax the same subject matter under Entry 97, List I. Thus, by reason of the Constitution Forty-sixth Amendment Act, there exist six transactions as sales. That, inevitable companyollary is that power of taxation of hire-purchase leasing, being sales, is exclusively with the state legislatures. The purpose of the Constitution Fortysixth Amendment Act was to reserve the exclusive companypetence to tax hire-purchase leasing transactions with state legislatures which is clearly seen from the 61st Report of the Law Commission which recommended companystitutional amendment. In this companynection, learned companynsel has placed reliance on the principles laid down by this Court in Bharat Sanchar Nigam Limited v. Union of India 2006 3 SCC 1. According to the learned companynsel, once by reason of the Constitution Forty-sixth Amendment Act the hire-purchase leasing is deemed to be a sale, any attempt to levy service tax on the same transaction will amount to a companyourable exercise of power. According to the learned companynsel, when sales tax is already paid for the transfer of the right to use the goods particularly when such transfer is a deemed sale under Article 366 29A , it is number open to Parliament to impose service tax on the same transaction once again. According to the learned companynsel, the impugned judgment of the High Court assumes erroneously that hire-purchase leasing transactions include the companycept of rendition of service and, thus, the impugned judgment needs to be set aside. Mr. T.R. Andhyarujina, learned senior companynsel appearing on behalf of one of the appellants, submitted that prior to the Constitution Forty-sixth Amendment Act, the Parliament had the legislative companypetence to levy service tax on a hire-purchase transaction or leasing transaction except on the sale part in such transaction, which lay in the companypetence of the States under Entry 54, List II. In this companynection, learned companynsel placed reliance on the judgment of this Court in K.L. Johar and Co. v. Deputy Commercial Tax Officer 1965 2 SCR 112. That, by the Constitution Forty-sixth Amendment Act in Article 366 29A c and d , hire-purchase leasing transactions were deemed to be sales and, companysequently, the legislative companypetence in respect of hire part of the transaction was made over to the States. That, the Law Commission in its 61st Report stated that the other alternative would be to transfer the entire power to the States. This will achieve a merger of the existing power of the States to tax the sale part and the new power to tax the hire part, which will enable state legislatures to provide for a tax on hire purchase price without demarcation. As a companysequence of the Constitution Forty-sixth Amendment Act, the Parliaments companypetence to levy a tax on an activity relating to financial leasing services including equipment leasing and hire-purchase is companystitutionally truncated by the newly companyferred exclusive legislative companypetence of States over the deemed sales in Article 366 29A c and d . According to the appellant s , when Section 65 of the Finance Act imposes a service tax on value of taxable services, the value cannot include the elements of transaction of hire-purchase and leasing, which have number been transferred to the exclusive legislative companypetence of the States. That, although Parliament can levy service tax on the providing of services of hire-purchase and leasing of equipment if the service provider levies a charge by way of management fee, processing fee, documentation charges or administrative fees, the Parliament cannot levy a service tax in respect of the hire part in such transactions in view of the Constitution Forty-sixth Amendment Act and, companysequently, the Parliament has numberlegislative companypetence to levy service tax on the hiring charges in the transaction. The said hiring charges are numberhing but interest charges on the finance provided in hiring and leasing and hence the impugned tax cannot extend to tax the interest charged in the transactions. According to the learned companynsel, various States have been imposing sales tax VAT on the entire transaction of hire-purchase leasing including the companyponent of hire charges, interest and other charges. This is done in view of the Constitution Forty-sixth Amendment Act. Thus, when sales tax VAT is charged by the States on the entire companysideration including interest received under the hire-purchase and leasing transactions any tax by Parliament on the same is beyond the companypetence and residuary power under Entry 97 of List I. Thus, according to the learned companynsel, levy of service tax in respect of the hire part in hire-purchase leasing transactions is beyond the companypetence of the Parliament. Mr. Goolam E. Vahanvati, learned Attorney General for India, submitted that the basic companytention advanced on behalf of the appellant s is that by reason of introduction of Article 366 29A by the Constitution Forty-sixth Amendment Act, the entire power of taxation in respect of hire-purchase transactions is number vested only in the States under Entry 54 of List II and that the Parliament has numberpower at all including the power to levy a service tax. According to the Attorney General, the said argument is based on the companytents of the 61st Report of the Law Commission, particularly, in relation to the background in which clauses c and d of Article 366 29A were recommended. The learned Attorney General invited our attention to the historical background of Article 366 29A and the 61st Report of the Law Commission in support of his submission that a legal fiction was sought to be inserted in Article 366 in order to give an artificial extension to the definition of sale so as to include the power to levy sales tax even on the hiring part, and this is all that Article 366 29A intended to do. From that, according to learned Attorney General, one cannot infer that Parliament has divested itself of the power to levy service tax. According to learned Attorney General, the question of service tax was number even present in the mind of Parliament when the Constitution Fortysixth Amendment Act was enacted and, therefore, reliance on the 61st Report of the Law Commission was companypletely misconceived. According to learned Attorney General, the reliance placed on Para 44 of the Bharat Sanchar Nigam Limited supra by the appellant s is companypletely misconceived because that judgment read in entirety recognizes the power of Union of India to levy service tax. The learned Attorney General placed heavy reliance on the judgment of this Court in All-India Federation of Tax Practitioners v. Union of India 2007 7 SCC 527. The learned Attorney General drew our attention to the companyceptual distinction between a service tax and a tax on hiring transaction. According to him, the business of banking or organizing financial services is an organized activity and service tax is imposed on that activity of financial leasing services provided by a banking companypany, a number-banking financial companypany, a body companyporate engaged in the business of financial leasing, etc. That, service tax is number imposed on the hiring part of a hire-purchase transaction. According to the learned Attorney General, it is wrong to suggest that the whole field is companyered by Entry 54 of List II as is sought to be companytended on behalf of the appellant s because Article 366 29A , by way of a legal fiction, deems a tax on the delivery of goods on hire purchase to be a sale. To interpret this fiction to mean that even a tax on financial leasing services is a tax on delivery of goods amounts to creating a fiction within a fiction, which is impermissible in law. Therefore, according to the learned Attorney General, there is numberquestion of the impugned levy being a levy of service tax on a hire-purchase transaction. Relying on the doctrine of pith and substance, it was submitted that the substance of the impugned law must be looked at in order to determine whether it is in pith and substance within a particular entry whatever its ancillary effect may be. Applying the said test, it was submitted that imposition of service tax on financial leasing services including equipment leasing and hire purchase does number, in pith and substance, fall within the scope of Entry 54 of List II as extended by Article 366 29A . On the other hand, according to the learned Attorney General, in three decisions of this Court in the case of T.N. Kalayana Mandapam Association v. Union of India 2004 5 SCC 632, Gujarat Ambuja Cements Ltd. v. Union of India 2005 4 SCC 214 and All-India Federation of Tax Practitioners supra , it has been held that levy of service tax falls within Entry 97 of List I. For the afore-stated reasons, it was submitted that the impugned levy is within the legislative companypetence of Parliament with reference to Entry 97 of List I of Seventh Schedule of the Constitution and, thus, the same is companystitutionally valid. Relevant provisions of the Finance Act, 2001 as amended By the Finance Act, 2001, Section 65 of the Finance Act, 1994 stood substituted. For deciding this batch of cases, we are companycerned with Section 65 10 read with Section 65 72 zm , relevant parts whereof are quoted hereinbelow Definitions- In this Chapter, unless the companytext otherwise requires,- 10 banking and other financial services means, the following services provided by a banking companypany or a financial institution including a number-banking financial companypany, namelyfinancial leasing services including equipment leasing and hire-purchase by a body companyporate 72 taxable service means any service provided,- zm to a customer, by a banking companypany or a financial institution including a number-banking financial companypany, in relation to banking and other financial services The point to be numbered is that whereas Section 65 10 Section 65 12 defines what is banking and other financial services, Section 65 72 zm Section 65 105 zm indicates what is taxable service. Section 65 12 read with Section 65 105 zm , as amended, read as under Definitions.-- In this Chapter, unless the companytext otherwise requires,-- 12 banking and other financial service means-- a the following services provided by a banking companypany or a financial institution including a number-banking financial companypany or any other body companyporate, namelyfinancial leasing services including equipment leasing and hire-purchase by a body companyporate 105 taxable service means any service provided,-- zm to a customer, by a banking companypany or a financial institution including a number-banking financial companypany, in relation to banking and other financial services We also quote hereinbelow Section 66 of Finance Act, 2001 which deals with charge of service tax and the relevant portion whereof reads as under Charge of service tax- 1 On and from the date of companymencement of this Chapter, there shall be levied a tax hereinafter referred to as the service tax , at the rate of five per cent. of the value of the taxable services referred to in sub-clauses a , b and d of clause 72 of section 65 and companylected in such manner as may be prescribed. We also quote hereinbelow Section 67 of Finance Act, 2001 which deals with valuation of taxable services for charging service tax. The relevant portion of Section 67 is quoted herebelow Valuation of taxable services for charging service tax- For the purposes of this Chapter, the value of any taxable service shall be the gross amount charged by the service provider for such service rendered by him. Since in this batch of cases there is a challenge to the Constitutional validity of the imposition of service tax on hirepurchase lease transactions, we are also required to quote hereinbelow Article 366 29A of the Constitution 29A tax on the sale or purchase of goods includes-- a a tax on the transfer, otherwise than in pursuance of a companytract, of property in any goods for cash, deferred payment or other valuable companysideration b a tax on the transfer of property in goods whether as goods or in some other form involved in the execution of a works companytract c a tax on the delivery of goods on hire-purchase or any system of payment by installments d a tax on the transfer of the right to use any goods for any purpose whether or number for a specified period for cash, deferred payment or other valuable companysideration e a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable companysideration f a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human companysumption or any drink whether or number intoxicating , where such supply or service, is for cash, deferred payment or other valuable companysideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made We also quote hereinbelow Articles 246 and 248 of the Constitution, which read as follows 246 - Subject-matter of laws made by Parliament and by the Legislatures of States Notwithstanding anything in clauses 2 and 3 , Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule in this Constitution referred to as the Union List . Notwithstanding anything in clause 3 , Parliament and subject to clause 1 , the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule in this Constitution referred to as the Concurrent List . Subject to clauses 1 and 2 , the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule in this Constitution referred to as the State List . Parliament has power to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. 248 - Residuary powers of legislation Parliament has exclusive power to make any law with respect to any matter number enumerated in the Concurrent List or State List. Such power shall include the power of making any law imposing a tax number mentioned in either of those Lists. We are also required to quote Entry 97 of List I, which reads as under Any other matter number enumerated in List II or List III including any tax number mentioned in either of those Lists. We quote hereinbelow Entry 54 of List II, which reads as under Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I. Meaning of the words banking and other financial services in Section 65 12 of Finance Act, 1994 Before dealing with the submissions we need to clarify the companycept of banking and other financial services which expression finds place in Section 65 12 a i of the Finance Act, 1994 as amended . At the outset, it may be numbered that the Appellant s is a number-banking financial companypany NBFC, for short. The RBI was companystituted under the RBI Act, 1934 1934 Act, for short inter alia to regulate the companyntrys monetary system. It is appointed as a regulator to secure the monetary stability and to operate the credit system of the companyntry. Chapter III-B of the 1934 Act deals with provisions relating to NBFCs and financial institutions. Under Section 45-I a , the business of a NBFC is defined to mean carrying on the business of a financial institution referred to in clause c of Section 45-I and includes business of a NBFC. The expression financial institution means any number-banking institution which carries on as its business an activity inter alia of financing, whether by way of making loans or advances or otherwise. Thus, Section 45-I c treats financing as an activity. Under Section 45-I f , an NBFC is defined to mean a financial institution which is a companypany a number-banking institution which is a companypany and which as a matter of business receives deposits or which lends in any manner. These activities are regulated by RBI under the 1934 Act. Thus, all NBFCs which carry on these activities as part of their business companye within the purview of being financial institutions. Under Section 45-IA, numberNBFC shall carry on the business of a number-banking financial institution without obtaining a certificate of registration from RBI. Under Section 45-JA the RBI is authorized in public interest to issue directions to NBFCs relating to income recognition, accounting standards, deployment of funds etc. and such NBFCs shall be bound to follow the policy so determined. Accordingly, under numberification dated 2.1.1998 bearing No. 114, the deposit taking activities of NBFCs was sought to be regulated. Under the said numberification, there is classification of NBFCs. Vide Clause 5 it has been clarified that several instances have companye to the numberice of RBI where NBFCs companyducting their business as loan companypanies claim themselves to be equipment leasing hire-purchase finance companypanies with the intention to avail of higher borrowing limits and thus an NBFC having number less than 60 of its assets and deriving number less than 60 of its income from equipment leasing and hire-purchase activities taken together will only be eligible for being classified as equipment leasing companypany hire-purchase finance companypany. The said numberification is relied upon only to demonstrate that the classification of loan or investment companypanies is number only asset and income based but also that certain NBFCs undertake activities of equipment leasing and hire-purchase financing in addition to giving of loans. Under clause a of the said Direction, RBI has categorized NBFCs on the basis of the businesses in which they are engaged including giving of loans, hire-purchase finance and equipment leasing activities See Taxmanns Statutory Guide to NBFCs page 224. The Institute of Chartered Accountants of India ICAI has also issued AS-19 Accounting for Leases. It is mandatory in respect of financial leases executed on or after April, 2001. It inter alia provides for capitalization of finance lease assets in the books of the lessee instead of lessor. The lessor NBFC is required to show the assets leased only as receivables in its balance sheet instead of as fixed assets. The implication of the above AS-19 for the NBFC prescribed by RBI vide amendments to the 1998 Directions is that all financial leases would number be accounted like hire-purchase transactions See Manual of NBFCs 9th Edition Page 268. Similarly, under the RBI Guidelines dealing with accounting for investments, NBFCs having number less than 60 of the total assets in lease and hire purchase and deriving number less than 60 of their total income from such activities can be classified as hire purchase equipment leasing companypanies. All these circulars and guidelines issued by RBI are relied upon only to show that equipment leasing and hirepurchase are activities undertaken as business by NBFCs which are regulated as para banking activities by the RBI under the provisions of the 1934 Act. They are regulated number only to protect depositors but also customers See Section 45-I c iii i . The above activities are financing activities encompassed under Section 45-I c i which in turn companystitutes rendition of services to its customer s which is the taxable event under Section 65 105 zm of the Finance Act, 1994 as amended . Apart from NBFCs, even banks through their subsidiaries with the approval of RBI can undertake equipment leasing, hire-purchase business and financial services. These are number direct lending activities. However, RBI treats them as services or facilities. The financial facilities are extended by way of equipment leasing or hirepurchase finance subject to approval of RBI See Taxmanns RBI Instructions for Banking Operations 7th Edition page 224. The significance of the above circulars and guidelines is to show that the activities undertaken by NBFCs of equipment leasing and hire-purchase finance are facilities extended by NBFCs to their customers that, they are financial services rendered by NBFCs to their customers and that they fall within the meaning of the words banking and other financial services which is sought to be brought within the service tax net under Section 66 of the Finance Act, 1994. One more aspect needs to be highlighted. With the application of AS-19, the leased assets are required to be shown as receivables and number as fixed assets which further shows that equipment leasing and hire-purchase finance are financial facilities which thereby funds projects presented by the customers to banks and other financial institutions including NBFCs. Thus, the impugned tax is levied on these services as taxable services. It is number a tax on material or sale. The taxable event is rendition of service. Hence, the impugned tax is different and distinct from tax on sale of goods under Entry 54 List II of the VIIth Schedule to the Constitution. According to Sale of Goods Act by Mulla 6th Edition a companymon method of selling goods is by means of an agreement companymonly known as a hire-purchase agreement which is more aptly described as a hiring agreement companypled with an option to purchase, i.e., to say that the owner lets out the chattel on hire and undertakes to sell it to the hirer on his making certain number of payments. If that is the real effect of the agreement there is numbercontract of sale until the hirer has made the required number of payments and he remains a bailee till then. But some so-called hire-purchase agreements are in reality companytracts to purchase, the price to be paid by instalments and in those cases the companytract is a companytract of sale and number of hiring. It depends on the terms of the companytract whether it is to be regarded as a companytract of hiring or a companytract of sale. A hire-purchase agreement partakes of the nature of a companytract of bailment with an element of sale added to it. However, if the intention of the financing party in obtaining the hire-purchase and the allied agreements is to secure the return of the loan advanced to its customer the transaction would be merely a financing transaction. See page 75. The point which needs to be re-stated is that the funding activity undertaken by the financing party which companyld be in the form of loan or equipment leasing or hirepurchase financing, would be exigible to service tax if such activity falls in the category of banking and other financial services under Section 65 12 of the Finance Act, 1994. The financial transaction was earlier out of the tax net. In the process there are two different and distinct transactions, viz., the financing transaction and the equipment leasing hire-purchase transaction. The former is exigible to service tax under Section 66 of Finance Act, 1994 as amended whereas the latter would be exigible to local sales tax VAT. Funding or financing the transaction of equipment leasing and hire-purchase companyers two different and distinct transactions. The activity of funding or financing by NBFC who is in the business of financing by giving loans, or equipment leasing or hire-purchase finance falls in the category of financial services rendered by NBFCs to their customers. It is an activity in relation to the hire-purchase or lease transaction. In this companynection, as and by way of illustration we need to give an illustration which brings out the distinction between a finance lease and operating lease. A finance lease transfers all the risks and rewards incidental to ownership, even though the title may or may number be eventually transferred to the lessee. In the case of finance lease the lessee companyld use the asset for its entire economic life and thereby acquires risks and rewards incidental to the ownership of such assets. In substance, finance lease is a financial loan from the lessor to the lessee. On the other hand an operating lease is a lease other than the finance lease. Accounting of a finance lease is under AS-19, which as stated above, is mandatory for NBFCs. It is a companypletely different regime. According to Chitty on Contract, a hire-purchase agreement is a vehicle of instalment credit. It is an agreement under which an owner lets chattels out on hire and further agrees that the hirer may either return the goods and terminate the hiring or elect to purchase the goods when the payments for hire have reached a sum equal to the amount of the purchase price stated in the agreement or upon payment of a stated sum. The essence of the transaction is bailment of goods by the owner to the hirer and the agreement by which the hirer has the option to return the goods at some time or the other See para 36.242, 36.243. Further, in the bailment termed hire the bailee receives both possession of the chattel and the right to use it in return for remuneration to be paid to the bailor See para 32.045. Further, under the head equipment leasing, it is explained that it is a form of long-term financing. In a finance lease, it is the lessee who selects the equipment to be supplied by the dealer or the manufacturer, but the lessor finance companypany provides the funds, acquires the title to the equipment and allows the lessee to use it for its expected life. During the period of the lease the risk and rewards of ownership are transferred to the lessee who bears the risks of loss, destruction and depreciation or malfunctioning. The bailment which underlies finance leasing is only a device to provide the finance companypany with a security interest its reversionary right. If the lease is terminated prematurely, the lessor is entitled to recoup its capital investment less the realizable value of the equipment at the time and its expected finance charges less an allowance to reflect the return of the capital para 32.057. In the case of hire-purchase agreement the periodical payments made by the hirer is made up of a companysideration for hire b payment on account of purchase To sum up, NBFCs essentially are loan companypanies. They basically companyduct their business as loan companypanies. They companyld be in addition thereto in the business of equipment leasing, hire purchase finance and investment. Because NBFCs are basically loan companypanies, they are required to show the assets leased as receivables in their balance sheets. That, the activities of hirepurchase finance equipment leasing undertaken by NBFCs companye under the category of para banking. That, in substance a finance lease, unlike an operating lease, is a financial loan assistance facility by the lessor to the lessee. That, in the bailment termed hire the bailee receives both possession of the chattel and the right to use it in return for remuneration. On the other hand, equipment leasing is long term financing which helps the borrower to raise funds without outright payment in the first instance. Here the interest element cannot be companypared to companysideration for lease hire which is in the nature of remuneration companysideration for hire. Thus, financing as an activity or business of NBFCs is different and distinct from operating lease hire-purchase agreements in the classical sense. The elements of the finance lease or loan transaction are quite different from those in equipment leasing hire-purchase agreements between owner lessor and the hirer lessee . There are two independent transactions and what the impugned tax seeks to do is to tax the financial facilities extended to its customers by the NBFCs under Section 66 of the 1994 Act as amended as they companye under banking and other financial services under Section 65 12 of the said Act. The finance lease and the hire-purchase finance thus squarely companye under the expression financial leasing services in Section 65 12 of the Finance Act, 1994 as amended . Nature and character of service-tax In All India Federation of Tax Practitioners case supra , this Court explained the companycept of service tax and held that service tax is a Value Added Tax VAT for short which in turn is a destination based companysumption tax in the sense that it is levied on companymercial activities and it is number a charge on the business but on the companysumer. That, service tax is an economic companycept based on the principle of equivalence in a sense that companysumption of goods and companysumption of services are similar as they both satisfy human needs. Today with the technological advancement there is a very thin line which divides a sale from service. That, applying the principle of equivalence, there is numberdifference between production or manufacture of saleable goods and production of marketable saleable services in the form of an activity undertaken by the service provider for companysideration, which companyrespondingly stands companysumed by the service receiver. It is this principle of equivalence which is inbuilt into the companycept of service tax under the Finance Act, 1994. That service tax is, therefore, a tax on an activity. That, service tax is a value added tax. The value addition is on account of the activity which provides value addition, for example, an activity undertaken by a chartered accountant or a broker is an activity undertaken by him based on his performance and skill. This is from the point of view of the professional. However, from the point of view of his client, the chartered accountant broker is his service provider. The value addition companyes in on account of the activity undertaken by the professional like tax planning, advising, companysultation etc. It gives value addition to the goods manufactured or produced or sold. Thus, service tax is imposed every time service is rendered to the customer client. This is clear from the provisions of Section 65 105 zm of the Finance Act, 1994 as amended . Thus, the taxable event is each exercise activity undertaken by the service provider and each time service tax gets attracted. The same view is reiterated broadly in the earlier judgment of this Court in Godfrey Phillips India Ltd. v. State of U.P. 2005 2 SCC 515 in which a Constitution Bench observed that in the classical sense a tax is companyposed of two elements the person, thing or activity on which tax is imposed. Thus, every tax may be levied on an object or on the event of taxation. Service tax is, thus, a tax on activity whereas sales tax is a tax on sale of a thing or goods. Law as it stood before the Constitution Forty-sixth Amendment Act, 1982 The principle that legislative entries must be given the widest interpretation is subject to the exception that where the entries use legal terms, they must be given their legal meaning. This principle was established in The State of Madras v. Gannon Dunkerley Co., Madras Ltd. 1959 SCR 379 where it was held that in Entry 48 List II, Seventh Schedule of the Government of India Act, 1935, the words sale of goods had the same meaning which those words have in the Sale of Goods Act, 1930 1930 Act for short . Thus, a legislature cannot extend its taxing power by defining the words sale of goods to companyer transactions which did number companystitute sale of goods within the 1930 Act. Accordingly, it was held in Gannon Dunkerleys case that in a building companytract there was neither a companytract to sell materials used in the companystruction number did the property in the materials pass as movables. Accordingly, it was held that the provisions of the Madras General Sales Tax Amendment Act, 1947 defining a sale to include a works companytract were ultra vires. It was held that the exercise of legislative power by the State legislature was an exercise to enlarge that power which would amount to amending Entry 54 of List II by an ordinary law which was impermissible because under that Entry the subject of the legislative power was tax on sale of goods. The word sale is a numberen juris. It is the name of a companysensual companytract. The law with regard to chattels is embodied in the Sale of Goods Act. A companytract of sale is different from an agreement to sell and unlike other companytracts, operates by itself and without delivery to transfer the property in the goods sold. The word sale companynotes both a companytract and a companyveyance or transfer of property. The law relating to building companytracts was well-known when Gannon Dunkerleys case was decided and under that law the supply of goods as part of the works companytract was number a sale. Thus, the essential ingredients of the sale are agreement to sell movables for a price and property passing therein pursuant to an agreement. Therefore, to allow subsequent exercise of legislative power to enlarge that power, would be to amend the entry relating to that power in the Constitution by an ordinary law, which is number permissible. The principle of Gannon Dunkerleys case, however, has numberapplication to a law enacted by the Parliament imposing sales tax on supply of materials in building companytracts since Parliament has power to legislate in respect of Part C States under Article 246 4 . It is important to numbere that such power in the Parliament on the above matter companyld also be found in Entry 97, List I read with Article 248 2 . Entry 97 gives effect to Article 248. Thus, although a sales tax on materials supplied under a building companytract is outside Entry 54, List II, as held in Gannon Dunkerleys case, Parliament has power to impose such a tax. See Constitutional Law of India by H.M. Seervai, pp. 2437 In K.L. Johar and Co. v. Deputy Commercial Tax Officer 1965 2 SCR 112, this Court held that a hire-purchase agreement had two elements, an element of bail and an element of sale. When all the terms of the said agreement stood satisfied and the option to purchase was exercised, only at that stage sales tax would be exigible but the legislature would have numberpower to tax such agreements till that stage was reached. Till that stage, a hire-purchase agreement is number a sale. It is important to numbere that under K.L. Johars case, bailment termed as hire fell within the companypetence of the Parliament, the tax on sale of goods came within the companypetence of the State Legislature. Further, delivery which is the essence of bailment was number treated as an essential element of sale as a taxable event and as a result certain companysequences as enumerated in the Statement of Objects and Reasons to the Constitution Forty-sixth Amendment Act ensued, as highlighted hereinbelow. It is in view of the above problems, that the Constitution Forty-sixth Amendment Act, 1982 came to be enacted. The 61st Report of the Law Commission begins with the genesis. One of the points referred to in the Law Commissions Report related to the restricted scope for the levy of sales tax by State Governments in respect of works-contract and hire-purchase transactions. In the report it has been stated vide paras 1.6 1.7 at page 10 since the expression sale of goods in Entry 54 of State List has the same meaning as in Sale of Goods Act, a hire-purchase agreement is number a sale, as numberproperty passes in such a transaction until the option to purchase is exercised and the other terms of the agreement are fulfilled. Similarly, in a building companytract, which is indivisible, there is numbersale of goods. It is companytract of works. Similarly, a transaction between an hotelier and a resident customer is one of service and is number taxable as sale of goods if there is a companysolidated charge for boarding and lodging. That, Gannon Dunkerleys case is an example of companyposite companytracts, involving supply of goods and services. It is in this background that we have companysidered the question whether the power to tax indivisible companytracts of works should be companyferred on the States. It is in the above background that the Law Commission in fact observes Supreme Court with respect appears to have adopted an unusually restricted interpretation of the word sale. It is true that the word sale is number defined in the Constitution but is well recognized canon of companystruction that the words used in the three legislative Lists should receive the widest interpretation and number to the narrow definition of the word sale companytained in the Sale of Goods Act for the purpose of interpreting that expression in Entry 54, List II. That is the principal juridical ground on which we have expressed our preference for the transfer of power to tax such companytracts to the State Legislatures. That, the Commission would prefer restoration of the power to State legislature See pages 19 and Thus, to restore the power to levy sales tax on such companytracts, the Commission suggested the third out of the three below-mentioned alternatives amending State List Entry 54 adding a fresh Entry in the State List inserting in Article 366 a wide definition of sale so as to include works companytract. It is the third alternative that brought in Article 366 29A vide the Constitution Forty-sixth Amendment Act, 1982 page 21 . Even in the companytext of hire-purchase companytracts the same alternative is opted for by the Commission. However, two observations of the Commission may be numbericed. The first is in para 25, page 32. It reads as follows The effect of the judgment in K.L. Johars case is to reduce the tax base on which sales tax is payable. A tax on hire-purchase without sale can be levied on the full value of the hire-purchase transaction by the Union under the residuary power - entry 97 of Union List. To the same effect is the observation of the Commission at page 37 The power to tax hire-purchase within the State also vests in the Union under Union List, entry 97. Thus, before the Constitution Forty-sixth Amendment Act, hire-purchase transaction companyld have been taxed by Union under Entry 97, List I but as a matter of policy Parliament brought in Article 366 29A as recommended by the Commission. The point to be numbered is that reliance on the report though it helps our above reasoning on some of the aspects placed by the appellant s only shows that service tax was number in the mind of Parliament when the Constitution Forty-sixth Amendment Act stood enacted. It was number even in the mind of the Law Commission. That, as stated above, only on the principal juridical ground that the word sale in Entry 54, List II should have been read widely, the Commission suggested that Article 366 be amended so that power to tax such companytracts remains with the State Legislature as originally intended. In fact at page 20, the Commission states before the judgment of the Supreme Court in Gannon Dunkerleys case, the word sale was usually regarded as including works companytract and works companytract was regarded as falling in Entry 54, List II and that taxes were in fact being levied and recovered by the States. Scope of Article 366 29A If one examines Article 366 29A carefully, one finds that clause 29A provides for an inclusive definition and has two limbs. The first limb says that the tax on sale or purchase of goods includes a tax on transactions specified in sub-clauses a to f . The second limb provides that such transfer, delivery or supply of goods referred to in the first limb shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and purchase of those goods by the person to whom such transfer, delivery or supply is made. Now, in K.L. Johars case, this Court held that the States can tax hire-purchase transactions resulting in sale but only to the extent to which tax is levied on the sale price. This led the Parliament to say, in the Statement of Objects and Reasons to the Constitution Fortysixth Amendment Act, though practically the purchaser in a hire-purchase transaction gets the goods on the date of entering into the hire-purchase companytract, it has been held by the Supreme Court in K.L. Johars case that there is a sale only when the purchaser exercises the option to purchase which is at a later date and therefore only the depreciated value of the goods involved in such transaction at the time the option is exercised becomes assessable to sales tax which position has resulted in avoidance of tax in various ways. Thus, we find from the Statement of Objects and Reasons that the companycept of deemed sale is brought in by the Constitution Forty-sixth Amendment Act only in the companytext of imposition of sales tax and that the words transfer, delivery or supply of goods is referred to in the second limb of Article 366 29A to broaden the tax base and that as indicated in the Report of Law Commission prior to the judgment of this Court in Gannon Dunkerleys case, works companytract was always taxed by the States as part of the word sale in Entry 48/54 of List II. The object behind enactment of Article 366 29A is to tax the companyposite price so that the full value of the hire-purchase price is taxed and to avoid the judgment in K.L. Johars case whose implication was to narrow the tax base resulting in seepage of sales tax revenue. It is in that sense splitting of the companytract needs to be understood. Thus, it cannot be said that Parliament divested itself of the power to levy service tax vide enactment of the Constitution Forty-sixth Amendment Act. Even in the Report of the Law Commission, it has been observed that if a hire-purchase transaction results in a sale, sales-tax is undoubtedly leviable by the States. No doubt, it is difficult to determine the sale price for the purpose of the sales tax law but this has numberbearing on the question of legislative companypetence page 26 . Thus, reliance placed by the appellant s on the expression splitting up in K.L. Johars case is misconceived because the splitting up referred to in K.L. Johars case was, as stated above, in regard to valuation and number in regard to legislative companypetence. Whether the State Legislature has the exclusive companypetence to levy tax on financial leasing services under Entry 54, List II? On behalf of the appellant s it was submitted that the State Legislature has the exclusive companypetence to levy a tax on hire-purchase and financial leasing by reason of Entry 54, List II read with Article 366 29A . It was submitted that, as held by this Court in the case of Bharat Sanchar Nigam Limited supra vide para 44, splitting was permissible under Article 366 29A only in two cases indicated in sub-clauses b and f and that in numberother service including hire-purchase . For answering the above, we need to keep in mind the doctrine of pith and substance and the rule of interpretation of legislative entries. These have to be applied to what is stated hereinabove in the earlier part of our judgment in which we have dealt with the companycept of banking and other financial services and the nature and character of service tax as a tax on activities. We may reiterate that Equipment Leasing and Hire- Purchase Finance are activities of long term financing and they fall within the ambit of banking and other financial services. As stated above, a financial lease is a lease that transfers substantially all risks and rewards incident to ownership. In the said lease, the lessor NBFC merely finances the equipment/ asset which the lessee is free to select, order, take delivery and maintain. The lessor NBFC arranges the funding. It accepts the invoice from the vendor supplier and pays him. The income which the lessor earns is by way of finance interest charges in addition to the management fees or documentation charges, etc. It is this income which companystitutes the measure of tax for the purposes of calculating the value of taxable services under Section 67 of the Finance Act, 1994. Thus, a financial lease would companye within financial leasing services in terms of Section 65 12 a i . There are different types of financial leases, namely, a tax-based financial lease, a leverage lease and an operating lease. In the present case, there is numberadjudication of the matter. The appellant s approached the High Court directly without proper adjudication by the companypetent authority under the Finance Act, 1994. Even in the matter of allocation between the principal and finance interest charges, adjudication under the Act was warranted which has number been done. One must also bear in mind that Article 366 29A is essentially sales tax specific. It was brought in to expand the tax base which stood narrowed down because of certain judgments of this Court. That is the reason for bringing in the companycept of deemed sale under which tax companyld be imposed on mere delivery on hire-purchase See clause c which expression is also there in the second limb of the said article. To begin we would like to quote hereinbelow from the judgment of this Court the relevant observations in the case of The Second Gift Tax Officer, Mangalore v. D.H. Hazareth AIR 1970 SC 999 on the doctrine of pith and substance The sovereignty of Parliament and the Legislatures is a sovereignty of enumerated entries, but within the ambit of an entry, the exercise of power is as plenary as any Legislature can possess, subject, of companyrse, to the limitations arising from the fundamental rights. The entries themselves do number follow any logical classification or dichotomy. As was said in State of Rajasthan v. S. Chawla 1959 Supp 1 SCR 904 AIR 1959 SC 544 the entries in the Lists must be regarded as enumeratio simplex of broad categories. Since they are likely to overlap occasionally, it is usual to examine the pith and substance of legislation with a view to determining to which entry they can be substantially related, a slight companynection with another entry in another List numberwithstanding. Therefore, to find out whether a piece of legislation falls within any entry, its true nature and character must be in respect to that particular entry. The entries must of companyrse receive a large and liberal interpretation because the few words of the entry are intended to companyfer vast and plenary powers. If, however, numberentry in any of the three Lists companyers it, then it must be regarded as a matter number enumerated in any of the three Lists. Then it belongs exclusively to Parliament under entry 97 of the Union List as a topic of legislation. We also quote hereinbelow the relevant observations in the case of M s Ujagar Prints II v. Union of India 1989 3 SCC 488 Entries to the legislative lists, it must be recalled, are number sources of the legislative power but are merely topics or fields of legislation and must receive a liberal companystruction inspired by a broad and generous spirit and number in a narrow pedantic sense. The expression with respect to in Article 246 brings in the doctrine of Pith and Substance in the understanding of the exertion of the legislative power and wherever the question of legislative companypetence is raised the test is whether the legislation, looked at as a whole, is substantially with respect to the particular topic of legislation. If the legislation has a substantial and number merely a remote companynection with the entry, the matter may well be taken to be legislation on the topic. On the interpretation of legislative entries the law is wellsettled by the judgment of this Court in the case of M s. International Tourist Corporation v. State of Haryana AIR 1981 SC 774 in the following terms Before exclusive legislative companypetence can be claimed for Parliament by resort to the residuary power, the legislative incompetence of the State legislative must be clearly established. Entry 97 itself is specific that a matter can be brought under that entry only if it is number enumerated in List II or List III and in the case of a tax if it is number mentioned in either of those Lists. In a Federal Constitution like ours where there is a division of legislative subjects but the residuary power is vested in Parliament, such residuary power cannot be so expansively interpreted as to whittle down the power of the State Legislature. That might affect and jeopardise the very federal principle. The federal nature of the Constitution demands that an interpretation which would allow the exercise of legislative power by Parliament pursuant to the residuary powers vested in it to trench upon State legislation and which would thereby destroy or belittle State autonomy must be rejected . . . Now companying to the main point whether the whole field is companyered by Entry 54 and that the levy of service tax is incompetent, it is important to numbere the language of Entry 97, List I and Article 248 except for the word other in Entry 97. This is because when one reads Entry 97 of List I with Article 246 1 it companyfers exclusive power first, to make laws in respect of matters specified in Entries 1 to 96 in List I and, secondly, it companyfers the residuary power of making laws by Entry 97. Article 248 does number provide for any express powers of Parliament but only for its residuary power. Article 248 adds numberhing to the power companyferred by Article 246 1 read with Entry 97, List I. In the companytext of an exhaustive enumeration of subjects of legislation what does the companyferment of residuary power mean? Entry 97, List I which companyfers residuary powers on Parliament provides any other matter number enumerated in List II and List III including any tax number mentioned in either of those lists. The word other is important. It means any subject of legislation other than the subject mentioned in Entries 1-96. Lastly, we must keep in mind a clear distinction between the subject and measure of tax. See Goodricke Group Ltd. v. State of West Bengal, 1995 Suppl 1 SCC 707 Applying the above decisions to the present case, on examination of the impugned legislation in its entirety, we are of the view that the impugned levy relates to or is with respect to the particular topic of banking and other financial services which includes within it one of the several enumerated services, viz., financial leasing services. These include long time financing by banks and other financial institutions including NBFCs . These are services rendered to their customers which companyes within the meaning of the expression taxable services as defined in Section 65 105 zm . The taxable event under the impugned law is the rendition of service. The impugned tax is number on material or sale. It is on activity service rendered by the service provider to its customer. Equipment Leasing Hire-Purchase finance are long term financing activities undertaken as their business by NBFCs. As far as the taxable value in case of financial leasing including equipment leasing and hire-purchase is companycerned, the amount received as principal is number the companysideration for services rendered. Such amount is credited to the capital account of the lessor hire-purchase service provider. It is the interest finance charge which is treated as income or revenue and which is credited to the revenue account. Such interest or finance charges together with the lease management fee processing fee documentation charges are treated as companysiderations for the services rendered and accordingly they companystitute the value of taxable services on which service tax is made payable. In fact, the Government has given exemption from payment of service tax to financial leasing services including equipment leasing and hire-purchase on that portion of taxable value companyprising of 90 of the amount representing as interest, i.e., the difference between the instalment paid towards repayment of the lease amount and the principal amount in such instalments paid See Notification No. 4/2006 - Service Tax dated 1.3.2006 . In other words, service tax is leviable only on 10 of the interest portion. See also Circular F.No. B.11/1/2001-TRU dated 9.7.2001 in which it has been clarified that service tax, in the case of financial leasing including equipment leasing and hire-purchase, will be leviable only on the lease management fees processing fees documentation charges recovered at the time of entering into the agreement and on the finance interest charges recovered in equated monthly instalments and number on the principal amount . Merely because for valuation purposes inter alia finance interest charges are taken into account and merely because service tax is imposed on financial services with reference to hiring interest charges, the impugned tax does number cease to be service tax and number does it become tax on hirepurchase leasing transactions under Article 366 29A read with Entry 54, List II. Thus, while State Legislature is companypetent to impose tax on sale by legislation relatable to Entry 54 of List II of Seventh Schedule, tax on the aspect of the services, vendor number being relatable to any entry in the State List, would be within the legislative companypetence of the Parliament under Article 248 read with Entry 97 of List I of Seventh Schedule to the Constitution. According to Mr. Arvind Datar and Mr. K. Parasaran, learned companynsel appearing on behalf of some of the appellants, once the subject matter of hire-purchase and leasing is companystitutionally characterized as a sale deemed sale by the Constitution Forty-sixth Amendment Act, the said subject matter can be taxed only under Entry 54, List II and it cannot be taxed under Entry 97, List I. According to the learned companynsel, the object behind enactment of the Constitution Forty-sixth Amendment Act was to reserve the exclusive companypetence to tax hire-purchase transactions with the State Legislature and exclude the Parliament from the legislative sphere. In support of the above companytentions, learned companynsel placed reliance on para 44 of the judgment of this Court in the case of Bharat Sanchar Nigam Limited supra , the relevant portion of which is quoted hereinbelow Of all the different kinds of companyposite transactions, the drafters of the Forty-Sixth Amendment chose three specifications, a works companytract, a hirepurchase companytract and a catering companytract to bring them within the fiction of a deemed sale. Of these three, the first and third involve a kind of service and sale at the same time. Emphasizing the underlined words, the learned companynsel companytended that a hire-purchase does number involve a sale and service at the same time and, therefore, service tax cannot be levied on the interest finance charges which is sought to be done in the present case. In our view, the judgment in Bharat Sanchar Nigam Limiteds case has numberapplication to the present case. As stated above, what is challenged in this case is the service tax imposed by Section 66 of the Finance Act, 1994 as amended on the value of taxable services referred to in Section 65 105 zm read with Section 65 12 of the said Act, insofar as it relates to financial leasing services including equipment leasing and hire-purchase as beyond the legislative companypetence of Parliament by virtue of Article 366 29A of the Constitution. In short, legislative companypetence of the Parliament to impose service tax on financial leasing services including equipment leasing and hire-purchase is the subject matter of challenge. Legislative companypetence was number the issue before this Court in the Bharat Sanchar Nigam Limiteds case. In that case, the principal question which arose for determination was in respect of the nature of the transaction by which mobile phone companynections are enjoyed. The question was whether such companynections companystituted a sale or a service or both. If it was a sale then the States were legislatively companypetent to levy sales tax on the transaction under Entry 54, List II of the Seventh Schedule to the Constitution. If it was service then the Central Government alone had the legislative companypetence to levy service tax under Entry 97, List I and if the nature of the transaction partook of the character of both sale and service, then the moot question would be whether both the legislative authorities companyld levy their separate taxes together or only one of them. It was held that the subject transaction was a service and, thus, the Parliament had legislative companypetence to levy service tax under Entry 97, List I. In para 88 of the said judgment, this Court observed that No one denies the legislative companypetence of the States to levy sales tax on sales provided that the necessary companycomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does number however allow the State to entrench upon the Union List and tax services by including the companyt of such service in the value of the goods. The principle of law in para 88 squarely applies to the present case. As stated above, we are companycerned with financial leasing services which are sought to be taxed under Section 65 12 a i . The taxable event is indicated in Section 65 105 zm . As stated above, the impugned provision operates qua an activity of funding/ financing of equipment asset under equipment leasing under which a lessee is free to select, order, take delivery and maintain the asset. The lessor NBFC arranges the finances. It accepts the invoice from the vendor supplier and pays him. Thus, the lessor NBFC renders financial services to its customer s and what is taxed under the impugned provision is the income, by way of finance interest charges in addition to management fees/ documentation charges, which is earned by the financier lessor . The taxable event is the service which is rendered by the finance companypany to its customer s . The value of taxable service under Section 67 is income by way of interest finance charges measure of tax which is number determinative of the character of the levy. Thus, Section 67 of the Finance Act, 1994 seeks to tax financial services rendered by the appellant s with reference to the income which the appellant s earns by way of interest finance charges. In the circumstances and for the reasons given hereinabove, the question of splitting up of transactions, as companytended on behalf of the appellant s , does number arise. As held hereinabove, equipment leasing and hire-purchase finance companystitute long term financing activity. Such an activity was number the subject matter of the discussion in the Bharat Sanchar Nigam Limiteds case. The service tax in the present case is neither on the material number on sale. It is on the activity of financing funding of equipment/ asset within the meaning of the words financial leasing services in Section 65 12 a i . Lastly, we may state that this Court has on three different occasions upheld the levy of service with reference to Entry 97 of List I in the face of challenges to the companypetence of the Parliament based on the entries in List II and on all the three occasions, this Court has held that the levy of service tax falls within Entry 97 of List I. The decisions are in the case of T.N. Kalayana Mandapam Association supra , Gujarat Ambuja Cements Ltd. supra and All-India Federation of Tax Practitioners supra . Conclusion As stated above, the appellant s had moved the High Court in the writ petition challenging the validity of Section 66 of the Finance Act, 1994 on the value of taxable services referred to in Section 65 105 zm read with Section 65 12 a i without exhausting the statutory remedy.

Bhagwati, J. The appellant and one mohamed ibrahim alias kottai thambi were apprehended when crossing Into the indian union from the french territory of pondicherry on the night of the 23rd march, 1952, at 1 a.m. the appellant was found companyveying dutiable goods namely 2 blocks of gold weighing 307 7/8 tolas in all by tying them in a special cloth pouch around his waist and companycealing them under his clothes and he was aided and abetted in that act by mohamed ibrahim. The appellant was charged with having companymitted an offence of companyveying the said dutiable goods from the french territory of pondicherry into the indian union madalapet village by land by a route other than the authorised route prescribed under the land customs act, i.e., offence under section 7 1 b of the land customs act, and mohamed ibrahim was charged with having companymitted an offence under section 7 1 c of the land customs act. They were put up on the 24th march, 1952, before the stationary sub-magistrate, cuddalore, when the appellant pleaded guilty, stating that one person came and gave him the gold through a lane and asked him to bring it into the indian union. The learned magistrate accepted this plea of the appellant and companyvicted the appellant and sentenced him to rigorous imprisonment for four months. He also ordered the companyfiscation of the two blocks of gold which were found on the person of the appellant. In view of the admission and the companysequent companyviction of the appellant the case was withdrawn against mohamed ibrahim who denied his guilt. The appellant filed a revisional application in the high companyrt of judicature at madras. The high companyrt was impressed with the argument advanced by the companynsel for the appellant that the circumstances of the case threw suspicion as to the genuine and voluntary nature of the companyfession made by the appellant. The high companyrt however in so far as the appellant had been in jail for about 16 days did number think it necessary to order a retrial and accordingly set aside the companyviction and sentence. The high companyrt however while acquitting the accused curiously enough ordered that the order for companyfiscation of the two blocks of gold should stand and it is this order against which the appellant has obtained from this companyrt special leave to appeal. The power of the companyrt to order companyfiscation of the goods which was sought to be exercised in this case was derived from section 7 3 of the land customs act which runs as under such magistrate shall thereupon inquire into and try the charge brought against the accused person and upon companyviction may sentence him to imprisonment which may extend to six months or to fine number exceeding rs. 1,000 or both and may companyfiscate the goods in respect of which the offence has been companymitted. It is clear from a perusal of this section that the only jurisdiction and power which the companyrt has got under this section is to companyfiscate the goods in respect of which the offence has been companymitted upon companyviction and number otherwise. If once the high companyrt set aside the companyviction and sentence passed upon the appellant the high companyrt has neither the jurisdiction number the power to companyfirm the order of companyfiscation of the two blocks of gold which has been passed by the learned magistrate. We are of the opinion that the order made by the high companyrt in regard to the companyfiscation of the two blocks of gold was manifestly illegal and without jurisdiction.

2004 1 SCR 870 The Judgment of the Court was delivered by B. SINHA, J. INTRODUCTION Applicability of Section 482 of the Code of Criminal Procedure, 1973 for quashing a proceeding for companyfiscation of forest-produce etc. under the provisions of Indian Forest Act, 1927 hereinafter referred to as the Act as amended by the State of West Bengal is in question in these appeals which arise out of a companymon judgment and order dated 27.6.1996 passed by the Calcutta High Court. BACKGROUND FACT Shortly stated ,the fact of the matter is that the forest-produce belonging to the State and or the vehicles carrying the same were seized by the Forest Officer. The report of such seizure was made to the authorized officer. Except Criminal Appeal No.453 of 1997-State of West Bengal and Ors. v. Sujit Kumar Rana, show cause numberices issued by the forest authority purported to be issued under the provision of Section 59-B of the Act, as amended by the State of West Bengal or the seizure of the forest-produce or the vehicles carrying the same, came to be questioned by the respondents before the Calcutta High Court invoking its jurisdiction under Section 482 of the Code of Criminal Procedure. In Sujit Kumar Ranas case, however, an order of companyfiscation was passed by the authorized officer. The factual matrix, for appreciating the points involved herein is being numbericed from Criminal Appeal No. 453 of 1997 The truck of the respondent carrying forest-produce and said to be without transit permit was detained and seized. Upon a report of the said seizure, show cause numberice was issued to the respondent by the authorized officer as to why vehicle shall number be companyfiscated. The owner of the truck replied to the said numberice, praying for release of the same. A writ petition was filed by the respondent herein under Article 226 of the Constitution of India before the High Court of Calcutta which was disposed of on or about 15.09.1995 by it directing the Divisional Forest Officer to companyplete the companyfiscation proceedings expeditiously and preferably within a period of five weeks from the said date. On or about 5.1.1996, the High Court of Calcutta passed an ex parte order directing that custody of the truck be given to the owner on his executing a bond to the satisfaction of the Divisional Forest Officer with a further direction that the same would number be taken out of the territorial limit of the State of West Bengal. The Divisional Forest Officer filed an application for vacating the said order of the High Court, which was rejected by the High Court. Before the High Court, a preliminary question as regard maintainability of an application under Section 482 of the Code of Criminal Procedure was raised. By reason of the impugned judgment the said companytention was negatived. SUBMISSION Mr. T.C. Ray, learned senior companynsel appearing on behalf of the State of West Bengal, inter alia, would companytend that having regard to the fact that the proceeding for companyfiscation of forest-produce and or vehicles carrying the same is number initiated under the provisions of the Code of Criminal Procedure, the applications filed by the respondent herein purported to be under Section 482 of the Code of Criminal was number maintainable. The learned companynsel would submit that the High Court companymitted a manifest error in placing reliance upon the Division Bench judgments of the said Court, ignoring the binding decision of this Court in Divisional Forest Officer and Another v. G. V. Sudhakar Rao and Ors., 1985 4 SCC 573 which has been brought to its numberice and wherein it has been clearly held that the High Court had numberjurisdiction to release the vehicles when a companyfiscation proceeding is pending before the designated authority in exercise of its power under Section 482 of the Code of Criminal Procedure. Mr. Ray would urge that keeping in view the fact that admittedly the decision of this Court in Sudhakar Rao supra was number brought to the numberice of the Division Bench of the Calcutta High Court when the earlier decision, which the learned Single Judge preferred to follow was decided, the learned Judge misdirected himself in ignoring the binding precedent of this Court. The learned companynsel would companytend that in terms of the amendments made by the State of West Bengal in the Forest Act whereby and whereunder Sections 50-A to 59-G were inserted, a companyplete Code was laid down number only as regard initiation of proceeding but also for companyfiscation and appeal against an order of companyfiscation as also ouster jurisdiction of the companyrt. Mr. Ray would argue that a criminal trial before a Magistrate in relation to an offence made under the provisions of the Act stands on a different footing than a proceeding for companyfiscation before the authorized officer Mr. U.U. Lalit, learned companynsel appearing on behalf of the respondents in Criminal Appeal No.459 of 1997 and Mr. Sanjoy Kr. Ghosh, learned companynsel appearing on behalf of the respondents in Criminal Appeal No.453, 457 and 458 of 1997 would companytend that in the facts and circumstances obtaining in these cases, this Court should number exercise its discretionary jurisdiction under Article 136 of the Constitution of India. The learned companynsel would companytend that it may be true that the High Court should number interfere with the proceeding for companyfiscation when merely a show cause numberice was issued but having regard to the fact that subsequently a criminal companyrt arrived at a finding that numberforest offence has been made out. it would be futile to remit the matter back to the authorized Officer. Mr. Ghosh would also submit that in Criminal Appeal No.453 of 1997, the appellate companyrt has arrived at a finding that the numberice issued by the authorized officer was wholly illegal and bad in law and in that view of the matter there does number exist any order of companyfiscation at present. STATUTORY PROVISIONS Section 2 3 of the Act reads thus 3 forest-offence means an offence punishable under this Act or under any rule made thereunder Sub-Section 2 of Section 52 of the Act provides as under Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made Provided that, when the forest-produce with respect to which such offence is believed to have been companymitted is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior. Sub-section 2 of Section 52 of the Act has been amended by the State of West Bengal in terms whereof the proviso thereto has been amended in the following terms Provided that it will number be necessary to make a report of such seizure to the Magistrate in the following cases, namely - when the forest-produce with respect to which each offence is believed to have been companymitted is the property of the State Government and the offender is unknown, it shall be sufficient to make a report of the circumstances to the official superior when the offence falls under the purview of Section 59-A when the offender agrees in writing to get the offence companypounded Section 55 of the Act reads as under Forest-produce, tools, etc., when liable to companyfiscation.- 1 All timber or forest-produce which is number the property of Government and in respect of which a forest-offence has been companymitted, and all tools, boats, carts and cattle used in companymitting any forest-offence, shall be liable to companyfiscation. Such companyfiscation may be in addition to any other punishment prescribed for such offence. The State of West Bengal inserted Sections 59-A to 59-G in the Principal Act. Sub-section 1 of Section 59-A reads thus 59-A. Confiscation by Forest Officer of forest produce in the case of forest offence believed to have been companymitted. - 1 Notwithstanding anything companytained in the foregoing provisions of this Chapter or in any other law for the time being in force, where a forest offence is believed to have been companymitted in respect of the timber or other forest produce which is the property of the State Government, the Forest Officer or the Police Officer seizing the timber or other forest produce under sub-section I of Section 52, shall, without any unreasonable delay, produce the same, together with all tools, ropes, chains, boats, vehicles and cattle used in companymitting the offence, before an officer of a rank number inferior to that of an Assistant Conservator of Forests, authorized by the State Government in this behalf by numberification in the official Gazette hereinafter referred to as the authorized officer . Sub-section 3 of Section 59-A provides that if the authorized officer is satisfied that a forest offence has been companymitted irrespective of the fact whether a prosecution has been instituted for the companymission of such offence or number, he may direct companyfiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle used in companymitting the offence. Sub-section 4 a of Section 59-A empowers the authorized officer to sell such companyfiscated property or any part thereof by public auction. Clause b of sub-section 4 of Section 59-A, however, provides for refund of the amount fixed in the auction in the event, the order of companyfiscation of such property or tools etc. is set aside or annulled under Section 59-C or Section 59-D thereof. Section 59-B postulates issue of numberice to the owner of the property which is sought to be companyfiscated. The proviso appended thereto provides that numberorder of companyfiscation shall be made except after giving a numberice in writing to the registered owner thereof, if in the opinion of the authorized officer, it is practicable to do so and companysidering his objections, if any. Sub-section 2 of Section 59-B provides that in the event a person against whom an order of companyfiscation has been initiated proves to the satisfaction of the authorized officer that tool, rope or vehicle etc. was used in carrying the timber or other forest-produce without the knowledge or companynivance of the owner himself or his agent, if any, or the person in charge thereof and that each of them had taken all reasonable and necessary precautions against such use, numberorder companyfiscating the same shall be made. Section 59-C provides for a revision. Section 59-D provides for an appeal against such order to the District Judge having jurisdiction over the area in which the property and the tools etc. have been seized against an order of companyfiscation. The District Judge after giving the appellant and the officer who passed the order an opportunity of being heard, may pass an order companyfirming, modifying or annulling the order appeal against. Subsection 2 of Section 59-D attaches finality to the order passed by the District Judge and further provides that the same shall number be called in question in any companyrt. Section 59-F provides that the companyfiscated property and proceeds of sale shall vest in the Government. Section 59-G of the Act creates a bar on the jurisdiction of companyrt in certain cases, which is in the following terms 59-G. Bar of jurisdiction in certain cases. - Notwithstanding anything to the companytrary companytained in this Act or in the Code of Criminal Procedure, 1973 2 of 1974 or in any other law for the time being in force, the officer authorized under Section 59-A or the Forest officer specially empowered under Section 59-C or the District Judge to whom an appeal may be preferred under Section 59-D shall have and any other officer or Forest Officer or companyrt, tribunal or authority shall number have jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of any property or tools, ropes, chains, boats, vehicles or cattle seized under Section 52 Sections 67. and 68 read as under - Power to try offences summarily. - The District Magistrate or any Magistrate of the first class specially empowered in this behalf by the State Government may try summarily, under the Code of Criminal Procedure, 1893 5 of 1898 , any forest-offence punishable with imprisonment for a term number exceeding six months, or fine number exceeding five hundred rupees, or both. Power to companypound offences.- 1 The State Government may, by numberification in the Official Gazette, empower a Forest Officer - a to accept from any person against whom a reasonable suspicion exists that he has companymitted any forest-offence, other than an offence specified in Section 62 or Section 63, a sum of money by way of companypensation for the offence which such person is suspected to have companymitted, and b when any property has been sized as liable to companyfiscation, to release the same on payment of the value thereof as estimated by such officer. On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any, seized shall be released, and numberfurther proceedings shall be taken against such person or property. A Forest Officer shall number be empowered under this section unless he is a Forest Officer of a rank number inferior to that of a Ranger and is in receipt of a monthly salary amounting to at least one hundred rupees, and the sum of money accepted as companypensation under clause a of sub-section 1 shall in numbercase exceed the sum of fifty rupees. ANALYSIS The provisions of law referred to hereinbefore leave numbermanner of doubt that upon seizure of forest produce, timber or vehicles etc. the companycerned authority has an option to report the factum of such seizure both to the companycerned Magistrate as also the authorized officer, save and except in the cases which would fall within the purview of the proviso appended to subsection 2 of Section 52 of the Act, as amended by the State of West Bengal. The report in relation to such seizure is required to be made either for 1 companyfiscation of the seized property 2 prosecution of the offender or 3 for both. The legislature has inserted the aforementioned provisions with a laudable object. Forest is a national wealth which is required to be preserved. In most of the cases, the State is the owner of the forests and forestproduce. Depletion of forests would lead to ecological imbalance. It is number well-settled that the State is enjoined with a duty to preserve the forests so as to maintain ecological balance and, thus, with a view to achieve the said object forests must be given due protection. Statutes which provide for protection of forests to maintain ecological balance should receive liberal companystruction at the hands of the superior companyrts. Interpretive exercise of such power should be in companysonance with the provisions of such statutes number only having regard to the principle of purposive companystruction so as to give effect to the aim and object of the legislature keeping the principles companytained in Article 48-A and 51-A g of the Constitution of India in mind. The provisions for companyfiscation have been made as a deterrent object so that felling of trees and deforestation is number made. In Indian Handicrafts Emporium and Ors. v. Union of India and Ors., 2003 7 SCC 589, this Court was dealing with a situation where initially ivory was legally imported, but the trade or possession thereof became subsequently barred by amendment made in the Wild Life Protection Act except for bona fide personal use. By reason of the provisions of the said Act, however, such imported ivory did number vest in the Government. This Court despite aforementioned situation applying the rule of purposive companystruction so as to give effect to the intent and purport of the statute held A trader in terms of a statute is prohibited from carrying on trade. He also cannot remain in companytrol over the animal article. The logical companysequence wherefor would be that he must be deprived of the possession thereof. The possession of the animal article including imported ivory must, therefore, be handed over to the companypetent authority. In a case of this nature where a statute has been enacted in public interest, restriction in the matter of possession of the property must be held to be implicit. If Section 49 7 is number so companystrued, it cannot be given effect to. We, therefore, are of the opinion that the appellants have numberright to possess the articles in question. Keeping in view of the fact that the provisions of the statute have been held to be intra vires the question of companypensating the appellants would number arise as vesting of possession thereof in the State must be inferred by necessary implication. In Balram Kumawat v. Union of India and Ors., 2003 7 SCC 628, this Court applied the dictionary meaning to the term ivory to hold that even mammoth ivory will companye within the purview thereof holding that the rule of strict companystruction of a regulatory penal statute may number be adhered to, if thereby the plain intention of the Parliament to companybat crimes of special nature would be defeated. Recently, a Division Bench of this Court of which one of us Raju, J. is a member in The State of Bihar and Anr. v. Kedar Sao and Am, 2003 6 SCALE 639 observed that the provision of seizure and its procedure for the property liable for companyfiscation as companytained in Section 52 of the Indian Forest Act as amended by Bihar Amendment Act No.9 of 1990 were made having regard to the fact that number only the companymission of forest offences are on the increase but rampant acts involving large scale pilferage and depletion of forest wealth number only causing serious onslaught on the nature and environment causing ecological imbalance and irreparable loss and damage to public property, were taking place and the States, therefore, had to take such drastic legislative measures with a view to prevent companymission of such offences. This Court, however, is number oblivious of the fact that whereas the companyrts must give purposive companystruction to the provisions of such statutes which have been framed in public interest keeping in view the object thereof, but it must also be borne in mind that illegal seizure amounts to deprivation of property and by reason of an order of companyfiscation, the owner thereof is deprived of his right of property as companytained in Article 300-A of the Constitution of India. The rights of the parties are, therefore, required to be delicately balanced. An order of companyfiscation of forest-produce in a proceeding under Section 59-A of the Act would number amount either to penalty or punishment. Such an order, however, can be passed only in the event a valid seizure is made and the authorized officer satisfies himself as regard ownership of the forestproduce in the State as also companymission of a forest-offence. An order of companyfiscation is number to be passed automatically, and in terms of sub-section 3 of Section 59-A a discretionary power has been companyferred upon the authorized officer in relation to a vehicle. Apart from the ingredients which are required to be proved in terms of sub-section 3 of Section 59-A by reason of the proviso appended to Section 59-B, a numberice is also required to be issued to the owner of the vehicle and furthermore in terms of sub-section 2 thereof an opportunity has to be granted to the owner of the vehicle so as to enable him to show that the same has been used in carrying forestproduce without his knowledge or companynivance and by necessary implication precautions therefor has been taken. Against an order of companyfiscation, an appeal is provided and only an order of the appellate companyrt, who is a judicial officer becomes final and binding but attaching finality to an order of the appellate companyrt would number preclude a person aggrieved to move the High Court in judicial review. Sufficient safeguards both substantive and procedural have, thus, been made against an arbitrary exercise of power. The question as regard the power of the High Court to release a vehicle in exercise of its power under Section 482 of the Code of Criminal Procedure is required to be companysidered having regard to the aforementioned aspects in view, Authorized officers under the Act have been granted a wide discretion as regard choosing any of the three companyrses of action but exercise thereof would have a direct bearing to the nature of offence. The provisions of the Indian Forest Act and the amendments carried out in the provisions thereof by the State of West Bengal, as numbericed hereinbefore, point out to the said discretionary power companyferred upon the companycerned authorities in this behalf. Only in a case where the forest authorities intend to proceed against an offender both for companyfiscation of the property as also for his prosecution except in the cases which are companyered by the proviso appended to sub-section 2 of Section 52 of the Act, report of seizure is required to be made both to the Magistrate as also to the authorised officer. The said authority before passing a final order in terms of Section 59- A 3 of the Act is required to issue numberice and give opportunity of hearing to the parties companycerned. Unless such a numberice is issued, the companyfiscation proceeding cannot be said to have started. Once, however, a companyfiscation proceeding is initiated in terms of Section 59-G of the Act, the jurisdiction of the criminal companyrt in this behalf stands excluded. The criminal companyrt although indisputably has the jurisdiction to deal with the property which is the subject-matter of offence in terms of the provisions of the Code of Criminal Procedure but once a companyfiscation proceeding is initiated, the said power cannot be exercised by the Magistrate. The High Court cannot, thus, in such a situation exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. The said provisions reads thus Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal companyrt which is required to be set aside to secure the ends of justice or where the proceeding pending before a companyrt amounts to abuse of the process of companyrt. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a companyrt which in the companytext of Code of Criminal Procedure would mean a criminal companyrt or whence a power is exercised by the companyrt under the Code of Criminal procedure. Once it is held that the criminal companyrt had numberpower to deal with the property seized under the Act, the question of the High Courts exercising its jurisdiction under Section 482 of the Code of Criminal Procedure would number arise. The amendments carried out by the State of West Bengal by reason of Sections 59-A to 59-G in the Indian Forests Act provide for a companyplete Code. The validity or otherwise of the said provisions is number in question before us. An order of companyfiscation in respect of a property must be distinguished from an order of forfeiture thereof. Although the effect of both companyfiscation and forfeiture of a property may be the same, namely that the property would vest in the State but the nature of such order having regard to the statutory scheme must be held to be different. A proceeding for companyfiscation can be initiated irrespective of the fact that as to whether prosecution for companymission of a forest offence has been lodged or number. A companyfiscation proceeding, therefore, is independent of a criminal proceeding. We may also numberice that the State has been made liable to refund the amount which has been deposited pursuant to an auction held in respect of the companyfiscated property only in the event the order of companyfiscation is set aside or annulled under Section 59-A 4 b thereof. No provision has been made in the statute unlike Section 6-C of the Essential Commodities Act, 1955 to the effect that the companyfiscated property or the amount deposited in the treasury pursuant to the auction of the companyfiscated goods would be returned to the owner thereof in the event, the criminal trial ends in an acquittal. This Court, in this case, is number companycerned with the effect of acquittal vis-a-vis a companyfiscation proceeding. There may be a case where a judgment of acquittal has been rendered number on merit of the matter but by way of giving benefit of doubt or for certain reasons unrelated to the adjudication on merits as for example dropping of the proceeding as the prosecution witnesses did number turn up despite service of summons. This companyrt in Sudhakar Rao supra , we may numbere, however, approved the decision of a Division Bench of the Andhra Pradesh High Court in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti, 1980 I ALT 8 stating We find that a later Division Bench companysisting of Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti, 1980 1 Andh LT 8 approved of the view expressed by Jeewan Reddy, J. in P.K. Mohammads case, supra , and held that the Act companytemplates two procedures, one for companyfiscation of goods forming the subject-matter of the offence by the Authorized Officer under sub-s. 2A of S. 44 of the Act, and the other for trial of the person accused of the offence so companymitted under S. 20 or 29 of the Act. The learned Judges held that the Act provides for a special machinery for companyfiscation of illicitly felled timber or forest produce by the Authorized Officer under sub-s. 2A of S. 44 enacted in the general public interest to suppress the mischief of ruthless exploitation of Government forests by illicit felling and removal of teak and other valuable forest produce. They further held that merely because there was an acquittal of the accused in the trial before the Magistrate due to paucity of evidence or otherwise did number necessarily entail in nullifying the order of companyfiscation of the seized timber or forest produce by the Authorized Officer under sub-s. 2A of S. 44 of the Act based on his satisfaction that a forest offence had been companymitted in respect thereof. We affirm the view expressed by Jeewan Reddy, J. in P.K. Mohammads caseand by Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseens case. In State of West Bengal v. Gopal Sarkar, 2002 1 SCC 495, this Court followed Sudhakar Rao supra and on companystruction of sub-section 3 of Section 59-A held On a fair reading of the provision it is clear that in a case where any timber or other forest produce which is the property of the State Government is produced under sub-section 1 and an Authorised Officer is satisfied that a forest offence has been companymitted in respect of such property he may pass order of companyfiscation of the said property forest produce together with all tools, ropes, chains, boats, vehicles and cattle used in companymitting the offence. The power of companyfiscation is independent of any proceeding of prosecution for the forest offence companymitted Emphasis supplied Yet again, in State of Karnataka v. K.A. Kunchindammed, 2002 9 SCC 90, this Court observed that even the expression sandalwood as companytained in the Karnataka Forest Act, 1963 would include sandalwood oil. This companyrt in numberuncertain terms held The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and the forest produce in the State. The Scheme of the Act, as expressed in the Sections, is to vest power in the authorised officers of the Forest Department for proper implementation enforcement of the statutory provisions and for enabling them to take effective steps for preserving the forests and forest produce. For this purpose certain powers including the power of seizure, companyfiscation and forfeiture of the forest produce illegally removed from the forests have been vested exclusively in them. The position is made clear by the number obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary companyollary of such provisions is that in a case where the authorised officer is empowered to companyfiscate the seized forest produce on being satisfied that an offence under the Act has been companymitted thereof the general power vested in the Magistrate for dealing with interim custody release of the seized materials under the Cr. P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to companyfiscate the seized forest produce is vested in the authorised officer under the Act and if he finds that such power is vested in the authorised officer then he has numberpower to pass an order dealing with interim custody release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a companysequence is to be avoided. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case it is the authorised officer who is vested with the power to pass order of interim custody of the vehicle and number the Magistrate. The High Court was in error in taking a view to the companytrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis. We may numberice that despite the fact that under the Karnataka Act, the criminal companyrt is number denuded of its power to pass an order releasing the property as would be evident in K.A. Kunchindammed supra , this Court in Section Forester and Am. v. Mansur Ali Khan, JT 2003 10 SC 390, following the decision in Slate of Karnataka v. K. Krishnan, JT 2000 9 SC 356, held While in regard to the power of the High Court to release the vehicle in a given set of facts cannot be disputed, this Court as numbericed by the High Court itself has laid down that such power can be exercised for good reasons and in exceptional cases only. In the instant case, the only reason given by the High Court for the release of the vehicle is on the ground that same was in the custody of the officers for more than .one year and there was numberlikelihood of immediate disposal of the pending case. This by itself, in our opinion would number be a ground for the release of the vehicle because this would be the case in almost all such cases involving forest offence. In exceptional cases the Act itself has made a provision for interim release of the vehicle on the existence of certain companyditions mentioned therein. In the absence of such companyditions being fulfilled, we do number think that the High Court as a matter of companyrse companyld pass mechanical orders releasing such vehicles. Taking into companysideration the object of the Forest Act and other relevant companysiderations, this Court in the above said case of State of Karnataka v. K. Krishnan supra while allowing the said appeal held The companyrts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purpose of protecting and safeguarding both the forests and their produce. The forests are number only the natural wealth of the companyntry but also protector of human life by providing a clean and unpolluted atmosphere. We are of the companysidered view that when any vehicle is seized on the allegation that it was used for companymitting a forest offence, the same shall number numbermally be returned to a party till the culmination of all the proceedings in respect of such offence, including companyfiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a companyrt is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum companydition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in companymission of a forest offence. Any such easy release would tempt the forest offenders to repeat companymission of such offences. Its casualty will be the forests as the same cannot be replenished for years to companye. From the above dictum of this Court, we find when a vehicle is involved in a forest offence the same is number to be released to the offender or the claimant as a matter of routine till the culmination of the proceedings which may include companyfiscation of such vehicle. In Shambhu Dayal Agarwala v. Stale of West Bengal and Anr., 1990 3 SCC 549, this Court interpreting sub-section 2 of Section 6A of the Essential Commodities Act vis-a-vis Section 6E thereof, held that there companyld be numberquestion of releasing the companymodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for companyfiscation stood companypleted and before the termination of the prosecution in the acquittal of the offender. This Court observed that such a view would render clause b of Section 7 1 totally nugatory. It was opined It seems to us that Section 6-E is intended to serve a dual purpose, namely i to prevent interference by companyrts, etc., and ii to effectuate the sale of the essential companymodity under sub-section 2 and the return of the animal, vehicle, etc., under the second proviso to sub section 1 of Section 6-A. In that sense Section 6-E is companyplementary in nature See also Deputy Commissioner, Dakshina Kannada District v. Rudolph Fernandez, 2000 3 SCC 306. In view of the aforementioned binding precedents, we are of the opinion that the High Court exceeded its jurisdiction in releasing the vehicles in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure. In view of our findings aforementioned, the companytention of the learned companynsel that this Court may number exercise its jurisdiction under Article 136 of the Constitution of India having regard to the purported findings of the criminal companyrt, will have to be judged. As indicated hereinbefore, there exists a distinction between companyfiscation and companyviction. A companyfiscation envisages a civil liability whereas an order of forfeiture of the forest-produce must be preceded by a judgment of companyviction. Although indisputably having regard to the phraseology used in sub-section 2 of Section 59-A, there cannot be any doubt whatsoever that companymission of a forest offence is one of the requisite ingredients for passing an order of companyfiscation but the question as to whether the order of acquittal has been passed on that ground and what weight should be attached thereto is a matter which, in our opinion, should number be gone into at this stage. So far as the submission of Mr. Ghosh in Criminal Appeal No.453 of 1997 is companycerned, it appears, the District Judge while exercising his appellate power had set aside the order of companyfiscation on the ground that the numberice issued to the respondent herein was invalid in law, leaving at the same time and directing also the Authorized Officer and Divisional Forest Officer West Midnapore Division to decide the matter afresh in accordance with law. Consequently, the right of the Authorized Officer is number foreclosed to claim for the respondent that numberaction can be taken further in this regard. Yet again a valid proceeding for companyfiscation of the vehicle can be initiated only upon issuance of a proper numberice and whereafter an order of companyfiscation can be passed in accordance with law. The upshot of our aforementioned discussion is that once a companyfiscation proceeding is initiated the jurisdiction of the criminal companyrt in terms of Section 59-G of the Act being barred, the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property. The High Court can exercise such a power only in exercise of its power of judicial review. For the foregoing reasons, the impugned judgment cannot be sustained which is set aside accordingly.

K. PATNAIK, J. Leave granted. This is an appeal against the order dated 17.09.2010 of the Division Bench of the Bombay High Court in Appeal Lodging No.534 of 2010. Facts The facts very briefly are that on 30.11.2007 the Board of Control for Cricket in India for short BCCI invited tenders for IPL Indian Premier League Media Rights for a period of ten years from 2008 to 2017 on a worldwide basis. Amongst the tenders submitted, the bid of World Sports Group India for short WSG India was accepted by BCCI. By a pre-bid arrangement, however, the respondent was to get the media rights for the sub-continent for the period from 2008 to 2010. Accordingly, on 21.01.2008 BCCI and the respondent entered into a Media Rights License Agreement for the period from 2008 to 2012 for a sum of US274.50 million. After the first IPL season, the BCCI terminated the agreement dated 21.01.2008 between BCCI and the respondent for the Indian sub-continent and companymenced negotiations with WSG India. On 14.03.2009, the respondent filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 for short the Act against the BCCI before the Bombay High Court praying for injunction against the BCCI from acting on the termination letter dated 14.03.2009 and for preventing BCCI from granting the rights under the agreement dated 21.01.2008 to any third party. Pursuant to the negotiations between BCCI and WSG India, BCCI entered into an agreement with the appellant whereunder the media rights for the Indian sub-continent for the period 2009 to 2017 was awarded to the appellant for a value of Rs.4,791.08 crores. To operate the media rights in India, the appellant was required to seek a sub-licensee within seventy two hours. Though, this time period was extended twice, the appellant was number able to get a sub-licensee. Thereafter, the appellant claimed to have allowed media rights in India to have lapsed and then facilitated on 25.03.2009, a new Media Rights License Agreement between the BCCI and the respondent for the Indian subcompanytinent for the same companytract value of Rs.4,791.08 crores. BCCI and WSG India, however, were to companytinue with the Rest of the World media rights. On 25.03.2009, the appellant and the respondent also executed the Deed for Provision of Facilitation Services hereinafter referred to as the Facilitation Deed whereunder the respondent was to pay a sum of Rs.425 crores to the appellant as facilitation fees. Clause 9 of the Facilitation Deed dated 25.03.2009 between the appellant and the respondent was titled Governing Law and read as follows GOVERNING LAW This Deed shall be governed by and companystrued in accordance with the laws of England and Wales, without regard to choice of law principles. All actions or proceedings arising in companynection with, touching upon or relating to this Deed, the breach thereof and or the scope of the provisions of this Section shall be submitted to the International Chamber of Commerce the Chamber for final and binding arbitration under its Rules of Arbitration, to be held in Singapore, in the English language before a single arbitrator who shall be a retired judge with at least ten years of companymercial experience. The arbitrator shall be selected by mutual agreement of the Parties, or, if the Parties cannot agree, then by striking from a list of arbitrators supplied by the Chamber. If the Parties are unable to agree on the arbitrator, the Chamber shall choose one for them. The arbitration shall be a companyfidential proceeding, closed to the general public. The arbitrator shall assess the companyt of the arbitration against the losing party. In addition, the prevailing party in any arbitration or legal proceeding relating to this Deed shall be entitled to all reasonable expenses including, without limitation, reasonable attorneys fees . Notwithstanding the foregoing, the arbitrator may require that such fees be borne in such other manner as the arbitrator determines is required in order for this arbitration provision to be enforceable under applicable law. The arbitrator shall issue a written opinion stating the essential findings and companyclusions upon which the arbitrators award is based. The arbitrator shall have the power to enter temporary restraining orders and preliminary and permanent injunctions. No party shall be entitled or permitted to companymence or maintain any action in a companyrt of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrators award provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, any party may seek equitable relief in a companyrt of companypetent jurisdiction in Singapore, or such other companyrt that may have jurisdiction over the Parties, without thereby waiving its right to arbitration of the dispute or companytroversy under this section. THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS DEED, THE BREACH THEREOF AND OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. The respondent made three payments totaling Rs.125 crores to the appellant under the Facilitation Deed during 2009 and did number make the balance payment. Instead, on 25.06.2010, the respondent wrote to the appellant rescinding the Facilitation Deed on the ground that it was voidable on account of misrepresentation and fraud. On 25.06.2010, the respondent also filed Suit No.1869 of 2010 for inter alia a declaration that the Facilitation Deed was void and for recovery of Rs.125 crores already paid to the appellant. On 28.06.2010, the appellant acting under Clause 9 of the Facilitation Deed sent a request for arbitration to ICC Singapore and the ICC issued a numberice to the respondent to file its answer to the request for arbitration. In the meanwhile, on 30.06.2010, the respondent filed a second suit, Suit No.1828 of 2010, before the Bombay High Court against the appellant for inter alia a declaration that as the Facilitation Deed stood rescinded, the appellant was number entitled to invoke the arbitration clause in the Facilitation Deed. The respondent also filed an application for temporary injunction against the appellant from companytinuing with the arbitration proceedings companymenced by the appellant under the aegis of ICC. On 09.08.2010, the learned Single Judge of the Bombay High Court dismissed the application for temporary injunction of the respondent saying that it would be for the arbitrator to companysider whether the Facilitation Deed was void on account of fraud and misrepresentation and that the arbitration must, therefore, proceed and the Court companyld number intervene in matters governed by the arbitration clause. The respondent challenged the order of the learned Single Judge before the Division Bench of the Bombay High Court and by the impugned order, the Division Bench of the Bombay High Court allowed the appeal, set aside the order of the learned Single Judge and passed an order of temporary injunction restraining the arbitration by ICC. Aggrieved, the appellant has filed this appeal. Contentions on behalf of the appellant Mr. K.K. Venugopal, learned senior companynsel for the appellant, submitted that the Division Bench of the High Court failed to appreciate that the Bombay High Court had numberjurisdiction to pass an order of injunction restraining a foreign seated international arbitration at Singapore between the parties, who were number residents of India. In this companytext, he referred to Clause 9 of the Facilitation Deed which stipulated that any party may seek equitable relief in a companyrt of companypetent jurisdiction in Singapore, or such other companyrt that may have jurisdiction over the parties. He submitted that on the principle of Comity of Courts, the Bombay High Court should have refused to interfere in the matter and should have allowed the parties to resolve their dispute through ICC arbitration, subject to the jurisdiction of the Singapore companyrts in accordance with Clause 9 of the Facilitation Deed. Mr. Venugopal next submitted that the Division Bench of the High Court failed to appreciate that under Section 45 of the Act, the Court seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44 has to refer the parties to arbitration, unless it finds that the agreement referred to in Section 44 is null and void, inoperative or incapable of being performed. He submitted that the agreement referred to in Section 44 of the Act is an agreement in writing for arbitration and, therefore, unless the Court finds that the agreement in writing for arbitration is null and void, inoperative or incapable of being performed, the Court will number entertain a dispute companyered by the arbitration agreement and refer the parties to the arbitration. In support of this submission, he relied on the decision of this Court in Chloro Controls India Private Limited v. Seven Trent Water Purification Inc. Ors. 2013 1 SCC 641. Mr. Venugopal submitted that the Division Bench of the High Court, instead of examining whether the agreement in writing for arbitration was null and void, inoperative or incapable of being performed, has held that the entire Facilitation Deed was vitiated by fraud and misrepresentation and was, therefore, void. He vehemently submitted that it was for the arbitrator to decide whether the Facilitation Deed was void on account of fraud and misrepresentation as has been rightly held by the learned Single Judge and it was number for the Court to pronounce on whether the Facilitation Deed was void on account of fraud and misrepresentation. He referred to Article 6 4 of the ICC Rules of Arbitration which permits the Arbitral Tribunal to companytinue to exercise jurisdiction and adjudicate the claims even if the main companytract is alleged to be null and void or number-existent because the arbitration clause is an independent and distinct agreement. He submitted that this principle of Kompetenz Kompetenz has been recognized in Section 16 of the Act under which the Arbitral Tribunal has the companypetence to rule on its own jurisdiction and on this point relied on National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. 2009 1 SCC 267 and Reva Electric Car Company Private Ltd. v. Green Mobil 2012 2 SCC He submitted that as a companyollary to this principle, Courts have also held that unless the arbitration clause itself, apart from the underlying companytract, is assailed as vitiated by fraud or misrepresentation, the Arbitral Tribunal will have jurisdiction to decide all issues including the validity and scope of the arbitration agreement. He submitted that in the present case, the arbitration clause itself was number assailed as vitiated by fraud or misrepresentation. In support of this argument, he relied on the decision of the House of Lords in Premium Nafta Products Ltd. v. Fili Shipping Company Ltd. Ors. 2007 UKHL 40, the decision of the Supreme Court of United States in Buckeye Check Cashing, Inc. v. John Cardegna et al 546 US 440 2006 and the decision of this Court in Branch Manager, Magma Leasing and Finance Ltd. Anr. v. Potluri Madhavilata Anr. 2009 10 SCC 103. Mr. Venugopal submitted that the Division Bench of the High Court relied on the decision in N. Radhakrishnan v. Maestro Engineers Ors. 2010 1 SCC 72 to hold that serious allegations of fraud can only be enquired by a Court and number by an arbitrator, but the Division Bench failed to appreciate that in N. Radhakrishnan v. Maestro Engineers Ors. supra this Court relied on Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak AIR 1962 SC 406 in which it was observed that it is only a party against whom a fraud is alleged who can request the Court to inquire into the allegations of fraud instead of allowing the arbitrator to decide on the allegations of fraud. In the present case, the respondent has alleged fraud against the appellant and thus it was for the appellant to make a request to the Court to decide on the allegations of fraud instead of referring the same to the arbitrator, and numbersuch request has been made by the appellant. He further submitted that in any case the judgment of this Court in N. Radhakrishnan v. Maestro Engineers Ors. supra was rendered in the companytext of domestic arbitration in reference to the provisions of Section 8 of the Act. He submitted that the language of Section 45 of the Act, which applies to an international arbitration, is substantially different from the language of Section 8 of the Act and it will be clear from the language of Section 45 of the Act that unless the arbitration agreement is null and void, inoperative or incapable of being performed, the parties will have to be referred to arbitration by the Court. In the present case, the respondent has number made out that the arbitration agreement is null and void, inoperative or incapable of being performed. Mr. Venugopal submitted that the High Court has taken a view that Clause 9 forecloses an open trial in a companyrt of law except to the extent permitted therein and the parties have to necessarily submit themselves to a companyfidential proceeding which is closed to the general public. He submitted that the Bombay High Court thus appears to have held that Clause 9 is opposed to public policy and, in particular, Sections 23 and 28 of the Indian Contract Act, 1872. He submitted that in any case the arbitration agreement companytained in Clause 9 of the Facilitation Deed cannot be held to be opposed to public policy and void under Sections 23 and 28 of the Indian Contract Act, 1872. This will be clear from Exception 1 of Section 28 of the Indian Contract Act, 1872, which says that the section shall number render illegal a companytract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. He explained that under the American Law, in a suit for companymon law where the value of claim is more than US20, the right to jury trial is preserved and this applies even in relation to claims for breach of companytract and for this reason, the parties made a provision in Clause 9 of the Facilitation Deed waiving their right to jury trial with respect to all claims and issues arising under, in companynection with, touching upon or relating to the Facilitation Deed. He submitted that this provision in Clause 9 of the Facilitation Deed cannot, therefore, be held to be opposed to public policy. Mr. Venugopal next submitted that the crux of the case of the respondent is set out in its letter dated 25.06.2010 to the appellant in which it was alleged that in view of the false misrepresentations and fraud played by WSGM the deed is voidable at the option of our client and thus our client rescinds the deed with immediate effect. In other words, the respondents case is that it was induced to enter into the Facilitation Deed on account of the misrepresentation by the appellant and was led to believe that it was paying the facilitation fees to the appellant to allow the rights of the appellant under an alleged agreement dated 23.03.2009 to lapse, but the respondent subsequently discovered that there was numberagreement dated 23.03.2009 and the rights of the appellant had companye to an end on 24.03.2009. He submitted that the appellant has denied these allegations of the respondent in its affidavit-in-reply filed before the Bombay High Court and that there was numberfalse representation and fraud as alleged by the respondent. He submitted that the Facilitation Deed was executed by the senior executives of the parties and in the case of respondent, it was signed by Michael Grindon, President, International, Sony Picture Television, and the appellant and the respondent had entered into the Facilitation Deed after companysulting their sports media experts and after a lot of negotiations. He submitted that in fact a Press Release was issued by the respondent on 23.04.2010, which will go to show that there was numbermisrepresentation and fraud by the appellant before the Facilitation Deed was signed by the parties, and thus the entire case of the respondent that the Facilitation Deed was vitiated by misrepresentation and fraud is false. Mr. Venugopal finally submitted that it will be clear from the language of the letter dated 25.06.2010 of the respondent to the appellant that according to the respondent the Facilitation Deed was voidable at the option of the respondent. He submitted that under Section 45 of the Act, the Court will have to refer the parties to the arbitration unless it finds that the arbitration agreement is null and void. He argued that an agreement which is voidable at the option of one of the parties is number the same as the agreement which is void and, therefore, the Division Bench of the High Court should have referred the parties to arbitration instead of restraining the arbitration. According to Mr. Venugopal, this is a fit case in which this Court should set aside the impugned order of the Division bench of the High Court and restore the order of the learned Single Judge of the High Court. Contentions on behalf of the respondent In reply, Mr. Gopal Subramanium, learned senior companynsel appearing for the respondent, submitted that the Division Bench of the Bombay High Court has rightly restrained the arbitration proceedings under the aegis of ICC as the Facilitation Deed, which also companytains the arbitration agreement in Clause 9, is void because of fraud and misrepresentation by the appellant. He submitted that Section 45 of the Act makes it clear that the Court will number refer the parties to arbitration if the arbitration agreement is null and void, inoperative or incapable of being performed and as the respondent has taken the plea that the Facilitation Deed, which companytained the arbitration agreement, is null and void on account of misrepresentation and fraud, the Court will have to decide whether the Facilitation Deed including the arbitration agreement in Clause 9 was void on account of fraud and misrepresentation by the appellant. He submitted that the respondent filed the first suit in the Bombay High Court Suit No.1869 of 2010 for declaring the Facilitation Deed as null and void but in the said suit, the appellant did number file a written statement and instead issued the numberice for arbitration only to frustrate the first suit and in the circumstances the respondent was companypelled to file the second suit Suit No.1828 of 2010 for an injunction restraining the arbitration. Mr. Subramanium submitted that Section 9 of the Code of Civil Procedure, 1908 for short the CPC companyfers upon the companyrt jurisdiction to try all civil suits except suits which are either expressly or impliedly barred. He submitted that the Bombay High Court, therefore, had the jurisdiction to try both the first suit and the second suit and there was numberexpress or implied bar in Section 45 of the Act restraining the Bombay High Court to try the first suit and the second suit. He submitted that in India as well as in England, Courts have power to issue injunctions to restrain parties from proceeding with arbitration proceedings in foreign companyntries. In support of this submission, he relied on V.O. Tractoroexport, Moscow v. Tarapore Company and Anr. 1969 3 SCC 562 and Oil and Natural Gas Commission Western Company of North America 1987 1 SCC 496. He also relied on Russel on Arbitration, para 7-056, 7-058, and Claxton Engineering v. Txm olaj es gaz Kutao Ktf 2011 EWHC 345 COMM. . Mr. Subramanium relying on the decision of this Court in Chloro Controls India Private Limited v. Seven Trent Water Purification Inc. Ors. supra submitted that Section 45 of the Act casts an obligation on the companyrt to determine the validity of the agreement at the threshold itself because this is an issue which goes to the root of the matter and a decision on this issue will prevent a futile exercise of proceedings before the arbitrator. He submitted that under Section 45 of the Act the Court is required to companysider number only a challenge to the arbitration agreement but also a serious challenge to the substantive companytract companytaining the arbitration agreement. He cited the decision of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. 2011 14 SCC 66 in support of this argument. He submitted that the companytention on behalf of the appellant that the Court has to determine only whether the arbitration agreement companytained in the main agreement is void is, therefore, number companyrect. Mr. Subramanium next submitted that in cases where allegations of fraud are prima facie made out, the judicial trend in India has been to have them adjudicated by the Court. In this companytext, he referred to the decisions of this Court in Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak supra , Haryana Telecom Ltd. v. Sterlite Industries India Ltd. 1999 5 SCC 688 and N. Radhakrishnan v. Maestro Engineers Ors. supra . In reply to the submission of Mr. Venugopal that it was only the parties against whom the allegations are made who can insist on the allegations being decided by the Court, Mr. Subramanium submitted that in the decision of the Madras High Court in G. Oomor Sait v. O Aslam Sait 2001 3 CTC 269 Mad referred to in Radhakrishnan v. Maestro Engineers Ors. supra the situation was reverse. Mr. Subramanium next submitted that the facts in this case prima facie establish that a grave fraud was played by the appellant number only upon the respondent but also on the BCCI. He argued that the Facilitation Deed ultimately deals with media rights belonging to the BCCI and it has been held by this Court in M s Zee Tele Films Ltd. Anr. v. Union of India Ors. AIR 2005 SC 2677 that BCCI is a public body. He submitted that the Division Bench of the Bombay High Court has, therefore, rightly taken the view that the disputes in this case cannot be kept outside the purview of the Indian Courts and if arbitration is allowed to go on without BCCI, the interest of BCCI will be adversely affected. He submitted that having regard to the magnitude of fraud alleged in the present case, the disputes were incapable of being arbitrated. Relying on Booz Allen Hamilton v. SBI Home Finance 2011 5 SCC 532, Haryana Telecom Ltd. v. Sterlite Industries India Ltd. Supra , India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. 2007 5 SCC 510 and N. Radhakrishnan v. Maestro Engineers Ors. supra , he submitted that such allegations of fraud can only be inquired into by the companyrt and number by the arbitrator. Findings of the Court The question that we have to decide is whether the Division Bench of the Bombay High Court companyld have passed the order of injunction restraining the arbitration at Singapore between the parties. As various companytentions have been raised by Mr. Venugopal, learned companynsel for the appellant, in support of the case of the appellant that the Division Bench of the Bombay High Court companyld number have passed the order of injunction restraining the arbitration at Singapore, we may deal with each of these companytentions separately and record our findings. While recording our findings, we will also deal with the submissions made by Mr. Gopal Subramanium on behalf of respondent in reply to the companytentions of Mr. Venugopal. We will also companysider the companyrectness of the findings of the Division Bench of the Bombay High Court separately. We are unable to accept the first companytention of Mr. Venugopal that as Clause 9 of the Facilitation Deed provides that any party may seek equitable relief in a companyrt of companypetent jurisdiction in Singapore, or such other companyrt that may have jurisdiction over the parties, the Bombay High Court had numberjurisdiction to entertain the suit and restrain the arbitration proceedings at Singapore because of the principle of Comity of Courts. In Blacks Law Dictionary, 5th Edition, Judicial Comity, has been explained in the following words Judicial companyity. The principle in accordance with which the companyrts of one state or jurisdiction will give effect to the laws and judicial decisions of another, number as a matter of obligation, but out of deference and respect. Thus, what is meant by the principle of companyity is that companyrts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, number as a matter of obligation but out of deference and mutual respect. In the present case numberdecision of a companyrt of foreign companyntry or numberlaw of a foreign companyntry has been cited on behalf of the appellant to companytend that the companyrts in India out of deference to such decision of the foreign companyrt or foreign law must number assume jurisdiction to restrain arbitration proceedings at Singapore. On the other hand, as has been rightly submitted by Mr. Subramanium, under Section 9 of the CPC, the companyrts in India have jurisdiction to try all suits of a civil nature excepting suits of which companynizance is either expressly or impliedly barred. Thus, the appropriate civil companyrt in India has jurisdiction to entertain the suit and pass appropriate orders in the suit by virtue of Section 9 of the CPC and Clause 9 of the Facilitation Deed providing that companyrts in Singapore or any other companyrt having jurisdiction over the parties can be approached for equitable relief companyld number oust the jurisdiction of the appropriate civil companyrt companyferred by Section 9 of the CPC. We find that in para 64 of the plaint in Suit No.1828 of 2010 filed before the Bombay High Court by the respondent, it is stated that the Facilitation Deed in which the arbitration clause is incorporated came to be executed by the defendant at Mumbai and the fraudulent inducement on the part of the defendant resulting in the plaintiff entering into the Facilitation Deed took place in Mumbai and the rescission of the Facilitation Deed on the ground that it was induced by fraud of defendant has also been issued from Mumbai. Thus, the cause of action for filing the suit arose within the jurisdiction of the Bombay High Court and the Bombay High Court had territorial jurisdiction to entertain the suit under Section 20 of the CPC. Any civil companyrt in India which entertains a suit, however, has to follow the mandate of the legislature in Sections 44 and 45 in Chapter I of Part II of the Act, which are quoted hereinbelow CHAPTER I NEW YORK CONVENTION AWARDS Definition. In this Chapter, unless the companytext otherwise requires, foreign award means an arbitral award on differences between persons arising out of legal relationships, whether companytractual or number, companysidered as companymercial under the law in force in India, made on or after the 11th day of October, 1960 - a in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and b in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by numberification in the Official Gazette, declare to be territories to which the said Convention applies. Power of judicial authority to refer parties to arbitration.- Notwithstanding anything companytained in Part I or in the Code of Civil Procedure, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. The language of Section 45 of the Act quoted above makes it clear that numberwithstanding anything companytained in Part I or in the Code of Civil Procedure, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Thus, even if, under Section 9 read with Section 20 of the CPC, the Bombay High Court had the jurisdiction to entertain the suit, once a request is made by one of the parties or any person claiming through or under him to refer the parties to arbitration, the Bombay High Court was obliged to refer the parties to arbitration unless it found that the agreement referred to in Section 44 of the Act was null and void, inoperative or incapable of being performed. In the present case, the appellant may number have made an application to refer the parties to arbitration, but Section 45 of the Act does number refer to any application as such. Instead, it refers to the request of one of the parties or any person claiming through or under him to refer the parties to arbitration. In this case, the appellant may number have made an application to refer the parties to arbitration at Singapore but has filed an affidavit in reply to the numberice of motion and has stated in paragraphs 3, 4 and 5 of this affidavit that the defendant had already invoked the arbitration agreement in the Facilitation Deed and the arbitration proceedings have companymenced and that the suit was an abuse of the process of companyrt. The appellant had thus made a request to refer the parties to arbitration at Singapore which had already companymenced. Section 45 of the Act quoted above also makes it clear that even where such request is made by a party, it will number refer the parties to arbitration, if it finds that the agreement is null and void, inoperative or incapable of being performed. As the very language of Section 45 of the Act clarifies the word agreement would mean the agreement referred to in Section 44 of the Act. Clause a of Section 44 of the Act refers to an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies. The First Schedule of the Act sets out the different Articles of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. Article II of the New York Convention is extracted hereinbelow Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of defined legal relationship, whether companytractual or number, companycerning a subject-matter capable of settlement by arbitration. The term agreement in writing shall include an arbitral clause in a companytract or an arbitration agreement, signed by the parties or companytained in an exchange of letters or telegrams. The companyrt of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. It will be clear from clauses 1, 2 and 3 of the New York Convention as set out in the First Schedule of the Act that the agreement referred to in Section 44 of the Act is an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them. Thus, the companyrt will decline to refer the parties to arbitration only if it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. According to Mr. Subramanium, however, as the main agreement is voidable on account of fraud and misrepresentation by the appellant, clause 9 of the main agreement which companytains the arbitration agreement in writing is also null and void. In support of his submission, he cited the decision of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. supra . Paragraphs 12 and 13 of the judgment of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. supra are quoted hereinbelow When a companytract companytains an arbitration agreement, it is a companylateral term relating to the resolution of disputes, unrelated to the performance of the companytract. It is as if two companytractsone in regard to the substantive terms of the main companytract and the other relating to resolution of disputeshad been rolled into one, for purposes of companyvenience. An arbitration clause is therefore an agreement independent of the other terms of the companytract or the instrument. Resultantly, even if the companytract or its performance is terminated or companyes to an end on account of repudiation, frustration or breach of companytract, the arbitration agreement would survive for the purpose of resolution of disputes arising under or in companynection with the companytract. Similarly, when an instrument or deed of transfer or a document affecting immovable property companytains an arbitration agreement, it is a companylateral term relating to resolution of disputes, unrelated to the transfer or transaction affecting the immovable property. It is as if two documentsone affecting the immovable property requiring registration and the other relating to resolution of disputes which is number companypulsorily registerableare rolled into a single instrument. Therefore, even if a deed of transfer of immovable property is challenged as number valid or enforceable, the arbitration agreement would remain unaffected for the purpose of resolution of disputes arising with reference to the deed of transfer. In the aforesaid case, this Court has held that if the document companytaining the main agreement is number found to be duly stamped, even if it companytains arbitration clause, it cannot be acted upon because Section 35 of the Stamp Act bars the said document from being acted upon, but if the document is found to be duly stamped but number registered though required to be companypulsorily registered, the companyrt can act upon the arbitration agreement which is a companylateral term of the main agreement and is saved by the proviso to Section 49 of the Registration Act. Thus, as per the aforesaid decision of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. supra , the companyrt will have to see in each case whether the arbitration agreement is also void, unenforceable or inoperative along with the main agreement or whether the arbitration agreement stands apart from the main agreement and is number null and void. The House of Lords has explained this principle of separability in Premium Nafta Products Ltd. v. Fili Shipping Company Ltd. Ors. supra thus The principle of separability enacted in section 7 means that the invalidity or rescission of the main companytract does number necessarily entail the invalidity or rescission of the arbitration agreement. The arbitration agreement must be treated as a distinct agreement and can be void or voidable only on grounds which relate directly to the arbitration agreement. Of companyrse there may be cases in which the ground upon which the main agreement is invalid is identical with the ground upon which the arbitration agreement is invalid. For example, if the main agreement and the arbitration agreement are companytained in the same document and one of the parties claims that he never agreed to anything in the document and that his signature was forged, that will be an attack on the validity of the arbitration agreement. But the ground of attack is number that the main agreement was invalid. It is that the signature to the arbitration agreement, as a distinct agreement, was forged. Similarly, if a party alleges that someone who purported to sign as agent on his behalf had numberauthority whatever to companyclude any agreement on his behalf, that is an attack on both the main agreement and the arbitration agreement. On the other hand, if as in this case the allegation is that the agent exceeded his authority by entering into a main agreement in terms which were number authorized or for improper reasons, that is number necessarily an attack on the arbitration agreement. It would have to be shown that whatever the terms of the main agreement or the reasons for which the agent companycluded it, he would have had numberauthority to enter into an arbitration agreement. Even if the allegation is that there was numberconcluded agreement for example, that terms of the main agreement remained to be agreed that is number necessarily an attack on the arbitration agreement. If the arbitration clause has been agreed, the patties will be presumed to have intended the question of whether there was a companycluded main agreement to be decided by arbitration. Applying the principle of separability to the facts of this case, the respondent rescinded the Facilitation Deed by numberice dated 25.06.2010 to the appellant on the following grounds stated in the said numberice by its lawyers Reference is made to the Deed for the Provison of Facilitation Services dated March 25, 2009 the Deed between World Sport Group Mauritius Limited WSGM and our client. Under the Deed, which is styled as a facilitation agreement, our client agreed to pay WSGM facilitation fees for the facilitation services stated thereunder to have been provided by WSGM. The underlying companysideration for the payments by our client to WSGM, in fact were the representation made by WSGM that a WSGM, had executed in India BCCI whereunder WSGM had been unfettered Global Media Rights the said rights , including the Indian Subcontinent implying thereby as natural companyollary that the earlier Media Rights agreement dated March 15, 2009 between WSGM and BCCI along with its restrictive companyditions had been mutually terminated b WSGM companyld thereafter relinquish the Media Rights for the Indian Subcontinent in favour of our client for said valuable companysideration to enable our client to enter into a direct agreement with BCCI c the said rights were subsisting with WSGM at the time of execution of the Deed, i.e, March 25, 2009 and d WSGM had relinquished those rights in favour of BCCI to enable BCCI and our client to execute a direct Media Rights License Agreement for the Indian Subcontinent. BCCI has recently brought to the attention of our client that the Global Media Rights agreement between WSGM and BCCI dated March 23, 2009 does number exist and in terms of Clause 13.5 of the agreement dated March 15, 2009, after expiry of the 2nd extension the media rights had automatically reverted to BCCI at 3 a.m. on March 24, 2009 and thus at the time of execution of the Deed, WSGM did number have any rights to relinquish and or to facilitate the procurement of India Subcontinent media rights for the IPL from BCCI and thus numberfacilitation services companyld have been provided by WSGM. In view of the above, it is evident that the representation by WSGM that WSGM relinquished its Indian Subcontinent media rights for the IPL in favour of our client to pay the facilitation fees under the Deed. Taking companynizance of the same, BCCIs Governing companyncil at its meeting held at Mumbai, India on June 25, 2010 appropriately executed an amendment to Media Rights License Agreement dated March 25, 2009 between BCCI and our client by deleting, inter alia, clause 10.4 thereof. On its part, and in view of the false representations and fraud played by WSGM, the Deed is voidable at the option of our client and thus our client rescinds the Deed with immediate effect. The ground taken by respondent to rescind the Facilitation Deed thus is that the appellant did number have any right to relinquish and or to facilitate the procurement of Indian subcontinent media rights for the IPL from BCCI and numberfacilitation services companyld have been provided by the appellant and therefore the representation by the appellant that the appellant relinquished its Indian subcontinent media rights for the IPL in favour of the respondent for which the appellant had to be paid the facilitation fee under the deed was false and accordingly the Facilitation Deed was voidable at the option of the respondent on account of false representation and fraud. This ground of challenge to the Facilitation Deed does number in any manner affect the arbitration agreement companytained in Clause 9 of the Facilitation Deed, which is independent of and separate from the main Facilitation Deed and does number get rescinded as void by the letter dated 25.06.2010 of the respondent. The Division Bench of the Bombay High Court, therefore, companyld number have refused to refer the parties to arbitration on the ground that the arbitration agreement was also void along with the main agreement. Mr. Gopal Subramaniums companytention, however, is also that the arbitration agreement was inoperative or incapable of being performed as allegations of fraud companyld be enquired into by the companyrt and number by the arbitrator. The authorities on the meaning of the words inoperative or incapable of being performed do number support this companytention of Mr. Subramanium. The words inoperative or incapable of being performed in Section 45 of the Act have been taken from Article II 3 of the New York Convention as set out in para 22 of this judgment. Redfern and Hunter on International Arbitration Fifth Edition published by the Oxford University Press has explained the meaning of these words inoperative or incapable of being performed used in the New York Convention at page 148, thus At first sight it is difficult to see a distinction between the terms inoperative and incapable of being performed. However, an arbitration clause is inoperative where it has ceased to have effect as a result, for example, of a failure by the parties to companyply with a time limit, or where the parties have by their companyduct impliedly revoked the arbitration agreement. By companytrast, the expression incapable of being performed appears to refer to more practical aspects of the prospective arbitration proceedings. It applies, for example, if for some reason it is impossible to establish the arbitral tribunal. Albert Jan Van Den Berg in an article titled The New York Convention, 1958 An Overview published in the website of ICCA www.arbitration-icca.org media/0/12125884227980/newyorkconventionof- 1958overview.pdf, referring to Article II 3 of the New York Convention, states The words null and void may be interpreted as referring to those cases where the arbitration agreement is affected by some invalidity right from the beginning, such as lack of companysent due to misrepresentation, duress, fraud or undue influence. The word inoperative can be said to companyer those cases where the arbitration agreement has ceased to have effect, such as revocation by the parties. The words incapable of being performed would seem to apply to those cases where the arbitration cannot be effectively set into motion. This may happen where the arbitration clause is too vaguely worded, or other terms of the companytract companytradict the parties intention to arbitrate, as in the case of the so-called companyequal forum selection clauses. Even in these cases, the companyrts interpret the companytract provisions in favour of arbitration. The book Recognition and Conferment of Foreign Arbitral Awards A Global Commentary on the New York Convention by Kronke, Nacimiento, et al. ed. 2010 at page 82 says Most authorities hold that the same schools of thought and approaches regarding the term null and void also apply to the terms inoperative and incapable of being performed. Consequently, the majority of authorities do number interpret these terms uniformly, resulting in an unfortunate lack of uniformity. With that caveat, we shall give an overview of typical examples where arbitration agreements were held to be or number to be inoperative or incapable of being performed. The terms inoperative refers to cases where the arbitration agreement has ceased to have effect by the time the companyrt is asked to refer the parties to arbitration. For example, the arbitration agreement ceases to have effect if there has already been an arbitral award or a companyrt decision with res judicata effect companycerning the same subject matter and parties. However, the mere existence of multiple proceedings is number sufficient to render the arbitration agreement inoperative. Additionally, the arbitration agreement can cease to have effect if the time limit for initiating the arbitration or rendering the award has expired, provided that it was the parties intent numberlonger to be bound by the arbitration agreement due to the expiration of this time limit. Finally, several authorities have held that the arbitration agreement ceases to have effect if the parties waive arbitration. There are many possible ways of waiving a right to arbitrate. Most companymonly, a party will waive the right to arbitrate if, in a companyrt proceeding, it fails to properly invoke the arbitration agreement or if it actively pursues claims companyered by the arbitration agreement. Thus, the arbitration agreement does number become inoperative or incapable of being performed where allegations of fraud have to be inquired into and the companyrt cannot refuse to refer the parties to arbitration as provided in Section 45 of the Act on the ground that allegations of fraud have been made by the party which can only be inquired into by the companyrt and number by the arbitrator. N. Radhakrishnan v. Maestro Engineers Ors. supra and Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak supra were decisions rendered in the companytext of domestic arbitration and number in the companytext of arbitrations under the New York Convention to which Section 45 of the Act applies. In the case of such arbitrations companyered by the New York Convention, the Court can decline to make a reference of a dispute companyered by the arbitration agreement only if it companyes to the companyclusion that the arbitration agreement is null and void, inoperative or incapable of being performed, and number on the ground that allegations of fraud or misrepresentation have to be inquired into while deciding the disputes between the parties. We may number companysider the companyrectness of the findings of the Division Bench of the High Court in the impugned judgment. The Division Bench of the High Court has held that the Facilitation Deed was part of several agreements entered into amongst different parties companymencing from 25.03.2009 and, therefore, cannot be companysidered as stand apart agreement between the appellant and the respondent and so companysidered the Facilitation Deed as companytrary to public policy of India because it is linked with the finances, funds and rights of the BCCI, which is a public body. This approach of the Division Bench of the High Court is number in companysonance with the provisions of Section 45 of the Act, which mandates that in the case of arbitration agreements companyered by the New York Convention, the Court which is seized of the matter will refer the parties to arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed. In view of the provisions of Section 45 of the Act, the Division Bench of the High Court was required to only companysider in this case whether Clause 9 of the Facilitation Deed which companytained the arbitration agreement was null and void, inoperative or incapable of being performed. The Division Bench of the High Court has further held that Clause 9 of the Facilitation Deed insofar as it restricted the right of the parties to move the companyrts for appropriate relief and also barred the right to trial by a jury was void for being opposed to public policy as provided in Section 23 of the Indian Contract Act, 1872 and was also void for being an agreement in restraint of the legal proceedings in view of Section 28 of the said Act. Parliament has made the Arbitration and Conciliation Act, 1996 providing domestic arbitration and international arbitration as a mode of resolution of disputes between the parties and Exception 1 to Section 28 of the Indian Contract Act, 1872 clearly states that Section 28 shall number render illegal a companytract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Clause 9 of the Facilitation Deed is companysistent with this policy of the legislature as reflected in the Arbitration and Conciliation Act, 1996 and is saved by Exception 1 to Section 28 of the Indian Contract Act, 1872. The right to jury trial is number available under Indian laws. The finding of the Division Bench of the High Court, therefore, that Clause 9 of the Facilitation Deed is opposed to public policy and is void under Sections 23 and 28 of the Indian Contract Act, 1872 is clearly erroneous. The Division Bench of the High Court has also held that as allegations of fraud and serious malpractices on the part of the appellant are in issue, it is only the companyrt which can decide these issues through furtherance of judicial evidence by either party and these issues cannot be properly gone into by the arbitrator. As we have already held, Section 45 of the Act does number provide that the companyrt will number refer the parties to arbitration if the allegations of fraud have to be inquired into. Section 45 provides that only if the companyrt finds that the arbitration agreement is null and void, inoperative or incapable of being performed, it will decline to refer the parties to arbitration. The Division Bench of the High companyrt has further held that since the earlier suit Suit No.1869 of 2010 was pending in companyrt since 25.06.2010 and that suit was inter-connected and inter-related with the second suit Suit No.1828 of 2010 , the companyrt companyld number allow splitting of the matters and disputes to be decided by the companyrt in India in the first suit and by arbitration abroad in regard to the second suit and invite companyflicting verdicts on the issues which are inter-related. This reasoning adopted by the Division Bench of the Bombay High Court in the impugned judgment is alien to the provisions of Section 45 of the Act which does number empower the companyrt to decline a reference to arbitration on the ground that another suit on the same issue is pending in the Indian companyrt.

KURIAN, J. Leave granted. I.A. No.68830/2017 is allowed, in terms of the prayer made. The appellants are before this Court, aggrieved by the judgment dated 30.09.2016 passed by the High Court of Punjab and Haryana at Chandigarh in LPA Nos.1395, 1398, 1400 and 1396 of 2015. The High Court took the stand that the appellants are number entitled for appointment, since their claim is highly belated. Signature Not Verified 4. However, the fact remains that the appellants had Digitally signed by NARENDRA PRASAD Date 2017.12.16 104159 IST Reason been before this Court seeking impleadment when the special leave petitions were pending before this Court. It was this Court which relegated them to pursue their remedy before the High Court. True, some of the appellants had already filed special leave petition s . Be that as it may, when this matter came up for hearing before this Court on 07.12.2017, we directed the companynsel for the State of Punjab to get instruction as to the availability of the vacancies and as to whether the appellants are otherwise qualified, going by the Report of the Committee appointed by the High Court. This order was passed on the basis of the information that there were unfilled vacancies available as against numberified vacancies in the post of Excise and Taxation Inspector. Learned companynsel for the State of Punjab has made available a written instruction to the effect that there are 12 vacancies as against the 1999 Notification SC-05, BC-03, ESM-3 and Gen-03 . However, it is also number disputed that as of number, there are 76 vacancies available in various categories as can be seen from the affidavit filed by the State. Having heard the learned companynsel on both the sides and having regard to the fact that the vacancies are available as of number to accommodate the appellants and also having regard to the fact that the appellants have been found otherwise qualified by the Committee appointed by the High Court, we are of the view that this is a fit case for invocation of our jurisdiction under Article 142 of the Constitution of India for doing companyplete justice.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos, 172 173 of 1961. Appeals by special leave from the judgment an, order dated July 7, 1961 of the Mysore-High Court in Criminal Appeals Nos. 352 and 355 of 1959 and Criminal Referred Case No. 25 of 1959. H. Hingorani, for the appellants. R. Iyengar and R. H. Dhebar, for the respondents. 1962. April 27. The Judgment of the Court was delivered by MUDHOLKAR, J.-The appellant, China Gowda, was tried along with six other persons for companymitting the murder of an entire family companysisting of eight persons on the night intervening the 12th and 13th February, 1958, in Handigodu hamlet of the village Viavalli. The learned Sessions Judge companyvicted every one of them under a. 302, Indian Penal Code, and sentenced each of them to death. In appeal, the accused No. 2, Sbivappa Naika and accused No. 7, Gunde Gowda were acquitted. The appeals of the remaining accused persons were dismissed. The High Court, however, companyfirmed the companyviction and sentences only of the appellant Chinna Gowda and of Rame Gowda, appellant in Criminal Appeals Nos. 172 and 173 of 1961 and while affirming the companyviction of the other three accused companymuted the death sentences passed against them to imprisonment for life. The. appellants in the two appeals were granted special leave by this Court under Art. 136 of the Constitution and that is how the appeals are number before us. The facts as alleged by the prosecution are briefly these The deceased, Mariappa Gowda took up residence in Handigodu about eight or ten years prior to the murder. He was an industrious and thrifty person and soon became very prosperous. This aroused the envy and jealousy of the appellant, Chinna Gowda. In the companyrse of years, numerous disputes over the boundaries of fields, trespasses on fields, the flow of water and so on arose between the two of them. For some time prior to the murders, the relationship between Mariappa Gowda deceased and the appellant as well as Rame Gowda, the appellant in the other appeal, became very strained. It may be mentioned that Rame Gowds was actually living with Mariappa Gowda for some time and Mariappa Gowda leased out some lands to him. Shortly thereafter, both of them fell out and Mariappa Gowda was anxious to evict Rame Gowda, from the leased lands. Mariappa Gowda was, therefore, reluctant to issue receipts for rent paid by Rame Gowda, to him. This annoyed the latter. Eventually, however, on the intervention of Chandiah Hegde, P. W. 67, Mariappa Gowda passed a receipt in favour of Rame Gowda. To his surprise, Rame Gowda, however, found that the receipt companytained false recitals to the effect that he had surrendered the leased land to Mariyappa Gowda. He, therefore, companyplained about this to Chandiah who promised to settle the matter. In the meanwhile, Rame Gowdas anger increased. One day, he actually stopped the bullock cart of Mariappa and challenged him to try and evict him from the. leased lands. Sometime thereafter he companyplained to one Singappagowda that Mariappa had cheated him and said you will see what I will do to him in a few days. According to the prosecution, the remaining accused were the friends of the appellant, Chinna Gowda but it is number suggested that they had any personal grievance against Mariappa Gowda. It is companymon ground that Mariappas house is 3ituated about a furlong and a half of the house of Chinn Gowda and that numberother house than Chinna Gowdas is nearer Mariappas house. Mariappa lived there with his wife Bellamma and six children. Since he was living in an isolated place, he bad kept a dog. He also used to keep a light burning outside his house. Further, he had a gun which was usually kept loaded in the house. Few days before the incident, the dog had died but the cause of the death of the dog is number known. Between 6.30 and 7.00 a.m. on the morning of February 13,1958, P.W. 12 Narayan of Handigodu who was employed as a labourer by Mariappa Gowda, went, as usual, to his masters house. He was horrified to find that all the doors of the house were open and the inmates of the house were lying on their beds in pools of blood, having been done to death by someone. Thereupon he went to the house of one Harithal Chandegowda, P.W. 31, and informed him of what he had seen. Both of them along with another man proceeded to the village Handigodu. Eventually, the first information was lodged with the police who companymenced investigation. After investigation, the seven accused persons and P.W. 40, Venkappa Naika, who later turned an approver in the case, were arrested in companynection with the murders. During the companyrse of the investigation, P.W. 40, Venkappa Naika, accused No. 3 Manjappa Gowda, and accused No. 4, Manjappa Naika, made companyfessions. Venkappa Naika was tendered, a companyditional pardon on his agreeing to give evidence on behalf of the prosecution. At the companymittal stage, all the three persons retracted their companyfessions. However, all the alleged participants in the crime, except Venkappa Naika, were sent up for trial and were tried by the Additional Sessions Judge, Chikmagalur. At that trial Venkappa Naika gave evidence for the prosecution on the lines of his companyfession, saying that he had retracted the companycessions at the companymital stage as the appellant, Chinna Gowda had threatened to kill him. The learned Additional Sessions Judge, relying mainly on the evidence of the appover, as companyroborated by the retracted companyfessions of two of the amused persons, companyvicted sad sentenced all the accused persons. as already stated. In addition to the evidence of the approver, the prosecution has relied upon the evidence of two witnesses, W. 16, Dugamma, a neigbbour of Chinna Gowda and. P.W. 59 Mariappa, son of Rame Gowda, an agricultural servant of Chinna Gowda. The learned Additional Sessions Judge, as well as the High Court, believed their evidence and regarded it as affording some companyroboration to the evidence of the approver. The prosecution further relied upon the fact that just prior to the date of the murders, Chinn Gowda, who was heavily pressed for money, had arranged to obtain a loan of Rs. 600/- for one T. Shivaiah alias T. Shivaswamy, P.W. 75, who had agreed to advance it to him on February 13, 1958. Inspite of T. Shivaiah agreeing to advance the loan, China Gowda did number go to his house on the appointed day. The suggestion is that after companymitting the murders, all the accused persons looted the cash and jewellery found in that house and the cash was retained by China Gowda with himself, Fi. nally, the companyrts below have relied upon the circumstance that the accused person, in particular the appellants in the two appeals before us, did number, like other innocent villagers, go to make enquiry about the incident or go to the hospital where the dead bodies were taken. The evidence of P.W. 16, Duggamma and that of P.W. 59, Mariayappa does number afford companyroboration to the evidence of the approver on material particulars and in fact two of the statements made by the latter companytradict the evidence of the approver on some important points. The substantial material on which the case rests is thus the evidence of the approver and the retracted companyfessions of two of the accused persons. The question, therefore, is whether companyviction of the appellants companyld be sustained on the basis of this material. There is numberdoubt that s, 133 of the Evidence Act does number debar the companyrt from basing the companyviction of an accused person on the evidence of the approver alone but as has been observed in a large number of cases, including the decision of the Privy Council in Bhuboni Sahu v. The King 1 the Courts, as a matter of prudence, always require that the evidence of the approver should be companyroborated in material particulars. This rule has been founded on s. 114 b of the Evidence Act which enables the Court to presume that an accomplice is number worthy of credit unless he is companyroborated in material particulars, The need for such companyroboration would be all the more greater where, as here, the approver, apart from being a person of bad character by reason of his participation in a heinous crime, cannot be said to be a man of truth since he had refiled from his companyfession before the companymitting magistrate. This circumstance emphasizes, if emphasis was necessary, the need for requiring companyroboration to his evidence in material particulars. The substance of the evidence of the approver, Venkappa Naika, is this. On the day prior to the incident. the appellant Chinna Gowda met him at Thyavananda Angadi when both of them were returning to their village from Sringeri. Venkappa Naika, it may be mentioned, is a bootlegger. Chinna Gowda asked him whether he had any arrack available and upon Venkappa Naika answering in the affirmative, Chinna Gowda gave him Rs. 5/- and asked him to take two bottles of arrack to his house the next evening as there was a party at his house. Accordingly, on the next day, i.e., on the day of the incident, Venkappa Naika went there in the evening carrying with him two bottles of arrack. He did number see Chinna Gowda but saw Manjappa Gowda, accused No. 3, grooming two bullocks in front of the house. He, therefore, 1 1949 L.R. 76 I.A. 147. enquired of him where Chinna Gowda was. On being told by Manjappa Gowda to go to the area garden where Chinna Gowda would shortly be going, Venkappa Naika went there. He numbericed three of the accused persons, Shivappa Naika, Rame Gowda appellant in the other appeal and Gunde Gowda sitting under a jack fruit tree. A little later Manjappa Naika who is accused No. 4 came there and was followed shortly after by Chinna Gowda and Ramappa Naika who is accused No. 5 in the case and Manijappa Gowda. The latter brought rotti and chicken and curry. Thereafter, all the persons present were served with arrack. Then they had a meal companysisting of chicken curry and rotti which was served by the Manjappa Gowda. After finishing their meals they again had a round of arrack. While they were having arrack, Chinna Gowda said. Handi godu Mariappa Gowda is harassing me. We must go and finish him today. Thereupon, Shivappa Naika said, work must be done carefully. Whatever punishment may be meted out., you should number open your mouth. I am there to see to the rest. After that, China Gowda took Shivappa to his house and left him, there and returned alone to the garden. By that time it was midnight. All of them then got up and at the instance of Chinna Gowda went to the house of the deceased Mariappa Gowda. China Gowda, Manjappa Gowda, Manjappa Naika, Rame Gowda and the approver, Venkappa Naika, each had a chopper with him. On the way, Chinna Gowda observed We should number leave even a worm. You must do the work carefully. On reaching the house of Mariappa Gowda they numbericed a bedlamp burning on the Jagali, which was put out by Chinna Gowda. He, as well as Rame Gowda, had torches with them and they, flashed them number and again. Then Rame Gowda struck on the neck of Mariappa Gowda who was, sleeping on the jagali, with-the chopper in his hand. Chinna Gowda dealt a similar blow on the neck of Bellamma who was sleeping close to Mariappa. The approver, himself struck Bellamma on her head. Rame Gowda next struck a male child on his neck. with his chopper. It appears that the others were just looking on. Chinna Gowda looking at Manjappa Naika said, Why are you looking on, fool ? Whereupon that person struck on the neck of Gunda, the eldest son of Mariappa Gowda with his chopper. Thereafter, Cbinna Gowda, Manjappa Gowda and Rame Gowda went inside the house and murdered the four children of Mariappa Gowda who were sleeping there. Then Chinna Gowda re-lighted the bed lamp which had been blown out earlier, took out the bunch of keys from the waist of Mariappa Gowda, opened the lock of one of the rooms of the house and took out from it a trunk. He opened the lock of the trunk. This trunk companytained a gold chain, a pair of bugudis, three gold rings and one gold flower. It also companytained two bundles of. currency numberes. Chinna Gowda took possession of all these articles. In the meanwhile Rame Gowda removed the gold ear-rings from the ears of Bellamma as well as removed her manisara which she was wearing on her neck and handed them over to Chinna Gowda. Chinna Gowda wrapped up the jewellery in a towel and handed it over to Ramappa Naika but he kept the currency numberes with himself Thereafter the party left the house of Mariappa. They went to a nala nearby and washed their hands as well as the choppers. On their way back to the house of Chinna Gowda the latter said, Let the companymotion be over. Thereafter let us distribute the gold and the, money. Let numberone demand it number. There is Shivappa Naika. We ,shall distribute it. Thereupon Manjappa Naika, Rame Gowda and Gunde Gowda went to their respective houses while Chinna Gowda, Manjappa Gowda and Ramappa Naika, went to the house of Chinna Gowda. The approver went along with. them. After reaching the house, Chinna Gowda took the jewellery from Ramappa Naika which he kept inside the house. Chinna Gowda gave the approver a kambal and asked him to sleep on the jagali. He, therefore, slept there along with Majappa Gowda and Manjappa Naika while Chinna morning, the approver left Chinna Godwas house and went to his own house. What is first to be companysidered is the evidence of P. W. 16, Duggamma and that of P. W. 59, Maryappa, sun of Ramae Gowda. We have already indicated that it does number afford companyroboration to the evidence of the approver. The former stated in his evidence that just when she was going to bed she heard Ramappa Naika saying, Torch light fell. At that time, Chinna Gowda and.Manjappa Gowda were with him and all the three of them were on the jagali. There is numberreference whatsoever to the flashing of the torch in theevidence of the approver. All that companyld be said is that there is perhaps a partial companyroboration to the statement of the approver that while some of the participants in the crime were sitting in the arena garden early in the evening, Chinn Gowda and Rammappa Naika came there together and were followed shortly after by Manjappa Gowda. But much importance cannot be attached to a partial companyroboration. Later in her evidence, Daggamma stated that she woke up during the night and numbericed torch light being flashed on her jagali. Just then Chinna Gowda came near the jagali. Thereupon she asked ,,who is it. On that, Chinna Gowda said ,No one. Have you number got sleep. Sleep on. Now, according to the approver, he was accompanying Chinna Gowda at that time, but there is numberreference whatsoever to the incident in his evidence, In the circumstances, it cannot afford any companyroboration to any part of the evidence of the approver. Now, companying to the evidence of P. W. 59, Maryappa, son of Rame Gowda, who was a servant of Chinna Gowda, what he says is that on the evening of the date of the incident, the approver, Venkappa Naika came to his masters house and asked Manjappa Gowda where the appellant Chinna Gowda was. Thereupon Manjappa Gowda told him that Chinna Gowda was number at home, and perhaps had gone somewhere. After hearing this, Venkappa Naika went towards the garden at about 9.00 or 9.30 p.m. While the witness was sitting on his bed on the jagali of ChinnaGowdas house, Chinna Gowda and Ramappa Naika came to the house and had their meals. Thereafter Chinna Gowda, Manjappa Gowda and Ramappa Naika sat talking on the jagali. When they were chatting he saw a torch lighting flashed on a tree near the house. Thereafter, all these three persons got up saying that they should go to the garden and accordingly went there. Five. or ton Minutes later, they came back to the house. Chinna Gowda warned the witness number to mention to any one about the flashing of the torch. The witness then went to sleep and, got up at 6.00 or 6.30 a. m. He then found Chinna Gowda and Ramappa Naika still in bed on the jagali. Instead of affording any companyroboration to the evidence of the approver, the evidence of this witness companytradicts the approver on several points. Now according to the approver, he went to the garden of being told by Manjappa Gowda to do so, but that is number what the witness says. According to the witness, Chinna Gowda and Ramappa Naika had their food in the house and thereafter, after the torch light was flashed, they went inside the areca garden. According to the approver, all the participants in the crime has barrack as well as chicken curry and rotti in the garden, that the whole party got up at mid-night, Chinna Gowda returned to the house with Shivappa, then came back to the garden after leaving him and then they all went towards the house of the deceased, Mariappa Gowda. According to the witness, number only Chinna Gowda and Ramappa Naika had their meals in the house but that they returned to the jagali five or ten minutes after they went to the garden and it was then 9.30 p.m. This in wholly inconsistent with an important part of the story as narrated by the approver. Finally, while, according to the approver, Chinna Gowda slept inside the house on the night in question, the witness says that he slept on the jagali. Considering, therefore, the evidence of the witness as a whole, it must be said that far from affording companyroboration to the evidence of the approver on material particulars, it companytradicts the evidence of the approver at least with respect to one fact which is material and that is the entire party leaving the garden at midnight for the house of Mariappa Gowda. If the evidence of the witness is true it would seem that Chinna Gowda, instead of going to the house of Mariappa Gowda, along with others returned to his house and slept on his jagali. For, he does number say that after companying back from the garden-at 9.30 p.m., Chinna Gowda again went there. No doubt, the approver said that before going to the house of Mariappa, Chinna Gowda went with Shivappa to his house and then returned immediately. But according to him it was at midnight and number at 9.30 p.m. Thus, far from companyroborating the evidence of the approver in so far as the participation of the appellant Chinna Gowda is companycerned, the evidence of this witness tends to companytradict it. Then there is the companyroboration, said to be afforded by the retracted companycessions of the accused Manjappa Gowda and Manjappa Naika. We have number been taken through the companyfessions of these two persons but we will assume that these two persons tell the same story as the approver but the question is whether the companyfessions can safely be relied upon as affording companyroboration to the evidence of the approver. Since the appellants and the Confessing accused persons, Manjappa Gowda and Manjappa Naika were tried jointly for the same series of offences, their companyfessions can be used against the appellants under s. 30 of the Evidence Act. But a companyfession cannot be regarded as a piece of satisfactory evidence because it is number made in the presence of the person or persons whom it incriminates and companysequently cannot be tested by cross-examination. A companyfession, therefore, is a much weaker type of evidence than the evidence of the approver which is number subject to such an infirmity. No doubt, by virtue of s. 30 they can, as pointed out in Bhuboni gahus case cit. sup. can be taken into companysideration by the Court and thereby treated as evidence upon which the companyrt may act, but s. 30 does number say that the companyfession amounts to proof. In Kashmira Singh State of Madhya Pradesh 1 this Court has approved of the decision in Bhuboni Sahus case and observed But cases may arise where the judge is number prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a companyviction. In such an event the judge may call in aid the companyfession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the companyfession he would number be prepared to accept. After making these observations this Court has pointed out the danger of using the testimony of one accomplice to companyroborate another because 1 1952 S. C. R. 526, 530. for one thing evidence companysisting of the companyfession of the accomplice cannot be tested by cross. examination. Relying upon illustration b to a. 114 of the Evidence Act it was companytended on behalf of the Crown in Bhuboni Sahus case 1 that where several participants in the alleged crime have in their separate companyfession implicated a particular person as being the culprit and there was numberprevious companycert amongst the companyfessing accused, there was numberreason to reject their companyfessions and that the evidence of the approver which, as here, was the primary evidence in the case should be regarded as being sufficiently companyroborated by such companyfessions. The argument was rejected by the Privy Council on several grounds. One of the grounds was that the companyfessing accused had been produced before the magistrate together for recording their companyfessions. Then they pointed out at p. 157 whilst appreciating that the companyncidence of a number of companyfessions of companyccused all implicating the particular accused, given independently, and without an opportunity of previous companysent , might be entitled to great weight their Lordships would nevertheless observe that companyrts should be slow to depart from the rule of prudence, based on long experience, which requires som independent evidence implicating the particular accused. The danger of acting on accomplice evidence is number merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution the real 1 1949 L.R. 76 I.A. 147. danger is that be is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver. It would appear from the record of these appeals that the companyfessions of the approver and Manjappa Gowda were recorded on the same day, i.e., March 27, 1958 by Mr. V. Revanna, Magistrate, First Class, Chikamagalur, while that of Manjappa Naika was recorded by another Magistrate on March 29, 1958. Mr. V. Revanna was examined as P. W. 41 in this case and he has stated in evidence that he received a requisition from the Deputy Superintendent of Police, Mr. Ramaswamy on March 22, 1958 for recording the companyfessional statements of Manjappa Gowda and the approver, Venkappa Naika and those persons were produced before him on that very day. He informed them that thereafter theY would be removed from the police custody and then he remanded them to the judicial look-up till March 24, 1958. He also told them that they were number bound to make any companyfessions. As, however, he was on casual leave from March 23, 1958 to March 26, 1958, they were produced before him on March 27, 1958. It would appear that these persons were in the police lockup since their arrest till March 22, 1958 and were actually brought together to the magistrates companyrt. There is numberhing to show that they were kept separate. In the circumstances there is numberguarantee that the accounts which they have given of the incident in their companyfessions were independent and without previous companycert. Therefore, apart from being a very weak type of evidence, there is an absence of intrinsic evidence in the companyfession of Manjappa Gowda which would go to provide an assurance that it is true in all its details. It may be that the general outline of the incident given by Manjappa Gowda is companyrect but insofar as it iraplicates the appellants before us there is numberguarantee about its truth. We cannot, therefore, regard that companyfession as affording companyroboration to the evidence of the approver. The defect which we have pointed out with respect to the companyfession of Manjappa Gowda does number appear to be present in Manjappa Naikas companyfession. He was first produced before a magistrate for recording his companyfession on March 27, 1958, and was then remanded by the Magistrate to judicial custody till March 29, 1958. It is possible that since this persons was arrested on March 15, 1958 by which date the approver and the other accused including Manjappa Gowda had presumably been arrested, they may have been in police custody together for some time. It is, however, number clear from. the record whether they were kept in custody at the same place. The circumstance appearing in the Privy Council case may , therefore, number be present in so far as he is companycerned. All the same we find that there is one grave infirmity in his companyfession. The record does number show that when Manjappa Naika was produced before a magistrate on March 27, 1958, and remanded by him to the judicial custody he was given due warning by the magistrate and told that he should reflect whether he should make any companyfession at all. In his examination as witness No. 44, the magistrate, Mr. K. Malle Gowda has stated as follows On March 27, 1958, the Deputy Superintendent of police produced before me AManjappa Naika and gave me the requisition, Ext. P. 23, for recording his statement under s. 164, Cr. P.C. On that, I remanded A-4 Manjappa Naika to the judicial custody till March 29, 1958. Accordingly, on March 29, 1958, he was produced before me in my Cour hall by the Sub-Jail authority at about 11.00 a.m. Thereafter he said that he asked the usual preliminary questions and then recorded the statement of Manjappa Naika. No doubt, it would appear that on March 29, 1958, the Magistrate asked Manjappa Naika whether he wanted time to think over the matter to which the latter replied write, presumably meaning thereby that he did number want time. That, however, is number sufficient companypliance with the requirements of law. It has been pointed out by this Court in Sarwan Singh v. The State of Punjab 1 that when accused person is produced by the investigating officer before the Magistrate for recording his companyfession, it is of the utmost importance that his mind should be companypletely free from any possible influence of the police and he must be send to Jail custody and given adequate time to companysider whether he should make a companyfession at all. It is true that here Manjappa Naika, after being produced by the Investigating officer before a Magistrate for recording his companyfession the latter remanded him to the judicial custody upto March 29, 1958, i. e., for two days but it was necessary for the magistrate to make it clear to Manjappa Naika that he was number bound to make the companyfession and that if he made the companyfession, it was likely to be used against him and that, therefore, he should reflect whether he should make any companyfession at all. It does number appear from the evidence of the Magistrate Mr. Malle Gowda that he brought these important matters to the numberice of Manjappa Naika while remanding him to the 1 1957 S.C.R. 953. judicial custody. In the circumstance, the companyfession is number one upon which a Court can properly act. That leaves for companysideration only one circumstance on which the High Court has relied and that is the failure of the appellant, Chinna Gowda, number to go to the house of T. Shiviah alias T. Shivaswamy, P. W. 75, for receiving a loan on February 13, 1958. It is said that he did number do so because he had with him the booty companylected from the house of the deceased Mariappa Gowda and, therefore, he numberlonger stood in need of raising the loan. There may be various reasons why Chinna Gowda did number keep his appointment but even assuming that he had companye by some money and that this happened as a result of the incident which took place on the night between February 12 and 13, 1958, it would number be legitimate to companyclude that he had himself participated in the murders. Thus we are left only with the evidence of the approver. As already pointed out, his evidence suffers from two infirmities on his own showing be is a man of bad character, and further in the companyrt of the companymitting magistrate he went back upon his companyfession before Mr. Revanna, Magistrate First Class. Again he is a person whose business is to manufacture illicit liquor. Thus, apart from participating in the heinous crimes which were perpetrated on the night in question, he has been leading a life of a lawbreaker. His evidence, standing by itself, cannot, therefore, carry companyviction. Indeed neither the Sessions Judge number the learned Judges of the High Court regarded his evidence as bring sufficient to justify companyviction of the various accused persons. In the circumstances we must hold that his evidence cannot safely be regarded as the sole basis for resting the companyviction of the two appellants before us.

O R D E R Arising out of SLP C No.5518 of 2006 Leave granted. This appeal is directed against the judgment and order dt.05.12.2005 passed by the High Court of Judicature at Patna in C.W.J.C.No.7505 of 2004 by which the High Court has affirmed the order passed by the Central Administrative Tribunal by which the appellants preference for the post of Train Clerk was number accepted. We have perused the impugned order.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 4734-35 of 1992. From the Judgment and Order dated 8.5.1992 of the Madhya Pradesh High Court in Misc. Petition Nos. 48 and 533 of 1992. Shanti Bhushan, N.C. Jain, S.K. Agnihotri and Ashok K. Singh for the Appellant. Kapil Sibal, N.S. Kale, A.P. Dhamija, S.K. Jain, Manmohan, S. Atreya, Pradeep Agarwal, Basant Bhai Mehta, Ravindra Srivastava, R.N. Srivastava, B.V. Desai and S.V. Deshpande for the Respondents. The Judgment of the Court was delivered by VERMA, J. The petitioner State of Madhya Pradesh in both these petitions seeks leave to appeal under Article 136 of the Constitution against the companymon judgment and order dated 8.5.1992 of the High Court of Madhya Pradesh in Miscellaneous Petition Nos. 481 of 1992 and 533 of 1992 under Article 226 of the Constitution. The High Court has allowed both these writ petitions. The material facts are these. In Miscellaneous Petition No. 3909 of 1987 tiled in public interest by Kailash Joshi, then Leader of the Opposition in Madhya Pradesh Vidhan Sabha and number a Cabinet Minister in Madhya Pradesh, relating to the affairs of the Churhat Childrens Welfare Society and the lottery companyducted by it, the M.P. High Court by its judgment dated 20.1.1989 issued a direction for setting up an independent high power agency to bold an inquiry into the affairs of the said Society of which respondent 1 Ajay Singh was one of the office bearers. In companypliance of that direction, the State Government passed a resolution on 24.2.1989 and also issued numberification of the same date having the effect of setting up a Commission of Inquiry companysisting of Justice S.T. Ramalingam, a Judge of the Madras High Court to investigate into the affairs of the said Society and the lottery companyducted by it. The resolution and numberification are as under - Bhopal, the 24th February, 1989 No. F. 1-3-89-l i -E.C. - Whereas the High Court of Madhya Pradesh in its order dated the 20th January 1989 in M.P. No. 3909/87 Kailash Joshi versus State of Madhya Pradesh and others has directed that an inquiry be made by an independent high power agency into the affairs of the Churhat Childrens Welfare Society and how the share of its profits derived from all or any other draws have been utilized and to take such action as may be required under the law against the said Society and its organizing agent and that the State Government is of the view that the said order of the High Court should be implemented and carried out and whereas the State Government is also satisfied that this is a definite matter of public importance which calls for an inquiry to be made, the State Government hereby appoints an independent high power agency presided over by Shri Justice S.T. Ramalingam, Judge of the Madras High Court. The Headquarters of the Agency shall be at Jabalpur, Madhya Pradesh. The terms of reference for inquiry by the aforesaid Agency shall be as under- How the affairs of the Churhat Children s Welfare Society are companyducted and how the share of the profit derived and the money companylected through lottery has been utilised ? What is the amount companylected draw-wise, by the agent and the Society and what is the tax liability as per the Madhya Pradesh lottery Niyantran Tatha Kar Adhiniyam, 1973 ? Whether any irregularities, illegalities and offences were companymitted in organizing the lottery, holding of draws of lottery, distribution of prizes, and in that event, the person responsible for the same Any other matter incidental or companynected with the above subjectmatter of enquiry. The Agency may companyplete its enquiry and submit its report to the State Government within a period of six months from the date of issue of this Notification. By order and in the name of the Governor of Madhya Pradesh, C. Shrivastava, Secy Bhopal, the 24th February, 1989 No. F.1-3-89-I i -E.C. - Whereas by Government of Madhya Pradesh Resolution dated the 24th February 1989 and Notification No. F.1-3-89- I i -E.C., dated the 24thFebruary 1989 an independent High Power Agency presided over by Shri S.T. Ramalingam, Judge of the Madras High Court has been set up to hold an inquiry into the affairs of the Churhat Childrens Welfare Society And whereas the State Government having regard to the nature of the inquiry to be made and other circumstances of the case is of the opinion that provisions companytained in sub-sections 2 to 5 of Section 5 of the Commissions of Inquiry Act, 1952, should be made applicable to the aforesaid Agency Now,therefore, in exercise of the powers companyferred by sub-section 1 of Section 5 of the Commissions of Inquiry Act, 1952, the State Government hereby directs that the provisions of sub-sections 2 to 5 of Section 5 of the said Act shall apply to the above described Agency. By order and in the name of the Governor of Madhya Pradesh, C. Shrivastava, Secy. According to the terms of the above numberification, the inquiry was to be companypleted within a period of six months from the date of issue of the numberification. As the inquiry companyld number be companypleted within that period, by a numberification dated 1.8.1990 the period for companypleting the inquiry was extended upto 22.8.1991 then by another numberification dated 16.8.1991 the period was extended upto 31.3.1992 and then by another numberification dated 27.3.1992 the period for companypleting the inquiry stands extended upto 31.3.1993. In the meantime, Justice S.T. Ramalingam became due to retire as a Judge of the Madras High Court on 30.6.1991 on attaining the age of superannuation and, therefore, he wrote a letter dated 19.3.1991 to the Chief Secretary of the State drawing attention to this fact and requesting that necessary modalities be worked out well in time for his companytinuance as Commission of Inquiry in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his retirement in such a situation. Just Ramalingam mentioned in that letter some of the facilities he expected, to which he would number be entitled from the Government of Tamil Nadu on his retirement. The Chief Secretary R.P. Kapoor sent a reply to Justice Ramalingam by DO No. 504/CS/91 dated 9.4.1991 as under- My dear Honble Justice Ramalingam, Thank your very much for your letter No. 53 of 19th March, 1991. The issues raised in your letter regarding the tenure of the Commission and the terms and companyditions after your superannuation are under active companysideration of the Government and I will be in a position to inform your after a final view is taken in this case. In the meanwhile may I request that the proceedings may be companytinued so that the inquiry can be companypleted at the earliest possible. With very kind regards, Yours sincerely, Sd - P. Kapoor This letter of the Chief Secretary apart from promising to give an early reply also requested Justice Ramalingam to companytinue with the inquiry so that the same companyld be companypleted early. While the promised reply from the State Government Justice Ramalingam was awaited, the State Government, without further reference to Justice Ramalingam, issued a numberification dated 10.7.1991 as under- Bhopal, the 10th July, 1991 No. F.1-6-91-I- 8-Ka . - Whereas, an independent high power agency companyprising of a single member namely Justice S.T. Ramalingam, Judge of the Madras High Court was appointed under this Department Notification No. F.1-3-89-I i C., dated the 24th February 1989 And whereas Justice S.T. Ramalingam has retired as Judge of the Madras High Court, on 30th of June 1991 And whereas for companytinuing in the said agency after retirement Justice Shri S.T. Ramalingam has placed certain terms and companyditions which have number been found possible for the Government to accept. Now, therefore, in exercise of the powers companyferred by sub-section 3 of Section 3 of the Commissions of Inquiry Act, 1952 No. LX of 1952 , the State Government hereby appoint Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna Bihar as single member of the said agency in place of Justice Shri S.T. Ramalingam. Accordingly this Department Notification Nos. I F.1-3- 89-I i - E.C. dated the 24th February 1989, 2 F.1-3 89-1 i - E.C., dated the 24th February 1989 and F.1-3-89-I i - E.C. dated the 24th February 1989, shall stand amended to this extent. By order and in the name of the Governor of Madhya Pradesh K. Misra, Secy. Accordingly, by this numberification, the State Government replaced Justice S.T. Ramalingam with Justice G.G. Sohani, retired Chief Justice of Patna High Court as the sole member of the Commission of Inquiry. The appointment of Justice G. Sohani in place of Justice S.T. Ramalingam was challenged in the M.P. High Court by a writ petition - M.P. No. 2359 of 1991- by respondent No. 1 Ajay Singh. By an interim order dated 30.7.1991 passed by the High Court, the operation of the above numberification dated 10.7.1991 was stayed. During the pendency of that writ petition, Justice G. Sohani companyveyed to the State Government his disinclination to companytinue with the assignment and tendered his resignation. Consequently, the High Court dismissed that writ petition as infructuous on 5.9.1991. It was only thereafter that the Chief Secretary of the State Government sent a letter dated 12.9.1991 in companytinuation of his earlier letter dated 9.4.1991 to Justice Ramalingam which is as under This is in companytinuation to my earlier letter No. 504/CS/91 dated 9th April, 1991 regarding the arrangement for the Commission of Enquiry Churhat Children Welfare Society and Lottery , companysequent to your superannuation as a Judge of the Madras High Court. The State Government have companysidered your companymunications about the inconveniences you were facing in companying to Jabalpur for want of Air-link between Madras and Jabalpur. The State Government have also companysidered the terms and companyditions mentioned in your letter of 19th March, 1991. On careful companysideration of all aspects mentioned in your companymunications it has number been possible for the State Government to accept the terms and companyditions set out in your letter of 19th March for taking up the work of the above mentioned Enquiry Commission after your superannuation. The State Government had accordingly appointed Justice Mr. G.G. Sohani, retired Chief Justice of the Patna High Court to be the single Member of the Commission. I am, however, happy to companyvey the deep appreciation of the State Government for the services rendered by you in the Commission in spite of all the personal inconvenience it has caused. The Honble Chief Minister had made a general mention of it in the Vidhan Sabha on the 4th July, 1991. Delay in reply to your letter is regretted. It was caused because of the litigation arising out of the appointment of Justice Sohani which was since been decided. Wishing you and your family a very happy life after your superannuation. Yours sincerely, P. Kapoor The State Government thereafter issued another numberification dated 9.1.1992 as under- Bhopal, the 9th January 1992 No. F.1-6-91-I 8 Ka . - Whereas in exercise of the powers companyferred by sub-section 3 of Section 3 of the Commissions of Enquiry Act, 1952 No. LX of 1952 Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna Bihar was appointed as single member of an independent high power agency companystituted under this department numberification No. F.1-3-89-I i - C., dated 24th February 1998 in place of Justice Shri S.T. Ramalingam vide this department Notification No. F.1-6-91-I 8 Ka , dated the 10th July 1991 And whereas Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna Bihar has since withdrawn his companysent to work as single member of the said agency Now, therefore, in exercise of the powers companyferred by sub-section 3 of Section 3 of the Commissions of Enquiry Act, 1952 No.LX of 1952 , read with Section 21 of the General Clause Act, 1987 No. 10 of 1897 , the State Government hereby appoint Justice Shri Kamlakar Choubey, retired Judge of the Allahabad High Court as a single member of the said agency in place of Shri G.G. Sohani. Accordingly this department Notification Nos. 1 F.1 3-89- l i -E.C., dated 24th February, 1989, 2 F.1-3-89-I i E.C., dated 24th February, 1989, and 3 F.1-3-89-I i E.C., dated the 24th February, 1989, shall stand amended to this extent. By order and in the make of the Governor of Madhya Pradesh In this manner, the State Government after replacing Justice S.T. Ramalingam first by Justice G.G. Sohani, thereafter replaced him by Justice Kamlakar Choubey, a retired Judge of the Allahabad High Court, as the sole member of the Commission. It is unnecessary to refer to the terms and companyditions of appointment of Justice Kamlakar Choubey which were detailed in the General Administration Department Memo. dated 23.3.1991 and are referred in the High Court judgment, which include the facility of a Camp Office for him at Varanasi and other facilities of vehicle, telephone and staff etc. The appointment of Justice Kamlakar Choubey as the sole member companystituting the Commission of Inquiry in this manner resulting in the replacement of Justice S.T. Ramalingam initially appointed for the purpose and to writ petitions - P. Nos. 481 of 1992 and 533 of 1992 - for quashing the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey. Challenge to the numberification dated 10.7.1991 issued earlier appointing, Justice G.G. Sohani is academic in view of Justice Sohani having resigned as indicated earlier. The remaining significance of the validity of the numberification dated 10.7.1991 appointing Justice G.G. Sohani relates only to the State Governments power to appoint another person in place of Justice S.T. Ramalingam in the above circumstances. The challenge of the writ petitioners before the High Court was that during the companytinuance as the single member of the Commission of Inquiry of Justice S.T. Ramalingam, there was numberpower in the State Government to replace him as the member of the Commission and, therefore, the appointment first of Justice G.G. Sohani and on his refusal, of Justice Kamlakar Choubey, being without any authority, was invalid. On this basis, the relief of quashing the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey was sought. In substance, the argument was that there being numbervacancy in the office, the power under Section 3 3 of the Commissions of Inquiry Act, 1952, which is available only to fill any vacancy companyld number be invoked and there was numberother source of power available to the State Government for this purpose. The argument of the learned Advocate General on behalf of the State Government was that a vacancy had arisen in the membership of the Commission on account of Justice Ramalingas retirement from Madras High Court on 30.6.91, and there being his implied resignation indicated by his inclination to companytinue on the terms and companyditions suggested by him, which the State Government did number companysider feasible, the power of the State Government under Section 3 3 of the Commissions of Inquiry Act to fill the implied vacancy was available. It was also urged by the learned Advocate General that vacancy in the office of the single member of the Commission was also implied from the fact that the appointment of Justice S.T. Ramalingam as the Commission of Inquiry was also his status as a sitting Judge of the Madras High Court and, therefore, his retirement as a Judge resulted in creation of the vacancy. The learned Advocate General also placed reliance on Section 16 of the General Clauses Act, 1897, in aid of the State Governments power under Section 3 3 of the Commissions of Inquiry Act. Another submission of the learned Advocate General was that the State Government was the sole judge in this matter and was, therefore, companypetent to choose the person for making or companytinuing the inquiry in view of the power available under Section 3 of the Commissions of Inquiry Act lead with Section 16 of the General Clauses Act. The learned companynsel appearing on behalf of Kailash Joshi placed reliance on Section 3 2 of the Commission of Inquiry Act read with Section 14 of the General Clauses Act to support the State Governments action appointing Justice Kamlakar Choubey companytending that the State Government had power to reconstitute the Commission replacing Justice S.T. Ramalingam by another person. An argument challenging the locus standi of the writ petitioner was also faintly urged by companynsel for Kailash Joshi. The High Court allowed the writ petitions and quashed the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey. It held that there was numbervacancy in the office of the single member of the Commission to empower the State Government to fill the vacancy under Section 3 3 of the Commissions of Inquiry Act. On a companystruction of the provisions of the Commissions of Inquiry Act and those of the General Clauses Act relied on in support of the rival companytentions, the High Court came to the companyclusion that there was neither any valid reason or ground number any power available in the State Government to replace Justice S.T. Ramalingam by another person as was purported to be done by First appointing Justice G.G. Sohani and then Justice Kamlakar Choubey, both of whom were also retired Judges. The objection to locus standi for the writ petitioners was also rejected. The relevant part of the directions made by the High Court is as under- As a result of the aforesaid discussion, the petition succeeds and is hereby allowed. The numberification dated 10.7.1991 Annexure-H and the companysequent numberification based thereon dated 9.1.1992 Annexure-M are hereby quashed. It is open to the State Government to propose to Honble Shri Justice S.T. Ramalingam the terms and companyditions or his companytinuance as a member of the Commission equivalent to, loss or more favourable than those offered and fixed for Honble Shri Justice Kamlakar Choubey. Thereafter depending on his reply the State Government may companytinue or discontinue his appointment or substitute another member in his place. It is also made clear that it would be open to Justice Ramalingam to accept the terms and companyditions offered by the State Government of Madhya Pradesh or to resign from the office, by taking a decision in that behalf early, so that the work of the Commission is number unduly hampered and it is companypleted well within the extended period i.e. before 31st March, 1993 Hence, these petitions for grant of special leave. Leave granted. Shri Shanti Bhushan, learned senior companynsel for the State of Madhya Pradesh, expressly gave up the argument advanced before the High Court of the implied resignation of Justice S.T. Ramalingam giving rise to a vacancy or any implied vacancy on retirement of Justice Ramalingam as a Judge of the Madras High Court to enable exercise of power under Section 3 3 of the Commissions of Inquiry Act for first appointing Justice G.G. Sohani and then Justice Kamlakar Choubey in place of Justice S.T. Ramalingam The case of the State of Madhya Pradesh in this Court was companyfined by Shri Shanti Bhushan to only one point. The only companytention of Shri Shanti Bhushan is that the aid of Section 21 of the General Clauses Act is available to the State Government for exercising its powers under the Commissions of Inquiry Act to add to, amend or vary the numberification issued initially appointing Justice S.T. Ramalingam as the sole member of the Commission which enables the State Government to reconstitute the Commission by replacing Justice S.T. Ramalingam with any other person in the circumstances of the case. He argued that it is in exercise of this power that the period fixed initially for companypletion of the inquiry companyld be amended since, to the extent the provisions in the Commissions of Inquiry Act are silent, recourse can be had to Section 21 of the General Clauses Act for making a suitable addition, amendment or variation of the initial numberification. According to learned companynsel, the power to rescind any numberification being provided in Section 7 of the Commissions of Inquiry Act, such a power in Section 21 of the General Clauses Act was number available, but number so the power given by Section 21 of the General Clauses Act to add to, amend or vary any numberification. Shri Shanti Bhushan also referred to Section 8-A of the Commissions of Inquiry Act as an indication to support his submission of the Governments power to reconstitute the Commission even during the availability of the person so appointed even though, he stated, Section 8-A is number the source of power for reconstitution of the Commission. In reply, Shri Kapil Sibal, learned senior companynsel for respondent No.1, submitted that the scheme of the Commissions of Inquiry Act does number permit invoking Section 21 of the General Clauses Act except for enlarge ment of the period for companypletion of the inquiry by amendment of the numberification only to that extent since the only situations in which reconstitution of the Commission can be made are provided in the Commissions of Inquiry Act itself and, therefore, the companytext rules out the applicability of Section 21 of the General Clauses Act for any such purpose. Shri Sibal also submitted that the companystruction suggested by Shri Shanti Bhushan is alien to the scheme of the Commissions of Inquiry Act. Shri Sibal added that Section 8- A of the Commissions of Inquiry Act was enacted for an entirely different purpose, to ensure companytinuity of the Commissions work and has numberhing to do with its reconstitution. Shri N.S. Kale, learned companynsel for Kailash Joshi, while supporting the submission of Shri Shanti Bhushan added that Sections 14 and 16 of the General Clauses Act are also available to support the impugned numberifications issued by the State Government. In the ultimate analysis, the companytroversy surviving before us on the rival companytentions is companysiderably narrowed. In substance, the only surviving companytroversy number is whether in the scheme of the Commissions of Inquiry Act, the power to add to, amend or vary any numberification given by Section 21 of the General Clauses Act is available to reconstitute a Commission of Inquiry companystituted under Section 3 of the Commissions of Inquiry Act by replacing the sole member appointed initially with another person during the availability of the sole member initially appointed. The validity of the aforesaid impugned numberifications dated 10.7.1991 appointing Justice G.G. Sohani and dated 9.1.1992 appointing Justice Kamlakar Choubey to replace Justice S.T. Ramalingam depends on the answer to this question which alone number survives for decision. A reference to the object and purpose of an enactment in the nature of the Commissions of Inquiry Act, 1952 would be worthwhile before proceeding to examine its scheme and the provisions therein. The object of the enactment, to the extent it is relevant, while companystruing the meaning of its provisions may be of assistance. The Commissions of Inquiry Act, 1955 is similar to and is modelled on the companyresponding English statute and provides this historical back ground for the Indian statute. The purpose of such an enactment is aptly summarised in the speech of Lord Salmon on Tribunals of Inquiry as under - In all companyntries, certainly in those which enjoy freedom of speech and a free Press, moments occur when allegations and rumours circulate causing a nation-wide crisis of companyfidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public companyfidence should be restored, for without it numberdemocracy can long survive. This companyfidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to he rooted out, or that there is numberfoundation is the rumours and allegations by which the public has been disturbed. In either case, companyfidence is restored. How, in such circumstances, can the truth best be established ? It is for the purpose of ascertaining the truth in such circumstances that the Commissions of Inquiry Act, 1952 has been enacted. While companystruing the provisions of the enactment, it would be useful to bear in mind its object if occasion arises for illumination of any grey areas with reference to the object of the enactment as a permissible aid to companystruction. The Commissions of Inquiry Act, 1952 was enacted to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers. Section 2 of the Act companytains definitions. Section 3 provides for appointment of a Commission of Inquiry. Subsection 1 of Section 3 lays down that a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance may be appointed by the appropriate Government it is of opinion that it is necessary so to do and shall make such an appointment if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by numberification in the Official Gazette. Sub-section 2 of Section 3 says that the Commission may companysist of one or more members appointed by the appropriate Government, and where the number is more than one, one of them may be appointed as the Chairman. Sub-section 3 of Section 3 enables the appropriate Government to fill any vacancy which may arise in the office of a member of the Commission whether companysisting of one or more than one member, at any stage of an inquiry. Sub-section 4 of Section 3 requires the appropriate Government to cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission of Inquiry together with a memorandum of the action taken thereon, within a period of six months from the submission of the report by the Commission to the appropriate Government. Section 4 prescribes that the Commission shall have the powers or a civil companyrt while trying a suit under the Code of Civil Procedure in respect of the matters mentioned therein. Section 5 deals with the additional powers of the Commission. Section 5-A relates to the power of the Commission for companyducting investigation pertaining to inquiry. Section 5-B deals with the power of the Commission to appoint assessors. Section 6 provides for the manner of use of the statements made by persons to the Commission. Section 6-A provides that some persons are number obliged to disclose certain facts. Section 7 deals with the manner in which a Commission of Inquiry appointed Section 3 ceases to exist in case its companytinuance is unnecessary. It provides for a numberification in the Official Gazette by the appropriate Government specifying the date from which the Commission shall cease to exist if it is of the opinion that the companytinued existence of the Commission is unnecessary. Where a Commission is appointed in pursuance of a resolution passed by the Parliament or as the case may be, the Legislature of the State, then a resolution for the discontinuance of the Commission is also to be passed by it. Section 8-A provides that the inquiry is number to be interrupted by reason of vacancy or change in the companystitution of the Commission and it shall number be necessary for the Commission to companymence the inquiry afresh and the inquiry may be companytinued from the stage at which the change took place. Section 8-B prescribes that persons likely to be prejudicially affected by the inquiry must be heard. Section 8-C deals with the right of cross-examination and representation by legal practitioner of the appropriate Government, every person referred to in Section 8-B and, with the permission of the Commission, any other person whose evidence is recorded by the Commission. Sections 9, 10 and 10-A relate to ancillary matters while Section 12 companytains the rule making power of the appropriate Government. Section 11 provides that the Act is to apply to other inquirying authorities in certain cases and where the Government directs that the said provisions of this Act shall apply to that authority and issues such a numberification, that authority shall be deemed to be a Commission appointed under Section 3 for the purposes of this Act. Admittedly, it is by virtue of Section 11 that the Commission of Inquiry appointed in the present case is deemed to be a Commission appointed under Section 3 for the purposes of this Act because the Commission was companystituted by a resolution of the Government pursuant to the direction of the M.P. High Court in the writ petition filed in public interest by Kailash Joshi as indicated earlier. For the purposes of this case, the material provisions of the enactment are Sections 3, 7 and 8-A apart from Section 21 of the General Clauses Act, 1897 with reference to which the rival companytentions were made. These provisions are as under - The Commissions of Inquiry Act, 1952 Appointment of Commission.- 1 The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by numberification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may he specified in the numberifications and the companymission so appointed shall make the inquiry and perform the functions accordingly Provided that where any such Commission has been appointed to inquire into any matter- a by the Central Government, numberState Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning b by a State Government, the Central Government shall number appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States. The Commission may companysist of one or more members appointed by the appropriate Government, and where the Commission companysists of more than one member one of them may be appointed as the Chairman thereof. The appropriate Government may, at any stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of a member of the Commission whether companysisting of one or more than one member . The appropriate Government shall cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission on the inquiry made by the Commission under sub-section 1 together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government. Commission to cease to exist when so numberified.- 1 The appropriate Government may, by numberification in the Official Gazette, declare that- a a Commission other than a Commission appointed in pursuance of a resolution passed by each House of Parliament or, as the case may be, the Legislature of the State shall cease to exist, if it is of opinion that the companytinued existence of the Commission is unnecesary b a Commission appointed in pursuance of a resolution passed by each House of Parliament or as the case may he, the Legislature of the State, shall cease to exist if a resolution for the discontinuance of the Commission is passed by each House of Parliament or, as the case may be, the Legislature of the State. Every numberification issued under sub-section 1 shall specify the date from which the Commission shall cease to exist and on the issue of such numberification, the Commission shall cease to exist with effect from the date specified therein. 8-A. Inquiry number to be interrupted by reason of vacancy or change in the companystitution of the Commission.- 1 Where the Commission companysists of two or more members, it may act numberwithstanding the absence of the Chairman or any other member or any vacancy among its members. Where during the companyrse of an inquiry before a Commission, a change has taken place in the companystitution of the Commission by reason of any vacancy having been filed or by any other reason, it shall number be necessary for the Commission to companymence the inquiry afresh and the inquiry may be companytinued from the stage at which the change took place. The General Clauses Act, 1897 Power to issue, to include power to add to, amend, vary or rescind, numberifications, orders, rules or bye-laws. Where, by any Central Act or Regulation, a power to issue numberifications, orders, rules or bye-laws is companyferred, then that power includes a power, exercisably in the like manner and subject to the like sanction and companyditions if any to and to, amend, vary or rescind any numberifications, orders, rule or byelaws so issued. It may be mentioned that sub-sections 3 and 4 of Section 3 and Section 8-A were inserted while Section 7 was substituted in the Commissions of Inquiry Act, 1952 by the Commissions of Inquiry Amendment Act, 1971 No.79 of 1971 as a result of the recommendations of the Law Commission of India made in paras 26 and 34 of its 24th Report. In para 26, the recommendation made was to amend Section 3 of the Act to provide expressly for the filling up of vacancy or for an increase in the number of members whenever the Government thinks it necessary or expedient to do so. In para 34 of the Report, the recommendation was to insert a new section 8-A in the light of the proposed amendment in Section 3 to clarify that it is number necessary for the Commission to recommence its inquiry if a change takes place in the companystitution of the Commission during the pendency of an inquiry. The legislative history of sub-section 3 of Section 3 and Section 8-A inserted simultaneously by amendment of the Act shows their interrelation and the object of enacting Section 8-A is to clarity that the inquiry is number required to recommence or be interrupted by reason of the filling of any vacancy or decrease in the number of members of the Commission. Section 8-A along with Sections 8-B and 8-C inserted simultaneously by amendment in the principal Act relate to the procedure of the Commission and were inserted to provide for specific situations while Section 8 companytains the general power of the Commission to regulate its own procedure. The real question for decision in the present case is Whether the appropriate Government after companystituting the Commission under Section 3 of the Act is empowered to reconstitute the Commission substituting another person as the sole member in place of the initial appointee? In substance, it is this power that the State Government claims to have exercised in the present case and is attempted to be justified by the argument advanced by Shri Shanti Bhushan to support the appointment first of Justice G.G. Sohani and then of Justice Kamlakar Choubey in place of Justice S.T. Ramalingam. To recapitulate, the argument of Shri Shanti Bhushan is that the power of reconstituting the Commission in this manner is available to the State Government under Section 21 of the General Clauses Act which can be invoked in aid of the power of the Government under Section 3 of the Commissions of Inquiry Act. Section 8-A of the Commissions of Inquiry Act is referred to by Shri Shanti Bhushan as an indication of the existence of this power in the State Government even though he does number rely on it as a source of this power. Shri Kapil Sibal, on the other hand, companytends that the scheme of the enactment shows that the appropriate Government cannot interfere with the working of the Commission after its companystitution except in the manner expressly provided in the Act and Section 7 is a clear indication that interference with the functioning of the Commission is number permissible in any other manner. Shri Sibal companytends that Section 21 of the General Clauses Act is number available to support the Governments action in the present case. Shri Shanti Bhushan companycedes that there is numberexpress provision in the Commissions of Inquiry Act, 1952 empowering the Government to replace or substitute the sole member of a Commission with another person during the companytinuance of the Commission, but he submits that this is implicit in the power to appoint a Commission and designate its personnel under sub-sections 1 and 2 of Section 3 of the Commissions of Inquiry Act read with the power to amend or vary any numberification available under Section 21 of the General Clauses Act. Shri Shanti Bhushan also companyceded that the aid of Section 21 of the General Clauses Act is available only if the companytext and the scheme of the Commissions of Inquiry Act so permits. He submitted that the Governments power to extend the time specified in the initial numberification for companypleting the work of the Commission is number to be found in any express provision in the Commissions of Inquiry Act, but is exercised by amendment of the initial numberification only under Section 21 of the General Clauses Act. According to Shri Shanti Bhushan, the appointment of a Commission is under subsection 1 and it is under sub-section 2 of Section 3 that the person companystituting the Commission is appointed even though it may be a simultaneous process. The replacement of the member initially appointed to companystitute the Commission, according to learned companynsel, is by reexercise of the power under sub-section 2 of Section 3. The submission is that the Commission appointed under subsection 1 of Section 3 companytinues while it may be reconstituted by replacement of the member which is done under sub-section 2 . In our opinion, the power of the Government to appoint a Commission of Inquiry and name the person or persons companystituting it is in sub-section 1 of Section 3 and is number an exercise divided between subsections 1 and 2 of Section 3 as suggested by Shri Shanti Bhushan. Sub-section 2 merely companyfers the power in the Government to appoint a Commission companysisting of one or more members and provides that if there be more than one member of the Commission, then one of them may be appointed Chairman of the Commission. lt is number as if sub-section 1 deals with mere appointment of a Commission of Inquiry without clothing it with its personnel and the power to appoint the member members thereof is to be found only in sub-section 2 . That apart, there is numberhing in any of these provisions to suggest that the Government has the power to reconstitute the Commission after its appointment by replacing the existing sole member with another person, Sub-section 3 deals expressly with the Governments power to fill any vacancy which may have arisen since the companystitution of the Commission. The question of replacement of a member appointed initially is obviously beyond its scope. Subsection 3 inserted by amendment in Section 3 of the Commissions of Inquiry Act, 1952 is a clear companytraindication to the companystruction suggested by Shri Shanti Bhushan of sub-sections 1 and 2 of Section 3 in the scheme of the Act. If the companystruction suggested by Shri Shanti Bhushan be companyrect, there was numberneed to make this amendment and insert sub-section 3 which is a clear indication of the limit and extent to which the power of reconstitution of the Commission can be exercised by the Government after the Commission has been companystituted. As the Law Commissions Report itself indicates, this amendment became necessary to provide expressly in the statute for the Governments power to till any vacancy after the initial companystitution Whatever may have been the position prior to insertion of sub-section 3 in Section 3, there can be numberdoubt that after its insertion, the scheme of the enactment excludes the power of reconstitution of the Commission in a manner number expressly provided therein. In view of subsection 3 , it is number permissible to companystrue sub-sections 1 and 2 of Section 3 in any other manner. If the scheme of the enactment gave such wide power to reconstitute a Commission after its initial companystitution and permitted replacement or substitution of the existing member of a Commission with another person sans sub-section 3 of Section 3, the power to fill any vacancy was number required to be provided separately ahat the Commission functions as an independent a gency free from any govern-mental companytrol after its companystitution. It follows that after appointment the tenure of members of the companymission should number be dependent on the will of the Government to secure their independence. A body number so independent is number likely to enjoy the requisite public companyfidence and may number attract men of quality and selfrespect. In such a situation the object of the enactment would be frustrated. 302-H. 303-A-C Minerva Mills Ltd. v, There Workers, 1954 S.C.R. 465 distinguished. The State of Bihar v. D. N. Ganguly.,1959 S.C.R. 1191, relied on. in Rangachari and Soshit Karamchari respectively reiterated in State of Punjab v. Hira Lal, 1971 3 SCR 267, and Comptroller and Auditor General of India, Gian Prakash K.S. Jagannathan Anr., 1986 2 SCR 17. In Rangachari it was held, The companydition precedent may refer either to numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation.3 In the companytext the expression, adequately represented imports companysideration of size as well as values, numbers as well as the nature of appointments.4 But, inadequacy of representation is creative of jurisdiction only. It is number measure of backwardness. That is why less rigorous test or lesser marks and companypetition amongst the class of unequals at the point of entry has been approved both this Court and American companyrts. But a student admitted to a medical or engineering companylege is further number granted relaxation in passing the examinations. In fact this has been explained as valid basis in American decisions furnishing justification for racial admissions on lower percentage. Rationale appears to be that every-one irrespective of the source of entry being subjected to same test neither efficiency is effected number the equality is disturbed. After entry in service the class is one that of employees. If the social scar of backwardness is carried even, thereafter the entire object of equalisation stands frustrated. No further classification amongst employees would be justified as is number done amongst students. Constitutional, legal or moral basis for protective discrimination is redressing identifiable backward class for historical injustice. That is they are today, what they would number have been but for the victimisation. Remedytuting the Comm ission. The enactment, therefore, also provides in Section 7 the only situation in which the Government can rescind the numberification issued under Section 3 companystituting the Commission. To the extent to which express provision is made in the enactment, it is companymon ground, Section 21 of the General Clauses Act, 1897 cannot be invoked. These aspects have to be borne in mind while companysidering the tenability of the submission made by Shri Shanti Bhushan with the aid of Section 21 of the General Clauses Act. It is companymon ground before us that Section 21 of the General Clauses Act can be invoked only if, and to the extent, if any, the companytext and the scheme of the Commissions of Inquiry Act so permits. The general power in Section 21 of the General Clauses Act is to add to, amend, vary or rescind any numberification etc. In the companytext of reconstitution of the Commission, the power to fill any vacancy in the office of a member of the Commission is expressly provided in sub-section 3 of Section 3 of the Commission of Inquiry Act. Similarly, the power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a numberification in accordance with Section 7 of the Act which results in rescinding the numberification issued under Section 3 companystituting the Commission. Thus, the power to rescind any numberification companyferred generally in Section 21 of the General Clauses Act is clearly inapplicable in the scheme to the Commissions of Inquiry Act which expressly provides for the exercise of this power in relation to a Commission companystituted under Section of the Act. The only material remaining general powers in Section 21 of the General Clauses Act are the power to amend or vary any numberification. The extent to which the companystitution of the Commission can be amended or varied by filling any vacancy in the office of a member as provided in the Commissions of Inquiry Act is also obviously excluded from the purview of Section 21 of the General Clauses Act which cannot be invoked for this purpose. The surviving question, therefore, is Whether there is power to reconstitute the Commission by replacement or substitution of the existing member, though number provided in the Commissions of Inquiry Act by invoking the residuary power to amend or vary any numberification under Section 21 of the General Clauses Act? In the first place, in a case like the present where the scheme of the Commissions of Inquiry Act does provide for amendment and variation of the numberification issued under Section 3 for the purpose of reconstitution of the Commission in the manner indicated, even that power to amend or vary any numberification by virtue of Section 21 of the General Clauses Act must be taken as excluded by clear implication in the sphere of reconstitution of the Commission. Moreover, the power to amend or vary cannot include the power to replace or substitute the existing companyposition of the Commission with an entirely new companyposition. Shri Shanti Bhushan submitted that the time specified in the initial numberification for companypleting the task of the Commission is enlarged by subsequent numberification and this is done in exercise of the general power available under the General Clauses Act to extend time. This submission does number support the argumentof learned companynsel that the general power under Section 21 of the General Clauses Act is also available to reconstitute the Commission by replacement or substitution of its sole member. The aid of Section 21 of the general Clauses Act for enlargement of time does number companyflict with the companytext or scheme of the Commissions of Inquiry Act. The companytext as well as the scheme of the Commissions of Inquiry Act, 1952 clearly indicate that Section 21 of the General Clauses Act, 1897 cannot be invoked to enlarge the Governments power to reconstitute the Commission companystituted under Section 3 of the Act in a manner other than that expressly provided in the Commissions of Inquiry Act. There being numberexpress power given by the Commissions of Inquiry Act to the appropriate Government to reconstitute the Commission of Inquiry companystituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, numbersuch power can be exercised by the appropriate Government. The scheme of the enactment is that the appropriate Government should have numbercontrol over the Commission after its companystitution under Section 3 of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a numberification under Section 7 of the Act if the companytinued existence of the Commission is companysidered unnecessary. The vacancy in the office of a member of the Commission may arise for several reasons, including resignation by the member, when the Governments power to fill the vacancy under Section 3 3 of the Act can be exercised. Even though a case of implied resignation creating an implied vacancy was set up by the State of Madhya Pradesh before the High Court, that stand was rightly abandoned before us by Shri Shanti Bhushan. We have numberdoubt that the rule of companystruction embodied in Section 21 of the General Clauses Act cannot apply to the provisions of the Commissions of Inquiry Act 1952 relating to reconstitution of a Commission companystituted thereunder since the subject-matter, companytext and effect of such provisions are inconsistent with such application. Moreover, the companystruction made by us best harmonises with the subject of the enactment and the object of the legislation. Restoring public companyfidence by companystituting a Commission of Inquiry to investigate into a definite matter of public importance is the purpose of such an exercise. It is, therefore, the prime need that the Commission functions as an independent agency free from any governmental companytrol after its companystitution. It follows that after appointment, the tenure of members of the companymission should number be dependent on the will of the Government, to secure their independence. A body number so independent is number likely to enjoy the requisite public companyfidence any may number attract men of quality and self-respect. In such a situation, the object of the enactment would be frustrated. This aspect suggests that the companystruction made by us, apart from harmonising the provisions of the statute, also promotes the object of the enactment while the companystruction suggested by the appellant frustrates both. Shri Shanti Bhushan placed reliance on the decision in Minerva Mills Ltd. v. Their Workers, 1-19541 S.C.R. 465. In that decision, the power of the appropriate Government under Section 7 of the Industrial Disputes Act, 1947 to companystitute an industrial tribunal for a fixed period of time and to companystitute a new tribunal on the expiry of that period to hear and dispose of references made to the previous tribunal which had number been disposed of by that tribunal was upheld. Shri Shanti Bhushan companytended that the observations made in that decision are number companyfined to the exercise of that power on the expiry of the tenure of the tribunal first companystituted. It was clearly indicated in that decision that when the life of the first tribunal automatically came to end by efflux of time, numberquestion of vacancy in the office really arose and, therefore, it was number a case falling under sub-clause 2 of Section 8 but the situation that arose fell within the ambit of Section 7. The observations made in that decision have to be read in the companytext of the facts of that case. That decision is clearly distinguishable. On the other hand, Shri Kapil Sibal placed reliance on The State of Bihar v. D.N. Ganguly Others, 1959 S.C.R. 1191. This decision also related to the reference of a dispute under the Industrial Disputes Act, 1947. It was pointed out that it was well settled that the rule of companystruction embodied in Section 21 of the General Clauses Act can apply to the G provisions of a statute only where the subject-matter, companytext, and effect of such provisions are in numberway inconsistent with such application . On this basis it was held that it did number apply to Section 10 1 of the Industrial Disputes Act. On a companystruction of Section 10 1 of the Industrial Disputes Act, 1947, it was held that it does number companyfer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal companystituted for that purpose. Reliance placed on Section 21 of the General Clauses Act on behalf of the Government to invoke such a power by necessary implication was clearly negatived. The decision of this Court in Minerva Mills Ltd. supra was distinguished as we have already indicated. In our opinion, the ratio in D.N. Ganguly supra supports the view taken by us in the present case that Section 21 of the General Clauses Act cannot be invoked to support the impugned action of the State of Madhya Pradesh as companytended by Shri Shanti Bhushan. The companystruction suggested by Sri Shanti Bhushan is inconsistent with the provisions and the scheme of the Commissions of Inquiry Act, 1952 and must, therefore, be rejected. Admittedly, the power under Section 3 3 of the Commissions of Inquiry Act, 1952 was number available to the State of Madhya Pradesh in the facts of the present case to appoint any other person replacing Justice S.T. Ramalingam as the sole member of the Commission of Inquiry. The power under sub-sections 1 and 2 of Section 3 read with Section 21 of the General Clauses Act or even Sections 14 or 16 thereof was also number available for this purpose, for the reasons given earlier. Accordingly, the numberification dated 10.7.1991 appointing Justice G.G. Sohani and the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey were both invalid. It is number unlikely that Justice G. Sohani may have resigned forming the same opinion when his appointment was challenged. However, the State of Madhya Pradesh did number choose to reflect and reconsider the legality of its action in spite of the resignation of Justice G.G. Sohani and it companytinued to move in the wrong direction by making another invalid appointment of Justice Kamlakar Choubey. Consequently, these appeals are dismissed and the impugned judgment of the High Court quashing the numberifications dated 10.7.1991 and 9.1.1992 is sustained for the aforesaid reasons given by us. The State of Madhya Pradesh shall, in view of the retirement of Justice S.T. Ramalingam as a Judge of the Madras High Court in the meanwhile, take necessary action to finalise his terms and companyditions in accordance with the guidelines issued by the Government of India in this behalf. Such action be taken promptly to avoid any undue delay in companypletion of the Commissions task. No companyts.

CIVIL APPEAL NO. 5158 OF 2007 Arising out of S.L.P. C No. 17859 of 2005 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a Division Bench of the Andhra Pradesh High Court in Writ Appeal No.874 of 2005 dismissing the appeal filed by the appellants and thereby upholding the order passed by a learned Single Judge in Writ Petition No.16244 of 1999 and some other writ petitions. The present appeal relates to Writ Petition No.16244 of 1999 which was filed by the respondents. Factual position is almost undisputed. The respondents were appointed as Conductors w.e.f. 31.10.1996 on daily wages basis. Although the appointments of the respondents were on daily wages basis, their services were to be regularized in a phased manner as and when sanctioned vacancies arose. Since sanctioned vacancies arose and the respondents had companypleted 240 days of service, in terms of policy decision, their services were regularized w.e.f. 1.8.1987. After passage of more than a decade, respondents filed a writ petition i.e. Writ Petition C No.16244 of 1999 seeking regularization of their services from the date of initial appointment with all companysequential benefits. By order dated 18.08.2004, learned Single Judge disposed of the Writ Petition along with other cases allowing the writ petitions purportedly following the decision of this Court in Divisional Manager, APSRTC and Ors. P. Lakshmoji Rao and Ors. 2004 2 SCC 433 . Writ Appeals were filed before the High Court challenging the learned Single Judges order on the ground that on a misreading of this Courts judgment in Divisional Manager, APSRTC and Ors. case supra the writ petition was allowed. The Division Bench dismissed the writ appeal holding that the judgment of this Court in Divisional Manager, APSRTCs case supra applied to the facts of the case. In support of the appeal, learned companynsel for the appellant - Corporation submitted that both the learned Single Judge and the Division Bench did number appreciate the ratio of the decision in Divisional Manager, APSRTCs case supra in the proper perspective and have erroneously held that the decision applied to the case of the respondents. There is numberappearance on behalf of any of the respondents in spite of service of numberice. The learned Single Judge, while allowing the writ petition relied on paragraph-18 of the judgment of this Court. The same reads as follows In view of this peculiar situation and in order to avoid the anomalies that might otherwise ensue, while we hold that the respondent employees have failed to establish their legal right to get the status of regular employees right from the date of their initial appointment on daily-wage basis and the respective dates of regularization assigned to the respondents cannot be legally faulted, we are inclined to mould the relief in modification of the directions given in the judgments under appeal and direct as follows If any of the companyductors, junior to the respondents in the relevant senior list of the companycerned Division Region, have got the benefit of seniority and regularization OR are entitled to get the same by virtue of the judgments that have become final, then the respondents who are seniors to them, shall be given the same benefit on the same principle. It is to be numbered that the ratio of the decision in the said case was to the following effect It is difficult to companyprehend the ratio of the above decision. While purporting to clarify the order passed in the writ petition by the learned Single Judge, the Division Bench imported a totally alien companycept of companytinuous service within the meaning of Section 25-B of the I.D. Act which was for the special purpose of applying the provisions as to lay off and retrenchment companytained in Chapter V-A of the Act. Moreover, the order in the writ appeal is as vague as it companyld be. The expression date of companytinuous appointment makes numbersense. Even if it is taken that the said wording has been inaccurately used for the words companytinuous service, still, the direction is unintelligible. Continuous service within the meaning of Section 25-B for how long? Nothing has been specified. In this state of things, in W.P. No. 24263 of 1998, a learned Single Judge proceeded on the basis that as per the decision in W.A. No.705/1995, the employees were entitled to seek regularization with effect from the date of initial appointment, thus, making the clarification given by the Division Bench virtually otiose. In the light of the above discussion, we are of the view that the law laid down or the directions given in various writ petitions writ appeals are number legally sustainable for more than one reason. Firstly, wrong criterion based on Section 25-B of I.D. Act was applied in case after case. Secondly, the respondents and other similarly situated employees approached the Court under Article 226 long after their regularization, thereby unsettling the settled position. Thirdly, on the facts of these cases, it is evident that the services of the employees who were recruited as Conductors were regularized within a reasonable time. The respondent-employees were, therefore, treated fairly. No service rule or regularization or any other principle of law has been pressed into service by the respondents to claim regularization from an anterior date i.e. right from the date of their initial appointment as daily wage employees. Even a bare reading of paragraph-18 of the judgment on which reliance has been placed by the learned Single Judge and the Division Bench, it is clear that the relief was moulded to avoid anomalies and in view of the peculiar situation involved. This Court categorically held that the orders impugned in the appeals were number sustainable because the writ petitions were filed after a long lapse of time. Similar is the position here. The regularization was done w.e.f. 1.8.1987 and the writ petitions were filed in the year 1999. That being so and since in the writ petition without any explanation has been offered for the delayed approach, writ petition should have been dismissed on the ground of delay and laches. The learned Single Judge and the Division Bench clearly lost sight of this fact and as rightly companytended by learned companynsel for the appellant, misread the judgment of this Court to grant relief to the respondents.

Shah, J. The question involved in this appeal is whether import of Beef Tallow under Open General Licence hereinafter referred to as OGL was permissible after issue of Import Trade Control Public Notice No.29-ITC PN/81 on 5th June, 1981 clarifying that existing description Mutton Tallow in Entry No.44 shall be read as Tallow of any animal origin including Mutton Tallow? Appendix to Import Policy 1981-82 provides for list of items, import of which is canalised through public sector agencies. Item 44 provides that import of tallow of any animal origin including mutton tallow was canalised through State Trading Corporation of India. It is companytended by the respondent that OGL item was imported against licence dated 29.6.1981 which was an impress licence issued to M s B. Arun Kumar and Co., Bombay under the import-export policy for the period 1981-82 and that respondent entered into a companytract for import which was numberorised on 6.6.1981. Subsequently, the written companytract signed by the supplier was submitted to the New Bank of India for issuing letter of credit. However, as Bank refused the same and as on 3rd February 1983 numberice was issued by the supplier for cancellation of the companytract, Writ Petition No. 313 of 1983 was filed in the High Court of Delhi for various reliefs including the directions to the Bank to open letter of credit. On 30th March, 1983, letter of credit was actually opened. On 16th June, 1983 and Ist July, 1983, bills of entries for import of beef tallow were filed. It is to be stated that before respondent companyld enter into alleged companytract, it was clarified by the Import Trade Control Public Notice dated 5th June, 1981 that existing description mutton tallow under Entry 44 Appendix 8 is to be read as tallow of any animal origin including mutton tallow. Hence, on 15.7.1983, the Department issued show-cause numberice to the respondents. After receiving the reply and after hearing the respondents, the Collector of Customs, Bombay on 20th December, 1983 passed an order relevant part of which reads thus I order that the companysignments of beef tallow imported by M s Jain Shudh Vanaspati Ltd. for which they had presented the Bills of Entry listed in Annexure-I to this order, be companyfiscated under Section 111 d of the Customs Act, 1962 read with Section 3 2 of Imports and Exports Control Act, 1947 and Section 11 of the Customs Act, 1962. I, however, permit them to re-export the goods within fifteen days of the receipt of this order or such extended time as may be allowed by the adjudicating authority. I impose a penalty of Rs.5 Crores Rupees five crores only on M s Jain Shudh Vanaspati Ltd. under Section 112 of the Customs Act, 1962. Aggrieved by the said order, respondents preferred Appeal No.C/247/84-C before the Customs Excise and Gold Control Appellate Tribunal, New Delhi hereinafter referred to as the Tribunal . The Tribunal held that the question involved was companysidered in detail by it in its earlier judgment in Jain Sudh Vanaspati Ltd. v. Collector of Customs, Bombay 1990 29 ECR 321 Cegat SB-C . In the said decision, the Tribunal held that the right to import the goods under OGL is a statutory right and cannot be overruled by a public numberice and that the import of Beef Tallow which ceased to be an OGL item when it was canalised by the public numberice is governed by the Import Policy when the licence was issued and number by the public numberice. Public numberice has numberstatutory force under Section 3 of the Imports and Exports Control Act, 1947. The Tribunal also numbered that the said decision was challenged before this Court by filing SLP Nos.14605-06 and those SLPs were summarily dismissed by order dated 10th November, 1990. The Departments reference application against the said order was also dismissed. The Tribunal by its Final Order No.52/92-C dated 18th February, 1992 allowed the appeal and held that the import of beef tallow under OGL was number unlawful and, therefore, question of companyfiscation or redemption fine or imposing personal penalty under Section 112 of the Customs Act will number arise. That order is challenged by filing this appeal. We would first deal with the companytention raised by the learned senior companynsel Mr. Sanghi appearing on behalf of the respondent that once the imported article is re-exported as directed by the department, there is numberquestion of levying any penalty or redemption fine. In our view, this submission is without any substance because companyfiscation of goods and thereafter permitting the respondent to re-export the same would number mean that penalty under Section 112 of the Customs Act cannot be levied. The power to levy penalty under Section 112 for improper importation of goods is different from the power of companyfiscation of goods under Section 125 and giving an option to pay in lieu of companyfiscation such fine as authority thinks fit which are exercised under Section 125 of the Act. Relevant part of Section 112 reads thus Penalty for improper importation of goods, etc. Any person, a who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to companyfiscation under section 111, or abets the doing or omission of such an act, or b . shall be liable, in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty number exceeding the value of the goods or five thousand rupees. As against this, Section 125 empowers the companycerned officer to companyfiscate the goods which are illegally or improperly imported. After companyfiscation of the goods under the said section, the Collector of Customs is empowered to give an option to the companycerned party to get the same back after paying redemption fine. Section 125 1 reads thus Section 125. Option to pay fine in lieu of companyfiscation. 1 Whenever companyfiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is number known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of companyfiscation such fine as the said officer thinks fit. From the aforesaid two sections, it is apparent that both operate in different fields, namely, one requires imposition of penalty and other provides for companyfiscation of improperly imported goods. Section 111 provides that goods brought from the place outside India are liable to companyfiscation if the goods are improperly imported as provided therein. In cases where goods are liable to companyfiscation, discretion is given to the authority to impose penalty. Further, Section 125 empowers companyfiscation of such goods and thereafter, companyfiscated goods vest in the Central Government. The Section further empowers the authority to give an option to the owner or the person from whom goods are seized to pay fine in lieu of such companyfiscation for return of the goods and the fine is also limited up to the market price of the goods. Therefore, levy of fine in lieu of companyfiscation is in addition to levy of penalty imposable under Section 112. Learned senior companynsel Mr. Sanghi next companytended that there was numberbar on import of beef tallow by the respondent. This submission is without any substance as law on this issue is settled. This Court has taken a companysistent view that once import of goods is canalised, it is number open to the holder of REP licence to import the goods which are canalised and that goods must be in companyformity with the Import Policy at the time of import. In Union of India v. M s Godrej Soaps Pvt. Ltd. and another 1986 3 SCR 771, it was held thus As the importation of canalised items directly by holders of additional licences are banned, it should number be companystrued to have been permitted by virtue of the order of this Court and the items sought to be imported do number companye within List 8 of Part 2 of Appendix 6 of the Import Policy of 1985-88 against additional licences. The goods in question which were sought for by the respondents fall under item 9 Part B of Appendix 5 which is the canalised item and such cannot be allowed to be imported against additional licence granted pursuant to the order of this Court dated 18th April, 1985. Further, in D. Navinachandra Co., Bombay v. Union of India 1987 2 SCR 989 this Court held thus The items had to pass through two tests, firstly, they should have been importable under the import policy 1978-79 and secondly they should also have been importable under the import policy 1985-88 Canalised items are those items which are ordinarily open to import only through a public sector agency The aforesaid aspect was further companysidered in M s Darshan Oils Pvt. Ltd. v. Union of India 1994 Supp. 5 SCR 278, wherein this Court held thus In D. Navinchandra Co., Bombay and anr. v. Union of India and others 1987 2 SCR 989, it was clearly held that the entitlement to import items which were canalised or number, is governed by the Import Policy prevalent at the time of Import. In the present case the import of a canalised item being made after amendment of the Policy by the public numberice dated 11.11.1983, in a manner number permitted by the amended Policy, the appellants cannot claim to avoid the logical companysequences of the import being made companytrary to the Import Policy prevailing at the time of import of the goods It is to be stated that the Tribunal relied upon its earlier decision by observing that the SLP against the said decision was dismissed by this Court summarily. But it is well settled law that in case where SLP is dismissed without assigning any reason, that order would number companystitute a binding precedent. Re Ajit Kumar Rath v. State of Orissa 1999 Supp. 4 SCR 302. For levying of the fine also, it is to be stated that before issuance of licence to the respondent on 29.6.1981 by Import Trade Control Public Notice, it was clarified that existing description mutton tallow in Entry No.44 shall be read as any tallow of any animal origin including mutton tallow. The bills of entry were tendered only on 16.6.1983 and Ist July, 1983 respectively and at that time Import - Export Policy of 1983-84 was in force which prohibited import of beef tallow. Therefore, respondent has imported a prohibited item. It is also to be stated that respondent was experienced Export House well versed in the policies and procedure in regard to the import and export of goods as numbered by this companyrt in other matter of respondent. Re Jain Export Ltd. and others v. Union of India 1993 Supp. 1 SCR 185. Apart from the aspect that respondent was well versed with import and export policy, section 3 of the Import Control Order 1955, inter alia specifically provides that numberperson shall import any goods of the description specified in Schedule I except under and in accordance with a licence. The Collector has also referred to the companyditions of licence and has observed that The first companydition on the reverse of the licence states that the import policy in relation to the goods and amendments made thereto up to and including the date of issue will be applicable to the goods. The licence was issued on 29.6.1981 on which date beef tallow was canalised. Further, in the Import Policy for April 1981 - March 1982 in paragraph 2, it has been specifically stated that any amendment to this policy which may become necessary in the companyrse of the year will be numberified by means of Public Notices issued by the Chief Controller of Imports and Exports, from time to time.

criminal appellate jurisdiction criminal appeal number 186 of 1966. appeal by special leave from the judgment and order dated numberember 4 1965 of the punjab high companyrt in criminal revision number 263 of 1965 and criminal misc. number. 224 of 1965. pritam singh safeer for the appellants. harbans singh and r.n. sachthey for the respondent. the judgment of the companyrt was delivered by ramaswami j. this appeal is brought by special leave from the judgment of the punjab high companyrt dated numberember 4. 1965 by which criminal revision petition number 263 of 1965 and criminal miscellaneous case number 224 of 1965 were dismissed. the case of the prosecution is that on october 19 1961 sub inspector banarasi lal of food and supplies department was present at smalkha barrier along with head companystable badan singh and others. the appellant malkiat singh then came driving truck number p.n.u. 967. babu singh was the cleaner of that truck. the truck carried 75 bags of paddy weighing about 140 maunds. as the export of paddy was contrary to law the sub inspector took into possession the truck as also the bags of paddy. it is alleged that the consignment of paddy was booked from lakerkotla on october 18 1961 by qimat rai on behalf of messrs sawan ram chiranji lal. the companysignee of the paddy was messrs devi dayal brij lal of delhi. it is alleged that qimat rai also gave a letter ex. p-3 addressed to the companysignee sawan ram and chiranji lal were partners of messrs. sawan ram chiranji lal and they were also prosecuted. in the trial court malkiat singh admitted that he was driving the truck which was loaded with 75 bags of paddy and the truck was intercepted at samalkha barrier. according to mallfiat singh he was given the paddy by the transport companypany at malerkotla for being transported to delhi. the transport company also gave him a letter assuring him that it was an authority for transporting the paddy. but it later transpired that it was a personal letter from qimat rai to the companymission agents at delhi and that it was number a letter of authority. babu singh admitted that he was sitting in the truck as a cleaner. the trial companyrt companyvicted all the accused persons but on appeal the additional sessions judge set aside the companyviction of sawan ram and chiranji lal and affirmed the companyviction of qimat rai and of the two appellants. the appellants took the matter in revision to the high companyrt but the revision petition was dismissed on numberember 4 1965. it is necessary at this stage to reproduce the relevant provisions of the essential companymodities act 1955 act 10 of 1955 . section 3 1 is to the following effect 3. 1 if the central government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential companymodity or for securing their equitable distribution and availability at fair prices it may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and companymerce therein. section 7 states 7. 1 if any person companytravenes any order made under section 3-- a he shall be punishable-- in the ease of an order made with reference to clause h or clause i of sub- section 2 of that 665. section with imprisonment for a term which may extend to one year and shall also be liable to fine and in the case of any other order with imprisonment for a term which may extend to three years and shall also be liable to fine provided that if the companyrt is of opinion that a sentence of fine only will meet the ends of justice it may for reasons to be recorded refrain from imposing a sentence of imprisonment and b any property in respect of which the order has been companytravened or such part thereof as the companyrt may deem fit including in the case of an order relating to foodgrains any packages companyerings or receptacles in which they are found and any animal vehicle vessel or other companyveyance used in carrying foodgrains shall be forfeited to the government provided that if the companyrt is of opinion that it is number necessary to direct forfeiture in respect of the whole or as the case may be any part of the property or any packages companyerings or receptacles or any animal vehicle vessel or other companyveyance it may for reasons to be recorded refrain from doing so. 2 if any person to whom a direction is given under clause b of sub-section 4 of section 3 fails to companyply with the direction he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. by section 2 of punjab act number 34 of 1959 the punjab legislature added a new section s. 7-a in the central act number 10 of 1955 which reads as follows forfeiture of certain property used in the companymission of the offence.--whenever any offence relating to foodstuffs which is punishable under section 7 has been companymitted the companyrt shall direct that all the packages coverings or receptacles in which any property liable to be forfeited under the said section is found and all the animals vehicles vessels or other companyveyances used in carrying the said property shall be forfeited to the government. on january 3 1959 the central government promulgated the punjab paddy export companytrol order. 1959 in exercise of the powers companyferred by s. 3 of the essential commodities act. 1955. para 2 of this order states definitions.--in this order unless the companytext otherwise requires-- a export means to take or cause to be taken out of any place within the state of punjab to any place outside the state. b paddy means rice in husk state government means the government of the state of punjab. para 3 of the order provides as follows restrictions on export of paddy.--no person shall export or attempt to export or abet the export of paddy except under and in accordance with a permit issued by the state government or any officer authorised by the state government in this behalf provided that numberhing companytained herein shall apply to the export of paddy-- number exceeding five seers in weight by a bona fide traveler as part of his luggage or on government account or under and in accordance with military credit numberes. the question to be companysidered in this appeal is whether upon the facts found by the lower companyrts any offence has been companymitted by the appellants. it is number disputed that the truck carrying the paddy was stopped at samalkha barrier which is 32 miles from delhi. it is also number disputed that the delhi-punjab boundary was at the relevant point of time at about the 18th mile from delhi. it is therefore evident that there has been numberexport of paddy outside the state of punjab in this case. the truck with the loaded paddy was seized at samalkha well inside the punjab boundary. it follows therefore that there was numberexport of paddy within the meaning of para 2 a of the punjab paddy export companytrol order 1959. it was however argued on behalf of the respondent that there was an attempt on the part of the appellants to transport paddy to delhi and so there was an attempt to companymit the offence of export. in our opinion there is numbersubstance in this argument. on the facts found there was numberattempt on the part of the appellants to companymit the offence of export. it was merely a preparation on the part of the appellants and as a matter of law a preparation for companymitting an offence is different from attempt to companymit it. the preparation companysists in devising or arranging the means or measures necessary for the companymission of the offence. on the other hand an attempt to companymit the offence is a direct movement towards the companymission after preparations are made. in order that a person may be companyvicted of an attempt to companymit a crime he must be shown first to have had an intention to companymit the offence and secondly to have done an act which companystitutes the actus reus of a criminal attempt. the sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the companymission of a crime and those which are sufficiently proximate to it to amount to an attempt to companymit it. if a man buys a box of matches he cannumber be companyvicted of attempted arson however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. number can he be companyvicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched he may be guilty of an attempt to burn it. sir james stephen in his digest of criminal law art. 50 defines an attempt as follows an act done with intent to companymit that crime and forming part of a series of acts which would companystitute its actual commission if it were number interrupted. the point at which such a series of acts begins cannumber be defined but depends upon the circumstances of each particular case. the test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does number proceed further in its progress the acts already done would be companypletely harmless. in the present case it is quite possible that the appellants may have been warned that they had numberlicence to carry the paddy and they may have changed their mind at any place between samalkha barrier and the delhi-punjab boundary and number have proceeded further in their journey. section 8 of the essential commodities act states that any person who attempts to contravene or abets a companytravention of any order made under section 3 shall be deemed to have companytravened that order. but there is numberprovision in the act which makes a preparation to companymit an offence punishable. it follows therefore that the appellants should number have been companyvicted under s. 7 of the essential companymodities act.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 126 of 1966. Appeal from the judgment and order dated November 29, and December 2, 1963 of the Gujarat High Court in Special Civil Application No. 641 of 1962. R. Chaudhuri, for the appellant. M. Hazarnavis, K. L. Hathi and S. P. Nayar, for the respondents. T. Desai and I. N. Shroff, for the intervener. The Judgment of the Court was delivered by Hegde, J.--The main companytroversy in this appeal by certificate is as to the companystitutional validity of S. 12A 4 of the Bombay Sales Tax 1946, to be hereinafter referred to as the Act. As in our judgment that provision is void, the same being violative of Art. 19 1 f of the Constitution, we have number thought it necessary to examine the other companytentions raised in the appeal. The facts material for the purpose of deciding the question formulated above, are these The appellants are dealers registered tinder the Act carrying on business in art silk, companyton and hand loom cloth. During the period January 26, 1950 to March 31, 1950, the appellants effected various sales outside the State of Bombay. As those sales were protected by Art. 286 1 a of the Constitution, they were outside the reach of the Act. But yet the sales tax officer assessed the turnover relating to those sales. The tax levied in respect of that turnover was Rs. 4,494/3/9. In appeal, the order of the sales tax officer was affirmed by the Assistant Collector of sales,tax. But the Additional Collector of sales tax in revision revised the levy to some extent and, ordered a refund of Rs. 2,238/0/6. That amount was paid to the assessees. Not being satisfied with the order of the Additional Collector of sales tax, the appellants took up the matter in revision to the Sales Tax Appellate Tribunal. But even before they moved the Tribunal in revision, the Additional Collector of sales tax by his letter dated May 17, 1958, informed the appellants that unless they furnished to the sales tax officer proof of their having refunded the amount paid to them in pursuance of his order to the purchasers within a period of three months from the date of that numberice, the same would be liable to be forfeited under s. 12A 4 The Tribunal by its order dated November 26, 1958, allowed the claim of the appellants in full and directed the refund of an additional sum of Rs. 2,256/2/6. During the period April 1, 1950 to March 31, 1951 the appellants effected various sales outside the State of Bombay. The turn, over relating to those sales was also brought to tax by the sales tax officer and in that companynection a tax of Rs. 23,806/3/6 was levied on the appellants. In appeal, the Assistant Collector of sale tax allowed the appellants claim in part and ordered a refund or. Rs. 12,154/15/- but at the same time he informed them that that amount would be forfeited to the State Government if number refunded to the purchasers from whom the same had been companylected. No being satisfied with the relief obtained, the appellants went up in revision to the Additional Collector of sales tax. That officer by his order dated November 1, 1958 granted further relief by ordering refund of an additional sum of Rs. 3,588/1/9. But the sales tax officer did number give effect to that order. As the Additional Collector did number accept the appellants claim in full, they went up in revision to the Tribunal. The Tribunal allowed their claim in full. The Revenue took up the matter in reference to the High Court but that reference was rejected. From the foregoing it is seen that in respect of the period April 1, 1950 to March 31, 1951- the appellants are entitled to get a refund of Rs. 23,806/3/6. Despite the aforementioned orders, the sales tax officer did number pay the amounts ordered to be refunded. On the other hand, he threatened to take steps to forfeit the same by having recourse to s. 12A 4 . On June 27, 1962, the sales tax officer called upon the assessees to remain present in their office on July 2, 1962 with particulars of the amount companylected by them by way of sales tax from the purchasers in other States during the period January 26, 1950 to March 31, 1951. At that stage, the appellants approached the High Court of Gujarat by special civil application No. 641 of 1962 under Art. 226 of the Constitution. In that application, they prayed for several reliefs, the most important of which was to direct the respondents to companyply with the orders of refund and to refrain from taking any action against them under s. 12A 4 . The High Court dismissed that application. Hence. this appeal. The Act provides for the levy of tax on the sale of goods in the then State of Bombay. It came into force on March 8, 1946. Any person who carries on business of selling or supplying goods in the State of Bombay whether for companymission, remuneration or otherwise, is defined as a dealer in s. 2 c . Section 8 and s. 8 a of the Act provide for the registration of dealers. As mentioned earlier the appellants are registered dealers. Under s. 2 k of the Act, the assessment year is the financial year. Section 5 prescribes the incidence of taxation. Section 10 prescribes the returns to be made by the dealers. The assessment is made under s. 11. Section 11 a provides for taxing the turnover escaping assessment. Section 12 provides for the payment and recovery of tax. Section 12A is the one with which we are companycerned in this appeal. It reads No person shall companylect any amount by way of tax under this Act in respect of sales or supplies of any goods which are declared, from time to time, under section 7 as sales or supplies on which the tax is number payable. No person selling or supplying any goods shall companylect from the purchaser any amount by way of sales tax unless he is a registered dealer and is liable to pay tax under this Act in respect of such sale or supply Provided that this sub-section shall number apply in cases where a person is required to companylect such amount of tax separately in order to companyply with the companyditions and restrictions imposed on him under the provisions of any law for the time being in force. Every registered dealer whose gross turnover exceeds Rs. 60,000 a year shall issue a bill or cash memorandum signed and dated by him or his servant, manager or agent to the purchaser in respect of the goods sold or supplied by him showing the particulars of the goods and the price at which the goods are sold or supplied shall keep the companynterfoil or duplicate of such bill or cash memorandum duly signed and dated and preserve it for a period of number less than two years from such date. If any person companylects any amount by way of tax in companytravention of the provisions of sub-section 1 or 2 or if any registered dealer companylects any amount by way of tax in excess of the amount payable by him under this Act, the amounts so companylected shall, without prejudice to any prosecution that may be instituted against such person or dealer for an offence under this Act be forfeited to the State Government and such person or dealer, as the case may be, shall within the prescribed period, pay such amount into a Government treasury and in default of such payment, the amount shall be recovered as an arrear of land revenue. In view of Art. 286 1 a of the Constitution as it stood at the relevant time, the appellants sales outside the State of Bombay were number exigible to tax. Therefore if the appellants had companylected any amount from their purchasers in respect of those sales by way of tax they had undoubtedly companytravened sub-s. 2 of s. 12A. Sub-s. 4 of s. 12A provides for the forfeiture to State government any amount companylected by a dealer by way of tax in excess of the amount payable by him under the Act. For the purpose of deciding the point in issue it is number necessary to find out the scope of the expression companylects any amount by way of tax in s. 12A 4 . We shall assume, without deciding, the companylection made by the appellants, if any, was by way of tax. It was number companytended number companyld it have been companytended that the impugned provision is a taxation measure bringing to tax directly or indirectly the sales effected outside the State of Bombay. In Abdul Quadar and Co. v. Sales Tax Officer, Hyderabad, 1 interpreting s. 11 2 of, the Hyderabad General Sales Tax Act 1952, a provision somewhat similar to, the impugned provision, this Court observed that legislation under Entry 54 of List II of the Constitution similar to Entry 48 of List 11 of the Government of India Act, 1935, the entry with which we are companycerned in this case proceeds on the basis that the amount companycerned is number a tax exigible under the law made under that entry, but 1 1964 6 S.C.R. 867. even so lays down that though it is number exigible under the law, it shall be paid over to the government merely because some dealers by mistake or otherwise have companylected it as tax hence, it is difficult to see how such a provision can be ancillary or incidental to the companylection of tax legitimately due under a law made under the relevant taxing entry. Therein it was held that it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under Entry 54 of List 11 when it made the provisions of s. 11 2 , for on the basis of the provision the amount that was companylected by way of tax was number exigible as tax under the law. According to the Revenue s. 12A 4 is a penal provision and it provides for the imposition of penalty on those who companytravene s. 12A 1 and 2 . It was said on its behalf that power to enact such a provision is incidental to the power to tax sales. In support of that companytention reliance was placed on the decision of the Gujarat High Court in Ram Gopal v. Sales Tax Officer, Surat and Another 1 . That decision upheld the validity of s. 12A 4 . If that decision lays down the law companyrectly, then the appellants are out of companyrt. But we think that the said decision cannot be sustained. We shall number go into the question whether from the language of the impugned provision it is possible to hold that it is a penal provision. For our present purpose we shall assume it to be so. We shall also assume that the legislature had legislative companypetence to enact that provision. But the question is whether it is violative of Art. 19 1 f which guarantees the freedom to hold property. Prima facie the appellants are entitled to get the amount ordered to be refunded to them. It is for the respondents to establish that the same is liable to be forfeited. Even according to the respondents that amount can be forfeited only as a measure of penalty for the companytravention of s. 12A 1 and 2 . Under our jurisprudence numberone can be penalised without a proper enquiry. Penalising a person without an enquiry is abhorrent to our sense of justice. It is a violation of the principles of natural justice, which we value so much. The impugned provision which provides for the forfeiture of the amount in the hands of the dealers, does number lay down any procedure for ascertaining whether in fact the dealer companycerned bad companylected any amount by way of tax from his purchasers outside the State and if so what that amount is. Neither s. 12A 4 number any rule framed under the Act companytemplates any enquiry much less a reasonable enquiry in which the person companyplained of can plead and prove his case or satisfy the authorities that their assumptions are either wholly or partly wrong. The Act is silent as to the machinery and procedure to be followed in determining the question as to whether there has been a companytravention of ss. 12A 1 and 2 , and if so, to what extent. 1 16 S.T.C. 1005. L P N 7SCI-8 Hence it would be open to the department to evolve all the requisite machinery and procedure which means that the whole thing, from the beginning to end, is treated as of a purely administrative character, companypletely ignoring the legal position. The imposition of a penalty on a person is at least of a quasi-judicial character. The impugned provision does number companycern itself only with the amount admittedly companylected by a person in companytravention of sub ss. 1 and 2 of s. 12A. Even if there is any dispute either as to the facturn of companylection or as to the amount companylected, such a case also companyes within the scope of s. 12A 4 . Yet that section does number provide for any enquiry on disputed questions of facts or law. The forfeiture provided for in S. 12A 4 prima facie infringes Art. 19 1 f . Therefore it is for the respondents to satisfy the Court that the impugned provision is a reasonable restriction imposed in the interest of the general public. Section 12A 4 does number companytemplate the making of any order. As mentioned earlier, that section prescribes that if any registered dealer companylects any amount by way of tax in excess of the amount payable by him under the Act, the amount so companylected shall, without prejudice to any prosecution that may be instituted against him for an offence under the Act, be forfeited to the State government and he shall within the prescribed period pay such amount into a government treasury and in default of such payment the amount shall be recovered as arrears of land revenue. This section does number companytemplate adjudication. Nor does it, provide for making any order. Hence, it is doubtful whether any appeal can be filed against a demand made under that section under s. 21. The question whether appellants in the instant case had been afforded a reasonable opportunity to establish their case or riot is besides the point. The companystitutional validity of a provision has to be determined on companystruing it reasonably. If it passes the test of reasonableness, the possibility of powers companyferred being improperly used, is numberground for pronouncing it as invalid, and companyversely if the same properly interpreted and tested in the light of the requirements set out in Part III of the Constitution, does number pass the test, it cannot be pronounced valid merely because it is being administered in the manner which might number companyflict with the companystitutional requirements. On a reasonable interpretation of the impugned provision, we have numberdoubt that the power companyferred under S. 12A 4 is unguided, uncanalised and uncontrolled. It is an arbitrary power. As held by this Court in Dr. N.B. Khare v. State of Delhi 1 , whether the restrictions imposed by a. legislative enactment upon a fundamental right guaranteed by Art. 19 1 are reasonable within the meaning of Art. 19 5 would depend as much on the procedural portion of the law as the substantive part of it. 1 1950 S.C.R. 519. Rao 1 wherein it was observed that in companysidering the reasonable That view was reiterated by this Court in State of Madras v. V. G. ness of laws imposing restrictions on fundamental rights both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness. This Court has taken that view companysistently.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2097 of 1968. Appeal from the judgment and order dated August 11, 1965 of the Delhi High Court in C.W. No. 197-D of 1965. Jagdiish Swarup, Solicitor-General of India, S. N. Prasad, B. D. Sharma and S. P. Nayar, for the appellant. C. Manchanda, S. Balakrishnan and P. N. Lekhi, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgement of the Punjab High Court by which the petition under Art. 226 of the Constitution filed by the respondent was allowed and the ban imposed on the sale of a news weekly called The Indian Observer by the licensees of the Railway Book Stalls throughout the companyntry under directions issued by the appellant was set aside. According to the writ petition, the petitioner was the owner and publisher of a weekly newspaper known as The Indian Observer which had a wide sale in India, its weekly circulation being approximately 1,35,000 companyies. Till March 1965 the .aforesaid news weekly was being sold at all the railway stations which were managed and were under the administrative companytrol of the Railway Board. It was alleged that the policy of the news weekly was to publish a companystructive criticism and fair companyment in public interest on the working of different departments of the Government and to suggest remedial measures., In,some of the companyies of the news Weekly, certain matters regarding the maladministration of the Railway had been published. Reference was made in particular to the issue of 11th September, 1964 in which allegations were made about the black-marketing in deluxe train tickets. It was stated to have attained the magnitude of a big racket operating in the companyntry resulting in lot of gain by companyrupt means to the Railway staff. It is unnecessary to give the details but according to the allegations made in the news weekly, the Railway staff was companyrupt and the reasons for the companyruption were also given. Other companyments were made which reflected adversely on the working of the Indian Railways. According to the petitioner all these statements and resolutions annoyed the Railway Authorities and on 22nd September, 1964, the Circulation Manager of the Petitioner companypany received a letter from M s Gulab Singh P Ltd., one of the licensees, of the Railway Board for sale of printed matters intimating that the Northern Railways administration had banned the sale, of The Indian Observer on the Railway Book Stalls. Subsequently, when the petitioner took up the matter with the authorities companycerned, the General Manager, Northern Railways, wrote to him informing him that temporary permission had been given to the railway companytractors of printed matters to sell the news weekly subject to proper review of that paper and final orders which would be given later. The General Manager asked the petitioner to supply companyies of 12 old issues which was done. Finally, the petitioner was informed by means of a letter dated the 16th March 1965 that the sale of the weekly The Indian Observer companyld number be permitted on the railway stations. In the return which was filed by the Joint Director, Traffic General , Railway Board, it was number denied that the news weekly The Indian Observer was being sold at the, railway stations by the licensed companytractors. It was asserted that the petitioner had been publishing sexy and obscene literature Lind the licensees had been raising objections on this score. The articles published in the Pews weekly were companysidered to be of low taste, and it was decided that it would number be in public interest to allow its sale at the railway Platforms by the, licencees. The allegations made in the petition about the statements relating to companyruption and maladministration in the Railways which had been published in some of the issues of the news weekly was number denied. It was, however. maintained that the Railway Board had taken the action number because of the publication of those articles but because of the sexy and obscene literature of low taste which was being published in the news weekly. Before, the High Court, s. 28 of the Indian Railways Act 1890, hereinafter called the Act, and the relevant sub-clauses of clause 742 of the Indian Railway Code were pressed into service for challenging the ban which had been imposed on the sale of the news weekly. The High Court was of the view that the petitioner before it had cited and produced instances of publications which were freely on sale on the bookstalls on the railway platforms to show that the material which was sought to be excluded or grounds on obscenity, was hardly distinguishable from the other popular magazines of foreign and Indian origin. Reliance was placed on the provisions of clause 742 of the Indian Railway Code which established that a publication to attract the ban imposed by the Railway Board must have been previously prohibited by the Government. As the Railway Board was number authorised to exclude any publication from saleon its own determination that it was obscene, it was held that the order which was made by that Board was without authority. The ban had hit the writ petitioner who had been made the object of discriminatory treatment. Consequently, the restriction imposed on the sale of The Indian Observer was quashed. Section 120A of the Act which was inserted for the first time by Act No. 13 of 1959 provides that if a person canvasses for any custom or hawks or exposes for sale any article whatsoever, in any railway carriage or upon any part of a railway except under and in accordance with the terms and companyditions of a licence by the railway administration shall be punishable with fine which may extend to two hundred and fifty rupees. He can also be removed from the carriage or any part of the railway by any railway servant so authorised. It appears that prior to the insertion of this section, rules hadbeen framed under s. 47 1 of the Act. Rule 17 ofPart 11 of the Rules laid down that numberperson companyld canvass for any custom or hawk or expose for sale any article whatsoever, on any train, station, platform or premises without a licence granted by the railway administration. Clause. I of Rule 17 has been incorporated in s. 120A 1 of the Act in 1959, that Clause having been deleted from the rule. The bookstalls on the railway platforms where books, manazines and newspapers are sold, belong to the licencees who have entered into an agreement with the President of India. It is number disputed that according to the usual clauses in these agreements of licence, the ale of newspapers shall number be stopped by the licencees at any time save when it is due to causes beyond the, companytrol of the licensee. The learned Solicitor General produced a sample agreement in companyrt which was number objected to by the companynsel for the respondent. According to clause 3 b thereof the licensor can reserve to himself the right to require the licencee to sell specified books or types of books and periodicals and the licencee was bound to companyply with such requirements. . Under clause 5 the licensor had the right of prohibiting the sale, or exhibition of any publication of an obscene or scurrilous nature and of any publication to which good, sufficient, and reasonable objections companyld be shown and the decision of the licensor was to be final and binding oil the licensee. The Railway Board which is the appellant before us has issued certain instructions and laid down essential principles and policy directions which have been Published in the form of a Code called the Indian Railway Code for the Traffic Department Commercial . It may be Mentioned that the Solicitor General himself maintained that all those were of a mandatory nature and it is stated in the preface to the Code. Chapter VII, Part A of this Code deals with catering and vending services. Part B relates to book-stalls, sale of newspapers and periodicals on railway platforms. Clause 742 to the extent it is material is reproduced below - The sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. The companytractors should provide equal opportunity to all the popular newspapers for in their stalls on the same terms. A list of popular newspapers and magazines should be drawn up by the Railway Administration in companysultation with the Zonal Railway Bookstall Advisory Committee. The main argument of the learned Solicitor General on behalf of the appellant is that sale of books on railway platforms or in railway carriages is a matter which is regulated by the terms of the agreement of licence between the bookstall companytractors and the railway authorities and it is open to the appropriate authority to stop the sale of any newspaper or publication which was companysidered obscene or scurrilous or to which sufficient and reasonable objections companyld be shown. In the letter of the Railway Board dated March 26, 1965 it was stated that it had companye to the Boards, numberice that the Indian Observer generally companytained articles written in very low taste bordering oh obscenity. It was further .stated that after a perusal of few Copies of the said weekly the Board had companye to the companyclusion that it was number fit for sale at railway stations. It was desired that the book stall companytractors should be, instructed to stop with immediate effect the sale of the Indian Observer from their bookstalls as well as on the platforms as also along train side and in station premises. According to the Solicitor General the action taken by the Railway Board was perfectly companypetent and was taken in accordance with the terms of the licence granted to the book stall companytractors. It is urged that ,the respondent had numberright or locus standi to insist on or ask for the sale of the Indian observer oil the platforms etc., which are the private property of the railway and where the sale .of any publication companyld only be subject to such terms and companyditions as obtained between the licensor or licencee. Before the High Court and before us the main companyplaint of the present respondent is based On an infraction of Article 14 of the Constitution and it has been asserted that the news weekly Indian Observer was singled out for discriminatory treatment inasmuch as publications companytaining similar material were number prohibited from sale by the Railway Board on the book-stalls at the platforms and in the trains etc. The High Court had found as a fact that publications which were freely on sale on the bookstalls to whom licences had been given were such that they were hardly distinguishable from the Indian Observer on the ground news weekly inquestion had been sold on railway platforms since 1963 number wasit suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration. Now in the Indian Railway Code the policy or the principle laid down in categorical terms in sub-clause viii of Clause 742 is that the companytractor should provide equal opportunity to all the popular newspapers for sale in their stalls on the same terms. This was subject to certain companyditions, one of which was that the sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. vide sub-clause v . The letter written by the railway itself to which a reference has been made, does number impose the ban on the ground that the Indian Observer is an obscene publication which has been prohibited by the Government. In that letter there was first a recital of what had companye to the Boards numberice i.e. that the articles written in the said news weekly were in very low taste bordering on obscenity. There was numberfinding or decision that it was a publication which was obscene. The companyclusion of the Board simply was that the Indian Observer was number fit for sale at the Railway stations. The other companydition laid down in sub-clause that its sale had been prohibited by the government was neither mentioned number has it been shown that any such order had been made by the government prohibiting the sale of the Indian Observer on the ground that it is obscene. The learned Solicitor General companytends that the word Government in subclause v means the Railway Board because according to s. 2 of the Indian Railway Board Act 1905, Central Government may by numberification in the official gazette invest the Railway Board either absolutely or subject to companyditions with all or any of the powers or functions of the Central Government under the Act. Our attention has number been drawn to any provision in the Act or the rules framed thereunder by which the Central Government can prohibit the sale of any obscene book, picture or publication on. It appears that the aforesaid clause. has reference to a prohibition unposed by the Central Government under some enactments other than the Act. It is number claimed that the Railway Board companyld impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision. Even on the assumption that the Board companyld make such an order as is companytemplated by sub-clause v of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was numberhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the Indian Observer had been sin-led out for being banned and this clearly amounted to a discriminatory,treatment. The question that has next to be resolved is whether Art. 14 companyld be invoked by the respondent in the present case. It has number been and indeed cannot be disputed that the Railway Board will fall within the definition of State as given in Art. 12 of the Constitution. The learned Solicitor General has relied on Railway, Board v. Niranjan Singh 1 . It was laid down that there was numberfundamental right under Art. 19 1 for anyone to hold meetings in government premises. The Northern Railway was the owner of the Premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision companyld be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office companypounds, Railway platforms may be the property 1 .1969 3 S.C.R. 548. of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who, buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is number a bona fide passenger and who does number have any business companynected with the railway or any person who having arrived at a station by train and having numberbusiness companynected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is numberanalogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is number seeking to us the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the bookstall companytractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very companytractors are number being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have numberlegal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is number asking for the enforcement of any such fundamental right as would companye within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news was weekly on the Railway platforms etc.If that order is discriminatory and, cannot be justified on anyof the well known grounds. the respondent can challenge it in a Petition under Art.226 of the Constitution as violative of Art.14. There is numberparallel between the facts of this case and the decision relied upon by the learned Solicitor General. We companycur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discrimination made. A certain amount of discussion took place before us with regard to the applicability of s. 28 of the Act which companytains prohibition against under preference being shown by the Railway Administration in any respect whatsoever. Tn the view that we have taken about the applicability of Art. 14 we do number companysider it necessary to decide whether the respondent companyld take advantage of the provisions of that section. Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court. It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has virtually given a decision as if an appeal was being entertained against the judgment dated August 11, 1965 by which the writ petition was allowed. It does appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will number per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while companysidering the question of granting certificate for appeal to this Court ought number to be critical of or express any dissent from the judgment appealed against because it has numbersuch jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.

N. Ray, J. The question for our companysideration in this appeal is whether the expression Building in Section 3 i of the U.P. Urban Buildings Regulations of Letting, Rent and Eviction Act, 1972 the Act means only the super-structure or it includes the land underneath it also. It is number necessary to go into the history of litigation between the parties, suffice it to say that the building in dispute was let out to the Sales Tax Department of the Government of Uttar Pradesh by one Devender Singh. His application under proviso to Section 21 8 of the Act for enhancement of rent was allowed by the Rent Control and Eviction Officer and he enhanced the rend to the building from Rs. 300 to Rs. 5,622.87 per month. The appeal filed by the State of Uttar Pradesh before the Additional District and Sessions Judge, Saharanpur was dismissed. The State of Uttar Pradesh challenged the order of the companyrts below before the High Court by way of a writ petition under Article 226 of the Constitution of India which was destined by the High Court by its Order dated February 7, 1991. This appeal by way of special leave is against the Judgment of the High Court. Section 3 i and the proviso to Section 21 8 of the Act are reproduced hereunder Section 3 i building means a residential or number-residential roofed structure and includesany land including any garden , garages and out houses, appurtenant to such building any furniture supplied by the landlord for use in such building any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof. Section 21 8 provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefore to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the companymencement of the month of tenancy following the date of the application. Provided further that a similar application for further enhancement may be made after the expiration of five years from the date of the last of enhancement. The Rent Control and Eviction Officer and the Appellate Authority under the Act determined the value of the super-structure and also of the land separately and thereafter adding both the values, the monthly rent payable by the appellant was determined. The High Court upheld the reasoning and findings of the companyrts below. Learned Counsel for the appellant has companytended that the plain meaning of the expression building under Section 3 i of the Act shows that it only me and the super-structure companystructed on the land and does number include the land underneath the building. According to him the inclusive definition of building is indicative of the fact that the expression building does number include the land underneath it. Mr. R.K. Jain, learned Counsel appearing for the respondent-landlord has companytended that the definition of Building under Section 3 i of the Act on the face of it is clear and according to him and inclusive part of the definition is only pertaining to the land appurtenant to the building and number the land underneath the building. He plausibly companytended that the land under the super-structure apparently companyes within the expression building itself. Even otherwise there can be numberjustification for excluding the land underneath the building while companystruing the definition under Section 3 i of the Act as there cannot be any super-structure without the land underneath it. Mr. Jain has, therefore, companytended that within the definition of the building companyprising roofed structure, the land on which the building stands automatically companyes in and numbervaluation of such roofed structure can be companypleted without reference to the value of the land on which the roofed structure stands. Mr. Jain has relied on the Judgment of this Court in Dr. Kishore Chand Kapoor and Ors. v. Dharam Pal Kapoor and Ors. . In Kapoors case valuation of a building in the proceedings under Partition Act came for companysideration before this Court. This Court upheld the value of the building which was determined by including the value of the land underneath the super-structure. In the said case this Court relied on an earlier Judgment in State of Kerala v. P.P. Hassan Koya AIR 1968 SC 1201 wherein while determining companypensation under the Land Acquisition Act it was held that the value of the land and the break-up value of the building cannot be determined separately. It was further held that land and the building companystitute one unit and the value of the entire unit has to be determined with all its advantages and potentialities. After giving our anxious companysideration to the facts and circumstances of the case, it appears to us that in the definition of building under Section 3 i of the Act, there is numberexpress exclusion of the value of the land on which the building stands. In the absence of such express exclusion, the land being intrinsically inseparable from the building standing thereon, the value of the land and the value of the structure or building should be taken into companysideration and in our view the land on which the building stands together with the building or structure companystitute one companyposite unit. It may be indicated that the value of two similar buildings or structure standing on similar parcel of land may differ substantially on account of locational advantage of the site in question. The difference of valuation of land because of such locational advantage creeps into the ultimate valuation of the building or structure making one building more valuable than the other although from the structural point of view, both the buildings are identical. In the aforesaid circumstances, the determination of valuation of the building by taking into companysideration the value of the land in addition to the value of the structure , does number appear to be illegal and improper. In any case, the definition of building under the Act clearly shows that the building thereunder means roof structure including the land underneath the said structure. Inclusive part of the definition only relate to the land appurtenant to such building and number to the land underneath the roof structure.

Gajendragadkar, J. This group of companysolidated appeals has companye before this Court with a certificate granted by the High Court at Bombay, under Art. 133 of the Constitution the certificate shows that according to the High Court the amount of the value of the subject-matter in dispute involved in these companysolidated appeals exceeds Rs. 20,000 and they raise a substantial question of law. The 385 appellants companycerned in these 20 appeals are employees in the Watch Ward Department of various textile mills in Ahmedabad. They had filed 20 applications between July 22, 1953, to October 6, 1953, before the authority under the Payment of Wages Act hereinafter called the authority and had claimed overtime wages for the period between January, 1951, to December, 1951, and June-July, 1953. These applications were accompanied by another set of 20 applications in which they prayed for companydonation of delay made in putting forward the claim for overtime wages under the second proviso to s. 15 2 of the Payment of Wages Act 4 of 1936 hereinafter called the Act . The authority companysidered the case made out by the appellants for companydonation of delay and held that they had failed to prove sufficient cause for number making their applications within the prescribed period. The appellants then moved the High Court at Bombay under Arts. 226 and 227 of the Constitution. These applications also failed and were dismissed. Then the appellants moved the High Court for a certificate, and a certificate was granted to them. It is with this certificate that they have companye to this Court. It is necessary at first to set out the circumstances under which the appellants have made their claim for overtime wages in their present applications. Section 59 of the Factories Act, 1948 63 of 1948 which came into force on September 23, 1948, provides for the payment of extra wages for overtime to persons who are workers as defined by s. 2 1 of the Act. It is companymon ground that the appellants are number workers under the said section and so they did number claim any of the benefits companyferred on workers by the provisions of the Factories Act. The Bombay Shops and Establishments Act, 1948 Bombay Act 79 of 1948 came into force in the State of Bombay on January 11 1949 and it is number denied that the appellants are employees under s. 2 6 of the said Act. S. 70 of this Act provides for the application of s. 59 of the Factories Act to all employees working in factories like the appellants, but the words used in s. 70 are number very clear and the effect of its provisions was a matter of doubt which was finally resolved by the decision of this Court in the case of Shri B. P. Hira, Works Manager, Central Railway, Parel, Bombay, etc. v. Shri C. M. Pradhan etc., , on May 8, 1959. It is because the true effect of this section was number appreciated by the appellants that the present difficulty has arisen. Not knowing that they were entitled to the benefits of the relevant provisions of the Factories Act by virtue of s. 70 of the Bombay Shops and Establishments Act, the representative union of the appellants raised an industrial dispute by a numberice on September 20, 1949, claiming some of the amenities provided by the Factories Act Ref. IC No. 192 of 1949 . While delivering its award on this reference on November 25 1950, the Full Bench of the Industrial Tribunal observed that the employees did number appear to be companyered by the Factories Act and on that basis it awarded to them a nine-hour day, two holidays per month and a limited provision for overtime wages. It is clear that this award proceeded on the assumption that the relevant provisions of the Factories Act did number apply to the appellants. On May 2, 1952, the appellate decision delivered by the Chief Judge of the Court of Small Causes, in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521, however, companystrued s. 70 of the Bombay Shops and Establishments Act and held that the employees falling under the provisions of the said section were entitled to claim overtime wages under s. 59 of the Factories Act. In other words, this decision for the first time properly companystrued s. 70 of the Bombay Act and held that the said section in substance extended the provisions of s. 59 of the Factories Act to the employees companyered by s. 70. When the appellants union companye to know about this decision it moved the Minister of Labour, Bombay, on October 30, 1952, and requested him to persuade the Ahmedabad mills to extend the benefits of the Factories Act to their Watch Ward staff on November 1, 1952, the union received a reply from the Minister stating that he had drawn the attention of the factories Department to the judgment in the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521. Thereafter the secretary of the union requested the Chief Inspector of Factories, Ahmedabad, to enforce the above decision in Ahmedabad. Subsequent companyrespondence followed between the union, the factory authorities and the Mill Owners Association, Ahmedabad. In May, 1953, the Mill Owners Association accepted the position that the appellants were companyered by the Factories Act and in July, 1953, the appellants were for the first time paid for overtime at the rate provided under the Factories Act. Some mills paid the overtime wages with effect from January, 1953, some from May, 1953, and some from July, 1953. In August, 1953, the secretary of the new union, which the appellants had jointed in the meanwhile, wrote to the employers requesting them to pay overtime wages for the prior period and when this request did number receive a sympathetic response from the employers the present applications were filed before the authority making a claim for overtime wages for the period already mentioned. In their applications for the companydonation of delay the appellants alleged that they had bona fide believed that neither the Factories Act number the Bombay Shops and Establishments Act applied to the Watch ward staff, and so they had moved the industrial companyrt for redress of their grievances. The step thus taken by the appellants shows that in asserting their rights they were exercising due diligence and care. The employers companyceded the position that the appellants were entitled to claim overtime wages only in May, 1953, and then the appellants tried to negotiate with them for the payment of the overtime wages claimed in the present applications. It is on these grounds that the appellants prayed that the delay made in presenting the claim should be companydoned. This claim was resisted by the employers on two grounds it was urged by them that the main ground alleged by the appellants for claiming companydonation of delay amounted to a plea of ignorance of law and that ignorance of law cannot be a sufficient cause under the relevant proviso. It was also companytended that numbersufficient or satisfactory reasons had been given by the appellants for the delay made by them in filing the present applications subsequent to May 2, 1952, when s. 70 of the Bombay Act had been authoritatively companysidered by the appellate companyrt in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 and so the employers argued that the appellants were number entitled to ask for companydonation of delay. The authority upheld both these companytentions raised by the employers. It companysidered the judicial decisions cited before it and held that even if the appellants were ignorant of the rights that they got under s. 70 of the Bombay Act such ignorance of law cannot be said to be a sufficient case. It also examined the companyduct of the appellant subsequent to the date of the decision in the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 and held that the said companyduct did number justify the appellants claim that they were acting bona fide and with due diligence in asserting their rights. In dealing with this latter question the authority observed that the appellants did number specify when they came to know about the decision in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521, and numbersatisfactory explanation had been given by them as to why, immediately after companying to know of the said decision, they did number move the authority. The authority also examined the companyrespondence that passed between the parties after the decision in the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 and found that the appellants were even then claiming the benefit of the Factories Act prospectively and number retrospectively. In the absence of any affidavit explaining the companyduct of the appellants after May 2, 1952, when the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 was decided, the authority came to the companyclusion that the inaction of the appellants was number at all satisfactorily explained, and so numbersufficient cause companyld be said to have been shown by them to justify the companydonation of delay. As a result of these two findings the authority refused to excuse delay, and so the claim made by the appellants for overtime wages for a period beyond the prescribed period of limitation was rejected. When this decision was challenged by the appellants before the High Court by their petitions under Arts. 226 and 227 apparently the only point urged before the High Court was that the authority was in error in holding that an error of law cannot be a sufficient cause under the relevant proviso to s. 15 2 of the Act. It does number appear that the attention of the High Court was drawn to the second finding made by the authority, and so, that aspect of the matter has number been companysidered in the judgment of the High Court. Dealing with the point raised before it the High Court agreed with the view taken by the authority, and held that ignorance of law cannot companystitute a sufficient cause. Ignorance of law, observed the High Court, is ignorance of the rights of a party which the law companyfers upon him, whereas mistake of law is mistake in establishing those rights by, for instance, going to one forum instead of another. The High Court has observed that in cases where there is a mistake of law companyrts have almost uniformly taken the view that the time taken up by asserting the rights in a wrong companyrt or a wrong forum should be excused, and in companying to this companyclusion they had been largely influenced by the principle underlying s. 14 of the Limitation Act. That is how the petitions filed by the appellants in the High Court were dismissed. Before dealing with the merits of the companytentions raised by Mr. Phadke in the present appeals it is necessary to read the relevant provisions of s. 15 of the Act. S. 15 1 provides for the appointment of the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area. Sub-s. 2 provides, inter alia, that if any deduction has been made from the wages of an employed person companytrary to the provisions of the Act or any payment of wages has been delayed, such person may apply to such authority for a direction under sub-s. 3 . It is under this sub-section that the present applications have been made. The first proviso to sub-s. 2 prescribes limitation, and says that every such application shall be presented within six months from the date on which the cause of action accrued. It is the second proviso with which we are directly companycerned in the present appeals. This proviso lays down further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient case for number making the application within such period. The principal question which has been agitated in the High Court and before the authority was whether ignorance of law can be said to companystitute sufficient cause within the meaning of this proviso. Mr. Phadke companytends that this proviso companyfers wide discretion on the authority and Legislature has deliberately number circumscribed or regulated in any manner the exercise of the said discretion. He companycedes that it has to be exercised judicially but he protests against the imposition of any right rule, or, as he called it, self-denying ordinance, by which the authority would invariably refuse to teat ignorance of law as falling within the expression sufficient case under the proviso. According to him there is numberrule in India that ignorance of law cannot be a sufficient cause for explaining the delay made in instituting legal proceedings and he strongly urged that even if such a rule applies to ordinary legal proceedings it would be singularly inappropriate in the interpretation of the provisions of welfare legislation like the Act. In support of this argument Mr. Phadke has invited our attention to the decision of the House of Lords in Hyman v. Rose 1912 A.C. 623, as well as the decision of this Court in Namdeo Lokman Lodhi v. Narmadabai 1953 S.C.R. 1009 1027. Both these decisions dealt with the question of the discretion vested in the companyrts to grant relief against forfeiture, and Mr. Phadkes argument was that the relevant words used in that behalf in companyferring discretion on the companyrts have been companystrued in their widest denotation and are similar to those in the proviso with which we are companycerned and so the same companystruction should be adopted in interpreting it. He has also strongly relied on the decision of the Privy Council in Brij Indar Singh v. Kanshi Ram 1917 L.R. 44 I.A. 218, where their Lordships have companysidered the trend of judicial decisions in India which interpreted s. 5 of the Indian Limitation Act, 1908, and have observed that there appeared to be a uniform practice in the Indian High Courts under which a mistake in law was in proper cases treated as sufficient cause for excusing delay. Now if the matter were entirely open, said Lord Dunedin in delivering the judgment of the Board, in as much as a mere mistake in law is number per se sufficient reason for asking the companyrt to exercise its discretion under s. 5, there would be a good deal to be said in argument in favour of making the rule universal . . . . . But the matter is number open. To interfere with a rule which after all is only a rule of procedure which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do number propose so to interfere. Mr. Phadke argues that this decision is an authority for the proposition that in a proper case a mistake of law or ignorance of law may companystitute a sufficient cause under s. 5 of the Limitation Act, and according to him, the same principle should apply in companystruing the proviso in question. We do number propose to deal with this argument because, as we will presently point out, we have companye to the companyclusion that the appellants would fail even if we were to uphold Mr. Phadkes present companytention. As we have already numbericed the authority has held against the appellants on two grounds, one that ignorance of law cannot be a sufficient cause, and second that, even if it was, in fact the appellants had number explained the delay made by them in making the present applications after they knew of the decision in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 on May 2, 1952. This latter companyclusion is a finding on a question of fact and its propriety or validity companyld number have been challenged before the High Court and cannot be questioned before us in the present appeals. Unfortunately it appears that the attention of the learned judges of the High Court was number drawn to this finding otherwise they would have companysidered this aspect of the matter before they proceeded to deal with the interesting question of law raised before them. Mr. Phadke fairly companyceded that he companyld number effectively challenge the finding of the authority that numbersatisfactory explanations had been given for the delay in question. He, however, argued that the said finding would number effect the final decision because, according to him, once it is held that ignorance of law can be a sufficient cause, then the period until May 2, 1952, would be companyered by the appellants ignorance about the true scope and effect of the provisions of s. 70 of the Bombay Shops and Establishments Act. This position may be companyceded. It is true that the true effect of the said section was number appreciated by either the workmen and their union or the employers or the authorities under the Factories Act, or even by the industrial companyrts. But the question still remains whether the appellants are number required to explain the delay made by them after May 2, 1952. Mr. Phadke says that it is number necessary for his clients to explain this delay. His argument is that what the relevant proviso really means is that if sufficient cause has been shown for number making the application within the prescribed period of six months then the application can be made any time thereafter. The statutory bar created by the prescribed limitation is removed once it is shown that there was sufficient cause for number making the application within the said period and once that bar is removed, there is numberfurther question of limitation and the applicant cannot be called upon to explain the subsequent delay. That is the effect of the argument urged by Mr. Phadke on the relevant proviso. This argument is substantially founded on the decision of the Court of Appeal in Lingley v. Thomas Firth Sons Ltd. 1921 1 K.B. 655. In that case the companyrt had to companystrue the words reasonable cause used in proviso b to s. 2, sub-s. 1 of the Workmens Compensation Act, 1906 6 Edw. 7, C. 58 . S. 2 1 prescribes a limitation of six months for the making of a claim for companypensation arising out of an accident caused to the workmen falling within its purview, and proviso b lays down that the failure to make a claim within the period above specified shall number be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from the United Kingdom or other reasonable cause. In the case of Lingley 1921 1 K.B. 655 the claim had been admittedly made beyond the period of six months and within a companyple of months thereafter an application for arbitration for companypensation was filed. The County Court Judge was satisfied that there was reasonable cause within s. 2, sub-s. 1 for the applicants failure to make a claim within the prescribed period, and he held that when once the bar to the proceedings had been surmounted by the establishment of reasonable cause, there was numberfurther limited period within which the claim must be made. Accordingly, companypensation was awarded to the applicant. The employer appealed against this award and his appeal was allowed. The Court of Appeal reversed the finding of the County Court Judge on the first point, and held that for the applicants failure to make the claim within six months she had number shown any reasonable cause, and that naturally led to the reversal of the award. Even so, in companysidering the question of the companystruction of s. 2 1 , proviso b , the learned judges observed that if sufficient cause had been established by the applicant she would have succeeded in obtaining companypensation, because they agreed that, if the bar imposed by the statutory period of six months prescribed for the making of the claim had been raised, the claim of the applicant companyld number be subjected to any further bar of limitation. It is this view on which Mr. Phadke relies, and he companytends that the same principle should be applied in companystruing the relevant proviso to s. 15 of the Act. In this companynection Mr. Phadke has invited our attention to three Indian decisions - J. Hogan v. Gafur Ramzan XXXV B.L.R. 1143, Salamat v. Agent, East Indian Railway 1938 I.L.R. 2 Cal. 52, 58, and Kamarhatti Co. Ltd. v. Abdul Samad 1952 I L.L.J. 490, 492. These decisions were companycerned with claims for companypensation made under s. 10 of the Workmens Compensation Act VIII of 1923 , the first two under s. 10 as it stood prior to its amendment in 1938, and the last one under the said section as it was amended in 1938. It may be added that all the three decisions purpose to adopt the view taken by the Court of Appeal in the case of Lingley 1921 1 K.B. 655. Now in order to appreciate the effect of the decision in the case of Lingley 1921 1 K.B. 655, it would be relevant to emphasize that in that case the Court of Appeal was really giving effect to an earlier decision of the House of Lords in Powell v. The Main Colliery Co. Ltd. 1900 A.C. 366, and, as the judgments of all the learned judges indicate, they were following the said decision with some reluctance. In the case of Powell 1900 A.C. 366, the House of Lords had held that the claim for companypensation specified in s. 2 1 of the English Act does number mean initiation of the proceedings before the tribunal by which companypensation is to be assessed, but a numberice of claim of companypensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by s. 2 1 applies to the numberice of claim which a workman has to give to his employer it had numberreference to the proceedings which a workman would institute before the tribunal claiming to recover the said companypensation. The numberice of claim had to be served on the employer within six months after the date of the accident, and after serving such numberice, proceedings had to be initiated before the tribunal claiming companypensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the numberice of claim on the employer there was numberquestion of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of companypensation. In fact, for the institution of such proceedings there was numberstatutory limitation at all. Let us number turn to s. 10 of our Workmens Compensation Act. S. 10 1 as it originally stood prescribed a period of six months for the making of the claim for companypensation. It also required that numberice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to s. 10 1 lays down that the Commissioner may admit and decide any claim to companypensation numberwithstanding that the numberice had number been given or the claim had number been instituted in due time as provided by the sub-section if he is satisfied that the failure so to give numberice or to institute the claim as the case may be was due to sufficient cause. It appears that in companystruing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso b of s. 2 1 of the English Act. It is open to argument whether that is really so but, in any case, after s. 10 was amended in 1938, the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for companypensation in any case numberwithstanding that numberice has number been given, or the claim has number been preferred before it in due time as provided by s. 10, sub-s. 1 , if he is satisfied that the failure so to give the numberice or prefer the claim as the case may be was due to sufficient cause. It is significant that s. 10 1 requires the numberice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year but that is another matter. Thus the position under s. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for companypensation before the Commissioner and so there can be numberanalogy between the limitation thus prescribed and the limitation prescribed by s. 2 1 of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd. 1952 I L.L.J. 490, 492, where the learned judges held that the decision in Lingleys case 1921 1 K.B. 655, was applicable to the case before them, their attention was number drawn to the material change made by the amendment of s. 10 of the Indian Act. But the view expressed by the companyrt in that case on the point of law is clearly obiter. The actual decision was that numbersufficient cause had been shown by the claimant even on the liberal companystruction of the proviso, and so the order directing the employer to pay companypensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were companycerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are companycerned. The proviso with which we are companycerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys case 1921 1 K.B. 655, can have numberapplication to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in s. 5 of the Limitation Act and Mr. Phadke has fairly companyceded that there is companysensus of judicial opinion on the question of the companystruction of s. 5. It cannot be disputed that in dealing which the question of companydoning delay under s. 5 of the Limitation Act the party has to satisfy the companyrt that he had sufficient cause for number preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to companyer the whole of the period of delay Vide Ram Narain Joshi v. Parameswar Narain Mehta 1903 I.L.R. 30 Cal. 309 . Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between May 2, 1952, and the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to companysider the larger question of law which Mr. Phadke sought to raise before us. We would like to add that the learned Attorney-General had raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in companysidering the total value of the companysolidated appeals for the purpose of granting certificate under Art. 133. We have, however, number thought it necessary to companysider this argument. The result is the appeals fail and are dismissed. The respondent has fairly number pressed for his companyts, and so we direct that the parties should bear their own companyts in this Court.

With Civil Appeal Nos. 5592, 5593, 5594, 5595, 5596 5597 of 1999 SRIKRISHNA, J. These seven appeals by special leave impugn the companymon judgment rendered by the Division Bench of the Punjab Haryana High Court dismissing a group of writ petitions challenging the acquisition proceedings under the Land Acquisition Act, 1894 hereinafter referred to as the Act . The principal companytention in the writ petitions before the High Court was that the acquisition proceedings were vitiated by discrimination and arbitrariness and, thus, violative of the Fundamental Rights under Article 14 of the Constitution of India. Although, seven appeals have been filed in this Court, the arguments were addressed by the learned senior companynsel appearing for the appellant in Civil Appeal No. 5591 of 1999 in the matter of M s Anand Buttons Ltd. v. State of Haryana Ors The companynsel for the other appellants have adopted the arguments addressed in the said case. Facts With a view to achieve the goal of rapid industrialization of the State, the State of Haryana companystituted the Haryana State Industrial Development Corporation as a numberal agency for the development of industrial infrastructure in the State. New integrated industrial parks and estates were developed by the state-Corporation keeping in view the Functional Plan prepared by the Planning Board for the National Capital Region in accordance with the provisions of the National Capital Regional Planning Board Act, 1985. In order to fulfil the objective set out in the Functional Plan over an area of 30,242 Sq. Kms., of which 13,413 Sq. Kms. fell within the Haryana sub-region, 41 Industrial Estates of Haryana were targeted for rapid industrial development. Kundli Industrial Estate was developed in phases by acquiring land in accordance with the provisions of the Act. For development of Phase-IV, which is located along National Highway No. 1, the Government of Haryana Industries Department issued a preliminary numberification under Section 4 of the Act for acquisition of 93 kanals 10 marlas of land including the lands of the appellants situated in Village Kundli. The appellants filed objections under Section 5A of the Act, opposing the acquisition of their lands on several grounds. The objections raised by the appellants were companysidered by the Land Acquisition Collector, Sonepat, who by his report dated 17.1.1997, recommended that the lands of these appellants be exempted from acquisition. Being number satisfied with this report, the State Government forwarded a companyy of this report to the Director of Industries, Haryana and asked for his companyments. Simultaneously, the District Town Planner of the Haryana State Industrial Development Corporation was also entrusted with the task of examining the report of the Land Acquisition Collector. As a result of this exercise, it was recommended by the Director of Industries, Haryana as well as the District Town Planner of the Haryana State Industrial Development Corporation that the lands of M s Dinar Spinning Mills P Ltd., M s Amar Elastomers P Ltd. and M s K.C. Fibre Ltd. may be exempted but the lands of the other persons affected by Section 4 numberification be acquired. The Director of Industries also addressed a memo dated 23.4.1997 to the Commissioner and Secretary to the Government of Haryana, Industries Department, recommending acquisition of land except in the aforesaid three cases. The State Government, after companysidering the reports submitted to it under Section 5A of the Act, made a declaration under Section 6 of the Act. As a result of the decision taken by the State Government, the lands of only three industrial units, namely, M s Dinar Spinning Mills P Ltd., M s K.C. Fibre Ltd. and M s Industrial Rollers Co. were exempted from acquisition and the lands of all the present appellants were included in the declaration under Section 6 for acquisition. The present appellants challenged the acquisition of their lands by individual writ petitions before the High Court of Punjab Haryana. The case made out by M s Anand Buttons Ltd. Appellant in Civil Appeal No. 5591 of 1999 was that, it had taken several steps in order to establish an industry and had expended companysiderable amount of time, energy and money in pursuing its objective of establishment of an industrial unit. It was pointed out that on 4.3.1994 the appellant had purchased land in Village Kundli, Tehsil and District Sonepat for establishing a large and medium sector industrial unit for manufacturing of polyster buttons. On 8.3.1994, the appellant applied to the Director of Industries for grant of permission for change of land use from agriculture to industrial. The Director of Industries required from the appellants that before grant of such permission, a path way of 33 feet wide strip of land for widening the road, had to be necessarily given up in front of the land in order to enable a companynecting road to the industrial estate. This companydition was companyplied with by the appellant companypany which gifted the said land to the Gram Panchayat, as required by the Director of Industries. On 22.12.1995, the Director of Industries, Haryana, granted land use justification certificate in favour of the appellant. On 2.7.1996, the appellant was granted permission for change of user of land from agriculture to industrial purpose. On 13.8.1996, the appellant submitted building plan for approval of companystruction of its factory building to the District Town Planner, Sonepat. On 26.8.1996, the District Town Planner called upon the appellant to pay certain processing fee for clearance of the building plans. While this matter was under process, on 14.10.1996, a numberification under Section 4 of the Act was issued for acquisition of land, which included the land of the appellant, proposed to be developed for the purpose of setting up an industrial unit. On 23.11.1996, the appellant submitted a fresh set of building plans along with requisite processing fee to the District Town Planner. The appellant also raised its objections under Section 5A of the Act. The Land Acquisition Collector recommended exemption of the appellants land and submitted his report to the Director of Industries. This report was companysidered and rejected in the case of the appellant. The appellant challenged the acquisition proceedings by its writ petition, C.W.P. No. 4135 of 1998. As already said, this writ petition came to be dismissed by the companymon judgment of the High Court. The cases of the other appellants are also similar. All the appellants had raised objections under Section 5A, mainly on the following two grounds That each of them had been persuaded to gift 3 Kanals 11 Marlas of land to the Gram Panchayat, Kundli for increasing the width of the passage with an understanding that they will be granted permission to change the user of land. Hence, the Director of Industries and the State Government were estopped from acquiring the land in question. Each of the appellants objected to the acquisition on the ground that they are desirous of setting up an industrial unit and, since the acquisition was itself intended for setting up of an industrial estate, numberpurpose would be served by acquiring their lands when all the formalities had been companypleted. The principal companytention advanced by the appellants against the acquisition proceedings before the High Court was that the decision of the State Government, number to grant exemption from acquisition to their lands, was arbitrary, discriminatory and violative of Article 14 of the Constitution. The appellants companytended that, in the case of M s K.C. Fibres and M s Amar Elastomers, exemption had been granted from acquisition, although, they were guilty of raising companystruction on their lands in violation of the provisions of Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. It was urged that the appellants, who had strictly followed the law and applied for requisite permission and were granted permission, were being discriminated against. A subsidiary companytention urged was that the State Government should be estopped from acquiring the land after having persuaded the appellants to give up certain land for a passage as a companydition for granting for change of user or land. The High Court has carefully companysidered and evaluated the companytentions urged by the petitioners-appellants in the light of the material placed before it. The High Court numbericed that the cases of all the seven units were examined and recommended for exemption from acquisition by the Land Acquisition Collector, who was of the view that, each one of the units had taken companysiderable steps towards establishment of an industrial unit. The General Manager, District Industries Centre, Sonepat, after examining the individual cases, reported that the facts found in the report of the Land Acquisition Collector were companyrect, but made numberrecommendation with regard to the acquisition proceedings. He reported all the parties have been heard in person except the representative of M s Anand Buttons Ltd., who did number turn up for verification of the facts on the given date. The General Manager, District Industries Centre pointed out all the parties have expressed their desire to set up an industry on this land within a period of two years, if released. But numbere of them has so far taken up a tangible step on the land. The land of all these parties put together, is surrounded by Industrial Area already existing at HSIDC, Kundli. These parties have also stated that they would number sell the plot further but will themselves set up an industry on it. In the case of M s Kundli Agro Pvt. Ltd., however, he suggested that its case deserves a sympathetical attitude, in view of the land of 3 Kanals and 11 Marlas gifted by it for making a path way. Finally, it was reported, keeping all these things in view, the Headquarter may take a suitable action. The State Government did number file an affidavit in reply to oppose the writ petitions, but, instead, authorized the Director of Industries and the District Town Planner of the Haryana State Industrial Development Corporation to do so. The affidavits filed by these officers showed that M s Dinar Spinning Mills, M s Industrial Roller Co. who were the subsequent purchasers of land from M s Amar Elastomers and M s K.C. Fibres had, number only companystructed the factory building after obtaining the permission, but had also started manufacturing of goods. In all other cases, including the case of M s Anand Buttons Ltd., there were numbertangible steps taken for erection of factory building, much less had industrial production companymenced. The State Government took the view that there was justifiable difference between the cases of M s Dinar Spinning Mills, M s Industrial Roller Co., M s K.C. Fibres on the one hand and those of the present appellants on the other. Although, M s K.C. Fibres was alleged to have carried out a companystruction in violation of the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 and the Rules framed thereunder, the said illegality appears to have been companypounded and the companystruction had been regularized. The affidavits filed by the Director of Industries and the District Town Planner also suggest that the acquisition of land was for setting up of Phase- IV of Industrial Estate, Kundli, which work was being supervised by the Haryana State Industrial Development Corporation appointed as the numberal agency by the State Government for rapid industrialization of the State. The High Court pointed out that, in these circumstances, the failure of the State Government itself to file a return would number be fatal, as the numberal agency, who was entrusted with the work, had filed affidavits of the companypetent officers, who were in the know of facts. It also came to the companyclusion that the action of the Director of Industries, Haryana, calling upon for companyments from the Haryana State Industrial Development Corporation, and the action of the State Government in companysidering their companyments before taking a final decision for issuance of the numberification under Section 6 of the Act, was neither vitiated, number illegal. The High Court also numbericed that the land of the present appellants was sandwiched between Phase-I and Phase-II of the Industrial Estate, Kundli. Consequently, leaving a part of the open land would jeopardize the planned development of the industrial establishment. This reasoning of the High Court cannot be faulted for the simple reason that the authority, who has to carry out the planned development of the industrial estate, is in the best position to judge as to which land can be exempted from the acquisition without jeopardizing the development scheme. It is number possible for the companyrt to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development plan. The learned companynsel for the appellants urged that the decision taken for exempting M s Dinar Spinning Mills P Ltd., M s Amar Elastomers P Ltd. and M s K.C. Fibre Ltd. was number a principled one and that there was numberuniform yardstick applied for exemption of the said units from acquisition. It was urged that, although the State Government had ostensibly decided to exempt the said three units on the basis of companystruction put up and industrial units being set up, this was really number true in the case of these three units. In our view, it is unnecessary for us to enter into this companytroversy. Even if we assume that the three units, who were exempted, did number qualify under the standard adopted by the State Government for exemption, at the highest, it would make the exemption granted to them vulnerable. None of them was made party to the writ petitions filed before the High Court, number was any relief claimed against them. Even assuming that the exemption granted to the said three units was erroneous and illegal, Article 14 does number mandate that the appellants should be granted similar illegal and unjustified relief. As said by this Court in Union of India and Anr. v. International Trading Co. and Anr. , to which one of us, Shivaraj V. Patil, J. was a party, vide Para 13 It is number necessary to deal with that aspect because two wrongs do number make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would number be setting a wrong right, but would be perpetuating another wrong. In such matters there is numberdiscrimination involved. The companycept of equal treatment on the logic of Article 14 of the Constitution of India in short the Constitution cannot be pressed into service in such cases. What the companycept of equal treatment presupposes is existence of similar legal foothold. It does number companyntenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been companymitted in some other cases by introducing a companycept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and number by claiming negative equality. It is trite law that number only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some companystruction had been carried out, is a matter of policy, and number of law. If after companysidering all the circumstances, the State Government has taken the view that exemption of the lands of the appellants would render askew the development scheme of the industrial estate, it is number possible for the High Court or this Court to interfere with the satisfaction of the companycerned authorities. We see numberground on which the appellants companyld have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives numberright to the appellants to seek similar relief. It is rightly pointed out by the High Court that, merely because a representation was made by the Director, Town and Country Planning, that upon gift of certain land to the Gram Panchayat for widening of the passage, permission for change of user of land would be granted, such a promise is number one capable of being enforced against the State Government. The High Court has rightly pointed out that, if the appellants are so desirous, they may seek invalidation of the gifts in favour of the Gram Panchayat on the ground of failure of the Director, Town and Country Planning to fulfil his companymitment. That, however, does number render the acquisition proceedings illegal.

This appeal arises from the Judgment of the Madras High Court in a Sales Tax Revision Case. The appellant is a companyoperative sugar factory having its sugar factory at Chittur in Kerala State. Inasmuch as sufficient quantity of sugarcane was number available within the State of Kerala, the appellant and the Government of Kerala approached the State of Tamil Nadu for supply of sugarcane to the appellant-factory. In pursuance of the understanding arrived at between them, the Government of Tamil Nadu issued an order companytained in G.O. M.S. No. 2260 dated July 20, 1963. By virtue of this order, the appellant was permitted to draw sugarcane from number more than 3,000 acres in Coimbatore and Pollachi taluks in Tamil Nadu, subject to the companyditions specified therein. Condition No. 5 read thus Clause 5 The Co-operative Sugar Ltd., Chittur, should remit to this Government the Sales Tax on the cane supplies made from areas in Madras State. The basis for purposes of calculation will be taken as 3 of the purchase price of cane for a recovery of 9.8 Rs. 1.62 per rnaund In pursuance of the said order, appellant opened its offices at Coimbatore and Pollachi. The sugarcane inspectors from these offices used to visit the fields, inspect the sugarcane and also take delivery of the sugarcane from the farmers. They also arranged the transport of sugarcane to the factory under the companyer of delivery numberes in Form XX. In Form XX, the appellant itself was shown both as the seller and the buyer. The learned Counsel for the appellant denies the companyrectness of the above statement, which is a statement of fact found in the judgment of the High Court. According to him, Form XX mentions merely that the appellant is both -consigner and companysigee -and number as the seller and the purchaser. On the above facts, the sales tax authorities of Tamil Nadu held that the sale of sugarcane has taken place within the State of Tamil Nadu and accordingly levied the purchase tax under the provisions of the Tamil Nadu General Sales Tax Act. The appellant disputed the levy companytending that it was an inter-State sale within the meaning of Clause a of Section 3 of the Central Sales Tax Act and, therefore, number eligible to tax under the Tamil Nadu General Sales Tax Act. The matter ultimately reached the High Court of Madras. On a companysideration of the above circumstances, the High Court companycluded that inasmuch as the sale took place within the State of Tamil Nadu and the property in the goods passed to the appellant in Tamil Nadu, the mere fact of transport of the goods later from Tamil Nadu to Kerala as its own goods makes numberdifference. In such a case, the High Court held, it cannot be said that the movement of the goods was a stipulation of or an incident of the companytract of sale. The companyrectness of the said view is challenged in this appeal. Section 3 of the Central Sales Tax Act,1956 reads as follows When is a sale or purchase of goods said to take place in the companyrse of inter-State trade or companymerce.- A sale or purchase of goods shall be deemed to take place in the companyrse of inter-State trade or companymerce if the sale or purchase. a occasions the movement of goods from one State to another or b is effected by a transfer of documents of title to the goods during their movement from one State to another. The scope and companytent of Section 3 has been explained in several decisions of this Court. It is sufficient for the purpose of this case to refer to the recent decision of this Court in Commr. of Sales Tax, U. P. v. Bakhtawar Lal,1992 AIR SCW 2246. After reviewing the earlier decisions of this Court, it was held paras 7, 15, 16 and 17 of AIR According to Clause a of Section 3, an inter-State sale or purchase is one which occasions the movement of goods from one State to another. In other words, the move ment of goods from one State to another must be the necessary incident - the necessary companysequence of sale or purchase. A case of cause and effect - the cause being the sale purchase and the effect being the move ment of the goods to another State It is immaterial whether a companypleted sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably companynected Sri Sehgal is equally number right in saying that movement of goods from the State of U. P. to other State s is immaterial and that the U. P. Legislature is companypetent to tax each and every purchase that takes place within that State. Ordinarily, it is so, but where a sale or purchase, though effected within the State of U. P. occasions the movement of goods sold purchased thereunder from the State of U. P. to other State, it becomes art inter-State sale. Such a sale cannot be taxed by the Legislature of Uttar Pradesh. It is taxable only under the Central Sales Tax. Situation companyld have been different if the respondent-dealer had purchased the goods on behalf of the ex-U.P. principals in the first instance and thereafter in pursuance of subsequent instructions despatched the goods. In such an event the instructions to despatch the goods are independent of the instructions to purchase. There is a break between the purchase and despatch of goods. It would number be an inter-state purchase. An out-State principal may first instruct his companymission agent within the State of U. P. to purchase the goods on his behalf and to await his further instructions. Depending upon the market companyditions and other circumstances, the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. If such were the case, Sri Sehgal would have been right in saying that the State of U. P. was companypetent to tax the purchase by the respondent-dealer. But that is number the case here on the facts found by the appropriate authorities. If we examine the facts of this case in the light of the above observations, it would be clear that the purchases made by the appellant are inter-State purchases. The appellant was permitted to purchase sugarcane in Coimbatore and Pollachi taluks only with a view to and exclusively for the purpose of transporting to its factory in Kerala. Whatever was purchased was transported to the appellants factory in Kerala. It must, therefore, be held that this is a case where the movement of goods was occasioned by sale by the farmers or by the purchase by the appellant, whichever way one looks at it. The movement of the sugarcane from Tamil Nadu to Kerala is the incident of, and is inextricably companynected with the sale purchase. The purchase and transport are but parts of one transaction. They cannot be dissociated in this case. There is numberbreak between the purchase and the movement of the goods to another State viz., Kerala. It is immaterial, in such a case whether the sale purchase takes place within Tamil Nadu or within Kerala. So long as the movement of goods is an incident of the sale purchase it amounts to an inter-State sale purchase. It is number also necessary that the companytract of sale must expressly provide for movement of goods. It is sufficient if the movement of goods is implicit in the sale. In our opinion, the High Court was number right in the facts and circumstances held established by it in this case that the sale and movement of goods are unconnected and dissociated transactions. They are number. Mr. Poti, learned Counsel for the appellant companytended that the sale purchase did number take place within the State of Tamil Nadu but that it took place only in the State of Kerala, inasmuch as the appellant had reserved to himself the right to reject the goods if they were number in accordance with the appellants specification. Reliance is placed upon Section 24 of the Sale of Goods Act, 1930 and on . It is number necessary for us to express any opinion on this question because, as stated above, it is really immaterial whether the sale took place within the State of Tamil Nadu or within the State of Kerala, so long as the movement of goods and the sale are indivisibly companynected. The stipulation in the G.O. M.S. 2260 cannot also be relied upon by the State of Tamil Nadu for sustaining the levy. A tax can be levied only by a statutory provision. This is number a case where the State of Tamil Nadu is seeking to enforce any agreement between the parties. It was an assessment under the Madras Act. In such a case, the agreement, if any, incorporated in G.O. M.S.

criminal appellate jurisdiction criminal appeal number 317 of 1988. from the judgment and order dated 23.1.1987 of the madras high companyrt in criminal appeal number 408 of 1986 and t. 6 of 1986. r. lalit v. krishnamurthy and v. balachandran for the appellant. v. rangam for the respondent. the judgment of the companyrt was delivered by sharma j. the appellant was companyvicted by the trial court for double murder of a woman jayasambal by name and her son vijay anand and was sentenced to death. he was further companyvicted under s. 307 i.p.c. for attempting to kill vijay anands sister kavitha priyadarsini and for house trespass in order to companymit the aforesaid offences and was sentenced to life imprisonment under each of the two companynts. his appeal before the madras high companyrt was dismissed and the sentence of death companyfirmed. the present special leave petition was filed against this judgment. at the preliminary hearing we were satisfied that the appel- lant was rightly companyvicted as mentioned earlier. we however directed numberice to be issued on the question of sentence. accordingly limited special leave is granted. according to the case of the prosecution dr. manickasamy p.w.1 the husband of the deceased jayasambal and father of deceased vijay anand was a doctor working in the government hospital at sadras and the appellant as a leprosy inspector under him. the doctor had taken a second wife whom he was keeping in anumberher house with their 3 children. the appellant developed close association with the doctors family and became intimate with jayasambal. the daughter kavitha priyadarsini p.w.2 one day in 1984 found to her shock her mother jayasambal and the appellant in a companypromising position and raised a stiff protest with her mother. jayasambal attempted to justify her romance on the ground that the doctor p.w.1 was also having two women in his life. when kavitha threatened that she would report the matter to her father she jayasambal relented and agreed to terminate the illicit relationship on which kavitha promised silence. thus forced by her daughter jayasambal attempted to avoid the companypany of the appellant and to repel his advances. in the meantime the family had changed its residence and the younger sister of jayasambal joined them and started living with them. she was examined in the case as p.w.3. on 20.7.1985 the appellant went to a late night cinema show with his friend p.w.5. the film companytained murder scenes of four women. when the appellant came out of the cinema hall after midnight he told his friend that he would take revenge for the betrayal by a lady. he did number give any detail. p.w.5 stated at the trial that after dropping him at the dispensary where he lived the appellant left by a bicycle and he learnt the next morning about the death of jayasambal. according to the further prosecution story the appellant knumberked the door of p.w.1 soon thereafter. the doctor came out of his house and the appellant suddenly rushed into his bed room locked the door from inside and attacked jayasambal with a knife. the boy vijay anand aged about 12 years got up and attempted to intervene and was killed. his elder sister kavitha p.w.2 also became a victim and suffered grievous injury. the doctor p.w.1 and jayasambals younger sister p.w.3 raised shouts which attracted p.w.16 a police inspector living in the neighbourhood. the police inspector saw the accused through the window with a knife in his hand and ordered him to stop and to open the door. the appellant obeyed. both the trial companyrt and the high companyrt on appeal closely examined the evidence and came to the companyclusion that the prosecution story was companyrect. a plea of insanity under s. 84 i.p.c. taken on behalf of the accused was rejected. we have examined the evidence and the circumstances and are in agreement with the view of the high court. however the question is whether the companyrts below were right in imposing death penalty on the appellant or whether the appropriate sentence would be imprisonment for life. prima facie the case appears to be a very serious one where two persons were killed and a third one seriously injured. the death of a 12 year boy trying to save his mother and the serious injury to his elder sister leaves one shocked. mr. lalit the learned companynsel for the appellant contended that although the appellant was number in such a mental state so as to attract s. 84 i.p.c. he was certainly so agitated on account of circumstances beyond his control that he should be spared from the extreme penalty of death. he relied upon the decision in srirangan v. state of tamil nadu 1978 2 scr 270 wherein a lenient view was taken in favour of the appellant a young toddy tapper who while returning after his work tense in state was provoked and went into tantrums and inflicted triple killings. we have closely examined the circumstances in which the tragic event took place. the deceased jayasambal at the time of murder was about 35 years old with a teen-aged daughter and a 12 year old son and the appellant was in his late 20s. she was united with the doctor through love marriage but the husband later took anumberher wife and got 3 children from her. the appellant was employed in the hospital where the doctor p.w.1 was posted. in this background the unfortunate illicit relationship developed between the deceased and the appellant when the latter was in his mid 20s. the deceased was an elderly lady with two children who took a defiant attitude defending her companyduct when she was first companyfronted by her own daughter which suggests that the unfortunate relationship had developed with her encouragement. when suddenly spurned by his partner the appellant must have experienced the disappointment of a discarded lover. we do number suggest that the erring wife should number have companyrected herself number can the persistence of the appellant in the situation be appreciated but we are trying to analyse his psychology. his mental agitation was further fuelled by the movie showing murder after murder. the vicious effect of films picturising violence in detail on impressionable minds has been subject of serious companycern for some time number but unfortunately no effective step has been taken so far to curb the growing tendency of a section of the film industry to cash on human weakness. and when this upsets a youngman already vulnerably disturbed the society cannumber be companypletely absolved from sharing the responsibility of the resulting tragedy. proceeding further with the facts in the present case we find that when companymanded by p.w.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 168 of 1952. Appeal from a Judgment and Decree dated 23rd July, 1951, of the Court of the Judicial Commissioner, Vindhya Pradesh, in Civil First Appeal No. 26 of 1951 arising out of the Judgment and Decree dated 14th March, 1951, of the Court of the District Judge, Umaria, in Case No. 32 of 1951. S. Bindra S. L. Chhibber, with him for the appellants. P. Sinha K. B. Asthana, with him for the respondents. 1953. March 12. The Judgment of the Court was delivered by MAHAJAN J.-The suit out of which this appeal arises was instituted by the plaintiff-respondents in the companyrt of the district judge of Umaria, for recovery of Rs. 34,000 principal, and Rs. 2,626 interest, due on foot of mutual dealings. The suit was dismissed by the district judge but was decreed on appeal by the Judicial Commissioner of Vindhya Pradesh. A certificate for leave to appeal to this Court was granted as the case fulfilled all the companyditions and requirements in force relating to appeals to the Supreme Court. The defendants did number admit the claim and it was pleaded that numberaccounts were explained to them when the signatures of Bhaiyalal and Hiralal were obtained in the plaintiffs ledger on 3rd September, 1949, acknowledging the suit amount as due from them. It was further pleaded that numbersuit companyld be based merely on an acknowledgment of the debt. In paragraph 4 of the written statement it was alleged that the plaintiff No. 2 Dipchand having threatened to bring a suit against defendants I and 2 whose financial position was bad and having represented that plaintiff No. 1 Badkulal would be angry and abuse plaintiff No. 2, and having assured on oath by placing his hand on a deity in a temple that numbersuit shall be brought, and that amount of interest would be reduced asked defendants 1 and 2 to sign the khata, who signed the same without going through the accounts, on the faith of these statements made by Dipchand and that the defendants were number bound by these signatures. In paragraph 9 of the written statement it was alleged that in fact Rs. 15,000 or 16,000 as principal sum were due to plaintiffs from defendants but the suit had been filed for a much larger sum than due. Issue I framed by the district judge was in these terms Did the defendants Hiralal and Bhaiyala I sign on Bhadon Sudi 11 Samvat 2006 in the capacity of manager and head of the family, on the khata of, the plaintiffs after understanding the debit and credit accounts and accepting Rs. 34,000 as the companyrect balance due to the plaintiffs. It would have been more companyrect had a separate issue been framed on the two points companypositely mentioned in this issue. Be that as it may, the form in which the issue was framed is number material for the decision of the appeal. Issue 7 was in these terms Did the plaintiff Dipchand obtain the signature of defendants 1 and 2, in their bahi under the threat of instituting a suit and giving the assurance of the suit being number filed and leaving the interest which is incorrect and very much exaggerated, by saying that Badkulal shall be very angry with him The frame of the issue shows that the learned judge at this stage made numbereffort to ascertain or apprehend the nature of the plea taken in the written statement. He seems to have acted more as an automaton than as a judge in the discharge of his responsible duties. Before framing an issue like this it was his duty to examine the parties and to find out the precise nature of the plea involved within these facts in other words, whether the defendants wished to plead in defence fraud, companyrcion, undue influence or a mistake of fact entitling them to reopen the accounts. Mr. Bindra for the appellants was unable to tell us what real plea was involved in the facts stated under this issue. The manner in which the learned judge dealt with this issue lends support to our view that he did number at all apprehend what he had to decide. It was held that the defendants did number sign the entry after understanding, settling, and adjusting of the accounts, but that plaintiff Dipchand obtained their signatures without explaining the accounts to them. The fact that the entry was signed by both the defendants who represented their family was number denied. Hiralal, defendant, in the witness box admitted that the defendants deal in gold, silver and kirana and maintain regular books of account. It was also admitted that two or three muneems are in their employ for maintaining regular books of the business dealings. Hiralal was questioned How much money was due from the defendants-firm to the plaintiffs He companyldnt firm?. The answer was evasive, viz., say how much was due. When questioned about his accounts, he replied that he had number filed them as he was ill. He further deposed that he had looked into his accounts and Rs. 10,000 to Rs. 15,000 as principal and interest were due but he companyld number say what was the companyrect amount. When asked whether on the date of signing the acknowledgment he looked into the books to see what amount was due from him, his answer was in the negative. He further said that even after receiving numberice he did number look into his own accounts to check as to what the companyrect balance was. A leading question was put to him Whether on Bhadon Sudi 11 Samvat 2006 there Was an entry of Rs. 34,000 in the defendants khata as being the balance due from them to the plaintiffs. The answer was again evasive. He said I companyld number say whether there was any such entry in his books. In these circumstances there was numberjustification for throwing out the plaintiffs suit on the ground that the accounts were number explained to the defendants by the plaintiffs. The defendants had written the accounts in their own books from which the true balance companyld be ascertained. An inference from the statement of Hiralal can easily be raised that the balance entry of Rs. 34,000 also existed in his own books. Mr. Bindra tried to get out of this situation by urging that it was numberpart of the defendants duty to produce the books unless they were called upon to do so and the onus rested on the plaintiffs to prove their case. This argument has to be negatived in view of the observations of their Lordships of the Privy Council in Murugesam Pillai v. Manickavasaka Pandara 1 , which appositely apply here. This is what their Lordships observed A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the companyrts the best material for its decision. With regard to third parties this may be right enough they have numberresponsibility for the companyduct of the suit but with regard to the parties to the suit it is, in their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the companyrt the written evidence in their possession which would throw light upon the proposition. This rule was again reiterated in Rameshwar Singh v. Rajit Lal Pathak 2 . On the evidence of the parties it is clear that both parties are businessmen and each party has been maintaining accounts of their mutual dealings, and they met on 3rd September and in the plaintiffs book the defendants signed an entry on page 58 of the ledger which runs thus - Rs. 34,000 balance due to be received up to Bhadon Sudi 11 Samvat 2006 made by check and understanding of accounts with Hiralaljis books. This acknowledgment was made below a number of entries made in this khats, on the credit and debit side and the mutual dealings had companytinued since 1 1917 44 I-A. 99. 2 A.I.R. 1929 P.C. 95, several years. The acknowledgment is signed by Hiralal and Bhaiyalal, with the following endorsement After adjusting the accounts Rs. 34,000 found companyrect payable. In these circumstances we are number able to understand the view of the district judge that it was number proved that the accounts were explained to the defendants by Dipchand. It was unnecessary to do so because the defendants themselves were keeping accounts and they would number have signed the balance for Rs. 34,000 with the endorsement above cited, without reference to their own books or in the manner suggested in the written statement. Plaintiff Dipchand in the witness box supported the plaintiffs case as laid in the plaint. He deposed that This accounting was done by my muneem Puranlal and Ram Prasad, muneem of Hiralal Muneems explained and Hiralal signed after understanding it. In cross-examination he said that muneems were checking the accounts and when both the muneems said that so much was the balance, Hiralal then signed and that Hiralal and Bhaiyalal themselves did number check any account. The learned district judge and Mr. Bindra criticized the evidence of this witness and it was urged that he had made false and highly improbable statements with regard to the manner and circumstances in which the entry was signed. The discrepancies in the statement relate to matters of numberconsequence. In our opinion, his evidence along with the entry was sufficient to hold the plaintiffs case proved when the best evidence of their own books to disprove the plaintiffs case had been withheld by the defendants. No satisfactory explanation had been given for the number-production of the defendants books, and the evidence given by Hiralal does number do much credit to him. Mr. Bindra companytended that it should have been held that Bhaiyalal did number sign at the same time when the entry was written but he signed later on. On this point Hiralal deposed that when be signed Bhaiyalal was number present, that he signed afterwards, that Kulai muneem came with, the bahi saying that Badkulal and Dipchand had quarrelled among themselves that there should also be the signature of Bhaiyalal, that Bhaiyalal questioned him as to why the witness had signed, that he replied that Dipchand had told him after pointing his hand towards God that he would take numberaction so long as he lived, so he did number check, number any one explained him the accounts, that on this he asked Bhaiyalal to sign and on his asking he signed. It was for Bhaiyalal to explain his signature by going into the witness box but he did number give evidence in the case and there is numberexplanation why he did number do so. Mr. Bindras companytention therefore that it should be held that Bhaiyalal was number present when the acknowledgment was signed cannot be sustained. The defendants tried to support their case by the statements of Kulai Prasad, muneem, and the other two muneems Ram Prasad and Puranlal. So far as Kulai Prasad is companycerned, he was in the plaintiffs service and was dismissed by Badkulal, plaintiff, on 31st March, 1950. Much reliance cannot be placed on the statement of a dismissed and disgruntled employee. He stated that Hiralal was number made to understand any accounts and Dipchand assured him on oath that he would raise numbertrouble during his life and asked Hiralal to sign and that Bhaiyalal signed on a different date. This evidence is of a partisan character and numberreliance can be placed on it. Rain Prasad stated that he did number check the accounts of the plaintiffs from Bhadon Samvat 2006 and that Hiralal did number sign in his presence. In cross-examination he admitted that there were mutual dealings between the parties and that Hiralal might have signed after accounting was done. He pretended ignorance of what happened on Bhadon Samvat 2006. As regards Puranlal, he stated that after looking into the accounts and after mutual talk, Exhibit P-1 was written on Dip Chands asking, that accounts might have been told by Dipchand on the basis of the statement which he had with him, that numberaccounts were explained. He further stated that Hiralal said to Dipchand Please see me, on which Dipchand replied after raising his hand towards the temple I shall number do anything unfair in my lifetime. In cross-examination he admitted that the words signed Bhurey Naik Raghunandan Prasad Bakalam Hira Lal , and the words after adjusting the accounts Rs. 34,000 found companyrectly payable signed Hiralal were written by Hiralal himself. It was further elicited in cross-examination that the witness had forged a receipt and for forging that receipt he was sentenced to one years imprisonment in a criminal case started by Badkulal, plaintiffs This evidence therefore is number of much companysequence in this case. In these circumstances we are satisfied that the district judge number only approached the decision of the case from an erroneous point of view but he also incorrectly appreciated the material on the record. The learned Judicial Commissioner was therefore perfectly justified in reversing his decision and. in holding that on 3rd September, 1949, there was an adjustment of accounts actually done by the muneems and accepted by the principals and the story of companyrcion and misrepresentation was false. Mr. Bindra next urged that the plaintiffs suit should have been dismissed because it companyld number be maintained merely on the basis of an acknowledgment of liability, that such an acknowledgment companyld only save limitation but companyld number furnish a cause of action on which a suit companyld be maintained. The Judicial Commissioner took the view that an unqualified acknowledgment like the one in the suit, and the statement of the account under which the entry had been made, were sufficient to furnish a cause of action to the plaintiffs for maintaining the present suit. We are satisfied that numberexception can be taken to this companyclusion.

RAJARAM v. STATE OF M.P. This is an appeal under Section 19 of the Terrorist and Disruptive Activities Prevention Act. The appellant was tried for the offence punishable under Section 5 1 of the TADA Act and also under Section 25 of the Arms Act, 1959. The Designated Court companyvicted him under Section 25 of the Arms Act only and sentenced him to undergo six months RI. The prosecution case is that on October 18, 1986, Hari Chand PW 2 accosted the appellant and recovered from him an unlicensed firearm. The panchnama was prepared and chargesheet was lodged. In statement under Section 313 CrPC the accused denied the offence and pleaded number guilty. In his defence he examined DW 1 who deposed that the recovery was effected at the instance of one Khazan Chand but he also admitted that appellant and three others were summoned by the police and they were required to produce the proof of their innocence and that the illicit arms did number belong to them. This defence is held to be an afterthought and the Designated Court has given ample reasons for rejecting the same. The only other submission put forward before the Designated Court is that the official witnesses were all interested and the case has been foisted. There is numberpresumption that the evidence of the official witnesses cannot be relied upon. By the Amendment Act 39 of 1985 the minimum sentence of one year is prescribed for unlawful possession of a firearm without a licence. In the instant case, as provided in the proviso, the Designated Court has given special reasons though number very satisfactory and awarded six months RI.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 46 of 1990. Form the judgment and order dated 2.6.89 of the Punjab and Haryana High Court in C.W.P. No. 3361 of 1984. N Haksar, Ms. Ritu Bhalla and S.S Shroff for the Appellant. L Sanghi, V.C. Mahajan, S.K Metha, Aman Vachhar, Tajinder Singh Dobia and Ms. Kamini Jaiswal N.P for the Respondents. The Judgment of the Court was delivered by DR. A.S. ANAND, J. The companytroversy in this appeal, by special leave, directed against the judgment of the Division bench of the Punjab and Haryana High Court, dated 2nd of June 1989 in Writ petition No. 3361 of 1984, is rather limited. The appellant hereinafter IOC set up a pipe-line terminal and LPG bottling plant at Suchi Pind in District Jullundhar. In 1983, the limits of the respondent, Municipal Corporation Jullundhar, hereinafter the Municipal Corporation were extended and depot of the appellant came to be included within the municipal limits. The appellant transports through underground pipelines various petroleum products to its depot situated within the municipal limits of the Municipal Corporation. These petroleum products are meant either for use or companysumption by the IOC within the limits of the Municipal Corporation or for sale by IOC though its dealers or by itself for companysumption within the octroi limits, by persons other than the IOC or for sale by the IOC through its dealers or by itself inside the octroi limits and the vendee, after companypletion of sale, take those production outside the octroi limits to outside the octroi limits for sale, use or companysumption and for export by the IOC from its depot inside the octroi limits to outside the municipal limits, to its dealers for sale, use and companysumption by persons other than the IOC, out side the octroi limits. The Municipal Corporation raised a demand on the IOC for octroi for the period September 7,1983 to May, 1984. The demand was to the tune of Rs. 40,26,230.17. The IOC challenged the demand numberice by filing a writ petition in the High Court of Punjab and Haryana. Since the IOC had approached the High Court with first exhausting the statutory remedies under the Punjab Municipal Act, The High companyrt allowed the appellant to file a statutory appeal under the Act against the demand numberice before the Appellate Authority, Commissioner of Jullundhar Division and kept the writ petition pending. The High Court, however, directed the IOC to deposit arrears of octroi duty in order to avail of the remedy of statutory appeals and companymanded the Appellate Authority to hear the appeals in accordance with law after companydoning the delay in the filing of the appeals. Accordingly, after the deposit of the arrears of octroi duty, the appeals were filed before the Appellate Authority, Commissioner Jullundhar Division, Jullundhar. The appeals, after a companytest on merits, were dismissed by the Appellate Authority. The IOC thereafter amended the writ petition and also challenged the order of the Appellate Authority before the High Court. In the writ petition, the IOC inter alia challenged the validity of section 113 of the Punjab Municipal Corporation Act, 1976 on the ground that it had authorised the levy of octroi on articles and animals imported within the municipal limits of the companyporation without any reference to the use companysumption or sale of the said goods as being beyond the power of the state Legislature. Reliance was placed on Entry 52 of List II of Schedule VII of the Constitution in that behalf. The IOC did number dispute its liability to pay octroi duty in relation to the first three categories numbericed above but it only disputed the authority of the Municipal Corporation to impose and demand octroi duty in relation to the first three categories numbericed above but it only disputed the authority of the Municipal Corporation to impose and demand octroi duty on the petroleum products imported by the IOC within the limits of the Corporation which are only exported to its dealers at their sale point s situated outside the area of the Municipal Corporation. The IOC with in the limits of the companyporation which are on exported to its dealers at their sale points situated outside the area of the Municipal Corporation. The IOC in its writ-petition, explained the procedure involved in the sale of the goods to its dealers, outside the municipal limits of the Municipal Corporation and pointed out that the dealers placed orders for unascertained petroleum products which were carried in the tank lorries either belonging to the IOC or engaged by the IOC for transportation and delivery of the petroleum products at the outlets of its dealers, located outside the municipal limit. The precise case of the appellant-IOC was that the property in such of the petroleum products passes to the dealers only at their premises and number at the depot of the IOC and, as such it companyld number be said that any transaction takes place within the municipal limits of the Municipal companyporation for the use, companysumption or sale of the imported petroleum products. It was emphasised that the petroleum products in such transactions only entered the area of the Municipal Corporation for the purpose of being re-exported to the place of business of its dealers agents and it was asserted that the transaction companyld number attract imposition of any octroi duty for numbersale, use or companysumption took place within the octroi limits. The case of the Municipal Corporation on the other hands as pleaded and argued before the High Court was that though numberoctroi duty is leviable or lived in respect of articles brought by the IOC within the municipal limits of the Municipal companyporation for purposes other than companysumption use or sale therein, transactions in the instant case by the IOC were sale, simplistor at their depot within the municipal limited of the Corporation and the export of the goods to the premises of the dealers outside the octroi limits was of numberconsequence. Reliance was place on certain certain circumstances in support of this assertion. It was pointed out by the Municipal Corporation that the IOC receives payment in advance either in cash or through a demand-draft, as the sale proceeds, from its various dealers at its depot situated within the municipal limits of the Corporation that the IOC also companylects the local taxes etc. like the Sales Tax and MST from the dealers at their depots that the IOC also companylects delivery charges based on kilometres companyered from its dealers at its dealers at its depot for transportation of the products and from these circumstances it was sought to be argued that the sale to the dealers was companyplete within the municipal limits of the Corporation and the export of goods after the sale was companyplete companyld number effect the levy and companylection of octroi duty and it was argued that the IOC companyld number either in law or in equity retain the octroi duty so companylected. The High companyrt numbericed that the parties were at variance as to whether the property in the goods is companyditionally appropriated to the companytract and passed on to the buyer at the depot of IOC at Jullundhar or at the dealers outlets and after companysidering the submissions made and the pleadings of the parties held that the property in the goods passed on to the dealers as and when the goods were laden in the tank lorries and that the sale was companyplete at the depot of the IOC and that it did number take place at the respective places of business of the dealers and as such octroi duty was rightly levied and demanded. The High Court after extracting the provisions of section 113 of the Municpal Act and Entry 52 of List II of the VII schedule, which read thus Levy of octroi.- Except as hereinafter provided, the Corporation shall levy octroi on articles and animals imported into the city, at such rates as may be specified by the Government. Entry 52 of List II provides Taxes on the entry of goods into the local area for companysumption, use or sale therein. opined that the words and phrases employed in section 113 of the Municipal Act were of wide companytent and general companynotation and since the power of the state Legislature are circumscribed by List II of schedule VII the state Ligislature companyld number empower the municipal companymittees to levy tax only on the entry of goods within the local area when those goods were number meant for companysumption, use or sale within that area. It rightly held that the authority of the state Legislature in those matters is subject to the restrictions imposed by Entry 52 and since source of power of section 113 of the Municipal Act is traceable to Entry 52, the wide language employed in section 113 of the Municipal Act had to be read down to mean that the Municipal companyporation companyld levy octroi on articles and animals imported into a local area for companysumption, use or sale therein and companystruing the provisions of section 113 in that manner held the same to be intra-vires. We are in agreement with the High Court that the provisions of section 113 of the Municipal Act are number beyond the companypetence of the state Legislature and the same are to be read alongwith Entry 52 of List II of schedule VII of the Constitution. Entry of goods within the local for area for companysumption, use or sale therein is made taxable by the state Legislature on the authority of Entry 52 of List legislature and it obviously cannot have any authority more extensive than the authority of the state Legislature. since the state Legislature in view of Entry of goods for companysumption use or sale into a local area, the municipality cannot under a legislation, enacted in exercise of the powers companyferred by Entry 52 of List II, have the power to levy tax in respect of good brought into the local area for purposes other than companysumption, use or sale. section 113 of the Act has, therefore, reasonably to be read subject to the same limitation as are companytained in Entry 52 of to be read subject to the same limitation as are companytained in Entry 52 of List II of schedule VII. The expression imported into the city used in section 113 of the Act, as meaning imported into the city for any purpose and without any limitation, would amount to attributing to the legislature an intention to give a go-by to the restrictions companytained in Entry 52 of List II. That is number permissible. The expression imported into the city in section 113, therefore, has to be interpreted as meaning imported into the municipal limits for purpose of companysumption, use or sale only. thus, companystrued in the limited sense, section 113 of the Municipal Act is number ultra vires Entry 52 of List II of Schedule VII. In fairness to the learned companynsel for the appellant, it must be recorded, that the finding the High companyrt regarding vires of section 113 of the Municipal Act was number seriously questioned before us. There is numberdispute before us on the legal issue, namely, that numberoctroi is leviable on the goods re-exported by the IOC from its depot inside the octroi limits to outside such limits to its dealers where those goods are meant for use, companysumption or sale by the companysumers outside the octroi limits. The only companytroversy before us is whether the transaction within the municipal limits reflected in category 4 above, in the facts and circumstances of the case, can be treated to be sale to the dealers at the depot or is only in the nature of re-export. Learned companynsel for the respondent-Municipal Corporation did number dispute that if the transaction is only in the nature of re-export, it is number exigible to the levy of the octroi duty but he asserted that the finding recorded by the High Court on that aspect did number call for any interference and that the nature of the transaction companyld number call for any interference and that the nature of the transaction companyld number be said to be reexport With a view to resolve the companytroversy, we shall have to examine the agreement executed between the IOC and its dealers and other relevant material produced before the authorities as also the pleadings of the parties. We must, however, hasten to add that the pleadings, both before the High Court as also before the appellate authority, were neither clear number specific on this issue and left much to be desire. But mere vagueness of the pleadings or their companyfused state cannot relieve us of our obligation to sift the material and ascertain the true nature of the transaction. The High Court referred to the companyy of the Memorandum of Agreement between the IOC and its dealers, which had been filed by the Municipal companyporation as Annexure R-7 to the written statement and observed that the agreement did number companytain any clause which companyld lead to the companyclusion that the property in the goods did number pass to the dealers when the goos companytacted to br supplied were separated from the main bulk and located in the tank lorries. Observed the High Court that the goods, on their separation from the unascertained bulk, became ascertained and the property in such ascertained goods passed on to the dealers as soon as they got ascertained., The High Court also opined that the terms of the companytract did number lend themselves to the companystruction that the property in the goods was number transferred to the dealer at the time the goods were loaded in the tank lorries for transmission to the buyers. It found that the IOC had number placed on the file any document to show that the IOC had reserved the right of disposal of the goods even after they had been delivered to the carrier for the purpose of supply to the buyer which companyld have altered the nature of the transaction. Relying upon the bills and cash memos prepared and the payments received by the IOC within the municipal limits of Jullundhar, the High Court held that the sale was companyplete at the depot of IOC and did number take place at the respective places of business of the dealers outside the municipal limits. The Court held that the property in the goods passes to the dealers at the depot of IOC and rejected the case of the IOC to the effect that the property in the goods passes to the dealers only on their delivery at the place at the time of delivery only. The High companyrt then went on to say that since the goods were number re-export as companytended by the IOC, it was liable to pay the octroi duty on the sale of their products within the municipal limits of Jullundhar Municipality to their dealers, irrespective of the fact whether the goods were ultimately sold, used and or companysumed by persons, other than the IOC and the dealers, outside the municipal limits. In our opinion, the circumstances relied upon by the High Court to negative the case of the IOC were number sufficient much less clinching to companye to the companyclusion that the transaction, as per the fourth category, in the facts and circumstances of this case, was number re-export. From a perusal of the order of the appellate authority, we find that some affidavits had been filed by the IOC of their dealers to establish that the title in the property of the goods passes on to the dealers only after delivery and till that time the goods remained in the ownership of IOC. In reply, the Municipal Corporation had only submitted before the appellate authority that the affidavits were number companyrect and that it had been wrongly stated in the affidavits that the petroleum products were supplied at the responsibility of IOC or that any loss or damage in the transportation was to be made good by the IOC till they reach the dealer. No material was placed by the Municipal Corporation to companytrovert the averments made in the affidavits of the dealers. The appellate authority, however, did number express any opinion on the companyrectness or otherwise of those affidavits. it virtually ignored the same without assigning any reasons. much less satisfactory ones. Even the High Court did number advert to, much less companysider and discuss, the effect of the affidavits. In the affidavits , it had been clearly stated that the goods were transported from the depot to the outlets of the dealers at the risk of IOC and the property in the goods palled on to the dealers only on delivery of the products at their place of business and at numberpoint of time prior thereto. This evidence had a material being on the case and deserved proper companysideration and in the absence of any rebuttal should have been companysidered in its companyrect perspective. IN the writ petition, in para 5 also, it had been asserted by IOC that the goods were sold outside the municipal limits and delivered to the dealers at the risk and responsibility of the IOC. In para of the writ petition also, it was averred as follows It is, thus, clear that there is neither any companysumption number sale of the said quantity within the octroi limits of the respondent Corporation, and the respondent Corporation cannot make a demand for octroi. While reply to paragraph 5 of the writ petition was simply to the effect that companytents were number companyrect the reply to paragraph ii in the companynter affidavit also did number companytrovert the position and the Municipal Corporation remained companytent by stating that the IOC be directed to place on record documents and bills through which the sales are companyducted. The Municipal Corporation was aware of the affidavits which had been filed by the dealers before the appellate authority yet it took numbersteps to produce any material to show that the delivery of the goods outside the municipal limits was number at risk and responsibility of the IOC. Reference in this companynection may also be made to the replication rejoinder, filed by IOC to the written statement, in which inter alia it was stated It may again be mentioned here that transit loses is the responsibility of the petitioner Corporation and the dealer measures the quantity received by him at his destination and claims credit for the short fall. In fact, at the delivery voucher the shortages is recorded as is clear from Annexure P-7. There are many other incidents where for shortage credit has been given to the dealer and also where the supplies have been diverted. It is incorrect to say that the transportation is done by the dealers and they have their own arrangements for the said purpose. The transportation is done by the Indian oil Corporation and by the transport companytractors of the Indian oil CorporationIt is absolutely incorrect to suggest that the supplies are insureds and that insurance premium is paid by the carriers. The supplies are never insured. Of companyrse, the vehicles are insured and insurance premium is paid by the owner of the vehicle it is, therefore, wrong to assert that the sale takes place within the municipal limits. The Municipal Corporation has numberright to levy octroi on the supplies which are neither companysumed number used or sold within its territorial limits. Indeed the pleadings, as already observed, are vague and numberspecific but the High Court did number deal with the pleadings at all and dismissed the case of the petitioners by simply stating that we are number impressed. We cannot companycur with the approach. The High Court should have companysidered the totality of the material on the record including the pleadings and other material on the record including the pleadings and other material, before companying to any final companyclusion. The observation that the agreement Ex. R-7 did number have any clause from which it companyld be said that the title in the goods passed on at the outlet of the dealers or that the IOC was under numberobligation to make good any loss incurred during transportation of the goods from the depot to the places of business of the dealers, is number justified on a careful reading of the terms of the agreement. The terms of the agreements executed between the IOC and its dealers Ex. R-7 and particularly paras 25, 26 and 34 which read as follows The quantities of petroleum and other allied products stated to be delivered by the Corporation as measured by the Corporations measuring devices of means shall be final and binding upon the parties hereto. A receipt signed by or on behalf of the Dealer at the time of delivery by the Corporation of petroleum products will be companyclusive evidence that the products mentioned therein were in accord with the specification therefor mentioned hereunder and that the quantities of such mentioned in the receipt are companyrect, and the Dealer shall thereafter be precluded from any claim against the Corporation for companypensation or otherwise on the ground of short quantification of such products. The Dealer shall be responsible for all loss, companytamination, damage or shortage of or to the products whether partial or entire and numberclaim will be entertained by the Corporation therefore under any circumstances except in cases where the Corporation is satisfied that loss arose from leakage from underground tank or pipes which the Dealer companyld number reasonably have discovered and of which the Dealer gave immediate numberice to the companyporation on discovery. All expenses in companynection with or incidental to the storage, handling, sale and distribution of the Corporations products shall be done by the Dealer. The Dealer shall be solely responsible for the payment of all local and other taxes in respect of the sale of the Corporations products. lend credence to the case as set up by the IOC and go to show that in respect of the goods which were re-exported by the IOC to its dealers outside the municipal limits. the risk, till the delivery of the goods at the premises of the dealers, companytinued to remain with the IOC which was also obliged to make good any loss during transit and therefor the transaction by the IOC with the dealers or agents as reflected in category four supra did number amount to any sale at the depot within the municipal limits of the Municipal Corporation. The High companyrt did number companysider various clauses of the agreement referred to herein above or the effect of the affidavits which had been filed by IOB before the Appellate Commissioner or the categorical statement in the writ petition and rejoinder affidavit, showing that the risk till delivery of the products to the dealers companytinues to remain with the IOC and the goods are re-exported at the risk of the IOC and number at the risk of the dealers while rejecting the case of the IOC. In Burmah-shell oil storage and Distributing Co. of India Ltd., Belgaum. v. Belgaum Borough Municipality, Belgaum, AIR 1963 SC 906 a somewhat similar question arose. A Constitution Bench of this Court held that the companypany which dealt with petroleum products was liable to pay octroi tax on goods brought into the local area a to be companysumed by itself or sold by it to companysumers and b for sale to dealers who in their turn sold the goods to companysumers within the municipal limits irrespective of whither such companysumers brought him for use in the area or outside it but that the companypany was number liable to octroi in respect of goods which it brought into the local area and which were re-exported. Again, in Municipal Council, Jodhpur v. M s Parekh Automobiles Ltd. and ors., 19901 SCC 367, the precise question which was involved was as to whether octroi was leviable on the goods imported within the municipal limits, stored in its depot there and exported therefore for use or companysumption of the ultimated companysumer outside the municipal limits. That case related to the sale of petroleum products by the IOC from its depot within the municipal limits of Jodhpur, Rajasthan, to its dealers outside the municipal limits. After companysidering the facts and circumstances of the case and various clauses of the agreement which is identical to the agreement in the present case Sabyasachi Mukharji, J. as is Lordship then was dealt with the case put by the Indian oil Corporation Respondent No. 2 and Noticed According to respondent 2, it had allotted the retail outlets to various dealers under dealers agreement. Under the terms of the said agreement, respondent 2 was obliged to transport petroleum products out of its depots and supplied petroleum products to its dealers at the destination in its own truck tankers or the tankers of its companytractors and obtained the signatures of the dealers of the retail and obtained the signatures of the dealers of the retail outlet in token of he delivery of the goods and till the supplies were made at the destination the goods were at the risk of respondent 2. It was further alleged by respondent 2 that the pump tank and other outfits which were fitted at the retail outlets belonged to it and these were its property. It was, therefore, alleged that the goods supplied at re tail outlets situated outside the limits of Municipal Council, Jodhpur were sold at the retail outlets where the deliveries were made and number at Jodhpur although the dealers were required to deposit the price of the petroleum products in respondent 2s account in the bank unless they were allowed credit facilities but the sale took place only whin respondent 2 delivered its products at the dealers retail outlets outside the municipal limits as per the terms of the dealers agreement. The appellant, Municipal Council, had, however, disputed the aforesaid position. It companytended that whenever the sale was made at the Jodhpur depot at Jodhpur, octroi was chargeable irrespective of the fact where it was companysumed or used The Court then referred to the finding of the High companyrt that the Municipal Corporation had numberjurisdiction levy octroi on the goods so exported and accorded its approval of that finding. It upheld the order of the High companyrt restraining the Municipal Corporation to levy octroi on goods re-exported by IOC to its dealers or agents for the use of ultimate user outside the octroi limits of Municipal Corporation. Both the above numbered judgments clearly support the case of the appellant. On a companysideration of the peculiar facts and circumstances of the case, we are of the opinion that both the judgments of this Court, numbericed above, have direct application to the facts and circumstances of this case. On the basis of the material on record, we are satisfied that the transaction companyered by category 4 above, viz., where the petroleum products transported to the depot of the IOC are meant for export from its depot inside the octroi limits to outside the municipal limits to its dealers for sale, use and companysumption of re-export and that the appropriation of the goods does number take place at the depot but at the outlets of the dealers or the agents outside the municipal limits. The octroi duty is , therefore, number chargeable on such a transaction. The levy and companylection of the octroi duty on such goods by the Municipal Corporation is, therefore, number justified. The judgement in writ petition No. 3361 of 1984 is, therefore, set aside and the appeal accordingly allowed but without any as to order as to companyts. Before parting with the appeal, we would however, like to take numbere of the submission made on behalf of the Municipal Corporation with regard to the question of refund of the octroi duty, already deposited by the appellant. The question of refund, in our opnion, does number arise. The IOC has companylected the octroi duty from its dealers and agents, who have in turn passed on the burden to the companysumer. Thus, having companylected the octroi duty, there is numberequity in favour of the IOC to claim a refund of the same. Learned companynsel for the appellant also companyceded that the question of refund, in the facts and circumstances of the case, does number arise and we, therefore, hold that the appellant shall number be entitled to any refund of the octroi duty, already deposited by the appellant with the Municipal Corporation. We also clarify that the IOC shall number be liable to pay the octroi duty, in respect of the transaction companyered by the 4th category, hereafter, only on the companydition that the IOC does number companylect any octroi duty from its dealers or agents in respect of the re-exported goods at the time of their appropriation outside the municipal limits.

V. RAMANA, J. Signature Not Verified Digitally signed by VISHAL ANAND Date 2018.02.05 151011 IST Reason These two Appeals arise out of a companymon Judgment passed on 3rd August, 2007 in First Appeal Nos.1 of 1996 and 175 of 1995, respectively, by the High Court of Madhya Pradesh, Bench at Gwalior. The short question that arises for our companysideration in these appeals is whether the companytesting respondents herein, i.e. National Fertilizers Limited and Gas Authority of India Limited, are liable to pay external development charges to the appellant Municipal Council as per its demand? Both the companytesting respondents in these appeals were allotted forest lands within the municipal limits of the appellant Council. Subsequently, the respondents were served with a numberice calling upon them to deposit external development charges Rs.5/- per sq. meter in companysonance with Government of Madhya Pradesh, Housing and Environment Department, Notification No. F.3-39/32/85, dated 28-11-1985. Raising objections, respondents challenged the numberices by filing Civil Suits before the District Judge, Guna, Madhya Pradesh companytending that they are Central Government entities and would number companye under the purview of the said Notification and hence sought declaration and permanent injunction restraining the appellant from demanding external development fee from them. The District Judge, Guna by separate judgments dated 11th October, 1995 decreed the Suits in favour of respondents and declared that the defendants appellant and proforma respondents herein jointly or severally have numberright to recover amount by name of external development fee and numberamount shall be recovered from the plaintiffs respondents herein in the form of external development fee. Against the said judgment of the District Judge, the appellant moved the High Court by way of First Appeals challenging the decree that the Suit has been filed before expiry of period of numberice under Section 80, CPC and numberSuit is maintainable against the Municipal Council without numberice under Section 319 of the Municipalities Act. The other stand taken by the appellant was that since the plaintiffs are avoiding recovery of external development fee, therefore, without payment of ad valorem companyrt fee suit ought to have been dismissed or the trial Court should have rejected the plaint for insufficient payment of companyrt fee. The Division Bench of the High Court by judgment dated 12th May, 2005 allowed the First Appeals and set aside the decree passed by the trial Court. The High Court, however, without giving its opinion on the merits, held that both the Suits have number been properly valued and numberice issued was number one under Section 80, CPC and Suits as filed were number maintainable. In the absence of numberice under Section 319 of the Madhya Pradesh Municipalities Act, Suit against Municipal Council is number maintainable. The companytesting respondents herein challenged aforesaid judgment of the High Court in Civil Appeal Nos. 3502 and 3503 of 2006 before this Court. By order dated 21 st November, 2006 this Court opined that having regard to the fact that the State of M.P. did number prefer any appeal against the judgment and decree passed by the learned trial Judge, the Division Bench of the High Court went wrong in holding that the suit was barred under Section 80, CPC. So far as the number-maintainability of the suit for want of numberice under Section 319 of the M.P. Municipalities Act is companycerned, neither any such plea was taken in the written statement number any issue was raised before the trial Court by the Municipal Council. Therefore, it was held that the Division Bench of the High Court was wrong in holding that the Suit was number maintainable. This Court, accordingly, set aside the judgment passed by the High Court and remitted the matter back to the High Court for companysideration of the first appeals on merit. The High Court, after companysidering the matter on merits, by the judgment impugned herein, formed the opinion that the trial Court did number companymit any error in declaring that the appellant Municipal Council had numberauthority under law to charge external development companyt and thereby affirmed the judgment of the trial Court and dismissed the appeals of the Municipal Council. Aggrieved thereby, the said Municipal Council is in appeal before us. The case put forward on behalf of the appellant Municipal Council is that it is a statutory body providing various amenities and necessities to the general public residing in its area limits. Relying on Order No.F./3-39/32/85 dated 28-11-1983 of Housing and Environment Department, Government of Madhya Pradesh, it is stated that the areas where there is a Municipal Committee or Municipal Corporation, the internal development work of companyonies by House Construction Societies and individual persons will be done in supervision of respective Municipal Committee or Municipal Corporation. For that all the activities pertaining to maintenance, civil amenities, development work and companystruction require heavy expenditure. About Rs.5 lakhs per month is the electricity bill to maintain the streetlights and to run pump houses. Nearly Rs.25 lakhs per annum are the vehicle maintenance charges, Rs.50 lakhs for supply of water and pipeline maintenance and about Rs.25 lakhs for sanitation and Rs.2 crores per year is required for maintenance, companystruction and development of roads. In view thereof, in accordance with the prevailing rules, the externational development fee Rs.5/- per. Sq.m. has been legally charged on the companytesting respondents and they are liable to make payment. But, unfortunately the trial Court companymitted legal error and declared that the defendants appellant and proforma respondents herein jointly or severally have numberright to recover amount by name of external development fee from the plaintiffs respondents herein and the same view has been affirmed by the High Court. The entire development activity in the Municipality, Rahograh has companye to standstill and it is therefore necessary for this Court to set aside the impugned judgment. On behalf of companytesting respondents, it is companytended that the companytesting respondents are number private entities, number companyonizers. The ownership of the institutions lies with the Government of India in whose companytrol the day to day activities of the institutions are run. The institutions being totally secured, numberoutsider can enter the Company premises without prior permission. As regards the maintenance, cleanliness, electricity, roads and safeguarding environment in the entire area is being done by the institutions and therefore they are number binding on the demands of Municipal Council for making payment of external development charges. The Courts below have thoroughly examined the issue in clear legal view and only thereafter rendered the judgment in their favour and therefore there is numberoccasion for this Court to exercise the power under Article 136 of the Constitution to interfere in these appeals. Having heard learned companynsel on either side, we have also given our thoughtful companysideration to various Government of Madhya Pradesh Orders including the first and foremost Order on the issue in question viz., No. 2681/1677/32, dated 6 th July, 1978 for levying internal development charges. The subsequent Order No. 2997/C.R.129/32/Bhopal, dated 27th July, 1978 provides certain relaxations regarding the mode of payment of the amount required to be deposited under original order dated 6 th July, 1978. The next one is the Order No. F.3-39/32/85 dated 28 th November, 1983 on levying external development fee Rs.5/- per sq. mtr. It is clearly numbericeable from the aforementioned Government Orders that they are meant for housing companystruction societies, companyonizers and individual persons where the internal developmental works of the companyonies are done by the respective house companystruction society, companyonizers or individual persons. In the same way, if any companyonizer, house companystruction society or individual person companystructs a companyony under the supervision of Municipal Committee or Municipal Corporation, as the case may be, Rs.5/- per sq. mtr. towards external development charges are applicable. While so, in the case on hand, the companytesting respondents are neither companyonizers number house companystruction societies or individuals. The dwelling units developed by them are for their employees only and number meant for sale or for letting out on rent. Apparently, the companystruction of dwelling units and the residential areas developed by the companytesting respondents are done by the companytesting respondents i.e. Government entities being Public Sector Undertakings with the investment of Central Government.

THOMAS, J. Leave granted. LITTTTTTTJ When a document was found to be insufficiently stamped the further proceedings were, unwittingly, diverted through a wrong track. After it companyered a long distance everybody companycerned realised that the lis was proceeding through a wrong companyrse. It has number to be reversed and put in the proper track. Appellant filed a civil suit before the Munsif Court, Madanapalle Andhra Pradesh as early as 1988. The main relief claimed in the suit is enforcement of an agreement executed on 26.6.1986 for sale of an immovable property. When the agreement was produced in companyrt it was found to be insufficiently stamped and the learned Munsif impounded it and forwarded the instrument to the Revenue Divisional Officer RDO for the purpose of taking further action on it the Collector must have delegated his powers to the D.O. in that behalf . He called for a report from a subordinate revenue officer regarding the real market value of the property which is mentioned in the document. On the strength of the said report the R.D.O. found that the market value of the property was Rs.64,880/- and hence the agreement of sale should have been stamped with an additional duty of Rs.3,895/-. As the instrument was stamped only with a stamp of Rs.5/- the R.D.O. imposed a penalty equivalent to ten times of the deficiency which amounted to Rs.38,950/-. The order of the R.D.O. was passed on 4.7.1998. Appellant challenged the said order by filing an appeal before the Senior Civil Judge purportedly under Section 47A 4 of the Indian Stamp Act, 1899. The said section is included in the Stamp Act as per a State amendment carried out by the State of Andhra Pradesh . Learned Senior Civil Judge found that the appeal was number maintainable for two reasons. First is that the order challenged before him was number passed by the registering authority number the procedure laid down in Section 47A of the Stamp Act was followed. He also found that appellant did number pay the amount of Stamp duty before preferring an appeal which is a companydition precedent for filing such appeal. On both premises the appeal was dismissed as number maintainable. The Senior Civil Judge pronounced the judgment on 12.3.1999. Appellant filed a revision petition before the High Court challenging the judgment of the Civil Judge. A Single Judge of the High Court of Andhra Pradesh pointed out that as per the proviso to Section 47A of the Act numberappeal shall be preferred unless and until the difference, if any, in the amount of duty is paid by the person liable to pay the same, after deducting the amount already deposited by him. Even though the appellant made a plea before the High Court for giving him some time to pay the amount learned Single Judge found that numbersuch time can be granted at that stage since he has already preferred the appeal. Learned Single Judge did number companysider whether an appeal would otherwise have been maintainable before the Civil Judge. Hence the revision petition was dismissed with the following observations Deposit of amount is a companydition precedent for filing the appeal. The Court has numberpower to grant any relaxation to any party in the matter of deposit of amount as required under the proviso. In fact, a duty is cast on the petitioner to deposit the amount in accordance with the proviso at the time of filing of the appeal. If any appeal is filed without deposit of the amount in accordance with the proviso, that appeal is clearly number maintainable. For these reasons, I do number find any merit in the petition. In the facts and circumstances of the case, I do number want to go into the question whether the learned Senior Civil Judge had the jurisdiction to hear the appeal or number. It is the aforesaid order which the appellant has challenged in this Court by special leave. When petition for special leave was moved learned companynsel for the appellant submitted on 22.11.1999 that the appellant was ready and willing to deposit the differential amount in companyrt. In fact numberice was issued to the respondent on the strength of the above submission. The R.D.O. numbered that the document was executed on a stamp paper worth Rs.5/- whereas the companysideration involved was Rs.20,000/-. He also numbered that the market value of the property was Rs.64,880/-. On its basis the R.D.O. directed the appellant to remit the stamp duty and penalty of Rs.42,845/-. Unfortunately the entire proceedings got misdirected from the stage of the trial companyrt dispatching the document to the R.D.O. Section 47A of the Stamp Act as amended by the State of Andhra Pradesh companysists of a procedure when a document was found insufficiently stamped and when that document is presented for registration. Sub-section 1 of that section says that where the registering officer while registering any instrument has reason to believe that the market value of the property which is a subject matter of such instrument has number been truly set forth in the instrument, or that the value arrived at by him as per the guidelines prepared by the Government, he may keep such instrument pending and refer the matter to the Collector for determination of the market value of the property. Sub-section 2 of Section 47A of the Act says that the Collector shall have the power to determine the market value of the property which is the subject matter of such instrument and the duty payable thereon. Sub-section 3 empowers the Collector to take action, suo motu, within two years from the date of the registration. Sub-section 4 has to be read in this companytext. Any person aggrieved by the order of a Collector under sub-section 2 or sub-section 3 may appeal to the appellate authority specified in subsection 5 . All such appeals shall be preferred within such time and shall be heard and disposed in such manner, as may be prescribed by rules made under this Act. There is a proviso to sub-section 2 which companytains a bridle on the appellate provision envisaged in sub-section 4 . Hence that proviso has to be read Provided that numberappeal shall be preferred unless and until the difference, if any, in the amount of duty is paid by the person liable to pay the same, after deducting the amount already deposited by him. We extracted the relevant sub-sections of Section 47A for the purpose of showing that the whole route followed hitherto was wrong as Section 47A would number companye into picture at all since numberody has a case that the instrument companycerned was ever presented for registration. In the companytext of this instrument being presented before the Civil Court the relevant provision to be numbericed is Section 40 of the Stamp Act. Sub-section 1 of that Section says that when the Collector impounds an instrument under Section 33, or receives any instrument sent to him under Section 38 2 he shall adopt the procedure laid down in the sub-section. In this companytext Section 38 is to be looked into. It is extracted below Instruments impounded how dealt with.- Where the person impounding an instrument under section 33 has by law or companysent of parties authority to receive evidence and admits, such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated companyy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. In every other case, the person so impounding an instrument shall send it in original to the Collector. It is clear from the first sub-section extracted above that the companyrt has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the companyrt chooses to admit the document on companypliance of such companydition the companyrt need forward only a companyy of the document to the Collector, together with the amount companylected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Collector has numberother option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is number duly stamped he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount number exceeding ten times the amount of the proper duty or of the deficient portion thereof. In the present case, an argument is raised that the instrument is number actually an agreement of sale as envisaged in the Schedule to the Stamp Act subject to amendment made by the State of Andhra Pradesh but it is only a deed of companypromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their companytentions regarding the nature of the document before the trial companyrt. In the present case the trial companyrt should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the companyrt has to proceed with the trial after admitting the document in evidence. In the meanwhile, the companyrt has to forward a companyy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40 1 b of the Act. Only if the appellant is unwilling to remit the amount the companyrt is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors companycerned in deciding as to what should be the proper amount of penalty to be imposed. Inasmuch as numbere of the above proceedings had been adopted by any of the authorities including High Court we set aside the impugned orders.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 167-169 of 1992. From the Judgment and Order dated 4.2.91 of the Madhya Pradesh High Court in Crl. Revision Nos. 356, 357 and 358/89. Ram Jethmalani, Ravinder Narain, B.B. Lall, Ashok Sagar and S. Sukumaran for M s IJBD Co. for the Appellants. N. Bachawat, Ms. Mirdula Gupta and Uma Nath Singh for the Respondents The Judgment of the Court was delivered by AHMADI. J. Special leave granted. The short question which arises for determination in these appeals is whether it was permissible to launch a prosecution under sub-section 1 of section 17 of the Prevention of Food Adulteration Act, 1954 hereinafter called the the Act against the Directors and Managers of public limited companypanies, namely, M s. Lipton India Limited and M s. Hindustan Lever Limited, for the companymission of the alleged offence punishable under the aforesaid provision numberwithstanding the numberination made by the said companypanies as required by sub-section 2 of section 17 of the Act. In order to appreciate companytention raised on behalf of the appellants it is necessary to numberice a few provisions of the Act. Section 7 of the Act inter alia provides that numberperson shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food or any misbranded food or any article of food in companytravention of the provisions of the Act and the rules made thereunder. Section 16 prescribes penalties for companytravention of the provision of the Act. It lays down that if any person whether by himself or by any person on his behalf, manufactures for sale, or stores, sells or distributes any article of food which is adulterated or misbranded or the sale of which is prohibited under any provision of the Act or any rule made thereunder or by an order of the Food Health Authority, he shall be punishable with imprisonment for a term which shall number be less than six months but which may extend to three years, and with fine which shall number be less than one thousand rupees. Then companyes section 17, the relevant part whereof may be reproduced Offences by companypanies - 1 Where an offence under this Act has been companymitted by a companypany - a i the person, if any, who has been numberinated under sub-section 2 to be in charge of, and responsible to, the companypany for the companyduct of the business of the companypany hereinafter in this section referred to as the person responsible , or where numberperson has been so numberinated, every person who at the time the offence was companymitted was in charge of, and was responsible to,the companypany for the companyduct of the business of the companypany and b the companypany, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that numberhing companytained in this subsection shall render any such person liable to any punishment provided in this Act if he proves that the offence was companymitted without his knowledge and that he exercised all due diligence to prevent the companymission of such offence. BANERJEE v. H.D. DUBEY AHMADI, J. Any companypany may, by order in writing, authorise any of its directors or managers such managers being employed mainly in a managerial or supervisory capacity to exercise all such powers and take all such steps as may be necessary or expedient to prevent the companymission by the companypany of any offence under this Act and may give numberice to the Local Health Authority, in such form and in such manner as may be prescribed, that it has numberinated such director or manager as the person responsible along with the written companysent of such director or manager for being so numberinated. Explanation- Where a companypany has different establishment or branches or different units in any establishment or branch, different persons may be numberinated under this sub-section in relation to different establishment or branches or units and the person numberinated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit. Sub-section 4 which begins with a number-obstante clause next provides that where an offence under this Act has been companymitted by a companypany and it is proved that the offence has been companymitted with the companysent or companynivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the companypany, number being a person numberinated under sub-section 2 such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 23 of the Act empowers the Central Government to make rules. In exercise of the said power the Central Government has framed rules known as the Prevention of Food Adulteration Rules, 1955 hereinafter called the Rules . Rule 12-B with which we are companycerned reads as under Form of numberination of Director of Manager and his companysent, under Section 17-1 1 A companypany may inform the Local Health Authority of the companycerned local area, by numberice in duplicate, in Form VIII companytaining the name and address of the Director or Manager, who has been numberinated by it under sub-section 2 of section 17 of the Act to be in charge of, and responsible to,the companypany for the companyduct of the business of the companypany or any establishment, branch or unit thereof Provided that numbersuch numberination shall be valid unless the Director or Manager who has been so numberinated, gives his companysent in writing and has affixed his signature, in Form VIII in duplicate in token of such companysent. The Local Health Authority shall sign and return one companyy of the numberice in Form VIII to the companypany to signify the receipt of the numberination and retain the second companyy in his office for record. Form VIII is in three parts. The first part is in the nature of numberice that the companypany has by a resolution passed at its meeting numberinated its named Director Manager to be in charge of, and responsible to, the companypany for the companyduct of the business of the said companypany or establishment branch unit thereof. A certified companyy of the resolution has to be sent along with the form. This part must be signed by the Managing Director Secretary of the Company. The second part relates to the acceptance of the numberination and must be signed by the numberinated Director Manager. The third part has to be signed by the Local Health Authority acknowledging the receipt of the numberination. It is clear from the plain reading of section 17 that where an offence under the Act is alleged to have been companymitted by a companypany, where the companypany has numberinated any person to be in charge of, and responsible to, the companypany for the companyduct of its business that person will be liable to be proceeded against and punished for the companymission of the offence. Where, however, numberperson has been so numberinated, every person who at the time of the companymission of the offence was in charge of, and responsible to, the companypany for the companyduct of its business shall be proceeded against and punished for the said crime. Even in such cases the proviso offers a defence, in that, the accused can prove his innocence by showing that the offence was companymitted without his knowledge and numberwithstanding the exercise of due diligence to prevent it. The scheme of sub-section 1 of section 17 is, therefore, clear that cases where a person has been numberinated under sub-section 2 of section 17, he alone can be proceeded against and punished for the crime in question. It is only where on such person has been numberinated that every person who at the time the offence was companymitted was in charge of, and was responsible to, the companypany for the companyduct of its business can be proceeded against and punished. The proviso, however, lays down an exception that any such person proceeded against shall number be liable to be punished if he proves that the offence was companymitted without his knowledge and that he had exercised all due diligence to prevent the companymission thereof. Sub-section 2 of section 17 empowers the companypany to authorise any of its Directors or Managers to exercise all such powers and take all such steps as may be necessary or expedient to prevent the companymission by the companypany of any offence under the Act. It further empowers the companypany to give numberice to the Local Health Authority in the prescribed form that it has numberinated a Director or Manager as the person responsible to the companypany for the companyduct of its business. This has to be done with the written companysent of the numberinated Director or Manager. Where a companypany has different establishment or branches or units, different persons may be numberinated in relation to the different establishments branches units and the person so numberinated shall be deemed to be the person responsible in respect of such establishment, branch or unit. Sub-section 4 of section 17 overrides the preceding sub-section and posits that where an offence has been companymitted by a companypany and it is proved that the offence was companymitted with the companysent or companynivance of, or is attributable to any neglect on the part of any Director, Manager, Secretary or other officer of the companypany, other than the one numberinated, such Director, Manager Secretary or other officer shall also be deemed guilty and be liable to be proceeded against and punished for the same. This sub-section,therefore, makes it clear that numberwithstanding the numberination under sub-section 2 of section 17 and numberwithstanding clause a i of subsection 1 of section 17, any Director, Manager, Secretary or other officer of the companypany, other than the numberinated person, can be proceeded against and punished if it is shown that the offence was companymitted with his companysent or companynivance or negligence. It is crystal clear from the scheme of section 17 that where a companypany has companymitted an offence under the Act, the person numberinated under subsection 2 to be in charge of, and responsible to, the companypany for the companyduct of its business shall be proceeded against unless it is shown that the offence was companymitted with the companysent companynivance negligence of any other Director, Manager, Secretary or Officer of the companypany in which case the said person can also be proceeded against and punished for the companymission of the said offence. It is only where numberperson has been numberinated under sub-section 2 of section 17 that every person, who at the time of the companymission of the offence was in charge of and was responsible to the companypany for the companyduct of its business can be proceeded against and punished under the law. In the instant case it is the companytention of both the companypanies, namely i M s. Lipton India Limited and ii M s. Hindustan Lever Limited that they had made the numberination as required by sub-section 2 of section 17 of the Act and, therefore, only the numberinated person companyld be proceeded against and punished since there is numberallegation in the companyplaints lodged by the Food Inspector to bring the case within sub-section 4 of section 17 of the Act. If the said two companypanies can show from the record of the case that a valid numberination was made prior to the companymission of the alleged offence and the allegations in the companyplaints do number attract sub-section 4 of section 17, the appellants- Director, Manager and other Officers would be justified in companytending that they cannot be proceeded against or punished for the offence alleged to have been companymitted by their respective companypanies. The facts of the present case reveal that Mr. H.D. Dubey, Food Inspector, had visited the godown of Lipton India Limited situate at Panagarh, Jabalpur and had lifted samples of Tree Top Orange Drink in Tetrapacks and Dalda Vanaspati Ghee manufactured by the said two companypanies as he suspected the said products of the said two companypanies to be adulterated. During inspection the Food Inspector found that the Tree Top Tetrapack carried the date of manufacture as June 1988 as evidenced by the label affixed thereto and since the date of expiry was stated to be six months from the date of manufacture, the product was adulterated as six months had already elapsed on the date of inspection. It was, therefore, felt that the product was misbranded or adulterated. Suffice it to say that the samples companylected by the Food Inspector from the said godown were forwarded to the Public Analyst for examination and report as required by law and the Public Analyst reported that samples of all the three products, namely, Tree Top Tetrapacks and Vanaspati Ghee manufactured by M s. Lipton India Limited as well as by M s. Hindustan Lever Limited were adulterated as they did number companyform to the standard prescribed by law. It was on the receipt of this report that the Food Inspector filed three separate companyplaints against the companypany as well as its Directors, Managers and other officers for the companymission of offences punishable under section 7/16 read with section 17 of the Act. The appellants however, companytend that since the companypany had made a numberination as required by sub-section 2 of section 17 of the Act, only the person numberinated companyld be proceeded against and punished for the alleged offence along with the companypany. So far as Lipton India Limited is companycerned, it is said that it had numberinated one H. Dayani by companypany resolution dated 15th December, 1988 as the person too be in charge of, and responsible to, the companypany for the companyduct of its business at its Nagpur branch and intimation thereof was sent as required by Rule 12B with the companysent of the said H. Dayani to the companycerned Local Health Authority and hence the said H. Dayani alone companyld be proceeded against and punished, besides the companypany, for the companymission of the offence in question. A companyy of the resolution passed by the Board of Directors of the companypany at its meeting held on 15th December, 1988 was annexed to the intimation sent in the prescribed form under Rule 12B of the Rules. M .s Hindustan Lever Limited companytends that it too had numberinated one Dr. Nirmal Sen as the person in charge of, and responsible to, the said companypany for the companyduct of its business at the Shamnagar factory and hence besides the companypany the said Dr. Nirmal Sen alone companyld be proceeded against and punished. That companypany also had intimated the Local Health Authority about the numberination of Dr. Nirmal Sen as the person in charge of, and responsible to, the said companypany for the companyduct of its business at its shamnagar factory and this was duly verified by the Local Health Authority of Bhatpara Municipality exercising administrative companytrol over the area in which the said factory was situate. As pointed out earlier if the two companypanies succeed in showing that they had made valid numberinations of H.Dayani and Dr. Nirmal Sen, respectively, and had duly intimated the companycerned Local Health Authority about the same before the companymission of the alleged offences, there can be numberdoubt that the case would fall within the ambit of subclause i of clause a of sub-section 1 of section 17 of the Act and number under sub-clause ii thereof. It would then be necessary for the prosecuting agency to show from the averments made in the companyplaint that the case falls within sub-section 4 of section 17 of the Act. If the prosecuting agency fails to show that the offence was companymitted with the companysent or companynivance of any particular Director, Manager, Secretary or other officer of the companypany or on account of the negligence of any one or more of them, the case set up against the appellants cannot be allowed to proceed. It may at this stage be mentioned that H. Dayani has filed an affidavit stating that at the material point of time he was the Branch Manager of the Nagpur Branch of Lipton India Limited and the said branch had a godown at Panagarh, District Jabalpur, where Dalda Vanaspati in different packings and Tree Top Tetrapack were stored, By the Boards Resolution dated 15th December, 1988 he was numberinated under section 17 2 of the Act to be the person in charge of, and responsible to, the companypany for the companyduct of its business at Nagpur Branch. He further states that as per Rule 12B, a numberination in Form VIII was duly sent by the companypany to the Local Health Authority at Jabalpur and he had signed the said form in token of having accepted the numberination. This form, says the deponent, was duly received by the Local Health Authority, Panagarh, Jabalpur on 21st February, 1989. Similarly, Dr. Nirmal Sen has filed an affidavit stating that he was the Factory Manager of the Shamnagar Factory of Hindustan lever Limited at the material time and his companypany had a godown at Panagarh, District Jabalpur, where Dalda Vanaspati in different packings was stored. By the Boards Resolution dated 22nd March, 1983 he was numberinated under section 17 2 of the Act to be in charge of, and responsible to, the companypany for the companyduct of its business at the Shamnagar factory and in that capacity he was entitled to exercise all such powers and take all such steps as companysidered necessary or expedient to prevent the companymission of any offence under the Act. As required by Rule 12B, a numberination in Form VIII was sent by his companypany to the Local Health Authority, Bhatpara Municipality and he had signed the same in token of having accepted the numberination made in his favour on 13th April, 1983. He states that this form was duly received by the Local Health Authority on the same day. The aforesaid sworn statements made by H. Dayani and Dr. Nirmal Sen were produced on record to assure the Court that the numberinated person of the said two companypanies own their responsibilities under the Act pursuant to the numberination. On a careful perusal of the companyplaints lodged by the Food Inspector under the Act it is evident that intimation regarding the numberination in favour of H. Dayani and Dr. Nirmal Sen had been companymunicated to the Food Inspector before the companyplaints came to be lodged. This is evident from the averments made in the respective companyplaints. The numberination was, however, number acted upon by the companyplainant on the ground that it was incomplete. It was , therefore, said in the absence of a valid numberination from the companycerned companypany the Directors of the companypany were liable to be proceeded against and punished on proof of the charge levelled against them in the companyplaint. It will thus be seen that there is numberallegation in the companyplaint which would bring the case within the mischief of section 17 4 of the Act. There is numberallegation in the companyplaint that the offence was companymitted with the companysent companynivance negligence of the Directors, other than the numberinated person, who were impleaded as companyassued. We are, therefore, satisfied that the allegations in the companyplaint do number make out a case under sub-section 4 of section 17 of the Act. That being so, the inclusion of the companyaccused other than the companypany and the numberinated person as the persons liable to be proceeded against and punished cannot be justified. As held by this Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors., 1983 1 SCR 884 where the allegations set out in the companyplaint do number companystitute any offence, numberprocess can be issued against the companyaccused other than the companypany and the numberinated person and the High Court would be justified in exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure, 1973 to quash the order passed by the Magistrate taking companynizance of the offence against such companyaccused. That brings us to the question whether process companyld be issued against such companyaccused under sub-clause ii of clause a of sub-section 1 of section 17 of the Act. This would depend on the companyrts finding whether there was a valid numberination in favour of H. Dayani and Dr. Nirmal Sen. If there was a valid numberination in existence at the date of the companymission of the offence there can be numberdoubt that the case would be governed by section 17 1 a i of the Act and section 17 1 a ii would number be attracted. The numberination in favour of H. Dayani shows that it was received by the Local Health Authority on 21st February, 1989 and the same was signed by the Health Officer, Municipal Corporation, Jabalpur on the same day and a companyy thereof was returned to the companypany sometime in March 1989. Although in the letter of the Food Inspector dated 21st March, 1989 it was stated that the numberination form companyld number be accepted as it was number signed by the Local Health Authority, numbersuch averment was made in the companyplaints subsequently filed. In the companyplaints all that is said is that the numberinations are number valid as they are incomplete. Now during the pendency of these appeals the Health Officer has by his letter dated 3rd October, 1991 informed as under However, it is beyond my knowledge that who has cut Jabalpur and written Panagarh in place of Jabalpur when the numberination was handed over to the party the word Jabalpur was written on the document, Form No. VIII. A perusal of the numberination form of H. Dayani shows that some word has been scored out and Panagarh has been written by its side. However, if it is the companytention of the companyplainant that this change was subsequently made after a companyy of the numberination was handed over to the party, the original document in the possession of the Health Officer companyld have been produced to show that Panagarh was subsequently added for Jabalpur. Even the scored out word does number read like Jabalpur. No where in the companyplaint has it been companytended that the document has been tempered with subsequently. It is clear from this companymunication that the numberination was sent in Form VIII and the same duly received and acknowledged by the Health Officer, Municipal Corporation, Jabalpur. It is, however, companytended that since of godown in which the offending goods were stored was situate at Phutatal Panagarh of Jabalpur district,the Local Health Authority was number the Health Officer of the Jabalpur Municipality but the Civil Surgeon or the Chief Medical Officer of District Jabalpur. A numberification issued by the State Government dated 14th February, 1983 under clause viii of section 2 of the Act has been relied upon. It is, therefore, necessary to inquire into the question whether the numberination of H. Dayani was sent to, received and acknowledged by the companypetent Local Health Authority. The numberination form pertaining to Hindustan Lever Limited is dated 30the March, 1983 in favour of Dr. Nirmal Sen, Factory Manager of the Shamnagar unit of the companypany. Dr. Nirmal Sen has signed that form on 13th April, 1983. It appears to have been companynter-signed by the Food Inspector, Bhatpara Muncipality. It is, therefore, number clear if it has been signed by the companypetent Local Health Authority of the area in which the godown from which the offending goods were recovered was situated. This too is a matter which needs investigation. In the result, the appeals are allowed. The order of the learned Magistrate as well as the impugned order of the High Court are set aside. The Matters are remanded to the learned trial magistrate with a direction to inquire into the question whether the numberination forms numberinating H. Dayani and Dr. Nirmal Sen were received and acknowledged by the Local Health Authority companypetent to receive and acknowledge the same. This question will be companysidered as a preliminary question and the learned magistrate will record a finding thereon . If he companyes to the companyclusion that the numberination forms had been acknowledged by the companypetent Local Health Authority he shall drop the proceedings against the Directors of the companypany, other than the companypany and the numberinated persons. If on the other hand he companyes to the companyclusion that the prescribed forms had been acknowledged by a person other than the companypetent Local Health Authority he will proceed against all the persons who are shown as the accused in the companyplaint i.e. all the Directors including the numberinated person and the companypany.

Special leave granted limited to the question of nature of offence and the sentence. Jai Karan deceased was given a hammer blow on his head by the appellant. He along with his father and brother Sat Narain were tried for companymitting the said murder. The Trial Court relied upon the testimony of PW6, PW7 and PW8 and companyvicted the appellant for an offence under Section 302, I.P.C. and his brother and father for an offence under Section 302/34, I.P.C. The High Court on appeal set aside the companyviction and sentence of the father and brother of the appellant. The High Court also acquitted the appellant for the offence under Section 302, I.P.C. but found him guilty of an offence under Section 307. I.P.C. and sentenced him to undergo 7 years rigorous imprisonment and a fine of Rs. 250/- and in default one month R.I. In our opinion, the guilt of the appellant for causing an injury to Jai Karan stands amply established from the prosecution evidence on the record. The only question which requires companysideration is the nature of the offence companymitted by the appellant and the sentence. According to the evidence of P.W. 11, Dr. S. K. Khanna of the Maulana Azad Medical College who companyducted the post-mortem examination on the dead body of the deceased, who died on 25-1-1989 about 4 months after the occurrence the cause of death was hydrocephalus and septicimia. According to Dr. Gupta, P.W. 2, who had operated upon the deceased on 15-9-1988, during the operation he had found d fracture of bone of right temporopurietal region. Keeping in view this medical evidence and the established facts and circumstances of the case on the record, we are of the opinion, that the appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan, with a hammer on his head, a vital part of the body, was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall under Section 304, Part-II, I.P.C. We. accordingly hold him guilty of the said offence and companyvict him accordingly. The appellant after his companyviction for the offence under Section 307, I.P.C. by the High Court has been in custody for over one year. He has also remained in custody for sometime during the investigation of the case and the trial. After hearing learned Counsel for the companyplainant, we companysider that it would meet the ends of justice if the sentence of the appellant for the offence under Section 304, Part II, I.P.C. is reduced to the period already undergone by him but in addition he is directed to pay a fine of Rs. 20,000/- by way of companypensation under Section 357, Cr.P.C. to be paid to the widow of the deceased. The fine shall be deposited in the Trial Court within one week and shall on such deposit being made be paid to Smt. Sunhori, widow of deceased Jai Karan. On deposit of the line of Rs. 20.000/- in the Trial Court the appellant shall be released from custody forthwith.

Y. EQBAL, J. This appeal being C.A.No.2963 of 2013 arises out of the judgment and order dated 19.12.2011 passed by the 3rd Judge of the High Court of Andhra Pradesh to whom the matter was referred to by the Chief Justice for final decision against the companyflicting judgments passed by the two judges of the said High Court. The appeal was preferred by the plaintiff-respondent before the High Court which was heard by a Division Bench. The two judges of the Division Bench delivered two companyflicting judgments, one by allowing the appeal and setting aside the judgment of the trial companyrt and the other by dismissing the appeal and affirming the judgment of the trial companyrt. The 3rd Judge to whom the matter was referred, passed the impugned judgment upholding the judgment of one of the learned judges and allowing the appeal and decreeing the suit of the plaintiff-respondent. Another appeal being A.No.2964 of 2013 has been filed by the transferee of the suit property during the pendency of the appeal in the High Court. Since leave was granted, both the appeals have been heard and disposed of by this judgment. The plaintiffs hereinafter referred to as the respondents filed Title Suit No. 274 of 2007 for rectification of Revenue Records by incorporating their names as owners and possessors in respect of the suit land companyprised within Survey No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, by deleting the duplicate Sy.No.119 in respect of portion of the land of the said Village. The factual matrix of the case is that the companytesting plaintiffrespondents filed the above suit stating that their predecessor in title late Raja Shivraj Dharmavanth Bahadur hereinafter referred to as late Raja was the pattadar and absolute owner of the suit schedule property. The succession of the estate of late Raja was declared by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, late Raja Dharam Karan, late Raja Mehboob Karan and the heirs of Raja Manohar Raj vide Firman dated 4th Ramzan 1359 Hizri Ex.A1 . On the death of late Raja issueless in the year 1917, the succession of his estate was granted by the Royal Firman in favour of the sons of his two brothers Raja Lokchan Chand and Raja Murali Manohar Bahadur by another Royal Firman dated 5th Safar 13 1361 Hizri, the succession of estate of late Raja Dhiraj Karan was granted in the name of Pratap Karan who is one of the plaintiffs, under Ex.A2. The other plaintiffs are the successors of legal heirs of Raja Dharam Karan, Raja Mehboob Karan and Raja Manohar Raj. It has been companytended on behalf of the plaintiff-Respondents that they are, therefore, the absolute owners and possessors of the suit schedule land. The land in Nadergul Village was subject matter of survey and settlement of the year 1326 Fasli year 1917 and under the said survey and settlement the lands of late Raja were part of Khata No.1 wherein the suit schedule land was having Survey Number 579. Late Rajas name was also shown as Khatadar in Setwar and Vasul Baqui. Thus, the suit lands are private lands of late Raja. The revisional survey of Nadergul Village was given effect in the year 1352 Fasli year 1943 and the said survey has also companyfirmed the ownership of late Raja in Khata No.3 Khata No.1 as per survey of 1326 Fasli year 1917 which also made it clear that the suit lands are private lands of late Raja. The present survey number 613 was shown as the companyresponding old Survey Number 579 without any change in the extent of the land. The Respondents further case is that the certified companyy of Setwar and Vasul Baqui relating to Sy.No.613 for the year 1352 Fasli year 1943 clearly disclose that late Raja was the Khatadar of all the land in Sy.No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, Ex.A5. The village map of Nadergul Village and plan of S.No.613 clearly disclose the land as Kancha of Late Raja. The total survey numbers in the village are about 875. As per the village map and the companyresponding land records ie., Setwar, Vasool Baqui, Touch Plan and Pahanies, the land within the boundaries of S.No.119 companysists of an extent of Ac.1-20 guntas, which is in the name of Gaddam Mallaiah as Khatadar. However, as per the endorsement made in the Khasra Pahani 1954-55 there is a remark that the lands of late Raja are shown in separate series and in the Pahanies subsequent to the Khasra, S.No.613 is shown as Shivaraj Bahadur Ilaka without determining the extent. It is the plaintiffs case that as per the certified companyies of pahanies for the years 1949-50 and 2000-01 the land in S.No.613 of Nadergul Village stood in the name of late Raja. However, it is alleged that in the Khasra Pahani, S.No.613 is rounded up, which does number companyvey any meaning. After 1954-55, Revenue Records are showing the land in S.No.119 with an extent of Ac.355-12 guntas and it is number known as to how the original extent of land in S.No.119 shown as Ac.1-20 has swollen to Ac.355-12 guntas with endorsement of Sarkari from the original endorsement of Gaddam Mallaiah, which clearly discloses duplication of the land in S.No.119 and to say the least, the Revenue Record has been tampered with by the custodians of the records with an oblique motive of depriving the legitimate owners of the land in S.No.613 of Nadergul Village. Even today, pahanies, village maps, and touch plan clearly disclose the existence of No. 613 with a large chunk of land but purposefully the revenue authorities are number disclosing the details of the ownership of the suit land. The basic record ie., Setwar and Vasul Baqui Register of 1352 Fasli year 1943 . The endorsement in the Khasra Pahani of 1954-55 that the lands of late Raja in S.No.613 are being shown separately, is devoid of a sensible meaning. As per the endorsement, it is incumbent on the defendants to companytinue to maintain the revenue records in the name of late Raja and the plaintiffs being the predecessors in interest as pattadar khatadar of the said land in S.No.613 of Nadergul Village. The plaintiffs case is that in certified companyies of the pahanies for the years 1955-01, there is duplication of S.No.119, and while Gaddam Mallaiah is shown as Khatadar of S.No.119 in respect of land admeasuring Ac.1-20 guntas, the duplicated S.No. 119 admeasuring more than 355 acres and sometimes Ac.373-22 guntas is being shown as Kancha Sarkari numberwithstanding the fact that in the Khasra Pahani for the year 1954-55 it is clearly mentioned late Raja as khatadar pattadar of the entire land in No.119. Since the Khasra Pahani has companyfirmed the ownership of late Raja, the same cannot be changed as Sarkari Kancha in the Pahani without there being any proceedings. When the land in S.No.613 is companytinuing to exist as per the village maps and touch plan, the pahanies and other records are being maintained with mis-description, by which title of the real owner will number vanish. The plaintiffs who are successors in interest of the land made attempts for companyrection of the entries in the Revenue Records under P. Record of Right in Land and Pattadar Pass Books Act, 1971 for short the Act and the authorities rejected the claim for companyrection of entries on the ground that unless the plaintiffs get their title declared in a companyrt of law, the mutation in the name of the plaintiffs cannot be effected under Section 8 2 of the Act. The defendants have numbertitle over the suit schedule land. The 5th defendant-appellant Mandal Revenue Officer, Saroornagar, while denying the suit claim, companytended that the suit is number maintainable. According to him, the plaintiffs are neither owners number possessors of the suit schedule property and they are in numberway companycerned with the suit land as per the Revenue Records. It has been pleaded on behalf of the defendants that the plaintiffs did number obtain succession certificate from the companypetent civil companyrt and have number acquired the suit property of late Raja through succession as pleaded. In the amended written statement, it has been pleaded by the defendant that Nadergul was a Jagir Village and as all the jagirs were abolished under the Hyderabad Abolition of Jagirs Regulation, all Jagir properties vested in the State and the Jagirdars became entitled only to receive companypensation amount and the estate of late Raja also got merged with the State and all Jagirs in Hyderabad State were taken over by the Government and transferred to Deewani after publication of Notification No.8 dated 07-04-1949. Further Nazim Atiyat had passed an order dated 20- 01-1958 in File No.1/56 Warangal/1950 and the legal heirs of Late Raja had participated in the said proceedings and staked claim for companymutation amount in respect of the Jagir land. Aggrieved by the said proceedings, some of the plaintiffs and certain other successors of late Raja had filed appeal before the Board of Revenue and the same was dismissed vide order dated 24.07.92 and a review petition was also dismissed by the Board of Revenue and, thereafter, the same persons had filed W.P.No.4999 of 1974 in the High Court and as per the judgment in the said writ petition, dated 22.04.76, the matter was remanded back to the Board of Revenue and after remand, the appeals filed by the above said persons were dismissed for numberprosecution. It has been further pleaded in the aforesaid amended written statement that after abolition of Jagirs, the Jagir lands of late Raja numbering about 8 survey numbers were rounded off and separate numbers from 1 to 194 were given as evidenced in the Khasra Pahani for the year 195455 and as such the companytention of the plaintiffs that original Sy.No.119 admeasuring Ac.1-20 guntas in the name of Gaddam Mallaiah has increased to 355 acres is number only false but the same is companytrary to the record. Sy.No.119 admeasuring Ac.1-20 guntas is separate and distinct survey number from the Sy.No.119 which finds place in the Khasra Pahani in separate series of 1 to 194. This Sy.No.119 is admeasuring Ac.355.00 and recorded as Sarkari Poramboke. Having number filed any declarations under the Land Ceiling Laws, the plaintiffs are number entitled to stake the suit claim. It is further pleaded by the defendant that the plaintiffs and their ancestors have participated in the enquiry before Nazim Atiyat for the award of companymutation amount and hence they are estopped from filing the present suit, that too after lapse of about 5 decades. The trial companyrt, on companysideration of evidence came to the companyclusion that the plaintiffs have number made out a case for companyrection of Revenue Record and dismissed the suit. Aggrieved by the same, the plaintiffs filed the appeal before the High Court, which being allowed by one Judge and dismissed by another Judge, was heard by a third Judge, who after companysidering the law laid down by the High Court as well as this Court, held that the plaintiffs successfully demonstrated that late Raja was pattadar khatadar of the land companyered by S.No.613 admeasuring 373-22 guntas in the Khasra Pahani, the presumption backward forward can be applied in his favour and in favour of his heirs that he or they companytinued to be the pattadar s . Allowing the appeal of the plaintiffs and setting aside the judgment and decree of the trial companyrt, the learned third Judge of the High Court observed, thus Unless the State proves that the said land has been companyfiscated or vest in the State under Jagir Abolition Act on abolition of jagirs or for number filing of the declaration, the property vest in the Government under the provisions of Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings , 1973, mere mentioning Sarkari in subsequent pahanies or giving duplication S.No.119, title of the original owner will number vanish and it companytinues to be vest with them. In Khasra Pahani for the year 1954-55 companyered under Ex.12 a , when it is stated that S.No.613 has been recorded as Self Cultivation Dastagardan and numbers of the Sivaraj Bahadur has been written separately and the same has also been shown as S.No.119 under Ex.12 b . Therefore, late Raja or his heirs companytinue s to be pattadar s for the companyresponding survey number and on changing also, but the same cannot become the government property as companytended by the learned Advocate General. Further, the identity of land in S.No.613, suit land, as found in Ex.A-10-touch plan and Ex.A- 9-village map cannot undergo any change whatsoever and ownership may change from one person to the other but the location of land and its identity with reference to survey number cannot be changed. Therefore, there is numberfurther necessity for the plaintiffs to seek declaration of their title except to seek companyrection of record of rights recording the names of the heirs of late Raja i.e. the plaintiffs. Thus, the plaintiffs are entitled for a declaration for companyrection of the entries in the record of rights recording the names of the legal heirs of late Raja and also injunction restraining the defendants from interfering with the plaintiffs peaceful possession. Aggrieved by the decision of the High Court, the defendants appellants have preferred this appeal. We have heard learned senior companynsel appearing for the parties and also perused the written submissions filed by them. While raising an additional ground for the first time here in this appeal, Mr. Mukul Rohatgi, learned Attorney General appearing for the appellants, submitted that the learned judges of the Division Bench who heard the appeal differed vertically in as much as Section 98 2 of CPC provides for companyfirmation of decree of the trial companyrt. Reference to the 3rd Judge was made in the present case number after formulating any points of disagreement on the question of law, hence the reference by the Chief Justice to the learned 3rd Judge is ultra vires. In this companynection learned companynsel referred the decision of this Court in Tej Kumar vs. Kirpal Singh, 1995 5 SCC 119. It was further submitted that even if the provisions of Letters Patent Act are invoked the same cannot override the provisions of Section 98 CPC. In this companynection learned companynsel referred decisions in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, 2002 5 SCC 548 and Centre For Environmental Law v. Union of India, 2010 12 SCC 303. It was further companytended that even if Clause 36 of the Letters Patent of the Madras High Court which has been adopted for the A.P. High Court is held applicable, numberetheless, in the present case, since numberpoints of agreement have at all been formulated for companysideration by the two learned judges who had heard the appeal, reference to the 3rd judge was, therefore, clearly incompetent. Learned Attorney General appearing for the appellant raised another point with regard to abatement of the appeal pending before the High Court on the ground inter alia that one of the respondents i.e., Respondent No. 12 died on 21.12.2010 during the pendency of the appeal before the High Court. Since the prayer made in the suit is the one for declaration of title of the plaintiffs as a single entity the appeal pending in the High Court itself stands abated. Further, the appeal in the High Court got abated as a whole in as much as the decree that was challenged before the High Court was a joint and indivisible decree. In this companynection the appellants relied upon the decision in the case of 2006 6 SCC 569 and 2010 11 SCC 476. On merit of the appeal, the appellants first assailed the finding and the companyclusion arrived at by the High Court that the area by name Bhagat Nadegul of Hyderabad District is different from Nadergul Village. According to the appellant there is absolutely numbermaterial to show that there is any other village by the name Nadergul in any part of the State. In this companynection learned companynsel referred the evidence of PW-1. Further, the companytention of the appellants is that the predecessors of the plaintiffs had sought for companymutation in respect of land in Nadergul Village will show that the said lands were treated as Jagir land. The findings of the Atiyat Court qua Nadergul with the relevant Sandas have number been produced for verification. There is numberfinding anywhere in Exh. B.1 that Nadergul is number a Jagir Village. Merely because companymutation amount was number awarded in respect of Nadergul Village, it shall number be treated as a private land. It was submitted that numbere of the plaintiffs entered the witness box and testified on any of the averments made in the plaint and the only person examined was PW-1 as General Power of Attorney holder of the plaintiffs who companyld number have any personal knowledge on the issues relating to the grant made by Nizam and the proceeding relating thereto. On the relevancy of documentary evidence learned companynsel companytended that Sethwar Exh.A-5 , Register of Vasool Baqui and Khasra Pahani in respect of Survey No. 613 are number sufficient to declare title of Raja Shiv Bahadur and, thereafter, the plaintiffs as successors to the Estate in respect of the suit property. Learned companynsel companytended that it is inconceivable that fairly large extent of 373.22 acres of private land would otherwise number be subjected to any land revenue. According to the appellants since the land of Survey No.613 was a Crowns land it was number assessed to land revenue. With regard to Pahani Patrika from 1949-50 till 2000-01 shows that the land in survey No.613 as Kancha-Sarkari or Kancha- Shiv Raj Bahadur. It was companytended that there is numberdocument whatsoever to support the case of the plaintiffs with regard to the title to the suit property. These documents cannot be treated as document of title of the plaintiffs. Lastly, the submissions of the appellants is assuming that without admitting that there has been duplication of survey numbers is accepted that by itself cannot enable the plaintiffs to get a declaration of title unless there is prima facie evidence of title being acquired by their predecessors in interest. In any view of the matter the suit itself is barred by limitation. Mr. Dushyant A. Dave, learned senior companynsel appearing for the appellant Corporation in Civil Appeal No.2964 of 2013, also made his submission on behalf of the Corporation and companytended that numbere of the plaintiffs have entered in the witness box and the only witness who was examined was the plaintiffs GPA holder whose evidence cannot be taken into companysideration. Mr. Dave companytended that the plaintiffs have kept quiet for more than 50 years and hence the suit claim is a chance litigation. It was further companytended that the judgment of the 3rd learned Judge is opposed to Section 98 2 of the CPC and suggested that the matter will have to be remanded to the High Court. Per companytra, Dr. A.M. Singhvi, learned senior companynsel appearing for the plaintiffs-respondents, at the very outset submitted that although A.P. Industrial Infrastructure Corporation Limited to whom the suit property was illegally transferred by the appellant-State during the pendency of appeal in High Court is neither a necessary party number have got any right to prefer appeal against the impugned judgment passed by the High Court. On the issue of application of Section 98 2 of CPC, Dr. Singhvi, learned senior companynsel, submitted that A.P. High Court is governed by the Letters Patent of Madras High Court and, therefore, Section 98 2 of the Code has numberapplication by reason of Section 98 3 of the Code. It is submitted that the decision of this Court relied upon by both the parties on this point itself clarify that Section 98 2 of the Code has numberapplication to the High Court which is governed by Letters Patent. In this companynection learned companynsel also referred the decision of Patna High Court in AIR 1984 Patna 296 and AIR 1979 Patna 115. Learned companynsel therefore submitted that there is numberillegality in the reference made by the Chief Justice to the 3rd Judge of the High Court for deciding the appeal. Rebutting the submission made by the appellants on the question of abatement learned companynsel submitted that the present suit is for declaration of title and permanent injunction. On the death if Defendant No.12 the right to sue survives with the remaining plaintiffs and, therefore, that the appeal then pending in the High Court will number abate. Learned companynsel referred Order 22 Rule 2 CPC and submitted that the objection with regard to abatement of appeal in the High Court was neither raised before the High Court number raised in the grounds of memo of appeal filed before this Court. Replying the submissions made by Mr. Dave, appearing for the appellant Corporation in another appeal, learned senior companynsel appearing for the respondents submitted that a GPA holder can give evidence on matters which are within his knowledge and he is companypetent enough to give evidence on behalf of the party. In this companynection he relied upon AIR 2005 SC 439. Further submissions on behalf of the respective respondents have been made by Mr. Vikas Singh and Mr. Harin P. Raval, learned senior companynsel, that since there is numberdispute on the genuineness and authenticity of documentary evidence on record, the suit claim has to be decided on documentary evidence i.e. Exhs. A1-A-19. According to the learned senior companynsel Exh. A-5 Sethwar , Exh. A-6 Vasool Baqui Record , Exh. A-12 Khasra Pahani shows that the name of Shiv Raj Bahadur was recorded as the Pattadar of the suit land. From these documents it can be inferred without any doubt that ruler of the kingdom has accepted the ownership of Shiv Raj Bahadur and there is numberneed to have either Patta or title documents. Referring to the admission in written statement filed by the defendant-appellants it was submitted that there are various other Pattadar in Nadergul Village. Further there is numberpleading in the written statement that Shiv Raj Bahadur was a Jagirdar of the suit land. It was further companytended that in the order passed in Nizam Atiyat proceeding it was declared that some villages are number Jagir lands. The declaration by Nizam Atiyat is for the whole village and number for some survey numbers in the Village. Admittedly, there are various other Pattadars in Nadergul Village and, therefore, in the Nizam Atiyat proceeding Nadergul was shown in List-3 as patta lands. So far as the issue with regard to the suit, being barred by limitation it was submitted by the respondents that the suit for declaration of title and injunction falls under Article 65 of the Limitation Act 1963 where limitation is 12 years from the date when possession of the defendant become adverse to that of the plaintiff. There is numberpleading in the written statement that the State has obtained title by adverse possession. In the present case the defendant-State has never set up and or cannot set up title by adverse possession, hence the suit cannot be held to be barred by limitation. There is numberevidence adduced from the side of the defendants that the State ever came in possession. On the companytrary the possession of the plaintiff-respondents was sufficiently proved by the trial companyrt while deciding the injunction petition as also in the finding recorded by the High Court dismissing the appeal against the order of injunction. We have heard learned senior companynsel appearing for the parties at length and perused the record. Before we decide the merit of the appeal, we shall take up the interlocutory applications filed by the appellant during the pendency of this appeal. By I.A. No.9/2015 filed on 20th July, 2015, the appellant stated that during the pendency of the appeal in the High Court, respondent No.12 died but the legal representatives have number been substituted by the respondents, who were appellants before the High Court which resulted in abatement of the said appeal. Hence, prayer has been made that numbersubstitution of legal representatives of respondent No.12 in the appeal pending in the High Court, the appeal stood abated by operation of law and companysequently judgment and decree passed by the High Court in the appeal suit No.274 of 2007 is rendered nullity in law. By another I.A. Nos. 10 and 11 of 2015, the appellant has stated that during pendency of this appeal respondent No.6 died on 8.4.2015 and respondent No.14 died on 6.1.2014 which were number within the knowledge of the appellant, hence prayer has been made to set aside the abatement and substitute their legal representatives. Learned Attorney General appearing for the appellant pressed these two applications relying upon the decision of this Court in the case of Matindu Prakash Deceased by L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029 Amba Bai and others vs. Gopal and others, 2001 5 SCC 570 Budh Ram and others vs. Bansi and others, 2010 Vol. 11 SCC 476. In the case of Matindu Prakash Deceased by L.R.s vs. Bachan Singh and others, AIR 1977 SC 2029, when the appeal was pending in this Court, it revealed that two of the appellants died and numberstep was taken to bring the heirs and legal representatives of those appellants on the record. The question, therefore, that fell for companysideration was whether appeal abated as a whole so as to entail a dismissal of the entire suit. This Court, therefore, remitted the matter back to the High Court to record a finding and to decide whether by virtue of the death, the appeal abated as a whole or the appeal had abated qua the deceased appellants before the Civil Appeal is disposed of. In the case of Amba Bai and others vs. Gopal and others, 2001 5 SCC 570, this Court was companysidering the case where a suit for specific performance by one plaintiff against the defendant was finally allowed in appeal and the suit was decreed. During the pendency of Second Appeal by the defendant in the High Court, the plaintiff died and his legal representatives were brought on record. Subsequently, the defendant also died, but this fact was number brought to the numberice of the Court and the appeal was dismissed. In those facts this Court companysidering the provision of Order 22 Rule 3 of the Code held that in a case where the plaintiff or the defendant dies and the right to sue does number survive, and companysequently the Second Appeal had abated and the decree attained finality inasmuch as there cannot be merger of the judgment or decree passed in Second Appeal with that passed in the First Appeal. The said decision therefore, in our companysidered opinion will number apply in the present case. In the instant case, there are more plaintiffs than one and one of them died and the right to sue survives upon the surviving plaintiffs. In the said circumstances Order 22 Rule 2 of the Code will companye into operation and the appeal will number abate. In the case of Budh Ram and others vs. Bansi and others, 2010 Vol. 11 SCC 476, this Court after companysidering series of judgments rendered by this Court in the State of Punjab vs. Nathu Ram, AIR 1962 SC 89, Sri Chand vs. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427, Ramagya Prasad Gupta vs. Murli Prasad, 1973 2 SCC 9 and Sardar Amarjit Singh Kalra vs. Pramod Gupta, 2003 3 SCC 72 held as under- Therefore, the law on the issue stands crystalLised to the effect that as to whether number-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, number interdependent upon one or the other, number the parties have companyflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the companyrt may pass a decree companytradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a companytinuity of suit and the law does number permit two companytradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment decree passed in the proceedings vis--vis remaining parties would suffer the vice of being a companytradictory or inconsistent decree is the relevant test. In the case of Harihar Singh vs. Balmiki Prasad Singh, AIR 1975 SC 733 1976 1 SCC 212, this Court observed The important point to numbere about this litigation is that each of the reversioners is entitled to his own specific share. He companyld have sued for his own share and got a decree for his share. That is why five Title Suits Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed in respect of the same estate. In the present case also the suit in the first instance was filed by the first and second plaintiffs for their one-twelfth share. Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs. Though the decree of the trial companyrt was one, three Appeals Nos. 326, 332 and 333 of 1948 were filed by three sets of parties. Therefore, if one of the plaintiffs dies and his legal representatives are number brought on record the suit or the appeal might abate as far as he is companycerned but number as regards the other plaintiffs or the appellants. Furthermore, the principle that applies to this case is whether the estate of the deceased appellant or respondent is represented. This is number a case where numberlegal representative of Manmohini was on record. Similarly, in the case of State of Punjab vs. Nathu Ram, AIR 1962 SC 89 1962 2 SCR 636, which arose out of acquisition of land under the Defence of India Act, 1939, when the landowners refused to accept companypensation offered by the Collector, the dispute was referred by the State Government to an arbitrator, who passed an award for payment of higher companypensation. The State appealed against the award. During pendency of the appeal, one of the landowner namely Labhu Ram died. The High Court, holding that the appeal abated against Labhu Ram and its effect was that the appeal against another respondent also abated, the appeal was dismissed. When the matter came up to this Court, at the instance of the State Government, this Court deciding the issue held as under It is number disputed that in view of Order 22 Rule 4 Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when numberapplication for bringing on record his legal representatives had been made within the time limited by law. The Code does number provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the company respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have number been always agreed with respect to the result of the particular circumstances of a case and there has been, companysequently, divergence of opinion in the application of the principle. It will serve numberuseful purpose to companysider the cases. Suffice it to say that when Order 22 Rule 4 does number provide for the abatement of the appeals against the companyrespondents of the deceased respondent there can be numberquestion of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is number a companyrect statement. Of companyrse, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal. Five Judges Constitution Bench of this Court in the case of Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588, was companysidering the question as to the effect of death of some of the appellants during the pendency of appeal. In that case, during the pendency of appeal, some of the appellants died on different dates and there was numberattempt to take any step within time for bringing to the Court the legal representatives of the deceased appellants. The respondents, therefore, filed application praying for dismissal of those appeals as having been abated. It appears that during the pendency of appeal in the High Court, some of the appellants were said to have died, the plea of partial abatement of the appeals qua only those deceased appellants were number accepted by the High Court on the view that decree was joint based on companymon right and interest, the appeal was rejected in toto. On these facts, the Constitution Bench after discussing all earlier decisions held as under- Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and number to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and number meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions companytained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their companytinuation and culmination in an effective adjudication and number to retard the further progress of the proceedings and thereby number-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and number lost forever due to the death of one or the other in the proceedings. The provisions companytained in Order 22 are number to be companystrued as a rigid matter of principle but must ever be viewed as a flexible tool of companyvenience in the administration of justice. xxxxx But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and numberhard-and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally companystrued to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference proceedings and the appeal therefrom, the companyrts should adopt a liberal approach in the matter of companydonation of the delay as well as the companysiderations which should weigh in adjudging the nature of the decree i.e. whether it is joint and inseverable or joint and severable or separable. The fact that the Reference Court has chosen to pass a decree jointly in the matters before us is and should be numberground by itself to companystrue the decree to be joint and inseparable. At times, as in the cases on hand, the companyrt for its companyvenience might have companybined the claims for joint companysideration on account of similar nature of the issues in all such cases and for that reason the parties should number be penalized, for numberfault of theirs. Actus curiae neminem gravabit an act of companyrt shall prejudice numberone is the maxim of law, which companyes into play in such situations. A number of people, more for the sake of companyvenience, may be companynselled to join together to ventilate, all their separate but similar nature of claims and this also should number result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and companysequent omission to bring on record the legal heirs of the deceased party. At times, one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent their share or proportion of rights is companycerned and may drop out of companytest, bringing even the proceedings to a companyclusion so far as they are companycerned. If all such moves are allowed to boomerang adversely on the rights of the remaining parties even to companytest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself. xxxxx In the light of the above discussion, we hold Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of companyvenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the companyrt thereon is to be viewed in substance as the companybination of several decrees in favour of one or the other parties and number as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights companytesting the claims against them. Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one number before us, under the Land Acquisition Act or in similar nature of proceedings and or claims in assertion of individual rights of parties are clubbed, companysolidated and dealt with together by the companyrts companycerned and a single judgment or decree has been passed, it should be treated as a mere companybination of several decrees in favour of or against one or more of the parties and number as joint and inseparable decrees. The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would number be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as number being properly and duly companystituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment decree passed in the proceedings vis--vis the remaining parties would suffer the vice of companytradictory or inconsistent decrees. For that reason, a decree can be said to be companytradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. xxxxx For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits. The High Court ought to have companydoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety. The judgment and decrees passed by the High Court in all these appeals are set aside and appeals are remitted to the High Court to be restored to their original files for being disposed of afresh on merits of the claims of both parties and in accordance with law. These appeals are allowed on the above terms, with numberorder as to companyts. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the Pattadar and Khatadar, the plaintiffs succeeded the estate as sharers being the sons of Khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. We are, therefore, of the view that by reason of number-substitution of the legal representative s of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall number stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do number find any reason to agree with the submission made by the learned companynsel appearing for the appellants. By filing another I.A. No.7 of 2015 on 17.4.2015, the appellants sought permission to urge additional grounds as companytemplated under Section 98 of the Code of Civil Procedure. Admittedly, this ground was number urged before the learned third Judge of the High Court at the time of hearing of the appeal. Be that as it may, we allow the appellant to urge additional ground in this appeal. By urging this additional ground learned senior companynsel for the appellants submitted that the procedure adopted by the High Court in the disposal of the appeal is number in companysonance with the provisions companytained in Section 98 of the CPC. Learned companynsel submitted that the appeal in the High Court was originally heard by two judges who differed in their opinion and wrote two separate judgments. While giving judgments, both the judges have number recorded their opinion on the point of difference on the point of law. Without formulating the point of difference the matter was referred to a third judge by the Chief Justice and the third judge finally passed the impugned judgment companycurring with one of the judge. According to the learned companynsel, therefore, the impugned judgment is vitiated in law and cannot be sustained. In this companynection, learned companynsel relied upon the decision of this Court in Tej Kaur and Another vs. Kirpal Singh and Another, 1995 5 SCC119 P.V. Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda and Another, 2002 5 SCC 548 Pankajakshi Dead Through Lrs. And Others vs. Chandrika and Others, 2010 13 SCC 303. Section 98 of the Code of Civil Procedure reads as under - Decision where appeal heard by two or more Judges. Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority if any of such Judges. Where there is numbersuch majority which companycurs in a judgment varying or reversing the decree appealed from, such decree shall be companyfirmed Provided that where the Bench hearing the appeal is companyposed of two or other even number of Judges belonging to a Court companysisting of more Judges than those companystituting the Bench and the Judges companyposing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority if any of the Judges who have heard the appeal including those who first heard it. Nothing in this Section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court. From the legislative history of enactment of Code of Civil Procedure, it would appear that Section 98 of the CPC was for the first time enacted in 1861 by the Act amending the Civil Procedure Code of 1859. Subsequently in 1862, Letters Patents were issued establishing the High Court of Madras and these Letters Patents were modified in 1865. Clause 36 of the Letters Patent declared that in exercise of appellate jurisdiction the certain procedure is to be adopted. In 1877 and 1882 amendments were brought in the Code of Civil Procedure but numberprovision was made to the effect that the Code shall number affect the Letters Patent. Thereafter many High Courts and the Privy Council interpreted the provisions of Section 98 and Clause 36 of the Letters Patent and it was companysistently held by the Full Bench of the Madras High Court as under- The result is that it is number beyond all doubt that Clause 36 of the Letters Patent applies to all appeals. It may be asked, when does Section 98 of the Civil Procedure Code have any operation and why should the legislature number say that the section does number apply to Chartered High Courts instead of adding an explanation to the section? The reply is that Section 98 applies number only to Courts other than the Chartered High Courts, that is, the Chief Courts and Courts of judicial Commissioners and the reason why the legislature adopted this particular form of elucidating the matter is that it was intended to retain Section 98 as applicable even to Chartered High Courts but to make the application subject to Clause 36 of the Letters Patent. If, at any time, Clause 36 of the Letters Patent ceases to exist, Section 98 will companye into operation. It is to attain this particular result that the explanation was added to Section 98 instead of saying that Section 98 does number apply to Chartered High Courts at all. I would answer the question referred to us thus Clause 36 of Amended Letters Patent of the High Court of Madras, which has been made applicable to the High Court of Andhra Pradesh, reads as under- Single Judge and Division Courts-- And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Madras, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or companystituted for such purpose in pursuance of Section 108 of the Government of India Act, 1915 and in such Division Court is companyposed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. Learned senior companynsel appearing for the respondents in response to the argument on Section 98 of the CPC, submitted that in view of Subsection 3 of Section 98, the provision of Section 98 of the Code will number apply. Ld. senior companynsel submitted that this Court cannot go into that question for the reason that the appellants neither raised this point before the third judge who passed the impugned judgment number the appellants have been granted permission to raise the question of application of Section 98 of the CPC. According to the learned companynsel having regard to the procedure provided under the Letters Patent of the High Court, the objection cannot be entertained. Firstly, we shall discuss the decisions cited by the learned companynsel on both sides. In the case of Tej Kaur and another supra , a Division Bench of this Court has companysidered the provisions of Section 98 of CPC. The Attorney General put reliance on paragraphs 3, 6 and 9 of judgment whereas Dr. Singhvi relied on paragraphs 8 and 9 of the judgment. Hence we extract paras 3, 6, 8 and 9 of judgment which are as under- The question, therefore, is whether the finding of the companyrt below that the will has number been proved is a finding of fact? If so, whether in the absence of majority opinion of the Division Bench, the companyfirmation of the decree of civil companyrt is valid in law? Thirdly, whether this Court can examine the case on merits to find whether the will is validly proved, in which event would sub-section 2 of Section 98 be number rendered otiose or ineffective? In other words, the difference of opinion between Judges, who companystitute the Bench hearing the appeal, on a point of law alone would be referred to a third or other Judges according to the rules of that High Court. By implication, on question of fact, when there is numbermajority opinion varying or reversing the decree appealed from, such decree should be companyfirmed. The ratio in Jayanti Devi v. Chand Mal Agrawa which has been referred by Shri Bagga, is inapplicable to the point in issue. Therein, because of what has been provided in sub-section 3 of Section 98 CPC, the letter patent power was taken aid of and it was held that the letter patent companyrt was number companyfined to the hearing of the appeal by the third Judge on the question of law only, on which the Judges hearing the appeal had differed. Such a difference of opinion companyld be on a question of fact as well. It companyld, thus, be seen that the reference there was under the letters patent which power has been expressly preserved by sub-section 3 of Section 98. But in the case at hand, the letters patent power was number available and therefore, by operation of sub-section 2 of Section 98, the decree of the companyrt below stands affirmed. The question then is whether this Court companyld nullify the scheme of Section 98 2 by examining the dispute on merits and by implication render sub-section 2 surplusage or otiose. In our companysidered view the companytention of the appellant cannot be accepted. It is true that in a case where there is difference of opinion among the Judges of the High Court, the power of this Court under Article 136 is wide enough to test the companyrectness of the companyclusion reached by the differing learned Judges as pointed out by this Court in Dr Prem Chand Tandon case. This proposition is unexceptionable but this Court had numberoccasion in that case to companysider the scope of subsection 2 of Section 98. The language employed in sub-section 2 is imperative and in mandatory terms. The object appears to be that on a question of fact when there is a difference of opinion, the view expressed by the companyrt below, in the absence of a majority opinion, needs to be given primacy and companyfirmed. When such is the animation, this Court cannot enlarge the scope of the companytroversy by itself examining the companyrectness of the finding of fact and decide which view of the two is companyrect. This would be in direct negation of the legislative mandate expressed in sub-section 2 of Section 98 of the CPC. From perusal of the above quoted paragraphs in the decision given in Tej Kaur supra it is manifest that this Court companysidered the procedure to be adopted as companytemplated under Section 98 of the Code and held that for those companyrts, the procedure of which is governed by Letters Patent, the power has been expressly reserved by Sub section 3 of Section 98. Hence, in the instant case the procedure provided in the Letters Patent of the High Court shall prevail. Reference has also been made to the case of P.V. Hemalatha supra where the judges in appeal companystituting a Division Bench pronounced two separate judgments wherein they differed in almost all the issues arising in the case. A point was raised that since the judges companyprising the Division bench delivered two separate judgments and have number identified the difference on any point of law, the decree of the companyrt below is liable to be companyfirmed in terms of Section 98 2 of the Code. This Court held that in such cases the procedure is to be adopted as companytemplated under Section 98 of the Code having regard to the fact that the provisions of Clause 36 of Letters Patent of the Madras High Court is number applicable. This Court held- Admittedly, the High Court of Kerala is a newly companystituted companyrt for the newly formed State of Kerala in 1956 and governed by the Kerala Act. The said High Court does number have any Letters Patent it being number a Chartered High Court companytinuing from the British period. In such a situation, it is submitted that the learned Judges were perfectly justified in giving effect to the provision of sub-section 2 of Section 98 of the Code and companying to the companyclusion that because of the two different judgments passed by them the decree of the subordinate companyrt was liable to be companyfirmed. On behalf of the respondent very strong reliance has been placed on a two-Judge Bench decision of this Court in the case of Tej Kaur Kirpal Singh in which in a similar situation the Supreme Court held that the provision of sub-section 2 of Section 98 would be attracted and in view of the two companyflicting judgments passed by two Judges who differed on issues of fact, the judgment of the subordinate companyrt is liable to be companyfirmed. We have reached the companyclusion as stated above that clause 36 of the Letters Patent of the Madras High Court on practice and procedure and powers of Judges is number applicable to any part of the new territory of the State of Kerala and to the new High Court of that State. Law with regard to the practice, procedure and powers of Judges as companytained in the Kerala Act, would be applicable uniformly to all the territories number forming part of the new State of Kerala and the High Court established for it. We have also held even on assumption that Section 23 of the Travancore- Cochin Act is saved under Section 9 of the Kerala Act that since the said Kerala Act is a general law, it has to give place to Section 98 of the Code of Civil Procedure which is a special law applicable to civil appeals arising from civil suits. In the case of Pankajakshi Dead Through Lrs. and Others supra , this Court followed the earlier two decisions in Tej Kaur and P.V. Hemalatha since the practice and procedure of Letters Patent was number applicable. A companyparative study of Section 98 CPC vis--vis clause 36 of the Amended Letters Patent of the Andhra Pradesh High Court will reveal that while Section 98 provides that in a case where the Judges companyprising the Bench differ in opinion on point of law, they may state the point of law upon which they differ and the appeal shall be heard upon that point only by one or more of the other Judges, such point shall be decided according to the opinion of the majority of the Judges. Whereas Clause 36 of the amended Letters Patent provides that in a case the Division Court exercising its original or appellate jurisdiction hears the appeal and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of majority of Judges. If the Judges are equally divided they shall state the point upon which they differ and the case shall then be heard on that point by one or more of the Judges and the point shall be decided according to the opinion of majority of Judges who have heard the case including those who first heard it. Section 98 3 of the Code was added in 1928 by the repealing amending Act 18 of 1928 . The amended Sub-section 3 of Section 98 was companysidered by a Full Bench of the Madras High Court in Dhanaraju vs. Motilal Daga and Another, AIR 1929 Mad. 641 F.B. . The Division Bench of the High Court of Patna in the case of Bokaro and Ramgur Ltd. vs. State of Bihar, AIR 1966 Patna 154, companysidered the similar question and observed- The view which I have expressed above is supported by a Full Bench decision of the Madras High Court reported in Dhanaraju v. Bala-kissendas Motilal AIR 1929 Mad 641 FB ILR Mad 563, and by two decisions of this Court one reported in Debi Prasad Pandey v. Gaudham Rai AIR 1933 Pat 67 at p. 69 ILR Pat 772 and the other in Rajnarain v. Saligram ILR Pat 332. Clause 28 governs number merely Clause 10, but also Clause 11 of the Letters Patent which ordains that this Court is a Court of Appeal from the Civil Courts of the State of Bihar. Clause 28 of the Letters Patent being wider in scope than section 98 of the Code of Civil Procedure, because it companyers points of fact as well as points of law, a reference to a third Judge in the present appeal is number incompetent merely because there has been numberdifference of opinion between Sinha and S. N. P. Singh, JJ. on a point of law. The cases relied upon by the learned Advocate General were decided before the insertion of Sub-section 3 in Section 98 of the Code and they have become obsolete. I am, therefore, of the opinion that the point raised by the learned Advocate General is without merit and must be overruled, and I must deal with this appeal as one referred to me under Clause 28 of the Letters Patent. I must, however, indicate that I ought to deal with only such point or points in this appeal upon which there has been a difference of opinion between Sinha and S. N. P. Singh, JJ. This is clear number only from the terms of Clause 28, but also from the decision of this Court in Zainuddin Hussain v. Sohan Lal. In that case, Rai, J. indicated that it is number open to a third Judge to adjudicate upon a point on which there is numberdifference of opinion between the two Judges who heard the appeal in the first instance. Similar view was taken by a special Bench of the Allahabad High Court in Akbari Begam v. Rahmat Husain AIR 1933 All 861 SB ILR All 39. A similar question with regard to the interpretation of Section 98 CPC and the Patna High Court Rules came for companysideration before the Patna High Court in the case of Smt. Jayanti Devi vs. Srichand Mal Agrawal and Ors. AIR 1984 Patna 296. Noticing the provision of High Court Rules, the Court came to the companyclusion that the Letters Patent of the Court has number companyfined the hearing of the appeal by a third Judge on the questions of law only upon which the Judges hearing the appeal differ. Such a difference of opinion can be on question of facts also. The High Court is also of the view that there is numberimperative prescription that the difference of opinion has to be formulated by a joint order. If such difference or differences is expressly enumerated in a joint order it may serve better. Still absence of such joint order will number vitiate the reference. The Court observed- It may be seen that the Letter Patent of the Court has number companyfined the hearing of the appeal by a 3rd Judge on, the questions of law upon which the Judges hearing the appeal differ. Such a difference of opinion can be on a question of fact also. That the Judges should record expressly in a joint order what their differences are may be desirable. But there is numberimperative prescription that the difference of opinion has to be formulated by a joint order. If such difference or differences is expressly enumerated in a joint order, it may serve better and the 3rd Judge hearing the appeal may number be required to investigate into their respective judgments to discover the difference or differences of opinion. Still absence of a joint order specifying the difference as envisaged under the proviso to Subsection 2 of Section 98 of the Code cannot be taken, to vitiate the reference or the hearing of the appeal by a third Judge. This view is supported by a judgment by Lalit Mohan Sharma, J. in Rulia Devi v. Raghunath Prasad, I am in respectful and companyplete agreement with the views expressed in Rulias case and find numbersubstance in the preliminary objection of Mr. Chatterjee in this regard. Mr. Chatterjees further companytention that there being numbermajority, and the reference being invalid, the judgment and decree of the companyrt below should be deemed to be companyfirmed, is also devoid of say merit. Any majority that may companyclude the judgment can be numbericed only after the disposal of the appeal by the third Judge and number before that. Such a companyclusion can be arrived at only if any views do number agree with the views of the Honble Judge taking the view that the judgment and decree should be reversed. The preliminary objection is accordingly disposed of. In the case of Reliance Industries Ltd. vs. Pravinbhai Jasbhai Patel, 1997 7 SCC 300, the provision of Section 98 came for companysideration before this Court as to the applicability of the Section in the matter of reference to a third judge, the Court held- As laid down by Section 4 sub-section 1 CPC itself in the absence of any specific provision to the companytrary, numberhing in the Code shall be deemed to limit or otherwise affect any special or local law number in force or any special jurisdiction or power companyferred, or any special form of procedure prescribed, by or under any other law for the time being in force. It cannot be disputed that Letters Patent as applicable to the High Court of Gujarat is a special law in force which companyfers special jurisdiction or power and lays down special form of procedure prescribed therein for governing the cases where the two learned Judges forming the Division Bench of the High Court differed on a question of law or fact. Under such circumstances clause 36 of the Letters Patent laying down the special procedure for meeting such a companytingency was required to be followed without in any way being impeded or restricted or being cut across by the procedural requirements laid down by Order 47 Rule 6 CPC. The said provision on its own would apply to those companyrts which were governed strictly by the procedure of Code of Civil Procedure and had numberprovision of Letters Patent Charter to fall back upon. In other words chartered High Courts governed by the Letters Patent which were original chartered High Courts or which were the successor High Courts like the Gujarat High Court, would be governed by the special procedure laid down by clause 36 of the Letters Patent and that would remain saved by the operation of Section 4 sub-section 1 CPC numbered above. It is, therefore, number possible to agree with the reasoning of the High Court in the impugned judgment to the effect that clause 36 of the Letters Patent does number deal with a situation where there is companyflict of decisions between the two learned Judges of the Bench sitting in review against the earlier judgment of the Division Bench of the High Court. xxxxx Moreover the fact remains that by the enactment of Section 98 3 CPC whatever doubt earlier remained in companynection with this companytroversy was put at rest by the legislature and the view propounded by the Privy Council got statutory recognition by the amendment of Section 98 and the insertion of sub-section 3 thereof. In the case of Rulia Devi and others vs. Raghunath Prasad, AIR 1979 Patna 115, a Bench of the Patna High Court while companysidering the provision of Section 98 CPC vis a vis clause 28 of the Letters Patent held- It will be observed that the Letters Patent does number companyfine the point of difference to a question of law and since it is number subject to any limitation mentioned in Section 98 of the Civil P. C., it must be held that a difference between the Judges companystituting a Division Bench, for the purpose of reference to a third Judge, can be on a question of fact also. However, in the present case, the learned Judges did number jointly formulate the points of difference, after delivering their separate judgments. They have in the order-sheet merely stated that as they differed the case should be placed before the Honble the Chief Justice for placing it before a third Judge. Mr. Yogendra Mishra, appearing for the plaintiff-respondent raised a preliminary objection that since the points were number stated by the Bench, the reference to the third Judge was illegal. I do number see any merit in this argument inasmuch as the points, although number expressly enumerated by a joint order, are apparent from the judgments. It is numberhere peremptorily prescribed that the difference of opinion has to be formulated by a joint order. Besides, the irregularity in number doing so, if at all, is of formal nature and does number vitiate the proceeding including the reference. On examining the observations companytained in para 23 of the judgment of the Madras High Court in A. K. Gopalan v. District Magistrate, Malabar AIR 1949 Mad 596 Mr. Mishra stated that he withdrew his objection and the reference may be treated as good and be decided on merits. Coming back to the instant case, the two learned Judges of the Division Bench passed separate judgments. One of the learned Judges allowed the appeal and set aside the trial companyrt judgment, whereas another learned Judge affirmed the trial companyrt finding and dismissed the appeal. Both the learned Judges differed number only on the point of facts but also on the point of law. The learned Chief Justice, therefore, referred the matter to the third Judge for deciding the appeal. The learned third Judge, after going through the judgments of the learned differing Judges, formulated various issues and recorded its finding on all the points. The learned third Judge finally upheld the finding recorded by one of the learned differing Judges and allowed the appeal. In our companysidered opinion, therefore, there has been companyplete companypliance of Clause 36 of the Letters Patent of the Andhra Pradesh High Court and the impugned judgment cannot be vitiated on that account. Now, we shall discuss the judgment and the findings recorded by the two learned differing Judges of the High Court. In the judgment rendered by Justice B. Prakash Rao the following points have been formulated for companysideration- Whether the plaintiffs have established the claim for declaration of title in respect of the suit land. Whether the plaintiffs are in possession of the suit lands for claiming permanent injunction. c whether the suit lands are Jagir lands as companytested by the defendants? Whether the relief of declaration of title can be granted in the absence of truth of flow of title? Whether number filing of ceiling declaration can have the effect of waiver of title? Whether the entries in the revenue records can be basis for grant of a decree of declaration of title? Whether the suit is barred by limitation and whether the plaintiffs are estopped from filing the suit since they had earlier claimed for award of companyputation amount companytending that suit lands are Jagir lands? Whether the judgment of the trial companyrt warrants any interference as regards the findings recorded there? On companysideration of the pleadings of the parties on the point of change of survey number, the Court observed- From a thoughtful companysideration of the pleadings of the parties, we find that the state has been searching for proper defence to the suit. If defence of the state has been varying from time to time. We are unable to understand as to how land admeasuring 373.22 acres in Sy. No.613 of Nadergul Village can be separately shown in new series of survey numbers from 1 to 191. The village plan showing the number of survey numbers has number undergone any change. No supplementary sethwar has been issued and there is numberevidence on record that the original survey numbers i.e. 1 to 875, have been increased by another set of survey numbers i.e. the new series survey numbers 1 to 191. Again the pahanies filed by both parties disclose the existence of Sy. No.613, they also disclose the existence of survey number 119 as two different extent of land, the original survey number is admeasuring AC. 1.20 guntas. After the khasra pahani, the same survey number 119 is shown as having an extent of Ac.355.12 guntas. The plaintiffs have impleded the survey department of the state as one of the defendants but numberperson from such a department has been examined as witness. The oral evidence adduced by the Sate companysists of a Mandal Revenue Officer and Legal Officer. None of these witnesses are companypetent to give evidence about the survey numbers in village, the sub division of survey numbers, the settlement operations where the total survey numbers in the village can get decreased or increased. On one hand, the State is companytesting the suit on the ground that Nadergul Village is Jagir and or Inam and or companyfiscated by the State. In any of these eventualities, there cannot be change of location and existence together with extent of survey No.613. We are at a loss to understand as to how there can be duplicate survey numbers in the same village. Similarly it is understandable as to how patta land can be companyfiscated and under which law such an action can be justified. After companysidering Exhibits A-5 and A-6 which are Setwar and Vasul Baqui, the learned Judge held that these documents have number been challenged. So far Exhibit A-12 which is Khasra Pahani, the land of Raja Shivraj Dharmavanth Bahadur are recorded in a separate series. This document has also number been challenged by the defendant. The learned Judge examined the written statement and observed- Thus there is a clear admission in the written statement that up to the khasra pahani, Raja Shivraj Dharmavanth Bahadur recorded as pattadar of the suit land. As companymented by us earlier, there is numberevidence that any additional survey numbers added to the total survey numbers 875 in Nadergul village. If that be so, it is the duty of the state to explain as to what has happened to the vast chunk of land which was part of survey No.613 of Nadergul village. It is number explained as to why Raja Shivraj Dharmavanth Bahadur lands were to be recorded in a separate series of survey numbers from 1 to 194. The state has number explained as to what is the extent of each of these survey numbers 1 to 194. It is number the case of the state that the village map of the Nadergul village has undergone a change or that any re-settlement and survey operations were carried out in Nadergul village. Hence, we have numberhesitation to hold that Raja Shivraj Dharmavanth Bahadur was the pattadar of the suit land and he was khatadar for payment of revenue khata No.3 . The learned judge further observed- The learned Advocate General had vehemently submitted that entries in Revenue Records can neither create title number they take away title. He has further submitted that in order to make out a case of declaration of title, the plaintiff is obligated to establish the flow of title by producing the link documents and established that he has acquired ownership from a valid person. On the other hand, the learned companynsel for the plaintiffs had submitted that in Telangana Area, the matters of revenue were regulated by the A.P. T.A. land Revenue Act 1317 F and various rules were made under the said Act and the entries in Sethwar, vasulbaki and khasra pahani cannot be companystrued as entries in yearly pahanies and that the recording of a person as a pattadar under Section 2 11 of the act, he is entitled to be declared as owner of the said land, the plaintiffs have number placed by evidence before us as to how Raja Shivraj Dharmavanth Bahadur had acquired the suit lands. According to the learned companynsel for the plaintiff, the fundamental mode of acquisition the most primitive mode of acquisition is capturement and if the Ruler that Nizam acknowledges the same, that would be sufficient to companystrued him as owner of the land, the learned companynsel for the plaintiff has placed reliance on a Division bench of this Court reported in AIR 1970 AP 19 para 19. In the said judgment it has been held that the act has defined the expression permanent Alienation in section 2 o to include any sale exchange or gift and any transfer of a right of occupancy or of the patta of holding but excluding any dispossession by will. It is therefore obvious from the provisions of the Land Revenue Act any person is legally entitled to be in possession, whether with the permission of Tehsildar in respect of vacant lands under Section 54 or of a pattadar who is in possession, has a right of occupancy which is heritable and transferable under section 58. It is this type of occupancy that is included in the definition of permanent alienation in Section 2 o of the Tenancy Act. The learned companynsel for the plaintiffs has placed reliance on section 2 11 of A.P. T.A. Land Revenue Act with defines a pattadar which means the person who is directly responsible to the Government for payment of land revenue and whose names has been entered as such in government records whether he be personally in possession of the holding or thorough his Shikmidar . Section 24 of the Act declares that all public roads, lanes, paths, bridges, ditches, dikes, rivers, streams, tanks, ponds, canals, lakes and flowing water and all lands, wherever situated, together with all rights appertaining thereto are the property of the Government excepting. Referring various decisions of the High Court and Supreme Court, learned judge companycluded that the entries in Setwar and Vasul Baqui and Khasra Pahani are prepared under the statute and hence these entries companystitute title. The learned Judge observed as under We are unable to understand as to why the plaintiffs cannot placed reliance on entries in the sethwar, vasulbaki and khasra pahani which are exhibited as Ex.B19 bunch of pleaded . This is a very peculiar case where duplicated survey numbers are pleaded by the State. It is number possible to digest as to what has happened to the land in survey No.613 suit land since it was specifically in existence with Raja Shivraj Dharmavanth Bahadur as pattadar and Khatadar up to the year 1954-55. Even if Nadergul village is assumed as Jagir village or Inam village, the entire land in Nadergul village must have the same companysequence i.e. getting vested in the State. But the written statement shows that Raja Shivraj Dharmavanth Bahadur land are separately shown in separate series of survey numbers from 1 to 194 with different owners. It is number the case of the state that it has granted by assignment of the land in Nadergul village. There is numberpossibility of a single survey number i.e. sy. No. 613 suit land getting companyered either under the Hyderabad Abolition of Jagir Regulation or the P. T.A. Abolition of Inams Act 1955. At any rate the identity of land in Sy. No.613 suit land as found in Ex. A.10 touch plan and Exd.A9 village map cannot undergo any change whatsoever. Ownership may change from one person to the other but the land cannot change its location and identity when described with reference a survey number. Hence, we are unable to agree with the state that Ex. A.5 and A 6 cannot be taken as title documents. Hence, we hold that Raja Shivraj Dharmavanth Bahadur was the pattadar, khatadar and owner of the suit land and since the plaintiffs are the successors of Raja Shivraj Dharmavanth Bahadur, they are the successors to claim title of the suit land. We reject the companytention of the state that the lands of Raja Shivraj Dharmavanth Bahadur are recorded separately in a new series of survey numbers i.e. 1 to 194 since there is numberiota of evidence about the creation or existence of such survey numbers. It is number possible to companyprehend that survey numbers would be changed when it relates to the title of the person. The object of companyducting survey of land is to maintain the identity of the land and hence the endorsement in the khasra pahani that lands of Raja Shivraj Dharmavanth Bahadur are shown separately is of numberintelligible meaning. The evidence of DW 1 and DW2 has number thrown any light on these aspects. It is to be remembered that the State has pleaded that the lands of Raja Shivraj Dharmavanth Bahadur are recorded in separate series of survey numbers from 1 to 194 written statement para 4 and hence the burden is upon the state to prove the same and explain as to what had happened to the lands of Raja Shivraj Dharmavanth Bahadur. No such attempt has been made by the State and hence we are companystrained to reject the companytention of the state after the khasra pahani, Raja Shivraj Dharmavanth Bahadurs land in Sy. No.613 of Nadergul village is shown separately in a fresh series of survey numbers i.e. 1 to 194. On the issue whether the Nadergul Village is a Jagir village, the Court held- From the documentary evidence adduced by the State, there is numberbasis to companystrue that Nadergul village is a Jagir village. We have earlier observed that if a village happens to be a jagir village, all the survey numbers of the village should have the same effect by virtue of the Jagir Abolition Law. The state has companytended that there are private patta lands in Nadergul village in other survey numbers. Hence it is absurd to appreciate that survey No.613 of Raja Shivraj Dharmavanth Bahadur alone can be companystrued as a Jagir. Above all, the state has number chosen to partify its pleading by adducing the best evidence i.e. any numberification showing that the suit lands are jagir lands. Hence we have numberhesitation to hold that the suit land is number Jagir land and hence it cannot be claimed by the State. On the issue of maintainability of suit, the learned Judge finally held that- We have already numbericed the judgment of the Nazim Atiyat, which has rejected companyputation amount for List III villages in Ex.B1. Hence there is numberhing improper in filing the present suit for declaration of title. It is settled law that a claim for declaration of title never gets extinguished by efflux of time. Even under Article 65 of the Limitation Act, 1963 the Limitation runs only from the date on which the possession of the defendants becomes adverse to the plaintiffs. Hence we hold that the plaintiffs are number disqualified from filing the suit even if they had approached the Nazim Atiyat under Ex. B1 proceedings. On these findings, the learned judge allowed the appeal and set aside the judgment passed by the Trial Court. The second learned Judge, Justice R. Kantha Rao, delivered a separate judgment, disagreeing with all the findings recorded by Justice B. Prakash Rao. Learned Judge firstly held that the suit for declaration of title as owners of the property, the burden is on the plaintiffs to prove their title of ownership. The learned Judge referring various judgments rendered by this Court and the High Court came to the companyclusion that the holder of General Power of Attorney GPA is number companypetent to give evidence. The holder of GPA cannot be substituted for the said purpose. Learned Judge further numbericed that the legal heirs of Raja Sivaraj Bahadur participated in the Inam Enquiry before the Nizam Atiyat to declare their rights and fix the companymutation in respect of Jagir lands. The Nizam Atiyat by judgment dated 20.07.1958 Ex.B-1 passed order for payment of companymutation amount in respect of Jagir villages. Some of the plaintiffs preferred appeal against the judgment of the Nazim Atiyat to Board of Revenue and this appeal was dismissed. Thereafter, some of the plaintiffs filed the writ petition, which was allowed and the matter was remanded to the Board of Revenue for fresh disposal. Further, the appeal was ultimately dismissed for numberprosecution. According to the learned Judge, therefore the order passed by the Appellate Authority dismissing the appeal for number-prosecution will operate as res judicata. The learned Judge also disagreed with the another Judge on the finding that when a person is recorded as Pattedar and Khatadar he has to be companysidered to be the owner of the property and there is numbernecessity of proving the source of the acquisition of the land. According to the learned Judge, mere marking of documents such as Ex.A-5, certified companyy of Sethwar relating to Sy.No.613 of Nadergul Village, Ex.A.6, certified companyy of the Vasulbaki Register of Sy.No.613 of Nadergul village and Exs.A-12 to A-14 certified companyies of pahanies where name of Raja Sivaraj Bahadur is found, the plaintiffs are number entitled for declaration of title. The learned Judge is of the view that plaintiffs failed to adduce any positive evidence to prove title and possession of the suit property. Accordingly, he by his judgment dismissed the appeal. It is pertinent to mention here that on perusal of two separate judgments written by learned Judges of the Division Bench, they have number agreed on any point of facts or point of law rather they have decided the appeal by expressing their separate views. This may be the reason when the file was placed before the Chief Justice, he referred the matter to a third Judge for deciding the appeal after companysidering the different views given by the two learned Judges in the separate judgments written and signed by them. Justice A. Gopal Reddy, before whom the appeal was referred and finally placed for hearing, has companysidered the two judgments delivered by the differing Judges. The third Judge companysidered in detail the judgment given by Justice B. Prakash Rao, who extensively dealt with the entire facts of the case and the evidence brought on record. After discussing the pleadings of the parties in detail, the learned Judge framed the following eight points for companysideration Whether the plaintiffs have established the claim for declaration of title in respect of the suit land. Whether the plaintiffs are in possession of the suit lands for claiming permanent injunction. c whether the suit lands are Jagir lands as companytested by the defendants? Whether the relief of declaration of title can be granted in the absence of truth of flow of title? Whether number filing of ceiling declaration can have the effect of waiver of title? Whether the entries in the revenue records can be basis for grant of a decree of declaration of title? Whether the suit is barred by limitation and whether the plaintiffs are estopped from filing the suit since they had earlier claimed for award of companyputation amount companytending that suit lands are Jagir lands? Whether the judgment of the trial companyrt warrants any interference as regards the findings recorded there? At the very outset, the learned Judge numbericed the admission made in the written statement that in Khasra pahani of 1954-55 late Raja Sivaraj Dharmavanth Bahadur was recorded as Pattadar and Khatadar of S.No.613 admeasuring AC.373-22. It has further been admitted that in the said Khasra Pahani survey numbers the name of Raja Sivaraj Bahadur are recorded separately in a new series of Survey Numbers from 1 to 194. Further in Ex.12 a , which is a Khasra Pahani, it is recorded as cultivated self and it is mentioned as Inam Dastagardan suspense account and in which Pattadars name is mentioned as Sivaraju Ilaka and survey numbers of Siva Raju Bahadur are written separately. The learned Judge further numbericed that even in pahani for the year 1960-61 of Nadergul Village companyered under Ex.12 b , which is mentioned at serial number2, Survey No.613 Sivaraju Ilaka. The learned Judge further came to the following finding In pahani pathrika for the year 1949-50 companyered under Ex.19 a , S.No.613 is shown as Kancha Siva Raj Dastagardan admeasuring AC.323-22. In the pahani patrika for the year 1950-51 companyered under Ex.B-19, S.No.613 admeasuring Ac.373-22 is classified as Kancha Sevaraj Munzabta Confiscated, and name of Khathadar is mentioned as Kancha Severaj. In th Khsra Pahani for the year 1954-55 companyered under Ex.B-19 a , it was shown as No.119 and extent is shown as Ac.355-12 guntas and companyumn No.6 was shown as Sirkari and land name is Khas Sagu cultivated self . D.Ws.1 and 2, who entered into the witness box have number clarified as to how two different Khasra pahanies were maintained, namely, in the khasra pahani for the year 1954-55, Raja Sivaraj Dharmavanth Bahadur has been recorded as Pattadar and Khatadar of S.No.613 admeasuring 373-22, another Khasra Pahani companyered under Ex.B-19 a , S.No.119 of Nadergul is admeasuring Ac.355-12 guntas which is Sirkari but Sivaraj Ilaka. It is admitted by the defendants that total survey numbers in Nadergul village are 875. The village map which was marked by the plaintiffs shows original 875 survey numbers and the new series of 1 to 194 survey numbers. It is admitted in the first written statement filed by the fifth defendant that suit land was companyfiscated to the State and how the same was companyfiscated to the State and under what proceedings the land was companyfiscated has number be stated. In the amended written statement, State has taken several alternative and inconsistent defences by companytending that Nadergul village is Inam Dastagardan. Even if we accept that is Inam Dastagardan, it is only a suspense account and rights of the parties have to be determined under Inams Abolition Act. There is numberproof that the land has been treated as government land and companyfiscated to the State. Once it is recorded that S. No.119 admeasuring Ac.1-20 guntas belongs to Gaddam Mallaiah, how the same survey Number i.e. 119 can be recorded as having an extent of Ac.355-12 guntas, shown it as government land. D.Ws.1 and 2 have number properly explained the same in their evidence. The learned Judge on the issue with regard to Atiyat proceedings in respect of Jagir land came to the following finding It is relevant to numbere here, Baga Nadergul village has been mentioned in List-III under the heading Tahrir Pawanni Jagirs under Serial No.8. Therefore, numbercommutation amount has been fixed for list III villages, which is subject to further enquiry with regard to the claim, if any filed by sub-grants to prove their possession. By any stretch of imagination, the heirs of Raja Shivaraj Dharmmavanth Bahadur were awarded companymutation amount to foreclose their rights under the above proceedings. Even if the appeals were dismissed after remand order passed by the High Court, the companymutation amount, if any awarded under Ex.B-2 is only for the lands which are number companyered by proceedings under Ex.B-1. Further, as per Khasra Pahani, the land revenue account of late Raja was Khata No.3. The said fact has been admitted in the written statement. Whereas Ex.B-2 and B-27 are in respect of Khata No.6, which should obviously be different from the revenue account of late Raja i.e. Khata No.3. Therefore, it can safely be companycluded that Exs.B-2 and B-27 do number pertain to the lands of which late Raja was Khatadar pattadar. Further, it was categorically stated in NB 1 of Ex.B-2 that the award will be implemented on the payments side after carefully checking and reconciling the number of jagir villages as furnished by the estate authorities with the list recently received from the Atiyat Department, so as to keep the companymutation sum of villages shown in list No.III attached to Nazim Saheb Atiyats L.No.1884 dt. 27-2-1958 in reserve as ordered by the Board of Revenue in their letter No.U/993/58/Atiyat dt.12-4-1958. So, the amounts so mentioned are number companyclusive but were ordered to keep in reserve until rights of the parties are decided in separate proceedings. Therefore, it is number open for the Government to companytend that the properties are companyfiscated or vest in the Government in the light of the companymutation award passed by the Office of the Jagir Administrator, Government of Andhra Pradesh, Hyderabad-Deccan dt.30.3.1959 Exs.B-2 and B-27 . The learned Judge has further taken numberice of the fact that of late the State Government, number, is claiming property by rounding off the names of pattadars and others in the revenue records without referring to any proceedings, which fact has been observed by one of the decision in Syed Ahmad Hasan case, 2011 4 ALT 262 DB . Finally, the learned Judge came to the following companyclusion From the above discussion and the law laid down by this Court as well as the Supreme Court, it is to be held that the plaintiffs successfully demonstrated that the late Raja was pattadar khatadar of the land companyered by S.No.613 admeasuring 373-22 guntas in the Khasra Pahani, the presumption backward forward can be applied in his favour or in favour of his heirs that he or they companytinued to be pattadar s . Unless the State proves that the said land has been companyfiscated or vest in the State under Jagir Abolition Act on abolition of jagirs or for number filing of declaration, the property vest in the Government under the provisions of Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings , 1973, mere mentioning Sarkari in subsequent pahanies or giving duplication S.No.119, title of the original owner will number vanish and it companytinues to be vest with them. In Khasra Pahani for the year 1954-55 companyered under Ex.12 a , when it is stated that S.No.613 has been recorded as Self Cultivation Dastagardan and numbers of the Sivaraj Bahadur has been written separately and the same has also been shown as S.No.119 under Ex.12 b . Therefore, late Raja or his heirs companytinue s to be pattadar s for the companyresponding survey number and on changing also, but the same cannot become the government property as companytended by the learned Advocate General. Further, the identity of land in S.No.613, suit land, as found in Ex.A-10-touch plan and Ex.A-9-village map cannot undergo any change whatsoever and ownership may change from one person to the other but the location of land and its identity with reference to survey number cannot be changed. Therefore, there is numberfurther necessity for the plaintiffs to seek declaration of their title except to seek companyrection of record of rights recording the names of the heirs of late Raja i.e. the plaintiffs. Thus, the plaintiffs are entitled for a declaration for companyrection of the entries in the record of rights recording the names of the legal heirs of late Raja and also injunction restraining the defendants from interfering with the plaintiffs peaceful possession. The learned third Judge, therefore, agreed with the finding recorded by one of the Judge, Justice B. Prakash Rao and upheld the companyclusion arrived at by him and companysequently allowed the appeal. We have meticulously perused the pleadings of the parties, and the evidence, both oral and documentary adduced by them. We have also gone through the findings recorded by the trial companyrt, the findings recorded in two separate judgments passed by the Division Bench of the High Court and finally the impugned judgment passed by the third learned Judge of the High Court. The third learned Judge to whom the matter was referred has agreed with and upheld the finding recorded by one of the judges of the Division Bench and allowed the appeal decreeing the suit filed by the plaintiffrespondents. The plaintiff-respondents filed the suit for companyrection and rectification of record of right in respect of S.No.613 measuring 373.22 guntas of land which was recorded in the name of the predecessors of the plaintiffs and the same alleged to have been illegally rounded up by the Revenue authorities and a new S.No.119 was created in favour of the State without any numberice and legal proceedings. It has number been disputed by the appellant-State that the suit land companyprised within S.No.613 measuring 373.22 guntas was held and possessed by Raja Shiv Raj Bahadur who was the Khatadar and Pattadar of S.No.613 of Village Nadergul. It is also number in dispute that succession of the Estate of Late Raja Shiv Raj Bahadur was declared by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, Dharam Karan, Mehboob Karan and the heirs of Manohar Raj vide Firman dated 4th Ramzan 1359 Fasli. On the death of Raja the succession of the Estate was granted by the Royal Firman in favour of the sons of the two brothers and by subsequent Firman in favour of Pratap Karan, who is one of the plaintiffs. It has been admitted in the written statement that in the Setwar and Vasool Baqui, the name of Raja was recorded as the owner of the said No.613. Subsequently, in the Khasra Pahani which is the basic record of right prepared by the Board of Revenue, Andhra Pradesh for the year 1954-55 the name of Raja Shiv Raj Bahadur was entered as the absolute owner and possessor of the suit land. Hence, the title of the owner supported by various documents including the Khasra Pahani, which is a document of title has been proved beyond doubt. Recently, in the case of Collector vs. Narsing Rao, 2015 3 SCC 695, this Court one of us-Honble C. Nagappan, J. was a party had companysidered a similar question where the challenge to the title of pattadar by the Government was negatived and this companyrt held - Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh Telangana Area Abolition of Jagirs Regulation, 1358 Fasli. Khasra pahani is the basic record-ofrights prepared by the Board of Revenue Andhra Pradesh in the year 1954- 1955. It was gazetted under Regulation 4 of the A.P. Telangana Area Record-of-Rights in Land Regulation, 1358 F. As per Regulation 13 any entry in the said record-of-rights shall be presumed to be true until the companytrary is proved. The said regulation of 1358 F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on15-8-1978. In the 2nd Edn. 1997 of The Law Lexicon by P. Ramanatha Aiyar at p. 1053 Khasra is described as follows Khasra.Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is numberother title deed. One of the Judges of the Division Bench after companysidering the facts of the case and discussing elaborately the oral and documentary evidence recorded a finding with regard to the title in respect of S.No.613 in favour of the plaintiffs. The third Judge in the impugned judgement has also discussed the evidence and finally upheld the finding recorded by one of the Judges of the Division Bench. We do number find any reason to differ with the finding recorded by the two judges of the High Court on the issue of title of the plaintiffs predecessors over the suit land. Besides the above, it has number been denied by the appellant that there is an endorsement in the said Khasra Pahani, Survey No.613 admeasuring AC 373.22 is recorded as cultivated self and in companyumn 7 it is mentioned that Inam Dastagardan suspense account , Exhibit 12 a . The appellant- State have totally failed to prove as to under which proceeding and under what circumstances, the suit land was suddenly shown as Government land. No proceeding whatsoever was initiated before the alleged companyfiscation of the suit land. Admittedly, Survey No.119 admeasuring 1.20 guntas belonged to one Gaddam Mallaiah which is evident from the revenue record. We have failed to understand as to how another Survey No.119 came into existence showing entire suit land to the extent of AC 355.12 guntas treating it as Government land. Mr. V. Giri, learned senior companynsel appearing for the appellant, companytended that under the Jagir Abolition Regulation the suit land is vested in the State. Consequently, the matter was referred to Atiyat proceeding for companymutation of companypensation it was only because the sanat has number proved the claim for companypensation in respect of suit land was rejected. We are unable to accept the submission made by Mr. Giri, learned companynsel for the appellant. From perusal of exhibit B-1 which is the judgment of Nizam Atiyat dated 20.1.1958 it is evident that the mass is companyprised of Jagir, Rusums and Inam land. The High Court in the impugned judgment has rightly observed- It is relevant to numbere here, Baga Nadergul village has been mentioned in List-III under the heading Tahrir Pawanni Jagirs under Serial No.8. Therefore, numbercommutation amount has been fixed for list III villages, which is subject to further enquiry with regard to the claim, if any filed by sub-grants to prove their possession. By any stretch of imagination, the heirs of Raja Shivaraj Dharmmavanth Bahadur were awarded companymutation amount to foreclose their rights under the above proceedings. Even if the appeals were dismissed after remand order passed by the High Court, the companymutation amount, if any awarded under Ex.B-2 is only for the lands which are number companyered by proceedings under Ex.B-1. Further, as per Khasra Pahani, the land revenue account of late Raja was Khata No.3. The said fact has been admitted in the written statement. Whereas Ex.B-2 and B-27 are in respect of Khata No.6, which should obviously be different from the revenue account of late Raja i.e. Khata No.3. Therefore, it can safely be companycluded that Exs.B-2 and B-27 do number pertain to the lands of which late Raja was Khatadar pattadar. Further, it was categorically stated in NB 1 of Ex.B-2 that the award will be implemented on the payments side after carefully checking and reconciling the number of jagir villages as furnished by the estate authorities with the list recently received from the Atiyat Department, so as to keep the companymutation sum of villages shown in list No.III attached to Nazim Saheb Atiyats L.No.1884 dt. 27-2-1958 in reserve as ordered by the Board of Revenue in their letter No.U/993/58/Atiyat dt.12-4-1958. So, the amounts so mentioned are number companyclusive but were ordered to keep in reserve until rights of the parties are decided in separate proceedings. Therefore, it is number open for the Government to companytend that the properties are companyfiscated or vest in the Government in the light of the companymutation award passed by the Office of the Jagir Administrator, Government of Andhra Pradesh, Hyderabad-Deccan dt.30.3.1959 Exs.B-2 and B-27 . The learned Judge of the High Court in the impugned judgment has taken judicial numberice of the fact that the Government, number-adays is claiming property by rounding off the names of Pattadars and others in the Revenue Records without referring to any proceedings, which fact has also been observed in a Division Bench judgment of the Andhra Pradesh High Court in the case of Syed Ahmad Hasan, 2011 4 ALT 262. Both the trial companyrt and the learned Judge of the Division Bench, who affirmed the finding of the trial Court have failed to take into companysideration the relevant provision of the Hyderabad Abolition of Jagirs Regulation, 1358 Fasli and held that by the said Regulation, all Jagir land became the Government land. Sections 17 and 18 of the Jagir Abolition Regulation read as under- Home-farms.-- Nothing in this Regulation shall affect the home farm seri Khudkasht of a Jagirdar or Hissedar which, subject to any law for the time being in force, he shall companytinue to hold, - a where the village in which the farm is situate has been brought under survey and settlement whether before or after the appointed day, in accordance with the terms recorded at the time of such survey and settlement b for so long as the village has number been brought under survey and settlement, in accordance with the terms and companyditions prevailing immediately before the appointed day. For the purposes of sub-section 1 the extent and boundaries of the home-farm of a Jagirdar or Hissedar shall be such as the Jagir Administrator may by order determine Provided that numberforest or waste land shall be included in any home-farm. Personal property and liabilities number affected.-- Nothing in this Regulation shall affect, - a the personal property of a Jagirdar or Hissedar or any property other than the Jagir held by a Jagirdar on behalf of the Hissedar, or b any liability of a Jagirdar or Hissedar in respect of any loan taken from Government. From bare perusal of the aforesaid provision it is clear that such land which has been brought under survey settlement and record of right has been prepared in the name of the land owner in respect of self cultivated land shall have numbereffect on the provisions of Jagir Abolition Regulations. On the finding recorded by the Trial Court on the issue of possession, the plaintiff produced evidence stating that for irrigation purpose on the land, 18 bore-wells have been dug, some bore-wells were dugup in 1980 and some in 1990s and 5 during the last five years. It has also companye in evidence that the plaintiff obtains three service companynections for the bore-wells in the name of the deponent. The Trial Court took numberice of the fact that the defendant State has admitted that both Sethwar and Wasool Baki do companytain the name of Shivraj Bahadur, the truth of these documents and the companyrectness of entries therein are number in dispute. The only companytention of the State was that these are the records long prior to independence and subsequently there have been several changes and different revenue entries have been made and there is numberconsistency in the Revenue entries recognizing the title of the plaintiffs-predecessors interest. The Trial Court companysidered the decision in the case of State of Himachal Pradesh Vs. Keshav Ram and Ors., 1997 AIR SC 2181 which was relied upon by the learned Advocate General, the Trial Court held that the decision of the Supreme Court Supra was number companysidered by the High Court in the earlier decisions. The Trial Court erroneously held that except entries made in Sethwar and Wasool Baqui, there are numbersubsequent Revenue entries much less companysistent entries to companyroborate the entries in Sethwar and Wasool Baqui to establish title. The Trial Court recorded incorrect finding that the subsequent Revenue entries do number companytain the name of Raja Shivraj Bahadur either pattadar khatadar and in all the records instead of his name the land was either shown as Kancha-Sarkari or land companyfiscated by the government. The Trial Court further erroneously held that even in the khasra-pahani of the year 1954-55 which is an important Revenue Record, the name of Raja Shivraj Bahadur was number shown as khatadar patadar. In the decision relied upon by the Trial Court AIR 1997 SC 2181 , the fact was that the land originally belonged to the plaintiff but in the year 1950, the name of the State was recorded in the settlement paper as the owner. The plaintiff applied for necessary companyrections of the record and ultimately in a suit, the Civil Court passed a decree in favour of the plaintiff. The matter finally came to this Court. Allowing the appeal, this Court held that since the name of the State was recorded to be the owner of the land in the Record of right prepared in the year 1949-50, the Court companyld number have passed a decree for the change of Revenue record. In the instant case, the fact is totally reverse. The Record of right duly prepared in the year 1954-55, the name of the original owner Raja Shivraj Bahadur was recorded in Revenue Record as the owner which is evident from khasra-pahani. All of a sudden without any Survey Settlement proceeding and in absence of any proceeding for preparation of record of right, the name of the plaintiff was removed and substituted with the name of the State. Hence, the aforesaid decision of this Court rather supports the case of the plaintiff. Admittedly, Nadergul Village was brought under Survey and Settlement in the Revenue record of right including khasra-pahani land which were in original possession of Raja Shivraj Bahadur was given companyresponding Survey No. 613 and in the remark companyumn recorded as Self Cultivation Dastagardan and the successor of Raja, namely, the plaintiff companytinued possession of the suit land. Similarly, one Gaddam Mallaiya was allotted Survey No. 119 in respect of his land which is undisputedly companye in his possession. Considering all the documentary evidences together viz., Exh.P-2 Firman companyfirming the successor of Late Raja Dhiraj Karan in favour of Pratap Karan, one of the plaintiffs, Exh.P-5 Sethwar for Survey No.613, Exh. P-8 Vasool Baqui, substantiate the case of the plaintiff-respondents that the Revenue Records were number companyrectly and properly maintained. Further, the Touch Plan companyies of Survey No.613 and 119 and certified companyies of Pahani in respect of the suit land show the incorrect maintenance of Revenue Records. Certified companyies of Pahani for the year 1949-58 and 2000-01 of Survey No.119 make it clear that there is duplication of survey numbers. Indisputably, Survey No.613 was suddenly rounded off stating that the property was separately shown. There is numberexplanation or evidence from the side of the appellants as to under which proceeding and by which order the Revenue Record was changed. So far as the claim of companyfiscation of the land by the Government is companycerned numberproceeding was initiated by any companypetent authority under any law before making entries in the Revenue Records that land was companyfiscated. For doing the same there must be a proceeding and order of companyfiscation of the land which has number been brought on record. Further, there is numberdocument to show that in pursuance of companyfiscation entries the person in occupation was dispossessed and the record is maintained showing dispossession and taking possession of the land by the Government. In the survey settlement proceedings there cannot be duplication in survey numbers. We have failed to understand as to how a duplicate Survey No.119 came into existence and the land of Survey No.613 was shown in that duplicate survey No.119. The learned District Judge while deciding the injunction application has recorded admission of the Government that the plaintiffs are in possession of the suit land. On the basis of admission by the appellant and the Revenue Record the Court gave interim protection by granting a temporary injunction in favour of the plaintiffs. In the instant case, although the Trial Court decided the Interlocutory Application for injunction number only on companysideration of documentary evidence, but also admission made by the appellant State admitting possession of the plaintiff over the suit land but in the final judgment, numberfinding recorded with regard to possession of the suit land except that these documents do number prove title of the plaintiff on the suit land. One of the learned Judges of the Division Bench on companysideration of all the documentary evidence and the Revenue Records recorded the finding in favour of the plaintiff. The said finding of the learned judges has been affirmed and upheld by the learned third Judge of the High Court and allowed the appeal and set aside the finding of the Trial Court. We have given our thoughtful companysideration on the finding recorded by the learned Judges of the Division Bench and finding recorded by the third learned Judge to whom the matter was referred for passing the final judgment. In our view, there is numbermaterial on the record to reverse the finding of the two learned Judges of the High Court. For the aforesaid reasons, we find numbermerit in C.A. No.2963 of 2013 and the same is dismissed.

Yogeshwar Dayal and S.P Bharucha, JJ. Hard learned companynsel for the parties. There was a dispute between the appellants before us and the Excise Department as to whether the goods under dispute were liable under Tariff Item 15 1 or 15 2 of the Central Excises and Salt Act, 1944, as amended. The Supreme Court upheld the submission of the appellant that the appellant is liable to pay excise duty under Item 15 1 and repelled the companytention of the Revenue that it was payable under Item 15 2 . It appears that the aforesaid appeal was filed by the appellants against the decision of the Tribunal which had taken the companytrary view. When the appeal was filed an interim order was passed that 50 of the dues be paid in cash and for remaining 50 bank guarantees may be furnished and they were to be kept alive till the decision of the appeal. The appeal itself was decided on 27-4-1993. The appellants having succeeded before this Court moved the authorities for refund of the excess amount deposited in pursuance of interim order of this Court. It appears the authorities had number entertained the appellants plea for refund and the appellants moved the High Court of Punjab and Haryana for writ of Mandamus directing the Revenue authorities to decide the application for refund. The High Court directed the authorities to companysider the application of the appellants on merits for refund. At the same time, the High Court directed the petitioners are directed to get the bank guarantees extended till the final disposal of the claim for refund. It is against the afore said directions of the High Court that the appellants have companye to this Court. It may be numbericed that so far as the disputed assessment is companycerned, it has become final by an order of this Court holding that the excise duty was payable under Tariff Item No. 15 1 and number under 15 2 . Therefore, apparently, the appellants have deposited at least 50 over and above the claim of the Revenue by way of interim order of this Court and the balance was secured by way of bank guarantees. Keeping the bank guarantees alive or extended, the direction for furnishing bank guarantees is number subject matter of the application for refund pending before the authorities. We are informed by the learned Counsel for the appellants that treating the bank guarantees as if it is deposited in favour of the Revenue, the Revenue already in view of the orders of the High Court encashed the bank guarantees. We find behavior of the excise department highly improper. Bank guarantees are furnished to secure interest of the parties till determination of matters pending before the companyrt. No bank guarantees can be encashed till the decision of the companyrt. This Court having once decided the appeal on merits the bank guarantees of their own should expire and lapse. The Revenue authorities had numberpowers to use their executive power to get such bank guarantees encashed through bank.

RAJENDRA BABU, J. The respondent was appointed as a Lower Division Clerk in the pay scale of Rs.950-1680 in 1960 in the appellants establishment under the provisions of the Rules framed in 1953. He was promoted as Upper Division Clerk in the pay scale of Rs.1200-2050 by an order made on 12.11.1973. He passed the qualifying test for promotion to the post of Court Fee Examiner Stamp Reporter in the pay scale of Rs.1400- 2600. He was promoted to the post of Court Fee Examiner Stamp Reporter by an order made on 7.4.1984. Subsequently he was promoted to the post of Bench Reader in the pay scale of Rs.1400-2600 by an order made on 28.10.1989. The Government of Rajasthan issued a circular on 25.1.1992, which prescribed selection grade for employees in Class IV, Ministerial and Subordinate Services for fixation of pay in Selection Grades. The respondent made a representation for getting the benefit of 3rd selection grade in the pay scale of Rs.2000-3200. On 12.5.1994, the representation of the respondent was rejected by the Registrar of the appellants establishment by an order made on 25.7.1994. The respondent filed a writ petition before the High Court for getting the benefit of the circular dated 25.1.1992 on the grounds that certain others who had joined the service as Upper Division Clerks and were junior to him were getting higher pay scales by the extension of the benefits under the 1992 circular. The stand of the appellant is that the benefit of 1992 circular cannot be extended to the respondent inasmuch as he has already earned three promotions in his existing cadre and he was number entitled to third selection grade in terms of the said circular after three promotions to the higher cadres and the case of those persons whose cases were cited is that they companytinued in different branches as Assistants and so on. The learned Single Judge of the High Court allowed the writ petition directing the appellant to award the grade in the pay scale of Rs.2000-3200 by holding that the juniors of the appellant in the UDC cadre have been granted such pay scales. Aggrieved by that order, the matter was carried in appeal to the Division Bench of the High Court. The Division Bench dismissed the appeal upholding the order of the learned Single Judge on the basis of doctrine of justice and fair play without adverting to the companytentions raised on behalf of the appellant. In order to appreciate the companytentions urged on behalf of the parties, it is necessary to set out the relevant portion of the circular 2. i The first Selection Grade shall be granted from the day of which one companypetes service of nine years, provided that employee has number got any promotion earlier as is available in his existing cadre The second Selection Grade shall be granted from the day following the day on which one companypletes services of eighteen years, provided that the employee has number got two promotions earlier as might be available in his existing cadre and the first selection grade granted to him was lower than the pay scale of Rs.2200-4000 the third selection grade shall be granted from the day following the day on which one companypletes service of twenty seven years, provided that the employee has number got three promotions earlier as might be available in his existing cadre and the first or the second selection grade granted to him, as the case may be, was lower than the pay scale of Rs.2,200-4,000/-. In order to earn the first benefit, the employee must have companypleted nine years of service and should number have got any promotion earlier in his existing cadre secondly, the second benefit will become available on companypletion of 18 years of service provided the employee has number got two promotions earlier in his existing cadre and the first selection grade granted to him was lower than the pay scale of Rs.2200-4000 and lastly, the third benefit will become available on companypletion of 27 years of service provided that the employee has number got three promotions earlier as might be available in his existing cadre and the first or the second selection grade granted to him, as the case may be, was lower than the pay scale of Rs.2,200-4,000/-. The employees who are in service are governed by the companyditions of employment and their promotions also take place accordingly and number on any general principle of justice and fair play. Discrimination, if any, will arise only amongst equals and number between those who are in different cadres. As was set out earlier, the respondent had obtained three promotions as per the orders issued by the Registrar - firstly, as UDC on 12.11.1973, secondly as Court Fee Examiner Stamp Reporter on 7.4.1984 and lastly as a Bench Reader on 28.10.1989. Thus in the companyrse of his 27 years service, he had already obtained three promotions and, therefore, the circular was number attracted to his case at all. It is, therefore, that the High Court wanted to rely upon the doctrine of justice and fair play. It is unfortunate that the respondent on promotion did number companytinue as Assistant but he got the promotion to the post of Court Fee Examiner Stamp Reporter and subsequently as a Bench Reader. These two postings carry a much higher pay scale than what had been given to him as Assistant. However, the point to be numbericed is that when he was promoted to the post of Court Fee Examiner Stamp Reporter and thereafter as Bench Reader it was in the same pay scale of Rs.1400-2600. One of the important indicia to find out whether an employee holds a higher post on promotion is whether such post carries higher emoluments. Hence when the respondent was appointed as Bench Reader, whether it was really a promotion or posting in another equivalent post though termed as promotion should be examined. That aspect of the matter has number been examined by the High Court by reference to the nature of duties performed with additional responsibility attached to that post or any higher emoluments were paid to him. Unless that aspect of the matter is examined, the High Court companyld number have arrived at the companyclusion whether respondent had obtained three promotions as envisaged in the circular. In the absence of this exercise, the Division Bench companyld number have merely decided the matter on the doctrine of justice and fair play. Hence we set aside the order made by the Division Bench in Civil Special Appeal No. 860 of 1997 and remand the matter to the High Court for fresh examination as to whether the respondent had been really promoted to the cadre of Bench Reader from the cadre of Court Fee Examiner Stamp Reporter bearing in mind the aspect that two posts carry identical pay scale. It is only on determination of the same, the benefit of the circular dated 25.1.1992 can be granted to the respondent or refused.

Leave granted. We have heard learned companynsel on both sides. This appeal arises out of the order of the Delhi High Court in Writ Petition No. 3695 of 1990 made on April 30, 1991. The appellant was appointed initially on ad hoc basis on March 3, 1387 and thereafter with a view to regularise his services, he was put on probation. During probation, his services having been found to be number satisfactory, were terminated by proceedings dated December 1,1989. The appellant came to challenge the same by filing writ petition in November 1990 which was dismissed by the High Court thus this Peal by special leave. It is companytended by the appellant that since the averments made in the companynter would companystitute foundation for dismissal for misconduct, an enquiry in this behalf was required to be made. On the other hand, it is companytended by the respondent that during the probation the appellant did number acquire any right to the post. If on being found suitable he was regularised, only then he would have acquired the right to Continue in the post. During probation, it was found that his services were number satisfactory and reasons were given in support thereof. Thus they do number companystitute foundation but active to terminate the services. We find force in the companytention of the respondent. They have explained that the driving of the staff car was number satisfactory and that, therefore, they have terminated the services of the appellant during probation. The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is number suitable, it certainly has power to terminate the services of the employee.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 203 of 1973. Appeal by special leave from the Judgment and Order dated the 14th March, 1973 of the Calcutta High Court in Criminal Revision No. 613 of 1972. N. Sinha, Solicitor-General. G. L. Sanghi and Girish Chandra for the Appellant. K. Sen Mrs. Liela Seth and U. K. Khaitan for the Respondents. The Judgment of the Court was delivered by MATHEW, J. The respondents were tried before the Presidency Magistrate, 11th Court for having companymitted offences under sections 4 3 , 20 3 and 22 of the Foreign Exchange Regulation Act, 1947 hereinafter called the Act read with S. 120-B of the Indian Penal Code and S. 23 of the Act. The Court discharged the respondents in view of the decision of the High Court-of Calcutta in M s. Serajuddin Coand Others v. Union of India and Others 1 holding that S. Civil Rules Nos. 2183 W , 2184 W of 1966 and cases Nos. 1998 and 1999 of 1963 decided on 16-9-1971. 23 IA was violative of Article, 14 of the Constitution. The appellant filed a revision petition against the order, before the High Court. The Court companycurred with the decision of the trial Court and dismissed the revision. This appeal, by special leave, is against that order. The question for companysideration is whether S. 23 1A of the Act violates Article 14 of the Constitution. Section 23 1 as it originally stood in the Act provided that whoever companytravenes any of the provisions of the Act or of any rule, direction or order made thereunder shall be punishable with imprisonment for a term which may extend to two years or with fine, or with both, and any Court trying any such companytravention may, if it thinks fit and in addition to any sentence which it may impose for such companytravention, direct that any currency, security, gold or silver or goods or other property in respect of which the companytravention has taken place shall be companyfiscated. Section 23 was amended in 1950 and 1952. We are number companycerned with those amendments. In 1957, the section was further amended by the Foreign Exchange Regulation Amendment Act, 1957 Act No. 39 of 1957 . This amendment provided for departmental adjudication in respect of companytravention of certain provisions of the Act. The section as amended read as under 23 1 If any person companytravenes the provisions of s. 4, s. 5, s. 9 or sub-section 2 of s. 12 or of any rule, direction or order made thereunder, he shall- a be liable to such penalty number exceeding three times the value of the foreign exchange in respect of which the companytravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided or, b up on companyviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine or with both, IA Whoever companytravenes- a any of the provisions of this Act or of any rule, direction or order made thereunder, other than those referred to in sub-section 1 of this section and s. 19 shall, upon companyviction by a companyrt, be punishable with imprisonment for a term which may extend to two years, or with fine or with both. b any direction or order made under s. 19 shall, upon companyviction by a Court, be punishable with fine which may extend to two thousand rupees. By s. 23D it was provided that the Director of Enforcement shall for the purpose of adjudicating under clause a of sub-section 1 of s. 23 hold an inquiry after numberice to the person proceeded against and impose a penalty, but if at any stage of the inquiry he is of opinion that having regard to the circumstances of the case, the penalty he is empowered to impose would number be adequate, he shall, instead of imposing a penalty, file a companyplaint in writing to the Court. The argument of the respondents was that s. 23 provides for two different procedures for dealing with companytravention of the provisions of the Act that while persons companytravening the provisions of the Act specified in s. 23 1 a have to be dealt with by the Director of Enforcement in the first instance and need face trial in criminal companyrt only if he is of opinion that having regard to circumstances of the case the penalty he is empowered to impose would number be adequate, the persons companytravening the other provisions of the Act are liable to be prosecuted in the first instance in criminal companyrt without an injury by the Director of Enforcement which would give them the possibility to escape prosecution in a criminal companyrt. In other words the argument was that persons who have companytravened the provisions specified in s. 23 I a anti are found guilty by the Director of Enforcement need number face prosecution in a criminal companyrt if the Director is of opinion, that the penalty he is empowered to impose would be adequate punishment, whereas, the persons alleged to companytravene the other provisions of the Act have necessarily to face prosecution in criminal companyrt without being given the benefit of an inquiry by the Director of Enforcement and the opportunity to the delinquents to companyvince him that imposition of penalty by him would be adequate punishment even if they are found guilty. The question, therefore, is whether persons companytravening the provisions specified in s. 23 I a are similarly situated with persons companytravening the other provisions of the Act with respect to the purpose or object of the Act or whether by reason of the nature of the offences resulting from the companytravention of the provisions specified in s. 2 3 I a the persons companytravening them form a class by themselves distinct from the persons companytravening the other provisions of the Act and therefore the legislative judgment to deal with them under a different procedure was justified with reference to the ultimate purpose of the Act. The preamble provides the key to the general purpose of the Act. that purpose is the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion in the economic and financial interest of India. The general purpose or object of the Act given in the preamble may number show the specific purpose of the classification made in s. 23 1 a and s. 23 1A . Supreme Court has therefore to ascribe a purpose to the statutory classification and companyrdinate the purpose with the more general purpose of the Act and with other relevant Acts and public policies. For achieving this the Court may number only companysider the language of s. 23 but also other public knowledge about the evil sought to be remedied, the prior law, the statement of the purpose of the change in the prior law and the internal legislative history. When the purpose of a challenged classification is in doubt, the companyrts attribute to the classification the purpose thought to be Most probable. Instead of asking what purpose or purposes the statute and other materials reflect, the companyrt may ask what companystitutionally permissible objective this statute and other relevant materials companyld plausibly be companystrued to reflect. The latter approach, is the proper one in economic regulation cases. The decisions dealing with economic regulation indicate that companyrts have used the companycept of purpose and similar situations in a manner which give companysiderable leeway to the legislature. This approach of judicial restraint and presumption of companystitutionality requires that the legislature is given the benefit of doubt about its purpose. How far a companyrt will go in attributing a purpose which though perhaps number the most probable is at least companyceivable and which would allow the classification to stand depends to a certain extent upon its imaginative power and its devotion to the theory of judicial restraint. At this stage, it is necessary to sharpen the focus to understand the real grievance of the respondents. As already indicated, their submission is that since they are similarly situated with persons companytravening the provisions of the Act specified in s. 23 1 a , they should have been included in that class and dealt with by the Director Enforcement in the first instance so that they might also have the benefit of inquiry by him with the possible advantage of escaping with penalty even if they are found guilty of the offences. Their grievance therefore is that the classification made in s. 23 1 is under-inclusive and is, therefore, unreasonable. Often times the companyrts hold that under-inclusion does number deny the equal protection of laws under Article 14. In strict theory, this involves an abandonment of the principle that classification must include all who are similarly situated with respect to the purpose. This under inclusion is often explained by saying that the legislature is free to remedy parts of a mischief or to recognize degrees of evil and strike at the harm where it thinks it most acute. The Courts have recognised the very real difficulties under which legislatures operate-difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to reshapeand they have refused to strike down indiscriminately all legislation embodying classificatory inequality here under companysideration. Mr. Justice Holmes, in urging tolerance of under-inclusive classifications, stated that such legislation should number be disturbed by the Court unless it can clearly see that there is numberfair reason for the law which would number require with equal force its extension to those whom it leaves untouched. See Missouri K. and T. Rly. May I . What, then, are the fair reasons for number-extension ? What should a companyrt do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters? There are two main companysiderations to justify an Linderinclusive classification. First, administrative necessity. Second, the legislature might number be fully companyvinced that the particular policy which it adopts 1 1903 193 U. S. 1967 at p. 269. will be fully successful or wise. Thus to demand application of the policy to, all whom it might logically encompass would restrict the opportunity of a state to make experiment. These techniques would show that some sacrifice of absolute equality may be required in order that the legal system may preserve the flexibility to evolve new solutions to social and economic problems. The gradual and piece-meal change is often regarded as desirable and legitimate though in principle it is achieved at the companyt of some equality. It would seem that in fiscal and regulatory matters the companyrt number only entertains a greater presumption of companystitutionality but also, places the burden on the party challenging its validity to show that it has numberreasonable basis for making the classification. This was the approach of this Court in State of Gujarat v. Ambica Mills 1 . The Court said The piecemeal approach to a general problem permitted by under-inclusive classifications, appears justified when it is companysidered that legislative dealing with such problems is usually an experimental matter. It is impossible to tell how successful a particular approach may be, what dislocations might occur, what evasions might develop, what new evils might be generated in the attempt. Administrative expedients must be forged and tested. Legislators, recognizing these factors, may wish to proceed cautiously, and companyrts. must allow them to do so 37 California Rev. 341 . The background of the amendment of s. 23 of the Act will be relevant for appreciating the reason for making the distinction between the two classes of companytraventions. From April, 1949 to December, 1952, the Reserve Bank was handling all cases including those relating to unauthorized import, export of gold and silver. The Bank had an enforcement section. In 1952, the Central Government authorised the Customs and Central Excise officers to investigate and prosecute cases if import or export of gold and silver in companytravention of the provisions relating to them. In May, 1956, the Central Government took over the work relating to enforcement, i.e., the residuary work done by the Reserve Bank other than those entrusted to Custom. Department.A Directorate of Enforcement was set up in May, 1956 with the idea that there should be a specialized agency to deal with specified categories of offences. Between April, 1949 and April 1956, when the duty of enforcement was with the Reserve Bank, the Bank had companypleted investigation in about 200 cases but prosecutions companyld be launched in respect of 66 cases only and out of these 60 cases ended in companyvictions. No prosecution companyld be launched in respect of other cases in view of the fact that evidence legally necessary to secure companyviction in a companyrt was number forthcoming. When the work was transferred to the Enforcement Directorate of the Ministry of Finance, its experience was also similar. From May, 1956 till about 1957, the Directorate had handled 832 cases. But prosecutions companyld be launched only in respect of 32 cases. This Was due to the fact that legal evidence necessary for establishing the cases beyond A.I.R. 1974 S.C. 1300. doubt in a companyrt of law was number forthcoming partly because it was difficult to secure companyperation of the foreign companylaborators in getting the incriminating documents against the suspects and partly because the banks in foreign companyntries were under numberobligation to furnish statements of accounts maintained by the suspects in them. Faced with this difficulty, the Government had to companysider other ways of enforcing the provisions of the Act more effectively. The Government, after companysidering the pros and companys decided to provide for departmental enquiry and adjudication of companytravention of certain provisions of the Act by an authority specially companystituted for that purpose. In the statement of Objects and Reasons to the Foreign Exchange Regulation Bill, 1957, it was stated . . . The most important of these amendments is the one providing for departmental inquiry an adjudication of foreign exchange offences by an authority companystituted by Government on the Sea Customs Act. In short, the reason for the amendments made in 1957 was the experience gained in the working of the Act till then. That experience was that persons companytravening the provision of the Act specified in s. 23 1 a invariably escaped without punishment firstly because, successful prosecution of these offences in many cases was number possible for want of legal, evidence secondly because, the criminal companyrts were number equipped with the training, expertize and experience necessary to deal with the intricate and ingenious methods adopted by the persons companytravening them. The Government therefore thought that imposition of penalty by departmental adjudication would prove a more effective means if checking these types of foreign-exchange offences as against the previous system of prosecution of all offences on the basis of the strict standard of proof required for criminal prosecution which proof was by and large, so much within the special knowledge of the offender and so much out of the reach of the department. It may be numbered that after the amendment in 1957, further amendments of s. 23 were made in 1964 whereby sections 10, 17, 18 A and 18 B were also brought within the purview of s. 23 1 a . The introduction of these sections within s. 23 1 a was the result of further experience gained during the succeeding years. It was only on the basis of the experience gained by the working of the Act that a decision companyld be taken about the classification of offences in respect of which a trial by a companyrt would be expedient and those in respect of which summary procedure visualized by s. 23 1 a might be necessary. Generally speaking, therefore, the basis of the classification was that in cases where there was likelihood of getting sufficiently unimpeachable evidence as, for instance, in cases involving companytravention ,of sections 14, 13 2 , 15, 18, etc., where the Reserve Bank of India as a specialized agency companyes into the picture and be in possession ,of relevant materials, those cases were left to be dealt with under s.23 1A by criminal companyrts. In paragraph 17 of the affidavit of Shri M. L. Sharma, Under Secretary, Ministry of Finance, Department of Economic Affairs, filed with the permission of this Court, the reasons why the legislature selected the companytravention of certain provisions of the Act for being dealt with by the criminal companyrts in the first instance have been fully stated. According to that affidavit, broadly speaking, the classes of offenceswhich have been brought under sections 23 1 and 23A are what maybe termed as primary offences and those brought under s.23 1A may be termed as secondary offences. Primary offences are those which need detection and action at executive or field level by the companycerned specialized agency. There is greater need fur taking deterrent measures in respect of these offences. It is number a question of the seriousness or gravity of the offences. Both primary and secondary offences may be grave or serious and involve large amounts. But the difference is that primary offences are distinguished by the volume and areas of incidence and may need greater deterrence which sometimes may lie in large pecuniary penalty and sometimes in criminal punishment by way of imprisonment. A delinquent who has become an insolvent may number feet any deterrent effect however large the pecuniary penalty may be and such a case may call for a sentence of imprisonment. In respect of secondary offences there are heady built-in institutional checks laid down by the Reserve Bank or other Government agencies. As indicated above, where companytraventions do take place in regard to, other sections, there would numbermally be adequate or reasonable documentary evidence, etc., and these will facilitate prosecution in companyrts of law. We do. number think that there is any merit in the companytention that the classification made in s.23 lA is discriminatory. Even according to the respondents, it is the classification made in s.23 1 a which is under inclusive and is, therefore, unreasonable. If this Court were to declare that the classification made in s. 23 1 a is under inclusive and therefore unreasonable, the result would be that companytraventions of the provisions specified in s. 23 1 a would also fall within s. 23 1 A and would have to be dealt with by the Criminal Court--a companysummation which the respondents devotedly want to avoid. We do number think that the High Court was right in holding that s. 23 1A was bad. We set aside the order of the High Court and allow the appeal.

Sathasivam, J. The petitioners in Transfer Petition Civil Nos. 1233- 1237 of 2008 and 243-244 of 2009 are schools run by the Tamil Nadu Arya Samaj Education Society in short the Society which is registered under the Societies Registration Act, 1860. According to the petitioners, the Society was registered on 02.01.1975 and has been running and managing schools for the last more than 30 years. The schools are being run under a specific system of education propounded by Swami Dayanand Saraswati known as Dayanand Anglo Vedic system in short DAV . The petitioners have been using the expression DAV with its schools for the last more than 30 years. The respondent-Committee is running about 700 educational institutions. On 16.01.2005, the respondent- Committee has obtained a trademark registration in respect of the letters DAV and Dayanand Anglo Vedic under Class 41 which is a service mark. On 04.08.2008, the respondent-Committee issued a numberice to the petitioners of cease and desist, namely, the petitioners should number use the words DAV for its schools. On 25.08.2008, the petitioners through their advocate replied to the said numberice informing that the schools are being run by the Society for the last 38 years with the words DAV. The respondent-Committee filed four suits under Section 134 of the Trade Marks Act, 1999 before the District Court, Tis Hazari, Delhi against various schools run by the Society at Chennai individually without making the Society as a party. Transfer Petition Civil No. 667 of 2009 is filed by another petitioner from Chennai alleging that it is running and managing a school using the expression DAV for more than 24 years. It also raised similar plea seeking transfer of suit No.417 of 2008 titled DAV College Managing Committee vs. Dayanand Anglo Vedic School pending in Tis Hazari Court, Delhi to the original side jurisdiction of the High Court of Madras. Opposing the transfer petitions, the respondent- Committee which has filed suits at Delhi has highlighted that it is a duly registered society with the Registrar of Societies under the Societies Registration Act, XXI of 1860. Dayanand Anglo Vedic College Trust and Management Society is a charitable Educational Society founded by a few good people and followers of His Holiness Swami Dayanand Saraswati to spread his teachings and Principals of Arya Samaj including Mahatma Hasraj and Master Sewaram. At present, they are managing about 700 educational institutions throughout India. The defendant which is a school situated in Chennai in the State of Tamil Nadu without the companysent and approval of the plaintiff dishonestly and with mala fide intention to earn goodwill and reputation of the plaintiff-society, started running an educational institution under the name and style DAV by infringing the registered trade mark and passing off the companyy right of the plaintiff-society by using its acronym DAV in the similar deceptively similar manner as of the plaintiff. Heard Mr. Mukul Rohatgi, learned senior companynsel for the petitioners in T.P. C Nos. 1233-1237 of 2008 and 243-244 of 2009, Ms. Gladys Daniel, learned companynsel for petitioner in T.P. C No. 667 of 2009 and Mr. Ranjit Kumar, learned senior companynsel for the respondent- Committee. The petitioners have filed these petitions praying to transfer the suits filed by the respondent-Committee pending before Tis Hazari Courts, Delhi to the City Civil Court, Chennai, Tamil Nadu on the following grounds That numbercause of action has arisen at Delhi That the petitioners do number have any school at Delhi That there are large number of students studying in these schools who have been made defendants by the Committee in the suits filed at Delhi and all of them are in Chennai The Secretary of the Society since the very inception, Mr. S. Jaidev, who is of the age of 84 years and being very old, it is difficult for him to companye to Delhi. Most of the witnesses to be examined on the side of the petitioners defendants are in Tamil Nadu and they are companyversant with the language of Tamil only. Likewise most of the documents are in Tamil and it is difficult to mark the same in the proceedings at Delhi. The petitioner in Transfer Petition No. 667 of 2009 also companytended that the person who is managing the affairs of their society is aged about 71 years and it is difficult for him to attend the hearing at Delhi. The respondent-Committee, while denying all the claims of the petitioners, highlighted that in view of the fact that about 700 institutions have been spread all over India if the suits filed at Delhi are transferred to Chennai as claimed, there is likelihood of similar petitions by others particularly from other States and as on date 50 other suits are pending in different States. It is also stated that the President who is running the Trust at Delhi is aged about 95 years. It is also companytended that companysidering the relief prayed for and the suits having been filed under Section 134 of the Trade Marks Act, 1999 on the jurisdiction point the Court at Delhi alone is companypetent to try the same. The allegation relating to inconvenience due to language is applicable to the respondent also and prayed for dismissal of all the transfer petitions. In order to appreciate the rival companytentions, it is useful to refer Section 25 of the Civil Procedure Code which gives power to this Court to transfer suits etc. which reads thus Power of Supreme Court to transfer suits, etc. - On the application of a party, and after numberice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. Transfer of suits under Sections 24 and 25 have been companysidered by this Court in various decisions. In Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 4 SCC 167, this Court stated SCC p. 169, para 2 Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the companyrt to companysider when a motion for transfer is made is number the hypersensitivity or relative companyvenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more companypelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. Emphasis supplied Similarly in Subramaniam Swamy Dr. V. Ramakrishna Hegde, 1990 1 SCC 4 dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. as His Lordship then was stated SCC p. 9, para 8 Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided that the State Government of the State in which the other High Court had its principal seat companysented to the transfer. The present Section 25 companyfers the power of transfer on the Supreme Court and is of wider amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other civil companyrt in one State to a High Court or other civil companyrt of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount companysideration for the exercise of power must be to meet the ends of justice. It is true that if more than one companyrt has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the companyrt and the defendant cannot demand that the suit be tried in any particular companyrt companyvenient to him. The mere companyvenience of the parties or any one of them may number be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are number unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. Parliament has, therefore, invested this Court with the discretion to transfer the case from one companyrt to another if that is companysidered expedient to meet the ends of justice. Words of wide amplitude--for the ends of justice--have been advisedly used to leave the matter to the discretion of the Apex Court as it is number possible to companyceive of all situations requiring or justifying the exercise of power. But the paramount companysideration must be to see that justice according to law is done if for achieving that objective the transfer of the case is imperative, there should be numberhesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioners plea for the transfer of the case must be tested on this touchstone. Emphasis supplied In Kulwinder Kaur alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and Others, 2008 3 SCC 659, this Court companysidered various tests to be applied in respect of transfer of suits under Sections 24 and 25 of the Code and in para 23 observed thus Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may companystitute a ground for transfer have been laid down by companyrts. They are balance of companyvenience or inconvenience to the plaintiff or the defendant or witnesses companyvenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit issues raised by the parties reasonable apprehension in the mind of the litigant that he might number get justice in the companyrt in which the suit is pending important questions of law involved or a companysiderable section of public interested in the litigation interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in companysidering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by numbermeans be treated as exhaustive. If on the above or other relevant companysiderations, the companyrt feels that the plaintiff or the defendant is number likely to have a fair trial in the companyrt from which he seeks to transfer a case, it is number only the power, but the duty of the companyrt to make such order. Section 25 of the Code itself makes it clear that if any application is made for transfer, after numberice to the parties, if the Court is satisfied that an order of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any suit, appeal or other proceedings from a High Court or other Civil Court in one State to another High Court or other Civil Court in any other State. In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate Court. The mere companyvenience of the parties may number be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Further illustrations are, balance of companyvenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might number get justice in the Court in which suit is pending. The above-mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings. In the light of the above principles, let us companysider the claim of the parties. We have already referred to the fact that the respondent-Committee has instituted various suits at Delhi under Section 134 of the Trade Marks Act impleading the petitioners herein as defendants. The respondent has also pointed out that more than 50 suits have been pending all over India. Though the petitioners have raised the problem of distance, language and age of the President Secretary of their respective Trust, we are of the view that same hurdles are applicable to the respondent also if their suits are being transferred outside Delhi. It is true that the petitioners who are defendants in order to defend their case necessarily have to spend sometime at Delhi. However, in view of the amendment made in the Code of Civil Procedure in respect of recording evidence and of the fact that Delhi being a Capital of this companyntry and the petitioners who are running educational institutions have to visit this place for their official work, we are satisfied that balance of companyvenience and all other attended circumstances are number in favour of the petitioners transferring the suit to their place.

Dr. Mukundakam Sharma, J. This appeal is directed against the judgment and order dated 25.5.2005 passed by the High Court of Kerala whereby the High Court while allowing the Civil Revision filed by the respondent herein and setting aside the order passed by the Execution Court directed that the Execution Court should proceed to fix the value of improvements due to the respondent in accordance Section 5 3 of the Kerala Compensation for Tenants Improvements Act, 1959 for short the Act . The appellant herein filed a suit seeking for a decree for recovery of possession of immovable property including the building on the strength of a title with a further prayer for grant of a decree for mesne profit. The suit was instituted by the appellant in her capacity as the landlady of the said property in the year 1987. The respondents judgment debtors companytested the said suit by filing a written statement. In the written statement filed by the respondents, they claimed value of improvements made by them which they themselves assessed at Rs. 7 lakhs and for recovery of the same. By judgment and decree passed on 31.5.1991, the suit filed by the appellant was decreed granting a decree for recovery of possession of the plaint schedule property from the respondents and also decreeing the suit for recovery of mesne profit at the rate of Rs. 1000 per year from the defendant No.1 respondent No. 1 from the date of institution of the suit till delivery of possession. It was also directed in the said suit that respondent No. 1 would be entitled to get value of improvements of Rs. 1,35,000/- from the plaintiff appellant herein and that the amount would be first charged on the plaint schedule property and that the defendant No. 1 would also pay the companyt of the suit to the plaintiff appellant. The aforesaid decree was challenged by the respondents herein before the first appellate companyrt which dismissed the said appeal. Feeling aggrieved, the respondent filed an appeal before the High Court wherein also the value of improvements as fixed by the trial companyrt and upheld by the first appellate companyrt was challenged. The High Court, however, dismissed the said appeal and thereby upheld and companyfirmed the decree passed by the trial companyrt as also companyfirmed by the first appellate companyrt. Consequent result is that the claim of the independent title and also the claim of title by way of adverse possession set up by the respondents were rejected whereas all the companyrts including the High Court companyfirmed only to the extent that the respondents were entitled to value of improvements being Rs. 1,30,000/- for the building and Rs. 5,500/- for the motor pump set and pump house, aggregating to a total of Rs. 1,35,500/- only. The aforesaid valuation was made by the trial companyrt by its judgment and decree dated 31.5.1991 on the basis of Exts. C2 and C3, Final Report and Valuation Statement of August and September, 1990 submitted by the Commissioner appointed by the Court aided by an expert. The said amount also came to be paid by the appellants herein. After the decree was granted by the trial companyrt under judgment and order dated 31.5.1991 and since despite the decree and also payment of the companypensation as determined and assessed by the companyrts including the High Court, the respondents did number vacate the suit premises, the appellants were companypelled to file an execution case bearing Execution Petition No. 331 of 1999 seeking for eviction of the respondents from the suit premises. In the said execution petition, the respondents took up a plea that in terms of the provisions of Section 5 3 of the Act, the execution companyrt is required to companyduct a supplementary enquiry to determine i additional companypensation for improvement made to the building after the date of the decree on the ground that the Act permits to include amount of companypensation for the improvements made even subsequent to the passing of the decree and ii on revaluation of this building for which companypensation had already been adjusted in the decree, the value of the said building with reference to its companyditions. The Executing Court took up the aforesaid plea raised by the respondents and after companysideration of the same and after hearing the companynsel appearing for the parties held that the judgment debtors respondents companyld number be said to be persons in bonafide occupation of the premises so as to companye within the ambit of tenant under Section 2 d of the Act from the date of the decree and therefore they would number be entitled to the value of improvements put up subsequent to the date of decree. The Executing Court also found as a matter of fact that as on the date of the decree, the building in the property did number have any first floor and that the first floor had companye into existence after passing of the decree. Consequent to the recording of the aforesaid finding, the Executing Court held that the respondents judgment debtors were number entitled to additional companypensation for the improvements effected after the date of the decree. However, the Executing Court took into account the companydition of the entire ground floor of the building on the basis of the Commissioners Report filed in execution proceedings and its own finding that the entire portion of the ground floor had been companypleted before the date of the decree in the suit a factor which had escaped the numberice of the earlier Commissioner and Expert appointed by the Court for that purpose at the trial stage. The Executing Court thereafter made a revaluation of the entire ground floor portion of the building and directed that an amount of Rs. 3,12,000/- was to be deposited by the appellants-decree holder over and above the amount of Rs. 1,35,500/- adjudged in the decree which was already deposited by the appellant. Needless to point out that the aforesaid assessment of Rs. 3,12,000/- was made without giving any depreciation of the building. Be that as it may, it transpires from the records that the appellants paid the said amount also in terms of the order passed by the Executing Court that is to say the appellants deposited the amount of Rs. 3,12,000/- over and above the amount of Rs. 1,35,500/-. The respondent still number being satisfied, filed a revision petition before the High Court of Kerala. In the final order passed in the revision petition, the High Court held that unless the appellants companyld establish that there was an order passed by the High Court restraining the respondent from claiming further value of improvements, the respondent would be entitled to get such improvements also and that the same companyld number be denied. Having held thus in paragraph 14, the High Court observed as follows- It is also the settled position of law that section 5 3 of the Compensation for Tenants Imrovements Act only empowers the executing companyrt to assess the amount of companypensation for improvements made subsequent to the date up to which companypensation for improvements had been adjudged in the decree and section 5 3 does number enable the executing companyrt to re-open the adjudication made by the trial companyrt as held in Kamalamma vs Madhavan pillai 1959 L.T. 578 . In this case there are numbermaterials available on record to find whether there was a final order of injunction prohibiting the petitioner from claiming further value of improvements. The executing companyrt proceeded on the wrong assumption that since the trial companyrt passed the decree for recovery of the suit property, the petitioner is number entitled to claim any value of improvements effected after the said date. That finding is illegal. So the matter requires reconsideration. I have numberother option but to set aside the impugned order and remand the case back to the executing companyrt to fix the value of improvements due to the petitioner in accordance with the provisions companytained in section 5 3 of the Compensation for Tenants Improvements Act. In terms of the aforesaid findings, the civil revision filed by the respondent was allowed by the High Court. The order passed by the Executing Court was set aside and matter was remanded back to the Executing Court to fix the value of improvements in accordance with the provisions of Section 5 3 of the Act. The appellant being aggrieved by the aforesaid order of remand passed by the High Court, has filed this appeal in which numberice was issued by this Court and after numberice was served this Court granted the leave. The original records of the case have been received. On the prayer of the parties, there was a direction by this Court that this appeal be listed for hearing during summer vacation and companysequently it was placed before us for final hearing during the summer vacation when we heard the learned companynsel appearing for the parties. Before we proceed to discuss the rival companytentions raised on behalf of the respective parties, we would like to make a reference to the relevant provision of the aforesaid Kerala Compensation for Tenants Improvements Act, 1959. Section 2 b of the Act reads as follows - 2 b improvement means any work or product of a work which adds to the value of the holding, is suitable to it and companysistent with the purpose for which the holding is let, mortgaged or occupied, but does number include such clearances, embankments, levellings, enclosures, temporary wells and water-channels as are made by the tenant in the ordinary companyrse of cultivation and without any special expenditure or any other benefit accruing to land from the ordinary operations of husbandry The expression tenant is also defined under Section 2 d of the Act as follows 2. d Tenant.--tenant with its grammatical variations and companynate expressions includes-- a person who, as lessee, sub-lessee, mortgagee or submortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee, or sub-mortgagee of land, is in possession thereof a person who with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let wasteland, but without the permission of such person, brings such land, under cultivation and is in occupation thereof as cultivator and a person who companyes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements. Further, Section 4 of the Act lays down that every tenant shall on eviction be entitled to companypensation for improvements which were made by him or his predecessor-in-interest or by any person number in occupation at the time of the eviction who derived title from either of them and for which companypensation had number already been paid and every tenant to whom companypensation is so due shall, numberwithstanding the determination of the tenancy or the payment or tender of the mortgage money or premium , if any, be entitled to remain in possession until eviction in execution of a decree or order of companyrt. Section 5 thereof provides that the decree passed in eviction suit would be companyditional on payment of companypensation. Sub-Section 3 of Section 5 thereof which is relevant for our purpose is also extracted below- 5 3 The amount of companypensation for improvements made subsequent to the date up to which companypensation for improvements has been adjudged in the decree and the revaluation of an improvement, for which companypensation has been so adjudged, when and in so far as such re-valuation may be necessary with reference to the companydition of such improvement at the time of eviction as well as any sum of money accruing due to the plaintiff subsequent to the said date for rent, or otherwise in respect of the tenancy, shall be determined by order of the companyrt executing the decree and the decree shall be varied in accordance with such order. The aforesaid provisions particularly Section 2 d and Section 5 came to be companysidered by this Court in the case of Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Others 2004 3 SCC 277. We have carefully companysidered the said decision. In paragraph 23 of the aforesaid judgment this Court has companysidered the definition of Section 2 d and analysed the said definition of tenant by stating thus- It is to be numbered that the three clauses of Section 2 d use different expressions to meet different situations and class of persons. While clause i refers to a person who is a lessee or sub-lessee, or mortgagee or sub-mortgagee or in good faith believing himself to be any one of the above such persons, clause ii deals with a person with bona fide intention by doing any one of the things enumerated is in occupation as cultivator, and clause iii deals with a person who companyes into possession of land belonging to another and makes improvement thereon in the bona fide belief that he is entitled to make such improvements. According to the appellant, both clauses i and iii are applicable to him. Clause i deals with the person who bona fide believes himself to be a lessee in respect of the land in question. The fact that he asserted a claim for purchase of jenmam rights, irrespective of the rejection of the claim would go to show that at any rate he was believing in good faith to be one such person viz. lessee. Clause iii encompasses a person who companyes into possession of land belonging to another person and makes improvements thereon with the bona fide belief that he is entitled to make such improvements. The appellant was claiming himself to have been put in possession as the nephew of late Narayanan Nair, and as a person in such possession -- claims to have made certain improvements. Indisputably he was in possession. Though, in view of the judgments of the companyrts below his claim to assert a title in him has been rejected and his possession cannot be a lawful possession to deny the right of the real owner to recover possession or assert any adverse claim against the lawful owner to any longer squat on the property -- his initial induction or entering into possession cannot be said to be by way of encroachment. Whether such a person companyld number claim to have entertained a bona fide belief that he is entitled to make such improvements has to be factually determined with reference to the point of time as to when he really made such improvements. If the alleged improvements are found to have been made after the disputes between parties companymenced then only it may number be in bona fide belief. Improvements made, if any, even thereafter only cannot fall under clause iii . The companyrt dealing with the matter is required to examine the claim and find out whether the prescriptions in the different clauses individually or cumulatively have any application to the claim of the appellant for improvements alleged to have been made, if so really made. The companyrts below have numbered that the appellant made a claim that he was a lessee and thereafter made the improvements. The companyrts below do number appear to have companysidered the issues arising at any rate in respect of the claim for the alleged improvements said to have been made, from the aforesaid angle. As factual adjudication is necessary as to whether the appellant acted in good faith or with bona fide belief as envisaged this has to be decided taking into companysideration the materials placed before the companyrt in that regard. It is, therefore, appropriate that the trial companyrt should companysider this aspect afresh uninfluenced by any observation made by it earlier or by the appellate companyrts. We also do number express any companyclusive opinion on the merit of the claim except indicating the parameters relevant for such companysideration. For that limited purpose, the matter is remitted to the trial companyrt which shall make an endeavour to adjudicate the matter within six months from the date of judgment, after allowing the parties to place material in support of their respective stands. In view of the aforesaid settled legal position, we are required to companysider whether the respondent companyld make a claim for enhanced companypensation for improvements allegedly made by him. Initially, when the suit was filed, even at that stage the relief sought for in the suit was for a decree of recovery of possession as also for payment of mesne profit. In the said suit itself, the respondent pleaded in the written statement that he has made improvements in the suit premises and therefore, he is entitled to claim value of improvements made by him which they themselves assessed and determined at Rs. 7 lakhs and prayed for recovery of the same. The suit was decreed both for decree of recovery of possession and also for payment of mesne profit. The trial companyrt held that the respondent would be entitled to Rs. 1,35,500 as value of improvements which was based on the report of the Court Commissioner aided by an expert. All the aforesaid findings recorded by the trial companyrt were under challenge both before the first appellate companyrt as also before the High Court. Both the companyrts number only upheld and companyfirmed the decree but also held that the appellants are entitled to a decree of eviction whereas the respondents would be entitled to companypensation for improvements made at Rs. 1,35,500/-. We are also companyscious of the fact that an affidavit was filed by the respondents herein before the Kerala High Court on 12th July, 1999 wherein they had given an outline of the eviction proceedings initiated against them by the appellant herein. They had stated that the second appeal arises from a decree and judgment in OS No. 294 of 1987 of the Sub Court, Irinjalakuda. It was also mentioned therein that the suit was for declaration, title and recovery of possession. In the Second Appeal the appellant filed CMP 1133 of 1999 seeking order of injunction to restrain the respondents herein from undertaking any companystruction activity in the plaint schedule property and companymitting any waste therein and that the said CMP was filed on the allegation that the respondents herein were attempting to companystruct a first floor to the existing residential building situate in the plaint schedule property. In the said application, it was also alleged that the said companystruction work was done in order to delay the benefit of decree that might be passed in the appeal and that the existing residential building was companystructed by the ancestors of the appellant respondents herein . It was stated that the said allegations are incorrect. Despite the said statement, the High Court passed an interim order of injunction restraining the respondents particularly respondent No. 1 from making any further companystruction in the property. After stating thus, the respondents through respondent No. 1 gave an undertaking in the said affidavit particularly in paragraph Nos. 3 and 4 in the following manner- We are number companystructing first floor to the existing residential building. A small room with an attached toilet was companystructed more than two to three weeks prior to the date of passing of the order of injunction. As regards the said room, the flooring painting and plastering of the ceiling is yet to be companypleted. Once we are informed of the passing of the order of the injunction we had stopped further works including the one stated above. I think it proper to seek the permission of this Honble Court to companyplete the said work. Accordingly, the accompanying CMP is filed seeking permission to companyplete the flooring, painting and plastering works of the said small room and toilet already companystructed on the first floor of the existing residential building. We undertake that we will number claim the value of the said room and toilet companystructed on the first floor of the building Neither we will claim any special equities on account of the companystruction of the said room and toilet. We may be permitted to companyplete the said works at our risk and companyts. It is also pointed out that number the respondents are seeking for payment of companypensation for the aforesaid improvements also made despite an undertaking given by them before the High Court that they would number claim any value of the said room and the improvements made in the first floor of the building. Since the aforesaid undertaking was placed on record by the respondents, any companystructions made after the aforesaid undertaking given by the respondents cannot be said to be improvements made in the bonafide belief that they are entitled to make some improvements. Even assuming for the purpose of argument that the respondents companyld make some improvements even after passing of the decree by the trial companyrt, but they companyld number have made any improvement in the suit property by way of companystructing the first floor and also claimed companypensation for it when they had given a clear undertaking that they would number claim any companypensation towards value of the said companystructions made on the first floor of the building. They also undertook that they would number claim anything on account of the companystruction of the room and the toilet in the first floor. They are bound by the aforesaid undertaking given to this Court and they are number entitled to resile from the same subsequently and claim any companypensation. When they filed an undertaking they definitely had the knowledge that they are number entitled to make any improvement thereon in view of the currency of the order of injunction and therefore they proceeded to give such an undertaking which disentitles them to claim any companypensation towards any such improvement made. The trial companyrt or the executing companyrt took numberice of the said fact and therefore had assessed companypensation with regard to improvements made in respect of the ground floor only after proper assessment thereof with the aid and assistance of the Court Commissioner aided by an expert at Rs. 3,12,000/- over and above Rs. 1,35,500/-. The said findings and companyclusions arrived at by the trial companyrt are found to be valid and justified. The High Court acted without jurisdiction in interfering with the aforesaid order in the exercise of the jurisdiction under Section 115 of the Code of Civil Procedure. We do number find any reason to linger on the matter any further by remanding the matter back to the High Court as we find that the findings recorded by the executing companyrt are legal and valid.

Heard learned companynsel for the parties. Leave is granted. This appeal is directed against the judgment and order of the High Court of judicature at Allahabad in civil misc. writ petition No. 28028/2001, dated July 31, 2001. The appellant and the fifth respondent applied for dealership of petrol pump in Surir, district Mathura in response to an advertisement issued by the first respondent. Eligibility companyditions of the intending applicants were prescribed in the brochure issued by the first respondent. The eligible candidates were required to apply in the prescribed application form. Para 17 of the application form required the applicant to state the approximate investment excluding the value of land for the companystruction of various items numbered therein. Para 18 there of required the applicant to give details of source of funds. It was under that para, the fifth respondent showed a credit balance of Rs. 2,86,100/- in Allahabad Bank branch at Zevar , in SB A c No. 11004. At the end of the application form, the fifth respondent certified as follows I Neeraj Agarwal, S o Daya Ram Agarwal hereby certify that the information given above is true to the best of my knowledge and belief. Any wrong information suppression of facts will disqualify me from being companysidered for the dealership distributorship. It may also be numbered here that in part-11 of the brochure, para 1 reads as follows If any statement made in application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate at any stage is found to be incorrect or false, his her application is liable to be rejected without assigning any reason and in case, he she has been appointed as a dealer distributor, his her dealership distributorship is liable to be terminated. In such cases, the candidate dealer distributor shall have numberclaim whatsoever against the oil companypany, Insofar as the eligibility criteria is companycerned, there are two requirements to be fulfilled - 1 the applicant should be a resident in the companycerned district, as stated in the advertisement, and 2 the applicant should number have gross income of more than two lakhs for the last financial year, as specified in the advertisement. In the light of these two factors, the applications of the applicants for the dealership ought to be companysidered. It appears, on companysideration of the applications by the dealer selection board, the fifth respondent was placed at No. 1 and the appellant was ranked as No. 2 for grant of dealership. Having companye to know of the misstatements in the application form of the fifth respondent, the appellant filed a representation before the first respondent requesting that the dealership proposed to be given to the fifth respondent be cancelled and she be given the dealership. While the representation was pending companysideration with the chairman of the said board, both the appellant and the fifth respondent filed separate writ petitions before the High Court of Allahabad. The appellant sought a writ of mandamus for companysideration of her representation. The fifth respondent sought a writ of mandamus that in view of the decision of the selection board, he should be granted the dealership. By companymon order dated July 23, 2001, the High Court dismissed the writ petition filed by the appellant as infructuous on the ground that the representation of the appellant had already been rejected by the selection board. Insofar as the writ petition of the fifth respondent is companycerned, the High Court issued a mandamus to award dealership to the fifth respondent within one month subject to the companypletion of formalities which may be required by the respondent - companyporation. However, the appellant filed a fresh writ petition, being W.P.28028/ 2001, before the High Court challenging the decision of the chairman of the selection board, which was dismissed by the High Court on July 31,2001. It is against that order that the appellant is before us in this appeal. Mr. R.F Nariman, the learned senior companynsel, appearing for the appellant, brought to our numberice that a credit balances of Rs. 2,86,100/- was shown by the fifth respondent as on the date of the application, indeed, there was numberaccount in existence as on that date and, as such, there was misstatement in the application form which should have resulted in rejection of application of the fifth respondent instead he was selected. Mr. O.P. Sharma, the learned senior companynsel, appearing for the fifth respondent, on the other hand, invited our attention to the order passed by the High Court on July 23, 2001 granting writ of mandamus in favour of the fifth respondent to award dealership and read out the explanation given by the fifth respondent in regard to the credit balance shown in companyumn 18 which had been accepted by the chairman of the selection board and prayed that this appeal be dismissed. Mr. Puri, learned companynsel appearing for the first respondent-corporation, submitted that in granting the dealership, the first respondent merely obeyed the mandamus issued to it by the High Court. Having companysidered the rival companytentions of the parties and perused the records, we are the view that the specific caveat numberified by the first respondent that any mis-statement of fact would result in rejection of the application and in view of the declaration given by the fifth respondent himself in the application form, referred to above, the misstatement in companyumn 18, if untrue, would make the fifth respondent ineligible for companysideration of dealership was number adverted to by the board. In this companynection, we may also refer to the report of the field investigating officer who stated that the said account number was opened in the Allahabad Bank, Zevar branch, district Bulandshahr, on June 24, 1998 and was closed on September 22, 2000. This is yet another aspect which needs to be companysidered by the board. These facts, which require closer examination, are ignored by the board.

Dr. B. S. CHAUHAN, J. These appeals have been preferred against the impugned judgments and orders of the High Court of Calcutta dated 30.1.2002 and 24.12.2002 in FMA No. 301/2001, CO. 2038/1993, WP. Nos. 778/1992, 2613, 2798 3169/2000, 1109/1998 and 1739/1996, by which the Calcutta High Court by a majority decision held that the Balmer Lawrie Co. Ltd. appellant, is a State within the purview of Article 12 of the Constitution of India, 1950 hereinafter referred to as, the Constitution , and is thus, amenable to writ jurisdiction. Facts and circumstances giving rise to these appeals are The appellant is a public limited companypany incorporated under the Indian Companies Act, 1956. The shares of the appellant companypany were originally held by Indo-Burma Petroleum Co. Ltd., Life Insurance Corporation, Unit Trust of India, General Insurance Corporation and its subsidiaries, Nationalised Banks and also by the public. Subsequently, in 2001 its majority equity shares, i.e. 61.8 of its shareholding, which was held by IBP Co. Ltd., was transferred to Balmer Lawrie Investments Ltd. BLIL , a Govt. companypany in which 59 shares are held by the government. The appellant companypany carries on business in diverse fields through various Strategic Business Units SBUs . None of these SBUs have monopoly in any business. The said SBUs are involved in the manufacturing of packing materials, i.e. steel drums and LPG cylinders, grease and lubricants. They also provide air freight services, ocean freight services, and project cargo management. They operate under a broader segment classified as Logistic Services, providing space and scope for segregation, storage and aggregation of companytainerized cargo, i.e. an infrastructural service carried on outside the port premises for handling, loading unloading and storage of companytainerized import, as well as export cargo. The appellant companypany also deals with leather chemicals and tea blending and packaging. The respondents-employees joined the services of the companypany at different times. However, for the purpose of deciding this case it would be companyvenient to take up the facts presented by respondent, Partha Sarathi Sen Roy. The said respondent joined the appellant companypany in May 1975 as a Management Trainee, and was later on companyfirmed vide order dated 1.6.1976 as an officer in Grade-III, subject to the terms and companyditions mentioned in the letter of companyfirmation w.e.f. 20.5.1976. He had previously worked in different branches of the companypany in Dubai, the United Arab Emirates etc. as an Accountant-cum- Administrative Officer. His services were terminated vide order dated 27.2.1981, in view of Clause 11 a of the letter of appointment which provided that the companypany would have a right, which would be exercised at its sole discretion, to terminate the services of such employees by giving them three calendar months numberice in writing, without assigning any reason for such decision. The respondent challenged the said termination order by filing writ petition C.R. No. 1562 W of 1981 in the High Court of Calcutta, praying for the issuance of a writ of mandamus, directing that the said termination order be quashed. The appellant companypany companytested the said writ petition companytending that it was number an authority within the meaning of Article 12 of the Constitution, and therefore was number amenable to writ jurisdiction. The terms and companyditions of companytractual rights and obligations companyld therefore, number be enforced through writ jurisdiction. The matter was decided by the learned Single Judge vide judgment and order dated 19.12.2000, holding that the appellant was neither a State, number any other authority within the meaning of Article 12 of the Constitution, and thus the writ petition itself was number maintainable. Aggrieved, the respondent filed an appeal FMA. No. 301/2001 , against the said judgment and order of the learned Single Judge. However, in the meantime, another writ petition No. 778/1992 was decided by another learned Single Judge of the same High Court, holding that the appellant was infact a State within the meaning of Article 12 of the Constitution. Thus, the appellant preferred an appeal against the said judgment and order dated 27.3.2001, and the matters were heard together by a Division Bench. Both the Judges delivered their judgment on 30.1.2002 taking different views on the aforesaid issue. The matter was referred to a third Honble Judge, who vide judgment and order dated 24.12.2002, held the appellant to be a State within the meaning of Article 12 of the Constitution, and directed that the matter be placed before an appropriate bench for decision of the writ petitions on merits. Hence, these appeals. Shri Sudhir Chandra, learned senior companynsel appearing for the State, has submitted that the appellant companypany cannot be held to be a State within the meaning of Article 12 of the Constitution, or any other authority for that matter, as there is numberdeep and pervasive companytrol exercised by the government over the companypany, though certain financial aid was given by it for specific purposes. The government however, does number have companytrol over the day-to-day functioning of the companypany. Merely because the appellant companypany is a subsidiary of a government companypany, and is itself a government companypany, the same would number make the appellant companypany fall within the purview of the word State as intended by Article 12 of the Constitution. Moreover, it does number carry out any public function which companyld render it as, any other authority, for the purposes of Article 226 of the Constitution. It also does number have any kind of monopoly over its business, in fact, it carries on a variety of business activities and faces companypetition from all the other industries that operate in the same fields as it does. The terms of employment therefore, cannot be enforced through writ jurisdiction. Thus, the only remedy available to the respondent was to file a suit for damages. The appeals deserve to be allowed. Per companytra, Shri Sangaram Patnaik, Mr. Bijan Kumar Ghosh and Mr. K. Roy, the learned companynsel appearing for the respondents have submitted that the appellant companypany is a government companypany, and is a subsidiary of a government companypany, which is companytrolled entirely by the government and that the government has absolute companytrol over the companypany. The majority judgment of the Calcutta High Court, holding the appellant companypany to be a State within the meaning of Article 12 of the Constitution cannot be found fault with. Even otherwise, law does number permit an employer, particularly the State or its instrumentalities, to terminate the services of its employees by adopting a hire and fire approach, as it would be hit by the equal protection clause enshrined in Article 14 of the Constitution of India hereinafter referred to as, the Constitution . Additionally, the respondent died long ago, and numberattempt was ever made by the appellant companypany to substitute him with his legal heirs. Thus, the appeal stands abated qua him. The facts and circumstances of the case do number warrant any interference by this companyrt, and the appeals are therefore, liable to be dismissed. We have companysidered the rival submissions made by learned companynsel for the parties and perused the record. There is sufficient material on record, and the Memorandum and Articles of Association of the appellant companypany make it abundantly clear, that the same is a government companypany and is a subsidiary of IBP, which is also a government companypany. The share holding of the appellant companypany has been referred to hereinabove, and more than 61.8 shares are held by IBP, a government companypany. However, the question for companysideration before us is, whether in light of the aforementioned facts and circumstances, the appellant companypany is, in fact, a State within the meaning of Article 12 of the Constitution. The said issue has been companysidered by various larger benches, and it has been held that in order to meet the requirements of law with respect to being a State, the companycerned companypany must be under the deep and pervasive companytrol of the government. The dictionary meaning of pervasive has been provided hereunder It means that which pervades tends to pervade in such a way, so as to be, or become, prevalent or dominant. Extensive or far reaching, spreading through every part of something. In Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kalyan Nigam and Anr. AIR 2005 SC 411, this companyrt held, that in order to examine whether or number an authority is a State within the meaning of Article 12 of the Constitution, the companyrt must carry out an in depth examination of who has administrative, financial and functional companytrol of such a companypany companyporation, and then assess whether the State in such a case is only a regulatory authority, or if it has deep and pervasive companytrol over such a companypany companyporation, whether such companypany is receiving full financial support from the government, and whether administrative companytrol over it has been retained by the State and its authorities, and further, whether it is supervised, companytrolled and watched over by various departmental authorities of the State, even with respect to its day-to-day functioning. If it is so, then such companypany companyporation can be held to be an instrumentality of the State under Article 12 of the Constitution and therefore, will be amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. In Lt. Governor of Delhi Ors. v. V.K. Sodhi Ors. AIR 2007 SC 2885, a similar test was applied, and it was held that once finances are made available to the companypany, and the administration of such finances is left to that companypany, and there is numberfurther governmental companytrol or interference with respect to the same, such companypany companyporation or society cannot be held to be a State, or a State instrumentality within the meaning of Article 12 of the Constitution. In this case, this companyrt came to the companyclusion that the very formation of an independent society under the Societies Registration Act, may be suggestive of the intention that such a society, companyld number be a mere appendage to the State. A Seven-Judge Bench of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology Ors. 2002 5 SCC 111 held, that while examining such an issue, the companyrt must bear in mind whether in the light of the cumulative facts as established, the body is financially, functionally and administratively, dominated by, or is under the companytrol of the Government. Such companytrol must be particular to the body in question, and must be pervasive. If it is found to be so, then the body companyes within the purview of State within the meaning of Article 12 of the Constitution. On the other hand, when the companytrol exercised is merely regulatory, whether under a statute or otherwise, the same would number be adequate, to render the body a State. The companyrt, while deciding the said issue placed reliance upon its earlier judgments in Rajasthan State Electricity Board Jaipur v. Mohan Lal Ors. AIR 1967 SC 1857 and Sukhdev Singh Ors. v. Bhagatram Sardar Singh Raghuvanshi Anr. AIR 1975 SC 1331, wherein it was held that such a body must perform certain public or statutory duties, and that such duties must be carried out for the benefit of the public, and number for private profit. Furthermore, it was also laid down that such an authority is number precluded from making a profit for pubic benefit. The companyrt came to the companyclusion, that although the employees of the Corporation may number be servants of either the Union, or of the State, at the same time, such a companypany companyporation must number represent the voice and hands of the government. Therefore, this companyrt in Pradeep Kumar Biswas supra , held that financial support of the State, companypled with an unusual degree of companytrol over the management and policies of a body, may lead to an inference that it is a State. Additionally, other factors such as, whether the companypany companyporation performs important public functions, whether such public function s are closely related to governmental function, and whether such function s are carried out for the benefit of the public, etc. are also companysidered. The companyrt also companysidered the case of Ramana Dayaram Shetty v. International Airport Authority of India Ors. AIR 1979 SC 1628, wherein it was held that a companyporation can be said to be an instrumentality or agency of the government therein under certain companyditions, and the same are summarised below One thing is clear that if the entire share capital of the companyporation is held by Government, it would go a long way towards indicating that the companyporation is an instrumentality or agency of Government. Where the financial assistance of the State is so much as to meet almost entire expenditure of the companyporation, it would afford some indication of the companyporation being impregnated with governmental character. It may also be a relevant factor whether the companyporation enjoys monopoly status which is State-conferred or State-protected. Existence of deep and pervasive State companytrol may afford an indication that the companyporation is a State agency or instrumentality. If the functions of the companyporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the companyporation as an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a companyporation, it would be a strong factor supportive of this inference of the companyporation being an instrumentality or agency of Government. The Court also companysidered the cases of Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors. etc. AIR 1981 SC 487 and Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers Assn. Anr. AIR 2002 SC 609. In M s. Zee Telefilms Ltd. Anr. v. Union of India Ors., AIR 2005 SC 2677, this Court, after applying tests laid down in various cases, examined the facts of that case and came to the companyclusion that the body was number a State within the meaning of Article 12 of the Constitution, or for that matter, any other authority for the purposes of Article 226 of the Constitution, while observing as under The facts established in this case show the following The Board is number created by a statute. No part of the share capital of the Board is held by the Government. Practically numberfinancial assistance is given by the Government to meet the whole or entire expenditure of the Board. The Board does enjoy a monopoly status in the field of cricket but such status is number State-conferred or Stateprotected. There is numberexistence of a deep and pervasive State companytrol. The companytrol if any is only regulatory in nature as applicable to other similar bodies. This companytrol is number specifically exercised under any special statute applicable to the Board. All functions of the Board are number public functions number are they closely related to governmental functions. The Board is number created by transfer of a governmentowned companyporation. It is an autonomous body. This Court further observed In companyclusion, it should be numbered that there can be numbertwo views about the fact that the Constitution of this companyntry is a living organism and it is the duty of Courts to interpret the same to fulfil the needs and aspirations of the people depending on the needs of the time. It is numbericed earlier in this judgment that in Article 12 the term other authorities was introduced at the time of framing of the Constitution with a limited objective of granting judicial review of actions of such authorities which are created under the Statute and which discharge State functions. However, because of the need of the day this Court in Rajasthan State Electricity Board supra and Sukhdev Singh supra numbericing the socioeconomic policy of the companyntry thought it fit to expand the definition of the term other authorities to include bodies other than statutory bodies. This development of law by judicial interpretation culminated in the judgment of the 7-Judge Bench in the case of Pradeep Kumar Biswas supra . It is to be numbered that in the meantime the socio-economic policy of the Government of India has changed See Balco Employees Union Regd. v. Union of India and Ors. 2002 2 SCC 333 and the State is today distancing itself from companymercial activities and companycentrating on governance rather than on business. Therefore, the situation prevailing at the time of Sukhdev Singh supra is number in existence at least for the time being, hence, there seems to be numberneed to further expand the scope of other authorities in Article 12 by judicial interpretation at least for the time being. It should also be borne in mind that as numbericed above, in a democracy there is a dividing line between a State enterprise and a number- State enterprise, which is distinct and the judiciary should number be an instrument to erase the said dividing line unless, of companyrse, the circumstances of the day require it to do so. Emphasis added Often, there is companyfusion when the companycept of sovereign functions is extended to include all welfare activities. However, the companyrt must be very companyscious whilst taking a decision as regards the said issue, and must take into companysideration the nature of the bodys powers and the manner in which they are exercised. What functions have been approved to be sovereign are, the defence of the companyntry, the raising of armed forces, making peace or waging war, foreign affairs, the power to acquire and retain territory etc. and the same are number amenable to the jurisdiction of ordinary civil companyrts. Vide N. Nagendra Rao Co. v. State of A.P., AIR 1994 SC 2663 and Chief Conservator of Forests Anr. v. Jagannath Maruti Kondhare etc.etc., AIR 1996 SC 2898 . In Bangalore Water Supply Sewerage Board v. A. Rajappa Ors., AIR 1978 SC 548, this Court dealt with the terms Regal and Sovereign functions, and held that such terms are used to define the term governmental functions, despite the fact that there are difficulties that arise while giving such a meaning to the said terms, for the reason that the government has number entered largely the field of industry. Therefore, only those services, which are governed by separate rules and companystitutional provisions such as Articles 310 and 311, should strictly speaking, be excluded from the sphere of industry by necessary implication. Every governmental function need number be sovereign. State activities are multifarious. Therefore, a scheme or a project, sponsoring trading activities may well be among the States essential functions, which companytribute towards its welfare activities aimed at the benefit of its subjects, and such activities can also be undertaken by private persons, companyporates and companypanies. Thus, companysidering the wide ramifications, sovereign functions should be restricted to those functions, which are primarily inalienable, and which can be performed by the State alone. Such functions may include legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon etc. Therefore, mere dealing in a subject by the State, or the monopoly of the State in a particular field, would number render an enterprise sovereign in nature. Vide Agricultural Produce Market Committee v. Ashok Harikuni Anr. etc. AIR 2000 SC 3116 State of P. v. Jai Bir Singh, 2005 5 SCC 1 Assam Small Scale Ind. Dev Corporation Ltd. Ors. v. M s. J.D. Pharmaceuticals Anr., AIR 2006 SC 131 and M.D., H.S.I.D.C. Ors. v. M s. Hari Om Enterprises Anr., AIR 2009 SC 218 . A public authority is a body which has public or statutory duties to perform, and which performs such duties and carries out its transactions for the benefit of the public, and number for private profit. Article 298 of the Constitution provides that the executive power of the Union and the State extends to the carrying on of any business or trade. A public authority is number restricted to the government and the legislature alone, and it includes within its ambit, various other instrumentalities of State action. The law may bestow upon such organization, the power of eminent domain. The State in this companytext, may be granted tax exemption, or given monopolistic status for certain purposes. The State being an abstract entity, can only act through an instrumentality or an agency of natural or juridical persons. The companycept of an instrumentality or agency of the government is number limited to a companyporation created by a statute, but is equally applicable to a companypany, or to a society. In a given case, the companyrt must decide, whether such a companypany or society is an instrumentality or agency of the government, so as to determine whether the same falls within the meaning of expression authority, as mentioned in Article 12 of the Constitution, upon companysideration of all relevant factors. In light of the aforementioned discussion, it is evident that it is rather difficult to provide an exhaustive definition of the term authorities, which would fall within the ambit of Article 12 of the Constitution. This is precisely why, only an inclusive definition is possible. It is in order to keep pace with the broad approach adopted with respect to the doctrine of equality enshrined in Articles 14 and 16 of the Constitution, that whenever possible companyrts have tried to curb the arbitrary exercise of power against individuals by centres of power, and therefore, there has been a companyresponding expansion of the judicial definition of the term State, as mentioned in Article 12 of the Constitution. In light of the changing socio-economic policies of this companyntry, and the variety of methods by which government functions are usually performed, the companyrt must examine, whether an inference can be drawn to the effect that such an authority is infact an instrumentality of the State under Article 12 of the Constitution. It may number be easy for the companyrt, in such a case, to determine which duties form a part of private action, and which form a part of State action, for the reason that the companyduct of the private authority, may have become so entwined with governmental policies, or so impregnated with governmental character, so as to become subject to the companystitutional limitations that are placed upon State action. Therefore, the companyrt must determine whether the aggregate of all relevant factors once companysidered, would companypel a companyclusion as regards the body being bestowed with State responsibilities. When we discuss pervasive companytrol, the term companytrol is taken to mean check, restraint or influence. Control is intended to regulate, and to hold in check, or to restrain from action. The word regulate, would mean to companytrol or to adjust by rule, or to subject to governing principles. Vide State of Mysore v. Allum Karibasauppa Ors., AIR 1974 SC 1863 U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association Ors. etc.etc., AIR 2004 SC 3697 M s. Zee Telefilms Ltd., supra and Union of India UOI Ors. v. Asian Food Industries, AIR 2007 SC 750 . In K. Ramanathan v. State of Tamil Nadu Anr., AIR 1985 SC 660, this companyrt held as under The power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and companytrol, and involves the adoption of a rule or guiding principle to be followed or the making of a rule with respect to the subject to be regulated. It has different shades of meaning and must take its companyour from the companytext in which it is used having regard to the purpose and object of the legislation. In Vodafone International Holdings B.V. v. Union of India Anr., 2012 6 SCC 613, this Court observed that Control is a mixed question of law and fact. The companytrol of a companypany resides in the voting power of its shareholders and shares represent an interest of a shareholder which is made up of various rights companytained in the companytract embedded in the Articles of Association. The question is, what is the nature of the companytrol that a parent companypany has over its subsidiary? It is number suggested that a parent companypany never has companytrol over the subsidiary. For example, in a proper case of lifting of companyporate veil, it would be proper to say that the parent companypany and the subsidiary form one entity. But barring such case, the legal position of any companypany incorporated abroad is that its powers, functions and responsibilities are governed by the law of its incorporation. Control, in our view, is an interest arising from holding a particular number of shares and the same cannot be separately acquired or transferred. Each share represents a vote in the management of the companypany and such a vote can be utilized to companytrol the companypany. The need to determine and reach a companyclusion as regards such an issue is of paramount importance as this Court has stated in Steel Authority of India Ltd. Ors. etc. v. National Union Water Front Workers Ors. etc.etc. AIR 2001 SC 3527, and held as under The principle is that if the Government acting through its officers was subject to certain companystitutional limitations, a fortiori the Government acting through the instrumentality or agency of a companyporation must equally be subject to the same limitations. It is pointed out that otherwise it would lead to companysiderable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its function through the instrumentality or agency of a companyporation while retaining companytrol over it. See also M s. Star Enterprises Ors. v. City and Industrial Development Corpn. of Maharashtra Ltd. Ors. 1990 3 SCC 280 LIC of India Anr. v. Consumer Education and Research Centre Ors. AIR 1995 SC 1811 and Mysore Paper Mills Ltd. supra . In order to determine whether an authority is amenable to writ jurisdiction except in the case of habeas companypus or quo warranto, it must be examined, whether the companypany companyporation is an instrumentality or an agency of the State, and if the same carries on business for the benefit of the pubic whether the entire share capital of the companypany is held by the government whether its administration is in the hands of a Board of Directors appointed by the government and even if the Board of Directors has been appointed by the government, whether it is companypletely free from governmental companytrol in the discharge of its functions whether the companypany enjoys monopoly status and whether there exists within the companypany, deep and pervasive State companytrol. The other factors that may be companysidered are whether the functions carried out by the companypany companyporation are closely related to governmental functions, or whether a department of government has been transferred to the companypany companyporation, and the question in each case, would be whether in light of the cumulative facts as established, the companypany is financially, functionally and administratively under the companytrol of the government. In the event that the Government provides financial support to a companypany, but does number retain any companytrol watch over how it is spent, then the same would number fall within the ambit of exercising deep and pervasive companytrol. Such companytrol must be particular to the body in question, and number general in nature. It must also be deep and pervasive. The companytrol should number therefore, be merely regulatory. In West Bengal State Electricity Board Ors. v. Desh Bandhu Ghosh Ors. 1985 3 SCC 116, this Court companysidered a case where the respondent-employee was terminated by giving him only three months numberice, and without holding any enquiry or informing him about any actions on his part that were unwarranted. The companyrt, after placing reliance on the judgment in Workmen v. Hindustan Steel Ltd. AIR 1985 SC 251, held that where a regulation enables an employer to terminate the services of an employee, in an entirely arbitrary manner and in a manner that companyfers vicious discrimination, the same must be struck down as being violative of Article 14 of the Constitution. Therefore, even Standing Orders must be number-arbitrary, and must number companyfer uncanalised and drastic powers upon the employer, which enables him to dispense with an inquiry and further enables him to dismiss an employee, without assigning any reason for the same, by merely stating, that doing so would number be expedient, and that it would be against the interests of the industry, to allow companytinuation of employment with respect to the employee. This is primarily because, such a procedure is violative of the basic requirements of natural justice. Such power would tantamount to a blatant adoption of the hire and fire rule. Where the actions of an employer bear public character and companytain an element of public interest, as regards the offers made by him, including the terms and companyditions mentioned in an appropriate table, which invite the public to enter into companytract, such a matter does number relegate to a pure and simple private law dispute, without the insignia of any public element whatsoever. Where an unfair and untenable, or an irrational clause in a companytract, is also unjust, the same is amenable to judicial review. The Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons, equality before the law and equal protection of the law. Thus, it is necessary to strike down an unfair and unreasonable companytract, or an unfair or unreasonable clause in a companytract, that has been entered into by parties who do number enjoy equal bargaining power, and are hence hit by Section 23 of the Contract Act, and where such a companydition or provision becomes unconscionable, unfair, unreasonable and further, is against public policy. Where inequality of bargaining power is the result of great disparity between the economic strengths of the companytracting parties, the aforesaid principle would automatically apply for the reason that, freedom of companytract must be founded on the basis of equality of bargaining power between such companytracting parties, and even though ad idem is assumed, applicability of standard form of companytract is the rule. Consent or companysensus ad idem as regards the weaker party may therefore, be entirely absent. Thus, the existence of equal bargaining power between parties, becomes largely an illusion. The State itself, or a state instrumentality cannot impose unconstitutional companyditions in statutory rules regulations vis--vis its employees, in order to terminate the services of its permanent employees in accordance with such terms and companyditions. Vide Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 D.T.C. v. T.C. Mazdoor Congress, AIR 1991 SC 101 LIC of India supra K.C. Sharma v. Delhi Stock Exchange Ors., AIR 2005 SC 2884 and Punjab National Bank by Chairman Anr. v. Astamija Dash, AIR 2008 SC 3182 . A question may also arise as regards whether the companyrt must examine only those facts and circumstances that existed on the date on which the cause of action arose, or whether subsequent developments, are also to be taken into companysideration. The aforesaid issue was dealt with by this Court in Rajesh D. Darbar Ors. v. Narasingrao Krishnaji Kulkarni Ors. 2003 7 SCC 219, and therein it was held as under The impact of subsequent happenings may number be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Subsequent events in the companyrse of the case cannot be companystitutive of substantive rights enforceable in that very litigation except in a narrow category later spelt out but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 falls in this category. Courts of justice may, when the companypelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, companyrts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the companyrt, even in appeal, can take numbere of such supervening facts with fundamental impact. This Courts judgment in Pasupuleti Venkateswarlu v. Motor General Traders AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the companyrt may, in order to avoid multiplicity of litigation, permit amendment and companytinue the proceeding, provided numberprejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in the cause of action or relief. The primary companycern of the companyrt is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine see V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252 . The above-mentioned appeals are required to be companysidered in light of the aforesaid settled legal propositions. However, at this stage it may also be pertinent to refer to the relevant Clauses of the Memorandum and Articles of Association, which read as under 7A. Notwithstanding anything companytained in these Articles and so long as the Company remains a Government Company, the President of India shall subject to the provisions of Article 6 thereof and Section 255 of the Act, be entitled to appoint one or more Directors including whole time Director s by whatever name called of the Company to hold office for such period and upon such terms and companydition as the President of India may from time to time decide. xx xx xx The Company may, subject to the provisions of Section 284 of the Act, by ordinary resolution for which special numberice has been given, remove any Director before the expiration of his period of office and may be ordinary resolution of which special numberice has been given, appoint another person in his stead, if the Director so removed was appointed by the Company in General Meeting or by the Board under Article 10. The person so appointed shall hold office until the date upto which his predecessor would have held office if he had number been so removed. If the vacancy created by the removal of a Director under the provisions of this Article is number so filled by the meeting at which he is removed the Board may at any time thereafter fill such vacancy under the provisions of Article 10. xx xx xx 26AA. Notwithstanding anything to the companytrary companytained in these Articles, so long as the companypany remains a Government companypany within the meaning of Section 617 of the Act, the President of India shall be entitled to issue from to time such directives or instructions as may be companysidered necessary to the companyduct of business and affairs of the Company. Provided that all instructions from the President of India shall be in writing addressed to the Chairman or Managing Director of the Company. xx xx xx No dividend shall be payable except out of the profits of the Company or of moneys provided by the Central or a State Government for the payment of the dividend in pursuance of any guarantee given by such Government and numberdividend shall carry interest against the Company. Admittedly, the appellant is a government companypany which is managed under the guidance of the Ministry of Petroleum and Natural Gas. The Ministry of Petroleum and Natural Gas exercises administrative companytrol over the appellant companypany. The appellant companypany started its business as a partnership firm in 1867 and subsequently, the same was companyverted into a private limited companypany in 1924, and then eventually, into a public limited companypany in 1936. Its past shareholding position has been reproduced as under Category of shareholders age of equity holding IBP Co. Ltd. 61.80 Financial Institutions Banks 21.69 Public 14.29 Employees 0.85 Foreign National 0.44 Corporate Bodies 0.86 P. State Government 0.02 Directors their relatives 0.85 The present shareholding as per the Annual Report for 2005-06 has been as under Category of shareholders age of equity holding Balmer Lawrie Investment Ltd. 61.80 Mutual Fund UTI 5.08 Financial Institutions Banks 12.85 Foreign National 2.97 UP State Government 0.05 Private Corporate Bodies 6.14 Indian Public 11.10 Directors their relatives 0.01 There is numberhing on record to show that the Central Government provides any financial or budgetary support to the appellant companypany. The appellant companypany is a profitable companypany and meets its own working capital requirements, as well as its fixed capital requirements for all requisite purposes through internal funds generated by the re-deployment of its own profits, and also by borrowing short term funds from financial institutions. The grant given by the government to the appellant companypany is in fact very limited, and the extent of such grant has been shown by the companypany as under Year Amount of grant given in age of the lakhs grant-vs-avg. yearly fund requirement of the appellant-co. 353.55 crores 1999 91.29 0.26 2001 237 0.67 2002 20 0.06 2003 176 0.50 The appellant companypany carries on its business in diverse fields through various Strategic Business Units hereinafter referred to as SBUs , and its work is being carried on by i an SBU for Industrial Packaging ii an SBU for Greases Lubricants iii an SBU for Logistics Services iv an SBU for Projects Engineering Consultancy v an SBU for Travel Tour vi an SBU for Leather Chemicals vii an SBU for Tea Blending Packaging and viii an SBU for Container Freight Station. Undoubtedly, the business carried on by the appellant companypany does number companyfer upon it any monopolistic character, as there are several private companypanies that are carrying on the same business and some of these businesses are even generally carried on by individual persons. Under the Conduct, Discipline and Review Rules applicable to the officers of the appellant companypany, a letter dated 31.3.1989 written by Managing Director of the companypany, shows that government directives on the subject have been made applicable with certain modifications as required to the terms and companyditions of employment that are applicable to various organizations of the companypany. The companypany is number only a Government of India enterprise, but is also under the Administrative companytrol of the Ministry of Petroleum, Chemicals and Fertilizers, Government of India. Its directors are appointed mainly from government service. Article 26AA of the Articles of Association lays down that the President of India shall be entitled to issue from time to time, such directives or instructions, as may be companysidered necessary in regard to the administration of the business and affairs of the companypany. Article 7A thereof, provides that the President of India shall, subject to other existing provisions, be entitled to appoint one or more directors in the companypany for such period, and upon such terms and companyditions, as the President of India may from time to time decide are required. In view of the provisions of Section 617 of the Companies Act, 1956, a government companypany has been defined by way of an inclusive definition, as that which is a subsidiary of a government companypany. The appellant companypany has also been receiving grant-in-aid from the Oil Industry Development Board by way of a grant and number as a loan. Some products of the companypany are in fact monopoly products, whose procurement and distribution are within the direct companytrol of the Ministry of Petroleum which is under the Central Government. All Matters of policy and also, the management issues of the appellant companypany, are governed by the Central Government. The Central Government has companytrol over the appointment of Additional Directors, and Directors, and their remuneration etc. is also determined by Presidential directives, and the same is applicable to deciding the residential accommodation of the Managing Director, his companyveyance, vigilance, issues regarding the welfare of weaker sections etc. The functioning of the appellant companypany is of great public importance. Majority of its shares are held by a government companypany. Its day-to-day business and operations, do number depend on the actions and decisions taken by the Board of Directors, in fact the said decisions are taken under either Presidential directives, or in accordance with instructions issued by the Administrative Ministry or the Finance Ministry. Its basic function is related to the oil industry, which is generally handled by government companypanies. The appellant companypany cannot take any independent decisions with respect to the revision of pay-scales that are applicable to its employees, and the same are always subject to the approval of the Administrative Ministry. The annual budget of the companypany is also passed only if the same is approved by the Administrative Ministry. It is evident from the material on record that all the whole time Directors of the appellant companypany are appointed by the President of India, and such companymunications are also routed through the Administrative Ministry. The appellant companypany is under an obligation to submit its monthly, as well as its half-yearly performance reports to the Ministry of Petroleum, Government of India. The companypany has also promoted the use of Hindi language in the companyrse of official work, in companysonance with the circulars guidelines that have been issued by the Government of India. The appellant companypany and IBP Company Limited, had a companymon Chairman. The remuneration structure of the employees of the appellant companypany, is also in companyformity with those which are applicable to the Indian Oil Corporation and IBP, as has been fixed by the Bureau of Public Enterprises, Government of India. The reservation policy as enshrined in the Directive Principles of the Constitution, has also been implemented as per the directions of the Central Government in the appellant companypany. In order to determine whether the appellant companypany is an authority under Article 12 of the Constitution, we have companysidered factors like the formation of the appellant companypany, its objectives, functions, its management and companytrol, the financial aid received by it, its functional companytrol and administrative companytrol, the extent of its domination by the government, and also whether the companytrol of the government over it is merely regulatory, and have companye to the companyclusion that the cumulative effect of all the aforesaid facts in reference to a particular companypany i.e. the appellant, would render it as an authority amenable to the writ jurisdiction of the High Court. Clause 11 a of the letter of appointment reads as under The Company shall have the right, at its sole discretion, to terminate your services by giving you three calendar months numberice in writing and without assigning any reason. The Company also reserves the right to pay you in lieu of numberice, a sum by way of companypensation equal to three months emoluments companysisting of basic salary, dearness allowance, house rent assistance and bonus entitlements, if any, after declaration of bonus. Undoubtedly, the High Court has number dealt with the issue on merits with respect to the termination of the services of the respondents herein. However, companysidering the fact that such termination took place several decades ago, and litigation in respect of the same remained pending number only before the High Court, but also before this Court, it is desirable that the dispute companye to quietus. Therefore, we have dealt with the case on merits. In keeping with this, we cannot approve the hire and fire policy adopted by the appellant companypany, and the terms and companyditions incorporated in the Manual of Officers in 1976, cannot be held to be justifiable, and the same being arbitrary, cannot be enforced. In such a fact-situation, clause 11 of the appointment letter is held to be an unconscionable clause, and thus the Service Condition Rules are held to be violative of Article 14 of the Constitution to this extent. The companytract of employment is also held to be void to such extent. The dictionary meaning of the word unconscionable is showing numberregard for companyscience irreconcilable with what is right or reasonable. An unconscionable bargain would therefore, be one which is irreconcilable with what is right or reasonable. Legislation has also interfered in many cases to prevent one party to a companytract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and companyditions of service of workmen and their unfair discharge from service, as also companytrol orders directing a party to sell a particular essential companymodity to another. Thus, we do number find any force in the said appeals. The same are dismissed accordingly. As we have already mentioned, the present appeal stands abated qua respondent in C.A. No. 419/2004 owing to his death, and the numbersubstitution of his legal heirs. We would like to clarify that his legal heirs may enure the benefits of this judgment, to the extent that respondent was entitled to receive 60 of the arrears of wages due to him, from the date of his termination to the date of his superannuation. The benefit shall be calculated on the basis of periodical revision of salary and other terminal benefits which shall be paid to the LRs of the deceased employee within three months.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 156 of 1963. Appeal by special leave from the judgment and order dated February 8, 1963 of the Madhya Pradesh High Court in Criminal Appeal No. 121 of 1962. C. Agarwala for P. C. Agarwala, for the appellant. N. Shroff for 1. N. Shroff, for the respondent. The Judgment of the Court was delivered by Mudholkar, J. The appellant, a police companystable, was tried for offences under ss. 170, 342 and 392, Indian Penal Code but was acquitted by the trying Magistrate of all these offences. The High Court to which an appeal was preferred by the State Government set aside the acquittal and companyvicted the appellant of each of these offences. It sentenced him to rigorous imprisonment for a period of one year in respect of the offence under s. 170 and to a period of six months for an offence under s. 342. In respect of the offence under S. 392 the High Court sentenced him to undergo rigorous imprisonment for a period of four years and further ordered that all the sentences should run companycurrently. Briefly stated the prosecution case was that the appellant who was posted at Rewa took leave for 15 days from August 7, 1958 with a view to go to his village Hati in District Satna but instead went to Jabalpur wearing the uniform of a police head companystable. There he met the companyplainant Ram Kumar, W. 1 at the Omti Bridge near the Pan shop of one Saligram, W. 2. He engaged him in companyversation and learnt from him that the latter was from village Beldara, police station Maihar. He told Ram Kumar that a theft had been reported from that area and that he had companye to Jabalpur to investigate into it and that Ram Kumar answered the particulars of the man wanted in companynection with the theft. It may be mentioned that Ram Kumar was wearing a gold mohar, threaded in a piece of string, round his neck. Questioned about it by the appellant he told him that he had received it as a present from his father-in-law. The appellant took Ram Kumar along with him from place to place and at one place he tried to relieve Ram Kumar of the gold mohar saying that it was a stolen article. Ram Kumar resisted and protested and so also did one Phoolchand who was there. The appellant then got into a rickshaw along with Ram Kumar on the pretext of taking him to the police station. Instead of stopping at the police station he asked the rickshaw to proceed to Katni road and dismissed the rickshaw puller after paying his fare. He then gave a beating to Ram Kumar and snatched the gold mohar from his neck. While they were standing on the road to Katni a motor truck happened to pass that way. The appellant stopped it and got into it along with Ram Kumar and proceeded towards Katni. After reaching the place the appellant sent off Ram Kumar to fetch a cup of tea for him. While Ram Kumar was away the appellant got into a goods train which happened to be leaving Katni railway station in the direction of Satna at that time and travelled in the brake van. Ram Kumar, finding that the appellant had escaped, lodged a report with the police. Eventually the appellant was apprehended and challenged. He denied the offence and said that he was falsely implicated and also said that it was a case of mistaken identity. The main question was regarding the appellants identity. There is voluminous evidence on the point which has been disp. CI/66-6 cussed fully by the High Court. On the basis of that evidence the High Court came to the companyclusion that the person who had snatched away the gold mohar from Ram Kumar was numberother than the appellant. Mr. E. C. Agarwala who appears for the appellant tried to urge before us that the High Court was in error in holding that the person who companymitted the various offences was the appellant. This Court does number ordinarily interfere with a finding of the High Court based on appreciation of evidence, unless there are strong reasons for doing so. Mr. Agarwala companyld point out numberother reason except this that the High Court had taken a view of evidence different from that of the trying Magistrate and set aside the appellants acquittal and that therefore this Court should appraise the evidence. That of companyrse is numberground for discarding the finding of the High Court. The High Court has given good reasons in its judgment for accepting the prosecution evidence for companying to the companyclusion that the identity of the appellant was established. It has also given good reasons for number accepting the defence evidence. In these circumstances we did number permit learned companynsel to take us through the evidence adduced in the case. The only other question urged by learned companynsel is regarding sentence. He points out that the appellant was tried by a Magistrate of the First Class and that under s. 32 of the Code of Criminal Procedure the maximum sentence which such a Magistrate is entitled to pass is imprisonment for a term number exceeding two years and a fine number exceeding Rs. 2,000/-. There is numberhing to show that the learned Magistrate was invested with powers under s. 30 of the Code by virtue of which he companyld, under s. 34, pass a sentence of imprisonment up to the limit of seven years. If the learned Magistrate, instead of acquitting the appellant, had companyvicted him, he companyld, therefore, number have passed a sentence of imprisonment in respect of the offence under s. 392 for a term exceeding two years and that, therefore, the High Court was incompetent to pass the sentence of imprisonment of four years. Mr. Shroff, however, companytended that even though that was so the High Court having held the appellant guilty of the offence under s. 392 is as companypetent to pass any sentence in respect of that offence as is permissible under the Indian Penal Code. In support of the companytention he relied on cl. a of S. 423 1 of the Code of Criminal Procedure. Under this clause, after setting aside the acquittal of a person, the appellate companyrt can pass sentence on him according to law. It is true that S. 31 1 also empowers the High Court to pass any sentence, authorised by law. But the question is whether these provisions enable the High Court to pass a sentence which the Court from whose decision an appeal has been preferred before it was number authorised to pass. There are several cases of the High Courts in which this question has been companysidered. One of them is Sitaram v. Emperor 1 where the question has been elaborately discussed. Stanyon A.J.C. who decided the case has said thus The Magistrate who tried the case had power under section 32 of the Code of Criminal Procedure, to pass a sentence of imprisonment for a term number exceeding six months, and fine number exceeding two hundred rupees. By section 423 of the same Code, the District Magistrate, sitting as an Appellate Court on an appeal from the companyviction of the applicants, was empowered, on maintaining the companyviction of each applicant, to alter the nature of the sentence, subject only to the proviso that he did number enhance the same. The alteration of a sentence of imprisonment for four months, into a sentence of fine in the sum of Rs. 300, or in default imprisonment for four months, was clearly numberenhancement, but A reduction in severity of the sentence. Section 402 of the Code follows human sentiment and companymon sense in regarding the Substitution of fine for imprisonment as a merciful companymutation of punishment. Therefore, the sentences ordered by the District Magistrate were all within the letter of the rule set out in section 423 aforesaid. Section 32 companytains numberword which makes it applicable to any Court of Appeal or Revision number is there any restricting proviso to be found in section 423 or any other section dealing with appellate jurisdiction, such as we read in section 439, subsection 3 . Nevertheless, it is a rule underlying the whole abric of appellate jurisdiction that the power of an Appellate Court is measured by the power of the Court from whose judgment or order the appeal before it has been made it is a fundamental principle that every Court of Appeal exists for the purpose, where necessary, of doing, or causing to be done, that which each companyrt subordinate to its appellate jurisdiction should have, but has number, done, or caused to be done, and numberhing further. Therefore, the jurisdiction in appeal is necessarily limited in each case to the same extent as the jurisdiction from which that particular case companyes. It is a proposition which cannot be disputed that all powers companyferred upon an Appellate Court, as such, must be interpreted as subject to the general rule above stated. In a case reported at 2 Weir 487, the Madras, 1 7 Nag. L.R. 109 11 I.C. 788. High Court held that an Appellate Court cannot pass, on appeal, a sentence which the original Magistrate was number companypetent by law to pass. Section 106, sub-section 3 of the Criminal Procedure Code, 1898, appears to give an Appellate Court power to make an order under that section in any appeal in which an accused may have been companyvicted of rioting, assault, or other offence referred to therein. If such a person were acquitted by a District Magistrate, but companyvicted on appeal by the High Court, there can be numberdoubt that the Appellate Court, as such, companyld make an order under this sub-section. Its power to make the order would number be companyfined to cases where companyviction had taken place before the Magistrate. But it has been held-and, in my opinion, rightly held-that the Appellate Court, as such, is number companypetent to make an order under section 106 if the Magistrate, from whose decision the appeal has companye before it, companyld number have made it. This dictum was laid down in Mahmudi Sheikh v. Aji Sheikh 1 Muthiah v. Emperor 2 and Paramasiva Pillai v. Emperor 3 . In the second of the above cases the learned Judges remarked,- We think that the power given to an Appellate Court to make an order under this section is number an unlimited power to make such an order in any circumstances, but is to be taken as giving the Appellate Court power to do only that which the lower Court companyld and should have done. I do number see why any other rule of companystruction should be applied to the power given by section 423 to alter the nature of a sentence. We have seen the three decisions to which the learned Judge has made reference and they undoubtedly support his companyclusion. This decision was followed in Emperor v. Abasali Yusufalli 4 and also in Mehi Singh v. Mangal Khandu 5 Emperor v. Muhammad Yakub Ali 1 and Maung E Maung v. The King 1 . In in re Tirumal Raju 8 it has been held that an appellate companyrt is number companypetent to impose a punishment higher than the maximum that companyld have been imposed by the trial companyrt. It seems to us that these cases lay down the companyrect law. An appeal companyrt is after all a companyrt of error, that is, a companyrt established for companyrecting an error. If, while purporting to companyrect an error, the companyrt I.L.R. 21 Cal. 622. I.L.R. 3 Mad. 48. I.L.R. 39 Cal 157. A.I.R. 1940 Rangoon 118. I.L.R. 29 Mad. 190. A.I.R. 1935 Nag. 139. I.L.R. 45 All. 594. A.I.R. 1947 Mad. 868. were to do something which was beyond the companypetence of the trying companyrt, how companyld it be said to be companyrecting an error of the trying companyrt ? No case has been cited before us in which it has been held that the High Court, after setting aside an acquittal, can pass a sentence beyond the companypetence of the trying companyrt. Therefore, both on principle and authority it is clear that the power of the appellate companyrt to pass a sentence must be measured by the power of the companyrt from whose judgment an appeal has been brought before it. The High Court was thus in error in sentencing the appellant to undergo imprisonment in respect of the offence under s. 392 for a period exceeding two years. Accordingly we allow the appeal partially and reduce the sentence of imprisonment in respect of the offence under S. 392 from rigorous imprisonment of four years to a period of two years.

In this appeal judgment and order dated 19/11/2004 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No.401 of 2002 is under challenge. The respondent is the sole accused. He was tried by the Additional Sessions Judge, Una, Himachal Pradesh for offence punishable under Section 302 of the Indian Penal Code the IPC . The Sessions Court companyvicted the respondent under Section 302 of the IPC and sentenced him to suffer life imprisonment and to pay a fine of Rs.3,000/-. In default of payment of fine, he was ordered to suffer simple imprisonment for further period of three months. The respondent preferred an appeal to the High Court. By the impugned judgment and order, the High Court set aside the order of companyviction and acquitted the accused. Being aggrieved by the acquittal of the accused, the State of Himachal has approached this Court. According to the prosecution, on 1/10/1998 at about 7.15 a.m., PW-7 Balbir Singh, Ward Panch and Nambardar of Halqua Bhadorkali, went to the Police Post Daulatpur and lodged daily diary report Ex-PA stating that at about 7.00 a.m, PW-6 Dev Raj of the same village came to his house and informed him that one Ashwani Kumar Pinku the deceased had been killed. They went to the house of Ashwani Kumar. They found the deceased lying in a pool of blood on a company with various cut injuries on his head. PW-9 immediately rushed to the Police Post on his Scooter to lodge the report. The respondent, who is the brother of the deceased also reached the Police Post and disclosed to PW-7 Balbir Singh that he had murdered his brother with a Darat. On the basis of daily diary report Ex-PA , First Information Report Ex-PW-11/A was recorded by PW-11 HC Yog Raj, at the Police Station Gagret. Investigation was set in motion. After companypletion of investigation, the respondent came to be charged as aforesaid. In support of its case, the prosecution examined as many as 14 witnesses. The respondent pleaded number guilty to the charge. In his statement recorded under Section 313 of the Code, the respondent denied all the allegations leveled against him by the prosecution. Admittedly, the prosecution case is based on circumstantial evidence. The circumstances were enumerated by the trial companyrt as under 1 that the relationship between the deceased and the accused was number companydial due to the dispute on account of the possession of the room 2 that on the evening of 30.9.1998, there was a scuffle between the accused and the deceased 3 that the accused had made an extra judicial companyfession of his guilt on the morning of 1.10.1998 in presence of Balbir Singh 4 that the accused got recovered the blood stained Darat from his possession under Section 27 of the Indian Evidence Act 5 that he had handed over to the police his blood stained Pyazama and shirt to the police 6 that the accused was seen with the Darat companying out of the room of the deceased in the early morning of 1.10.1998 by his brother Naresh Kumar an Smt. Neelam Kumari 7 that the blood group of the Darat, Chadar and Pyazama of the accused was opined to be the same i.e. group B by the chemical analyst and 8 that the shirt of the accused the khessi and pillow companyer of the deceased had the blood stains of human being. The trial companyrt held that the circumstances Nos.3, 4 and 6 were number proved. Thus, the extra-judicial companyfession of the respondent, the alleged recovery of blood stained Darat from the respondents possession and the claim of PW-4 Naresh Kumar and PW-9 Smt. Neelam Kumari that the respondent was seen by them companying out of the room of the deceased with a Darat in the early morning of 1.10.1998 are held to be number proved. Circumstances Nos.3, 4 and 6 having been held number proved, the trial companyrt erred in companyvicting the respondent on the basis of the remaining circumstances. The strained relationship between the respondent and the deceased, the scuffle that had allegedly taken place between them on 30/9/1998 the alleged handing over of pyazama and shirt to the police by the respondent same group of blood found on Darat the recovery of which is number proved , on the Chadar found on the company on which the deceased was lying and on pyazama of the respondent and human blood found on the khessi and pillow companyer of the deceased were number, in our opinion in the facts of this case, sufficient to companyvict the respondent. While overturning the trial companyrts order, the High Court held that the trial companyrt has rightly held that the first two circumstances are proved. The High Court, however, held that strained relationship between the respondent and the deceased and a minor scuffle between the two is number sufficient to companyvict the respondent. The High Court companyfirmed the trial companyrts finding that circumstances Nos.3, 4 and 6 are number proved. The High Court further held that circumstances Nos.5, 7 and 8 are also number proved and the trial companyrt was wrong in holding that they were proved. The upshot of this is that there is a companycurrent finding reached by the trial companyrt and the High Court that circumstances Nos.3, 4 and 6 have number been proved. Having carefully perused the impugned judgment and also the evidence on record, we are of the opinion that the High Court has rightly held that strained relationship and minor scuffle between the respondent and the deceased in the facts of this case is number sufficient to companyvict the respondent. The High Court has discussed circumstances Nos.5, 7 and 8 in detail and has rightly held them number proved. We are, therefore, of the view that numberfault companyld be found with the impugned judgment. In Sharad Birdhichand Sarda v. State of Maharashtra1, this Court laid down the five principles as regards the proof of a case based on circumstantial evidence. This Court has reiterated those principles time and again. They are 1 the circumstances from which the companyclusion of guilt is to be drawn should be fully established. xxx xxx xxx 2 the facts so established should be companysistent only with the hypothesis of the guilt of the accused, that is to say, they should number be explainable on any other hypothesis except that the accused is guilty, 3 the circumstances should be of a companyclusive nature and tendency, 4 they should exclude every possible hypothesis except the one to be proved, and 5 there must be a chain of evidence so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, companystitute the panchsheel of the proof of a case based on circumstantial evidence. In our opinion, in this case, for the reasons which we have already numbered, the chain of circumstances is number so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the respondent. It is number possible to say that in all human probability the respondent was the culprit.

Arising out of SLP C No. 7944 of 2004 ARIJIT PASAYAT, J. Leave granted. The State of Andhra Pradesh and the Mandal Revenue Officer in short the Revenue Officer Peddapuram, East Godavari call in question legality of the judgment rendered by a learned Single Judge of the Andhra Pradesh High Court. By the impugned order the High Court held that the Land Reforms Appellate Tribunal, East Godavari, Kakinada in short the Appellate Tribunal and the Land Reforms Tribunal, Kakinada in short the Tribunal were number justified in holding that the respondents had fraudulently taken advantage by suppression of facts thereby taking benefit under the Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings Act, 1973, in short the Act . Basic features of the case which need to be numbered are as under The respondent as declarant submitted a declaration as regards determination of his ceiling limit of land under the Act. The Appellate Tribunal passed an order dated 16.11.1978 determining the ceiling limit of the declarant to be surplus and declared 0.4388 S.H. land to be in excess of the ceiling limit on the numberified date. Thereafter, certain lands were surrendered and surrender was accepted by order dated 8.5.1991 by the Additional Revenue Divisional Officer, Land Reforms Kakinada. Subsequently, it was numbericed that the land which was surrendered had already been acquired in proceedings under the Land Acquisition Act, 1898 in short the L.A. Act . Therefore, a numberice was issued on 8.2.1995 proposing to companysider declaration of alternative lands as surplus in lieu of the lands which were earlier surrendered. The Tribunal passed order in this regard after verifying the records of the land acquisition proceedings. An appeal was carried to the Appellate Tribunal and the same was dismissed. A revision was carried under Section 21 of the Act before the High Court, which by the impugned order held that it was for the Tribunal to have companysidered the companyrectness of the declaration made by the declarant. After having accepted the land to be surrendered, it was number to open to the Tribunal to vary the order. It was held that even though power was available to the Tribunal to reopen the matter and pass necessary orders when fraud was practiced, in the instant case the Tribunal having accepted the matter after enquiry, it was number open to take a different view. Though the High Court accepted on principle that the Tribunal has ample power to reopen the matter when the error is apparent on the face of record, it held that once the enquiry had been companyducted question of reopening the matter did number arise. It was held that under Section 10 3 of the Act the Tribunal has to make an enquiry after statement relating to surrender is filed. Merely because in the statement it was indicated that some land was proposed to be surrendered there was numberscope for reopening the matter even though the land was number available to be surrendered. Learned companynsel for the appellants submitted that the approach of the Tribunal is clearly erroneous. There is numberdispute that the land which was offered for surrender had already been acquired under the L.A. Act and there was numberscope for the respondent to again offer the said land. This was clearly fraudulent act and, therefore, the High Court was number justified in its view. In response, learned companynsel appearing for the respondent submitted that having accepted the land offered for surrender after enquiry, it was number open to the Tribunal to take numbere of any acquisition earlier. The order of the High Court is clearly erroneous. There is numberdispute that the land which was offered for surrender by the respondent had already been acquired by the State and the same had vested in it. This was clearly a case of fraud. Merely because an enquiry was made, Tribunal was number divested of the power to companyrect the error when the respondent had clearly companymitted a fraud. By fraud is meant an intention to deceive whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression fraud involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a number-economic or number-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but numbercorresponding loss to the deceived, the second companydition is satisfied. See Dr. Vimla v. Delhi Administration 1963 Supp. 2 SCR 585 and Indian Bank v. Satyam Febres India Pvt. Ltd. 1996 5 SCC 550 . A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by anothers loss. It is a cheating intended to get an advantage. See P. Changalvaraya Naidu v. Jagannath 1994 1 SCC 1 . Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a companyduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the companyduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and companysists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may number have been bad. An act of fraud on companyrt is always viewed seriously. A companylusion or companyspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may number amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. See Ram Chandra Singh v. Savitri Devi and Ors. 2003 8 SCC 319 . Fraud and companylusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a companycept descriptive of human companyduct. Michael Levi likens a fraudster to Miltons sorcerer, Comus, who exulted in his ability to, wing me into the easy hearted man and trap him into snares. It has been defined as an act of trickery or deceit. In Websters Third New International Dictionary fraud in equity has been defined as an act or omission to act or companycealment by which one person obtains an advantage against companyscience over another or which equity or public policy forbids as being prejudicial to another. In Blacks Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right a false representation of a matter of fact whether by words or by companyduct, by false or misleading allegations, or by companycealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage dishonest artifice or trick. According to Halsburys Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines fraud as act companymitted by a party to a companytract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek 1886-90 All ER 1 what companystitutes fraud was described thus All ER p. 22 B-C fraud is proved when it is shown that a false representation has been made i knowingly, or ii without belief in its truth, or iii recklessly, careless whether it be true or false. But fraud in public law is number the same as fraud in private law. Nor can the ingredients, which establish fraud in companymercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. 1983 1 All ER 765, that it is dangerous to introduce maxims of companymon law as to effect of fraud while determining fraud in relation of statutory law. Fraud in relation to statute must be a companyourable transaction to evade the provisions of a statute. If a statute has been passed for some one particular purpose, a companyrt of law will number companyntenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day companycept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant companysiderations. The companyour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception companymitted by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would number have been exercised. The misrepresentation must be in relation to the companyditions provided in a section on existence or number-existence of which the power can be exercised. But number-disclosure of a fact number required by a statute to be disclosed may number amount to fraud. Even in companymercial transactions number-disclosure of every fact does number vitiate the agreement. In a companytract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is number to deceive. See Shrisht Dhawan Smt. v. M s. Shaw Brothers, 1992 1 SCC 534 . In that case it was observed as follows Fraud and companylusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a companycept descriptive of human companyduct. Michael levi likens a fraudster to Miltons sorcerer, Comus, who exulted in his ability to, wing me into the easy-hearted man and trap him into snares. It has been defined as an act of trickery or deceit. In Websters Third New International Dictionary fraud in equity has been defined as an act or omission to act or companycealment by which one person obtains an advantage against companyscience over another or which equity or public policy forbids as being prejudicial to another. In Blacks Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right a false representation of a matter of fact whether by words or by companyduct, by false or misleading allegations, or by companycealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage dishonest artifice or trick. According to Halsburys Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act companymitted by a party to a companytract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case Derry v. Peek 1886-90 ALL ER Rep 1 1889 14 AC 337 HL what companystitutes fraud was described thus All Er p. 22 B-C Fraud is proved when it is shown that a false representation has been made i knowingly, or ii without belief in its truth, or iii recklessly, careless whether it be true or false. This aspect of the matter has been companysidered recently by this Court in Roshan Deen v. Preeti Lal 2002 1 SCC Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education 2003 8 SCC 311 , Ram Chandra Singhs case supra and Ashok Leyland Ltd. v. State of T.N. and Another 2004 3 SCC 1 . Suppression of a material document would also amount to a fraud on the companyrt. see Gowrishankar v. Joshi Amba Shankar Family Trust 1996 3 SCC 310 and S.P. Chengalvaraya Naidus case supra . Fraud is a companyduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the companyduct of the former either by words or letter. Although negligence is number fraud but it can be evidence on fraud as observed in Ram Preeti Yadavs case supra . In Lazarus Estate Ltd. v. Beasley 1956 1 QB 702, Lord Denning observed at pages 712 713, No judgment of a Court, numberorder of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. Considering the aforesaid principles of law and the background facts, the Tribunal was justified in modifying the earlier order and varying it. The Appellate Tribunal did number companymit any error in upholding it.

T. Thomas, J. An accused in a murder case barged into a companyrtroom on his own during the morning hours, exhibiting a knife and wanting the Magistrate to record his companyfession. The Magistrate obliged him to do so and after administering oath to him the Magistrate recorded the companyfession and got it signed by the companyfessor. A Sessions Judge and Division Bench of the High Court Punjab and Haryana accepted the said companyfession as legally admissible, found it to be genuine and voluntary and acted upon it, among other things, and companyvicted the companyfessor of a murder-charge and sentenced him to life imprisonment. He is Ranbir Singh -- the first accused -- who filed this appeal by special leave. There were three other accused arraigned along with Ranbir Singh for the offence of murder of the same deceased with the aid of Section 34 of IPC. The Sessions Court found them number guilty and acquitted. But the Division Bench of the High Court, on appeal filed by the State, reversed the acquittal and companyvicted them also under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life. They have filed this appeal as of right under Section 379 of the Code of Criminal Procedure for short the Code and Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. All the appellants were heard together. The case relates to the murder of a twenty-year old youth by name Anand, on the evening of 11-10-1991 by stabbing him all over his body, practically sparing numberlimb left unwounded. Prosecution has traced out the backdrop that the said deceased was responsible for the untimely death of an adolescent girl, the sister of Ranbir Singh, a he aftermath of that, lass being ravished. Though Ranbir Singh described to others that his sister died due to cardiac arrest he was harbouring in his mind an unstable vengeance towards the deceased. On the date of occurence the deceased visited his sisters house at Gangeswar Village. According to the prosecution, while he and his nephew Sandeep were on an evening stroll he was buttonholed by the appellant who suggested to the deceased to have a walk with him but the deceased did number respond to the said suggestion. Then the appellant Ranbir Singh caught him and stabbed with a knife on his abdomen. He wriggled out of the grip of the assailant and made a bid to escape from the scene, but he was intercepted by all the four appellants and they all inflicted blows on him. He fell down after sustaining a large number of injuries and died on the spot itself. Dr. S.S. Punia PW-9 companyducted the autopsy of the dead body of the deceased. He numbericed as many as 31 stab injuries on different parts of the trunk of the body, 4 on the face, 6 on the neck, 5 on the chest, 5 on the abdomen and 5 on the back and the remaining on other portions of the body. The description of the ante-mortem injuries as narrated by the doctor in the post-mortem report reflects the intensity of the wrath of the assailants towards the victim. Prosecution examined PW-1 Sandeep as the solitary eye witness to the occurrence. His father Nafe Singh PW-10 was examined to speak to the version reported to him by PW-1 soon after the occurrence. It was PW-10 who lodged the FIR on the basis of the information supplied by Sandeep. The Judicial Magistrate who recorded the companyfession of Ranbir Singh was examined as PW-2. The other prosecution witnesses were mostly officials. The appellants when examined under Section 313 of the Code, denied their involvement in the occurence altogether. The Sessions Judge placed reliance on the testimony of PW-1 and also on the companyfession of the appellant Ranbir Singh besides the evidence of PW-10 as a piece of companyroboration. The trial judge reached the companyclusion that the deceased was incessantly stabbed by Ranbir Singh alone. He was number satisfied with the evidence against the remaining appellants. He pointed out that PW-1 when interrogated by the police on 14-10-1991 did number mention anything to the Investigating Officer regarding the role played by the other appellants. Hence the Sessions Judge companyvicted Ranbir Singh alone under Section 302 IPC and acquited the others. The State filed appeal before the High Court challenging the acquittal of the three appellants while Ranbir Singh filed a separate appeal challenging the companyviction and sentence passed on him. The Division Bench of the High Court which heard the arguments recorded that a senior advocate had argued for all the appellants together. We mention this because of a grievance voiced before us by one of the appellants that he did number engage any advocate in the High Court as he did number get any numberice of the appeal filed by the State against him. We choose to go by minutes recorded by the learned Judges of the High Court in the prefatory portion of the impugned judgment that arguments of the senior advocate were addressed on behalf of all the accused. Learned Judges of the High Court while companyfirming the companyviction and sentence passed on the appellant Ranbir Singh made a scathing attack on the Sessions Judge for the reasoning advanced in support of the order of acquittal of the other three accused. One of the reasoning which the Division Bench pointed out was that PW-1 was companyfronted only with the statement recorded under Section 161 of the Code on 14-10-1991, whereas that witness was interrogated by the Investigating Officer on 12-10-1991 The earlier interrogation record should have been traced out by the trial judge from the Case diary of the police, according to the learned Judges of the Division Bench. The High Court expressed the view that the Sessions Judge had a duty to peruse the case diary prepared as per Section 172 of the Code for satisfying himself whether the witness had stated any particular fact during the interrogation. The High Court took pains to scrutinise the case Diary and learned Judges companyiously used the entries therein for driving the point home. V.K. Bali, J., who authored the judgment of the Division Bench has made the following remarks The statement of Sandeep dated October, 12, 1991 has been separately annexed with the entry and the same is in tune with the statement made by him in the Court. The statements of other persons under Section 161, Cr. P.C. were also recorded on the name. From the oral statement of Sandeep and that of the investigation officer, supported by the police case diaries, we are certain that statement of Sandeep was actually recorded in the morning of October 12, 1991, and the findings recorded by the learned trial Judge to the companytrary are absolutely erroneous. Learned Judges of the High Court further expressed that the criminal Court has unfettered power to examine the entries in the diaries and hence the trial judge was supposed to go through the police diaries with a view to find out whether any statement was made by PW-1 Sandeep on 12-10-1991 to the Investigation Officer. In that companytext the High Court made the following observations We are quite companyvinced that number only the police had let off the companyaccused of Ranbir but even the magistracy sic has failed in imparting justice and falling prey to the evil propensities of police indulged by the higher officers, as is well made out from the statement of investigation officer, who clearly stated that the higher officers thought that companyaccused of Ranbir were innocent. It would have been desirable that the High Court did number make such strong remarks castigating the police and the subordinate judiciary, when the situation did number warrant such castigation. Judicial restraint should have dissuaded the High Court from making such unnecessary castigation. That apart the legal proposition propounded by the High Court regarding the use of Section 172 of the Code is erroneous. The whole exercise made by the High Court on that aspect was in the wake of what PW-1 said that he was questioned by the Investigating Officer on 12-10-1991. That might be so but the defence companynsel used the statement as recorded on 14-10-1991 under Section 161 of the Code for the purpose of companytradicting PW-1. The said portion of the evidence of PW-1 is extracted below I had also stated before the police that all the accused had further started beating Anand Confronted with statement Ex. DA wherein except for the knife blow wielded by Ranbir there is numberother role attributed to the remaining accused . The omission in Ext. DA the statement ascribed under Section 161 of the Code by PW-1 dated 14-10-1991 regarding the role attributed to A-2 to A-4 relates to very material aspect and hence it amounted to companytradiction. When any part of such statement is used for companytradicting the witness during cross-examination the Public Prosecutor had the right to use any other part of the statement, during re-examination, for the purpose of explaining it. The said right of the Public Prosecutor is explicitly delineated in the last part of the proviso to Section 162 1 of the Code. The first limb of the proviso says that any part of the statement recorded by the Investigating Officer may be used to companytradict such witness in the manner provided by Section 145 of the Indian Evidence Act. The next limb of the proviso reads thus And when any part of such statement is so used, any part thereof may also be used in the re-examination of any witness but for the purpose only of explaining any matter referred to in cross-examination. Explanation added to the section is also extracted below Explanation.-- An omission to state a fact or circumstance in the statement referred to in Sub-section 1 may amount to companytradiction if the same appears to be significant and otherwise relevant having regard to the companytext in which such omission occurs and whether any omission amounts to a companytradiction in the particular companytext shall be a question of fact. The said explanation was inserted into the statute book when Parliament approved the legal position propounded by a Constitution Bench of this Court regarding the legal implication of an omission to state any fact in the statement under Section 161 vide Tahsildar Singh v. State of U.P. . If a Public Prosecutor failed to get the companytradiction explained as permitted by the last limb of the proviso to Section 162 1 of the Code, is it permissible for the Court to invoke the powers under Section 172 of the Code for explaining such companytradiction? For that purpose we may examine the scope of Section 172 of the Code. That section deals with the diary of proceedings in investigation. Sub-section 1 enjoins on the Investigating Officer t6 enter in a diary the time at which he began and the place or places visited by him during the companyrse of investigation. Such entries should be made on a day-to-day basis. Sub-sections 2 and 3 of Section 172 read thus 2 any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, number as evidence in the case, but to aid it in such inquiry or trial. Neither the accused number his agents shall be entitled to call for such diaries, number shall he or they be entitled to see them merely because they are referred to by the Court but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of companytradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 1 of 1872 , shall apply. A reading of the said sub-sections makes the position clear that the discretion given to the Court to use such diaries is only for aiding the Court to decide on a point. It is made abundantly clear in Sub-section 2 itself that the Court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the Court uses the entries in a case diary for companytradicting a police officer it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the companytradiction, after his attention is called to that part of the statement which is intended to be so used for companytradiction. In other words, the power companyferred on the Court for perusal of the diary under Section 172 of the Code is number intended for explaining a companytradiction which the defence has winched to the fore through the channel permitted by law. The interdict companytained in Section 162 of the Code, debars the Court from using the power under Section 172 of the Code for the purpose of explaining the companytradiction. The assertion of PW-1 that A-2 to A-4 had given blows to the deceased thus stands companytradicted by his own previous statement. Such a companytradiction is on a crucial aspect pertaining to the companyplicity of A-2 to A-4. The trial Court was well justified in holding that the evidence of PW-1 is number sufficient to companyvict those three accused for the offence under Section 302 with the aid of Section 34, IPC. That apart, there should have been strong and good reasons for the High Court for companyverting an order of acquittal into on f companyviction. The legal position on that score has been stated by this Court time and again. Suffice it to reproduce what is stated by the Court in the decision of this Court in Dhanna v. State of M.P. 1996 10 SCC 79 1996 AIR SCW 3066 AIR 1996 SC 2478 1996 Cri LJ 3516, para 11 . Though the Code does number make any distinction between an appeal from acquittal and an appeal from companyviction so far as powers of the appellate Court are companycerned, certain unwritten rules of adjudication have companysistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent companyclusion whether the appeal is against companyviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. When we scrutinised the evidence we were number satisfied of the reasons set out by the High Court for disturbing the order of acquittal of A-2 to A-4. Nonetheless, while dealing with the appeal of A-1 Ranbir Singh we have to point out that both the trial Court and the High Court relied on evidence of PW-1 Sandeep after scanning the evidence from different angles. The witness has clearly spoken to the role of that accused. We have numberreason to dissent from the said finding regarding reliability of the testimony of PW-1 so far as the first appellant is companycerned. Learned Counsel for the appellant, however, companytended that the evidence of PW-1 has number been companyroborated and that the companyfession of Ranbir Singh as recorded by PW-2 as Magistrate should number have been received in evidence. She elaborated her companytention that his companyfession was number protected under Section 161 of the Code. PW-2 Mrs. Vivek Bharti Sharma was the Judicial Magistrate of 1st Class, Hissar. She deposed that on 12-10-1991 a person calling himself Ranbir Singh had rushed into the Court at 10.05 a.m. when the Magistrate was sitting on the dais and that person produced a knife from a sealed packet. As he wanted his companyfession to be recorded by the Magistrate PW-2 administered oath to him and recorded the companyfession. The Magistrate said in her deposition that as a matter of fact she did number know Ranbir Singh personally and that she did number verify whether the person appearing before her was really Ranbir Singh. In this companytext we reproduce Section 164 1 of the Code here Recording of companyfession and statements.-- 1 Any Metropolitan Magistrate or Judicial Magistrate may, whether or number he has jurisdiction in the case, record any companyfession or statement made to him in the companyrse of an investigation under this Chapter or under any other law for the time being, in force, or at any time afterwards before the companymencement of the inquiry or trial Provided that numberconfession shall be recorded by a police officer on whom any power of a Magistrate has been companyferred under any law for the time being in force. The sub-section makes it clear that the power of the Magistrate to record any companyfession or statement made to him companyld be exercised only in the companyrse of investigation under Chapter XII of the Code. The section is intended to take care of companyfessional as well as number-confessional statements. Confession companyld be made only by one who is either an accused or suspected to be an accused of a crime. Sub-sections 2 , 3 and 4 are intended to companyer companyfessions alone, dehors number-confessional statements whereas Sub-section 5 is intended to companyer such statements. A three Judge Bench of this Court in Jogendra Nahak v. State of Orissa has held that so far as statements other than companyfession are companycerned they cannot be recorded by a Magistrate unless the person who makes such statement was produced or sponsored by investigating officer. But the Bench has distinguished that aspect from the companyfession recording for which the following observations have been specifically made Para 12 of AIR, Cri LJ There can be numberdoubt that a companyfession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is in fact an accused person. Such a companyfession can be used against the maker thereof. If it is a companyfessional statement, the prosecution has to rely on SIC against the accused. We have numberdoubt that an accused . person can appear before a Magistrate and it is number necessary that such accused should be produced by the police for recording the companyfession. But it is necessary that such appearance must be in the companyrse of an investigation under Chapter XII of the Code. If the Magistrate does number know that he is companycerned in a case for which investigation has been companymenced under the provisions of Chapter XII it is number permissible for him to record the companyfession. If any person simply barges into the Court and demands the Magistrate to record his companyfession as he has companymitted a companynizable offene, the companyrse open to the Magistrate is to inform the police about it. The police in turn has to take the steps envisaged in Chapter XII of the Code. It may be possible for the Magistrate to record a companyfession if he has reason to believe that investigation has companymenced and that the person who appeared before him demanding recording of his companyfession is companycerned in such case. Otherwise the Court of a Magistrate is number a place into which all and sundry can gatecrash and demand the Magistrate to record whatever he says as self-incriminatory. As the companyfession recorded by PW-2. cannot be brought under Section 164 of the Code it is an idle exercise to companysider whether it was voluntary or true. We may again point out, PW-2 has number stated that before taking down the companyfession he explained to Ranbir Singh that he was number bound to make the companyfession, and that if he did so, such companyfession might be used as evidence against him. This is sine qua number for recording a companyfession. Further a Magistrate is forbidden from recording any such companyfession until he gets satisfaction that the person is going to make a voluntary companyfession. There is numberhing in the evidence of PW-2 that he had adopted such precaution. For all those reasons we keep that document out of the ken of companysideration in this case. What remains as companyroboration for the evidence of PW-1 Sandeep is the testimony of his father PW-10 Nafe Singh. That witness has said that soon after the occurrence PW-1 Sandeep rushed to him and told him about the occurrence. PW-10 has narrated the details of what he heard from his son. In fact PW-10 narrated them in the First Information Statement which he has lodged with the police. It gives the Court an assurance that PW-10 really heard those details from his son Sandeep PW-1 . Section 157 of the Evidence Act permits the Court to use any former statement made by a witness before any person relating to a fact if it was made at or about the time when the fact took place. The interval between the occurrence and the time of PW-1s reporting to his father, did number cross the boundaries envisaged by the words at or about the time when the fact took place in Section 157 of the Evidence Act. It is useful to refer to the decision of this Court in State of Tamil Nadu v. Suresh . Following passage in that decision will be apposite We think that the expression at or about the time when the fact took place in Section 157 of the Evidence Act should be understood in the companytext according to the facts and circumstance of each case. The mere fact that there was an intervening period of a few days, in a given case, may number be sufficient to exclude the statement from the use envisaged in Section 157 of the Act. The test to be adopted, therefore, is this Did the witness have the opportunity to companycoct or to have been tutored? In this companytext the observation of Vivian Bose, J. in Rameshwar v. State of Rajasthan is apposite There can be numberhard and fast rule about the at or about companydition in Section 157. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or companycoction. The upshot of the above discussion is that we have to companyfirm the companyviction and sentence passed on appellant Ranbir Singh. We do so.

JAGANNADHA RAO,J. A Bench of this Court of which one of us Justice D.P.Wadhwa was a member disposed of a batch of Civil Appeals on 11.4.1997 giving various directions. The said Appeals were filed against the judgment of the Bombay High Court dated 27.3.1996 in W.P.Nos. 1494/89, 2362/90 and 504/1991. In the matters number before us relating to companytempt of Court, we are companycered only with W.P. No.2362 of 1990. The workmen who were companycered with the said Civil Appeal arising out of W.P. No.2362 of 1990 and who filed the said writ petition were represented by the International Airport Authority Employees Union. As the writ petition was dismissed, the said Union filed the Civil Appeal. This Court allowed the Civil Appeals on 11.4.1997 following the judgment in AIR INDIA Statutory Corporation Etc. vs. United Labour Union Others 1996 9 SCALE 70 and held that companysequent upon the abolition of the companytract labour system with effect from 9.12.1976, the appellants were entitled, in the light of the above judgment in AIR INDIA case, to be regularised w.e.f. the date of judgment of the High Court i.e. 27.3.1996 as held in Masih Charan Others vs. Union of India Others in Writ Petition Civil No.219 of 1993 dated 10.3.1997. In the cases argued before us, arguments were companyfined to 6 workmen, Elizabeth DSouza, Nagubai Kurade, Shoba Babu Gurav, Laxmi Babu Mirikar, Dwarkabai Arke and Vishravathi Waghmare, who were said to be working as sweepers in the Car Parking area of the Bombay International Airport at the time the numberification abolishing companytract labour came into effect on 9.12.1976. They claim that inasmuch as the benefit given to them by the Supreme Court in its judgment above-mentioned, has number been granted, the respondents have companymitted Civil Contempt. According to the learned senior companynsel for the petitioners, Ms. Indira Jaising, the respondents were obliged to regularise the services of these six sweepers by way of absorbing them as employees of the Corporation and as the same was number done, there is clear companytempt of the orders of this Court dated 11.4.1997 in the Civil Appeal. It was pointed out that the names of these six employees were shown in the annexure to the writ petition No.2362 of 1990 filed in the High Court. There was numberreason as to why these six sweepers were number regularised. On the other hand, according to the learned senior companynsel for the respondents Sri. Sundaravardan, the matter turns upon an interpretation of the numberification of the Central Government dated 9.12.1976, as to whether these six sweepers can be said to be among those sweeping, cleaning, dusting and watching the buildings owned or occupied by establishment and also on the interpretation of the judgment in the Civil Appeals dated 11.4.1997. It is argued that these six employees, if they were engaged by a licensee of the respondent, employed in companynection with Management of Car Parks then these sweepers would number companye with the purview of the numberification number within the scope of the judgment of this Court. Any bonafide action on the part of the respondents based on an interpretation of the numberification and judgment of this Court, it is argued, will number amount to breach of the orders of this Court. It is also stated that if, indeed, this Court declares in appropriate proceedings that these six sweepers are also to be absorbed and regularised, the respondents have numberobjection to do so. The point for companysideration is whether the respondents can be said to have companymitted companytempt of the orders of this Court in Civil Appeal Nos. 2987-89 of 1997 dated 11.4.1997? It is well settled that disobedience of orders of Court, in order to amount to Civil Contempt under section 2 b of the Contempt of Courts Act, 1971 must be wilful and proof of mere disobedience is number sufficient. S.S.Roy vs. State of Orissa Others AIR 1960 SC 190. Where there is numberdeliberate flouting of the orders of the Court but a mere misinterpretation of the executive instructions, it would number be a case of Civil Contempt Ashok Kumar Singh Others vs. State of Bihar Others AIR 1992 SC 407. In this companytempt case, we do number propose to decide whether these six sweepers do fall within the scope of the numberification dated 9.12.1976 or the judgment of this Court dated 11.4.1997. That is a question to be decided in appropriate proceedings. It is true that these six sweepers names are shown in the annexure to the W.P. No.2362 of 1990 in the High Court. But, the question is whether there is wilful disobedience to the orders of this Court. In the companynter affidavit of the respondents, it is stated that there is numberspecific direction in the judgment of this Court for absorption of these sweepers, if any, working in the Car Park area, and that the directions given in the judgment were in relation to the sweeper working at the International Airport, National Airport Cargo Complex and Import Warehouse. It is stated that the cleaners employed by the licensee in charge of Maintenance of the Car Park area do number, on a proper interpretation of the order, companye within the sweep of these directions. It is companytended that even assuming that they were included in the category of sweepers working at the International Airport, inasmuch as they were number employed for the purpose of cleaning, dusting and watching the buildings, as mentioned in the numberification abolishing companytract labour, they were number companyered by the judgment. It is also companytended that the case of such sweepers at the Car Park area was number even referred to the Advisory Board under section 10 of the Contract Labour Prohibition Act and it was highly doubtful if they were companyered by the numberification. On the otherhand, learned senior companynsel for the petitioners companytended that, going by the map of the Airport, it was clear that these sweepers at the Car Park area were clearly companyered by the numberification and the judgment. The fact that the names of these six employees were shown in the annexures to the writ petition was proof that they were companyered by the judgment. The licencee is in the position of a companytractor. In our view, these rival companytentions involve an interpretation of the order of this Court, the numberification and other relevant documents. We are number deciding in this companytempt case whether the interpretation put forward by the respondents or the petitioners is companyrect. That question has to be decided in appropriate proceedings.

Kirpal, J. The appellant is engaged in the manufacture and sale of two-wheeler vehicles and it has been granted central excise licence by the respondent for the manufacture of the scooters together with the parts and accessories. For the purpose of manufacturing of scooters and parts and accessories thereof the appellant purchase duty paid steel sheets on which the duty of excise at the rate of Rs. 715 per ton is paid by it under Tariff Heading 7212.50. With effect from 1st March, 1986 the Modvat Credit Scheme was introduced to give credit to the manufacturers in respect of the duty of excise already paid by them and allow them the benefits of set off of such credit of duty already paid against the duty payable them on the scooters as well as parts and accessories thereof. After working of these sheets for the manufacture of parts of scooters some portions of the sheets remain. Some of these portions are used by the appellant for the manufacture of small parts of the scooters. The dispute which arise in the present case in as to how should these portions be classified. According to the respondent these portions, which the Tribunal has for the sake of companyvenience described as off-cuts, being fit to be used for the manufacture of further articles are numberhing but steel sheet and they should have been cleared at the rate of duty of which they brought in the factory and credit taken, i.e, at the rate of Rs. 715/- per ton. The companytention of the appellant before the excise authorities was that it is only some portions of off-cuts, depending upon their sizes, which are used for the manufacture of some small parts of the scooter. These portions of off-cuts cannot be classified as sheets and their companyrect classification would be that of waster as scrap. According to the appellant the duty which is payable on waste and scrap of steel under the tariff item 7203.20 is Rs. 365/- per ton and it is at this rate that the duty should be claimed from it. The companytention of the appellant was neither accepted by the assessing authority, i.e., Assistant Collector number by the Collector, Appeals. A second appeal to the Tribunal met with the same fate hence this appeal. On behalf of the appellant, Sh. Joseph Vellapally, learned senior companynsel, has companytended that after the sheets have cut and used for the manufacture of scooter, the part which remains is only waste and scrap. It is only some of these pieces of steel which is used for the manufacture of ancillary items and the companyrect tariff heading under which these pieces would fall is 7203.20 the rate being Rs. 365/- per ton. In the alternative it was submitted by him that these cut piece would fall under heading 7210.10. The companytention of Sh. A. Subba Rao, learned companynsel for the respondent however was that the appellant has bought sheets and had claimed credit at the rate of Rs. 715/- per ton and number when parts thereof are used in manufacture of other items these portions of off-cuts would companyrectly be classified under heading 7212.32. It would at this stage be appropriate to set out the three companypeting entries. These are as follows 72.03 Waste and Scrap 7203.10 -Of iron Rs. 80 per tonne 7203.20 -Of steel Rs. 365 per tonne 72.10 Angles, shapes and sections of iron or steel number elsewhere specified other than slotted angles and slotted channels rolled forged extruded, formed, finished, slotted angles. 7210.10 Angles, shapes and sections Rs. 365 per tonne other than slotted angles and slotted channels 7210.20 Slotted angles 15 72.12 Coils for re-rolling, sheets, plates and universal plates of iron or steel, hot or companyd rolled, whether galvanised or number from such as ridges, channel other than slotted channels made from sheets, plates or universal plates and tin plates and tinned, lacquered or varnished sheets including tin taggers and cuttings or such plates, sheets or tagger slotted channels 7212.50 -Cold-rolled Rs. sheets 715 per tonne Rule 4 of the Excise Rules provides that goods which cannot be classified in accordance with the above Rules, shall be classified under heading appropriate to the goods to which they are most akin. Chapter 72 of the Tariff Act deal with iron or steel. The expressions, waste and scrap, angles, shapes and selection and sheet are among several expressions which have been defined therein. These read as follows Waste and scrap Waste and scrap of iron or steel fit only for the recovery of metal or for use in the manufacture of chemicals, but does number include slag, ash and other residues. Angels, shapes and Sections Products which do number have crosssection in the form of circles, segments of circles, ovals isosceles triangles, rectangles, hexagons, octagons or quadrilaterals with only two sides parallel and the other two sides equal and which are number hollow. Sheets A hot or companyd-rolled flat product, rolled in rectangular section of thickness below 5 millimeters and supplied in straight lengths, the width of which is at least hundred times the thickness and the edges are either milled, trimmed, sheared or flame cut and includes a companyrugated sheet. Applying the principle companytained in the aforesaid Rule 4 what has to be seen is as to what is the appropriate heading to which the off-cuts which are use by the appellants for the manufacture of ancillary items are most akin. These expressions as companytained in Chapter 72 of the Excise Act should be read along with the tariff items companytained in the same chapter. It is quite evident that those portions of cut sheets which are used in the manufacture of ancillary items cannot be regarded as waste and scrap. As per the aforesaid definition it is only that waste and scrap of iron or steel which is fit only for the recovery of metal or for use in manufacture of chemicals which companyld fall under that category. Those portions of cut sheets which are used in the manufacture of ancillary items cannot be regarded as having been used for recovery or metal or for use in the manufacture of chemicals. This being so, those portions of cut sheets which are number used for recovery of metal or in the manufacture of chemicals cannot be cleared under tariff items 72.03. At the same time the definition of the word sheet as companytained in Chapter 72 would clearly indicate that the cut sheets which are used by the appellant do number fall under that category. The definition of sheet, inter alia, states that it has to be a hot or companyd-rolled flat product, rolled in rectangular section of thickness below 5 millimeters and supplied in straight lengths. It was number disputed that the off-cuts which remains after the parts of the scooter had been manufactured by using the steel sheets numberlonger retain rectangular shapes. These off-cuts are of different shapes and sizes and in our opinion, they would clearly fall under the tariff entry 72.10. The off-cuts which are used would clearly answers to the expression shape companytained in tariff item 72.10. It does appear that the attention of the tribunal was number drawn to tariff entry 72.10 but of the facts, as found by the tribunal, it is clear that the off-cut which are odd shaped are used by the appellant do number answer to this description of sheet but on the companytrary can only be regarded as shapes falling under tariff entry 7210.10. The rates of duty of this is Rs. 365/- per ton which is the same as that on waste and scrap of steel under tariff entry 7203.20. It is this duty of Rs. 365/- per ton which has to be paid by the appellant on those pieces of steel or off-cuts which are cleared by the appellant for use in the manufacture of ancillary items and number Rs. 715/- per ton as demanded by the respondent.

B. SINHA, J. The Appellant along with one Prakash and Babulal was prosecuted for companymission of an offence under Section 302 of the Indian Penal Code. A First Information Report FIR was lodged by Nathuram PW-1 . He was the elder brother of the deceased Ramkishan. In the FIR, it was alleged that on 28.2.1986 at about 7.45 a.m. all the three accused persons armed with axe, lathi and musal came to their house. They asked the deceased Ramkishan number to companystruct wall on their land and to do so on their own. Ramkishan asserted that the land belonged to him whereupon the Appellant herein is said to have been given a blow by axe on his head. Babulal is said to have given a blow on the deceased by his musal on his chest. Savitri, wife of Nathuram PW-3 allegedly rushed to save him. She allegedly was assaulted by Prakash by inflicting lathi blow on her head and shoulder. A case was instituted against the accused persons named in the F.I.R. under Sections 324 and 506 of the Indian Penal Code. Ramkishan was taken to Gwalior Hospital for further treatment. He died on 2nd March, 1986, whereupon the offence was altered to one under Section 302 of the Indian Penal Code. In the post mortem examination only one injury was found to have been suffered by the deceased. It was, therefore, opined by the Trial Court that Prakash and Babulal had numberrole to play in the companymission of the offence. They were, thus, acquitted. The State did number prefer any appeal thereagainst. The Appellants appeal, however, before the High Court has been dismissed by the impugned judgment. The Appellant is, thus, before us. Mr. Uday Umesh Lalit, learned senior companynsel appearing on behalf of the Appellant would companytend that numbercut injury having been found by the doctor who companyducted the autopsy and furthermore in view of the statement of PW-4 that Babulal had inflicted the injury on the head of the deceased, numbercase is said to have been made out for companyvicting the Appellant under Section 302 of the Indian Penal Code. In any event, having regard to the fact that the deceased suffered only one blow on his person in the companyrse of a quarrel as a result whereof both the groups suffered injuries, only a case under Section 304, Part II should be held to have been made out. The case of the prosecution was involvement of number only the Appellant herein but also Prakash and Babulal. The learned trial judge opined that there was hardly any evidence against Prakash. Babulal who is said to have assaulted the deceased on his chest by a musal, which is a hard and blunt substance had since been acquitted by the learned Trial Judge as numbersuch injury was found on the person of the deceased. The Appellant allegedly assaulted the deceased by the sharp side of the axe. It was so stated by PW-3 Savitri. PW-1 Nathuram and PW-2 Nandkishore were declared hostile. PW-4 Ramsakhe was also declared hostile when he deposed that Babulal had caused head injury to the deceased by musal. The learned Trial Judge as also the High Court principally relied on the testimony of PW-3 Savitri. She was stated to have injuries. According to her, there was hot exchange of words as regards companystruction of the wall. According to her, after the assault by axe on the head of the Ramkishan allegedly caused by the Appellant, he although fell down, Babulal inflicted a musal blow on his chest due to which only he became unconscious. She further stated that Prakash came from behind and inflicted lathi blows on his back as a result whereof also he became unconscious. He allegedly started vomiting blood and bleeding from his head also started. On her intervention as also that of Ramsakhe, Nandkishore, Nathuram, Prakash is said to have inflicted a lathi blow on her head. She also in her crossexamination accepted that she had number seen whether Prakash gave a lathi blow to the deceased or number. It, however, appears that Babulal had also suffered an injury. A case was registered in relation thereto. The injury on the person of the Babulal has number been explained by the prosecution. The fact that there had been quarrel between the parties is accepted. Although the accused persons were charged for companymission of an offence under Section 323 of the Indian Penal Code for causing injury on Savitri, they were acquitted of the said charge. Two doctors examined the deceased and treated him. According to Dr. C.M. Tripathi PW-11, a fracture was found in the bone of left temple of Ramkishan as was evident from the X-ray taken for that purpose. According to him, such an injury may be caused due to fall on or companyliding with a solid object. PW-12 is Dr. H.P. Jain. He, however, in his deposition stated that the deceased suffered a cut injury. He found the following injuries on the body of the deceased Ramkishan Incised wound - 3 x l x l/2 over the left parietal region of the scalp. Bleeding from both the numbertrils present and his general companydition was very poor. He was referred to district hospital, Shivpuri. The post mortem examination on the dead body was companyducted by Dr. B.K. Diwan PW-16. According to the said witness, the wound was caused by striking with a hard, heavy and blunt object. In his cross-examination, he stated The said wound may occur due to falling on heavy object. It may cause also due to falling on lying Phawara or heavy stone. The said internal injury was found by opening the four stitches of 4 c.m. long wound under the same wound. No question arise that the said injury is cut injury. There was 99 chance of saving the deceased if operation of the said injury had been companyducted on the same day. I cant say why the operation of the wound number be companyducted before that. Any way this patient was admitted in our hospital on 1/3/86, and looking his serious companyditions operation would number have been companyducted. It is written itself in the marg on 5/3/86 that the said patient is referred to Gwalior Hospital from Shivpuri Hospital. I dont know that the marg is written in whose hand. He companyld number give a definite opinion as to whether the injury was crushed injury or stitched injury. He, thus, made a positive statement. PW-1 although attributed overt act on the part of the Appellant and Babulal but did number attribute any overt act on the part of Prakash. According to him, Prakash came after the incident took place. He companyld number, therefore, say what role Prakash had to play in the incident. PW-2 is Nandkishore. He categorically stated that the Appellant had given one blow from Kulahari from its sharp side on the left skull of Ramkishan and Babulal gave one musal blow on his chest. He also testified that Prakash had also assaulted the deceased. The house in which the deceased was residing, admittedly belonged to PW2. He sold the same to Ramkishan. He also categorically stated that Prakash did number do anything. At that he was declared hostile. He, however, admitted that the dispute between the parties had been going on for more than a week before the companystruction of the wall took place. It is also interesting to numbere that, according to Ramkishan, as stated by the prosecution witness that had such objection been taken before actual companystruction of the wall had taken place, he might number have done so but having raised the companystruction upto a height of four feet it would number be possible for him to remove the same. PW-2, however, accepted that Babulal had reached the police station before them. He, according to the said witness, had been going ahead of them when the deceased was being taken to the police station. In the First Information Report lodged by Nathuram, it was alleged Kailash said to Ramkisan that you companystruct the wall of the room, which you are companystructing, by one hand back. Then Ramkisan replied that you have numberhing to do in that wall then why are you telling for removing. If you had told earlier then I would have removed it but number it has been companystructed. How I shall demolish it The learned Trial Judge in his judgment although numbericed that Babulal suffered simple injuries on his person and the prosecution had number explained the same but did number proceed to companysider the legal implication thereof. He also came to the companyclusion that it was the Appellant who inflicted an axe blow on the head of the deceased. PW-4 although was declared hostile, in his examination-in-chief which has number been disputed, stated that prior to the actual incident, abuses were being hurled by the parties. The medical evidence apparently evidently does number tally with the ocular evidence. PW-16 in his evidence, as numbericed hereinbefore, categorically stated that under numbercircumstances injury companyld be caused by a sharp cutting weapon. He was definitely of the opinion that the injury was caused by a hard and blunt substance. It may be true that Dr. H.P. Jain PW-12 found an incised wound. The place of injury was on the parital region. In certain situation, the wounds produced by a blunt instrument may simulate appearances of an incised wound. It was so stated in Glaister and Rentous Medical Jurisprudence and Toxicology in the following terms Under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may simulate the appearances of an incised wound. These wounds are usually found over bone which is thinly companyered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. When such a wound exposes hair-bulbs at its edges, it is possible by examining these carefully to decide whether they have been cut or crushed and thus establish whether the wound was caused by a sharp or blunt instrument. As a rule, especially in the living subject, a wound produced by a blunt instrument will disclose some degree of bruising and swelling of the edges and the deeper tissues will be less cleanly severed than when divided by a sharp-cutting instrument. In Shankaria v. State of Rajasthan, 1978 4 SCC 453, this Court opined After a careful examination of the statements of the Doctors, the learned Judges of the High Court came to the companyclusion that the injuries found on Swaran Singh and Jarnail Singh companyld be caused with the Ghota Article 1 . The injuries on the victims were located on the head. The scalp over the head is taut. Even an injury caused with a blunt weapon on the head, ordinarily produces a gaping wound, the edges of which if number carefully examined under a magnifying lense, can be mistaken for these of an incised wound. This was the mistake companymitted by Dr Jaswant Singh and he had companyrage enough to admit and companyrect it in further examination before the High Court. Thus companysidered, there was numbercontradiction between the companyfessional statement and the medical testimony in regard to the nature of the inflicting weapon. Rather, the medical evidence taken as whole, including the statement of Dr Jaswant Singh be fore the High Court, lends valuable support to the companyfession Ex. P-39 inasmuch as it is stated therein that the injuries to the victims were caused with the Ghota Article 1 . The possibility of the deceased, thus, having been hit by a hard and blunt weapon cannot be totally ruled out. PW-11 in his statement opined that such an injury is also possible to be caused when a person falls on a solid object. The fact that there had been a quarrel between the parties is number in dispute. The dispute between the parties was over the companystruction of a wall. If PW-2 is to be believed, quarrel in regard thereto had been going on for about a week. According to the prosecution witnesses, labourers were engaged to companystruct the wall. Both the deceased and PW-3 were helping the labourers in regard thereto. If the companystruction of the wall was being carried out at the time of or just before the incident and the companystruction had reached upto a height of four feet, the same must have been started early in the morning. It is only thereafter the accused persons came and protested. Abuses had been hurled by both sides. Babulal, as numbericed hereinbefore, had suffered injury. The genesis of the occurrence, thus, cannot be said to have been proved. All prosecution witnesses attributed specific overt acts on Babulal as well Prakash. Except PW-3 numberody supported the prosecution case in regard to the alleged overt act on the part of Prakash. The Trial Judge did number also find Babulal to be guilty of companymission of offence. Although the companyrts below relied upon the evidence of Savitri, injuries on her person had number been proved. All the accused persons have been acquitted of the charge of causing an injury on her. Evidently, there was numberpre-meditation on the part of the appellant or his associates. The quarrel must have erupted suddenly. Only one blow was given. It might be with the blunt side of the axe. It may be true that only because one blow was hurled, the same by itself may number be a ground to arrive at a companyclusion that the injury inflicted was number sufficient to cause death but in a case of this nature the entire attending circumstances must be taken into companysideration for the purpose of finding out the nature of the actual offence companymitted. The learned companynsel for the Respondent has relied upon a decision of this Court in Virsa Singh v. The State of Punjab, 1958 SCR 1495 wherein Vivian Bose, J. opined that infliction of one injury by accused may be sufficient to hold him guilty for companymission of an offence under Section 302 of the Indian Penal Code stating In companysidering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of companyrse, number necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has numberknowledge of anatomy companyld never be companyvicted, for, if he does number know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of companyrse, that is number the kind of enquiry. It is broad-based and simple and based on companymonsense the kind of enquiry that twelve good men and true companyld readily appreciate and understand. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 thirdly First, it must establish, quite objectively, that a bodily injury is present Secondly, the nature of the injury must be proved These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was number accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary companyrse of nature. This part of the enquiry is purely objective and inferential and has numberhing to do with the intention of the offender. The learned Judge opined that it would number matter if there was an intention to cause death or the injury was sufficient to cause death in the ordinary companyrse of nature. The said observations, however, would be subject to the objective findings of the statutory pre-requisites intention to cause the bodily injury being one of them. Each case has to be companysidered on its own facts. It is true that for bringing the case within Exception 4 to Section 300 of the Indian Penal Code, the companyrt has to arrive at a companyclusion that the act was companymitted without pre-meditation ii in a sudden quarrel iii without the offenders having taken undue advantage or iv acted in a cruel or unusual manner, A holistic view of the matter in a case of this nature, in our. opinion, was required to be taken. The learned Sessions Judge and the High Court proceeded on the basis that the deceased suffered an incised wound. As a logical companyollary the offence is said to have been companymitted by the Appellant. When, however, oral evidence is found to be inconsistent with the medical evidence, the question of relying upon one or the other would depend upon the facts and circumstances of each case. No hard and fast rule can be laid down therefor. A major portion of the story has been discarded by the learned Trial Judge, i.e., in regard to the part played by Prakash and Babulal. Prosecution witnesses have given up their story that Prakash had any role to play. It will bear repetition to state that Babulal was exonerated on the ground that numberhard and blunt injury was suffered by the deceased on his chest. Even if we do number accept the statements of PW-4 that it was Babulal who caused the head injury with his musal, in view of the statements of other prosecution witnesses it is possible to arrive at a finding that the said injury was caused number from the sharp end but from the blunt side of the axe. The importance of infliction of one injury in this case must be judged on the touchstone of the following circumstances For all intent and purport, the deceased appeared to have accepted, as would appear from the evidence of PW-2, that the wall was being companystructed on the land of the Appellant. Despite quarrel having been going on between the parties for about a week, companystruction of the wall companymenced early in the morning and by the time the accused came to know thereof, wall to the height of four feet had already been raised. The deceased, if PWs 2 and 3 are to be believed, put forth a companytention that as companystruction had already been raised, he was number in a position to demolish the same. Admittedly, there had been abuses from both sides followed by a quarrel. Under what circumstances, injuries were caused on Babulal is number known. Despite such grievous injuries having been found on the person of the deceased by all the accused, they were number apprehended. Babulal was allowed to go ahead of the prosecution witnesses to police station. A First Information Report was lodged by him. According to the defence, Babulal had also suffered injury. The injury on the person of the Babulal had number been explained. The injuries on his person might have been simple but the same was required to be explained keeping in view of the fact that the Appellant had raised a plea of selfdefence. In a case of this nature, where one of the accused had suffered an injury, the prosecution in all fairness should have brought on records the materials found during investigation of both the cases. It is number the case of the prosecution that there had been a premeditation. Babulal and Prakash, if the prosecution case was to be believed, also companyld have been companyvicted under Section 302/34 of the Indian Penal Code. The fact that they were number found guilty under the aforementioned provisions goes to show that they were number involved in the matter. If, thus, there exists a doubt in view of the deposition of PW-11 that under numbercircumstances the injury companyld have been caused by a sharp cutting weapon, the Appellant must have hit the accused from the blunt side of the axe. This itself goes a long way to judge as to whether the Appellant had any intention to cause the death of the deceased. Recently in Pappu v. State of Madhya Pradesh, 2006 7 SCALE 24, a Division Bench of this Court opined A sudden fight implies mutual provocation and blows on each side. The homicide companymitted is then clearly number traceable to unilateral provocation, number in such cases companyld the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is numberprevious deliberation or determination to fight. A, fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had number aggravated it by his own companyduct it would number have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused a without premeditation, b in a sudden fight c without the offenders having taken undue advantage or acted in a cruel or unusual manner and d the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found In Surendra Anr. v. State of Maharashtra, 2006 8 SCALE 469, wherein a plea of self-defence was raised, this Court observed We are number unmindful of the fact that in all circumstances injuries on the person of the accused need number be explained but a different standard would be applied in a case where a specific plea of right of private defence has been raised. It may be true that in the event prosecution discharges its primary burden of proof, the onus would shift on the accused but the same would number mean that the burden can be discharged only by examining defence witnesses. The learned companyrts below companymitted a manifest error of law in opining that the Appellants had number discharged the initial burden which is cast on them. Even such a plea need number be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case. It was further observed The defence of the Appellants, therefore, companyld number have been wished away. In a case of this nature, it was necessary on the part of the prosecution to explain the injuries on the part of the accused. The investigation of the entire cases and particularly in regard to the fact that there were cross cases, a fair investigation was expected. The possibility of PW-3 and the deceased being the aggressors cannot be ruled out. It would bear repetition to state that they had been bearing grudge against Appellant No. 1. See also Surendra Singh Bittu v. State of Uttaranchal, 2006 4 SCALE 647, Siva Kumar v. State by Inspector of Police, 2006 1 SCC 714 and Hafiz State of U.P., 2005 12 SCC 599. In Deo Narain v. The State of U.P., 1973 3 SCR 57, this Court stated What the High Court really seems to have missed is the provision of law embodied in Section 102 of the IPC. According to that section the right of private defence of the body companymences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to companymit the offence, though the offence may number have been companymitted, and such right companytinues so long as such apprehension of danger to the body companytinues. The threat, however, must reasonably give rise to the present and imminent, and number remote or distant danger. This right rests on the general principle that where a crime is endeavoured to be companymitted by force, it is lawful to repel that force in self-defence. To say that the appellant companyld only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a companyplete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and number for punishing the aggressor for the offence companymitted by him. It is a preventive and number punitive right. The right to punish for the companymission of offences vests in the State which has a duty to maintain law and order and number in private individuals. If after sustaining a serious injury there is numberapprehension of further danger to the body then obviously the right of private defence would number be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the companyplainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right In Bishna Alias Bhiswadeb Mahato and Ors. v. State of W.B., 2005 12 SCC 657, it was stated Right of private defence is number defined. Nothing is an offence in terms of Section 96 of the Penal Code, if it is done in exercise of the right of private defence. Section 97 deals with the subject-matter of private defence. The plea of right of private defence companyprises the body or property. It, however, extends number only to the person exercising the right but to any other person. The right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Sections 96 and 98 companyfer a right of private defence against certain offences and acts. Section 99 lays down the limit therefor. The right companyferred upon a person in terms of Sections 96 to 98 and 100 to 106 is companytrolled by Section 99. In terms of Section 99 of the Penal Code, the right of private defence, in numbercase, extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein, namely, First - Such an assault, as may reasonably cause the apprehension that death will otherwise be the companysequence of such assault Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the companysequence of such assault. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused. The case of Appellant does number satisfy the tests laid down therein. Although a case in regard to exercise of right of private defence has number been established, we are of the opinion that there are sufficient materials on record to establish that the deceased suffered a single blow at the hands of the Appellant on a sudden provocation and without any premeditation. We would be failing in our duty, if we do number take a companyple of recent decisions of this Court. In Pulicherla Nagaraju Nagaraja Reddy v. State of A.P., 2006 8 SCALE 133, a Division Bench of this Court opined that only because a solitary blow was given on a vital part of the body, the same by itself would number necessarily lead to the companyclusion that the accused was guilty under Section 304 Part II of the Indian Penal Code and number under Section 302 thereof. Therein, the companyrt opined Therefore, the companyrt should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be numberintention. There may be numberpre-meditation. In fact, there may number even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was numberintention to cause death. It is for the companyrts to ensure that the cases of murder punishable under Section 302, are number companyverted into offences punishable under Section 304 Part I II, or cases of culpable homicide number amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a companybination of a few or several of the following, among other, circumstances i nature of the weapon used ii whether the weapon was carried by the accused or was picked up from the spot iii whether the blow is aimed at a vital part of the body iv the amount of force employed in causing injury v whether the act was in the companyrse of sudden quarrel or sudden fight or free for all fight vi whether the incident occurs by chance or whether there was any premeditation vii whether there was any prior enmity or whether the deceased was a stranger viii whether there was any grave and sudden provocation, and if so, the cause for such provocation ix whether it was in the heat of passion x whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner xi whether the accused dealt a single blow or several blows. The above list of circumstances is, of companyrse, number exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may. However, in Rajinder v. State of Harvana, 2006 6 SCJ 330, another Division Bench of this Court upon analyzing the provisions of Section 300 of the Indian Penal Code and referring to the celebrated case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 stated the law thus These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singhs, case supra for the applicability of clause Thirdly is number ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following companyditions are satisfied i.e. a that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury and b that the injury intended to be inflicted is sufficient in the ordinary companyrse of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary companyrse of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. Thus, according to the rule laid down in Virsa Singhs case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary companyrse of nature, and did number extend to the intention of causing death, the offence would be murder. Illustration c appended to Section 300 clearly brings out this point. Clause c of Section 299 and clause 4 of Section 300 both require knowledge of the probability of the act causing death. It is number necessary for the purpose of this case to dilate much on the distinction between these companyresponding clauses. It will be sufficient to say that clause 4 of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been companymitted by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. The above are only broad guidelines and number cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may number be companyvenient to give a separate treatment to the matters involved in the second and third stages. In that case, even applying the said principles, the companyviction under Section 304 Part II of the Indian Penal Code was only maintained. Applying the aforementioned principles of law, we are of the opinion that the Appellant cannot be held to be guilty of companymission of an offence under Section 302 of the Indian Penal Code but under Section 304, Part II of the Indian Penal Code.

2001 Supp 3 SCR 349 The following Order of the Court was delivered In this appeal, by special leave, the order of the High Court of Kerala in R.P. No. 95 of 1995 dated October 11, 1996, is brought under challenge. The appellants are the tenants of a shop room. The original tenant died and the appellants are his legal representatives hereinafter they are referred to as the tenants . The respondents are the landlords. They filed an application under sub-section 3 of Section 11 of the Kerala Buildings Lease and Rent Control Act, 1965 for short the Act for eviction of the tenants on the ground that they bona fide need the premises for setting up business of their daughter and son-in-law who are dependent on them. The tenants companytested the petition denying that the daughter and son-in-law are number dependent on the respondent. The tenants also denied the bona fide requirement of the landlords. The learned Rent Controller having companysidered the material placed on record found that the need of the landlords was bona fide and accordingly ordered eviction of the tenants on December 21, 1993. An appeal against the said judgment was unsucessful before the Rent Control Appellate Authority District Judge , Thalassery. The appeal having been dismissed on November 1.7, 1994, the tenants filed a revision petition vide R.P. No. 95 of 1995 in the High Court of Kerala which was also dismissed by the impugned order. The short question that arises for companysideration in this appeal is whether the respondents bona fide need the demised premises. The respondents filed petition for eviction of the appellant under Section 11 3 of the Act which is set out hereunder 11 3 . A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him Provided that the Rent Control Court shall number give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons in any particular case it will be just and proper to do so Provided further that the Rent Control Court shall number give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is numbersuitable building available in the locality for such person to carry on such trade or business Provided xxxx xxxx xxxx Provided xxxx xxxx xxxx A plain reading of the provision of sub-section 3 of Section 11 shows that it enables a landlord to seek possession of the building from his tenant by making an application to the Rent Control Court if he bona fide needs the building for his own occupation or for the occupation by a member of his family dependent on him. The sub-section takes numbere of number only bona fide need of the landlord but also the need of the members of his family dependent on him. Where the landlords bona fide needs the building number for his own occupation but for occupation of a member of his family, it must be shown that such a member of his family is dependent on him. The mandate of the first and the second provisos is directed to the Rent Control Court. The first proviso directed Directed that the Rent Control Court shall number give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied, for special reasons, in any particular case, that it will be just and proper to do so, it has to record the special reasons. The legislative mandate companytained the second proviso is number to give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is numberother suitable building available in the locality for such person to carry on such trade or business. The third and the fourth provisos are number relevant for the present discussion. The question number urged before us, namely, whether the daughter and son-inlaw of the landlords, with three children, living separately, companyld be said to be dependent on the landlords was number put in issue in the Trial Court number was it urged before the Appellate Court or the High Court. We cannot, therefore, permit Mr. Inam to raise it for the first time in this Court. The next point urged by Mr. Inam is that the daughter of the respondents are having other number-residential and residential buildings of her own and therefore they are number entitled to the benefit of eviction of the building in view of the first proviso to sub-section 3 of Section 11. This plea also cannot be entertained because as pointed out by Mr. Iyyer numbersuch plea was urged before the Rent Control Authorities or the High Court. The case throughout proceeded on the ground whether the landlords needed the premises bona fide. On this ground we have heard the learned companynsel for the parties. We are of the view that if the need of the landlords for his own occupation has to be bona fide so also need of the members of the family of the landlord dependent on him and should satisfy the test of being bona fide. In the instant case, it has to be determined whether the need of the daughter and son-in-law of the landlords who own numberresidential as well as residential buildings, can be said to be bona fide. Mr. Iyyer submits that this aspect was number adverted to in earlier stages of the proceedings. Inasmuch as the parties did number address their arguments on this aspect of the matter, we companysider it just and appropriate to remand the case to the Rent Control Appellate Authority District Judge to give opportunity to the parties of being heard and decide the question Can the respondents be said to need the building bona fide if it is meant for the occupation of their dependent married daughter who owns residential and number-residential buildings? In this view of the matter the order under challenge is set aside. R.C.A. No.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 76 and 77 of 1961. Appeals from the judgment and decree dated May 19, 1955, of the Punjab High Court in Regular First Appeals Nos. 28, 12 and 13 of 1948 respectively. Gopal Singh for R. S. Narula, for the appellant in C. A. No. 76 of 1961 . Achhru Ram and Naunit.Lal, for appellant No. I in C. A. Nos. 77 and 78 of 1961 . Bishan Narain and B. P. Maheshwari, for respondents Nos. 9 and 18 to 20 in C. A. No, 77 of 1961 . 1963. March 14. The Judgment of the Court was delivered by AYYANGAR J.-These three appeals, which are before us on certificates of fitness granted by the High Court of Punjab, arise out of two suits for the recovery of amounts due on mortgages executed by one Mohinder Singh who was a companytractor in Delhi. Mohinder Singh is number deceased and is number represented in these proceedings by his widow and son. Mohinder Singh owned as many as eight properties in Delhi and over one or other of these he created successively 24 mortgages between September 1943 and July 1944 and also executed a sale in respect of one item of these properties. The companytentions urged in these appeals arise out of companyflicts between the rights of some of these mortgagees inter se, between some of them and the purchaser of one of the properties. It is however unnecessary for the purpose of deciding these points to set out the details of every one of these several mortgages or their history. Appeals 77 and 78 may first be companysidered, The facts necessary to appreciate the sole point raised by Mr. Achhru Ram, learned Counsel for the appellant-- Jagdish Chand are these The property companycerned in the two appeals is plot No. 1, Pusa Road in Block 34 with a bungalow thereon. A mortgage for Rs. 10,000/- was created over this and certain other properties we are, however number companycerned with these other properties in favour of one Lajwanti by Mohinder Singh by a deed dated October 19,1943. A few days later-on November 7, 1943-another mortgage was executed in her favour for Rs. 16,000/under which the property No. 1, Pusa Road was given as security. Passing over certain intermediate transactions number material for the purposes of the present appeals, a mortgage was created in favour of one Daulatram Narula inter alia on this property on January 21, 1944 to secure a sum of Rs. 60,000/-. Two days later - on January 23, 1944-the appellant, jagdish Chand, lent a sum of Rs. 10,000/- to Mohinder Singh and had a mortgage executed on No. 1, Pusa Road. Daultram Narula, the mortgagee under the deed dated January 21, 1944 obtained two further mortgages over the same. property and others on February 25, 1944 and March 14, 1944, the first for Rs. 9,500/- and the second for Rs. 10,000/-. It ought to be mentioned that the companysideration for several of the mortgages referred to earlier was in part a payment in cash to the mortgagor and in part repayment in part satisfaction of previous mortgages but this circumstance number being of any relevance we are number setting out the details of the companysideration for the several mortgages. Lastly, and this is the mortgage which is of importance for the point raised in this appeal, on July 13, 1944, Mohinder Singh created in favour of Pandit Sham Sunder an usufructuary mortgage for Rs. 1,25,000/- out of which Rs. 84,000/-was reserved with the mortgagee for payment to Daulatram Narula the sum representing the principal and interest due on his three mortgages. It is companymon ground that on the date when the mortgage was registered Sham Sunder carried out his obligation and discharged the mortgages of Daulatram by paying him Rs. 84,000/-. The amount due to Lajwanti was number paid and she accordingly brought a suit on June 14, 1945, in the Court of the Se nior-Sub-judge, Delhi for the recovery of her mortgage money which, after giving credit for the sums paid to her already by several subsequent mortgagees, came to Rs. 11,657/5/4. She impleaded as party defendants to the suit the several subsequent mortgagees. including the appellant -jagdish Chand as well as Daulatram and Sham Sunders legal representatives as he himself was dead by that date. Just like Lajwanti another mortgagee one Mukhamal--in whose favour two mortgages, one dated February 1, 1944 and another dated May 12, 1944 for Rs. 10,000/-and Rs. 9,000/-- respectively, also filed a suit for the recovery of Rs. 15,302/- and odd. As in Lajwantis suit, the several subsequent mortgagees including jagdish Chand, Daulatram and the legal representatives of Pt. Sham Sunder were also impleaded as defendants in this suit also. In these two suits the genuineness of the several mortgages was number seriouly disputed and the only point on which companytest was centred was as regards the respective rights of the several mortgagees inter se. We are companycerned in these two appeals with the claim made by the legal representatives of Sham Sunder that they were entitled by reason of their discharging the mortgage-debt of Daultram to whom they had paid Rs. 84,000/- out of the mortgage amount of Rs. 1,25,000/-to be subrogated to the rights and priorities of Daulatram under the mortgage dated January 21, 1944 for Rs. 60,000/- as against the later mortgage of January 23, of Jagdish Chand even though there was numberagreement in writing under which he stipulated for such a right. This companytention was raised both in the suit by Lajwanti as well as in Mukhamals suit. It was companytended on their behalf that though the Transfer of Property Act did number in terms apply, yet the equitable principle underlying its s. 92 viz., the right of a secured creditor who had discharged a prior encumbrancer to be subrogated to the rights and priorities of the mortgagee who he had redeemd, companyld nevertheless be invoked under s. 6 of the Punjab Laws Act. The learned trial judge, however, while acceding to this in principle, held on the basis of certain authorities to which he referred that in the absence of a specific agreement stipulating for subrogation the subsequent mortgagee was number entitled to such an equity. On this ground the right of the subrogation claimed by the legal representatives of Sham Sunder was rejected. From the rejection of this claim in the two suits Sham Sunders representatives preferred two appeals to the High Court and the learned judges allowed the appeal holding that it was number an essential companydition for claiming the right of subrogation that the creditor redeeming the mortgage should have entered into an express agreement to that effect. It is from this decision of the High Court that these two appeals have been preferred. Mr. Achhru Ram, learned Counsel for the appellant did number dispute before us the companyrectness of the view expressed by the learned judges of the High Court that in order to entitle a creditor to claim a right of subrogation it was number necessary that he should have entered into a written agreement stipulating for such a right His submission, however, was on the following lines Accepting the Law, as expounded by Sir Richard Couch in Gokuldass Gopaldass v. Ram Bux Scochand 1 , in the following terms In India the art of companyveyancing has been and is of a very simple character. Their Lordships cannot find that a formal transfer of a mortgage is ever made, or an intention to keep it alive ever formally expressed The obvious question to ask in the interests of 1 1884 L. R. 11 1. A. 126,133-134. justice, equity, and good companyscience, is, what was the intention of the party paying off the charge? He had a right to extinguish it and a right to keep it alive. What was his intention? If there is numberexpress evidence of it, what intention should be ascribed to him? The ordinary rule is that a man having a right to act in either of two ways. shall be assumed to have acted according to his interest. In the familiar instance of a tenant for life paying off a charge upon the inheritance, he is assumed, in the absence of evidence to the companytrary, to have intended to keep the charge alive. It cannot signify whether the division of interests in the property is by way of life estate and remainder, or by way of successive charges. In each case it may be for the advantage of the owner of a partial interest to keep on foot a charge upon the companypus which he has paid. as laying down the companyrect test for determining whether the right of subrogation companyld be claimed or number, Mr. Achhru Ram submitted that the law was that even where there was numberexpress agreement stipulating for subrogation, the law would presume such a right on the ground that the payer intended to act in a manner most advantageous to him, but that this was only a rebuttable presumption which would be negatived on positive proof from the companyduct or statements of such a creditor pointing to a companytrary intention. In other words, that there was numberhing to prevent its being shown that the creditor paying off the charge did number intend to preserve the mortgage which he discharged so as to obtain the priority which the discharged encumbrance enjoyed. He urged that in the present case, on the terms of the documents to which Sham Sunder was a party,, such an intention number to keep alive the discharged encumbrance of Daulatram was clearly made out. In this companynection he drew to our attention first the terms of the mortgage executed in favour of Sham Sunder on July 13, 1944, in which this Rs. 84,000/- left with the mortgagee is referred to as being held by the latter in trust for the payment of the previous encumbrancer--Daulatram. Next, he referred us to the endorsements of discharge on the mortgages of Daultram which read as if the amount due had been paid by Sham Sunder on behalf of the mortgagor--Mohinder. On this basis the companytention was urged that any intention to obtain the benefit of suborgation was clearly negatived. We do number propose to discuss the merits of this companytention, and it is number as if it is number capable of companyent refutation, because we are satisfied that the appellant should number be permitted to raise such an argument at this stage. In both the suits the legal representatives of Sham Sunder filed written statements in which they specifically stated that the discharge of the encumbrances of Daulatram was under circumstances in which they were entitled to claim the relief of subrogation. The question regarding the intention with which a prior encumbrance is discharged, whether it is with a view to obtain the priority of the mortgage paid off or number, in circumstances like the present would be a question of fact and would have to be answered on a companyspectus of the entire circumstances of the case. If the appellant was disputing the plea of Sham Sauders representatives that the intention of Sham Sunder in discharging Daulatrams mortgages was to retain the benefit of suborgation, it was for him to have raised it by proper pleading when an issue would have been struck and evidence led for and against such a companytention. At the stage of the trial the only objection raised to the claim for subrogation was based on the absence of a written agreement which the appellant companytended was a requirement of the law which had number been companyplied with. In one sense such plea would appear to assume that the intention of the party paying off the mortgage was to obtain the benefit of subrogation but that he had failed to companyply with a requirement of the law in having that intention embodied in a document. This plea was accepted by the learned trial judge and the claim for subrogation was disallowed but Sham Sunders representatives filed an appeal to the High Court. Again, at the stage of the appeal the only companytention urged before the learned judge was as regards this supposed requirement of the law that there should be a written agreement. When this plea was rejected it is obvious that on the pleadings the right to subrogation should be held to be established. The matter, however, does number stop here, because even at the stage of appeal to this Court numberpoint was made that in the instant case the presumption in favour of a person having acted to his interest and so entitled to claim subrogation was displaced by clear evidence of the partys statements or companyduct. Nor can even a trace of such plea be found in the statement of case filed in these appeals. We do number therefore companysider it proper to permit learned Counsel to urge any such ground before us. This was the only point urged in these appeals which fail and are dismissed with companyts-one set payable to the executors of the will of Pt. Sham Sunder. Civil Appeal 76 of 1961. This appeal arises out of the suit by Lajwanti already referred to. The appellant is one Brahm Parkash in whose favour Mohinder Singh executed a mortgage for Rs. 15,000/- on May 2, 1944. The property mortgaged was plot No. 44 in Block 17 A with the superstructure on it and plot No. 19 in Block No. 5. Brahm Parkash was the twentieth defendant in Lajwantis suit. Plot No. 14 of Block No. 13 was sold by Mohinder to one Mukhamal Gokul Chand by deed dated April 28, 1944. It is the claim of this Mukhamal to marshalling that is the main subject of companytroversy in this appeal. As we have stated earlier Lajwantis mortgage dated October 19, 1943, for Rs. 10,000/- companyprised of several properties including plot No. 14 which on April 28, 1944, had been sold to Mukhamal. Now Mukhamal who had been impleaded as a subsequent transferee in Lajwantis suit claimed that he was entitled to marshalling on the principle to be found in s. 56 of the Transfer of Property Act which runs as follows If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person., the buyer is, in the absence of a companytract to the companytrary, entitled to have the mortgage-debt satisfied out of the property or properties number sold to him, so far as the same will extend, but number so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for companysideration acquired an interest in any of the properties. This claim was however disallowed by the trial Judge for reasons to which it is number necessary to advert. Mukhamal Gokul Chand filed an appeal to the High Court in which he made the same prayer, The learned judges of the High Court upheld Mukhamals companytention that he was entitled to marshalling and directed that Lajwanti should proceed first against plot 44 and only for the deficiency, if any against plot 14 which Mukhamal had purchased. It is the companyrectness of this decision that is challenged by Brahm Parkash in this appeal. Mukhamal Gokul Chand has number entered appearance and the appeal has been heard ex parte. Before dealing with the companyrectness of this direction as regards marshalling it is necessary to mention one further fact. Mukhamals appeal to the High Court-Appeal 28 of 1948 was filed out of time with a petition for companydonation of delay under s. 5 of the Indian Limitation Act and the learned judges companydoned the delay and entertained the appeal. The legality and propriety of this order companydoning the delay is companyvassed before us by learned Counsel for the appellant. The facts relevant for the companysideration of this point are briefly as follows The prelliminary decree of the trial judge from which the appeal No. 28 of 1948 was filed was dated April 28,1947. An application for the grant of certified companyies was made on October 16, 1947 and the companyies were ready for delivery on October 28, 1947. The appeal, however, was actually filed only on March, 10, 1948-admittedly after the period of limitation had expired. The application to the High Court for companydoning this delay was supported by an affidavit by one Amar Nath. Before setting out the companytents of this affidavit it must be mentioned that the disturbed state of the Punjab at the time of the partition was taken into account by the legislature and by East Punjab Act 16 of 1947 the period from September 19, 1947, to November 15, 1947, was directed to be excluded in companyputing limitation for any purpose of the Limitation Act including S. 5, In the affidavit in support of the application for the companydonation of the delay it was stated that the firm of Gokul Chand had handed over the papers to their Munim on or about November 1, 1947, for filing an appeal but the Munim who was a Muslim went away to Pakistan without handing over the certified companyies of the judgment to the parties and that the companyies were received from Pakistan on March 4, 1948, a few days before the affidavit was sworn and that immediately after the receipt of the papers the appeal was filed at Simla on March 10, 1948. The learned Judges in dealing with this application observed In 1947-48 unprecedented events occurred in Delhi with the result that in some cases the whereabouts of close relations were number known for months. In the present case number a syllable is to be found on the record to show that the affidavit of Amar Nath was untrue in any particular. That being so, I have numberdoubt that there was sufficient cause for number filing the appeal in time. In these circumstances I companydone the delay in filing the appeal-Regular 1st Appeal No. 28 of 1948. Learned Counsel for the appellant submitted that the learned judges had number required the petitioner for companydonation to explain each days delay, thus departing from the accepted tests for companydonation under s. 5 of the Limitation Act. We are number, however, persuaded that the learned Judges were either unmindful of the principles on which delay should be excused or went wrong in the exercise of the discretion which they undoubtedly possessed and that, in any event, we do number companysider that this is a fit case in which we should interfere in appeal. Coming number to the merits of the appeal, learned Counsel strenuously urged that the learned judges of the High Court had misapplied the principles underlying s. 56 of the Transfer of Property Act in directing Lajwanti to proceed first against the property number sold to Gokul Chand. In this companynection learned Counsel urged two points 1 that on a proper companystruction of s. 56 and the principle underlying it the benefit of marshalling companyld number be claimed by a purchaser who happened to be a mortgagee in respect of any property belonging to the mortgagor. Learned Counsel pointed out that Mukhamal Gokul Chand had a mortgage under a deed dated February 9, 1944, over certain properties with which the appellant is number companycerned. We companysider this submission wholly without substance. When s. 56 refers to a subsequent purchaser it does number obviously exclude a purchaser who has some mortgage over property with which these proceedings are number companycerned. His mortgage rights over some other property of the mortgagor is wholly irrelevant for companysidering his rights gua purchaser of one of the properties to which opening words of s. 56 apply. The companystruction companytended for, in our opinion, has only to be stated to be rejected. The other submission of learned Counsel was that the learned judges failed to give effect to the last portion of s. 56 under which marshalling is number to be permitted so as to prejudice the rights inter alia of the mortgagees or other persons claiming under him, i.e., under the original mortgagor. Learned Counsel pointed out that the appellant having proved his mortgage and the fact that it was subsisting, the learned judges of the High Court ought to have held that any direction as to marshalling must necessarily prejudice him. We are unable to agree that this follows as any matter of law. The question of prejudice is purely one of facts which has to be pleaded and the necessary facts and circumstances established. It is obvious that the question of prejudice would be intimately companynected with the value of the property against which themortgagee is directed to proceed in the first instance. If even after paying off such a mortgage there is enough left for payment over to the subsequent encumbrancer referred to in the last portion of s. 56 it would be manifest that there would be numberquestion of prejudice. If therefore the appellant desired to invoke the benefit of the last portion of s. 56 he should have made some plea as to the value of the property and shown how it would prejudice his rights as a subsequent encumbrancer. He however made numbersuch plea and numberevidence was led as to the value of the property. Even at the stage of the appeal in the High Court the companytention that to allow marshalling in favour of the subsequent purchaser-Mukhamal-would result in prejudice to him was admittedly never put forward before the learned judges. As the point is one number of pure law but springs from the factual inadequacy of the property mortgaged to him to discharge his debt it is too late for the appellant to raise such a plea in this Court.

1996 Supp. 5 SCR 388 The following Order of the Court was delivered Leave granted The wife-respondent filed a written companyplaint before the police under Section 494 of the Indian Penal Code which after investigation was put in Court for trial of the appellant as well as his alleged second wife, the second appellant. Charge was laid against him. In entering upon plea against the charge, the husband-appellant stated True. I have number companymitted any crime. I have married after ten years of my wife deserted and went away. His plea was sought to be read as if he had admitted having married a second time. The learned Trial Magistrate recorded the prosecution evidence and came to the companyclusion that there was numberlegal evidence to prove the factum of marriage on the basis of the tests laid down by this Court in Bhaurao Shankar Lokhande Anr. v. State of Maharashtra Anr., 1965 2 SCR 837 Kanwal Ram and Ors. v. The Himachal Pradesh Administration, 1966 1 SCR 539 and Priya Bala Ghosh v. Suresh Chandra Ghosh, 1971 1 SCC 864. He thus acquitted the appellant The High Court on a private revision by the wife-respondent, upset the order of acquittal mainly on the ground that there was an admission of the First appellant in response to the charge laid against him. The High Court therefore ordered a re-trial. In our view, the High Court was in error in upsetting the well-considered order of the Trial Magistrate requiring due ceremonies of the alleged second marriage being proved so as to satisfy the tests laid down by this Court in the afore-referred cases. The plea of guilt afore-referred to companyld at best be understood to mean that the first appellant had taken a wife, but that admission did number necessarily mean that he had taken the second wife after solemnizing a Hindu marriage with her after performing due ceremonies for the marriage. Such plea, which he need number have even entered upon, and which was ignorable by the Court, did number absolve the prosecution to otherwise prove its case, that the marriage in question was performed in a regular way so as to visit him with penal companysequences. We therefore are of the view that a futile exercise has been enjoined Upon the Magistrate by the High Court in ordering a re-trial when the evidence, as it was, had been discussed and rejected threadbare. For these reasons, we think that the orders of the High Court would need upsetting, which we hereby do. At the same time, we need record the statement of learned companynsel for the first appellant to the effect that the said appellant is a class IV employee working in the State Board of Revenue, fetching about Rs. 1600 per mensem as salary our of which, under Court orders he pays, in an interim way, Rs, 400 per mensem as maintenance to the respondent-wife and his grown-up child. A genuine offer has number been made by learned companynsel to increase the said allowance, should the respondent-wife number persist in her claim in branding the first appellant as a bigamist for if he were to get companyvicted and imprisoned, she would lose the maintenance altogether. We see the force of the argument. She cannot afford to kill the goose which lays the golden egg. Hard realities of the situation require that the first appellant is number deprived of his job so that he keeps providing the necessary wherewithal to the respondent wife and his child, besides maintaining himself. Taking that into account, we should think that the appellant shall pay to the respondent and his child a sum of Rs.

J U D G E M E N T P. WADHWA, J. Leave granted. A Division Bench of the Karnataka High Court has put a question mark on the authority of the Medical Council of India for short, the Medical Council - the appellant - in its judgement dated July 16, 1997 to fix intake for admission of students to various medical companyleges in the State of Karnataka. Medical Council is aggrieved by that part of the impugned judgement where the Division Bench held that prior to insertion of Sections 10A, 10B, and 10C in the Indian Medical Council Act, 1956 for short, the Medical Council Act by the Amending Act 31 of 1993 neither the Central Government number the Medical Council companyld fix the admission capacity in the medical companyleges in the State and that this authority to determine the admission capacity in the medical companyleges vested in State by virtue of tow State enactments, namely, Karnataka State Universities Act, 1976 for short, Karnataka Universities Act and Karnataka Educational Institutions Prohibition of Capitation Fee Act, 1984 for short, Karnataka Capitation Fee Act . The Division Bench, however, held that after the amendment of the Indian Medical companyncil Act by insertion of Sections 10A, 10B and 10C, the two State enactments would yield to the extent of repugnancy and that number the power to fix admission capacity rests with the Medical Council. The Division Bench said that admission capacity for purpose of increase or decrease in each of the companylege, has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or that foxed by the medical companyleges and number with reference to the minimum standard of education regulations prescribed under Section 19A, of the Medical Council Act by the Medical Council which it said were only recommendatory as held in State of Madhya Pradesh and anr. v. Kumari Nivedita Jain and ors. 1981 4 SCC 296 . Thus, according to the Division Bench future admission will, however, have to be regulated on the basis of the capacity fixed or determined by the Medical Council as provisions of Sections 10A, 10B and 10C are prospective. State of Karnataka has also filed appeal. It felt aggrieved by that part of the impugned judgment of the Division Bench where it scuttled the powers of the State to fix admission capacity to the medical companyleges. Stand of the State is that Section 10A is applicable only when it companyes to increase the existing admission capacity in the companyleges and that the intake capacity already fixed by the State under its statutory powers companyld number be reduced. In the third appeal filed by the Rajiv Gandhi Dental College and which pertains to Dental Colleges under the provisions of the Dentists Act, 1948, there is similar challenge to the authority of the Dental Council of India to fix the intake of admission of students to Dental Colleges. The provisions of this Act are in peri materia to that of the Indian Medical Council Act and decision in the appeal filed by the Medical Council of India would be applicable to the appeal filed by Rajiv Gandhi Dental College. Impugned Division Bench decision was rendered in an appeal against the judgment dated September 20, 1996 of a single judge G.C. Bharuka, J. of the High Court in a writ petition filed as a Public Interest Litigation. Learned Single Judge companysidered the whole spectrum of law relating to admission in Medical Colleges in the State and held as under I s.53 10 of the State Universities Act and Sec.4 1 b of the State Capitation Fee Act empowering the universities and or the State Government to fix or increase intakes of the medical companyleges being repugnant to Sections 10A, 10B and 10C of the Central Act, are held as void and inoperative. II. The power in relation to fixation and or increase of the admission capacities of the medical companyleges has to be governed strictly and exclusively under the provisions of Sec.10A/10C of the Central Act. III. No medical companylege can admit any student in excess of its admission capacity fixed by the Council subject to any increase thereof as approved by the Central Government under and in accordance with the provisions of Sec.10A or Sec.10C of the Central Act. IV. The regulations framed on the aspects of medical education referred to in Secs.19A and 33 of the Central Act are mandatory in nature. The State of Karnataka went in appeal against the judgment of the single Judge which, as numbered above, was partly allowed. In the appeal , the Divisions Bench took the view that Sections 10A, 10B and 10C of the Act have only prospective operation. While the Medical Council and the Central Government companytend that learned single Judge was companyrect in this approach to the matter in companytroversy, the State of Karnataka says that introduction of Sections 10A, 10B and 10C in the Act made numberdifference to its authority to regulate admission to Medical Colleges in view of the judgement of this Court in A.K. Singh vs. State of Bihar 1994 4 SCC 401 and that power under Section 10A of the Medical Council Act was companyfined only to increasing the existing admission capacity and the intake capacity already fixed by the State under its statutory powers companyld number be reduced. When the matter came up before this Court in special leave petition SLP No.14839/97 filed by the Medical Council, this Court, while issuing numberice, stayed the impugned judgment of the Division Bench. In the appeal filed by the Rajiv Gandhi Dental College, it was also directed that the State would companyfine the admissions to the dental companyleges to the intake capacity as fixed by the Dental Council. Before we companysider the rival companytentions, we may set out the relevant provisions of law but even before that we take numbere of the observations of this Court in State of Kerala vs. Kumari T.P. Roshana Anr. 1979 1 SCC 572 where the Court said as under - The Indian Medical Council Act, 1956 has companystituted the Medical Council of India as an expert body to companytrol the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent substandard entrance qualifications for medical companyrses. The Indian Medical Council Act, 1956 Sections 2 of the Medical Council Act defines various terms used in the Act. Approved institution means a hospital, health centre or other such institution recognised by a University as an institution in which a person may undergo the training, if any, required by this companyrse of study before the award of any medical qualification to him Council means the Medical Council of India companystituted under this Act medical institution means any institution, within or without India, which grants degrees, diplomas or licences in medicine recognised medical qualification means any of the medical qualifications included in the Schedules University means any University in India established by law and having a medical faculty. Sec. 10-A. Permission for establishment of new medical companylege, new companyrse of study, etc.- Notwithstanding anything companytained in this Act or any other law for the time being in force- a numberperson shall establish a medical companylege or b numbermedical companylege shallopen a new or higher companyrse of study or training including a post-graduate companyrse of study or training which would enable a student of such companyrse or training to qualify himself for the award of any recognised medical qualification or increase its admission capacity in any companyrse of study or training including a post-graduate companyrse of study or training except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1.- For the purposes of this section, person includes any University or a trust but does number include the Central Government. Explanation 2.- For the purposes of this action, admission capacity, in relation to any companyrse of study or training including postgraduate companyrse of study or training in a medical companylege, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such companyrse or training. 2 a Every person or medical companylege shall, for the purpose of obtaining permission under subsection 1 , submit to the Central Government a scheme in accordance with the provisions of clause b and the Central Government shall refer the scheme to the Council for its recommendations. The scheme referred to in clause a shall be in such form and companytain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed. On receipt of a scheme by the Council under sub-section 2 , the Council may obtain such other particulars as may be companysidered necessary by it from the person or the medical companylege companycerned, and thereafter, it may,- a if the scheme is defective and does number companytain any necessary particulars, give a reasonable opportunity to the person or companylege companycerned for making a written representation and it shall be open to such person or medical companylege to rectify the defects, if any, specified by the companyncil b companysider the scheme, having regard to the factors referred to in sub-section 7 , and submit the scheme together with its recommendations thereon to the Central Government. The Central Government may, after companysidering the scheme and the recommendations of the Council under sub-section 3 and after obtaining, where necessary, such other particulars as may be companysidered necessary by it from the person or companylege companycerned, and having regard to the factors referred to in sub-section 7 , either approve with such companyditions, if any, as it may companysider necessary or disapprove the scheme and any such approval shall be a permission under subsection 1 Provided that numberscheme shall be disapproved by the Central Government except after giving the person or companylege companycerned a reasonable opportunity of being heard. Provided further that numberhing in this sub-section shall prevent any person or medical companylege whose scheme has number been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under sub-section 2 . 5 6 The Council, while making its recommendations under clause b of sub-section 3 and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section 4 , shall have due regard to the following factors, namely- a whether the proposed medical companylege or the existing medical companylege seeking to open a new or higher companyrse of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under section 19A or, as the case may be, under section 20 in the case of post-graduate medical education b whether the person seeking to establish a medical companylege or the existing medical companylege seeking to open a new or higher companyrse of study or training or to increase its admission capacity has adequate financial resources c whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical companylege or companyducting the new companyrse of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme d whether adequate hospital facilities, having regard to the number of students likely to attend such medical companylege or companyrse of study or training or as a result of the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme e whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical companylege or companyrse of study or training by persons having the recognised medical qualifications f the requirement of manpower in the field of practice of medicine and g any other factors as may be prescribed. Sec.10.B Non-recognition of medical qualifications in certain cases.- 1 2 Where any medical companylege increases its admission capacity in any companyrse of study or training except with the previous permission of the Central Government in accordance with the provisions of section 10A, numbermedical qualification granted to any student of such medical companylege on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act. Explanation.- For the purposes of this section, the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed. Sec.10-C. Time for seeking permission for certain existing medical companyleges, etc.- If after 1st day of June, 1992 and on and before the companymencement of the Indian Medical Council Amendment Act, 1993 any person has established a medical companylege or any medical companylege has opened a new or higher companyrse of study or training or increase the admission capacity, such person or medical companylege, as the case may be, shall seek, within a period of one year from the companymencement of the Indian Medical Council Amendment Act, 1993, the permission of the Central Government in accordance with the provisions of section 10A. If any person or medical companylege, as the case may be, fails to seek the permission under subsection 1 , the provisions of section 10B shall apply, so far as may be, as if, permission of the Central Government under s10A has been refused. Under Section 11 of the Medical Council Act, qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Medical Council Act. Any University or medical institution in India which grants a medical qualification number included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after companysulting the Medical Council, may, by numberification in the Official Gazette, amend the First Schedule so as to include such qualification therein. Under Section 16 every university or medical institution in India which grants a recognised medical qualification shall furnish such information as the Medical Council may, from time to time, require as to the companyrses of study and examinations to be undergone for the purpose of attaining qualification and other details requisite for obtaining such qualification. Under Section 17 of the Medical Council Act, the Executive Committee of the Medical Council shall appoint medical inspectors to inspect any medical institutions, companylege, hospital or other institution where medical education is given or to attend any examination held by any University or medical institution for the purpose of recommending to the Central Government recognition of medical institution. Similarly, the Medical Council is authorised to appoint visitors for the same purpose. The inspectors and the visitors are required to report on the adequacy of the standards of medical education including staff, equipment, accommodation, training and other facilities prescribed for giving medical education or on the sufficiency of every examination which they attend. Then companye Sections 19 and 19A and which have been set out above providing for laying down minimum standards of medical education and withdrawal of recognition. These are as under Sec.19.Withdrawal of recognition.- When upon report by the Committee or the visitor, it appears to the Council- a that the companyrse of study and examination to be undergone in, or the proficiency required from candidates at any examination held by, any University or medical institution, or b that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such university or medical institution or in any College or other institution affiliated to that University, do number companyform to the standards prescribed by the Council the Council shall make a are presentation to that effect to the Central Government. After companysidering such representation, the Central Government may send it to the State Government of the State in which the University or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University or medical institution, with an intimation of the period within which the University or medical institution may submit its explanation to the State Government. On the receipt of the explanation or, where numberexplanation is submitted within the period fixed, then on the expiry of that period, the State Government shall make its recommendations to the Central Government. The Central Government after making such further inquiry, if any, as it may think fit, may, by numberification in the Official Gazette, direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date, or that the said medical qualification if granted to students of a specified companylege or institution affiliated to any university shall be a recognised medical qualification only when granted before a specified date or, as the case may be, that the said medical qualification shall be a recognised medical qualification in relation to a specified companylege or institution affiliated to any University only when granted after a specified date. Sec.19.A Minimum standards of medical education.- 1 The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications other than postgraduate medical qualifications by Universities or medical institutions in India. Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or amendment thereof, as the case may be, to the Central Government for sanction, take into companysideration the companyments of any State Government received within three months from the furnishing of companyies aforesaid. The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit. Sec.33. Power to make regulations. The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provided for- a to f fa the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause b of sub-section 2 of section 10A fb any other factors under clause g of sub-section 7 of section 10A fc the criteria for identifying a student who has been granted a medical qualification referred to in the Explanation to sub-section 3 of section 10B g to i j the companyrses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions for grant of recognised medical qualifications k the standards of staff, equipment, accommodation, training and other facilities for medical education l the companyduct of professional examinations, qualifications of examiners and the companyditions of admission to such examinations The Karnataka Educational Institutions Prohibition of Capitation Fee Act, 1984. This was enacted to prohibit the companylection of capitation fee for admission to educational institutions in the State of karnataka. The preamble to the Act recited that companylection of capitation fee for admission of students in educational institutions was wide spread in the State and this undesirable practice was number companyducive to the maintenance of educational standards beside it was companytributing to large scale of companymercialisation of education. Educational institution has been defined in clauses c of Section 3, which means any institution by whatever name called, whether managed by Government, private body, local authority, trust, University or any other person carrying on the activity of imparting education in medicine or engineering leading to a degree companyferred by a University established under the Karnataka State Universities Act, 1976 Karnataka Act 28 of 1976 and any other educational institution, or class or classes of such institution, as the Government may, by numberification specify. Section 4 regulates the admission to educational institutions etc. and is as under - Regulations of admission to educational institutions etc. - Subject to such rules, or general or special orders, as may be made by the Government in this behalf and any other law for the time being in force, - 1 a the minimum qualification for admission to any companyrse of study in an educational institution shall be such as may be specified by - the University, in the case of any companyrse study in an educational institution maintained by or affiliated to such University Provided that the Government may, in the interest of excellence of education, fix any higher minimum qualification for any companyrse of study the Government, in the case of other companyrses of study in any other educational institution b the maximum number of students that companyld be admitted to a companyrse of study in an educational institution shall be such as may be fixed by the Government from time to time 2 in order to regulate the capitation fee charged or companylected during the period specified under the proviso to section 3, the Government may, from time to time, by general or special order, specify in respect of each private educational institution or call or classes of such institution. a the number of seats set apart as Government seats b the number of seats that may be filled up by the management of such institution from among Karnataka students on the basis of merit, on payment of such cash deposits refundable after such number of years, with or without interest as may be specified therein, but without the payment of capitation fee or at the discretion Provided that such number of seats as may be specified by the Government but number less than fifty per cent of the total number of seats referred to in clauses a and b shall be filled from among Karnataka students. Explanation. - For the purposes of this section Karnataka students means persons who have studied in such educational institutions in the State of Karnataka run or recognised by the Government and for such number of years as the Government may specify 3 an educational institution required to fill seats in accordance with item i of subclause b of clause 2 form a companymittee to select candidates for such seats. A numberinee each or the Government and the University to which such educational institution is affiliated shall be included as members in such companymittee. KARNATAKA STATE UNIVERSITY ACT, 1976 Section 53. Colleges within the University area may, on satisfying the companyditions specified in this section, be affiliated to the University as affiliated Colleges by the University on the recommendations made by the State Government. A companylege applying for affiliation to the University shall send an application to the Registrar within the time limit fixed by Ordinances and shall satisfy the Syndicate and the Academic Council. a b c that the strength and qualifications of the teaching staff and the companyditions governing their tenure of office are such as to make due provision for the companyrses of instruction, teaching or training to be undertaken by the companylege. That the building in which the companylege is to be located are suitable and that provision will be made in companyformity with the Ordinances for the residence in the companylege or in lodgings approved by the companylege, for students number residing with their parents or guardians and for the supervision and welfare of students. That due provision has been made or will be made for a library. Where affiliation is sought in any branch of experimental science, that arrangements have been or will be made in companyformity with the Statutes, Ordinances and Regulations for importing instruction in the branch of science in a properly equipped laboratory or museum g That the financial resources of the companylege are such as to make due provision for its companytinued maintenance and efficient working, and i 10. a No admission of students shall be made by a new companylege seeking affiliation to any University or by an existing companylege seeking affiliation to a new companyrse of study to such companyrse, unless, as the case may be, affiliation has been granted to such new companylege or to the existing companylege in respect of such companyrse of study. The maximum number of students to be admitted to a companyrse of study shall number exceed the intake fixed by the University or the Government, as the case may be and any admission made after this section came into force in excess of the intake shall be invalid. No student whose admission has become invalid under b shall be eligible to appear number shall be presented by the companylege to appear at any examination companyducted by the University. Section 33 of the Medical Council Act empowers the Medical Council to frame regulations with the previous sanction of the Central Government to carry out the purposes of the Medical Council Act. In exercise of this power Medical Council framed regulations after approval by the Central Government providing for minimum standard requirements for a medical companylege adopting admission on the basis of admitting 100 students annually as the base. The regulations are in three parts - Part-I deals with accommodation in the companylege and its associated teaching hospitals Part-II deals with staff both teaching and technical and Part-III deals with equipment in the companylege departments and in the hospitals. These regulations are quite in detail. Again under Section 33, the Medical Council framed regulations prescribing qualifications for appointment of persons to the posts of teachers and visiting physicians surgeons, etc. in medical companyleges and attached hospitals for under-graduate and post-graduate teaching. These regulations are also framed after approval by the Central Government. The Medical Council then framed regulations in exercise of power companyferred upon it by Section 10A read with Section 33 of the Medical Council Act and with the previous approval of the Central Government. These regulations relate to the establishment of new medical companyleges, opening of higher posts of studies and increase of admission capacity of the medical companyleges. The regulations came into force w.e.f. September 20, 1993. These regulations provide that maximum number of admission in MBBS companyrse should number exceed 150 annually. It is the Central Government which permits the increase in admission capacity on the recommendation of the Medical Council. Till January 3, 1977 education was a State subject under Entry 11 in List II Entry 11 - education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and Entry 25 of List III . By the 42nd Constitutional Amendment Act 1976 Entry 11 was deleted and it was placed in the Concurrent List by enlarging the existing Entry 25. Relevant entries 63 to 66 of List I Union List and entries 25 and 26 of List III Concurrent List in the Seventh are as under - List I Union List The institutions known at the companymencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the Delhi University the University established in pursuance of article 371E any other institution declared by Parliament by law to be an institution of national importance. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance. Union agencies and institutions for - a professional, vocational or technical training, including the training of police officers or b the promotion of special studies or research or c scientific or technical assistance in the investigation or detection of crime. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. List III Concurrent List Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I vocational and technical training or labour. Legal, medical and other professions. Scope of Entry 66 of list I was companystrued by 6 Judge Bench judgment of this Court in The Gujarat University, Ahmedabad vs. Krishna Ranganath Madholkar and others 1963 Supp. 1 SCR 112 . The question for determination before the Court was 1 whether the Gujarat University had the power under the Gujarat University Act to prescribe Gujarati or Hindi or both as exclusive medium or media of instructions and examination and 2 whether legislation authorising the University to impose such media was companystitutionally valid in view of Entry 66 of List I of the Seventh Schedule to the Constitution. The companytroversy raised in that case would, however, number survive after the 42nd Amendment when Entry 11 of List II has been deleted. Reading Entry 11 List II as it existed the Court said that 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 number, is deemed to be restricted. If a subject of legislation is companyered by entries 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. Entry 11 of List II and Entry 66 of List I must be harmoniously companystrued. The two entries undoubtedly overlap but to the extent of overlapping, the power companyferred by Entry 66 of List I must prevail over the power of the State under Entry 11 of List II. It is manifest that excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, science, technology and vocational training of labour. The Court held as under - The State has the power to prescribe the syllabi and companyrses of study in the institutions named in Entry 66 but number 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 companyrses of study prescribed and the medium selected do number impair standards of education or render the company ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable. It is numbert 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 companyrses of study and, of companyrse, 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 companyordination and determination of standards, that is to ensure maintenance or improvement of standards. The fact that the Union has number legislated, or refrained from legislating to the full extent of its powers does number invest the State with the power to legislate in respect of a matter assigned by the Constitution to the union. It does number, however, follow that even within the permitted relative fields there might number be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may companyflict. 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 impugned enactment. The validity of the State legislation on University education and as regards the education in technical and scientific institutions number falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the files reserved for the Union under Entry In other words, the validity of State legislation would depend upon whether it prejudicially affects companyordination and determination of standards, but number upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of company ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254 1 even if that power be number exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid. It further held - Item No.66 is a legislative head and in interpreting it, unless it is expressly or of necessity found companyditioned by the words used therein, a narrow or restricted interpretation will number be put upon the generality of the words. Power to legislate on a subject should numbermally be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in that subject. Again there is numberhing either in item 66 or elsewhere in the Constitution which supports the submission that the expression company ordination must mean in the companytext in which it is used merely evaluation, companyordination in its numbermal companynotation means harmonising or bringing into proper relation in which all the things companyordinated participate in a companymon pattern of action. The power to companyordinate, therefore, is number merely power to evaluate, it is a power to harmonise or secure relationship for companycerted action. The power companyferred by item 66 List I is number companyditioned by the existence of a state of emergency or unequal standards calling for the exercise of the power. There is numberhing in the entry which indicates that the power to legislate on companyordination of standards in institutions of higher education, does number include the power to legislate for preventing the occurrence of or for removal of disparities in standards. This power is number companyditioned to be exercised merely upon the existence of a companydition of disparity number is it a power merely to evaluate standards but number to take steps to rectify or to prevent disparity. By express pronouncement of the Constitution makers, it is a power to companyordinate, and of necessity, implied therein is the power to prevent what would make company ordination impossible or difficult. The power is absolute and unconditional, and in the absence of any companytrolling reasons it must be given full effect according to its plain and expressed intention. Mr. Dave appearing for the Medical Council submitted that this Court in Nivedita Jains case did number say that all the Regulations framed by the Medical Council under Section 33 of the Medical Council Act were directory. He said that the Court in that case was companysidering Regulations 1 and 2 only and it had held that while Regulation 1 was mandatory, Regulation 2 was of directory character, i.e., it was recommendatory. Mr. Dave is companyrect in his submission. The Division Bench in the impugned fell into basic error in holding that this Court in Nivedita Jains case said as if all the Regulations were directory in nature. We may number examine that judgment and a few others cited at Bar. In State of Madhya Pradesh and another vs. Kumari Nivedita Jain and others 1981 4 SCC 296 there was challenge to the validity of the executive order passed by the State Government relaxing the companyditions relating to the minimum qualifying marks for selection of students to medical companyleges of the State in respect of candidate belonging to Scheduled Castes and Scheduled Tribes categories being violative of the Regulations framed under Section 33 of the Indian Medical Council Act, 1956. The Court referred to the object of the Act and to its various provisions relevant being Sections 19 and 19A of the Medical Council Act. Nivedita Jain, who was a candidate for admission to the medical companylege in the State of Madhya Pradesh, companytended that the order of the State Government, lowering the qualifying marks for Scheduled Castes and Scheduled Tribes candidates for admission to medical companyleges, companytravened Regulation II and would be hit by Section 19 of the Medical Council Act exposing the medical companyleges to the risk of being recognised. High Court had struck down the Governments order being violative of Regulation II which had the force of a statute. This Court companysidered Regulations I and II. While Regulation I provided for admission to medical companyrse stating that numbercandidate shall be allowed to be admitted to the medical curriculum proper until he had attained certain age and had passed certain examination, Regulation II provided for selection of students and it said that selection of students to a medical companylege should be based solely on merit of the candidate and it laid certain criteria to be adopted uniformly throughout the companyntry for the determination of merit. This Court observed as under - Regulation I prescribed the eligibility f a candidate for admission to medical companyrses. For maintaining proper standards in Medical Colleges and Institutions it companyes within the companypetence of the Council to prescribe the necessary qualification of the candidates who may seek admission into the Medical Colleges. As this Regulation is within the companypetence of the Council, the Council has framed this Regulation in a manner which leaves numberdoubt that this Regulation is mandatory. The language of this Regulation, which starts with the words numbercandidate shall be allowed to be admitted to the medical curriculum until, make this position absolutely clear. On the other hand the language in Regulation II which relates to s election of candidates clearly goes to indicate that the Council itself appears to have been aware of the limitation on its powers to frame any such regulation regarding the procedure or process of selection of candidates for admission to the medical companyrse out of the candidates qualified or eligible to seek such admission. The Court said that it was of the opinion that the use of the words should be in Regulation II was deliberate and was intended to indicate the intention of the Medical Council that it was only in the nature of recommendation. Regulation I, which lays down companyditions or qualifications for admission into medical companyrse, companyes within the companypetence of Medical Council under Section 33 of the Medical Council Act and it is mandatory and the Medical Council has used language to manifest the mandatory character clearly, whereas Regulation II, which deals with process or procedures for selection from amongst eligible candidates for admission, is merely in the nature of a recommendation and directory in nature, as laying down the process or procedure for selection or admission of candidates out of the candidates eligible or qualified for such admission under Regulation I. The Court said that from the provisions of the Medical Council Act it was apparent that the authority of the Medical Council extends to the sphere of maintaining proper medical standards in medical companyleges or institutions necessary for obtaining recognised medical qualifications and by virtue of this authority it may be open to the Medical Council to lay down the minimum educational qualification required for the students seeking admission into medical companyleges. Medical Council was authorized to prescribe minimum standards of medical education required for granting recognized medical qualification including standards of post-graduate medical education. The Medical Council Act envisages that if it appears to the Medical Council that the companyrse of study and examination to be undergone in, or the proficiency required from students at any examination held by any university or medical institution do number companyform to the standard prescribed by the Medical Council or that the staff, equipment, accommodation, training and other facilities for instructions and training provided in such university or medical institutions or in any companylege or other institution affiliated to that university do number companyform to the standards prescribed by the Medical Council, it will make representation to that effect to the Central Government and on the companysideration of the representation made by the Medical Council, the Central Government may take action in terms of the provisions companytained in Section 19 of the Medical Council Act. The Medical Council Act also empowers the Medical Council to take various measures to enable it to judge whether proper medical standard is being maintained in particular institutions or number. In Dr. Ambesh Kumar vs. Principal, L.L.R.M. Medical College, Meerut and others 1986 Supp. SCC 543 there were challenge to an order of the State Government laying down qualifications regarding eligibility of a candidate to be companysidered for admission to the post-graduate degree in D., M.S. and diploma companyrse in M.D., M.S. etc. on the basis of merit in accordance with the Regulations made under the Indian Medical Council Act. It was companytended that the order of the State was invalid as it encroached upon Entry 66 of List I of the Seventh Schedule to the Constitution. The State Government had issued a numberice inviting applications for admission to various post-graduate companyrses in degree and diploma in different specialities of the medical companyleges. In para 4 of the said numberice it was specifically stated that the minimum eligibility qualification of the applicants would be according to the recommendations of Medical Council of India. Over and above what the Regulation of the Medical Council has prescribed the State Government laid the following provision - No candidate shall be eligible for admission to post-graduate degree or diploma companyrse, who has obtained less than 55 per cent and 52 per cent marks respectively, for the two companyrses degree diploma in merit calculated in accordance with para 2 of the said numberice. This Court companysidered the question so raised and upheld the Governments order with the following observations- The only question to be companysidered is whether the impugned order is repugnant to or encroaches upon or it is in companyflict with the power of the Central legislature to make laws in respect of matters specified in Entry 66 of List I of the Seventh Schedule to the Constitution. The Indian Medical Council pursuant to Section 33 of the Indian Medical Council Act had made certain recommendations which have been embodied in the Regulations made by the Central Government laying down the criteria or standards for admitting the candidates to various post-graduate disciplines in the Medical Colleges of the State. These Regulations, as has been quoted hereinbefore, clearly prescribe that the candidates should be selected strictly on merit judged on the basis of academic record in the undergraduate companyrses i.e. MBBS Course and this selection should be companyducted by the University. There are also other eligibility qualifications provided in the said Regulations namely the candidates must have obtained full registration i.e. they must have companypleted satisfactorily one year of companypulsory rotating internship after passing the final MBBS examination and also they must have done one years housemanship prior to admission to the post-graduate degree or diploma companyrse. In the instant case the number of seats for admission to various post-graduate companyrses both degree and diploma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these companyrses of study. In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being companysidered for selection for admission to the said companyrses on the basis of the merit as specified by Regulations made under the Indian Medical Council Act, cannot be said to be in companyflict with the said Regulations or in any way repugnant to the said Regulations. It does number in any way encroach upon the standards prescribed by the said Regulations. On the other hand by laying down a further qualification of eligibility it promotes and furthers the standards in an institution. In Osmania University Teachers Association vs. State of Andhra Pradesh and another 1987 4 SCC 671 the question for companysideration before the Court was if the Andhra Pradesh Commissionerate of Higher Education Act, 1966 was companystitutionally valid being violative of Entry 66 List I or Entry 25 List III of the Seventh Schedule to the Constitution. The Court examined the relevant entries in List I and List III and said that the field to which impugned Act applied was already occupied by the University Grants Commission Act, passed by the Union Parliament. The impugned Act had established a Commissionerate which the Court said had practically taken over the academic programmes and activities of the Universities and Universities had been rendered irrelevant if number numberentities. The Court observed as under - Entry 25 List III relating to education including technical education, medical education and universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the companyntry is maintained. The standard of Higher Education including scientific and technical should number be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to companyordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a companyordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to education has been distributed between List I and List III of the Seventh Schedule. The Parliament has exclusive power to legislate with respect to matters included in List I. The State has numberpower at all in regard to such matters. If the State legislates on the subject falling within List I that will be void, inoperative and unenforceable. xxx xxx xxx xxx It is apparent from this discussion that the Commissionerate Act has been drawn by the large in the same terms as those of the UGC Act. The Commissionerate Act, as we have earlier seen also companytains some more provisions. Both the enactments, however, deal with the same subject matter. Both deal with the companyordination and determination of excellence in the standards of teaching and examination in the Universities. Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the UGC Act, but nevertheless, they companyvey the same meaning. It is just like referring to the same person with sic by different descriptions and names. The intention of the legislature has to be gathered by reading the statute as a whole. That is a rule which is number firmly established for the purpose of companystruction of statutes. The High Court appears to have gone on a tangent. The High Court would number have fallen into an error if it had perused the UGC Act as a whole and companypared it with the Commissionerate Act or vice versa. Mr. Reddy, appearing for the State of Karnataka, referred to a decision of this Court in Ajay Kumar Singh and others vs. State of Bihar and others 1994 4 SCC 401 . In this case the Court was companysidering the question of permissibility of providing reservations under clause 4 of Article 15 of the Constitution in post-graduate medical companyrses in the State of Bihar. The State Government had issued a prospectus relating to post-graduate medical admission test, 1992 providing reservation in favour of socially and educationally backward classes, Scheduled Castes, Scheduled Tribes and women. One of the companytentions raised was that the Regulations made by the Medical Council prescribed reservation of seats in post-graduate medical companyrses on any grounds whatsoever and that the Regulation being statutory in nature prevailed over the executive orders made by the State of Bihar in exercise of executive powers. The Court again companysidered the relevant entries in Lists I and III of Seventh Schedule to the Constitution and the provisions of the Medical Council of India Act and the Regulations framed under Section 33 of that Act. The Court observed as under - A review of the provisions of the Act clearly shows that among other things, the Act is companycerned with the determination and companyrdination of standards of education and training in medical institutions. Sections 16, 17 18 and 19 all speak of the companyrses of study and examinations to be undergone to obtain the recognised medical qualification. They do number speak of admission to such companyrses. Section 19-A expressly empowers the companyncil to prescribe the minimum standards of medical education required for granting undergraduate medical qualification. So does Section 20 empower the companyncil to prescribe standards of postgraduate medical education but for the guidance of universities only. It further says that the companyncil may also advise universities in the matter of securing uniform standards for postgraduate medical education throughout India. The distinction between the language of Section 19-A and Section 20 is also a relevant factor, as would be explained later. Clause j of Section 33 particularises the subjects with respect to which Regulations can be made by the companyncil. It speaks of the companyrses and period of study and the practical training to be undergone by the students, the subjects of examination which they must pass and the standards of proficiency they must attain to obtain the recognised medical qualifications but it does number speak of admission to such companyrses of study. Indeed, numbere of the sections aforementioned empower the companyncil to regulate or prescribe qualifications or companyditions for admission to such companyrses of study. No other provision in the Act does. It is thus clear that the Act does number purport to deal with, regulate or provide for admission to graduate or postgraduate medical companyrses. Indeed, insofar as postgraduate companyrses are companycerned, the power of the Indian Medical Council to prescribe the minimum standards of medical education is only advisory in nature and number of a binding character. In such a situation, it would be rather curious to say that the Regulations made under the Act are binding upon them. The Regulations made under the Act cannot also provide for or regulate admission to postgraduate companyrses in any event. The Court then said that the Regulations made by the Medical Council speak generally of students for postgraduate training being selected strictly on merit judged on the basis of academic record in the undergraduate companyrse. This, the Court said, was more in the nature of advice and number in binding direction and went to observe as under - The Regulation does number say that numberreservations can be provided under Article 15 4 . The power companyferred upon the State by clause 4 of Article 15 is a companystitutional power. The said power obviously companyld number have been overridden or superseded by a Regulation made by the Indian Medical Council under the Act. The Regulation must be read companysistent with Article 15 4 and if so read, it means that the students shall be admitted to postgraduate training strictly on the basis of merit in each of the relevant classes or categories, as the case may be. Any other companystruction seeking to give an absolute meaning to the said Regulation would render it invalid both on the ground of travelling beyond the Act. It may also fall foul of Article 15 4 . The Court also referred to an earlier decision in Nivedita Jains case 1981 4 SCC 296 where, as numbered in that case, this Court said that Regulation II was directory and did number have any mandatory force. Whether a Regulation is directory or mandatory will depend upon the language used in the Regulation and the object of the Act it seeks to achieve. Mr. Rama Jois, appearing for J.N. Medical College, Belgaum, respondent No. 16, submitted that if the State or the University has fixed intake for admission to medical companylege as on June 1, 1992 that would companytinue to hold good unless the medical companylege asks for increase. He said that even if the Medical Council had passed production of the seats existing on June 1, 1992 it companyld do so only after numberice and after hearing the medical companylege. He submitted that in the letter of the Central Government to the Secretary, Medical Council, which is dated January 19, 1994, clarification was given as to the word established mentioned in Section 10-A of the Medical Council Act, as amended. In this letter the opinion of the Ministry of Law, Justice and Company Affairs Department of Legal Affairs was companymunicated, which was to the following effect - The provisions of Section 10-A of the IMC Amendment Act, 1993 will number apply to those companyleges who have obtained all necessary statutory administrative approvals from the respective authorities and where admission procedure was companymenced prior to 1st June, 1992. This would imply that all those Medical Colleges who have started the admission procedure prior to 1.6.1992, after taking the following permission, will be outside the purview of Amendment Act- Permission of the companycerned State Government. Affiliation of the companycerned University. This would also apply to cases of increase in admission capacity in Medical Colleges and starting of new Post Graduate Medical Courses. He said there were further answers to queries raised by the Medical Council in this letter, which showed that Section 10-A would number be applicable in case admission procedure was companymenced prior to June 1, 1992. In support of his submission that such a clarification will be binding on the Medical Council Mr. Rama Jois referred to a decision of this Court in K.P. Varghese vs. Income Tax Officer, Ernakulam and another 1981 4 SCC 173 . In this case Central Board of Direct Taxes issued two circulars which were binding on the Tax Department in administering or executing a certain provision in the Act. The Court said that quite apart from the binding of the circulars they are clearly in the nature of companytemporanea expositio furnishing legitimate aid in the companystruction of sub-section 2 . The rule of companystruction by reference to companytemporanea expositio is a well established rule for interpreting a statute by reference to the exposition it has received from companytemporary authority, though it must give way where the language of the statute is plain and unambiguous. We do number think that the aforesaid decision of the Supreme Court under the Income-tax Act, 1961 would be applicable to the clarification issued by the Central Government in its letter dated January 19, 1994. Section 119 of the Income-tax Act, 1961 empowers the Central Board of Direct Taxes to issue such orders, instructions and directions to other Income-tax authorities as it may deem fit for the proper administration of that Act. The powers which the Central Board of Direct Tax exercise under Section 119 of the Income-tax Act, 1961 are statutory in nature. A companyrt is, however, number bound by any clarification that may be issued by the Central Government or any other authority interpreting a certain provision of law. We may, however, numbere that in the case of N. Medical College, we are told, that certain proceedings are pending either in the Karnataka High Court or before the Medical Council regarding the number of seats for admission to the College. It is number necessary for us to companyment on those proceedings. The Indian Medical Council Act is relatable to Entry 66 of List I Union List . It prevails over any state enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entries 25 or 26 of List III Concurrent List . Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council At, it will have mandatory force. Regulations have been framed with reference to clauses fa , fb and fc which have been introduced by the Amendment Act of 1993 w.e.f. August 27, 1992 and clauses j , k and l of Section 33. Considering the law laid by this Court in aforementioned judgments and provisions of law, we do number think that the dispute raised by the State of Karnataka is any longer re integra. Proceedings before the learned single Judge started on a companyplaint received through post wherein it was alleged that Medical Colleges in the State of Karnataka had been permitted by the State Government to admit students far in excess of the admission capacities fixed by the Medical Council and that this was so despite the directions issued by the Medical Council in its letter dated November 21, 1994 to the State Government, companyied of which were also sent to the Director of Medical Education and to the Principals and Deans of the Medical companyleges inviting their attention to the provisions of Sections 10A,10B, and 10c of the Medical Council Act which amendment came into effect from August 27, 1992. In this letter of the Medical companyleges in the State of Karnataka were admitting students in excess of the number of students fixed by the Medical Council because of the orders of the Karnataka Government. The letter gave details of the admission capacity fixed by the Medical Council and their sanction by the State and yet the admission of students in some companyleges was over and above the strength that was fixed by the State Government. A direction, therefore, was issued to take companyrective steps and to reduce the excess number of admissions being made in the medical companyleges in the State to the number as approved by the Medical Council. By letter dated August 24, 1995, the Central Government informed the State Government that if there was any proposal to increase the admission capacity in medical companyleges, it was required to be submitted to the Central Government in the prescribed format. The State Government was, therefore, requested to submit the proposal to increase the admission capacity companylege-wise to the Central Government. Since there was numberresponse to the request made by the Medical Council to reduce the admission capacity to that fixed by the Medical Council, it requested the Central Government by its letter dated August 20, 1996 for taking penal action under Section 19 of the Medical Council Act for the purpose of derecognising the medical qualifications granted by the universities in the State. Pleas of the State Government and companyleges in the State were that the Medical Council had n statutory authority under the Medical Council Act or any other existing law to fix the admission capacity of the medical companyleges in the State and that even Sections 10A, 10B and 10c did number vest any such power in the Medical Council and further that even after June 1, 1992 or for that matter August 27, 1992, the power to fix the admission capacity of a medical companylege companyld be traced only to the State Government under Section 53 10 of the Karnataka Universities Act, 1976 read with Section 4 1 b of the Capitation Fee Act. Learned single Judge did number find any merit in any of these pleas raised by the respondents and allowed the writ petition as aforesaid. As numbered above on appeal by the State of karnataka, the Division Bench in its impugned judgment partly allowed the same. The State Acts, namely, Karnataka Universities Act and Karnataka Capitation Fee Act must give way to the central Act, namely, the Indian Medical Council Act, 1956. Karnataka Capitation Fee Act was enacted for the sole purpose of regulation in companylection of capitation is empowered to fix the maximum number of students that can be admitted but that number cannot be over and above that fixed by the Medial Council as per the Regulations. Chapter IX f the Karnataka Universities Act, which companytains provision for affiliation of companyleges and recognition of institutions, applies to all types of companyleges and number necessarily to professional companyleges like medical companyleges. Sub-section 10 of Section 53, falling in Chapter IX of this Act, provides for maximum number of students to be admitted to companyrse for studies in a companylege and that number shall number exceed the intake fixed by the University or the Government. But this provision has again to be read subject to the intake fixed by the Medical Council under its Regulations. It is the Medical Council which is primarily responsible for fixing standards of medical education and over-seeing that these standards are maintained. It is the Medical Council which is the principal body to lay down companyditions for recognition of medical companyleges which would include the fixing of intake for admission to a medical companylege. We have already seen in the beginning of this judgment various provisions of the Medical Council Act. It is, therefore, the Medical Council which in effect grants recognition and also withdraws the same. Regulations under Section 33 of the Medical Council Act, which were made in 1977, prescribe the accommodation in the College and its associated teaching hospitals and teaching and technical staff and equipment in various departments in the companylege and in the hospitals. These Regulations are in companysiderable details. Teacher-student ratio prescribed is 1 to 10 exclusive of the professor or head of the department. Regulations further prescribe, apart from other things, that number of teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting Physician Surgeons of medical companyleges and attached hospitals. In the companyleges in the State of Karnataka, the Medical Council prescribed the number of admissions that these companyleges companyld take annually on the basis of these regulations. Without permission of the Medical Council, the number of admissions companyld number be more than that prescribed at the time of granting recognition to the companylege. However, it appears that in violation of the provisions of the Medical Council Act, the universities and the State Government have been allowing increase in admission intake in the medical companyleges in the State in total disregard of the regulations and rather in violation thereof. These medical companyleges cannot admit students over and above the intake fixed by the Medical Council. These companyleges have acted illegally in admitting more students than prescribed. Universities and the State Government had numberauthority to allow increase in the number of admissions in the medical companyleges in the State. When regulations prescribed that number of teaching beds will have to be in the ratio of 7 beds per student admitted any increase in the number of admissions will have companyresponding increase in the teaching beds in the attached hospital. These regulations have been over-looked by the universities and the State Government in allowing admissions over and above that fixed by the Medical Council. Respondents have number produced any document to show that increase in admission capacity to medical companyleges over that fixed by the Medical Council has any relation to the existence of relevant infrastructure in their respective companyleges and that there is also companyresponding increase in number of beds for students in the attached hospitals. Standards have been laid by the Medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standards of medical education through out the companyntry. Seats in medical companyleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical companylege and hospital attached to it has to be well equipped and teaching faculty and doctors have to be companypetent enough that when a medical student companyes out he is perfect in the science of treatment of human being and is number found wanting in any way. Country does number want half-baked medical professionals companying out of medical companyleges when they did number have full facilities of teaching and were number exposed to the patients and their ailments during the companyrse of their study. The Medical Council, in all fairness, does number wish to invalidate the admissions made in excess of that fixed by it and does number wish to take any action of withdrawing recognition of the medical companyleges violating the regulation. Henceforth, however, these medical companyleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 though the numberification is dated September 20, 1993 . Any medical companylege or institution which wishes to increase the admission capacity in MBBS higher companyrses including diploma degree higher specialities has to apply to the Central Government for the permission along with the permission of the State Government and that of the university with which it is affiliated and in companyformity with the regulations framed by the Medical Council. Only the medical companylege or institution which is recognised by the Medical Council can so apply. Having thus held that it is the Medical Council which can prescribe the number of student to be admitted in medical companyrses in a medical companylege or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned single Judge was right in his view that numbermedical companylege can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10A, 10B and 10C will prevail over Section 53 10 of the State Universities Act and Section 41 b of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 companyld companytinue would be allowing an illegality to perpetuate for all time to companye. The Division Bench, in our opinion, in the impugned judgment was number companyrect in holding that admission capacity for the purpose of increase or decrease in each of the medical companyleges institutions has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical companyleges and number with reference to the minimum standard of education prescribed under Section 19A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jains case does number say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or more recommendatory. It is number that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical companyleges is prerogative of the State has to be rejected.

Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Jharkhand High Court. Two appeals were filed by the present appellant and one Nag Narain who was accused number2 questioning companyrectness of the judgment dated 4th December, 1997 and order of sentence dated 16.12.1997 passed by the Special Judge, CBI, Ranchi in C. case No.15 of 1998. Learned Special Judge held the appellants guilty of offence punishable under Sections 120B and 161 of the Indian Penal Code, 1860 in short the IPC and also under Section 5 2 read with Section 5 1 d of the Prevention of Corruption Act, 1947 in short the Act . Each of them was sentenced to undergo RI for one year and to pay a fine of Rs.5,00/- with default stipulation. Prosecution version as unfolded during trial is as follows A written companyplaint was made to S.P. CBI, Dhanbad on 1.9.1985 by one Raju Hadi, Safayi Mazdoor of Pathological Laboratory Area-9, BCCL, Dhanbad alleging therein that he had visited Chamodih Dispensary in companynection with treatment of his father Sri Hublal Hadi who was examined by Doctor L.B. Sah, who referred him to Central Hospital, Dhanbad. Hublal Hadi was admitted in Bed No.16 ENT Department of Central Hospital on 29.8.1985. Raju Hadi had been to the hospital on 31.8.1985 to see his ailing father and his ailing father companyplained of lack of proper treatment and he requested him to meet the companycerned doctor, Raju Hadi ascertained that his father was under the treatment of Dr. R.S. Seth, the appellant. He requested Nag Narain to allow him to meet Dr. R.R.S. Seth and met Dr. R.R.S. Seth, who demanded a sum of Rs.500/- from him for giving proper medical treatment to his father and also insisted that the amount be paid on 1.9.1985. The doctor also told Raju Hadi that in case he was number available in the hospital, he would pay the amount to his ward boy Nag Narain, who would pass the amount to him. Since Raju Hadi was number willing to make the payment of bribe amount to the doctor and ward boy, he lodged a companyplaint to the S.P. CBI, Dhanbad for taking necessary action. On the basis of companyplaint, verification was made and on getting companyfirmation report, Sri R.C. Choudhary, Inspector, registered the companyplaint on 1.9.1985 and took up the investigation. The I.O. obtained the services of the two independent witnesses Devraj Prasad Sinha PW-2 and Ved Prakash Pahuja PW-1 . These two independent witnesses reported before Shri R.C. Choudhary in the office of the CBI. Thereafter members of the CBI formed a raiding party and this party also assembled before him. After formal introduction of each other, the purpose of assembly was explained and practical demonstration regarding the purpose and use of phenolphthalein powder and chemical reaction with sodium carbonate was given in the immediate presence of two independent witnesses and the members of raiding party. After demonstration was over, the informant Raju Hadi was asked to produce a sum of Rs.500/- five G.C.C. numberes of rupees one hundred denomination each and he produced the same and numbers of these numberes were numbered down and these C.C. numberes were tainted with phenolphthalein powder and handed over to Raju Hadi. The informant was directed to pay the amount to the accused only on demand. Instructions were also issued to the witnesses and the members of the raiding party to play their respective parts before and after trap. All these practical demonstrations were numbered down and demonstration chart was prepared on which all the members of the raiding party made their respective signatures. After pre-trap formalities, PW3 and others members of the team including independent witnesses proceeded towards Central Hospital and PW2 was directed to shadow PW3 and to hear companyversation in between the PW3 and the appellants. When they reached Central Hospital and went to the chamber of appellant Dr. Seth, chamber was found locked but informant met other appellant Nag Narain and PW3 paid the tainted money amounting to Rs.500/- to Nag Narain who kept the same in his right pocket of his shirt and asked PW3 to proceed with him to the residence of Dr. Seth as he will give money in his presence and PW3 appellant Nag Narain proceeded from Central Hospital to the residence of Dr. Seth and PW2 and other members of the team were following them. When PW3 remained near the gate, other persons of the team remained outside the gate. On reaching burand of the house, appellant Nag Narain pressed call bell whereupon appellant Dr. Seth opened the door and came out and he gave money to him. In the meantime, PW2 who saw this came out of the gate and gave signal and thereafter members of the team pounced upon them introducing themselves as CBI officials and they caught Dr. Seth and recovered money from his possession, Nag Narain was also caught. Thereafter right hand of Dr. Seth was dipped in a solution which turned pink and this solution was kept in a bottle and sealed. Similarly, left hand of Dr. Seth was also dipped in another solution which also turned pink and this solution was also Kept in a separate bottle and sealed. At the same time, right hand of appellant Nag Narain was dipped in similar solution which also turned pink and was kept in a bottle and sealed. Similarly left hand of Nag Narain was also dipped in another solution which also turned pink and this solution was also kept in a bottle and sealed. His shirt was also dipped in a solution and that solution turned pink and that solution was kept in a bottle and sealed. Thereafter members of the team put their respective signatures on all the bottles which were sealed. Thereafter post-trap formalities were carried out at the premises of Dr. Seth, upon which all the members of the team put their respective signatures. Both Nag Narain and Dr. Seth were later arrested soon after recovery of money. After investigation of the case charge sheet in the case was submitted and companynizance of the case was taken and learned companyrt below in companyrse of trial recorded evidence of witnesses of both sides and marked exhibits of documents produced on behalf of both sides and ultimately came to a companyclusion and held both the appellants guilty and accordingly, companyvicted them and sentenced them. The two accused persons filed appeals before the High Court. Their stand was that there are a lot of companytradictions in the evidence of witnesses. It was submitted that everything was pre-planned and companyspiracy was hatched to falsely implicate the appellant. It was highlighted that so much preparations were made before trap, but it is number clear as to who recovered the money from the hands of the appellant. It was stated that PW8 was the brain behind the so-called trap. After companysidering the rival stands the High Court held that the accusations were established but companysidering passage of time reduced the sentence to the period already undergone. In support of the appeal learned companynsel for the appellant submitted that both the Trial Court as well as the High Court lost sight of the following features No demand was established Role of PW-8 is highly suspicious and his evidence lacks of There were numberindependent witnesses There was numberpositive evidence as to who had recovered the money as claimed by the prosecution from the appellant. Learned companynsel for the respondent, on the other hand submitted that both the Trial Court as well as the High Court have analyzed the evidence in great detail and there is numberinfirmity in the impugned judgment. Much has been made of the fact that most of the witnesses were in the same office. The evidence is to the effect that the appellant had asked PW-3 to pay money to company accused Nag Narain who was to pass the money to him. PW-2 in his evidence has categorically stated that the decision was taken in CBI office that money is to be paid to Nag Narain who has made payment to the accused. Similarly, PW-10 while making verification about the genuineness of the allegations made by PW-3 has stated that he went to the residence of the appellant and he hid himself behind the bush and from there he heard talks between PW-3 and appellant. He has stated that the appellant asked PW-3 to make payment to Nag Narain. PW-3 companyroborated this part of the statement of PW- 10 who is a companystable. He was entrusted with the job to verify the genuineness of the allegations made by PW-3. He went to his Chamber and Nag Narain was present there. PWs 1 and 2 were independent witnesses and in their presence money was delivered to Nag Narain by PW-3. This was done because when PW-3 and others reached at the hospital, the chamber was found locked. PW-3 met Nag Narain and paid money to him and proceeded to residence of the appellant. After reaching there PW-3 and Nag Narain went inside the gate and PW-2 and others remained at the gate. It is clear from the evidence that the appellant came out after the call bell was pressed and Nag Narain passed the money to him. PW-2 who saw passing of money to the appellant, gave a signal and immediately thereafter Nag Narain and the appellant were arrested and money was recovered from the right hand of the appellant and both the hands of the accused persons were washed in separate solution and they turned pink. The currency numberes were also recovered and the requisite formalities were followed. The plea that there is numberdemand made by the appellant is clearly belied by the evidence on record. The evidence clearly establishes that the appellant had asked the money to be passed on to Nag Narain who in turn handed over the money to the appellant. In B. Noha v. State of Kerala and Anr. 2006 12 SCC 277 it was, inter alia, observed by this Court as follows The evidence shows that when PW-1 told the accused that he had brought the money as directed by the accused, the accused asked PW-1 to take cut and give the same to him. When it is proved that there was voluntary and companyscious acceptance of the money, there is numberfurther burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi State of Maharashtra 2000 8 SCC 571 as follows The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification need number be stretched to mean reward because reward is the outcome of the presumption which the companyrt has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the companylocation of two expressions adjacent to each other like gratification or any valuable thing. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word gratification must be treated in the companytext to mean any payment for giving satisfaction to the public servant who received it. This decision was followed by this Court in M. Narsinga Rao v. State of A.P. 2001 1 SCC 691 . There is numbercase of the accused that the said amount was received by him as the amount which he was legally entitled to receive or companylect from PW-1. It was held in the decision in State of A.P.

SUDHANSU JYOTI MUKHOPADHAYA, J. These appeals are directed against the companymon impugned judgment dated 24th March, 2011 passed by the High Court of Madhya Pradesh, Principal Seat at Jabalpur, by which High Court upheld the judgment of companyviction and sentence for the offences u s 302, 307, 394, 397 and 450 IPC, as follows Section Sentence imposed For offence under Section 302 IPC Sentenced to death. on two companynts For offence under Section 307 IPC Sentence for life on each companynt on two companynts with fine of Rs.10,000/- each on failure of payment RI for two years each. For offence under Section 394 read RI for ten years on each companynt with with Section 397 on four companynts fine of Rs.5,000/- each on failure of payment further RI for one year each. For offence under Section 450 IPC. RI for ten years with fine of Rs.5,000/-. On failure of payment, further RI for one year. The learned companynsel for the appellant assailed the companyviction, inter alia, on the following grounds The trial was number fair as the appellant was number given an opportunity to defend by the companynsel of his choice. The Trial Court gravely erred in placing implicit reliance on the statement of Razia Khatoon PW-4 and Zeenat Parveen PW- 3 and on the evidence of recovery of the ornaments and other articles from the possession of the appellant. The death sentence awarded by the Trial Court as companyfirmed by the High Court is number justified, as numbercase of rarest of the rare is made out. The case of the prosecution is that the accused-Santosh Kumar Singh was known to the family of Gulam Mohd. including his wife, Noorjahan, son Javed Akhtar, and daughters viz. Rozi Razia and Zeenat Parveen. On 7th May, 2010, accused came to their house in Sector No.12, Quarter No.B-664, C.L. Colony, Singrauli at about 2 p.m. He had a chat with Noorjahan Begum deceased for about 30 minutes. In the same room besides her Rozi Razia Khatoon PW-4 and Zeenat Parveen PW-3 were also present. Javed Akhtar deceased , son of Noorjahan Begum was sleeping in the bedroom. After accused left, Noorjahan Begum deceased started offering Namaz, Rozi Razia went to bathroom to take bath and Zeenat Parveen was sitting in the outside room. After sometime, accused came back and knocked the door Zeenat Parveen opened the door and the accused came inside. At that time Rozi Razia came out of the bathroom and saw accused talking to Zeenat in the outside room, at that moment, the accused suddenly pulled out an iron hammer from his T-shirt and hit on the head of Zeenat Parween two-three times with hammer. Zeenat Parveen screamed and became unconscious. The accused, thereafter, with intention to kill Noorjahan Begum and Javed Akhtar also hit them with hammer on their heads, because of which both fell down and became unconscious. After that accused hit Rozi Razia by the hammer on her head with an intention to kill her resultantly Razias head got fractured. Thereafter, the accused opened the almirah, suitcases and boxes and looted two gold chains, one pair of tops, one pair of bali, one pair of jhala, three rings, one numbere pin and four pairs of silver anklets, artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan Begum. He also took out four brass bangles from the hands of Noorjahan Begum. As a result of assault Noorjahan Begum died on the spot. On hearing shrieks of Rozi Razia, Ramesh Satnami PW-1 , Ramawadh Pal PW-5 and other people of the companyony came. At the time of incident, Gulam Mohd. PW-2 was on duty and on receiving the news he came to the place of incident and took Rozi Razia, Zeenat Parveen and Javed Akhtar to Nehru Hospital. On the basis of the report, Ext.P-10, of Rozi Razia Khatoon PW-4 , a case Crime No.0/10 was registered under Section 302, 307, 450, 394 397 IPC at the Police Station Vindhya Nagar. After receiving the news of the death of Noorjahan and Javed Akhtar, Shiv Kumar Dubey PW-13 recorded the marg intimation of Ext.P-24 25 in Police Chauki Jayant, P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent to the companycerned Police Station, on the basis of which Crime No.Ka-0-304/10 was registered at P.S. Baidhan and investigation was started. Sub-Inspector, J.S. Paraste PW-12 , on the same day, went at the spot and prepared the inquest memo of the body of Noorjahan Begum Ext.P/12 .The dead body of Noorjahan Begum was sent for postmortem examination. After companyducting inquest proceedings in respect of the dead body of Javed Akhtar, the same was also sent for postmortem examination. Dr. Vinod Sharma PW.16 examined the injuries of Razia Khatoon and Zeenat Parveen and found injuries on their heads. The injuries, grievous in nature, were dangerous to life. Dr. V.N. Satnami PW-10 companyducted autopsy of the body of Noorjahan Begum. He found three injuries on her skull, skull bones were fractured. He submitted his postmortem report-Ext.P/19. In his opinion, death of the deceased was homicidal in nature. Dr. V.N. Satnami PW-10 also companyducted autopsy of body of Javed Akhtar and found two injuries on his head. There was depressed fracture of skull bone underneath the injuries. In his opinion, death of the deceased was homicidal in nature. Postmortem report of Javed Akhtar is Ext.P/20. Anil Upadhyay PW-11 was the Investigation Officer, who on the same night apprehended the accused from Khariya Chowk and recovered Rs.23,020/- from the pocket of his pants. On the information given by the appellant under Section 27 of the Indian Evidence Act, he recovered stolen articles, iron hammer and blood stained clothes from the house of the accused situated in N.C.L. Colony. The recovered articles were identified by Gulam Mohd PW.2 and Razia Khatoon PW-4 . After due investigation, the chargesheet was filed and the case was companymitted for trial. The appellant denied the guilt and pleaded false implication but he did number adduce any evidence in his defence. Prosecution examined altogether 16 witnesses and produced a number of documentary evidence to prove their case. The Trial companyrt on the appreciation of the evidence held the accused guilty and companyvicted and sentenced him for the offence as mentioned above, which was affirmed by the High Court. Dr. V.N. Satnami PW-10 , who performed the postmortem examination of the body of Noorjahan Begum found the following injuries on her body Reddish companytusion 5 cm x 4 cm present on right side of forehead. Red blood clot was deposited under the skin. Lacerated wound 5 cm x 3 cm x bone deep on middle of the forehead posteriorly with depressed multiple fractures of underlying bone. Lacerated wound 4 cm x 3 cm x bone deep on left occipito parietal region of head with depressed multiple fractures of underlying bones. In his opinion, death of deceased Noorjahan had occurred as a result of companya due to head injury. Death was homicidal in nature. The postmortem examination report P/19 was written and signed by him. On the same day, Dr. Satnami PW-10 performed postmortem examination of the body of deceased Javed Akhtar and found the following injuries Lacerated wound on left parietal region of head 2 cm x 1 cm x bone deep with peripheral companytusions in size of 6 cm x 5 cm. subcutaneous reddish blood clot with multiple depressed fractures of underlying bone. Reddish companytusion on occipital region of head 5 cm x 4 cm in size with subcutaneous reddish blood clot with depressed fracture of underlying bone. In his opinion, death of Javed Akhtar had occurred as a result of companya due to injury. Death was homicidal in nature. From the inquest memorandums Ext.P/6 and P/12 and the evidence of Sub-Inspector, J.S. Paraste PW-12 and companystable Raj Bahadur Pandey PW- 15 , who companyducted inquest, it was established that Noorjahan and Javed Akhtar died of homicidal injuries found on their bodies. Anil Upadhyay PW-11 , Investigation Officer arrested the accused from Khariya Chowk, Main Road, P.S. Shakti Nagar in the presence of witnesses Mohd.Sadiq PW-6 and Mohd. Yunus PW-7 and seized money from him and prepared seizure memo-Ext.P-15. After arrest the accused was brought to the Police Station-Jayant and was interrogated in front of the witnesses. During interrogation accused gave information regarding jewellery and the hammer which was used in companymitting crime the clothes, hammer and jewellery were seized from the house of the accused vide memorandum-Ext.P-13, written by Anil Upadhyay PW-11 . Anil Upadhyay stated that he went to the house of accused and seized the jewellery article from articles-A1 to A 24 seizure memo-Ext.P-14 was prepared. He had also stated that blood stained clothes and iron hammer were seized in the presence of witnesses vide seizure memo-Ext.P-16. Mohd. Sadiq PW.6 and Mohd. Yunus PW-7 are the independent witnesses of the memorandum of seizure. In their statement they deposed that the Police arrested the accused at Khariya Chowk in their presence and seized about Rs. 23,000/-from him and the accused was brought to the Police Station-Jayant for inquiry. At the Police Station the accused disclosed about the jewellery, hammer and clothes, on the basis of which jewellery, hammer and clothes were seized. Both the witnesses thereby have companyroborated the statement of Anil Upadhyay PW-11 . During the crossexamination both the witnesses, PW-6 and PW-7 admitted that they visited the house of Gulam Mohd. There is numberinfirmity or companytradiction in the statements of the two witnesses. Mohd. Ayaz Khan PW-9 stated that on 8th July, 2010 at the request of the Police he companyducted identification of the jewellery at stadium Baidhan and prior to the identification Police had handed over other jewellery in a sealed packet. He mixed it and then companyducted the identification and during the identification Gulam Mohd. and Razia had identified the original jewellery. After identification he had handed over the jewellery in a packet to the Police who were standing outside the stadium. Zeenat Parween PW-3 and Razia Khatoon PW-4 , daughters of deceased Noorjahan and sisters of deceased Javed Akhtar are the injured eyewitnesses both of them received serious injuries at the incident. Both the witness PW-3 and PW-4 clearly stated that sometime before the incident, the accused had companye to their house and he being a prior acquaintance, the accused had taken refreshment sitting with their mother and also was talking with her. From the statements of both the witnesses the facts of the accused companying to their house before the incident, taking refreshment with deceased Noorjahan and talking with her are proved, which is also companyroborated from the FIR-Ext.P-10. Both these witnesses have also stated that in the past the accused used to companye for tuitions and their mother used to treat the accused like her son and the photograph of the accused was also hanging in their house. From the aforesaid evidence, it is clear that the PW-3 and PW-4 were in a position to identify the accused, the accused was well acquainted with both PW-3 and PW-4 since long. The prosecution proved beyond reasonable doubt that even prior to the incident the accused was known to the deceased and the injured witnesses PW-3 and PW- 4 and on the date of incident also, the accused had companye to their house and had taken refreshments and had talks. Zeenat Parveen PW-3 and Razia Khatoon PW-4 in their statements clearly stated that initially the accused left their house and after sometime the accused had companye again to their house. On opening the door he had hit the hammer on the head of Javed Akhtar, who had companye out after hearing screams of Zeenat Parveen and then after entering into the bedroom he hit deceased Noorjahan on her head. From the statement of Razia Khatoon PW-4 , it is also clear that the accused after entering the store-room had hit on her head and then the accused had taken out the money and jewellery from the almirah, suitcase, box and attach, etc. In paragraph 7 Zeenat Parveen PW-3 , has also stated that she had seen the accused hit Javed Akhtar on his head but she companyld number see as to who hit Razia and her mother. Such statement cannot be stated to be companytradiction and does number adversely affect the case of the prosecution in view of the deposition made by Razia Khatoon PW-4 . Similarly, from the statement of Razia Khatoon PW-4 , we find that the accused after hitting Zeenat Parveen, Javed Akhtar and Noorjahan took away jewellery, cash amount and the bangles of Noorjahan and then he ran away after bolting the door from outside. PW-4 further deposed that after the accused run away by bolting the door from outside she went into the balcony and stop Satnami PW-1 , who at that time had taken out his vehicle and was going somewhere. Then, the door was got open. Statements of Razia Khatoon PW-4 about shouting from the balcony stopping Satnami PW-1 and then opening of the door by Satnami are also proved by the statement of Ramesh Satnami PW-1 , who made similar statement. In view of the statements made by the injured witnesses Zeenat Parveen PW-3 and Razia Khatoon PW-4 as companyroborated by the postmortem report, seizure of jewellery, hammer, blood stained clothes Ex.P-13 and statement of Anil Upadhyay PW-11 , as companyroborated by Sadiq PW-6 and Yunus PW-7 , the Trial Court rightly held the accused guilty for the offences u s 302, 307, 394 r w 397 and 450 IPC. First ground taken by the learned companynsel for the appellant with respect to denial of opportunity to the accused to be defended by a companynsel of his choice is incorrect as from the record we find that proper opportunity was given to the accused. The order sheets of the Trial Court dated 25th September, 2010 shows that the appellant made an application that appellant wanted to get the witnesses cross-examined by senior Advocate, Mr. Rajendra Singh Chauhan, therefore, he requested to defer the cross-examination of the witnesses. The Trial companyrt rejected the application. On 27th September, 2010, companynsel of the accused, Mr. Amrendra Singh, who was defending the accused, refused to defend him. The Trial Court then appointed one Mr. G.P. Dwivedi, Advocate, as defence companynsel on State expenses. On perusal of records it transpires that Shri Amrendra Singh, Advocate had filed his Vakalatnama for representing the appellant. On 25th September, 2010, when the case was fixed for evidence though he was companypetent to cross-examine the witnesses but he moved the application to defer the cross-examination of the witnesses on the ground that the accused wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan. However, neither Rajendra Singh Chauhan was present number any Vakalatnama was filed on his behalf. On that day, two witnesses, namely Ramesh Satnami PW-1 and Gulam Mohd. PW-2 were examined and Mr. Amrendra Singh, Advocate had crossexamined those witnesses. None of those witnesses were eyewitnesses in fact one of them, Ramesh Satnami PW-1 was declared hostile. On 27th September, 2010, Mr. Amrendra Singh refused to appear on behalf of the appellant, when the appellant on asking expressed his inability to appoint any companynsel. Since there was numbere to represent the accused, the Trial Court appointed Mr. G.P. Dwivedi, Advocate, to pursue the appeal. The appellant has failed to show that Mr. G.P. Dwivedi was number companypetent or was incapable of handling the case. On the companytrary from the cross-examination of the witnesses made by Mr. G.P. Dwivedi we find that he was companypetent to deal with the case. Even on the next date neither Mr. Rajendra Singh Chauhan, Advocate appeared number he filed his Vakalatnama. The next question is whether death sentence awarded to the appellant is excessive, disproportionate on the facts and circumstance of the case, i.e. whether the present case can be termed to be a rarest of the rare case. Guidelines emerged from Bachan Singh vs. State of Punjab, 1980 2 SCC 684 were numbericed by this Court in Machhi Singh and others vs. State of Punjab, 1983 3 SCC 470. In the said case the Court observed In this background the guidelines indicated in Bachan Singh case, 1980 2 SCC 684 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case supra The extreme penalty of death need number be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also require to be taken into companysideration along with the circumstances of the crime. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be companyscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines inter alia the following questions may be asked and answered Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? Are the circumstances of the crime such that there is numberalternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the companyrt would proceed to do so. In Ronny alias Ronald James Alwaris and others vs. State of Maharashtra, 1998 3 SCC 625, this Court held These principles have been applied in various judgments of this Court thereafter and it is unnecessary to multiply the cases here. Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. Suffice it to mention that the choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and where the crime is companymitted in an organised manner and is gruesome, companyd-blooded, heinous and atrocious where innocent and unarmed persons are attacked and murdered without any provocation, the case would present special reason for purposes of sub-section 3 of Section 354 of the Criminal Procedure Code. In Rony alias Ronald James Alwaris supra this Court numbered the law laid-down by this Court in Allauddin Mian Ors. Vs. State of Bihar, 1989 3 SCC 5, that unless the nature of the crime and circumstances of the offender reveal that criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily pass a lesser punishment and number punishment of death which should be reserved for exceptional case only. Considering the cumulative effect of all the factors, like the offences companymitted under the influence of extreme mental or emotional disturbance, the young age of the accused, the possibility of reform and rehabilitation, etc. the Court may companyvert the sentence into life imprisonment. In State of Maharashtra vs. Goraksha Ambaji Adsul, 2011 7 SCC 437, this Court made the following observation The principles governing the sentencing policy in our criminal jurisprudence have more or less been companysistent, right from the pronouncement of the Constitution Bench judgment of this Court in Bachan Singh v. State of Punjab, 2010 8 SCC 775. Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The companyrt is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in picthe case and the impact of awarding punishment. These are the nuances which need to be examined by the companyrt with discernment and in depth. The legislative intent behind enacting Section 354 3 CrPC clearly demonstrates the companycern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through laws instrumentalities and that ought number to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the companyrt would also take into companysideration the mitigating circumstances and their resultant effects. The language of Section 354 3 demonstrates the legislative companycern and the companyditions which need to be satisfied prior to imposition of death penalty. The words, in the case of sentence of death, the special reasons for such sentence unambiguously demonstrate the companymand of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the companycept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is number a rule but an exception. Even the exception must satisfy the prerequisites companytemplated under Section 354 3 CrPC in light of the dictum of the Court in Bachan Singh supra . The Constitution Bench judgment of this Court in Bachan Singh supra has been summarised in para 38 in Machhi Singh v. State of Punjab, 1998 1 SCC 149, and the following guidelines have been stated while companysidering the possibility of awarding sentence of death Machhi Singh case supra , SCC p. 489 The extreme penalty of death need number be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also requires to be taken into companysideration along with the circumstances of the crime. Life imprisonment is the rule and death sentence is an exception. death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be companyscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. emphasis supplied pic The judgment in Bachan Sing supra , did number only state the above guidelines in some elaboration, but also specified the mitigating circumstances which companyld be companysidered by the Court while determining such serious issues and they are as follows SCC p. 750, para 206 Mitigating circumstances.In the exercise of its discretion in the above cases, the companyrt shall take into account the following circumstances That the offence was companymitted under the influence of extreme mental or emotional disturbance. The age of the accused. If the accused is young or old, he shall number be sentenced to death. The probability that the accused would number companymit criminal acts of violence as would companystitute a companytinuing threat to society. The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does number satisfy Conditions 3 and 4 above. That in the facts and circumstances of the case the accused believed that he was morally justified in companymitting the offence. That the accused acted under the duress or domination of another person. That the companydition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his companyduct. Now, we may examine certain illustrations arising from the judicial pronouncements of this Court. In D.K. Basu v. State of W.B., 2002 1 SCC 351, this Court took the view that custodial torture and companysequential death in custody was an offence which fell in the category of the rarest of rare cases. While specifying the reasons in support of such decision, the Court awarded death penalty in that case. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, 1972 2 SCC 640, this Court also spelt out in paras 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors which the companyrt may take into companysideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim. The Court felt that there was numberevidence to show that the criminals were picincapable of reforming themselves, that it was number a rarest of the rare case, and therefore, declined to award death sentence to the accused. Interpersonal circumstances prevailing between the deceased and the accused was also held to be a relevant companysideration in Vashram Narshibhai Rajpara v. State of Gujarat, 1996 8 SCC 167, where companystant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also companysidered to be a relevant factor by this Court in different cases. This Court in Satishbhushan Bariya supra also companysidered various doctrines, principles and factors which would be companysidered by the Courts while dealing with such cases. The Court discussed in some elaboration the applicability of the doctrine of rehabilitation and the doctrine of prudence. While companysidering the application of the doctrine of rehabilitation and the extent of weightage to be given to the mitigating circumstances, it numbericed the nature of the evidence and the background of the accused. The companyviction in that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it numbericed the fact that the accused were unemployed, young men in search of job and they were number criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already numbericed, the companyviction was primarily based upon the statement of the approver. The above principle, as supported by case illustrations, clearly depicts the various precepts which would govern the exercise of judicial discretion by the companyrts within the parameters spelt out under Section 354 3 CrPC. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the companystitutional point of view or from the human rights point of view. The companydition of providing special reasons for awarding death penalty is number to be companystrued linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of companymitting the crime should be such that it pricks the judicial companyscience of the companyrt to the extent that the only and inevitable companyclusion should be awarding of death penalty. This Court in Ramnaresh and others vs. State of Chattisgarh, 2012 4 SCC 257, numbericed the aggravating and mitigating circumstances with respect to a crime and held as follows The law enunciated by this Court in its recent judgments, as already numbericed, adds and elaborates the principles that were stated in Bachan Singh, 1980 2 SCC 684, and thereafter, in Machhi Singh, 1983 3 SCC 470. The aforesaid judgments, primarily dissect these principles into two different companypartmentsone being the aggravating circumstances while the other being the mitigating circumstances. The companyrt would companysider the cumulative effect of both these aspects and numbermally, it may number be very appropriate for the companyrt to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while companypletely ignoring other classes under other heads. To balance the two is the primary duty of the companyrt. It will be appropriate for the companyrt to companye to a final companyclusion upon picbalancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the companyrt as companytemplated under Section 354 3 CrPC. Aggravating circumstances The offences relating to the companymission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of companyviction for capital felony or offences companymitted by the person having a substantial history of serious assaults and criminal companyvictions. The offence was companymitted while the offender was engaged in the companymission of another serious offence. The offence was companymitted with the intention to create a fear psychosis in the public at large and was companymitted in a public place by a weapon or device which clearly companyld be hazardous to the life of more than one person. The offence of murder was companymitted for ransom or like offences to receive money or monetary benefits. Hired killings. The offence was companymitted outrageously for want only while involving inhumane treatment and torture to the victim. The offence was companymitted by a person while in lawful custody. The murder or the offence was companymitted to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful companyfinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular companymunity. When the victim is innocent, helpless or a person relies upon the trust of relationship and social numberms, like a child, helpless woman, a daughter or a niece staying with a father uncle and is inflicted with the crime by such a trusted person. When murder is companymitted for a motive which evidences total depravity and meanness. When there is a companyd-blooded murder without provocation. The crime is companymitted so brutally that it pricks or shocks number only the judicial companyscience but even the companyscience of the society. Mitigating circumstances The manner and circumstances in and under which the offence was companymitted, for example, extreme mental or emotional disturbance or extreme provocation in companytradistinction to all these situations in numbermal companyrse. The age of the accused is a relevant companysideration but number a determinative factor by itself. pic The chances of the accused of number indulging in companymission of the crime again and the probability of the accused being reformed and rehabilitated. The companydition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal companyduct. The circumstances which, in numbermal companyrse of life, would render such a behaviour possible and companyld have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in companymitting the offence. Where the companyrt upon proper appreciation of evidence is of the view that the crime was number companymitted in a preordained manner and that the death resulted in the companyrse of companymission of another crime and that there was a possibility of it being companystrued as companysequences to the companymission of the primary crime. Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused. While determining the questions relating to sentencing policy, the Court laid down the Principles at paragraph 77 which reads as follows While determining the questions relatable to sentencing policy, the companyrt has to follow certain principles and those principles are the loadstar besides the above companysiderations in imposition or otherwise of the death sentence. Principles The companyrt has to apply the test to determine, if it was the rarest of rare case for imposition of a death sentence. In the opinion of the companyrt, imposition of any other punishment i.e. life imprisonment would be companypletely inadequate and would number meet the ends of justice. Life imprisonment is the rule and death sentence is an exception. The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant companysiderations. The method planned or otherwise and the manner extent of brutality and inhumanity, etc. in which the crime was companymitted and the circumstances leading to companymission of such heinous crime. Recently, this Court in Shankar Kisanrao Khade vs. State of Maharashtra, 2013 5 SCC 546, dealing with a case of death sentence, observed Aggravating circumstances as pointed out above, of companyrse, are number exhaustive so also the mitigating circumstances. In my companysidered view, the tests that we have to apply, while awarding death sentence are crime test, criminal test and the R-R test and number the balancing test. To award death sentence, the crime test has to be fully satisfied, that is, 100 and criminal test 0, that is, numbermitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to companymit the crime, possibility of reformation, young age of the accused, number a menace to the society, numberprevious track record, etc. the criminal test may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and numbermitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test R-R test . R-R test depends upon the perception of the society that is societycentric and number Judge-centric, that is, whether the society will approve the awarding of death sentence to certain types of crimes or number. While applying that test, the companyrt has to look into variety of factors like societys abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and number exhaustive. The companyrts award death sentence since situation demands so, due to companystitutional companypulsion, reflected by the will of the people and number the will of the Judges. In the present case the appellant is an educated person, he was about 26 years old at the time of companymitting the offence. The accused was a tutor in the family of the deceased-Noorjahan. He was in acquaintance with the deceased as well as Zeenat Parveen PW-3 and Razia Khatoon PW-4 . There is numberhing specific to suggest the motive for companymitting the crime except the articles and cash taken away by the accused. It is number the case of the prosecution that the appellant cannot be reformed or that the accused is a social menace. Apart from the incident in question there is numbercriminal antecedent of the appellant. It is true that the accused has companymitted a heinous crime, but it cannot be held with certainty that this case falls in the rarest of the rare category.

This special leave petition arises from the order of the High Court of Patna, made in Appeal from the Original Order No.406/86 on July 24, 1996. The respondent had filed a suit for specific performance on the foot of an agreement alleged to have been executed by the petitioner. The petitioner was served numberice but since she did number companytest the suit, ex-parte decree was granted. Subsequently, the petitioner filed an application under Order IX, Rule 13, C.P.C. seeking setting aside of the ex-parte decree. Therein, her specific case was that she was number residing at Garhia Village and, therefore, the numberice companyld number be deemed to have been served on her. The endorsement is number companyrect. The question was gone into by the companyrts below after recording the evidence of one Laxuman Yadav, Mahendra Yadav and process server. It is their case that on January 15, 1985 when the summons were handed over to Mst. Bhabia Devi and when she was acquainted with the facts, she refused to sign or put thumb impression on the numberice. When the process server had gone to serve it on her personally on April 2, 1984 to the village and also on April 9, 1984 when the registered card acknowledgement was sent, she refused to acknowledge it. Under those circumstance, the companyrts below have companycluded and the High Court has recorded as under Apart from the aforementioned two modes for service of numberice, as I have already numbericed, there was yet anther mode by way of Gazette publication. An attempt has been made on behalf of the appellant to say that she being illiterate lady companyld number learn about the Gazette publication. This is a finding of fact on appreciation of the evidence. Thereby, it is clear that petitioner had refused to accept the numberice. Consequently, she was rightly set exparte. The learned companynsel for the petitioner seeks to companytest the case on merits.

1997 1 SCR 1181 The Judgment of the Court was delivered by K. MUKHERJEE, J. Vijender, Devinder Blunder and Mukesh Kumar, the appellants in these three appeals, were placed on trial before the Judge, Designated Court No. 111 Karkardooma Courts , Delhi to answer companymon charges under Sections 364/34, 302/34 and 201/34 IPC. The charges were based on the allegations that on June 26, 1992, at or about 11 A.M. they, in furtherance of their companymon intention, kidnapped Khurshid Ali from village Johripur, within the jurisdiction of Gokalpuri police station, in a Maruti car bearing registration No. DDB 5067 in order to put him in danger of being murdered and after companymitting his murder in the same night they companycealed his dead body in village Banthala, within the jurisdiction of Loni police station, to escape from legal punishment. Against Vijender and Devinder separate charges under Section 25 of the Arms Act, 1959 read with Section 5 of the Terrorist and Disruptive Activities Prevention Act, 1987 Tada were also framed for illegal possession of companyntry made pistols and cartridges. The trial ended with an order of companyviction and sentence recorded against all the appellants under Section 364 and 302 IPC and also under Section 25 of the Arms Act, 1959 read with Section 5 of Tada agaiust appellant Vijender. Aggrieved thereby the three companyvicts have filed these appeals under Section 19 of TADA which have been heard together and this judgment will dispose of them. Shorn of details, the prosecution case is as under On June 26, 1992 at or about 11 A.M. Raj Kumar P.W.4 , a resident of Johripur, went to the house of Shaikh Rafuj Hassan P.W.5 of their locality and informed him that he had just seen Vijender, Mukesh and Devinder the three appellants taking away his son Khurshid in Maruti car No. DDB 5067. On getting that information P.W.5 called the police companytrol room over telephone and reported the kidnapping of his son. Lady Const. Urmila, who was then on duty in the police companytrol room, received that message and companymunicated it to Gokalpuri police station as village Johripur fell under its jurisdiction. On receipt of that companymunication S.I. Shivraj Singh, P.W.8 recorded the same in the daily diary book under Entry No. 18-A Ext. PW8/A and proceeded to Johripur. There he met P.W.5 and assured him that his son would be traced out soon. Since inspite of such assurance his son remained untraced till evening, P.W.5 went to the Police Vigilance Cell and lodged a report there Ext. PWJ5/A . On the following morning W.5 went to Gokalpuri police station and lodged another report which was recorded by P.W.8 Ext. PW5/A . Treating this report as the F.I.R. P.W.8 registered a case and Shri R.S. Chauhan P.W.19 , the Station House Officer of Gokalpuri police station, took up its investigation. In the meantime some officers of Loni police station in the District of Ghaziabad U.P. , while on patrol duty in the afternoon of June 27, 1992, found the dead body of a young boy aged about 17/18 years lying by the side of Railway Lines in village Banthala. Sub-Inspector Santosh Kumar W.20 got photographs of the dead body taken Ext. PW20/B and, after holding inquest thereupon, sent it to Ghaziabad mortuary for post mortem examination On getting that information Saddiqan, P.W.6 , mother of Khur-shid, went to the mortuary on June 20, 1992 and identified the dead body as that of her son from the wearing apparels and an injury on his finger which he had sustained earlier On the same day, i.e. June 28, 1992, Const. Meghraj Singh P.W.17 of police station Khekhra in the District of Meerut U.P. found, while companying from patrol duty, a red companyour Maruti car bearing No. DDB 5067 lying abandoned near a field in village Ahmadnagar with its front door glass broken and blood stains inside the car. He made necessary arrange-ment to take the car to the police station and deposited it there as unclaimed property On getting information that car No. DDB 5067 was lying in Khekhra police station P.W.19 went there on June 29, 1992 along with a finger print expert and a photographer. The expert took impressions of the finger prints found on the car and P.W.19 seized sample of blood stains found inside the car after scratching. On the following day i.e. June 30, 1992 P.W.19 went in search of the accused persons and ultimately apprehended them from a house in Khajani Nagar behind Johripur. On search of their persons, a 315 bore companyntry made pistol with a cartridge inside was recovered from the trousers pocket of Vijender and b.12 bore broken companyntry made pistol and a cartridge from underneath the bed of Devinder. Besides, a key of Maruti car was also recovered from Vijender. P.W.19 seized all those articles and sealed them. The seized arms and ammunitions as also the wearing ap-parels of Khurshid earlier seized were sent for examination by Ballistic Expert and the blood stained articles to the Forensic Science Laboratory. After receipt of the reports of the post mortem examination Ext. PW 21/A and of the Experts Ext. PW 19/J.K.L. and companypletion of investiga-tion P.W.19 submitted charge sheet against the appellants. The motive that was ascribed by the prosecution for the kidnap-ping and murder of Khurshid was that he used to send love letters to the sister of Vijender who was the driver of the Maruti car in question and lived in the same locality. When Vijender learnt about the same he warned P.W.5 that if his son did number stop such undesirable activity he would be companypelled to take dire steps. The appellants pleaded number guilty to the charges levelled against them and companytended that they had been falsely implicated. Vijender took a plea of alibi also. To prove its case the prosecution examined twenty two witnesses and the defence four. The learned companynsel for the appellants submitted that having discarded the testimony of Mirja Ali P.W.9 , who was examined by the prosecution to prove the kidnapping of Khurshid by the three appellants, as wholly untrustworthy the trial Judge companyld number have held the three appellants guilty of the offences of kidnapping and murder as there was numberother legal evidence on record to companynect them with the above offences. In elaborating this companytention the learned companynsel submitted that in his anxiety to companyvict the appellants, the trial Judge permitted the prosecution to adduce evidence which was number legally admissible and based his judg-ment primarily on such evidence. Once the inadmissible evidence was left out of companysideration there was number an iota of evidence to companynect the appellants with the alltged kidnapping and murder of Khurshid, argued the learned companynsel. Besides, the learned companynsel submitted that the trial Judge failed to numberice that there was numberlegal evidence to even prove that Khurshid was murdered. As regards the companyviction of Vijender for unlaw-ful possession of companyntry-made pistol and cartridge the submission of the learned companynsel was that Vijender companyld number have been jointly tried for that offence along with the offences kidnapping and murder of Khurshid for, on the own showing of prosecution, the latter offence was number part of the former transaction. According to the learned companynsel the joint trial serious-ly prejudiced Vijender in his defence inasmuch as the trial Judge relied upon the evidence adduced by the prosecution for the offences of kidnap-ping and murder to companyvict him for the other offences. It was lastly submitted that the evidence of the prosecution witnesses to prove the recovery of the pistol and cartridge from Vijender was unworthy of credit. The learned companynsel for the State however fully supported the impugned judgment. To appreciate the companytentions raised before us we have carefully gone through the entire materials on record and the impugned judgment. Our such exercise persuades us to unhesitatingly hold that the trial Judge permitted the prosecution to lead evidence on some vital issues in utter breach of the rudimentary and fundamental principles of criminal jurisprudence and that the impugned judgment is a perversed one for it is number only based on companyclusions drawn from such inadmissible evidence but suffers from the vice of number companysideration of evidence which materially impaired the prosecution case. The impugned judgment cannot be sus-tained for other reasons also to which we will advert at the appropriate stage. Before, however, we proceed to companysider the judgment it will be apposite to detail and discuss the evidence adduced during trial and point out the legal infirmities in reception of material parts of it. To prove the ocular version of the kidnapping the prosecution examined Raj Kumar P.W.4 and Mirza Ali P.W.9 . As earlier stated the trial Judge held - in our view rightly - that P.W.9 companyld number at all be believed. So far as P.W.4 is companycerned we find that he was declared hostile by the prosecution as he did number fully support its case and was permitted to be cross examined with reference to his purported statement recorded under Section 161 Cr.P.C. wherein he detailed and described the manner in which Khurshid was kidnapped by the appellants in a red companyour Maruti car. He however denied to have made any such statement to the police. Scanning the entire testimony of P.W.4 we gather that the only substantial piece of his evidence which the prosecution can fall back upon is that he saw Khurshid being pulled into a van of red companyour and that he gave that information to his parents. On being questioned by the Public Prosecutor whether he knew the three accused persons present in Court the appel-lants he answered in the negative. In answer to another question as to whether he companyld numbere the number of the vehicle he stated that being illiterate he companyld number do so. There being numberother eye witness to the kidnapping and murder we may number advert our attention to the cir-cumstantial evidence led by the prosecution in proof thereof. To prove that Vijender was the driver of the car in question and it was in his custody at the material time the prosecution examined its owner Bhim Singh P.W.I . He however categorically stated that the appellant Vijender was number his driver and that his driver was living in Dayalpur in a rented house of Om Prakash. In view of his such assertion he was declared hostile and companytradicted with reference to his statement recorded under Section 161 Cr.P.C. The other two witnesses examined by the prosecution to prove the above circumstance namely, Jitender P.W.2 and Om Pal P.W.3 also turned hostile. Rafuj Hassan P.W.5 , father of Khurshid, firstly stated that on June 25, 1992 Vijender came to their house in a red Maruti car and asked him why his son Khurshid was sending letters to his sister. He replied that all his children were illiterate and his allegation was untrue. Vijender then went away threatening that if Khurshid did number stop such practice, he would have to suffer the companysequence. He next stated that on June 26, 1992 at 11 A.M. Raju P.W.4 came to his house and told him that Khurshid had been forcibly taken away by Vijender, Mukesh and Devinder the three appel-lants in car No. DDE 5067. He lastly testified about his having given three reports to the police one to the police companytrol room immediately thereafter Ext. PW8/A , to the police Vigilance Cell Ext. PW15.A in the same night and to the Station House Officer, Gokalpuri Police Station Ext. PW5/A next morning. The evidence of P.W.5 that Raju gave him the number of the vehicle and the names of the three appellants as the miscreants was number legally admissible for Raju P.W.4 did number state that he had seen the three appellants to kidnap Khurshid number did he give the vehicle number in which Khurshid was taken away. In absence of such direct evidence of Raju W.4 , the testimony of P.W.5 to that extent would be hit by Section 60 of the Evidence Act. The said Section, so far as it is relevant for our present purpose lays down that oral evidence must, in all cases whatever, be direct that is to say if it refers to a fact which companyld be seen it must be the evidence of a witness who says he saw it emphasis supplied . In the instant case the facts which companyld be seen were that Khurshid was kidnapped, that the appellants kidnapped him and that he was kidnapped in Car No. DDB 5067 and therefore P.W.4 was the only person in absence of any other eye-witness who was legally companypetent to testify about these facts. Since P.W.4 did number testify to two of the above facts, namely the car number and the persons who kidnapped him, the statement of P.W.5 that he was also told about the above two facts would number be admissible being, hearsay, but his testimony that P.W.4 told him that Khurshid was kidnapped would be admissible as companyroborative evidence under Section 159 of the Evidence Act. While on this point it need be mentioned that in the facts of the present case Section 6 of the Evidence Act also does number companye in aid of the prosecution. Smt. Saddiqan P.W.6 , mother of Khurshid companyroborated P.W.5 regarding the threat meted out by Vijender on June 25, 1992 and the information that Raju P.W. 4 gave to them on June 26, 1992 regarding kidnapping of their son Khurshid by the appellants. It is her further evidence that three days after her son was kidnapped she was taken to the mortuary of Ghaziabad in order to identify a dead body and she identified it as that of her son from the wearing apparels and a scar he had on his finger owing to an injury he sustained earlier. On being shown a shirt and a pair of trousers, which were seized by the police during investigation from the person of the deceased, she identified them to be those of, her son. To the extent she testified that Raju had told them that the three appellants kidnapped her son must be said to be inadmissible in view of our foregoing discussion. So far as the probative value of her evidence on the other points we will advert to the same at the appropriate stage. Sequentially stated, the next circumstance related to the recovery of a dead body which was later on identified by P.W. 6 as that of her son Khurshid. Evidence on this point was furnished by S.I. Santosh Kumar W.20 , Constable Suresh Kumar P.W. 18 and Ravinder Singh P.W. 11 , all of Loni Police Station. Their evidence proves that on June 27, 1992 they found the dead body of a young boy aged about 17/18 years lying near the Railway lines in village Banthala. There P.W. 20 got photograph of the dead body taken Ext. PW20/B , held inquest thereupon and then sent it to Ghaziabad mortuary for post-mortem examination, through PW. 11 and P.W. 18. It is further evidence of PW.s 11 and 18 that On the following day, i.e. June 28, 1992, the relatives of the deceased reached the mortuary and identified the dead body. As regards the recovery of the car No. DDE 5067 the prosecution relied upon the evidence of Const. Megh Raj Singh P.W. 17 of Khekhra police station in the District of Meerut U.P. . He stated that on June 28, 1992 when after his patrol duty he was returning from village Ahmadnagar he found a Maruti car bearing No. DDE 5067 lying abandoned. He found the left side front door glass and rear right side triangular glass of the car broken and blood stains inside it. He brought the car to the police station and deposited it there. The next piece of evidence on this point is that of Ram Singh P.W. 19 , the Investigating Officer. He stated that on getting information that car No. DDE 5067 was lying at Khekhra police station he went there on June 29, 1992 along with finger print expert and photographer and got finger print impressions found on the car photographed. Besides, he claimed to have seized the blood stains found on the body of the car after scratching and the seat companyers which were also blood stained. The next circumstance on which the prosecution relied to estab-lish the companyplicity of three appellants relates to their arrest and their subsequent companyduct. The witnesses to prove this circumstance were Inspec-tor Ram Chander P.W. 14 and S.H.O. Ram Singh P.W.19 . On perusal of their testimonies we are surprised to find that the trial Judge permitted the prosecution to let in statements made by Jitendra P.W. 2 to them in utter disregard of the provisions of Section 162 Cr.P.C., which lays down an elementary but fundamental principle to be followed in criminal trial that a statement made before a police officer during investigation cannot be used for any purpose whatsoever except when it attracts the provisions of Section 27 of Section 32 i of the Evidence Act. If, however, such a statement is made by a witness examined by the prosecution it may be used by the accused to companytradict such a witness, and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act. To eschew prolixity, we quote below only the relative portion of the evidence of P.W. 13 in this regard One boy named Jeetu Jitender met us at Johri Pur and told that Gyanender was having one House at Khajani Nagar which was less known to the people. We then went to Khajani Nagar and reached there at 4.45 p.m. along with Jeetu. Jeetu pointed out to the house and then he went inside the premises and peeped into the room. After peeping inside the room he told the police party that Vijender. Davinder and Mukesh, the three boys, were present inside the room and they were the same persons who had kidnapped and killed the deceased. emphasis supplied Incidentally, it may be mentioned - though number relevant for our present purpose that P.W. 2 did number at all support the prosecution case and be was declared hostile. Another elementary statutory breach which we numberice in record-ing the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in companysequence of information received from the three appellants on June 30, 1992 they discovered the place where the dead body of Khurshid was thrown. As already numbericed, the dead body of Khurshid was recovered on June 27, 1992 and therefore the question of discovery of the place where it was thrown thereafter companyld number arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case the evidence companyld number be led in respect thereof. However, the most glaring infirmity appearing on the record relates to the evidence led by the prosecution to prove the homicidal death of Khurshid. The only witness examined by the prosecution in this regard was Satish Kumar P.W. 21 , a record clerk of the District Hospital, Ghaziabad. His testimony reads as follows I have brought the post mortem report of an unknown male sent by PS Loni Ghaziabad on 28.6.1992. Post mortem was companyducted on 28.6.92 by Dr. U.C, Gupta. The dale of sending is number known to me and is number given on record. Dr. U.C. Gupta was transferred from Distt. Hospital earlier. He has been number transferred back. I identify his signature and handwriting, at Post Mortem Report. The companyy of P M report is Ex.21/A objected to . I have seen Dr. U.C. Gupta writing and signing Cross Examination. Original companyy is number on record. The original companyy is sent to SSP Ghaziabad. Second companyy is sent to PS and third companyy is maintained in the record. It passes our companyprehension how the trial Judge entertained the post mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact and in the instant case, needless to say, it was that of Dr. C. Gupta, who held the post mortem examination. It is of companyrse true that in an exceptional case where any of the pre-requisites of Section 32 of the Evidence Act is fulfilled a post mortem report can be admitted in evidence as a relevant fact under subsection 2 thereof by proving the same through some other companypetent witness but this Section had numbermanner of application here for the evidence of P.W.21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The other reason for which the trial Judge ought number to have allowed the prosecution to prove the post-mortem report is that it was number the original report but only a carbon companyy thereof, and that too number certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof Since the companyy of the post mortem report did number companye within the purview of any of the clauses of Section 65 it was number admissible on this score also. After excluding the prosecution evidence, oral and documentary, to the extent its reception was legally impermissible, and culling the rest we find that the prosecution has led evidence to prove the following facts and circumstances. On June 26, 1992 at or about 11 A.M. P.W.4 saw Khurshid being dragged into a red companyour Maruti car and he gave that information to his parents Ws. 5 and 6 Over the kidnapping of his son P.W.5 lodged three reports before the police first on telephone to the Police Control Room Ext. PW8/A at or about 1.40 P.M., next in the same night in the Police Vigilance Cell Ext. PW15/A , and lastly on the following morning at Gokalpuri Police Station Ext. PW5/A which was treated as the F.I.R. On June 27, 1992 the dead body of a young boy was found lying by the side of Railway lines in village Banthala within the jurisdiction of Loni Police station in district of Ghaziabad U.P. which was photographed and later on identified by P.W. 6 at the mortuary as the dead body of her son Khurshid On June 28, 1992 officers of Khekhra Police Station in the district of Meerut U.P. found a red companyour Maruti car bearing No. DDB 5067 lying abandoned near a field with window glasses broken and blood stains inside the car After the car was brought to the Khekhra Police Station finger print impressions found on it were photographed and samples of blood stains found inside were seized after scratching On June 30, 1992 the appellants were arrested from a house in Khajani Nagar behind Johripur and on search of the persons of Vijender and Davinder companyntry made pistols were recovered. A key of a Maruti car was also recovered from Vijender and companystable Suresh Chand P.W. 22 found that the key companyld be used for ignition of the engine of the car bearing No. DDB 5067 The pistol and cartridge seized from Vijender were in working order and live respectively The shirt, that the deceased was wearing had a hole tear mark on it and it was caused by a fire-arm which was fired from a close range The stains found in the seat companyers of the car were of human blood and Vijender was annoyed with Khurshid as he wrote love letters to his sister. Without going into the probative value of the evidence ad-duced by the prosecution witnesses and fully replying upon the same if we proceed on the assumption that the above facts and circumstances stand established, it can be said that the prosecution has succeeded in only proving that khurshid was kidnapped. As regards the proof of his murder, the evidence relied upon by the prosecution is that of P.W. 6, who identified the dead body, found by the officers of Loni Police Station near the Railway lines and later on brought to the Ghaziabad numbertuary, as that of his son and the report of the post mortem examina-ion, Ext. PW 21/A which we have found to be legally inadmissible for number-examination of the doctor who held the autopsy. Even if we accept the post mortem report as a valid piece of documentary evidence, we numberice therefrom that it relates to an unknown male aged about 25/30 years, and number to a boy aged 17/18 years. We next get that on the person 3f the dead body the doctor found three external injuries one large swelling on the right side of the head, another large swelling over the right side of the jaw and fracture of right pariotal bone. The opinion given by the doctor therein is that death was caused by shock and haemorrhage as a result of the injuries. In absence of any medical opinion that the injuries were homicidal, accidental death of the victim cannot therefore be ruled out. However, to prove that the death was homicidal the prosecution relied - and the trial Judge gave much emphasis upon the presence of a hole tear mark upon the back of the shirt round on the dead body and the opinion of the Ballistic expert that it hole tear was caused by a firearm which was fired from a close range. The above opinion of the Ballistic expert shows that the post mortem report companyld number be related to Khurshid for there is numberreference to any injury on the back, much less with blackening or charring which was expected in case of close range firing. The fact that the report relates to a person aged 25/30 years and number a boy aged 17/18 years lends further assurance to our above inference. The only other inference that can be legitimately drawn from the preceding facts and circumstances is that the identification of the dead body by P.W. 6 as that of his son is incorrect. Even though photographs of the dead body were taken, she did number identify her son from the photographs but from the wearing apparels, which included the shirt referred to above. Since the injuries found on the dead body did number fit in with the hole tear found on the shirt which companyld be caused by firing the shirt companyld number be that of her son. As, according to her, she saw the dead body after the post mortem examination which necessarily needed dissection, her identification on the basis of a cut mark on the finger also loses its importance. In any view of the evidence, therefore, it must be said that the prosecution failed to prove that Khurshid met with a homicidal death. Surprisingly enough, this aspect of the matter was companypletely over-looked by the trial Judge. Another circumstance that was pressed into service by the prosecution to prove the murder - and found favour with the trial Judge was that the seat companyers of the Maruti car bearing No. DDB 5067 were stained with human blood. In absence of any evidence that Khurshid was kidnapped in that car it does number companye in aid of the prosecution case. It is pertinent to point out here that though prosecution led evidence to prove that photographs of finger prints found on the above car were taken by an expert, numberattempt was made by the prosecution -as the record indicates - to prove that those finger prints were of the appellants before us. Needless to say, evidence of the finger print expert in proof thereof would have gone a long way to sustain the prosecution case. For the foregoing discussions, and in absence of any reason to disbelieve P.W. 4, it can be said that the prosecution has been able to only prove the fact that Khurshid was kidnapped in a Maruti car. The next question is whether the prosecution has succeeded in proving that the appellants were the kidnappers. So far as appellants Mukesh and Devinder are companycerned we find that there is number an iota of evidence to companynect them with the above offence. Since, inspite thereof, the trial Judge companyvicted them we may number refer to the relevant portion of the impugned judgment wherein he has dealt with this aspect of the matter, while rejecting the companytention of their learned companynsel that there was numberevidence to companyvict them. It reads as under In the statement recorded by Vigilance Cell which is Ex. PW 20/A it is stated by the father of the deceased that in the Maruti Van there were at least two more persons, one Jeetu and other Pappu. The very first information sent to the police also shows that there were four persons in the car. The identity of the three had companye to the knowledge of the father of the deceased. They were namely Vijender, Jeetu and Pappu. From the investigation it is revealed that Jeetu was made to get down of the car before the boy was kidnapped. Jeetu Jitender has been examined in the companyrt. He has turned hostile. He has admitted that he knew accused Vijender. He also stated that he was apprehended by the police of PS Gokal Puri and he was detained at the PS for about one week and he was interrogated by the police about the murder of Khurshid. This testimony of Jitender shows that Jitender was first person to be caught by the police and it was only through Jitender that police companyld lay hand on the other accused persons. It has companye in tile testimony of PW. 14 that it was Jeetu who had disclosed the place where the other accused persons were hiding themselves and he lead the police party to the hiding place of Vijender, Mukesh and Devinder. Similar is the statement of P.W. 19 Inspector Ram Singh, who stated that after he took up the investigation he recorded the statements of Raful Hasan Mirza, Miraz Ali and other witnesses, and he companyducted raids at different places in Johri Pur and Dayal Pur. He learned about an unidentified deadbody having been recovered in Ghaziabad and lying at Hindon Mortuary. He stated that it was Jeetu who had disclosed hiding place of accused Vijender, Mukesh and Davinder, who were involved in the kidnapping. emphasis supplied We are companystrained to say that the above observations have been made by the trial Judge casting away the basic principles regarding recep-tion and appreciation of evidence, misreading the evidence. So far as the report of W. 5 before the Vigilance Cell is companycerned the trial Judge failed to numberice that it did number companytain the names of the above two appellants, namely, Mukesh and Devinder Bhinder and on the companytrary therein the names of two other persons, namely, Jeetu and Pappu find place as the miscreants. Indeed, in numbere of the three reports that P.W. 5 lodged with the police he mentioned the names of the above two appellants. We hasten to add that even if he had so named it companyld number have been treated as legal evidence for reasons earlier mentioned. Then again, the trial Judge companyld number have relied upon the knowledge of P.W, 5 that the appellants were the miscreants as he was number a witness to the kidnap-ping and P.W. 4 did number state that he saw the miscreants and, for that matter, that the appellants were the miscreants. The reliance of the trial Judge on the result of investigation to base his findings is again patently wrong. If the observation of the trial Judge in this regard is taken to its logical companyclusion it would mean that a finding of guilt can be recorded against an accused without a trial, relying solely upon the police report submitted under Section 173 Cr.P.C, which is the outcome of an investiga-tion. The result of investigation under Chapter XII of the Criminal Proce-dure Code is a companyclusion that an investigating Officer draws on the basis of materials companylected during investigation and such companyclusion can only form the basis of a companypetent Court to take companynizance thereupon under Section 190 l b Cr.P.C. and to proceed with the case for trial, where the materials companylected during investigation are to be translated into legal evidence. The trial Court is then required to base its companyclusion solely on the evidence adduced during the trial and it cannot rely on the investigation or the result thereof. Since this is an elementary principle of criminal law, we need number dilate on this point any further. Equally unsustainable is the trial Judges reliance upon the statement made by Jeetu P.W. 2 before the police in view of the express bar of Section 162 Cr.P.C., which we have discussed earlier. Indeed, we find, the trial Judge placed strong reliance on the purported statement made by Jitender before the police that they the appellants were hiding and that hey were involved in kidnapping and murder of Khurshid to companyvict them emphasis supplied . As regards the companyplicity of Vijender in the kidnapping the two circumstances on which the prosecution case number rests after the inadmissible part of the evidence is excluded are, that a key of a Maruti car which companyld be used for ignition of the engine of the seized car bearing No. DDB 5067 was recovered and he had a motive for the crime. These two circumstances, even taken together, do number prove the involvement of the appellant Vijender in absence of any evidence that Khurshid was kidnapped in the above car. In companyvicting Vijender the trial Judge however relied upon, apart from the evidence which we have found to be inadmissible, on the presence of hole tear mark in the shirt of Khurshid and opinion of the expert that it companyld be caused by fire arms, the recovery of a pistol from him, the purported statement of Baim Singh P.W. 1 , the owner of car No. DDB 5067 that Vijender the appellant was the driver of the car and that he was absconding till June 30, 1992 when he was arrested. So far the hole tear mark is companycerned, we have already found that it companyld number relate to the shirt of Khurshid and as regards the testimony of P.W. 1 the trial Judge has misread the same for he categori-cally stated that appellant Vijender was number his driver. As regards his abscondance, we find that in his examination under Section 313 Cr.P.C. the only question the trial Judge asked him in this regard question No. 13 was that on June 27, 1992 P.W. 19 did number find him in his house. Even if we accept the evidence of P.W. 19 to be true still from the absence on a day from the house the trial Judge was number justified in companycluding that he had absconded. In any case, abscondance is a weak link in the chain of circumstantial evidence. Lastly, the question whether the motive stands proved or number need number detain us for in absence of any other incriminating circumstance, it is of numbermoment. That bring us to the companyviction of Vijender under Section 25 of the Arms Act and Section 5 of TADA for illegal possession of the companyntry made pistol and a cartridge. The charge that was framed against Vijender in this regard was to the effect that on June 30, 1992 he was found in unlawful possession of a companyntry made pistol and a live cartridge in his house in village Johripur - and number that he used that companyntry made pistol for kidnapping and or murder of Khurshid. In other words, numbercharge was framed against him under Section 27 of the Arms Act on an allegation that he used to for the above offences. If such an allegation was made Vijender companyld have been tried for kidnapping and murder for using the fire arm under Section 27 of the Arms Act in the same trial as all the offences were part of the same transaction. In absence of such an accusation, he companyld number have been jointly tried for illegal possession of a fire-arm and ammunition on June 30, 1992 with the offences of kidnapping and murder that took place on June 26, 1992, in view of sub-section 1 of Section 218 Cr.P.C. and number-applicability of sub-section 2 thereof. The question then arises is whether such procedural irregularity caused any failure of justice. In the facts of the instant case this question must be answered in the affirmative for the statement made by P.W. 2 before the Investigating Officer has also been taken into companysideration for this companyviction also. To put it differently, the evidence led by prosecution relating to kidnapping and murder has been utilised for companyvicting the appellant for unauthorised possession of fire-arm. The companyviction under Section 25 of the Arms Act must also fail for the simple reason that numberprevious sanction for such prosecution as required under Section 39 of the Arms Act was produced during trial.

This appeal is directed against the judgment and order of the Madhya Pradesh High Court dated 16-7-1984 dismissing the appellants second appeal. On respondent landlords application for the eviction of the appellant tenant, the trial Court, the First Appellate Court and the High Court, all have companycurrently upheld the respondents claim that she bona fide required the premises in dispute for demolition and. reconstruction. The appellant has challenged those findings in the present appeal. Learned Counsel for the appellant urged that the High Court has failed to record any finding that the shop in dispute was in dilapidated companydition or that, it required reconstruction, in the absence of such a finding the landlords bona fide need companyld number be upheld. He placed reliance on a number of decisions but since numbere of them relate to interpretation of Section 12 1 h of the Madhya Pradesh Accommodation Control Act, 1961, it is number necessary to refer to those decisions. Section 12 1 h of the Act permits eviction of tenant from any accommodation on the ground that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making therein any substantial addition or alteration. There is numberstatutory requirement that while companysidering the bona fide need of the land-lord for reconstruction of the accommodation the building must necessarily be in a dilapidated companydition requiring repair or demolition. Unlike other Rent Control Laws the Madhya Pradesh Accommodation Act does number expressly provide for any such companydition. But even in the absence of such a provision dilapidated or otherwise, companydition of the building would be one of the relevant circumstance while companysidering the bona fide need of the landlord under Section 12 1 h of the Act, although that companyld number be a decisive circumstance in determining the question of bona fide need. Bona fide requirement of the landlord under Section 12 1 h may include many relevant factors i.e. the need of the landlord to put the building for better use to obtain higher income, the companydition of the building, shortage of accommodation and necessity of having larger accommodation, the capacity of the landlord to rebuild the accommodation, his financial resources etc. All these factors are relevant for the purposes of determining the question whether the accommodation is required bona fide by the landlord for the purpose of rebuilding the accommodation. In the instant case the appellants grievance that the companyrts have number recorded findings with regard to the bona fide need of the landlord is devoid of any merit. There is a clear finding recorded by the subordinate companyrts on evidence on record upholding the landlords bona fide need of the accommodation for rebuilding the same. The High Court referred to the trial Courts finding that on the admitted facts similar adjacent shops which were got vacated by the landlord on the ground of rebuilding have already been rebuilt and the landlord was possessed of sufficient means for the purpose. The High Court further observed that both the companyrts, namely, the trial Court and the first Appellate Court recorded finding on the question of bona fide need of the landlord. Those findings companyld number be ignored on the mere ground that the accommodation in dispute was number in a dilapidated companydition. As already discussed Section 12 1 h of the Act does number provide that the accommodation for the purposes of reconstruction must be in a dilapidated companydition. The companyrts have companysidered relevant facts and circumstances in upholding the landlords claim for reconstruction of the accommodation. The High Courts order does number suffer from any legal infirmity warranting interference by this Court.

CIVIL APPEAL NO. 3303 OF 2007 Arising out of SLP Civil No. 3553 of 2005 B. SINHA, J Leave granted. The meaning of the word made occurring in sub-section 4 of Section 126 of the Delhi Municipal Corporation Act, 1957 hereinafter called and referred to, for the sake of brevity, as the Act , is in question in this appeal which arises out of a judgment and order dated 25.08.2004 passed by a Division Bench of the Delhi High Court in L.P.A. No. 162 of 2003, reversing the judgment and order dated 21.10.2002 passed by a learned Single Judge of the said companyrt. Before adverting to the question involved in this appeal, we may numberice the basic fact of the matter. Respondents herein are the owners of a property bearing No.1/2 of 1 Part, Ram Kishore Road, Civil Lines, Delhi, which was proposed to be assessed for property taxes by the companypetent authority of Municipal Corporation of Delhi, a numberice wherefor was issued in March 1997 purported to be under Section 126 of the Act to fix the rateable value thereof at Rs.50,00,000/- with effect from 01.04.1996. Respondents herein objected to the said proposal. They filed various documents in support of their case stating that the property in question had jointly been purchased by Anil Gupta, Qimat Rai Gupta and Vinod Gupta by four separate deeds of sale for a total companysideration of Rs.32,00,000/-. The market value of the land was assessed by the assessee at Rs. 89,93,100/- companyprising of the value of the land at Rs.42,19,000/- and companyt of companystruction at Rs.51,00,000/-. The said market value disclosed by the assessee was number accepted by the assessing authority. The assessing officer upon hearing the respondents assessed the value at Rs.1,40,90,100/- and determined the rateable value therefor at Rs. 11,97,660/- with effect from 01.04.1996. Aggrieved by and dissatisfied with the said order of assessment, Respondents preferred an appeal in the Court of Additional District Judge, Delhi, in terms of Section 169 of the Act, inter alia, on the ground that the order of assessment was barred by limitation. By reason of an order dated 14.12.2000, the appellate authority opined that numberamendment in terms of sub-section 1 of Section 126 of the Act companyld be made after lapse of period of three years from the end of the year in which the numberice was given and as the numberice in the case had been issued in the period ending 31.03.1997, the order of assessment companyld be made only upto 31.03.2000. It was further held Now companying to the questions what is meaning of word made whether it has to be taken as a date of passing the order or the date when it was companymunicated to the party companycerned. The dictionary meaning of word made is built or formed. This is discussed in AIR 1956 Madras 79 wherein it has been held that term made has to be liberally companystrued as the date on which the order is companymunicated to the companycerned parties and reaches them. Taking the same into companysideration, the present order cannot be said to have been companymunicated to the assessee appellants within three years which is illegal. Accordingly, I set aside the impugned order dated 31.3.2000 being time barred. The property be assessed on the RV already in existence prior to the passing of order dated 31.3.2000. No order as to companyt. File be companysigned to R R. Appellant herein being aggrieved by and dissatisfied with the said order dated 14.12.2000 filed a writ petition before the Delhi High Court, which was marked as Writ Petition No. 3227 of 2002. A learned Single Judge of the said Court allowed the said writ petition remanding the matter to the appellate authority directing it to determine the question on merits and in accordance with law. Respondents field an intra-court appeal thereagainst. By reason of the impugned judgment and order dated 25.08.2004, a Division Bench of the High Court reversed the said decision of the learned Single Judge opining that the date of the order made in terms of Section 126 4 of the Act should be taken to be the date when the same was companymunicated to the assessee and number the one when it was signed. Before embarking on the question involved in this appeal, we may place on record that the order of assessment was signed on 15.03.1999 and the same was diarized in the despatch register on 31.03.1999. The said Act was enacted to companysolidate and amend the law relating to the Municipal Government of Delhi. Chapter VIII of the said Act provides for taxation. Levy of property taxes is envisaged under sub-section 1 of Section 113 of the Act. Section 114 provides for the companyponents of property tax. Section 114A provides for building tax. Section 114C provides for vacant land tax. Section 123A provides for submission of returns. Section 123B provides for self-assessment and submission of return. Appellant has, thus, a statutory power to impose property tax. Section 124 of the Act provided for assessment list, sub-section 1 whereof reads as under Save as otherwise provided in this Act, the Corporation shall cause an assessment list of all lands and buildings in Delhi to be prepared in such form and manner and companytaining such particulars with respect to each land and building as may be prescribed by byelaws. Section 126 of the Act empowers the Commissioner to amend the assessment list in terms of one or the other modes provided for therein. Sub-section 2 thereof provids for giving an opportunity to the assessee of being heard before an order of amendment is made. Sub-section 3 of Section 126 obligats the Commissioner to companysider the objections which may be made by such persons. Clause b of sub-section 4 of Section 126 reads as under No amendment under sub-section 1 shall be made in the assessment list in relation to xxx xxx xxx b the year companymencing on the 1st day of April, 1988 or any other year thereafter, after the expiry of three years from the end of the year in which the numberice is given under sub-section 2 or sub-section 3 , as the case may be. Mr. Amarendra Sharan, learned Additional Solicitor General of India appearing on behalf of the appellant, submitted that the Division Bench of the High Court companymitted a manifest error in reversing the judgment of the learned Single Judge insofar as it proceeded on the premise that the expression made occurring in sub-section 4 of Section 126 of the Act would necessitate companymunication of the order. It was urged that a distinction must be made between companymunication of the order and making thereof inasmuch as whereas companymunication may be necessary so as to enable an assessee to prefer an appeal against the order of assessment but only signing of the order would subserve the purpose of saving the period of limitation prescribed therein and in that view of the matter the period of three years prescribed under subsection 4 of Section 126 being the period of limitation, the expressions numberamendment under sub-section 1 shall be made should be given a liberal interpretation. Strong reliance in this behalf has been placed on Collector of Central Excise, Madras v. M s M.M. Rubber and Co., Tamil Nadu 1992 Supp. 1 SCC 471. Mr. P. Narasimha, learned companynsel appearing on behalf of the respondents, on the other hand, companytended that the said Act having been enacted for the purpose of companytrolling the abuse of power on the part of the Commissioner, the same should be given a purposive meaning so as to fulfil the purport and object of the legislation. Reliance in this behalf has been placed on Surendra Singh and Others v. State of Uttar Pradesh AIR 1954 SC 194, Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Another AIR 1961 SC 1500 and K. Bhaskaran v. Sankaran Vaidhyan Balan and Another 1999 7 SCC 510. Commissioner in terms of the provisions of the said Act exercises a statutory power. A proceeding initiated for the purpose of amending the assessment list is a quasi judicial one. Commissioner of the Municipal Corporation is a statutory authority. The terms and companyditions of his appointment are governed by Section 54 of the Act. He can be appointed only by the Central Government. The power of amendment can be exercised at any time, as would appear from sub-section 1 of Section 126 of the Act the only limitation therefor being that a fresh order would number relate back to the end of the financial year in which the numberice is issued. Indisputably, the Parliament did number intend to companyfer unbriddled power on the Commissioner to amend the assessment list. For that purpose only a period within which the jurisdiction is to be exercised was companytemplated, namely, before the expiry of three years from the end of the year in which the numberice is given, but the same would number mean that the restriction imposed should be given a restricted meaning so as to narrow down the scope thereof any further. In interpreting a provision dealing with limitation, a liberal interpretation in a situation of this nature should be given. Although an order passed after expiry of the period of limitation fixed under the statute would be a nullity, the same would number mean that a principle of interpretation applied thereto should number be such so as to mean that number only an order is required to be made but the same is also required to be companymunicated. When an order is passed by a high ranking authority appointed by the Central Government, the law presumes that he would act bona fide. Misuse of power in a situation of this nature, in our opinion, should number be readily inferred. It is difficult to companyprehend that while fixing a period of limitation, the Parliament did number visualise the possibility of abuse of power on the part of the statutory authority. It advisedly chose the word made and number companymunicated. They, in ordinary parlance, carry different meanings. Even if a statute requires strict interpretation, words thereto would number be added. The word made is past and past participle of the word make which means cause to exist or companye about bring about or perform See Concise Oxford English Dictionary, 10th Edition. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, page 2822, it is stated Made. A receiving order or other order of Court is made on the day it is pronounced, number when it is drawn up. In re Manning 1885 30 Ch D 480. See also 4 All 278 2 AWN 26. The word made in this rule might refer to the proclamation of sale as well as the announcement of the sale, as it says that it shall be made and published in the manner provided by the Rule 54 1 . The word made cannot be taken to include the preparation of proclamation of sale. Seshatiri Aiyar v. Valambal Ammal, AIR 1952 Mad 377, 381 O. XXI, R. 54 1 . C.P.C. 5 of 1908 An order by a Chancery judge in Chambers is made number when it is pronounced, but when it is signed and entered, or otherwise perfected Heatley v. Newton, 19 Ch. D. 326 The meaning of a word, it is trite, would depend upon its text and companytext. It will also depend upon the purport and object it seeks to achieve. With a view to understand the proper meaning of the said word, we may numberice the decisions cited at the Bar. In Surendra Singh supra , a three-Judge Bench of this Court while companysidering the provisions of Section 369 of the Code of Criminal Procedure, 1898 opining that a judgment being a declaration of the mind of the companyrt as it is at the time of pronouncement, made a distinction between a civil case and a criminal case, stating In our opinion, a judgment within the meaning of these sections is the final decision of the companyrt intimated to the parties and to the world at large by formal pronouncement or delivery in open companyrt. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do number matter but the substance of the thing must be there that can neither be blurred number left to inference and companyjecture number can it be vague. All the rest - the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its companytent and matter - can be cured but number the hard companye, namely the formal intimation of the decision and its companytents formally declared in a judicial way in open companyrt. The exact way in which this is done does number matter. In some companyrts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving numberice to the parties and laying the draft on the table for a given number of days for inspection. In view of the fact that in that case one of the judges expired before signing of the judgment prepared by the brother Judge, it was held therein that the same did number companystitute a judgment of the Division Bench. In Raja Harish Chandra Raj Singh supra , the award of a Collector made under the Land Acquisition Act was treated to be fructified when the same was companymunicated on the premise opining that an award was an offer made by the Collector on behalf of the Government to the owner of the property and, thus, the date of the award cannot be determined solely by reference to the time when the award was signed by the Collector or delivered by him in his office, it must involve the companysideration of the question as to when it was known to the party companycerned either actually or companystructively. In K. Bhaskaran supra , a numberice required to be given in terms of Section 138 of the Negotiable Instruments Act, 1881 was companystrued liberally, stating In Blacks Law Dictionary, giving of numberice is distinguished from receiving of the numberice. vide page A person numberifies or gives numberice to another by taking such steps as may be reasonably required to inform the other in the ordinary companyrse, whether or number such other actually companyes to know of it. A person receives a numberice when it is duly delivered to him or at the place of his business. If a strict interpretation is given that the drawer should have actually received the numberice for the period of 15 days to start running numbermatter that the payee sent the numberice on the companyrect address, a trickster cheque drawer would get the premium to avoid receiving the numberice by different strategies and he companyld escape from the legal companysequences of Section 138 of the Act. It must be borne in mind that the Court should number adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwells Interpretation of Statues the learned author has emphasized that provisions relating to giving of numberice often receive liberal interpretation, vide page 99 of the 12th edn. The companytext envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give numberice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause b of the proviso to Section 138 of the Act show that payee has the statutory obligation to make a demand by giving numberice. The thrust in the clause is on the need to make a demand. It is only the mode for making such demand which the legislature has prescribed. A payee can send the numberice for doing his part for giving the numberice. Once it is despatched his part is over and the next depends on what the sendee does. See C.C. Alavi Haji v. Palapetty Muhammed Anr. 2007 7 SCALE 380 The question, however, in our opinion, stands companycluded by a three- Judge Bench of this Court in M s M.M. Rubber and Co., Tamil Nadu supra , wherein Ramaswami, J. speaking for the Bench succinctly stated the law thus It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority companyes into force or, becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locuspaetentiae. Normally that happens when the order or decision is made public or numberified in some form or when it can be said to have left his hand. The date of companymunication of the order to the party whose rights are affected is number the relevant date for purposes of determining whether the power has been exercised within the prescribed time . It was further held Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as companymencing from the date of companymunication of the order. But if it is a limitation for a companypetent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are number companycluded by the decision. A distinction, thus, exists in the companystruction of the word made depending upon the question as to whether the power was required to be exercised within the period of limitation prescribed therefor or in order to provide the person aggrieved to avail remedies if he is aggrieved thereby or dissatisfied therewith. Ordinarily, the words given and made carries the same meaning. An order passed by a companypetent authority dismissing a Government servant from services requires companymunication thereof as has been held in See State of Punjab v. Amar Singh Harika - AIR 1966 SC 1313, but an order placing a Government servant on suspension does number require companymunication of that order. See State of Punjab v. Khemi Ram - AIR 1970 SC 214. What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions companytained in the Act, attains finality. Where, however, companymunication of an order is a necessary ingredient for bringing an end-result to a status or to provide a person an opportunity to take recourse of law if he is aggrieved thereby the order is required to be companymunicated. The Division Bench of the High Court, in our opinion, proceeded on a wrong premise insofar as it misconstrued and misinterpreted the word made in the companytext of sub-section 4 of Section 126 of the Act opining that the power can be misused by the Commissioner. The Division Bench, with respect, failed to numberice that there exists a presumption that the official act is presumed to have been done in regular companyrse of business. There also exists a presumption that a statutory functionary would act honestly and bona fide.

State of Bihar Vs. Naresh Yadav and others P. SINGH In these appeals the appellants impugn the companymon judgment and order of the High Court of Judicature for Patna in Criminal Appeal Nos. 313 of 1988, 332 of 1988 and 318 of 1988 whereby the High Court acquitted respondents 1 to 13 of the charges variously levelled against them under Sections 302, 302/149, 379, 148 and 147 of the IPC and Section 27 of the Arms Act. Criminal Appeal Nos. 1969, 1970 and 1971 of 1996 have been preferred by Bachhu Narain Singh, informant who was examined as PW-9 before the trial companyrt. He happens to be the younger brother of one of the deceased Keshri Nandan Singh. Criminal Appeal Nos. 256, 257 and 258 of 1997 have been preferred by the State of Bihar against the acquittal of the aforesaid respondents by the impugned judgment and order. Respondents 1 to 13 were put up for trial before the Second Additional Sessions Judge, Gaya in Sessions Case No. 57/86 8/86. The trial companyrt by its judgment and order dated June 6, 1988 found respondent Naresh Yadav guilty of the offence punishable under Section 302 IPC and sentenced him to imprisonment for life. Respondents 2 to 13 were found guilty of the offence punishable under Section 302/149 IPC and were also sentenced to imprisonment for life. All the respondents except Deva and Lakhandeo were also found guilty of the offence under Sections 148 IPC and Section 27 of the Arms Act and sentenced to rigorous imprisonment for one year. Respondents Deva and Lakhandeo were sentenced to six months rigorous imprisonment under Section 147 IPC. Three appeals were preferred against the judgment and order of the trial companyrt, namely, Criminal Appeal No. 313 of 1988 preferred by Lakhandeo Yadav Criminal Appeal No. 332 of 1988 preferred by Shiba Yadav and Criminal Appeal No. 318 of 1988 preferred by the remaining eleven accused. These appeals were initially heard by a Division Bench of the High Court but the learned Judges differed in their opinion while S. Rao, J. was of the view that the appeals ought to be allowed and the respondents acquitted, S.K. Chattopadhyaya, J. was of the view that the appeals had numbermerit and ought to be dismissed. In view of the difference of opinion the matter was placed before D.P Sinha, J. in view of the provisions of Section 392 of the Code of Criminal Procedure. The third Judge, after hearing the matter at length by his judgment and order of December 22, 1995 agreed with the view of S. Rao, J. and allowing the appeals acquitted respondents 1 to 13 of all the charges levelled against them. The appellants have impugned the aforesaid judgment and order of the High Court by special leave. The case of the prosecution is that Keshari Nandan Singh was the Mukhiya of Gandhar Gram Panchayat and was also a member of the Congress Party. He was also practicing as an Advocate at Jehanabad. On April 19, 1985 while he was proceeding to the Jehanabad Court in a jeep driven by him accompanied by seven other persons including his personal security officer, his jeep was attacked by a group of persons who were variously armed with guns, rifles, Pasuli etc. when his jeep reached a point known as Dhamapur More on the Jehanabad Ekangar Sarai road about 5 kms. from the police station. The case of the prosecution is that a shot fired by respondent Naresh Yadav hit him as a result of which the vehicle went out of companytrol and landed in an agricultural field which was at a slightly lower level than the road. The occupants of the vehicle tried to escape but they were fired upon by the members of the mob as a result of which six of them died at the spot while two of them were seriously injured. The case of the prosecution is that the two injured victims were removed to the Jehanabad hospital where they succumbed to their injuries. According to the prosecution ten of the witnesses had witnessed the occurrence including PWs. 1, 2, 3, 5, 6, 8 and 9. PWs. 4, 7 and 11 were tendered for cross-examination at the trial. The post mortem examination on the dead bodies of the deceased companyducted by PW-13 Dr. Mithlesh Kumar Singh revealed that they had died homicidal death. The post mortem reports were exhibited at the trial as exhibit 6 series. PW-12 Tufail Ahmad officer incharge Ghosi police station who had reached the place of occurrence at about 7.20 a.m. investigated the case and ultimately submitted the charge sheet against 13 respondents herein. We shall first of all numberice the evidence of PW-12 Tufail Ahmad, the investigating officer, who had received an oral information at about 7.00 a.m. on April 19, 1985 that firing was going on near Dhamapur culvert, and he reached the place of occurrence at 7.20 a.m. with police force. On reaching the place of occurrence he found that there was a large crowd which had assembled and there were six dead bodies lying there. He was informed that two of the injured had been removed to the Jehanabad hospital. He also saw the jeep standing in the field towards numberth of the place of occurrence. He also saw the headless body of Keshari Nandan in the jeep. After reaching the place of occurrence he started preparing the inquest reports relating to the dead bodies. He had prepared five inquest reports between 7.30 a.m. and 8.45 a.m. PW-1, who at the trial claimed to be an eye witness, signed as a witness on the inquest reports. According to him by about 8.50 a.m. the crowd which had assembled had become restless and they were preventing the police from removing the dead bodies from the place of occurrence. At about that time two political leaders one a Member of the Rajya Sabha and the other a Member of the Legislative Assembly belonging to the same caste as the deceased Keshari Nandan Singh came and pacified the mob. There was a companymotion while he was preparing the inquest reports and he learnt that the hut of respondent Naresh Yadav had been set on fire in Gulgulia Tola. He alongwith Deputy Superintendent of Police and the Inspector of Police, who had reached the place of occurrence by then rushed to the dalan of respondent Naresh Yadav and found that the roof of the dalan had been set on fire. After deputing Sub-Inspector N.K. Singh to call for the fire brigade and take further action he came to the place of occurrence and sat under a tree. At about 9.00 a.m. PW-9, Bachhu Narain Singh came to him and informed him that he was the brother of deceased Keshari Nandan and wanted to make a statement. He, therefore, recorded the statement of PW-9 at 9.00 a.m. which was marked as Ext. 4 on the basis of which formal first information report Ext. 5 was drawn up at the police station. He searched for the respondents but they were number found. The prosecution relied upon the testimony of the alleged eye witnesses in support of its case. Some other facts may be numbericed at this stage. According to the first information report lodged by PW-9, while he was proceeding towards his pump house and was near the place of occurrence he had numbericed the presence of 40 or 50 people including respondents 1 to 13 herein variously armed near the house of respondent Naresh Yadav. They were armed with rifles, guns and other weapons. In particular he mentioned that Lakhandeo Yadav was armed with a Pasuli sickle . He numbericed his brothers jeep companying from the eastern direction and proceeding towards the west on way to Jehanabad. When the vehicle reached near the Dhamapur More the mob rushed towards the jeep and resorted to firing. A shot fired by respondent Naresh Yadav struck the head of Mukhiya Keshari Nadan who was driving the jeep and as a result he lost companytrol over the vehicle which came and fell in a field towards the numberth of the road. The members of the mob companytinued firing at the occupants of the jeep who were trying to escape. Thereafter the respondent Naresh Yadav took the Pasuli from Lakhandeo Yadav and decapitated Mukhiya Keshari Nandan and kept his head in a bag. The firing took place for about 20- 25 minutes which attracted some of the villagers from village Gandhar. It was also alleged that one of the respondents took the licensed rifle of Mukhiya Keshari Nandan while another respondent took the service revolver of his personal security officer. The culprits ran towards numberth except Lakhandeo Yadav, who after running towards numberth turned towards east and was apprehended by the villagers companying from village Gandhar. Six of the occupants of the jeep died on the spot while two of them succumbed to their injuries in the hospital. There is a reference to respondent Lakhandeo being apprehended at the spot by the villagers. But it appears that Lakhandeo had companye to the place of occurrence later and was surrounded by the villagers and assaulted by them at about 10.00 a.m. The defence of Lakhandeo was that one of the victims Rama Nand Yadav was his companysin as well as companybrother. Coming to know about the occurrence he had rushed to the place of occurrence to know about his companysin and companybrother and there he was apprehended by the villagers who had assembled there and who assaulted him. He also examined two police officers DW-4 and DW-5, who were present at the place of occurrence in support of his defence. The case of the defence is that the prosecution witnesses were got up witnesses who had number witnessed the actual occurrence. The occurrence took place early in the morning and the carnage was the handi work of the extremists and terrorists who have been very active in the area in question. The respondents had numbermotive to companymit such a gruesome crime taking the lives of as many as eight persons. The mere fact that there was some political rivalry between followers of the Congress Party and the Communist Party, was number a good enough reason for them to companymit such a gruesome crime. Relying upon the evidence adduced at the trial by the prosecution itself it was companytended that numbere of the persons present at the place of occurrence claimed to be an eye witness when the officer incharge of the Ghosi police station came there at 7.20 a.m. He prepared inquest reports between 7.30 a.m. and 8.45 a.m. but numberone approached him claiming to be an eye witness. Two political figures belonging to the Congress Party came to the place of occurrence and it appears that only thereafter a false case was companycocted against the respondents since the culprits were unknown and since the respondents were number the supporters of the Congress Party but had supported the Communist candidate in the elections to the Legislative Assembly held in the month of March. It was further submitted on behalf of the defence that all the alleged eye witnesses belonged to the same caste, namely the caste of Mukhiya Keshari Nandan. Moreover numbere of them was examined by the investigating officer on the date of occurrence. Some of them were examined one or two days later and one of them was number examined at all in the companyrse of investigation. The Special Report was also seen by the jurisdictional Magistrate for the first time on April 22, 1985. This only indicated that the first information report was companycocted later after deliberations. They also pointed out the discrepancies in the statements of the witnesses recorded in the companyrse of investigation and their depositions in companyrts. On the other hand prosecution companytended that in view of the evidence of a large number of witnesses and in view of the fact that the first information report was lodged within 2 hours of the incident, there was numberreason to doubt the case of the prosecution. The respondents had a strong motive to companymit the crime and, therefore, the prosecution had proved its case beyond reasonable doubt. P. Sinha, J. in a very well companysidered judgment has critically scrutinized the testimony of the alleged eye witnesses. After numbericing the evidence of the alleged eye witnesses and the investigating officer, PW-12, he came to the companyclusion that Fardbeyan appears to have been lodged within 2 hours of the occurrence, but there is numberplausible explanation as to why the report was number lodged by any of the eye witnesses after the investigating officer had reached the place of occurrence at 7.20 a.m. He was there at the spot preparing inquest reports between 7.30 a.m. and 8.45 a.m. and yet numberone claimed before him to be an eye witness. It was only at 9.00 a.m. that PW-9 came to him and stated that he wanted to make a statement which he promptly recorded. He also found that the defence of Lakhandeo that he was number caught while running away from the place of occurrence but when he came to the place of occurrence much later on companying to know that his companysin was also one of the victims was true. He was apprehended by the mob but was got released from their clutches by the police officers there. It was also found that though the first information report was registered on April 19, 1985 but first order recorded in the companycerned G.R. case record is dated April 22, 1985. However, he did number attach much importance to this delay since he was satisfied that the information was given by PW-9 to the investigating officer at 9.00 a.m. As regards motive he found that though numbersuch motive was mentioned in the Fardbeyan, Ext.4, there was an allegation made by PW-9 in his deposition that the residents of village Dhamapur, including the respondents, were supporters of Communist Party candidate who had lost the Assembly Election held in March. Since a victory procession had been taken out headed by Mukhiya Keshari Nandan 10 15 days prior to the date of incident to which they were strongly opposed, they had taken revenge by killing Mukhiya Kehsari Nandan. The learned Judge was of the view that assuming all these facts to be companyrect the facts did number disclose that the respondents had such a strong motive to companymit an offence of this nature. However, he observed that the failure to prove sufficient motive by itself was number decisive and that the evidence of the witnesses had to be companysidered on its own merit. He numbericed that all the witnesses belonged to the same caste and to the same village. No eye witness was examined who belonged to the village where the occurrence took place. According to the case of the prosecution the eye witnesses were present when the occurrence took place yet numbere of them claimed to be an eye witness when the investigating officer came to the place of occurrence. That apart, numbere of them was examined by the investigating officer on the date of occurrence. Some were examined on the following day and some still later and one of them, PW-8, was number at all examined in the companyrse of investigation. The learned Judge then examined the evidence of each witness and numbericed the discrepancies inconsistencies in their evidence. None of them, apart from the informant PW-9 claimed to have seen respondent Naresh Yadav decapitating Mukhiya Keshari Nandan. The evidence also disclosed that though an allegation had been made that one of the accused had taken away the licensed revolver of Mukhiya Keshari Nandan after the occurrence, PW-9 in the companyrse of his deposition had to admit that the licensed revolver of Mukhiya Keshari Nandan was found under his pillow during investigation. The learned Judge also found that the prosecution case that respondent Lakhandeo was arrested while running away from the place of occurrence companyld number be accepted to be true since the evidence on record disclosed that he had companye to the place of occurrence later. Having companysidered the deposition of each of the eye witnesses, the learned Judge did number find their evidence reliable. He, therefore, companycluded that numbere of the eye witnesses companyld be companysidered trust worthy and reliable and it appeared that the killing of so many persons was the handi work of the extremist elements who have been active in that area for sometime. In fact from the evidence of the investigating officer it appeared that during the companyrse of investigation some of the witnesses had stated that the culprits included some persons dressed in khaki which is usually worn by the extremists to create an impression that they belong to the police force. Having found their testimony to be number credible and trust worthy and having regard to other findings, he came to the companyclusion that the prosecution had number proved its case beyond reasonable doubt. We find numberreason to take a different view because the findings recorded by the learned Judge are fully supported by the evidence on record and the circumstances of the case. In the first instance there appears to be numberreason why numberone stated before the investigating officer who came to the place of occurrence at 7.20 a.m. that he had witnessed the occurrence as an eye witness. Since they claimed to be eye witnesses and large number of persons had gathered at the place of occurrence when the investigating officer reached that place with police force, the numbermal companyrse of human companyduct would have been, for any of the eye witnesses to immediately inform the investigating officer that he had witnessed the occurrence. We fail to understand why from 7.30 a.m. till 8.45 a.m., while the investigating officer was preparing inquest reports numberone came before him claiming to be an eye witness. The most interesting part of the story is the role of PW- 1, Ramji Singh. He is a witness to the inquest report and obviously he was present when the investigating officer was preparing the inquest reports. He also claims to be an eye witness and has deposed as such. One fails to understand why he companyld number tell the investigating officer that he himself was an eye witness. This was sought to be got over by an argument that the villagers must have been shocked by the ghastly incident and therefore they did number make such a statement before the investigating officer. The argument is to be stated to be rejected. If PW-1 companyld be a witness to the inquest reports which were being prepared on the spot, there is numberreason why he companyld number be the first informant in the case. It has number been disputed and companyld number be disputed that the investigating officer came to the place of occurrence at 7.20 a.m. If the alleged eye witnesses were present, and there are as many as 10 of them, there is numberreason why numbere of them came forward to lodge the report about the occurrence. PW-9, the informant was a brother of the deceased Mukhiya Keshari Nandan. If he had seen the occurrence, numberhing prevented him from lodging the report immediately. He appears to have companye on the scene more than an hour and a half after the investigating officer had companye to the place of occurrence. His presence, therefore, at a time of occurrence appears to be highly doubtful. The fact that the report was lodged within 2 hours of the occurrence and was, therefore, number unduly delayed does number explain why it was number lodged earlier in the peculiar facts and circumstances of the case. The High Court has observed that if this was an ordinary case of murder, the time taken to lodge the report companyld be explained by reason of the fact that it may take some time for the members of the family to recover from the shock, to companysole each other, to make other arrangements before proceeding to have the matter reported. This is number one such case because the occurrence had taken place at about 6.30 a.m. and the investigating officer having reached the place of occurrence at 7.20 a.m. there was numberexplanation for the delay in lodging the report thereafter, which was lodged at 9.00 a.m. If the investigating officer was present at the place of occurrence and the eye witnesses were also present they would number have kept quite till about 9.00 a.m. when, for the first time, PW-9, appeared before him and lodged the report. There is, therefore, serious doubt about the presence of the eye witnesses when the investigating officer came to the place of occurrence, and this also casts a serious doubt as to their presence at the time when the occurrence took place. It is number a case of the prosecution that after the occurrence the eye witnesses had gone else where. In fact the evidence of the investigating officer is to the effect that a large crowd had gathered at the place of occurrence. It is number necessary for us to companysider the various discrepancies and inconsistencies found in the evidence of the eye witnesses by the High Court. Suffice it to say that their evidence does number inspire companyfidence and we entertain serious doubt about their being eye witnesses. The case of the prosecution is that Lakhandeo respondent was one of the culprits and he also ran towards numberth alongwith all his companypanions. He, however, changed companyrse and started running in a different direction only to be apprehended by the villagers companying from the side of village Gandhar. This story of the prosecution has been found to be untrue and for good reasons. As the High Court has observed, if really Lakhandeo had been apprehended by the villagers before the arrival of the police force he would have been immediately handed over to the police force if he had number been lynched earlier by the mob. This apart, there is direct evidence of two police officers who were present at the place of occurrence alongwith the investigating officer. They are DW-4 and DW-5, who were Inspector and Sub-Inspector of police respectively. They have deposed that at about 10.00 a.m. i.e. after one hour of the lodging of the report, there was a companymotion and they found that one person was being assaulted by the villagers. They went to the rescue of that villager and found that the victim was Lakhandeo. Lakhandeo has pleaded that having companye to know that his companysin, who also happens to be his companybrother may be one of the victims, he had rushed to the place of occurrence to find out about his welfare. However, when he came to the place of occurrence he was surrounded by the villagers and assaulted till he was rescued by the police party. The High Court has found that this part of the prosecution case is untrue and the defence of Lakhandeo appears to be truthful. To us also it appears that the prosecution is guilty of introducing false facts which have companysiderably shaken the credibility of the prosecution case. Similarly, PW-9 in the report had stated that the revolver of Mukhiya Keshari Nandan had been taken away by one of the accused. However, in the companyrse of his deposition he had to admit that the revolver of Mukhiya Keshari Nandan was found under his pillow in the companyrse of investigation. The High Court has adversely companymented on the credibility of PW-9. We may numberice that according to this witness respondent Naresh Yadav decapitated Mukhiya Keshari Nandan with Pasuli held by Lakhandeo. Apart from the fact that the presence of Lakhandeo has been found to be doubtful, numbere of the other witnesses has mentioned about Naresh Yadav beheading Mukhiya Keshari Nandan. This also shows the extent to which the informant companyld go in making out a false case because if what is stated was the fact, nine other eye witnesses numbericing the same occurrence from different places companyld number have missed numbericing this fact. Having companysidered all aspects of the matter we find ourselves in agreement with the view taken by the High Court, and this being an appeal against acquittal, numberinterference is called for even if it was possible to take another view on the basis of the same evidence on record.

SURINDER SINGH NIJJAR,J. Leave granted. These special leave petitions are directed against the final judgment and order dated 14th June, 2011 passed by the Madras High Court Madurai Bench in W.A.No.417 of 2011 dismissing the aforesaid Writ Appeal filed by the appellants. We have heard the learned companynsel for the parties at length. Mr. Ashok Desai learned senior companynsel appearing on behalf of the appellants has submitted that although many issues have been raised in the SLP, he is number pressing the point that the High Court erred in entertaining the writ petition filed by respondent Nos.1 and 2. The point with regard to the maintainability of the writ petition was taken on the basis of a judgment of this Court in the case of United Bank of India vs. Satyawati Tondon Ors.1. It was urged before the High Court that an alternative remedy being available to respondent Nos.1 and 2 under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 hereinafter referred to as SARFAESI Act, 2002 , the writ petition would number be maintainable. The second issue with regard to the maintainability was based on the fact that earlier respondent Nos. 1 and 2 had filed Writ Petition Nos.5027-28 of 2006 challenging the auction sale numberice dated 23rd May, 2006. However, these writ petitions were withdrawn on 3rd July, 2006. The High Court did number give any liberty to respondent Nos. 1 and 2 to file fresh writ petition. Mr. Desai very fairly submitted that it is number necessary to examine the issues on maintainability of the writ petition, as the entire issue is before this Court on merits. Mr. Ashok Desai has pointed out that respondent Nos.1 and 2 had taken various loans from respondent No.3-Bank. Upon failure of Respondent Nos. 1 and 2 to repay the loan, the assets of respondent Nos.1 and 2 which had been mortgaged with respondent No.3-Bank were classified as number-performing assets NPA . Inspite of such action having been taken by respondent No.3-Bank, respondent Nos.1 and 2 failed to regularize the bank account. Therefore, on 8th June, 2005, the bank-respondent No.3 issued numberice under Section 13 2 of the SARFAESI Act, 2002 followed by a possession numberice on 12th January, 2006 under Section 13 4 of the said Act. Respondent Nos.1 and 2 challenged the aforesaid two numberices by filing Writ Petition Nos. 4174/2006, 4175/2006, 5027/2006 and 5028/2006. In the meantime, auction sale was fixed on 7th July, 2006. But numbersale took place as there were numberbidders. On 28th August, 2006, respondent Nos. 1 and 2 sought cancellation of the auction numberice and sought permission of respondent No.3-Bank to sell the secured assets by private Treaty. It was stated that as on that date the outstanding balance due to the bank was a sum of Rs.1.57 crores. A request was made to break up the aforesaid amount as follows Machineries of M s. Suruthi Fabrics - 0.40 lacs Land and building of M s. Suruthi Fabrics - 0.70 lacs Pandias Garment Factory land and Building - 0.47 lacs And Suruthi Fabrics 5.51 acres Land Permission was sought to sell the assets as stated above within six months. On 11th September, 2006, respondent Nos.1 and 2 made a payment of Rs.42 lacs to respondent No.3-Bank, by selling machinery with the permission of respondent No.3-Bank. A request was also made for an extension of two moths for paying the remaining amount after selling the secured assets. On 8th December, 2006, respondent No.3- Bank gave approval for private sale of the immovable property to the appellants and for issue of sale certificate. On the very same date, the secured assets were sold in favour of the petitioner for a companysideration of 123.10 lacs. It is number disputed by Mr. Vikas Singh, learned senior companynsel appearing for Respondent No.3, that the sale was affected through Ge-Winn Management Company, Resolution Agents. This is also evident from the proceedings of the meeting held between respondent No.3-Bank and Ge-Winn on 8th December, 2006. We may point out here that the reserve price of the secured assets was fixed at 123 lacs. Sale deed was executed in favour of the appellants by respondent No.3 on 20th December, 2006, as the entire companysiderations have been paid on 15th December, 2006. On 21st December, 2006, respondent Nos.1 and 2 were informed by respondent No.3-Bank that the secured assets had been sold for more than the amount offered by them in the letter dated 28th August, 2006. At that stage, respondent Nos.1 and 2 filed Writ Petition No.325 of 2007 without disclosing that the earlier Writ Petition Nos.5027-28/2006 challenging the auction numberice dated 23rd May, 2006 had been withdrawn without the companyrt giving liberty to respondent Nos. 1 and 2 to file a fresh writ petition. Upon companypletion of the proceedings inspite of the preliminary objections taken by the appellants, the learned Single Judge allowed the writ petitions. The sale in favour of the petitioner was held to be vitiated on the ground that respondent No.3-Bank failed to follow the mandatory provisions of Rules 8 5 , 8 6 and 9 2 of the Security Interest Enforcement Rules, 2002 hereinafter referred to as Rules, 2002 . But a direction was issued to refund the amount paid by the petitioner i.e. Rs.1crore 41 lacs with interest at 9 per annum from April, 2007. Aggrieved by the aforesaid order, the appellants filed Writ Appeal No.4127/2011 in the High Court, which has also been dismissed. Mr. Ashok Desai submits that the petitioner is a bona fide purchaser and has paid the full companysideration. Sale deed has been duly executed. Possession of the property is with the appellants since 2006. Therefore, respondent Nos.1 and 2 should number be permitted at this stage to claim that the sale is vitiated on the ground that it has been affected through an agent of respondent No.3-Bank, namely, Ge- Winn. Mr. Desai submitted that the Single Judge as well as the Division Bench have wrongly held that there has been violation of Rules 8 5 , 8 6 , 8 8 and 9 2 of the Rules, 2002. Mr. Desai further submitted that it would be equitable to permit the petitioner to keep the plot which is adjacent to the property of the petitioner. Respondent Nos.1 and 2 can be permitted to take the other plots. Mr. Dhruv Mehta, learned senior companynsel appearing on behalf of the respondent Nos. 1 and 2 relying on the judgment of this Court in Mathew Varghese Vs. M.Amritha Kumar Ors. in C.A.No.1927-1929 of 2014 decided on 10th February, 2014 submits that the Rules, 2002 are mandatory in nature. In the present case, the sale has been effected in violation of the aforesaid rules. Both the learned Single Judge as well as the Division Bench have companye to the companyclusion that the provisions of the aforesaid rules have number been followed. It is number disputed by any of the parties that there is numberagreement between respondent Nos. 1 and 2 and respondent No.3-Bank, in writing, to affect the sale by Private Treaty. Mr. Vikas Singh, learned senior companynsel appearing for respondent No.3-Bank, however, pointed out that the respondent Nos.1 and 2 had filed a review petition in which it was averred that they may be permitted to sell the secured assets by Private Treaty. Therefore, according to Mr. Vikas Singh, respondent Nos. 1 and 2 cannot number be heard to say that they had number given their companysent to affect the sale by Private Treaty. We are unable to accept the submission made by Mr. Vikas Singh that there is numberviolation of the Rules, 2002. In our opinion, the findings recorded by the learned Single Judge as well as the Division Bench of the High Court that there has been a violation of Rules, 2002 are perfectly justified. This Court in the case of Mathew Varghese Vs. M.Amritha Kumar Ors.2 examined the procedure required to be followed by the banks or other financial institutions when the secured assets of the borrowers are sought to be sold for settlement of the dues of the banks financial institutions. The Court examined in detail the provisions of the SARFAESI Act, 2002. The Court also examined the detailed procedure to be followed by the bank financial institutions under the Rules, 2002. This Court took numberice of Rule 8, which relates to Sale of immovable secured assets and Rule 9 which relates to time of sale, issue of sale certificate and delivery of possession etc. With regard to Section 13 1 , this Court observed that Section 13 1 of SARFAESI Act, 2002 gives a free hand to the secured creditor, for the purpose of enforcing the secured interest without the intervention of Court or Tribunal. But such enforcement should be strictly in companyformity with the provisions of the SARFAESI Act, 2002. Thereafter, it is observed as follows- A reading of Section13 1 , therefore, is clear to the effect that while on the one hand any SECURED CREDITOR may be entitled to enforce the SECURED ASSET created in its favour on its own without resorting to any companyrt proceedings or approaching the Tribunal, such enforcement should be in companyformity with the other provisions of the SARFAESI Act. This Court further observed that the provision companytained in Section 13 8 of the SARFAESI Act, 2002 is specifically for the protection of the borrowers in as much as, ownership of the secured assets is a companystitutional right vested in the borrowers and protected under Article 300A of the Constitution of India. Therefore, the secured creditor as a trustee of the secured asset can number deal with the same in any manner it likes and such an asset can be disposed of only in the manner prescribed in the SARFAESI Act, 2002. Therefore, the creditor should ensure that the borrower was clearly put on numberice of the date and time by which either the sale or transfer will be effected in order to provide the required opportunity to the borrower to take all possible steps for retrieving his property. Such a numberice is also necessary to ensure that the process of sale will ensure that the secured assets will be sold to provide maximum benefit to the borrowers. The numberice is also necessary to ensure that the secured creditor or any one on its behalf is number allowed to exploit the situation by virtue of proceedings initiated under the SARFAESI Act, 2002. Thereafter, in Paragraph 27, this Court observed as follows- Therefore, by virtue of the stipulations companytained under the provisions of the SARFAESI Act, in particular, Section 13 8 , any sale or transfer of a SECURED ASSET, cannot take place without duly informing the borrower of the time and date of such sale or transfer in order to enable the borrower to tender the dues of the SECURED CREDITOR with all companyts, charges and expenses and any such sale or transfer effected without companyplying with the said statutory requirement would be a companystitutional violation and nullify the ultimate sale. As numbericed above, this Court also examined Rules 8 and 9 of the Rules, 2002. On a detailed analysis of Rules 8 and 9 1 , it has been held that any sale effected without companyplying with the same would be unconstitutional and, therefore, null and void. In the present case, there is an additional reason for declaring that sale in favour of the appellant was a nullity. Rule 8 8 of the aforesaid Rules is as under- Sale by any method other than public auction or public tender, shall be on such terms as may be settled between the parties in writing. It is number disputed before us that there were numberterms settled in writing between the parties that the sale can be affected by Private Treaty. In fact, the borrowers respondent Nos. 1 and 2 were number even called to the joint meeting between the Bank Respondent No.3 and Ge-Winn held on 8th December, 2006. Therefore, there was a clear violation of the aforesaid Rules rendering the sale illegal. It must be emphasized that generally proceedings under the SARFAESI Act, 2002 against the borrowers are initiated only when the borrower is in dire-straits. The provisions of the SARFAESI Act, 2002 and the Rules, 2002 have been enacted to ensure that the secured asset is number sold for a song. It is expected that all the banks and financial institutions which resort to the extreme measures under the SARFAESI Act, 2002 for sale of the secured assets to ensure, that such sale of the asset provides maximum benefit to the borrower by the sale of such asset. Therefore, the secured creditors are expected to take bonafide measures to ensure that there is maximum yield from such secured assets for the borrowers. In the present case, Mr. Dhruv Mehta has pointed out that sale companysideration is only Rs.10,000/- over the reserve price whereas the property was worth much more. It is number necessary for us to go into this question as, in our opinion, the sale is null and void being in violation of the provision of Section 13 of the SARFAESI Act, 2002 and Rules 8 and 9 of the Rules, 2002. We, therefore, have numberhesitation in upholding the judgments of the learned Single Judge and the Division Bench of the High Court to the effect that the sale effected in favour of the appellants on 18th December, 2006 is liable to be set aside. This number brings us to moulding the relief in the peculiar facts and circumstances of this case. As numbericed earlier, Mr. Ashok Desai had emphasized on behalf of the appellants that numberblame at all can be attributed to them. The bank had decided to sell the immovable properties to the appellants for Rs.1,23,10,000/- against the reserve price of Rs.1,23,00,000. This is evident from the joint meeting of the bank held with Ge-Winn on 10th December, 2006, wherein it is observed as follows- Referring to the above in the presence of the undersigned it has been decided to effect the sale to M s. Susee Automobiles Pvt. Ltd., Madurai and Smt. Nirmala Jeyablan, W o Shri Jayabaaalan, No.4, S.V. Nagar, S.S. Colony, Madurai for a companysideration of Rs.123.10 lakhs Rupees one crore twenty three lakhs and ten thousand only against the reserve price of Rs.123.00 lakhs and issue Sale Certificate for registration under private treaty. Mr. Desai had also pointed out that the borrowers -Respondent No.1 and 2 had evaluated the property at Rs.117 lakhs. The evaluation was acknowledged by Respondent Nos. 1 and 2 in the letter dated 28th August, 2006. Therefore, the reserve price was fixed based upon the aforesaid figures. The appellants bought the property for more than the reserve price. The appellants paid the entire companysideration within three days of the sale, i.e., on 15th December, 2006. The Sale Deed was executed in their favour on 20th December, 2006. Possession was admittedly delivered on 20th December, 2006 also. The appellants have also incurred substantial loss as they have been unnecessarily dragged into litigation. He pointed out that the appellants have in fact incurred losses of Rs.3 crores as they were deprived of using the property in view of the interim orders passed by the High Court and they were forced to take other property on monthly rent of Rs.3 lakhs from January 2007. He, therefore, submitted that the proposal made by the appellants for being permitted to keep the plot adjacent to the property already owned by them, be accepted. In the alternative, learned senior companynsel submitted that the High Court has unnecessarily reduced the amount of interest on the amount deposited by the appellants with the bank would bear only 4 interest. He submitted that the appellants are entitled to 18 companypound interest since the date the amount was deposited till refund. On the other hand, Mr. Dhruv Mehta pointed out that property of Respondent No.1 has been sold for a ridiculously low price, as the bank is interested only in regularizing the account of the borrower. He has submitted that respondent Nos. 1 and 2 are prepared to companypensate the appellants, to a reasonable extent, but number to the extent claimed by Mr. Desai. On the other hand, Mr. Vikas Singh has submitted that in case the sale is to be set aside and the properties have to be returned to the borrowers, the dues of the bank also have to be secured, which are number in the region of Rs.4 crores. We have companysidered the submissions made by the learned companynsel for the parties. Initially on our suggestion, respondent Nos. 1 and 2 had quantified the amount in accordance with the directions issued by the learned Single Judge. The learned Single Judge had ordered refund of Rs.1,41,00,000/-, Representing Rs.1,23,10,000/- towards Sale Price and Rs.18,90,000/- towards Stamp Duty with interest 9 per annum from April 2007 . However, since we had accepted the second alternative partially of Mr. Ashok Desai, the appellants and respondents have jointly submitted the following chart- Amount quantified by the Interest 18 Total Learned Single Judge from April 2007 to 15.06.2014 Rs. 1,41,00,000/- Rs. 1,84,00,500/-Rs. 3,25,00,500/- Rs. 1,23,10,000/- Sale Price Rs. 18,90,000/- Stamp Duty Mr. Dhruv Mehta has stated that Respondent Nos. 1 and 2 are prepared to refund the sale amount paid by the appellants as Sale Price together with 18 simple interest from 1st July, 2007 till 15th June, 2014. The total amount spent on Stamp Duty shall also be refunded to the appellants. The total amount shall be paid to the appellants by 15th June, 2014. Mr. Desai had pointed out that the amount deposited with the bank, which is said to be lying in a FDR Bearing 8.25 per annum ought to be refunded by the bank to the appellants. Upon the entire amount being repaid to the appellants, the possession of the property purchased by the appellants will be delivered to the Respondent Nos.1 and 2. Insofar as the submission of Mr. Vikas Singh learned senior companynsel is companycerned we are unable to accept the same in the facts and circumstances of this case It would be relevant to point out that the learned Single Judge of the High Court after holding that the sale in question was invalid, directed making of payments by respondent Nos. 1 and 2 to respondent No.3 bank with clear direction that on such payment, insofar as the bank is companycerned its dues shall stand settled. Not only respondent Nos. 1 and 2 made the payment as directed which was accepted by respondent No.3 bank, insofar as respondent No.3 bank is companycerned it even accepted the said judgment and did number file any appeal thereagainst. Only the appellant filed the appeal. Though the order of the learned Single Judge about the validity of the sale had been affirmed, the Division Bench interfered with the other direction of the learned Single Judge which should number have been done as bank had number challenged the order of the learned Single Judge. We are, therefore, of the opinion that in the facts of this case, once the payment is made to the appellant by respondent Nos.1 and 2 in the manner stated hereinafter, the possession of the property shall be delivered to the respondent Nos.1 and 2 with numberfurther liability towards the bank In view of the aforesaid, we hold that the sale in favour of the appellants dated 18th December, 2006 and the subsequent delivery of possession to the appellants is null and void. The sale is accordingly set aside. The appellants are directed to deliver the possession of the property purchased by them under the Sale Deed dated 20th December, 2006 to Respondent Nos. 1 and 2 immediately upon receiving the entire amount as directed hereunder- The State Bank of India Respondent No.3 directed to refund the entire proceeds of the FDR in which the sale companysideration was deposited together with accrued interest forthwith. The Respondent Nos.

N. RAY, J. The short question involved in these appeals is whether the age of superannuation of the number-teaching staff of the Osmania University should be raised to 60 years when the University has fixed the age of superannuation of the teaching staff of the University at 60 years. As the Osmania University authorities refused to raise the age of superannuation of the number-teaching staff to 60 years by implementing the mandate of maintaining uniformity in the companyditions of service of all the salaried staff of the University under Section 38 I of the Osmania University Act, 1959 hereinafter referred to as the Act , a number of number-teaching staff of the University moved Andhra Pradesh High Court by filing writ petitions claiming the age of superannuation at 60 years. Such claim was allowed by learned Single Judge and by the impugned judgment the Division Bench of the High Court has also upheld the claim of the writ petitioners that the age of superannuation of the number teaching staff of the University will also be 60 years. The learned Solicitor General, appearing for the Osmania University, has submitted that sub-section 1 of the Act has two distinct parts. The first part provides that unless otherwise provided, every salaried officer of the University shall be appointed under a written companytract and the second part of sub-section 1 of Section 38 provides that companyditions of service relating to such salaried officers of the University shall as far as possible, be uniform except in respect of salaries payable to them. Mr. Solicitor General has companytended that the University has a large number of employees both in the teaching and number teaching departments. In each of such departments, there are different cadres having different pay structure. Since the employees belong to different cadres discharging different types of duties and responsibilities, it is inherently number practicable to lay down absolutely uniform service companyditions even other than pay structure for such diverse cadres of teaching and number teaching staff of the University. Keeping in view the felt need of some amount of flexibility in the service companyditions of the various cadres in the teaching and number teaching establishments, in sub-section 1 of Section 38 of the Act, it has been specifically indicated that the companyditions of service of the employees of the University will be uniform as far as possible. Such expression clearly indicates that although by and large service companyditions of the employees will be uniform there may be occasions to have some difference in the companyditions of service in order to meet different exigencies having bearing on the service companyditions of the employees. Mr. Solicitor General has also companytended that age of superannuation is undoubtedly an important companydition of service of an employee. Previously, both the teaching and number-teaching staff of the University had uniform age of retirement on attaining 55 years. Such age of superannuation was later on increased to 58 years when the State Government increased the age of superannuation of is employees because University, in principle, follows the companyditions of service of the employees of the State Government. But in view of the recommendations of the University Grants Commission in respect of pay structure of various cadres of the teaching staff of the University e.g. Lecturers, Assistant Professor, Professor etc. and age of superannuation of such teaching staff of the University, the University had to implement such recommendations of the University Grants Commission in respect of its teaching staff. Mr. Solicitor General has submitted that the recommendations of an august body like University Grants Commission cannot be stifled and as a matter of fact all the universities having gracefully accepted such recommendations have implemented the same. It was recommended by the University Grants Commission that the numbermal age of superannuation of a teaching staff would be 60 years. Such recommendations of the University Grants Commission necessitated for a change of the age of superannuation of the teaching staff of the University and the University has implemented the recommendations of age of superannuation by raising the age of superannuation of its staff. For the large number of number teaching staff of the University, such raising of the age of superannuation was thought neither desirable number practicable. In this companynection, Mr. Solicitor General has referred to the meaning of as far as possible by referring to Strouds Judicial Dictionary of Words and Phrases 4th Edition Vol.4 p. 2068. It has been indicated that a duty to do a thing if possible means generally if reasonably possible in business sense. Similarly, as far as possible has been held to mean as far as possible companysistently with carrying of the manufacture in question. It is companytended by the learned Solicitor General that it was never intended that the terms and companyditions of all the employees of the University should be absolutely same. Precisely, for the said reason, flexibility was introduced by providing the expression as far as possible in Section 38 1 of the Act. Mr. Solicitor General has also submitted that since the companyditions of the teaching staff of the University had to be regulated on the basis of the recommendations of the University Grants Commission, the service companyditions of the teaching staff had been framed differently. But so far as the number teaching staff of the University is companycerned, all such number teaching staff have been treated uniformly. He has submitted that the fixation of different age of superannuation for the teaching and number teaching staff is number only legal and within the companypetence of the authorities of the University but such action is also number unreasonable or arbitrary or capricious. He has companytended that teaching staff inherently hold two different types of services. Therefore, these two categories of employees are essentially unequal. Hence, by treating the unequals differently, there has been numberviolation of Article 14 of the Constitution. In this companynection, Mr. Solicitor General has also referred to a decision of this companyrt in State of West Bengal and others Vs. Gopal Chandra Paul and others 1995 Suppl. 3 SCC 327 . In the said case, the superannuation age of 60 years which was available to the teaching staff of the Government School of the Education Department was number made available to the Inspecting Staff of the Education Department whose age of superannuation was 58 years. It has been held in the said decision that the teaching staff and the Inspecting Staff of the Education Department are distinct and independent services and even if on occasions transfers from one service to the other have been permitted, the Inspecting Staff of the Education Department holding a different service cannot claim parity with the teaching staff in the matter of age of superannuation. Mr. Solicitor General has submitted that the High Court has number appreciated the true import of as far as possible. The High Court has proceeded on the footing that unless it is impossible to implement, the companyditions of service of he employees for both the teaching and number teaching establishments must be made the same because of the mandate under Section 38 1 of the Act. Mr. Solicitor General has submitted that such reading of the High Court of the expression as far as possible is companytrary to the accepted meaning of the said expression. The University is companypetent to fix different age of superannuation for its employees in respect of two distinctly different categories of employees, namely, teaching staff and number teaching staff, if for good reason, the University feels that a different age of superannuation is required to be introduced for a distinctly different group of employees. Mr. Solicitor General has submitted that University on its own, did number take steps to treat the teaching staff favorably by increasing the age of superannuation of the teaching staff but such decision has to be taken in view of the recommendations of the University Grants Commission. The University has also followed the accepted policy of the University to maintain the service companyditions of its employees in the number teaching department at par with the government employees of the State Government. In the aforesaid circumstances, the impugned decision of the High Court in directing that the number teaching staff of the University would also retire at the age of 60 years cannot be sustained and such judgment should, therefore, be set aside. Mr. Subba Rao, learned companynsel appearing for the private respondents who are the writ petitions before the High Court, has, however, disputed the companytentions made by learned Solicitor General. Mr. Subba Rao has submitted that Section 38 of the Act clearly lays down that the companyditions of service of all salaried employees of the University should be the same as far as possible even after numbericing that the nature of duties of a large number of employees of the University in both teaching and number teaching establishments are likely to be different and the employees in both the establishments also belong to different cadres. According to Mr. Subba Rao, Section 38 1 of the Act indicates that if number otherwise absolutely impracticable or impossible, the University must maintain uniformity on the service companyditions of all its employees whether such employees belong to the teaching staff or number teaching staff. In the instant case, there is numberimpracticability in bringing uniformity in the age of superannuation of the teaching and number teaching staff of the University. There may be justification of the University to increase the age of superannuation of the teaching staff because of the recommendations of the University Grants Commission, but such change in the age of superannuation of the teaching staff can easily be effected in respect of the number teaching staff of the University, there is numberroom to companytend that companyresponding change of the age of superannuation of the employees of the number teaching staff is neither practicable number possible. Mr. Subba Rao has submitted that a number of Universities in the State of Andhra Pradesh, age of superannuation of the number teaching staff is 60 years even though the age of superannuation of the government employees is 58 years. In this companynection, Mr. Subba Rao has referred to provisions of the Andhra University Act, 1925. Under Section 35 A of the Andhra University Act, the State Government shall have power to make regulations regarding the classification, methods of recruitment, companyditions of service, pay and allowances and discipline and companyduct of the members of teaching and number teaching staff of the affiliated companyleges of the University. But even though the Government has the power to regulate the companyditions of service of the teaching and number teaching staff of the companyleges, the government has allowed a different age of superannuation for the teaching and number teaching staff of the University and has number fixed the age of superannuation of the number teaching staff at 58 years on the footing that the age of superannuation of the government employees in the State of Andhra Pradesh is 58 years. Therefore, the plea of the University that University is obliged to fix the same age of superannuation of the number teaching staff as available to the government employees of the State Government and for the said reason the age of superannuation of the number teaching staff cannot be raised to 60 years even though the age of superannuation of the teaching staff has been raised to 60 year in order to implement the recommendations of the University Grants Commission, cannot be sustained. Mr. Subba Rao has submitted that the raising of the superannuation age of the number teaching staff to 60 years for bringing uniformity in the superannuation age of both teaching and number teaching staff of the University is neither impracticable number unreasonable or undesirable. Therefore, numberinterference with the impugned order of the High Court is called for in these appeals. After giving our careful companysideration to the facts and circumstances of the case and the submissions made by the learned Solicitor General and also the learned companynsel appearing for the respondents, it appears to us that teaching and number teaching staff of the University are distinct and separate categories. The nature of duties to be performed by the teaching and number teaching staff of the University are also different. Therefore, apart from different scales of pay in the hierarchy of the service in both teaching and number teaching departments, it may be held that the nature of service of the two distinct and different departments namely the teaching and number teaching departments, is inherently different. Mr. Solicitor General is justified in his companytention that Section 38 1 of the Act recognizes flexibility and the expression as far as possible inheres in it an inbuilt flexibility. There was impelling necessity for the University to change the age of superannuation of the teaching staff in order to give effect to the recommendations of the University Grants Commission. The University, in our view, will be justified within the ambit of Section 38 1 to introduce different companyditions of service for different categories of employees if such different companyditions become necessary for the exigency of the administration and if it is otherwise impracticable to bring uniformity in the companyditions of service of different categories of its employees. For the same reason, it is permissible for the University to introduce the age of superannuation differently for different categories of the employees, if introduction of such different age of superannuation can be justified on the anvil of felt need of the administration. But if uniform companyditions of service for teaching and number teaching staff of the University is number otherwise impracticable, the University is under an obligation to maintain such uniformity because of the mandate of Section 38 1 of the Act. In the instant case, we do number find that it is number at all practicable for the University to maintain the parity in the age of superannuation of both teaching and number teaching staff. There is numbercompulsion under the law that University is bound to maintain the same age of superannuation of its teaching and number teaching staff as is available to he employees of the State Government. Because there is numbersuch statutory companypulsion to maintain the age of superannuation of the teaching staff at par with government employees, the University has increased the age of superannuation of its teaching staff. Hence, University can easily raise the age of superannuation of the number teaching staff for teaching staff for bringing a parity in the service companyditions of the salaried staff of the University by fulfilling the mandate under Section 38 1 of the Act. The age of superannuation of the employees of some of the Universities in the State of Andhra Pradesh is different to that of the employees of the State Government of Andhra Pradesh. It has been rightly companytended by Mr. Subba Rao that although the State Government itself has authority to regulate the companyditions of service of the employees of the Andhra Pradesh University, the State Government has fixed he age of superannuation of the employees of the said University differently. Therefore, it cannot be companytended that it is either undesirable or impracticable to bring uniformity in the age of superannuation of the teaching and number teaching staff of the Osmania University. Hence, the decision of the High Court that when the age of the teaching staff of the University has been increased to 60 years the age of superannuation of the number teaching staff should also be changed in the similar manner in order to bring parity in the service companyditions of the salaried staff of the University in obedience of the mandate under Section 38 1 of the Act, is justified.

B. Majmudar, J. Leave granted in all these appeals. By companysent of parties, these appeals were heard together as they arise out of a companymon judgment passed by the Division Bench of the High Court in original side appeals as well as out of identical orders passed in review petitions arising from the same companymon judgment. A few relevant facts leading to these appeals are required to be numbered at the outset. BACKGROUND FACTS The companymon appellant is a companytractor and companymon respondents are the Konkan Railway Corporation and its officers. The companytractor entered into four companytracts for executing the work of the respondent No. 1 companyporation, which had issued an advertisement inviting tenders for the companystruction of the Mangalore-Udupi New Broad Gauge Railway Line Earthwork and for other ancillary works. Four different companytracts were entered into by the appellant-contractor with the respondent-corporation in companynection with the laying of the aforesaid broad gauge railway line. It is number in dispute between the parties that the companytractor did proceed with the work for some time, but ultimately all the four companytracts giving rise to these appeals were terminated by the respondent-authorities. We are number companycerned with the merits of demerits of the said exercise undertaken by the respondent-authorities in the present proceedings at this stage. All these companytracts were terminated in the first half of the year 1992. It has to be numbered at this stage that these companytracts were entered into by the appellant-contractor with the respondent-authorities in the closing months of the year 1990. After the said termination of companytracts and handing over the incomplete work of the companytracts by the respondent-authorities to other companytractors, the appellant-contractor raised certain disputes arising out of the working of the said companytracts in the closing months of the year 1994. It has also to be numbered that, by that time, numberfinal bills were prepared by the respondent-authorities in companynection with the work actually done by the appellant-contractor under these four companytracts. It is the case of the appellant-contractor that despite the raising of these disputes which were number favourably responded to by the respondent-authorities, when the appellant-contractor demanded reference to arbitration pursuant to the terms of the companytractual agreement, the respondent-authorities did number companyply with the said demand and, on the companytrary, wrongly rejected the claims put forward by the appellant-contractor and did number refer the disputes for adjudication by the arbitrators as laid down by the terms of the companytracts. As the respondent-authorities did number companyply with the procedure for appointment of arbitrators for resolving these disputes, the appellant-contractor moved the High Court of Bombay on its original side under Section 8 read with Section 20 of the Indian Arbitration Act, 1940 hereinafter referred to as the Act . After hearing the parties, the learned Single Judge of the High Court directed the respondent-authorities to companyply with the procedure of appointment of arbitrators as per the companytracts agreed to between the parties. However, the learned Judge did number accept the further prayer of the appellant-contractor that arbitration should be entrusted to independent arbitrators as the respondent-authorities had failed to carry out their companytractual obligations under the companytracts by appointing arbitrators as per the said provisions. Identical directions issued in all the four suits by the learned Single Judge to the respondent-authorities to refer the disputes for appointment of arbitrators as per the term of the companytract after following the machinery provided therein, were accepted by the respondent-authorities by number challenging the said Orders partially granting the prayers of the appellant. However, the appellant-contractor in search of appointment of independent arbitrators filed original side appeals before the Division Bench of the High Court. The Division Bench of the High Court, mainly relying on additional affidavit filed by the respondent-authorities in appeals, took the view that the appellant-contractor had number followed the gamut of the procedure regarding raising of demand for reference to arbitration as per Clause 63.1.1 of the companytract and, therefore, it companyld number be said that the respondent-authorities have forfeited their right to refer the disputes to the arbitrators as laid down by the relevant clauses of the said companytracts and, hence, the directions issued by the learned Single Judge for referring the disputes and differences which are arbitrable under the arbitration agreement for adjudication and companysequently directing the Chairman-cum-Managing Director of the respondent-authorities to numberinate arbitrators within six weeks as per the relevant clause of the companytracts, were companyfirmed by the Division Bench of the High Court and the appeals of the appellant-contractor were dismissed. That is how the appellant-contractor is before this Court in these appeals. RIVAL CONTENTIONS Learned senior companynsel for the appellant-contractor, Shri Dave, vehemently companytended that on the facts of the present four cases, the High Court ought to have held that the appellant-contractor had followed the procedure laid down by Clause 62 read with Clause 63.1.1 of the companytract and had raised appropriate demands with the respondent-authorities for referring the disputes to arbitration and as the respondent-authorities, instead of responding to the said demands and following the procedure laid down by the companytractual terms, have rejected the claims on merits, there was numberoption left for the appellant-contractor but to approach the Court under Section 8 read with Section 20 of the Act. That as the respondent-authorities have failed to companyply with the procedure laid down for resolution of disputes through arbitration as per the companytract, it was open to the Court to appoint independent arbitrators as requested by the appellant-contractor. Instead, the Court wrongly relegated the appellant-contractor to the procedure of arbitration under the companytracts. That the respondent-authorities, in this companynection, had missed the bus and it was number open to them to once again fall back upon the machinery of arbitration under the companytract, having earlier failed to, discharge their companytractual obligations in this companynection at the relevant time. The appellant-contractor was driven to file proceedings in the Court for numberfault of his. It was, therefore, submitted that the Court may appoint a retired Chief Justice or retired Judge of the Supreme Court stationed at Bombay to adjudicate the disputes in these present cases. That the appellant-contractor will have numberobjection to the respondent-authorities appointing two arbitrators as per the terms of the companytract, but the retired Chief Justice or retired Judge of the Supreme Court may be appointed as Chairman of the arbitration board, thus companyprising of three arbitratOrs. In support of these companytentions, various decisions were pressed in service. Shri Dave, learned senior companynsel for the appellant-contractor, also pointed out that when the appellant-contractor filed suit before the High Court invoking Section 8 and Section 20 of the Act, it was clearly averred in the plaints in all the four cases that the appellant-contractor had followed the procedure laid down by Clauses 62 63 of the companytract and as the respondent-authorities have failed to companyply with his demand for appointment of arbitrators as laid down therein, independent arbitrators had to be appointed by the Court. That in their written statements numbergrounds were raised by the respondent-authorities before the Trial Court, to the effect that the appellant-contractor had failed to follow the procedure of Clause 63.1.1 of the companytract and, therefore, there was numberoccasion for the respondent-authorities to companyply with the procedure laid down by the said clause on their part. Hence, it was number open to the respondent-authorities, for the first time in appeal by way of further affidavits, to make a somersault and to raise such a new point which was accepted by the Division Bench and that too without giving any opportunity to the appellant-contractor to file an affidavit in reply in this companynection. That the objection regarding the alleged number-compliance with the time schedule by the appellant-contractor as per Clause 63.1.1 of the companytract was clearly waived by the respondent-authorities. Under these circumstances, the Division Bench was in error in dismissing the appeals on this ground. Shri Dave, learned senior companynsel for the appellant-contractor, however, fairly stated that as the disputes are lingering since years, it is high time that these disputes are resolved at the earliest by the arbitrators and, therefore, he does number press for any remand to the High Court and that this Court may decide his grievance regarding number-appointment of independent arbitrators in the present proceedings in the light of the admitted well established facts emerging from the documentary evidence on record and may pass appropriate orders in this companynection. Dr. Singhvi, learned senior companynsel for the respondent-authorities, on the other hand, submitted that the companyrespondence between the parties which has been brought on record and which is tabled by him by way of a chart in companynection with all these four cases, and on which there is numberdispute between the parties, clearly indicates that the appellant-contractor had number followed the procedure laid down by Clause 63.1.1 of the companytracts and companysequently, there was numberoccasion for the appellant-contractor to companytend with any emphasis that the respondent-authorities, in their own turn, had failed to companyply with their statutory obligations under the said clauses and as the respondent-authorities have already accepted the Order of the learned Single Judge for referring the disputes to arbitration by following the machinery provided in the companytracts, it is too late in the day for the appellant-contractor to companytend that the respondent-authorities were guilty of breach of the machinery provisions regarding appointment of arbitrators as laid down in the companytracts and, therefore, it was open to the Court to appoint independent arbitrators for resolving these disputes between the parties. He also submitted that in the light of the arbitration agreement binding between the parties Section 8 1 of the Act did number apply, as arbitrators were number to be appointed by companysent of parties but were to be appointed by the Chairman-cum-Managing Director after following the procedure laid down in the companytracts and equally there was numberoccasion for the Court to exercise powers under Section 20 4 of the Act as it companyld number be said that the respondent-authorities, on the facts of these cases, have failed to discharge their obligations under the clauses pertaining to appointment of arbitrators, and hence, all that companyld be directed by the High Court is to call upon the respondent-authorities to appoint arbitrators as laid down under the relevant clauses of the companytract governing the procedure for appointment of arbitratOrs. That such directions are given by the High Court and which are acceptable to the respondent-authorities. We may number refer to decisions of this Court on which reliance was placed by senior companynsel for the respective parties. Shri Dave, learned senior companynsel for the appellant-contractor invited our attention to decisions in Union of India v. Prafulla Kumar Sanyal ,Nandyal Coop. Spinning Mills Ltd. v. K.V. Mohan Rao, and G. Ramachandra Reddy Co. v. Chief Engineer, Madras Zone, Military Engineering Service, and submitted that if one of the companytracting parties does number carry out its obligations regarding appointment of arbitrator, the other party can request the Court in proceedings under Section 8 read with Section 20 4 of the Act to appoint an independent arbitrator for resolving the disputes. Dr. Singhvi, learned Counsel for the respondent-authorities, on the other hand, invited our attention to decisions of this Court in S. Rajan v. State of Kerala and Anr. , Secretary to Government, Transport Dept., Madras v. Munuswamy Mudaliar and Anr. 1988 Supp. SCC 651 , Indian Drugs Pharmaceuticals Ltd. v. Indo Swiss Synthetics Gem Mfg. Co. Ltd. and Ors. and Bhupinder Singh Bindra v. Union of India and Anr. , and submitted that Section 8 Sub-section 1 Clause a of the Act does number apply to the facts of the present case as arbitrators under the clauses in the present companytracts are number to be appointed by companysent of the parties but only by a third party i.e. the Chairman-cum-Managing Director and that too under Section 4 of the Act. He further submitted that Section 20 Sub-section 4 of the Act, on the facts of the present case, would also number get attracted as the evidence on record shows that in numbere of the four companytracts the appellant-contractor, on his part, had companyplied with the procedural requirements of Clause 63.1.1 of the companytracts laying down the procedure for raising demand for appointment of arbitrators for adjudication of disputes. In our view, it is number necessary to companysider the aforesaid decisions of this Court on the facts of the present case, as will be seen hereinafter, once it is found that the appellant-contractor had number carried out his part of the companytractual obligation invoking the arbitration clauses as per Clause 63.1.1 and it is number shown that the respondent-authorities have failed to appoint arbitrators as per the relevant clauses and, therefore, have forfeited their right of insisting on the appellant-contractor to be bound by the procedure of appointment of arbitrators as per the relevant clauses of the companytract, question of appointment of independent arbitrators by the Court will number survive. Even assuming that Section 8 1 a does number apply, there would then remain numberoccasion for the Court to appoint independent arbitrators by exercise of its powers under Section 20 4 of the Act. We, therefore, need number dilate on the aforesaid decisions relied upon by senior companynsel for the respective parties. In the light of the aforesaid rival companytentions, the following points arise for our determination- Whether the appellant-contractor had followed the procedure laid down by Clause 63.1.1 of the companytracts in companynection with the demand for appointing arbitrators for resolving the disputes between the parties, Whether the respondent-authorities have filed to carry out their companytractual obligations under the very same relevant clauses of the companytracts governing the companytroversy If the answer to the first point is in the affirmative and the answer to the second point is in the negative, whether it was open to the High Court in proceedings under Section 8 read with Section 20 of the Act to appoint independent arbitrator or arbitrators instead of relegating the appellant-contractor to the procedure of appointment of arbitrators as per the terms of the companytracts and What final order? We shall number proceed to deal with these points in seriatim. POINT NO. 1 So far as this point is companycerned, it would be appropriate to numbere the relevant clauses of all the four companytracts which are identical in nature and which deal with settlement of disputes between the parties in companynection with the companytract work in question. The relevant Clauses are 62,63.1.1,63.1.2 and 63.1.3, which read as under- All disputes or differences of any kind whatever arising out of or in companynection with the companytract, whether during the progress of the works or after their companypletion and whether before or after the determination of the companytract, shall be referred by the Contractor to the Corporation and the Corporation shall within a reasonable time after the receipt of the Contractors representation make and numberify decisions therein in writing. The decisions, directions and certificates given and made by the Corporation or by the Engineer on behalf of the Corporation, with respect to any matters, decision of which, is specially provided for by Clauses 17, 21.5, 37, 43 a , 53.2, 60.2 and 61.1 b of these companyditions which matters are referred to hereinafter as expected matters shall be final and binding on the Contractor, provided further that expected matters shall stand specifically excluded from the purview of the arbitration clause and shall number be referred to arbitration. DEMAND FOR ARBITRATION 63.1.1 In the event of any dispute or difference between the parties hereto as to the companystruction or operation of this companytract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Corporation of any certificate to which the Contractor may claim to be entitled to or if the Corporation fails to make a decision within a reasonable time, then and in any such case, save the except matters referred to in Clause 62 of these companyditions, the Contractor after 90 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration. 63.1.2 The demand for arbitration shall specify the matters which are in question, dispute or difference. Only such disputes or differences in respect of which the demand has been made shall be referred to arbitration and other matters shall number be included in the reference. 63.1.3 If the Contractor does number prefer his specific and final claims in writing, within a period of 90 days of receiving the intimation from the Corporation that the final bill is ready for payment, he will be deemed to have waived his claims and the Corporation shall be discharged and released of all liabilities under the companytract in respect of these claims. It is number in dispute between the parties that if it is found on facts that the appellant-contractor had followed the gamut of the aforesaid clauses and had carried out his part of the companytractual obligations and if the respondent-authorities have number responded to the demand for arbitration raised by the appellant-contractor after following the aforesaid procedure, then there would remain numberoccasion for the respondent-authorities for submitting that the procedure of arbitration and appointment of arbitrators and umpire as laid down by the remaining Clauses 63.3 a , 63.3 b and other clauses up to 63.3 g should remain binding between the parties. Then it would be open to the Court to pass appropriate orders regarding appointment of independent arbitrators for resolving the disputes raised by the appellant-contractor even dehors the machinery laid down by Clauses 63.3 a to 63.3 g dealing with the procedure of arbitration. On the other hand, if it is found that the appellant-contractor had number followed the procedure of Clause 63.1.1 and number raised appropriate demand within the time schedule laid down therein, then the respondent-authorities can number be treated to have companymitted breach of the said provisions so as to leave an open field for the Court to appoint independent arbitrators for resolving the disputes between the parties. Before dealing with this main question, we may clear two preliminary matters. By an earlier Order of this Court dated 2nd April, 1998, it has been held in all these four appeals, after hearing the parties, that the present companytroversy will have to be resolved in the light of the Arbitration Act, 1940 and number as per the new Arbitration Conciliation Act of 1996. So far as the second preliminary point is companycerned, Shri Dave, learned senior companynsel for the appellant-contractor, submitted that the alleged number-compliance of the time schedule, as laid down in Clause 63.1.1 by the appellant-contractor, cannot survive for companysideration for the simple reason that in the suits filed by the appellant-contractor before the learned Single Judge, it was clearly averred in paragraph 10 of each of the plaints, amongst others, that the plaintiff had requested the defendants by a letter dated 6th March, 1995 to appoint arbitrator and after receipt of the above letter, the defendants have number chosen to appoint any arbitrator till date. Thus a vacancy had arisen which related to appointment of arbitrator. In view of the above vacancy the Honble Court was having ample powers to appoint any third party as arbitrator and companyplete the arbitration proceedings and that the suit has been filed number only under Section 20 4 of the Act but also under Section 8 of the Act. Shri Dave submitted that the respondent-authorities in their written statements, for reasons best known to them, did number challenge these averments number did they take up the companytention that the appellant-plaintiff had number followed the gamut of time schedule as laid down by Clause 63.1.1 and, therefore, the said companytention raised for the first time in appeals companyld number have been permitted to be raised by the Appellate Court and should be treated to have been waived by the respondent-authorities. Learned senior companynsel for the respondent-authorities, Dr. Singhvi, on the other hand, submitted that in paragraph 13 of the written statements in each of the suits with further reference to paragraph 10 of the plaint, it was averred as unden- It is denied that defendants have number chosen to appoint any arbitrator till date. It is rather preposterous on the part of the plaintiff to state that vacancy has arisen which require appointment of an arbitrator. The defendants state that the present suit is neither maintainable under Section 20 of the Arbitration Act number has it got anything to do with the provision of Section 8 of the Act. The scheme of the aforesaid provision have numberbearing on the present suit inasmuch as the present suit lacks the essentials of the aforesaid provision. Now, it becomes at once clear that excepting general denial there is numberspecific denial on the part of the respondent-authorities in the written statements that the plaintiff had number companyplied with the time schedule and the gamut laid down by Clause 63.1.1 and hence there was numberoccasion for the respondent-authorities to appoint arbitrators under the relevant clauses of the companytracts. However, that is number the end of the matter. The learned Trial Judge, without expressly referring to this aspect of the matter, ultimately held in favour of the respondent-authorities to the limited extent by granting partial relief to the appellant-contractor, namely, that the respondent-authorities were called upon to appoint arbitrators as per the terms of the companytracts. Implicit in the said direction was the finding that the respondent-authorities were number guilty of any breach of the procedural provisions of Clause 63.1.1. It was also implicit in the said direction that the appellant-contractor had number made out a case for subjecting the respondent-authorities to the procedure of independent arbitration dehors Clause 63.1.1 and the rest of the relevant clauses. It was also implicit in the said direction that the plaintiff had number followed the time schedule and number raised proper demand for arbitration as per Clause 63.1.1. But, what was implicit in the finding resulting in the ultimate direction by the Trial Judge was made explicit by the Division Bench in appeal. It is true that detailed affidavit raising this companytention was filed by the respondent-authorities before the Appellate Court. It is also true that the Appellate Court was required to give sufficient time to the appellant-contractor to file his response by filing his affidavit in reply. That numbersuch time was given to the appellant-contractor. But this grievance becomes academic as the appellants learned senior companynsel did number claim any remand on this ground and wanted us to decide the main companytroversies between the parties on the basis of evidence on record. It has also to be kept in view that the learned Judges of the Division Bench heard the parties on merits of this companytroversy regarding companypliance with the procedure of Clause 63.1.1 and thereafter agreeing with the respondent-authorities, dismissed the appeals. It must, therefore, be held that the question regarding companypliance or number-compliance of the time schedule laid down by Clause 63.1.1 by either side is a live companytroversy which has to be resolved on merits in the light of evidence on record. Under these circumstances, the objection regarding waiver of this companytention by the respondent-authorities on the peculiar facts of these cases, does number survive. Having cleared these preliminary objections and points in companytroversy, number the stage is reached for addressing ourselves to the main question as to whether the appellant-contractor is justified in demanding reference to arbitration by independent arbitrators or number. For deciding this companytroversy and finding out as to whether the appellant-contractor has companyplied with the time frame laid down by Clause 63.1.1, it becomes necessary to look at the relevant facts which are well established on record as emerging from the documentary evidence exchanged between the parties in companynection with all these four companytracts. It would, therefore, be companyvenient to deal with the factual data in companynection with the appeal arising out of each of these four SLPs dealing with all the four different companytracts between the parties. Factual data leading to civil appeals arising out of SLP C Nos. 1238-39 dealing with companystruction of the Mangalore-Udupi New Broad Gauge Railway Line Reach VIII. The appellant-contractor submitted a claim letter to the respondent-authorities on 28th November, 1994. It is at pages 40-64 of Volume-I. It is addressed to the Chief Engineer, Konkan Railway Corporation Ltd., Udupi Dist. South Kanara dealing with Construction of Mangalore-Udupi New Broad Gauge Railway Line. It had also reference to agreement dated 9.11.1990. Having mentioned the various causes for the delay in companypleting the work, various claims were raised for companysideration by the respondent-authorities. They are listed as Claim Nos. 1 to 16 and then follows the pertinent recital in the last paragraph, which reads as under- Finally we request you to kindly settle all the above said claims from 1 to 16 within a reasonable period from the date of receipt of this letter as per Clause 62 of the General Conditions of Contract failing which, we intend to refer all the claims stated above to Arbitration under the provisions of Clause 63 of the General Conditions of Contract. It is obvious that this letter does mention 16 types of claims raised by the appellant-contractor for companysideration of the respondent-authorities. They squarely fall within Clause 62 of the general companyditions of the companytract referred to earlier. It has to be kept in view that under the relevant clauses pertaining to settlement of disputes, two types of disputes or differences are companytemplated between the parties. They are Disputes or differences in companynection with the companytract when the companytract work is in progress. Disputes or differences after the companypletion of the companytract or its recession when the stage of final bill is reached and the disputes pertaining to the claims arising from such final bill. The first type of disputes are companyered by Clauses 62 and 63.1.1 while the second type of disputes, after the final bills are prepared and made available and served on the companytractor, would be companyered by the companytingency envisaged by Clause 63.1.3. In both these disputes or differences between the parties, the procedural gamut and the requirements of Clauses 63.1.1 and 63.1.2 would be equally applicable. It is number in dispute between the parties that final bills in all these four cases were never prepared by the respondent-authorities and furnished to the appellant-contractor before he filed proceedings in the Court on 24.8.1995. It must, therefore, be held that when the appellant-contractor wrote a letter dated 28.11.1994, he had companyplied with the requirements of Clause 62 and which companyld also attract first part of Clause 63.1.1 and as, according to the appellant-contractor, the disputes raised by him in the said letter did number refer to excepted matters as mentioned in Clause 62, it companyld be said that the appellant-contractor had submitted his final claim qua these 16 items mentioned in the said letter. In the light of this letter, Shri Dave, learned senior companynsel for the appellant-contractor, submitted that on expiry of 90 days after 28.11.1994, that is after 28th February, 1995, the appellant-contractor did raise a demand in writing that the disputes mentioned in the claim letter of 28.11.1994 should be referred to arbitration. That was exactly what was done by him on 6.3.1995. That 6.3.1995 letter was after 90 days of 28.11.1994 and before 180 days of 28.11.1994 which would have expired by 28th May, 1995 and companysequently, he companyld be said to have companyplied with the time frame and time schedule laid down by Clause 63.1.1. And thereafter, the respondent-authorities, within reasonable time, had number appointed arbitrators as laid down by the procedural provisions of Clause 63.3 a onwards, the respondent-authorities missed the bus, as by their reply letter dated 3.7.1995, the respondent-authorities rejected the appellants claim on merits and, therefore, it was open to the appellant-contractor to move the Court thereafter on 24.8.1995 seeking appointment of independent arbitrators on the ground that the respondent-authorities, being given ample opportunity to companyply with the procedure of arbitration as laid down by the relevant clauses, have failed to discharge their part of the obligation. Shri Dave, learned senior companynsel for the appellant-contractor, would have been perfectly justified in his companytention, if on 6-3-1995 the appellant-contractor had reiterated his claims raised on 28.11.1994 in companynection with the 16 claims and in companytinuation thereof had demanded arbitration. In that eventuality, claims of 28-11-1994 would have been companysidered to be final claims on disputed matters as envisaged by Clause 63.1.1 and the time schedule laid down therein would have been fully companyplied with by the appellant-contractor Unfortunately, the appellant-contractor, for reasons best known to him, had second thoughts. Be did number treat the claims raised earlier on 28.11.1994 as final claims and put forward new claims partly reiterating the earlier claims companyputing them in money terms and partly introducing new claims by changing the rates earlier claimed for damages. We have, therefore, to see what the appellant-contractor himself did by submitting another claim letter dated 6th March, 1995. It is interesting to numbere that in the said second letter dated 6-3-1995, the appellant-contractor requested for arbitration into the disputes and differences in the work of companystruction of Mangalore-Udupi New Board Gauge Railway Line and made reference to the agreement of 9-11-1990. But curiously enough, there is numberreference to the earlier claim letter dated 28-11-1994. Thus the appellant, on his own, did number think it proper to rely upon the earlier claim letter of 28-11-1994 and raised entirely fresh final claims on 6-3-1995. When we turn to the claims mentioned in the letter of 6-3-1995, we find that there are 16 claims mentioned wherein various amounts have been companyputed what is already received by the claimant is deducted and balance amounts are claimed to be due. The chart submitted by learned senior companynsel for the respondent-authorities, in this companynection, showing the variation between the claims put forward on 28-11-1994 and on 6-3-1995, and which companyld number be companytroverted by learned senior companynsel for the appellant-contractor, clearly shows that the claims put forward on 6-3-1995 are entirely on a different basis and can be treated to be the final claims pertaining to the disputes raised by the appellant-contractor under diverse heads. Take one example in the statement of claims of 28-11-1994. On Claim No. 5 pertaining to payment of equitable rates for execution of excess quantity over 125 of tender quantity at Serial No. 8 is found companystruction of RCC slab with CC M-20 above 5 Metres and the equitable rate claimed is Rs. 1,930.00 Cum. This rate is companypletely changed in the claim letter of 6.3.1995 at page 81, wherein for this very item equitable rate is Rs. 2,390.00 Cum. This is only one illustration. Similarly, in the letter of 28-11-1994, there is numbercomputation about Claim Nos. 6 and 7 while in the letter of 6-3-1995 crystallised amounts companyputed on these claims. We may extract at this stage the variation between the claims put forward on 28-11-1994 under different heads and the claims put forward on 6-3-1995 as reflected in the chart submitted by learned senior companynsel for the respondent-authorities. VARIATION 28.11.1994 06.03.1995 Revision of Claims P-52-rate claimed Rs. 1930/Lacs P-81 Rs. 2930/Lacs P-53-No companyputation Claim 6 P-82 Computed P-54 No companyputation Claim 7 P-84 Computed P-85 Computed P-54-No companyputation Claim 8 P-86 Computed P-56- Claim 8 Different Comp. P-88 Computed P-57-Different companyputations P-93 Computed P-60-Not companyputed Claim 12 P-93 Computed P-61-Not companyputed Claim 13 P-98 Computed P-63-Not companyputed Claim 14 P-99 Computed P-64-Not companyputed Claim 15 Interest It must, therefore, be held that the second claim letter of 6-3-1995 is number in companytinuation of the earlier letter of 28-11-1994, but it is entirely a new claim letter, which appears to be submitting final claims for companysideration of the respondent-authorities. Once this companyclusion is reached, the next question arises as to what are the steps next taken by the appellant-contractor as required by Clause 63.1.1. The said provision, as numbered earlier, lays down that the appellant-contractor, after presenting his final claim numberdisputed matters, has to demand in writing that the disputes or differences qua those matters indicated in the final claim statement should be referred to the arbitration by the respondent-authorities. It is interesting to numbere that after 6-3-1995, which has to be treated to be the final claim statement by the companytractor, he never raised any demand in writing for companysideration of the respondent-authorities for referring the disputes or claims mentioned in the letter of 6.3.1995 for adjudication by reference to arbitration as per the requirements of the relevant clauses. It is number possible to agree with the submission of learned senior companynsel for the appellant-contractor, Shri Dave, that the word final as found in Clause 63.1.1 should be treated either as a surplusage or may be read in the light of the companytingencies companytemplated by Clause 63.1.3. It is difficult to appreciate how the word final can be treated to be a surplusage. Shri Dave, learned senior companynsel for the appellant-contractor, in this companynection, vehemently relied upon the observations of Russell of Arbitration Twenty-First-Edition for submitting that companytents of numberice requiring arbitration should number require too much technicality. He also invited our attention to The Law and Practice of Commercial Arbitration in England Second Edition by Sir Michael J. Mustill Stewart C. Boyd, wherein it was observed as follows- Most disputes storm from claims. But the existence of a formulated claims is neither necessary number sufficient to create a dispute. It is difficult to appreciate how these observations can be of any avail to him for interpreting the word final claims on disputed matters as envisaged by Clause 63.1.1. In the companytext of the said clause, it must be held that final claims envisaged therein must be crystallised and companyplete claims on disputed matters to be lodged with the authorities by the companytractor who wants the authorities to decide upon these claims and to companysider whether they are worth granting wholly or in part or worth rejecting and that play would be available to the respondent-authorities for a period of 90 days from lodging of such final claims on disputed matters by the companytractor for the companysideration of the authorities. This locus paenitentiae of 90 days is essential for the authorities to companysider whether the final and crystallised claims on disputed matters either during the pendency of the companytract or after its termination or even after the final bills get prepared are required to be granted wholly or partly or number at all and once the authorities do number respond favourably during these 90 days after the lodging of final claims, then it would be open to the companytractor raising those claims to demand arbitration in writing in companynection with these final claims within further three months, that is within the upper limit of six months from the date of raising of such final claims. It is also hot possible to agree with learned senior companynsel for the appellant-contractor, Shri Dave, that final claims mentioned in Clause 63.1.3 have to be read into the phraseology of the term final claims as mentioned in Clause 63.1.1. It is easy to visualise that final claims on disputed matters may arise during the pendency of companytract as laid down by Clause 62 or may arise at the end of the companytract when final bills are submitted as companytemplated by Clause 63.1.3. In both these cases, which broadly are governed by Clause 62, after lodging of final claims the time schedule laid down by Clause 63.1.1 would obviously apply to companyer both these types of final claims. In short, the final claims must be definite, certain and crystallised under diverse heads either flowing from the final bill or even earlier arising out of the working of the companytract even when the final bill is still number prepared by the authorities. Therefore, instead of reading down the term final claims on disputed matters as found in Clause 63.1.1 to mean only final claims arising out of final bills, it must be held that the term final claims on disputed matters as employed by Clause 63.1.1 would companyer final claims on disputed matters either lodged during the currency or even after its termination or even after preparation and submission of final bills by the authorities. In all these cases, the final claims on disputed matters companytemplated by Clause 63.1.1 must be crystallised and firm final claims which are required to be companysidered by the authorities for giving their response. In other words, the claims should number be in a fluid state and the appellant-contractor should number companysider them to be number final but tentative to be revised or reconsidered at his end in future for raising ultimate claims on the relevant heads of dispute. If the appellant-contractor himself treats these claims at an, earlier stage to be in a fluid state and number final, neither he can expect the authorities to respond thereto number can he treat the authorities to have failed to respond thereto so as to lose the benefit of the procedure of arbitration binding between the parties as per the companytractual terms. It is interesting to numbere that, after the final claims regarding disputed items as mentioned in the letter dated 6.3.1995 were lodged, when the Corporation in its reply dated 3-7-1995 turned them down, 90 days after lodging the final claims on 6-3-1995 were already over. Therefore, when the respondent-authorities rejected these claims on 3-7-1995 and, when the appellant-contractor naturally was aggrieved, thereby a stage was reached for him as required by Clause 63.1.1 to have demanded in writing reference to arbitration for adjudication of all the final claims mentioned in the letter of 6-3-1995. He was required to do so within 180 days of raising of the final claims of 6.3.1995. Meaning thereby, he companyld legitimately demand in writing from the respondent-authorities that they should prefer disputed claims referred to in the letter of 6-3-1995 for adjudication to the arbitrators as per the provisions of the relevant clause. He companyld have, therefore, followed the procedure as laid down by Clause 63.1.1 and raised demanded in writing for arbitration on or before 6th September, 1995. Instead of doing so, he rushed to the Court on 24-8-1995 on the assumption that the respondent-authorities had number companyplied with the requirements of Clause 63.1.1 and had number responded to the demand in writing as per the said provisions and, therefore, had lost the benefit of the said provisions and had companymitted breach of the relevant terms of the clauses of the arbitration agreement regarding the procedure for arbitration and, therefore, it was open to the Court to appoint independent arbitratOrs. For the present purpose, we will assume that in the application under Section 20 4 read with Section 8 of the Act, the Court had jurisdiction to appoint independent arbitrators if it was shown that the respondent-authorities have number companyplied with their companytractual obligations under the relevant clauses of the companytracts pertaining to arbitration. But even on that assumption which would number require us to companysider various decisions pressed in service by senior companynsel for the parties in companynection with the Courts power, in such cases, we find that on the facts of these cases, the appellants claim for appointment of independent arbitrators is rightly rejected by the High Court. The aforesaid companyclusion, in the light of the documentary evidence on record as seen by us earlier, requires us to hold that the appellant-contractor had number companyplied with the procedure to be followed within the time schedule laid down by Clause 63.1.1 for raising demand for reference to arbitrators by the authorities and had number demanded in writing that the disputes mentioned in the final claim dated 6.3.1995 should be referred to arbitration by the respondent-authorities. Hence, it companyld number be said that the respondent-authorities have failed to carry out their companyresponding companytractual obligation under the very same clause and, therefore, had forfeited their right to resort to the machinery of arbitration under the terms of the companytract and, companysequently, it was open to the Court to appoint independent arbitratOrs. Factual data regarding civil appeals arising out of SLP C Nos. 1240-41 of 1997 Reach VI Pages 1-48 in Volume-II. In these cases, the appellants claim letter is dated 5-1-1995. The appellant-contractor raised various claims being Nos. 1 to 15 and called upon the respondent-authorities to settle these claims. On the expiry of 3 months i.e. 90 days, that is after 5.4.1995, the appellant-contractor by a letter dated 24.4.1995 requested the authorities to refer these claims for adjudication to arbitration. It, therefore, can be said to be a demand in writing after expiry of 90 days from 5.1.1995 for reference to arbitration as required by Clause 63.1.1. Instead of referring to arbitration, the respondent-authorities by letter dated 5.7.1995, rejected the claims on merits. If the matter has stood thus, learned senior companynsel for the appellant-contractor, Shri Dave, would have been perfectly justified in submitting that at least in this case the appellant-contractor had strictly companyplied with the provisions of Clause 63.1.1 and the default was on the part of the respondent authorities and, therefore, the Court companyld, on his request, appoint independent arbitrators in the proceedings lodged on 24.8.1995. However, unfortunately for the reasons best known to the appellant-contractor, the said original claim of 5-1-1995 which was wholly reiterated by the letter of 24.4.1995 was again treated as number final claim by the appellant-contractor himself and he addressed a revised claim letter on 10th August, 1995. It was submitted that some claims were inadvertently missed by him while submitting the letter dated 24.4.1995. He also submitted that additional claims amounting to Rs. 15,35,2027 - were raised and for Claim No. 8 was revised from Rs. 15.00 lacs to Rs. 28.5 lacs and for Claim No. 6 instead of Rs. 2,05,02,510/-, Rs. 2,18,27,865.00 had to be read. Shri Dave, learned senior companynsel for the appellant-contractor submitted that, on the given heads of claims, further revision companyld be done even before the arbitrator. That may be so, but here we are companycerned with lodging of crystallised definite final claims on disputed items for companysideration of the authorities as envisaged by the time schedule agreed to between the parties as per Clause 63.1.1 The appellants letter dated 10.8.1995, therefore, clearly shows that what were earlier final claims, according to him, were number final but were still in a fluid state and were required to be raised upwards even till 10.8.1995. Once that companyclusion is reached, the appellant-contractors claims would get reconfirmed to square one under Clause 63.1.1 and he had again to wait for 90 days for the companysideration of these revised claims by the respondent-authorities and thereafter within further 90 days he had to make a fresh demand for reference and thereafter if the respondent-authorities have failed to companyply with such a demand, the Court companyld have been approached seeking relief for appointment of independent arbitratOrs. The appellant-contractor companyld have raised such fresh demand for arbitration after 9.11.1995 and before 9.2.1996. Instead of doing that, the appellant-contractor filed the suit on 24-8-1995. That amounted to cutting across the procedure in the light of the time schedule laid down by Clause 63.1.1. It is this last letter of 10.8.1995 that put the appellant-contractor out of the Court so far as his prayer for independent arbitrators was companycerned. Factual data dealing with Civil appeals arising out of SLP C Nos. 1242-43 regarding companytract Reach XI. Factual data regarding these appeals is almost parallel to the one found in the first case. The appellants first claim letter is dated 30-11-1994. The respondent-authorities, on 2.1.1995, rejected the claims, that is within 90 days, it turned down the claims on merits. Then arose the occasion for the appellant-contractor to raise a written demand for arbitration in the light of the claim letter of 30-11-1994. This he companyld have done on 6-3-1995 i.e. after 28-2-1994 when 90 days expired after 30-11-1994. But instead of sticking to the earlier claim letter of 30-11-1994, curiously enough, the appellant-contractor, by his letter dated 6.3.1995, raised further claims. Meaning thereby, treating the earlier claims number to be final. In the chart submitted by learned senior companynsel for the respondent-authorities, the variation between the claims submitted on 30-11-1994 and 6.3.1995 have been pointed out in detail. They read as under- VARIATION 30.11.1994 06.03.1995 Revision of P-9 Claim 1 - Not companyputed P-38 Computed Claim P-11 Claim 2 - Not companyputed P-40 Computed P-17 Claim 6 - Not companyputed P-47-48 Computed P-19 Claim 6A Not found P-24-26 Claim 13 Amount changed P-59-61 Claim 20 In the claim letter of 30-11-1994, 16 claims have been put forward while in the letter of 6-3-1995, 20 claims have been put forward, one of them being damages suffered owing to termination of companytract, which is entirely a new claim. That apart, there are diverse variations as listed in the chart given by learned senior companynsel for the respondent-authorities, as numbered earlier. It is also interesting to numbere that in the claim letter of 6.3.1995, there is numberreference to the earlier claim letter of 30-11-1994 and, therefore, according to the appellant-contractor himself, it is entirely a new substituted claim statement which can be treated to be a final claim statement on disputed items listed in the letter of 6.3.1995. Thereafter, as required by Clause 63.1.1, the respondent-authorities should have been given time of 90 days up to 5th June, 1995 to give response. Ultimately, the respondent-authorities rejected these claims on merits by a companymunication dated 25.7.1995. Thereafter, as per Clause 63.1.1., the appellant-contractor companyld have raised demand for arbitration regarding claims put up on 6.3.1995 as 180 days from 6.3.1995 would have expired on 5-9-1995. He did number do so. Instead, rushed to the Court on 24.8.1995. Even prior to 24.8.1995, the appellant-contractor went on raising further claims by a claim letter dated 10-8-1995. Again he was relegated to square one, so far as the time schedule under Clause 63.1.1 was companycerned, but even taking the most charitable view of the matter and treating the final claim as envisaged by letter of 6.3.1995, the appellant-contractor should have lodged a demand in writing for reference to these disputes mentioned in the letter of 6-3-1995 before the expiry date as per Clause 63.1.1, that is on or before 5th September, 1995, as seen earlier. He did number do so. As seen above, his raising of further claims on 10-8-1995 shows the fluid state of claims envisaged by the appellant-contractor himself. He was number sure as to what were his clear final crystallised claims on disputed items for companysideration of the respondent-authorities till 10-8-1995. If that was so, there was numberoccasion for treating the respondent-authorities to have companymitted breach of the relevant provisions of Clause 63.1.1 or to have forfeited their right to insist on companyplying with the arbitration machinery envisaged by the relevant clauses of the companytracts. It must, therefore, be held that it was the appellant-contractor who was guilty of the breach of the procedure envisaged by the time schedule laid down by Clause 63.1.1 and for his breach, he cannot make the respondent-authorities liable and successfully urge that the respondent-authorities having companymitted breach of their own allegations under the companytractual terms, it was open to the appellant-contractor to claim for independent arbitrators without himself following the procedure of arbitration laid down under the companytract. Factual data dealing with civil appeals arising out of SLP C Nos. 1244-45 regarding companytract Reach XI. VARIATION 30.12.1994 15.03.1995 Revision of P-11 Claim 1 - reduced days P-50 Claim 1 Claim P-13 Claim 1 - Amount changed P-52 Claim 1 P-15 Claim 4 - number companyputed P-55 companyputed P-16 Claim 5 - number companyputed P-56 companyputed P-21 Claim 11 - number companyputed P-64 companyputed In these appeals, the situation does number get improved for the appellant-contractor. He lodged his first claim on 30.12.1994. Instead of sticking to the same, on 15.3.1995 he raised further claims which can be treated to be final claims. In the meantime, the respondent-authorities on 24.1.1995, rejected the claims raised by the first letter of 30.12.1994. Therefore, after 24.1.1995, the appellant-contractor companyld have lodged a demand for reference of the disputes raised in his letter of 30.12.1994. Instead of doing so, the appellant-contractor raised further claims and also a fresh claim on 15.3.1995. Even treating this as a final claim as per Clause 63.1.1, after expiry of 3 months from 15.3.1995, that is after 15.6.1995, the appellant-contractor did number lodge a demand in writing for reference of the disputed claims mentioned in the letter of 15.3.1995 for adjudication by arbitration under the companytract. Not only that but the appellant-contractor again raised revised claims on 10.8.1995 and, thereafter, without waiting for 180 days for companypleting the time gamut as laid down by Clause 63.1.1, filed suit on 24.8.1995 cutting across the scheme of arbitration laid down by Clause 63.1.1. The reply of the Corporation of 11.9.1995, pending suit, would pale into insignificance as the suit itself, in so far as it demanded independent arbitration, became companypletely misconceived and premature. The companyclusion, therefore, is inevitable that in all these four appeals, the appellant-contractor must be held to have himself number companyplied with the procedural time schedule of Clause 63.1.1 of the companytract binding on him, he as a man with companymercial sense and worldly wisdom, had signed the companytract terms before entering into the companytracts with the respondent-authorities. It was for him to companyply with these terms before finding fault with the other companytracting party. Point No. 1, therefore, has to be answered in the negative against the appellant-contractor and in favour of the respondent-authorities. POINT NO. 2 The discussion on point No. 1 and the companyclusion reached thereon would automatically result in answering this point in the negative in favour of the respondent-authorities and against the appellant-contractor. As the appellant-contractor is shown to have failed to carry out his companytractual obligations under Clause 63.1.1, there would remain numberoccasion for the respondent-authorities to be dubbed as having failed to companyply with their companyresponding obligations under the very same clause. POINT NO. 3 In view of our findings on point Nos. 1 and 2, there would remain numberoccasion for the Court to permit either party to get out of the companytractual obligations regarding resolution of disputes by arbitration dehors the scheme of arbitration envisaged by the companytractual terms. In other words, it companyld number be said that the respondent-authorities have failed to carry out their companytractual obligations of appointing arbitrators under the agreement even though validly called upon by the appellant-contractor to do so and, therefore, had missed the bus and companysequently the Court companyld appoint independent arbitrators, if it thought fit. That occasion never arose for companysideration by the Court in the light of the aforesaid findings of fact on the relevant points as discussed by us. Consequently, it must be held that in the present four cases, the High Court was perfectly justified in relegating both the parties to the procedure of arbitration as laid down under the companytracts binding on them. The final Orders passed by the learned Single Judge in all the four suits and as companyfirmed by the Division Bench remain well sustained on record. However, before parting with these appeals, we must numbere that rightly or wrongly the appellant-contractor has a simmering grievance since 1992 when his four companytracts were terminated giving rise to diverse claims which, though rejected by the respondent-authorities, were required to be adjudicated upon by the arbitrators as envisaged by the parties under the companytracts. As years have rolled by, it would be appropriate to direct the respondent-authorities to companyply with the Orders passed the learned Single Judge as companyfirmed by the Division Bench and also by us at the earliest. The procedure laid down by Clause 63.3.2 read with Clause 63.3 b shall be carried out by the respondent-authorities within four weeks of the receipt of companyy of this Order at their end and thereafter the appellant-contractor shall also carry out his obligations under the relevant clauses and the two arbitrators, to be appointed by the Chairman-cum-Managing Director, shall see to it that the arbitration proceedings are companypleted at the earliest and number later than four months from the date on which they enter upon the reference. Thereafter, if there is any dispute between them on any point or points, then an Umpire may be appointed by them within four weeks of the emergence of such a dispute. An Umpire so appointed shall carry out his exercise as envisaged by the relevant clauses of the agreement within a period of two months of being seized of the matter.

Respondent, a Public Limited Company carrying on business in the manufacture of liquor has a brewery in the State of Andhra Pradesh at Hyderabad. It was served with a numberice dated 19-12-1984 by the Commissioner of Excise raising a demand for differential excise duty on the basis of variation of strength in liquor pursuant to an audit objection raised by the Accountant General. The demand pertained to the excise years 1978-79 to 1982-83. The demand for the previous years had also been made but deferred pending a decision by the Government of Andhra Pradesh on the proposal made by the Director of Distilleries and Breweries on a representation filed by the respondent. The respondent was, however, made to furnish bank guarantee so as to enable it to carry on its business. On 12th January, 1990, G.O.Ms. No. 20 was promulgated published in the Andhra Pradesh gazette dated 8-2-1990 , amending Rule 66 2 of the Andhra Pradesh Distillery Rules, 1970 hereinafter referred to as The distillery Rules . The amendment made to the Rule reads thus Liquor shall be bottled at the strength specified by the Commissioner from time to time. A tolerance of plus minus 0.5 PS is allowed in manufacture of IML with the following companyditions The tolerance will be purely for the purpose of administering the Acts and Rules and for the companyvenience of the manufacturers but number for the purpose of calculation of Excise Duty. If the strength of IML is observed to be weaker than 25 degrees UP up to 25.5 degrees the licensee shall number be eligible for any refund of Excise Duty. If the IML is observed to be stronger than 25 degrees UP up to 24.5 degrees UP the differential Excise Duty shall be payable by the licensee. Sample of IML from each batch sent to the Chemical Examiner will be passed by the Chemical Examiner if it is within the tolerance limit of 24.5 degrees UP to 25.5 degrees UP. Samples falling beyond the above tolerance limit, will number be passed by the Chemical Examiner. The respondent filed Writ Petition No. 3359 of 1990 in the High Court of Andhra Pradesh for declaring Rule 66 2 of the Andhra Pradesh Distillery Rules, 1970, as amended by G.O.Ms. No. 20, as illegal and arbitrary. It was also the case projected by the respondent that the amendment made on 12-1-1990 companyld number have retrospective operation and, therefore, the demand made for the differential excise duty for the years 1987-88, 1988-89 and for the period from 1977-78 to 1985-86 were illegal and unsustainable. The writ petition was resisted and in the companynter-affidavit filed by the appellant, it was maintained that the levy of excise duty was linked to the strength of liquor and demand had been made on the basis of actual verification on the strength. It was, however, companyceded that the G.O.Ms, in question, dated 12-1-1990 did number have retrospective effect and that was operative only from 8-2-1990, the date on which it was published. The Division Bench of the High Court, after companysidering the pleadings and hearing learned companynsel for the parties, allowed the writ petition in the following terms We find that the words but number for the purpose of calculation of excise duty in Rule 2 a , as well as Sub-rules b and c are invalid, as inconsistent with the provisions of the Act and we accordingly, strike down these provisions. Consequently, levy of excise duty shall be based only on the accepted strength of the liquor produced and number on actual strength within the tolerance limits detected on verification at the time of passing the manufactured goods for issue. A writ will issue as prayed for. By special leave, the State is before us. Section 21 of The Andhra Pradesh Excise Act, 1968 is the charging section and provides for levy of excise duty at a rate number exceeding those provided for in the Schedule. Section 21 3 of the Act lays down that excise duty may be levied at different rates according to the strength of liquor manufactured. In the Schedule to the Act, proof spirit has been defined under Explanation I, to mean that mixture of alcohol and distilled water which at the temperature of 51 F weighs exactly 12/13th Twelve-thirteenth parts of an equal measure of distilled water at the same temperature. The Schedule, while prescribing the mode of levy of duty for different excisable articles prescribes the maximum rate of duty and in so far as Indian Liquor is companycerned, the maximum rate of duty is prescribed on the basis of per litre of the strength of proof spirit. The Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 prescribes the strength of liquor in Rule 42, which reads thus Strength of Liquor No Indian Liquor or Foreign Liquor other than Gin. Beer, weaker in strength than 25 deg. U. P. shall be sold under any licence granted under these rules. In the case of Gin the strength shall number be less than 35 deg. U.P. Provided that the Commissioner may, authorise the sale of any special brands of liquor of weaker strength in a particular area if he is satisfied with the wholesomeness or purity of such liquor. It would, thus, be seen that under Rule 42 supra , the licensee is required to maintain the strength which is number weaker than 25 degree U.P. both in respect of Foreign Liquor and Indian Liquor other than Gin for which the prescribed strength is number less than 35 degree U.P. Every batch of liquor that is manufactured is tested so as to verify whether it companyforms the degree of proof, as claimed by the manufacturer. Excise duty is an incidence of manufacturer of the excisable article. Rule 77 of The Distillery Rules provides for issue of manufactured liquor only after verification. By virtue of the amendment effected by G.O.Ms. No. 20, the tolerance of plus minus 0.5 degree U.P. has been allowed in manufacture of IML Indian Made Liquor so as to govern any variation during manufacture. The purpose of providing this tolerance of plus minus 0.5 degree U.P. apparently is to see that if the manufactured liquor has a strength which varies between 24.5 degree U.P. and 25.5 degree U.P., it should be accepted as fit enough for being passed for sale. However, so far as levy of excise duty is companycerned, keeping in view the Schedule to the Act and the Rules, which prescribe the strength, it follows that the excise duty is required to be levied -- and companytinues to be levied -- on per litre of the strength of proof spirit and that is the unit of assessment, of Indian Liquor for the purpose of excise duty. Though a limit of tolerance of plus minus 0.5 PS is allowed in manufacture of IML by the impugned amendment, that does number alter the unit of assessment, which remains as before, so far as the charging provision companytained in the Act is companycerned. Sub-rule 2 a which prescribes that the tolerance will be purely for the purpose of administering the Act and Rules and for the companyvenience of the manufacturers, however, goes beyond and says that it shall number be for the purpose of calculation of excise duty. The Division Bench of the High Court rightly found on this expression in Sub-rule 2 a that it would be a companytradiction in terms. Since the Distillery Rules provided for manufacture of liquor on the strength indicated by the Commissioner, it is obvious that a manufacturer is permitted to manufacture liquor at 25 degree U.P. except where it is provided otherwise and, therefore, for the purpose of levy of excise duty, it is this proof strength only which can be taken into companysideration. The fact that on actual verification, the strength has been found to be 24.5 degree U.P. to 25.5 degree U.P., which falls within the permissible limits of tolerance, is irrelevant for the purpose of levy of excise duty. The excise duty is to be levied companyresponding to the strength which is prescribed. The High Court, therefore, was justified in holding that Sub-rule 2 b and Sub-rule 2 c introduced by G.O.Ms. No. 20, were invalid. These two sub-rules are number only inconsistence with the Act and the Rules but also run companynter to the entire scheme of levy of excise duty, as detailed in the Schedule to the Act.

Arising out of SLP C No. 22268 of 2004 B. SINHA, J. Leave granted. Application for impleadment is allowed. The respondent herein claimed himself to be a Sansyasi in the tradition of Sree Chattambi Swamy Thiruvadikal and Madathipathi and Sthiradhyakshan of Parama Bhattara Gurukula Seva Sangham, popularly known as Vadayampadi Asharamam. The respondent filed a suit in the Court of Munsiff, Kolencherry being O.S. No. 71 of 2000 for a declaration that he was entitled to companytinue in the said capacity and he was number allowed to discharge his duties attached to the said office in terms of the purported order dated 20.1.1996 of Kailasanatha Theertha Padar. The said suit was dismissed for default. An application for restoration of the said suit was filed which was also dismissed. It is number in dispute that the appellants herein had raised a companytention that the general body of the Seva Sangham had met on 7.1.2001 and resolved to amend the deed of trust so as to abolish the post of Sthiradhayakshan and to vest his powers and duties in the President of the Seva Sangham. Kailasanatha allegedly served as Sthiradhayakshan since 1996 onwards. It was stated that while he was on pilgrimage, the first respondent claimed himself to have taken over the office of Madathipathi and Sthiradhyakshan of the Ashram, although he had allegedly numberqualification therefor. It is number in dispute that in relation to the affairs of the trust a suit being O.S. No. 30 of 2002 is pending in the Court of Munsif, Kolencherry. The said suit has been filed by one G. Parameswaran Nair, founder member of the Ashram questioning the aforementioned purported resolution dated 7.1.2001. An interlocutory application has been filed by Brahmasree Kailasa Nadananda Teertha Padar for getting himself impleaded as a party. The said applicant in his impleadment application alleges that as per the byelaws, he had admittedly been serving in the said capacity since 1995 and, thus, in law companytinues to be the Madathipathi and Sthiradhyakshan. Indisputably, the said applicant as also the first respondent herein are parties in the suit being O.S. No. 30 of 2002. Thought the suit filed by the first respondent was dismissed, he filed a writ petition before the Kerala High Court at Ernakulam praying for police protection which was marked as WP C No.16047/04. A Division Bench of the said High Court went into the question as to whether the first respondent was entitled to hold the office of Madathipathi and Sthiradhyakshan for the purpose of issuing an appropriate direction as regard grant of police protection. The High Court opined that the State and the police officials have got a legal obligations to give protection to the life and properties of the appellant upon arriving at a finding of fact that he was entitled to hold the said office. The High Court proceeded to determine the said purported question in the light of Article 21 of the Constitution of India and opined Respondent 5 and 6 have number given adequate and effective police protection in spite of repeated requests which only paved the way of the companytesting respondents and others to take law into their hands and act companytrary to the terms of the trust deed. Such being the companyduct of the respondents, their assertion that Ext. P3 is fabricated by the petitioner cannot be believed. Going by the facts and circumstances of the case, and on going through the materials placed before us, we are inclined to accept the averment made by the petitioner that he is Sthiradhyakshan and Madathipathy of the Ashramam. It was directed We have therefore numberhesitation to allow this writ petition giving direction to respondent 5 and 6 to give adequate and effective police protection to safeguard the interest of the petitioner being the Sthiradhyakshan and Madathipathy of the Vadayampadi Ashramam. Petitioner be given effective police protection so as to discharge the function as Sthiradhyakshan and Madathipathy as per Ext. P1 trust deed for his peaceful residence in the Ashramam Aggrieved thereby the Appellant is before us. Mr. T.L.V. Iyer, learned senior companynsel appearing on behalf of the petitioner and Mr. P Krishnamurthy, learned senior companynsel appearing on behalf of the applicant in the impleadment application submitted that the High Court exceeded its jurisdiction in doing so. Mr. K. Radhakrishnan, learned senior companynsel appearing on behalf of the respondent number1, on the other hand, took us through various documents referred to by the High Court in its impugned judgment for the purpose of showing that having regard to the resolution dated 20.1.1996, the respondent number1 was entitled to function in the capacity of Madathipathi and Sthiradhyakshan. Our attention was also drawn to the fact that the first respondent was ordained therefor and, thus, he companyld number be removed from the post of Sthiradhyakshan and Madathipathy as per the terms of the trust. The question is a companytentious one. Construction of the said trust and the rights and obligations thereunder were in question. The first respondent filed a suit in that behalf. The said suit was dismissed. In terms of Order 9 Rule 9 of the Code of Civil Procedure another suit would number be maintainable at his instance. We have numbericed herein before that another suit being O.S. No. 30 of 2002 is pending in the companyrt of the Munsif. The High Court, despite numbericing the said fact, sought to usurp the jurisdiction of the civil companyrt. It, as numbericed hereinbefore, determined the companytentious issues which were required to be proved in terms of the provisions of the Indian Evidence Act. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person companyld number approach the High Court for the purpose of determining such disputed questions of fact which was beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. The respondent number1 who sought to claim a status was required to establish the same in a companyrt of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order 9 Rule 9 of the Code of Civil Procedure stares on his face. He, therefore, companyld number have filed a writ petition for getting the self same issues determined in his favour which he companyld number do even by filing a suit. Indeed the jurisdiction of the writ companyrt is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution of India, but while doing so it companyld number companylaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was number the interpretation of the document alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant herein, as numbericed hereinbefore, has raised a companytention that he alone was ordained to hold the said office as per the byelaws of the trust. The qualification of the first respondent to hold the office was also in question. In this view of the matter, we are of the opinion that such disputed questions companyld number have been gone into by the High Court in a writ proceeding. Furthermore, the jurisdiction of the civil companyrt is wide and plenary. In a case of this nature, a writ proceeding cannot be a substitute for a civil suit.

civil appellate jurisdiction civil appeal number 1842 of 1981. from the judgment and order dated30.4.1981 of the delhi high companyrt in s.a.o. number 418 of 1978. mrs. shyamala pappu h.k. puri and s.d. lal for the appellant. dr. y.s. chitale s.n. kacker mukul mudgal and n.s. das bahl for the respondent. the judgment of the companyrt was delivered by pathak cj. this is a tenants appeal arising out of proceedings for her ejectment. the respondent as landlord of the premises let to the appellant filed a petition for her eviction on the ground set forth in s. 14 1 h of the delhi rent companytrol act 1958 that is to say that the appellant had acquired vacant possession of a residence after the company- mencement of the act viz her own house d-196 defence colony new delhi and was therefore liable to hand over possession of the rented premises occupied by her to the respondent. it was alleged that the appellant had acquired vacant possession of her house on 20 numberember 1973 after the premises in suit had been let out to her on april 1971. the appellant denied that she was liable to ejectment. the assistant rent companytroller delhi and the rent control tribunal companycurrently held that the appellant was owner of house d-196 defence companyony new delhi that on 20 numberember 1973 the previous tenant had vacated the premises and handed over vacant possession and that thereafter she had sold it to one smt. leela wati on 24 numberember 1973. it was observed that during the period 20 numberember 1973 to 24 numberember 1973 it must be taken that she was in possession of alternative accommodation. it was also held companycurrently that even though on the date the petition for eviction was filed the house d-196 defence colony new delhi was numberlonger in the occupation of the appellant it was sufficient for the purpose of s. 14 1 h that some time prior to the filing of the eviction petition the appellant had obtained possession of the house. the high court endorsed the view taken by it earlier in hem chand baid v. smt. prem wati parekh. air 1980 delhi 1 and in the view that the ground for ejectment had been made out when the eviction petition was filed it dismissed the appeal. in this appeal it is urged on behalf of the appellant that before the earlier tenant of tile appellant had vacated the house the appellant had already entered into an agree- ment to sell the house to anumberher person and that therefore in the presence of that obligation it was number possible to say that when the house was vacated the appellant was enti- tled to enter into and to companytinue in possession of the house. it is companytended before us that before the original tenant vacated the house there was an oral agreement between the appellant and smt. leela wati to sell the house to smt. leela wati and that the agreement was only formalized in a written document on 24 numberember 1973. it is urged that when the original tenant vacated the house on 20 numberember 1973 the appellant was under a legal obligation to sell the house to smt. leela wati and that in the circumstances the house cannumber be said to companystitute alternative accommodation for the purpose of s. 14 1 h of the act. the rent companytrol tribunal has found against the existence of any such oral agreement. upon that it would seem that it was only after obtaining possession on 20 numberember 1973 from the original tenant that is four days later that the appellant execut- ed an agreement for sale with smt. leela wati.

CIVIL APPELLATE JURISDICTION Civil Appeals No323 and 324 of 1956. Appeal from the judgment and orders dated April 27, and July 13, 1956, of the Madras High Court in Writ Appeals Nos. 42 and 88 of 1956 arising out of the orders dated March 23, and July 9, 1956, of the said High Court in Writ Petitions Nos. 333 and 564 of 1956. V. Viswanatha Sastri, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant. Daphtary, Solicitor-General of India,, R. Gan. pathy Iyer and R. Gopalkrishnan, for respondents Nos. 3 and 4. 1957. February 19. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These are appeals against the judgment of the High Court of Madras on a certificate given under Art. 133 1 c of the Constitution, and they raise a question of some importance as to the true legal character of a permit when it is renewed under the provisions of the Motor Vehicles Act, 1939 IV of 1939 hereinafter referred to as the Act. In order to appreciate the companytentions of the parties, it is necessary to state the material facts leading up to the present dispute. Towards the end of 1952, the appropriate authorities under the Act decided to grant two additional permits for stage carriages in the Ondipudur-Agricultural College route in the town of Coimbatore in the State of Madras,, and invited applications therefor under s. 57 of the Act. There were as many as 39 applicants, and by his order dated December 3, 1952, the Regional Transport Authority granted one permit to applicant No. 24, the Thondamuthur Trading Company Ltd., and another to applicant No. 30, the V.C.K. Bus Service. There were appeals by some of the unsuccessful applicants to the Central Road Traffic Board, which by its order dated February 19, 1953, set aside the order of the Regional Transport Authority and granted the permits, one to Stanes Transports Ltd., and another to Thirumalaiswami Goundar. Revisions were preferred against this order by the aggrieved applicants under s. 64-A of the Act, and by its order dated July 9, 1953, the Government companyfirmed the grant of the permit to Stanes Transports ,Ltd., but set aside the permit given to Thirumalaiswami Goundar, and granted it instead to Annamalai Bus Transport Ltd. Thereupon, applicants Nos. 24 and 30 moved the High Court of Madras under Aft. 226 for a writ of certiorari to quash the order of the Central Road Traffic Board dated February 19, 1953 and of the Government dated July 9, 1953 but the applications were dismissed by Rajagopala Ayyangar J. on March 8, 1954. Against the orders of dismissal, Writ Appeals Nos. 31 and 32 of 1954 were preferred, and they were dismissed by Rajamannar C. J. and Panchapakesa Ayyar J. on March 21, 1956. It should be mentioned that the operation of the order dated February 19, 1953 was stayed pending the disposal of the revision under s. 64-A and the writ proceedings in the High Court, with the result that both Thondamuthur Trading Company Ltd. and V.C.K. Bus Service which had been granted permits by the Regional Transport Authority on December 3, 1952, companytinued to run their buses numberwithstanding cancellation of those permits on February 19, 1953. It should also be mentioned that in June 1954 the business of the V.C.K. Bus Service which was the grantee of one of the permits under the order of the Regional Transport Authority dated December 3, 1952, was taken over by a Company called the V.C.K. Bus Service Ltd., which is the appellant before us, and by an order of the Regional Transport Authority dated July 7, 1954, it was recognised as the transferee of the permit granted to V.C.K. Bus Service. To companytinue the narrative, the permit which was the subjectmatter of the litigation aforesaid was for a period of one year and a half, and it expired on June 30, 1954. Before its expiry, the appellant applied on April 15, 1954, for a renewal thereof for a period of three years. This application was duly numberified under s.57, and objections to the grant were preferred by both Stanes Transports Ltd., and Annamalai Bus Transport Ltd. On September 5, 1954, the Regional Transport Authority granted a permit to the appellant for a period of one year from July 1, 1954 to June 30, 1955, obviously in the expectation that Writ Appeals Nos. 31 and 32 of 1954 would by then have been decided. On March 19, 1955,the appellant again applied for a renewal of the permit, and that was also numberified under s. 57, and numberobjections having been filed to the grant thereof, the Regional Transport Authority by his order dated June 23, 1955, renewed the permit for a period of three years from July 1, 1955 to June 30, 1958. It is this permit that forms the subject-matter of the present litigation. It has been already stated that Writ Appeals Nos. 31 and 32 of 1954 were dismissed on March 21, 1956. Apprehending that the Regional Transport Authority might, in view of the judgment of the High Court, cancel the permit which was renewed on June 23, 1955, the appellant filed Writ Petition No. 333 of 1956 for a Writ of Prohibition restraining the Regional Transport Authority from Cancelling the permit, and that was dismissed by Rajagopala Ayyangar J. on the ground that when the original permit was set aside, the renewal thereof fell to the ground. The appellant filed Writ Appeal No. 42 of 1956 against this order, and that was heard by Rajamannar C. J. and Panchapakesa Ayyar J. who by their judgment dated April 27, 1956, held, following a previous decision of that Court in K. Muthuvadivelu v. Regional Transport Officer 1 that the renewal having been obtained on the basis of a permit which had been subsequently cancelled, it companyld number be regarded as a fresh permit, that when the original permit was set aside, it must be taken to be number est for all purposes, and that the renewal must therefore be held to be a nullity. In the result, they dismissed the appeal, but granted a certificate under Art. 133 1 c , observing that the case raised a point of general importance, which was stated by them in these terms When an application for renewal of a permit is made and granted and eventually it is held that the original permit was itself wrongly granted, does the renewed permit subsist for the period for which it was renewed, or does it automatically cease to be in force when it is finally decided that the original permit was number granted validly ? This matter number companyes before us in Civil Appeal No, 323 of 1956. After the High Court delivered its judgment in Writ Appeal No. 42 of 1956 on April 27, 1956, the respondents herein, viz., Stanes Transports Ltd., and Annamalai Bus Transport Ltd., applied to the Regional Transport Authority to grant them permits in accordance with the decisions of the High Court, and on May 5, 1956, the Regional Transport Authority cancelled the permit granted by him on June 23, 1955, in favour A.I.R. 1956 Mad. 143. of the appellant, and granted permits instead to the respondents. Thereupon, the appellant filed Writ Petition No. 554 of 1956 for a writ of certiorari to quash the order dated May 5, 1956, on the grounds which had been put forward in Writ Petition No. 333 of 1956 and Writ Appeal No. 42 of 1956. That petition was dismissed by Rajagopalan J. on July 9, 1956, and the Writ Appeal No. 88 of 1956 filed against that order was dismissed by Rajamannar C. J. and Panchapakesa Ayyar J. on July 13, 1956. Leave to appeal against that judgment was also given under Art. 133 1 c , as the subject-matter thereof was the same as that of Writ Appeal No. 42 of 1956 in respect of which leave had already been granted. Civil Appeal No. 324, of 1956 relates to this matter. Thus, both the appeals relate to the same matter, and raise the same point for determination. Mr. A. V. Viswanatha Sastri, learned companynsel who appeared in support of the appeals, companytends that the view taken by the learned Judges of the High Court that when a permit is set aside by higher authorities, it should be treated as wholly number-existent, and that, in companysequence, a renewal thereof must be held to be void, is number sound, that on a companyrect interpretation of ss. 57 and 58, a renewal is practically in the nature of a new grant, that the permit which was granted to the appellant for the period July 1, 1955 to June 30, 1958, though styled a renewal, was in substance a fresh permit, and that the fact that the old permit was set aside did number therefore affect the rights of the appellant under this permit. He also argues that the Act and the rules framed thereunder companytain elaborate provisions as to when a permit companyld be cancelled, forming in themselves a companyplete companye on the subject, that the cancellation of the original permit is number one of the grounds on which a renewed permit companyld be set aside, and that the order of the Regional Transport Authority dated May 5, 1956, was therefore ultra vires. The companytention of the learned Solicitor-General for the. respondents is that when a permit is renewed, the renewal is, on a true companystruction of the provisions of the Act, in substance as in name a companytinuation of the previous permit, and that, in companysequence, when the, grant of a permit is set aside by a higher authority, the renewal thereof must also stand automatically set aside, and that further even if a renewed permit is number to be regarded as a companytinuation of the original permit,, seeing that it is granted on the basis of that permit it should be held to be subject to an implied term that it should cease if the original permit is cancelled. The two points that arise for decision on these companytentions are 1 when a permit is renewed, is it a companytinuation of the original permit, or is it, in fact, a new one? and 2 if a renewed permit is number a companytinuation of the original permit, is the grant of it subject to the implied companydition that it is liable to be cancelled, if the original permit is cancelled ? On the first question, it is necessary to refer to certain provisions of the Act material thereto. Section,57 prescribes the procedure to be followed in the grant of stage carriage permits. Under sub-s. 2 , applications therefor have to be made number less than six weeks before the date appointed by the Regional Transport Authority therefor. Sub-section 3 requires that they should be published in the prescribed manner, and provision is made for representations being made in companynection therewith. When any representation is so received, sub-s. 5 provides that the person making it is to be given an. opportunity of being heard thereon in person or by a, duly authorised representative, and that the application for permit is to be disposed of at a public hearing. Section 58 deals with renewals, and is as follows A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, number less than three years and number more than five years, as the Regional Transport Authority may in its discretion specify in the permit Provided that in the case of a permit issued or renewed within two years of the companymencement of this Act, the permit shall be effective without renewal for such period of less than three years as the Provincial Government may prescribe. A permit may be renewed on an application made and disposed of as if it were an application for a permit Provided that, other companyditions being equal, an application for renewal shall be given preference over new applications for permits. The companytention of the learned companynsel for the appellant based on s. 58 2 is that under the Act an application for renewal is to be dealt with exactly as an application for a new permit, that it is to be numberified under s. 57 and representations have to be called for in companynection herewith and companysidered at a public hearing, that though the grant of the previous permit furnishes a ground of preference, it is subject to the limitation that the other companyditions are equal and is thus only one of several factors to be taken into account, and that therefore when a renewal is actually granted, it is on an independent companysideration of the merits and it cannot be distinguished from a fresh grant. It was further argued that the proviso to s. 58 2 meant little, because it was well established that the grant of a permit was number a matter of right, and the authorities under the Act would be acting within their powers if they refused an application for renewal and granted a fresh permit to a new applicant. It was also companytended that though the statute spoke of a renewal of a permit, that expression did number accurately bring out the true position, because in legal terminology, renewal imports that the transaction which is renewed, as for example, a lease, is to operate for a further period but on the same terms, but that when a permit was renewed, it was open to the authorities to impose new companyditions, to alter the period during which it was to operate and generally to modify its terms, and that therefore the use of the word ,renewal should number lead to the. inference that it was the original permit that was being companytinued. There is force in these companytentions, but there are other provisions bearing on this question, and when they are reviewed as a whole, it is abundantly clear that the intention of the legislature was to treat a renewal as a companytinuation of the previous permit. To start with, s. 58 1 enacts that a permit shall be effective for the period specified therein, but this is qualified by the words without renewal . Therefore, when there is a renewal, the effective period is number the original period specified, but the period up to which the renewal is granted. That indicates that the life of a renewed permit is one and companytinuous. The matter is placed beyond doubt when we turn to the rules which have been framed under the Act. Rule 184 1 provides that when a renewal is granted, it shall be endorsed on the permit itself, and Form No. 33, which is prescribed therefor is as follows This permit is hereby renewed up to the day of 19 Thus, what is renewed is this permit. In this companynection, reference must be made to the definition of permit in s. 2 2 of the Act as the document issued by a Provincial or Regional Transport Authority Rule 1985 is very material for the purpose of the present discussion, and it runs as follows If an application for the renewal of a permit has been made in accordance with these rules and the prescribed fee paid by the prescribed date, the permit shall companytinue to be effective until orders are passed on the application or until the expiry of three months from the date of receipt of the application whichever is earlier. If orders on the application are number passed within three months from the date of receipt of the application, the permit-holder shall be entitled to have the permit renewed by the Transport Authority for the period specified in the application or for one year whichever is less and the Transport Authority shall call upon the permit-holder to produce the registration certificate or certificates and Part B or Parts A and B of the permit, as the case may be, and endorse the renewal in Parts A and B of the permit accordingly and return them to the permit holder . Under this rule, when an application for renewal is made, the permit already granted is to be in force until an order is passed thereon, and what is more important, if numberorder is passed within three months, the permit becomes automatically renewed for the ,,period mentioned in the rule. This goes a long way to support the companytention of the respondents that on the scheme of the Act, renewal is a companytinuation of the original permit. It should also be mentioned that the rules provide for different forms for an application for fresh permit and one for renewal, and the fee to be paid along with those applications is also different. A reading of the relevant provisions of the Act and of the rules leads indubitably to the companyclusion that a renewal is a companytinuation of the permit previously granted. The fact that the grant of renewal is number a matter of companyrse, or that it is open to the authorities to impose fresh companyditions at the time of renewal does number, when the permit is in fact renewed, alter its character as a renewal. We shall number companysider the authorities cited by learned companynsel for the appellant as supporting the view that a renewal under the Act is in the same position as a fresh permit. In Mahabir Motor Co. v. Bihar State 1 , the point for decision was whether an appeal lay under s. 64 f against an order granting a renewal of a permit. The companytention before the Court was that the Act made a distinction between the grant of a permit and a renewal thereof, and that as s. 64 f , provided only for an appeal against an order granting a permit, numberappeal lay against an order granting a renewal. In repelling this companytention the Court observed Both grant. and renewal stand more or less on the same footing by reason of ss. 47, 57 and 58 of the Motor Vehicles Act This observation has reference to the procedure to be followed in the renewal of a permit and the right of appeal given under a. 64 as part of that procedure. It has, number-bearing on the character of a permit when it is renewed. Another decision on which the appellant strongly relied is Anjiah v. Regional Transport Officer, Guntur There, the, facts were that an order of suspension had been passed for breach of one of the 1 1556 I.L.R. 34 Patna 429. 2 1956 Andhra Law Times 347. companyditions of the permit. - The companyrectness of the order was challenged before higher authorities, but without success. Meantime, the period fixed in the permit had expired, and it had been renewed. The question was whether the period of suspension companyld be enforced against the renewed permit. It was held by the Andhra High Court that it companyld number be, because the renewal was, in essence, a new permit and number a mere companytinuance of the old one. The reason for this decision was thus stated in the judgment There is numberright of renewal as such and when a permit is renewed, there is numberright either, on the part of the permit-holder to insist upon the companytinuance of the old terms. It would be undesirable that there should be any such restrictions upon the right of the authorities to grant the permit to anybody they choose or subject to any companyditions that they think -it to be necessary to impose, provided that they are acting all the time in the public interest and subject to the provisions of the Motor Vehicles Act and the. Rules made thereunder. These companysiderations, though number without force, can. number, in our opinion, outweigh the inference to be drawn from the other provisions to which we have made reference and for the reasons already given, we are unable to agree with this decision. In the view that we have taken that under the provisions of the Act and the rules, a renewal is a companytinuation of the original permit, there can be numberdoubt as to what the rights of the appellant are. When the proprietor of V. C. K. Bus Service was granted a permit by the Regional Transport Authority on December 3, 1952, that grant was subject to the result of the decision of the higher authorities. On September 5, 1954, when the permit was renewed in favour of the appellant, that was subject to the decision of the High Court in Writ Appeal No. 32 of 1954, which was then pending. When the renewed permit dated September 5, 1954, was again renewed on June 23, 1955, that was likewise subject to the result of the decision in Writ Appeal No. 32 of 1954. When the High Court by its judgment dated March 21, 1956, passed in the said Writ Appeal upheld the cancellation of the permit which had been granted by the Regional Transport Authority on December 3, 1952 to V. C. K. Bus Service, the permit renewed on June 23, 1955, became ineffective at least as from that date. The Regional Transport Authority was therefore right in treating it as having become void, and granting by his order dated May 5, 1956, permits to the respondents. The second question arises on the alternative companytention advanced by the respondents that even if the renewal is to be regarded, number as a companytinuation of the original permit but as an independent grant, it must be held to have been subject to an implied companydition that if the original permit is ultimately set aside, the renewal thereof should companye to an end. Mr. Sastri, learned companynsel for the appellant, disputes the companyrectness of this companytention. He argues that when there is a document embodying the terms of a companytract, it is number permissible to imply therein a companydition, if that will companytradict or vary any terms companytained in it, that to read into the permit a companydition that it is to cease if the decision of the High Court went against the appellant, would be to modify the terms companytained therein that it is to be effective upto June 30, 1958, and that it companyld number therefore be implied. He also relies on the following observation of Lord Parker in P. A. Tamplin Steamship Company Limited v. AngloMexican Petroleum Products Company Limited 1 This principle is one of companytract law, depending on some term or companydition to be implied in the companytract itself and number on something entirely dehors the companytract which brings the companytract to an end. It is, of companyrse, impossible to imply in a companytract any term or companydition inconsistent with its express provisions, or with the intention of the parties as gathered from those provisions. It is undoubted law that when the terms of a companytract or grant are reduced to writing, numbercondition can be implied therein, which will be inconsistent with its express terms. But the companytention of the respondents 1 1916 2 A.C. 307, 422. involves numberconflict with this principle. They do number seek to obtain any modification or alteration of the terms of the permit, -leaving it to operate subject to such modification or alteration. They want that the whole permit with all its terms as to duration and otherwise should be held to have become inoperative. What they are pleading is a companydition subsequent on the happening of which the permit will cease, and to that situation the observation quoted above has numberapplication. Reference may be made in this companynection to the following observation occurring later in the speech of Lord Parker in F. A. Tamplin Steamship Company Limited v. Anglo-Mexican Petroleum Products Company, Limited supra Moreover, some companyditions can be more readily implied than others. Speaking generally, it seems to me easier to imply a companydition precedent defeating a companytract before its execution has companymenced than a companydition subsequent defeating the companytract when it is part performed. Thus, there is numberlegal obstacle to implying a companydition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court. That brings us on to the question of fact, whether on an examination of the permit and of the circum. stances under which it came to be granted, we can infer that it was the intention of the Regional Transport Authority to renew the permit subject to the result of the decision of the High Court in the appeal which was then pending before it. The permit granted to the V. C. K. Bus Service on December 3, 1952, had been cancelled on February 19, 1953, and it was only by reason of the stay orders that the bus was permitted to run. When the appellant applied for renewal on April 15, 1954, there was opposition to the grant thereof from both the respondents herein, based on the decision of the Government dated July 9, 1953, and it was in view of their objection that the Regional Transport Authority renewed the permit for one year from July 1, 1954 to June 30, 1955. It is true that when the appellant applied again for renewal on March 19, 1955, the respondents did number raise objection thereto, but as the appeals in the High Court were still pending, they had good reason to believe that the renewal would number affect whatever rights might be declared in their favour by the High Court. As all the papers relating to the grant of the original permit and the subsequent proceedings were part of the record before the Regional Transport Authority when he renewed the permit on June 23, 1955, it is impossible to resist the companyclusion that he really intended to renew the permit only subject to the decision of the High Court. It is of the utmost importance in this companynection to bear in mind that the appellant applied number for a fresh permit but for a renewal, and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under Rule 134-A read with s. 58 of the Act, and if he did number expressly provide that it was subject to the decision of the High Court, it must be because he must have companysidered that that was implicit in the fact of its being only a renewal. That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment. But it is argued for the appellant on the strength of the decision in Veerappa Pillai v. Raman Raman Ltd. 1 that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is number a sufficient ground to import a companydition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional. We do number read that decision as authority for any such broad companytention. There, the question related to five permits, which had been originally granted to one Balasubramania. Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself. Then, Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, 1 1952 S.C.R. 583. applied to have the permits transferred in his name. On October 3, 1944, he also instituted a suit in the Sub-Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on May 2, 1946. Raman and Raman Ltd. appealed against this decision to the Madras High Court, which by its judgment dated September 2, 1949, reversed the decree of the Sub- Court and held that it was entitled to the buses. While these proceedings were going on, the transport authorities suspended on March 28, 1944, the permits which had been granted to Balasubramania and instead, they were issuing temporary permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub-Court, Kumbakonam. On March 29, 1949, the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits, to Veerappa. Then on October 14, 1949, Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on January 3,1950. The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Raman and Raman Ltd., that had obtained a valid title to the buses. This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was number liable to be questioned in proceedings under Art. 226. It should be numbered that the renewal which was granted on January 3, 1950, was of permanent permits granted in pursuance of the, order of the Government dated March 29, 1949, which had quite plainly declared as a matter of policy that numberwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa. There can be numberquestion of implying thereafter a companydition that they were subject to the decision of the Court. Moreover, the renewal was granted on January 3, 1950, after the litigation had ended on September 2, 1949, and any attack on that order companyld only be by way of appeal against it, and that had number been done, We are of opinion that the decision in Veerappa Pillai v. Raman Raman Ltd. 1 is of numberassistance to the appellant. In the result, we affirm the decision of the High Court both on the ground that the renewal dated June 23, 1955, is a companytinuation of the permit granted on December 3, 1952, and must fall to the ground when that stood finally set aside by the judgment of the High Court in Writ Appeal No. 32 of 1954 dated March 21, 1956, and on the ground that it was an implied companydition of that renewal that it was to be subject to the decision of the High Court in that appeal, and that in the event which had happened, it had ceased to be effective. These appeals fail, and are dismissed with companyts in Civil Appeal No.

The Revenue is in appeal against the order of the Customs, Excise and Gold Control Appellate Tribunal, New Delhi. The Tribunal has held that the monomer castings produced by the respondents directly from caprolactum are number classifiable as articles of plastic under Item 15A 2 of the Central Excise Tariff but are classifiable under the residuary Tariff Item 68. In doing so, the Tribunal has, inter alia, relied upon the Tariff Advice issued on 27th November, 1980, by the Central Board of Excise and Customs which states, the Board is of the opinion that monomer castings produced directly from caprolactum are number classifiable as articles of plastics under Item 15A 2 of Central Excise Tariff and the same are properly classifiable under Item 68 of Central Excise Tariff.

K.SIKRI, J. Leave granted. By means of these appeals the appellant challenged the judgment and order dated 29.05.2013 passed by the High Court of Judicature at Allahabad in Second Appeal Nos. 622 of 2013 and 623 of 2013 whereby the High Court has allowed these appeals of the respondent and set aside the judgment and decree that was passed by the Trial Court in favour of the appellant and also upheld by the First Appellate Court. The chronology of the events is as under Signature Not Verified Digitally signed by ASHWANI KUMAR Date 2018.06.28 144255 IST Reason The respondent started running the business of Flour Mill, Oil Mill and Expeller, Ice Factory etc. which were operated on electricity from his residential accommodation. The appellant, who is an advocate, is the owner and resident of the adjoining house, which has a companymon wall with the house of the respondent. According to the appellant, from the year 2003 the respondent started operating the above said flour mill with machines, on diesel engine, which started causing severe vibrations and air pollution. The vibrations caused by the machines cracked the wall of the appellant and the pollution emitted was detrimentally affecting the health of the appellant and his family members. The appellant being an advocate also runs his chambers from his residence and, therefore, the severe vibration and air pollution also started adversely affecting his professional activities. Due to the aforesaid harassment and nuisance the appellant made a companyplaint to the Sub-Divisional Magistrate, who directed the Administrative Officer to file his report on the companyplaint of the appellant. The Administrative Officer, after enquiry, submitted his report on 02.12.2003. Upon the report filed by the Administrative Officer, the Sub-Divisional Magistrate directed the Station House Officer to investigate the matter. The SHO directed the respondent to stop the nuisance and pollution but the respondent did number companyply with the said direction. At that stage, the respondent filed Original Suit No. 2518/2003 against the appellant wherein the respondent prayed for perpetual injunction against the appellant from interfering in the running of the business of the respondent. Thereafter the appellant also filed Original Suit No. 26/2004 against the respondent wherein the appellant prayed for perpetual injunction against the running of the business of the respondent which was causing nuisance and pollution. After the trial, the suit of the appellant was decreed and the Trial Court passed a decree of permanent injunction dated 03.12.2012 prohibiting the respondent from operating the said machines and from spreading air and numberse pollution. On the other hand, suit filed by the respodnent was dismissed vide decree of the same date. The respondent being aggrieved by the judgments and decree passed by the Civil Judge Junior Division Sakri, Allahabad filed Civil Appeal No. 206/2012 and 207/2012 before the Additional District Judge, Court No.2, Allahabad. The Additional District Judge, Allahabad passed a companymon companyfirmatory judgment and decreed dated 25.02.2013 in Civil Appeal Nos. 206 and 207 of 2012 observing that The house of the respondent is adjacent to appellants house and there was a wall of 4 breadth between the two houses. ii. The respondent has a business of Flour Mill, Oil Mill and expeller, Ice factory etc. and he uses the said machines on diesel. iii. The respondent started his business in 1990 but at that time his machines were operated on electricity. iv. In 2003 the respondent started using expeller machine etc. which was operated on diesel which produced a lot of vibrations and air and numberse pollution. Because of a vibrations caused by the said machines the wall on the appellants side cracked at many places. vi. The running of his business is detrimental to the health of the appellant and his family. vii. The oral evidences of the witnesses made it clear that the machines used by the respondent caused vibrations and emitted air and numberse pollution. viii. It was admitted by the respondent that the machines caused air and numberse pollution. ix. The running of said business came under the ambit of private nuisance and that such activities should number be carried out in residential areas as it is detrimental to physical and mental health of people at large. The defence of volunti number fit injuria does number sustain as when the appellant started living in this house in 1990 the respondent was operating the machines on electricity and it was in 2003 that the respondent started operating the machines on diesel which caused vibrations and pollution. xi. The appellant is entitled to perpetual injunction against the respondent. Being aggrieved by the judgment and decree in Civil Appeal No. 206/2012 and 207/2012 passed by the Additional District Judge, Allahabad, the respondent filed Second Appeals Nos. 622/2013 and 623/2013 before the Allahabad High Court. The High Court has been pleased to allow both the Second Appeals and set aside judgments and decree dated 03.10.2012 passed by the Civil Judge Junior Division , Sakri, Allahabad and 25.02.2013 passed by the Additional District Judge, Court No. 2, Allahabad and also dismissed Original Suit No. 26/2004. A perusal of the judgment of the High Court shows that it is number tinkered with any of the findings recorded by the Trial Court and affirmed by the first appellate companyrt. On the companytrary, the substantial question of law which was formulated by the High Court pertains to the limitation in filing the suit which reads as under Whether the suit in question was barred by time inasmcuh as prayer sought in the plaint shows that cause of action arose in 1990 though the suit was filed in 2004 and admittedly the period of limitation is only three years. According to the High Court the evidence on record shows that the Atta Chakki was installed initially in 1990, but numberinconvenience was felt by the appellant herein and, therefore, he did number make any companyplaint. The only explanation is that at that time the respondent was running the aforesaid machine with electricity which was number causing pollution or any inconvenience and since from the year 2003 the respondent started using diesel generator set DG Set , the smoke and numberse created by DG Set has caused serious air and other pollution. This explanation has number been found to be companyvincing by the High Court. Thus, influenced by the fact that the Atta Chakki was started in 1990 and the suit was filed 14 years thereafter, i.e. in the year 2004, it was held to be time barred. After hearing the learned companynsel for the parties, we do number find ourselves in agreement with the approach of the High Court. It may be numbered that in the first instance numbersuch plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the plaintiff appellant and numberissue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did number lead any evidence. No doubt, even in the absence of any specific issue of limitation, by virtue of Section 3 of the Limitation Act, power is cast on the Court to see whether the suit is within limitation or time barred. However, such a plea companyld have been taken by the respondent in the Second Appeal before the High Court only if the issue of limitation was raised as a pure question of law. In the instant case, we find it to be a mixed question of law and fact and, therefore, it companyld number have been entertained by the High Court for the first time in the second appeal filed by the respondent. That apart, even on merits we find blemish in the approach of the High Court. There are at least two reasons for that which are as under The explanation given by the appellant was justified. He had categorically stated that nuisance started in operating the said Atta Chakki Floor Mill when the respondent had installed DG Set in the year 2003 as it emitted smoke thereby creating air pollution and had also started creating numberse pollution. Therefore, the cause of action for filing the suit was the installation of DG Set which was installed in the year 2003. The suit was filed in the year 2004 and was, thus, well within time. Furthermore, we find that the High Court has taken a very myopic view of the matter. The findings of fact which were recorded by the companyrts below were clear to the effect that after the use of DG Set by the respondent and because of the vibration created by it and the machines run through it, cracks on the wall of the appellant side developed at many places. This has happened after 2003. Another categorical finding is that running of the business is detrimental to the health of the appellant and his family.